The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

The claimant is appealing the decisions by the Manitoba Compensation for Victims of Crime Program (the "Program") that the time for filing an appeal should be extended and that responsibility should be accepted for the proposed dental treatment. A file review was held on July 7, 2020 to consider the claimant's appeals.

Issue

Whether or not the time for filing an appeal should be extended; and

Whether or not responsibility should be accepted for the proposed dental treatment.

Decision

The time for filing an appeal should be extended; and

Responsibility should be accepted for the proposed dental treatment.

Background

The claimant filed an application for compensation on July 26, 2019 under the Program for an incident that occurred on July 16, 2019. The Program accepted the claimant's application for dental treatment on August 23, 2019 and a request was sent to the claimant’s dentist for an estimate of the dental treatment required.

On September 20, 2019, a dental consultant reviewed the August 26, 2019 estimate from the claimant’s dentist, along with the claimant’s complete file on behalf of the Program. The dental consultant opined that the proposed dental treatment plan did not relate to the July 16, 2019 incident but to a pre-existing condition and recommended the Program not approve the plan. On September 30, 2019, the Program advised the claimant responsibility would not be accepted for the proposed dental treatment.

On January 3, 2020, the claimant's representative requested the Program reconsider the decision not to accept responsibility for the proposed dental treatment and submitted medical records verifying the damage to the claimant’s teeth as a result of the July 16, 2019 incident. On January 28, 2020, the Acting Executive Director of the Program confirmed the decision to deny responsibility for the proposed dental treatment, noting the dental consultant’s opinion that the claimant’s pre-existing dental decay “…ultimately compromised the integrity of [the claimant’s] teeth, leaving them vulnerable to loss.”

On March 5, 2020, the claimant appealed the decision to the Appeal Commission and a file review was arranged.

Reasons

Applicable Legislation and Policy 

The appeal panel is bound by The Victims’ Bill of Rights (“VBR”), regulations under that Act and considers the policies established and approved by the Compensation for Victims of Crime Program. 

The VBR creates a mechanism for victims of crime to make application for compensation for injury resulting from the commission of an offence.

Claimants under the VBR may appeal a reconsideration decision of the director made under s 59 provided that such an appeal is made within 30 days after receiving notice of the decision. Section 60(2) allows the appeal panel to extend the time for appeal if satisfied that the person appealing has a reasonable excuse for failing to appeal within the required time frame.

Section 47 of the VBR allows a victim to be reimbursed for certain kinds of expenses incurred as a result of the injury, as set out in the applicable regulations.

The Victims’ Rights Regulation (the “Regulation”), in s 11.1, allows the director of the Victim Services to pay compensation for medical and dental expenses that are required as a direct result of the victim’s injury and are necessary to return the victim to their pre-incident condition or to address a disability or continuing pain resulting from the injury. With respect to dental services in particular, the Regulation outlines that compensation may be paid in accordance with the current Manitoba Dental Association Fee Guide.

The Policy Manual of the Program outlines specific procedures for application and consideration of claims made under the VBR. Dental services are addressed in Policy 6.4.5 (the “Policy”) which states that the program may cover the cost of any dental expense and/or treatment required as a direct result of the victim’s injury. Further, all proposed dental treatment plans require pre-authorization from the Program and approved treatment plans will be limited to work that is deemed necessary to restore a victim’s dental function to a pre-injury state.

Claimant’s Position 

The claimant was assisted in the appeal by an advocate, who set out the claimant’s position in the Appeal of Victim Compensation Decision form filed March 5, 2020 and in a written submission dated June 25, 2020. The claimant requested the extension of time to appeal on the basis that the claimant was hospitalized during the appeal period. Further, the claimant stated the decision should be overturned because the loss of the claimant’s teeth occurred directly as a result of the criminal incident.

The claimant’s advocate noted in the written submission that the reconsideration decision of January 28, 2020 stated that there is no dispute as to the occurrence of the criminal incident nor as to the loss of the claimant’s teeth but that the claimant’s pre-existing dental decay compromised the integrity of his teeth leaving them vulnerable to loss.

The advocate stated that the dental damage and tooth loss was a direct result of the criminal incident, and that it is possible that the claimant would continue to have intact teeth to the present date if not for the injury resulting from the criminal incident. The advocate noted that the claimant continues to incur significant daily pain in the area of the tooth loss as well as other lingering effects from the criminal incident.

In sum, the claimant’s position is that the time for filing an appeal should be extended as a result of his hospitalization during the appeal period, and that he should be compensated for the dental expenses required as a direct result of the criminal incident.

Analysis 

There are two questions for determination by the panel. First, the panel must consider whether to grant the claimant’s request for extension of time to appeal from the reconsideration decision of the Program’s director. To find that the time to appeal should be extended, the panel must determine that the claimant had a reasonable excuse for failing to appeal within 30 days. The panel was able to make that finding for the reasons that follow.

Second, the panel must determine whether the claimant is entitled to the proposed dental treatment as a consequence of the incident of July 16, 2019. In order for the panel to find that the claimant is entitled, it would have to find that the proposed treatment is required as direct result of the claimant’s accepted criminal injury. For the reasons that follow, the panel was able to make that finding.

On the question of extension of the time to appeal, the panel noted that the claimant’s appeal was filed on March 5, 2020, more than 30 days from the date that the director’s decision of January 28, 2020 was received. The claimant’s advocate outlined in the submission received June 25, 2020 that the claimant was hospitalized from February 8, 2020 through to March 6, 2020 and that this was the reason for the delay in filing the appeal from the reconsideration decision. The panel noted that the claimant’s appeal was filed within mere days following the deadline and takes this into account in finding the claimant’s lengthy hospitalization beginning shortly after the appeal period commenced to be a reasonable excuse for the delay in filing the appeal. The panel therefore determined to allow the extension of time for filing of the appeal.

In considering the substantive question as to whether responsibility should be accepted for the proposed dental treatment, the panel reviewed the medical reports on file, noting that the claimant sought treatment in a hospital emergency department after the incident. The triage report confirms the loss of two teeth in the claimant’s right upper jaw as well as other injuries. When the treating dentist first examined the claimant, two days following the incident, two teeth were noted to broken off at the gum line and the dentist also noted that a third tooth in the same area of the claimant’s upper right jaw required extraction as well. A treatment plan was submitted to the Program on August 26, 2019 requesting approval for extraction of the roots of the two broken teeth as well as extraction of the third tooth. The treatment plan document sets out that the claimant had pre-existing tooth decay.

The panel’s review of the dental chart notes from the treating dentist confirm the dentist had in February 2018 recommended extraction of one of the teeth that broke in the incident, and noted decay in the other tooth that broke off. The chart note of February 1, 2018 indicated a proposed treatment plan was provided but that the claimant was in “no discomfort” at that time. On the next dental visit on March 12, 2019, there is no mention of the specific teeth noted in the treatment plan. The claimant did not see the dentist again until after the incident.

The Program’s consulting dentist reviewed the claimant’s July 16, 2019 dental x-rays and file, and concluded that the claimant’s teeth “…were compromised…” prior to the incident. On the basis of his chart review, the consulting dentist concluded that the proposed extractions were not related to the criminal incident but due to a pre-existing condition. It was on the basis of this opinion that the director determined that responsibility would not be accepted for the proposed dental treatment.

The panel noted the decision of the director stated that due to the claimant’s pre-existing dental decay, it is “…impossible for the [P]rogram to determine if [the claimant’s] teeth loss would have occurred if [the claimant] had healthy teeth.” This is not, however, the test that is to be applied under the provisions of the VBR and regulations.

The VBR and regulations set out that the Program may pay compensation for injury that results from a criminal incident. The Program here accepted that the claimant was the victim of a criminal incident as defined in the VBR and that he lost teeth as a result. With respect to dental expenses, the regulation specifies that the Program may pay for dental expenses that are required as a direct result of the victim’s injury and are necessary to return the victim to their pre-incident condition or to address a disability or continuing pain resulting from the injury.

As outlined in the advocate’s submission to the panel, the claimant’s tooth loss and dental damage was found to be a direct result of the incident. While it cannot be definitively determined whether the claimant would or would not have lost these three teeth but for the incident, it is clear to the panel, on the basis of the evidence before it, that the claimant did suffer damage to these three teeth as a direct result of the incident. The fact the claimant had pre-existing dental decay may have created a vulnerability to injury, but it does not mean that the loss of these three teeth was not the direct result of the incident.

The panel is satisfied, on a balance of probabilities, that the claimant is entitled to the dental treatment proposed in the treatment plan of August 26, 2019.

The appeal is therefore allowed.

Panel Members

K. Dyck, Presiding Officer
P. Challoner, Commissioner
M. Kernaghan, Commissioner

Recording Secretary, J. Lee

K. Dyck - Presiding Officer
(on behalf of the panel)

Signed at Winnipeg this 24th day of July, 2020