Decision #104/11 - Type: Workers Compensation

Preamble

The worker is appealing the decision made by Review Office of the Workers Compensation Board ("WCB") which determined that he did not sustain a personal injury by accident as defined in subsection 1(1) of the Act and therefore no responsibility would be accepted for his current dental complaints. A hearing was held on June 6, 2011 to consider the matter.

Issue

Whether or not the claim is acceptable.

Decision

That the claim is not acceptable.

Decision: Unanimous

Background

On July 5, 1989, the accident employer submitted an Employer's Report of Injury indicating that over a period of time, the worker's teeth were destroyed by acid mist in the work area. The employer noted that the worker commenced employment on August 24, 1988 and the date of injury was June 23, 1989.

A Dentist's First Report dated July 3, 1989 stated that the worker was seen on May 12, 1989, claiming that his teeth eroded since he started work in a plant. The dentist requested that the WCB authorize dental treatment in relation to teeth 11 and 21.

The WCB wrote to the worker on October 2, 1989 asking him to call the WCB offices so that further information could be gathered to adjudicate his claim.

On January 10, 1990, the dentist wrote to the WCB asking for a response to his July 3, 1989 request for treatment authorization. On January 25, 1990, the dentist was advised that no responsibility would be accepted for any dental costs as the WCB was unsuccessful in obtaining information from the worker.

On August 6, 2009, the worker contacted the WCB stating that his original claim was accepted and that the WCB paid for titanium implants. The implants were now failing due to wear and tear. The worker denied any new accidents or care-related issues contributing to the appliances' failure. The adjudicator asked the worker to provide the WCB with the mailing address of his dentist so that he could obtain a status report.

On August 7, 2009, a WCB adjudicator advised the worker that his file was closed in 1989 as he failed to follow up for coverage. The worker provided the adjudicator with details of his work history prior to working with the accident employer. The worker described his job duties. He noted that the acid bath was 140 degrees F, which created an environmental "mist." Some workers wore respirators but it was not required by the employer. The worker had no prior problems with his teeth other than typical fillings. The worker was of the view that his tooth erosion was caused from acids in his work environment and that this had occurred with other employees as well. He did not remember the names of these co-workers but felt his employer would likely have this information. The worker indicated that he had moved to British Columbia and probably never received the October, 2, 1989 letter.

In September 2009, the WCB received correspondence from the worker's current dentist. On September 24, 2009, the WCB adjudicator spoke with the dentist who advised that the worker's dental hygiene was good. The worker required 1-1 and 2-1 pontics, 1-3 and 2-3 abutments. The dentist was of the view that the condition of the worker's teeth was consistent with the worker's description of workplace related absorption. The dentist noted that lemons could also cause the same condition.

The treating dentist provided the WCB with study models in regard to the treatment he was recommending for the worker.

On October 8, 2009, the accident employer responded to a WCB letter dated October 7, 2009. The employer noted that the worker worked for one year when he filed his claim for tooth erosion. "We did have other employees who had claims for the same type of dental issues. Generally these employees had been employed for a longer period of time in that area. At the time when [the worker] worked the [building] he should have been wearing a proper respirator which should have prevented this from happening but we cannot confirm if he did in fact wear his respirator. It is my understanding that it was the front teeth that were affected by the acid mist."

On November 13, 2009, a WCB dental consultant reviewed the file and stated:

"Upon review of the study models the adjacent upper natural teeth do not appear to show signs of enamel erosion. There are signs of incisal wear on the lower anterior teeth but this is due to grinding and not acid erosion."

On November 16, 2009, primary adjudication advised the worker that based on the opinion of the WCB dental consultant outlined above and the fact that historical information was incomplete, the WCB could not relate his tooth difficulties to a workplace exposure. On June 26, 2010, the worker appealed the decision to Review Office.

On August 27, 2010, a Review Officer contacted the worker for additional information. In response to questions posed by the Review Officer, the worker stated:

  • Root canal treatment and crowns for #11 and #21 were done about 20 years ago by a dentist before he moved to B.C.
  • He had no dental work done in B.C.
  • Titanium implants were done in 1989 by the dentist to only #11 and #21. His two front teeth were rotting from the middle on the inside and wearing away from the outside up due to acid mist. The dentist cut the teeth off at the gum line, drilled out the middle, put in the anchors and placed the artificial teeth on. This was the only treatment done in 1989. The worker noted there was nothing wrong with his #21 at this time and it is still there. #11 got loose and was extracted. He confirmed the records from his dental clinic notes this was done on April 1, 2008. The whole tooth #11 is gone. The dentist wanted to extract #21 to provide more support and anchor #11 and #21 to the next teeth.
  • The dental centre requested artificial teeth for #12 and #22. They needed it for the strength to hold all the teeth there. They have not been removed. As far as he knows, there is nothing wrong with these teeth.
  • The worker has a flip tooth in place of #11.

The Review Officer contacted the employer and the following information was obtained.

  • the worker was employed by the company from August 24, 1988 to August 14, 1989.
  • they have no records of dental coverage or treatment paid through their company plan. Only the service provider would have these records.
  • if the worker wore a respirator while working, this would have protected him from the erosion of his teeth.
  • other workers had similar problems but they usually worked for longer periods of time in the area. It was due to the acid mist exposure.
  • the worker worked for 10 months when he reported the condition of his teeth to the employer.

The Review Officer spoke with the WCB dental consultant on August 27, 2010 for clarification as to what had been requested for dental treatment and what had already been done in the past.

On September 1, 2010, Review Office determined that the claim was not acceptable and that responsibility should not be accepted for dental treatment. Review Office noted that there was no file documentation available from 1989 to confirm the dental treatment that was performed, who paid for this treatment and the worker's dental hygiene/history at that time. Review Office stated it was unable to give weight to the opinion expressed by the current dentist dated September 24, 2009, as the dentist was unable to comment on the condition of the worker's original central incisors which were already replaced with implants, as reported by the worker, in 1989.

Given the treatment the worker required in 1989 with the worker's report of the placement of titanium implants, Review Office expected that some of the worker's other front teeth would show signs of acid erosion. The employer indicated that there were other workers who had similar dental issues but generally they were employed for longer periods of time in the acid mist area. Review Office accepted the WCB dental consultant's comments of November 13, 2009. Review Office therefore was unable to conclude on a balance of probabilities, that the worker sustained an injury to his teeth due to an accident at work as defined by the Act. On September 17, 2010, the worker appealed Review Office's decision to the Appeal Commission and a hearing was arranged.

Reasons

Applicable Legislation

In considering appeals, the Appeal Commission and its panels are bound by The Workers Compensation Act (the “Act”), regulations and policies of the Board of Directors.

This appeal deals with claims acceptance. Subsections 1(1) and 4(1) of the Act set out the circumstances under which claims for injuries can be accepted by the WCB, and state that the worker must have suffered an injury by accident that arose out of and in the course of employment. Once such an injury has been established, the worker is entitled to the benefits provided under the Act.

Worker's Position

The worker attended the hearing and answered questions posed by the panel.

The worker said that he worked in a building that was filled with acid mist. He explained that the process involved acid baths with high temperatures and that the work site temperature was anywhere from 116 to 126 degrees F. The worker advised that he wore a respirator but that he had to remove it periodically because it was so hot. He also wore protective rubber gloves, boots, acid resistant coveralls and safety glasses.

Regarding the use of the respirator, the worker was asked how often he would be without protection on his face during an eight hour shift. He replied half a day.

The worker was asked how his teeth deteriorated when he wore a respirator. He said that the acid mist "kind of follows you around. It goes in the shower...into the coffee room…" He said there are areas where respirators are not required but that the acid is there. It floats and doesn't go anywhere.

The worker said that the acid affected his front two teeth. He explained that it slowly started to eat away at his teeth and got to the point that they "just deteriorated completely". He said that it did not take long for the acid to affect his teeth. "I probably worked there about six months and it had already started to chew away at them."

The worker stated that his concern was just his front teeth.

The worker said that his co-workers also had problems with their teeth.

Employer's Position

The employer did not attend the hearing but provided a written submission. The employer advised that the worker only worked for the company for 9 months when the dentist documented issues with his teeth. The employer acknowledged that acid in the building can cause erosion of the front teeth, but submitted that if the worker wore a respirator, as he indicated, the respirator would have protected his teeth from the acid mist.

The employer noted that "The original request from the dentist in 1989 was for root canal and crowns. According to [the worker] he had titanium implants placed in 1989. There is no evidence to support that the Workers Compensation Board approved or paid for titanium implants or any other dental treatment in 1989."

The employer also noted that its plan does not cover the cost of dental implants.

The employer submitted that the Review Office decision should be upheld, the claim should not be acceptable and responsibility should not be accepted for dental treatment.

Analysis

The issue before the panel was whether the worker's claim is acceptable. For the worker's appeal to be successful, we must find that the worker sustained an injury arising out of and in the course of his employment. We were not able to make this finding.

Considering all the evidence including the worker's evidence at the hearing, the panel finds, on a balance of probabilities, that the evidence does not establish that the worker's dental work and current dental condition resulted from a workplace accident or workplace exposure.

The panel is unable to link the current requirement for surgery to exposure that occurred 20 years earlier. The panel notes that the claim was originally filed in 1989 and that the WCB requested additional information from the worker but that the worker did not contact the WCB until 20 years later.

The panel relies upon the following information in reaching this decision:

  • the worker did not reply to correspondence seeking additional information until 20 years later.
  • opinion of the WCB dental consultant that "upon review of the study models, the adjacent upper natural teeth do not appear to show signs of enamel erosion."
  • the employer's acknowledgement that this type of dental condition can result from the workplace exposure but generally after a longer period of time.
  • that the worker only worked at the worksite for nine months when the dentist documented the issue with the worker's teeth.

The panel finds that the short period of exposure is not consistent with the condition developing at the employer's worksite.

As well the panel notes that although the worker indicates that the WCB paid for titanium implants, the evidence does not support this position.

The worker's appeal is dismissed.

Panel Members

A. Scramstad, Presiding Officer
C. Devlin, Commissioner
P. Walker, Commissioner

Recording Secretary, B. Kosc

A. Scramstad - Presiding Officer

Signed at Winnipeg this 27th day of July, 2011

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