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 she is not entitled to full dental coverage under The Victims' Bill of Rights (the "VBR"). A file review was held on November 27, 2019 to consider the claimant's appeal.

Issue

Whether or not the claimant is entitled to full dental coverage.

Decision

The claimant is entitled to the dental coverage requested in the proposed treatment plan dated August 27, 2018 except for the proposed bimonthly fluoride treatments.

Background

The claimant filed an application for compensation on May 10, 2005 under the Program for incidents that took place in 1989 and 1990. The claimant's application was accepted by the Program on June 9, 2005. On April 7, 2009, the claimant applied to the Program for coverage for dental treatment she required as a result of the incidents, which treatment was approved. On August 27, 2018, the claimant's treating dentist requested further treatment due to ongoing issues. The request was sent to the Program's dental consultant for review on September 10, 2018. On December 10, 2018, the claimant's dentist was advised that the Program would provide approval for a portion of the requested treatment based on the December 7, 2018 opinion of the Program's dental consultant.

On February 11, 2019, the claimant's treating dentist, on behalf of the claimant, submitted a letter to the Program requesting reconsideration of their decision to only provide coverage for a portion of the requested treatment. On February 22, 2019, the Acting Executive Director of the Program confirmed the decision to deny coverage for a portion of the dental treatment. The Director relied on the opinion of the Program's dental consultant who opined that there was "…no significant reason…" for a portion of the requested treatment.

On March 20, 2019, the claimant appealed the decision to the Appeal Commission and a file review was arranged.

Following the hearing, the appeal panel requested additional medical information prior to discussing the case further. The requested information was later received and was forwarded to the interested parties for comment. On March 24, 2020, the appeal panel met further to discuss the case and render its final decision on the issues under appeal.

Reasons

Applicable Legislation and Policy

The appeal panel is bound by The Victims’ Bill of Rights (“VBR”), regulations under that Act and 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, as set out in the applicable regulations, that were incurred as a result of the injury.

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 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. The Policy specifically excludes coverage of dental cleanings, scaling and polishing, fillings, check-ups and other dental treatment considered to be general treatments that most people need to maintain basic dental health.

Claimant’s Position

The claimant’s position was set out in the Appeal of Victim Compensation Decision form filed February 11, 2019. The claimant stated the reconsideration decision should be overturned because had the criminal incident not taken place, the claimant would not be facing these dental issues. In a letter from the claimant on file dated November 1, 2019, the claimant elaborated on the need for the treatment requested, stating it would allow her to live pain free and move on from the past.

The claimant outlined as well, in another (undated) letter to the manager of the Program that the pain in and condition of her teeth serves as a constant reminder of the criminal incident, noting that previous corrective dental work was not “done properly”, causing further problems that the proposed treatment plan is intended to address.

The claimant states that the dental issues are a result of the criminal incident and should therefore be covered by the Program.

Analysis

The question for determination is whether or not the claimant is entitled to full dental treatment coverage. In order for the panel to find that the claimant is entitled, it would have to find that the proposed treatment is required as a direct result of the claimant’s accepted criminal injury. For the reasons that follow, the panel was able to make that finding, in part.

The panel reviewed the medical reports on file, noting that the treating dentist provided a treatment plan on August 27, 2018 in which the integrity of the claimant’s teeth was linked to the ongoing effects of the criminal incident upon the claimant.

That plan was approved in part by the Program on December 10, 2018 based upon the opinion of the Program’s dental consultant dated December 7, 2018. With respect to the aspects of the treatment plan that were not approved, the dental consultant was of the view that the treatment would address “natural wear and tear and the lack of oral maintenance.” On this basis, the Program declined to accept responsibility for the proposed treatment plan on a number of the claimant’s teeth.

The panel reviewed as well the further opinion of the consulting dentist, set out in an email to the Program Manager dated February 18, 2019. At that time, the consulting dentist elaborated on a number of points from the December 7, 2018 opinion in follow up to further questions from the Program after the claimant requested reconsideration of the December 10, 2018 decision. The consulting dentist stated that:

It is not within normal clinical practice to treat a patient with bi-monthly fluoride varnish. If one has to, it [is] due to active generalized dental decay throughout a patient’s oral cavity. This is usually due to poor oral hygiene and lack of oral maintenance. This is no way a result of the Compensable Injury.

The consulting dentist again noted the claimant’s failure to maintain regular oral maintenance appointments and confirmed the original opinion provided regarding the balance of the proposed treatment plan which was not approved.

The panel also reviewed a series of letters from a number of medical professionals in support of the proposed treatment plan. The treating periodontist wrote on March 6, 2018 that “…despite the claimant’s efforts to maintain excellent oral hygiene,” the existing dental work requires replacement as “…it is a significant plaque retentive factor” that may lead to further gingival recession and bone loss, and tooth loss in the future. The treating dentist wrote again on February 11, 2019 providing further explanation for the requested treatment plan. The treating dentist stated that the assumption that the dental work was required because the claimant was “negligent in oral hygiene is not correct.” Rather, the treating dentist directly related the need for further dental work, as proposed, to the continuing impacts of the criminal incident upon the claimant. The treating prosthodontist wrote on April 5, 2019 in further support of the proposed treatment plan, outlining the potential longer term, negative consequences if the proposed work was not done.

The panel noted that the dental consultant did not appear to have had the benefit of reviewing these additional medical opinions; therefore the panel requested the consulting dentist provide a further opinion taking these additional reports into account. In a report dated February 27, 2020, the consulting dentist concluded that the Program should reconsider and approve the treatment set out in the April 5, 2019 letter from the treating prosthodontist. The panel noted that the April 5, 2019 letter addressed the outstanding proposed treatments from the August 27, 2018 plan.

The dental consultant also noted, in the February 27, 2020 opinion that based upon the information on file, there is a presumed link between the injury resulting from the criminal incident and the current dental condition of the teeth for which the claimant is seeking treatment and coverage under the Program. Therefore, the consultant concluded that the Program should accept financial responsibility for the dental treatment proposed on April 5, 2019.

The panel noted that the August 27, 2018 proposed treatment plan also includes a request that the claimant receive bi-monthly fluoride varnish to help protect against further decay. The Director, on reconsideration, determined that this would not be treatment covered by the Program for the reasons outlined by the dental consultant on February 18, 2019. The panel notes that this determination aligns with the provisions of the Policy, and is in agreement with the Director’s decision. On the standard of a balance of probabilities, the panel finds that the proposed fluoride treatments are related to the claimant’s general dental health, rather than to the specific injury sustained as a result of the criminal incident. Therefore, this aspect of the proposed treatment plan of August 27, 2018 will not be covered.

On the basis of the reports of the treating dental professionals, and taking into account the most recent opinion of the dental consultant, the panel is satisfied, on a balance of probabilities, that the claimant is entitled to the dental treatment outlined in the proposed treatment plan of August 27, 2018, except for the fluoride treatments as noted above.

The appeal is allowed, in part.

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 30th day of April, 2020