The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

The worker is appealing the decision made by the Workers Compensation Board ("WCB") that he should not be reimbursed for costs associated with dental treatment. A file review was held on October 24, 2018 to consider the worker's appeal.

Issue

Whether or not the worker should be reimbursed for costs associated with dental treatment.

Decision

That the worker should not be reimbursed for costs associated with dental treatment.

Background

This claim has been the subject of two previous appeals before the Appeal Commission and the background will therefore not be repeated in its entirety. Please see Appeal Commission Decision Nos. 78/16 and 165/17.

The worker filed a claim with the WCB for an injury to his spinal cord and right foot resulting from a June 4, 1990 work-related accident. His claim for compensation was accepted and various types of benefits have been paid to the worker over the course of his claim.

In a discussion with the WCB in April 2015, the worker's union representative advised that the worker had dental issues due to the medications he had been taking for his workplace injury. In a further conversation with the WCB on May 25, 2015, the representative advised that the worker had undergone dental treatment when he was out of the country, and had followed up with a dentist when he returned to Manitoba.

On August 2, 2015, the worker advised the WCB that his dentist had looked at his teeth a few months ago and was concerned with how weak they were due to the medications he was taking. The worker requested that the WCB pay for the cost of the dental work he required.

On October 5, 2015, the worker's dentist wrote to the WCB in support of the worker's request for coverage of his dental care, and stated, in part, that:

There is some evidence to suggest that [the worker's] dental issues may in fact indirectly be as a result of a workplace accident that he suffered, in which his back was broken. As a result of the broken back, he also suffered difficulties with bladder control, for which he was given the medication [name].

This medication is known to have the side effect of causing dry mouth, which in turn, I believe, has led to many of [the worker's] dental issues.

The WCB requested and was provided with copies of the worker's dental chart notes from 2003 to 2015 and copies of the worker's available dental x-rays.

The worker's file was reviewed by a WCB dental consultant who provided an opinion on July 8, 2016. The dental consultant stated that tooth number 15 had a large carious lesion (decay) which violated the nerve of the tooth, resulting in the tooth requiring a non-surgical root canal treatment with a post and core restoration, and that the dental x-ray on file clearly showed the issue with tooth number 15.

The dental consultant stated that on September 4, 2003, the worker had a bruxism appliance fabricated due to his severe grinding of his teeth, and the most current dental x-rays on file clearly showed the wear of his teeth was due to bruxism. He opined that restorations performed on the worker on January 17, 2012 were not due to decay but to his teeth being chipped and ground down due to bruxism.

The dental consultant also stated that the worker's dental chart showed that he had his last dental cleaning on April 21, 2008, and that he did not see a dentist for approximately four years, from May 8, 2008 to January 17, 2012. He noted that there was no mention in the worker's dental chart of dry mouth or that this was a concern until May 13, 2015.

The dental consultant indicated that he had reviewed the list of medications taken by the worker due to his compensable injury, and noted that the literature states that dry mouth is a less serious side effect, and less common or rare. He opined that with dry mouth there would be extensive widespread decay throughout the oral cavity. Only one tooth, however, had presented with a large carious lesion based on the dental x-rays on file. In conclusion, the WCB dental consultant opined that the worker's dental treatment was not related to the compensable injury.

In a decision dated July 19, 2016, Compensation Services advised the worker that given all of the information on file, including the WCB dental consultant's July 8, 2016 opinion, the WCB was unable to cover the cost of any dental treatment.

On October 13, 2016, the worker's union representative requested that Review Office reconsider Compensation Services' decision. The representative submitted that the evidence supported that the worker's recent dental difficulties were a further injury subsequent to the worker's compensable injury, which arose as a result of decades-long use of prescription medications that caused dry mouth and in turn led to dental decay. It was submitted that the worker was entitled to medical aid benefits related to his recent dental treatment.

On November 18, 2016, Review Office advised the worker that he was not entitled to reimbursement for dental treatment costs. Review Office accepted the July 8, 2016 opinion of the WCB dental consultant. Review Office found that if dry mouth symptoms in relation to medication use were the predominant factor in the worker's need for dental work, his tooth decay would have been more widespread and there would have been a longer history of complaints related to dry mouth, tooth decay and related symptoms and restorations.

On May 24, 2017, the worker's dentist again wrote to the WCB and proposed a treatment plan for crown coverage on a number of the worker's teeth due to severe wear on those teeth.

In Appeal Commission Decision No. 165 dated November 30, 2017, the presiding panel determined that responsibility should be accepted for the worker's current psychological conditions as indicated therein.

On May 5, 2018, the worker's union representative appealed Review Office's November 18, 2016 decision to the Appeal Commission and a file review was arranged.

Reasons

The Appeal Commission and its panels are bound by The Workers Compensation Act (the "Act"), regulations and policies of the WCB's Board of Directors. As the worker's injury occurred in 1990, his claim is governed by the Act as it existed at that time.

Subsection 4(1) of the Act as it existed in 1990 provided that where a worker suffers personal injury by accident arising out of and in the course of employment, compensation shall be paid.

Subsection 27(1) of the Act provided, in part, that the WCB "…may provide for the injured worker such medical, surgical, and hospital treatment…as it may deem reasonably necessary at the time of the injury, and thereafter during the disability, to cure and relieve from the effects of the injury…"

WCB Policy 44.10.80.40, Further Injuries Subsequent to a Compensable Injury (the "Policy") applies to circumstances where a worker suffers a separate injury which is not a recurrence of the original compensable injury, but where there may be a causal relationship between the further injury and the original compensable injury. The Policy provides that:

A further injury occurring subsequent to a compensable injury is compensable:

(i) when the cause of the further injury is predominantly attributable to the compensable injury; or

(ii) when the further injury arises out of a situation over which the WCB exercises direct specific control; or

(iii) when the further injury arises out of the delivery of treatment for the original compensable injury.

Worker's Position

The worker was represented by a union representative who provided a written submission in support of the worker's appeal.

The worker's position was that the WCB is responsible for costs associated with the worker's dental treatment as the evidence supports that his compensable injuries caused or significantly contributed to dental decay, which is a further compensable injury.

The worker's representative submitted that the evidence, and documentation enclosed with their written submission, supported that the medications used to treat the worker's compensable injuries cause dryness of the mouth which contributes to dental decay. He stated that some of the medications which have been prescribed and used over the past twenty-eight years to treat the effects of the worker's compensable injuries cause dry mouth, which is known to cause accelerated dental decay. He suggested that this side effect of the medications is compounded by the worker's incontinence, which has required him to restrict his fluid intake in order to avoid accidents.

The worker's representative further submitted that the worker's compensable psychological injury is causally related to his bruxism, which has also caused an acceleration of his dental decay. He submitted that bruxism is commonly associated with mental health illness, and on a balance of probabilities, the worker's teeth were ground down due to the symptoms associated with his compensable psychological injury, as well as the medications prescribed for that injury.

It was submitted that the medical opinions which were relied upon by the WCB and Review Office to deny responsibility for the worker's dental treatment failed to address the current complexity of this matter. The worker's representative stated that the WCB's medical or dental consultants have not considered the effect of the prescription medications which the worker has taken for his now-compensable psychological condition. He submitted that while the WCB dental consultant suggested that the worker simply chose not to care for his teeth, there is, on a balance of probabilities, a complex causal relationship between the worker's psychological ill-health and his dental decay.

The worker's representative submitted that the list of medications which have been prescribed to address the effects of the worker's compensable injuries has expanded with the acceptance of his psychological condition. He noted that product information for several medications prescribed for the worker to address his physical and psychological injuries, as submitted in advance of the hearing, list dry mouth as a common side effect.

Reference was made to medical literature which had been provided, as supporting that antidepressant medications are not only associated with dry mouth but also with bruxism. The worker's representative suggested that it stands to reason that an individual who is struggling with severe depression would not likely be overly concerned with his oral care or dental treatment, and referred to further medical articles as establishing a link between depression and poor oral health. The worker's representative argued that while the WCB dental consultant found that the worker's dental decay was due in part to his failure to have regular dental treatment, in their view this was not a conscious choice, but a consequence of the disabling effects of his depression.

Employer's Position

The employer is a finalled firm.

Analysis

The issue before the panel is whether or not the worker should be reimbursed for costs associated with dental treatment. For the worker's appeal to be successful, the panel must find, on a balance of probabilities, that the worker's dental treatment was causally related to, and necessary to cure and relieve from the effects of, his compensable injury. The panel is unable to make that finding for the reasons that follow.

Based on our review of all of the information which is before us, the panel is unable to find that the worker's compensable injuries caused, or significantly contributed to, the worker's dental issues or decay.

The panel is not satisfied that the information on file, and documentation provided with the worker's submission, establish that the medications used by the worker to treat his compensable injuries, including his compensable psychological injury, caused dryness of mouth or contributed to dental decay.

The panel places significant weight on the July 8, 2016 opinion of the WCB dental consultant, who noted that only one of the worker's teeth, tooth number 15, had presented with a large carious lesion (decay), based on the dental x-rays on file. The consultant reviewed the list of medications taken by the worker as a result of his compensable injuries, and noted that the literature stated that dry mouth was a less serious side effect, and less common or rare. The consultant also reviewed the worker's file, and did not see the extensive widespread decay which he would have expected to see with dry mouth.

The panel is further unable to find that the worker's bruxism is causally related to his compensable psychological injury. Based on the evidence before us, the panel is satisfied that the worker's bruxism preceded his compensable psychological injury by several years. In this regard, information on file shows that the worker had severe bruxism in 2003 and a bruxism appliance was fabricated for him to wear due to his severe grinding of his teeth. The dental charts also indicate that he was still using such an appliance in 2007.

On the other hand, the worker's psychological condition was only accepted subsequently, as of September 2011. The decision of the panel in Appeal Commission Decision No. 165/17 thus stated, in part:

The panel notes that the focus of the appeal is on the exacerbation of the worker's psychological conditions, and in particular his depression, from 2011 forward. In response to questions from the panel as to the scope of the issue and the relevant conditions on the appeal, the union representative confirmed that the issue in their view dealt with 2011/2012 forward.

…

Based on the evidence on the file as well as the submissions and evidence provided prior to and at the hearing, the panel accepts that the worker had an ongoing major depressive disorder in 2011 which continues to the current time, and is causally related to the worker's June 4, 1990 workplace injury.

The panel is unable to attach weight to the October 5, 2015 opinion of the worker's dentist. The panel notes that the dentist stated in his letter that there is "some" evidence to "suggest" that the worker's dental issues "may" indirectly be as a result of his workplace accident, and that the worker's medication "is known to have the side effect of causing dry mouth." He then went on to opine that this has led to many of the worker's dental issues. The panel finds that the dentist's opinion is speculative, and does not meet the standard of a balance of probabilities which applies in this case. The panel further notes that in a subsequent letter dated May 24, 2017, the worker's dentist indicated that it was "not in his expertise" to conclude as to the dental effect of the medications the worker had been taking, and that it would be up to the worker's physician to do so.

Finally, the panel attaches little weight to the medical articles which were submitted by the worker's union representative in support of the appeal. The panel notes that those articles were based on case studies as opposed to actual evidence-based research.

Based on the foregoing, the panel finds, on a balance of probabilities, that the worker's dental treatment was not causally related to or necessary to cure and relieve from the effects of his compensable injury. The panel therefore finds that the worker should not be reimbursed for costs associated with dental treatment.

The worker's appeal is dismissed.

Panel Members

M. L. Harrison, Presiding Officer
A. Finkel, Commissioner
M. Kernaghan, Commissioner

Recording Secretary, J. Lee

M. L. Harrison - Presiding Officer
(on behalf of the panel)

Signed at Winnipeg this 17th day of December, 2018