The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

The claimant is appealing the decision by the Manitoba Compensation for Victims of Crime Program (the "Program") that responsibility should not be accepted for dental treatment as being a consequence of the October 29, 2018 incident. A teleconference hearing was held on July 9, 2020 to consider the claimant's appeals.

Issue

Whether or not responsibility should be accepted for the claimant’s dental treatment as being a consequence of the October 29, 2018 incident.

Decision

Responsibility should be accepted for the claimant’s dental treatment as being a consequence of the October 29, 2018 incident.

Background

The claimant filed an application for compensation on November 13, 2018 under the Program for an incident that occurred on October 29, 2018. The Program accepted the claimant's application for dental treatment, among other benefits on December 4, 2018. The Program requested an estimate from the claimant’s dentist of the treatment required, received on December 13, 2018. On March 17, 2019, a dental consultant reviewed the estimate on behalf of as well as the claimant’s complete file. On reviewing the treatment plan for three of the claimant’s teeth, the dental consultant provided an opinion that x-rays of two of the teeth requiring treatment showed “…extensive structure deterioration…” and recommended the Program not approve the plan due to the pre-existing condition of the claimant’s teeth.

On April 3, 2019, the Program advised the claimant’s dentist and the claimant that responsibility would not be accepted for the proposed dental treatment. The Program requested an alternate treatment plan from the claimant’s dentist on May 8, 2019, which was submitted on May 11, 2019. On May 31, 2019, the Program advised the claimant that there was no change to the earlier decision to not accept responsibility for the proposed treatment.

On August 6, 2019, the claimant requested the Program reconsider the decision to not accept responsibility for the proposed dental treatment and provided copies of photographs taken shortly after the October 29, 2018 incident. On August 27, 2019, the Acting Director of the Program confirmed the decision to deny responsibility for the proposed dental treatment as being a consequence of the October 29, 2018 incident.

On September 25, 2019, the claimant appealed the decision to the Appeal Commission and a teleconference hearing was arranged for July 9, 2020.

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.

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 criminal 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 appeared on his own behalf in the teleconference hearing. He made an oral submission and answered questions from members of the appeal panel.

The claimant’s position, as set out in the Appeal of Victim Compensation Decision form filed September 26, 2019 is that the reconsideration decision should be overturned because had the criminal incident not taken place, the claimant would not be facing these dental issues.

The claimant reported a loose upper bicuspid tooth when he attended at hospital on October 30, 2018 for x-rays of his face. On the same date, he also mentioned a loose tooth in his statement to police. The claimant described to the panel that a few days following the incident, one tooth fell out, and a couple of days later, another fell out. At that point he made an appointment with his dentist. When he saw his dentist on November 13, 2019, the dentist referred him to a specialist. The specialist provided a treatment plan to the Program on December 13, 2018, recommending extraction of the two roots and of a third tooth.

The claimant stated that there was nothing wrong with his teeth prior to the criminal incident and he would not have required three extractions but for that event. He noted on questioning that he had root canal work done in 2014 but had not required had any further dental work since that time. He had no complaints of dental pain or discomfort since 2014, until the time of this injury.

The claimant believes the appeal should be allowed as the evidence confirms he experienced damage to his three teeth as a direct result of the criminal incident.

Analysis 

The question for determination by the panel is whether or not the claimant is entitled to dental treatment as a consequence of the incident of October 29, 2018. 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.

The panel considered the reports in the file as well as the oral testimony of the claimant, noting that the claimant first indicated that he felt a loose tooth on the day following the criminal incident. As he testified, he did not immediately obtain dental treatment, but waited approximately two weeks, by which time two teeth had fallen out. The claimant’s dentist noted the loss of two teeth above the gum line and that a third tooth also required extraction, and referred the claimant to a periodontist. The treating periodontist assessed the claimant on November 21, 2018 and provided a treatment plan to the Program on December 13, 2018. After the claim was first denied, the periodontist provided the Program with a further treatment plan on May 11, 2019.

The Program sought the opinion of a consulting dentist. That opinion, dated March 17, 2019 noted that the claimant’s most recent dental history reflected a treated root canal with a fractured off crown on the first tooth that broke off after the incident, as well as fractured off crowns on the other two teeth in question. The dental consultant reviewed the claimant’s 2014 dental x-rays and compared these to the 2018 dental x-rays, noting both showed extensive structure deterioration.

On the basis of his review of the claimant’s dental records, the consulting dentist formed the opinion that based on the claimant’s poor oral health in 2014, there was a high probability he required dental treatment in 2019 as a result of the pre-existing condition, rather than as a result of the criminal incident. On this basis, the Program denied the claim for dental benefits.

The panel does not agree with this conclusion. While the evidence does confirm that the claimant had pre-existing dental concerns including decay and structural deterioration, the existence of a pre-existing condition does not disqualify a claimant from compensation for a criminal injury.

The VBR and regulations set out that the Program may pay compensation for injury that is a result of a criminal incident. The Program here accepted that the claimant was the victim of a criminal incident as defined in the VBR. 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 his submission, the claimant required extraction of three teeth, two of which fell out within days 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, the claimant suffered 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.

On the basis of the evidence before it, the panel is satisfied, on a balance of probabilities, that the claimant is entitled to dental treatment as a consequence of the October 29, 2018 incident.

The appeal is 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