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 the proposed dental treatment. A teleconference hearing was held on December 3, 2020 to consider the claimant's appeal.

Issue

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

Decision

That responsibility should be accepted for the proposed dental treatment.

Background

On October 17, 2019, the claimant filed an application for compensation under the Program for an incident that occurred on September 21, 2019. The claimant's application for compensation was accepted by the Program on November 28, 2019 and a request was sent to the claimant's dentist for an estimate of the dental treatment required. A Treatment Plan Estimate was provided by the dentist on December 3, 2019, and a revised Treatment Plan Estimate and clinical notes dating from November 19, 2015 to September 23, 2019 were provided on February 3, 2020.

On February 14, 2020, a dental consultant to the Program reviewed the claimant's file and the February 3, 2020 estimate from the claimant's dentist. The dental consultant opined that the proposed dental treatment plan did not relate to the September 21, 2019 incident, but to a pre-existing condition, and recommended the Program not fund the plan. On February 24, 2020, the Program advised the claimant that they were of the opinion that the recommended dental treatment was not related to the September 21, 2019 assault and responsibility would not be accepted for the proposed treatment.

On March 10, 2020, the claimant requested that the Program reconsider its decision not to accept responsibility for the proposed dental treatment. The claimant noted that he had not had issues with his bridge prior to the September 21, 2019 incident and the bridge only became loose after he was punched. On April 2, 2020, the Acting Executive Director of the Program confirmed the decision to deny responsibility for the proposed dental treatment, noting that the Program relied on the dental consultant's opinion that the recommended dental treatment was related to the claimant's pre-existing dental condition and not the September 21, 2019 incident.

On May 7, 2020, the claimant appealed the Acting Executive Director's decision to the Appeal Commission and a teleconference hearing was arranged.

Reasons

Applicable Legislation

The Appeal Commission and its panels are bound by The Victims' Bill of Rights (the "VBR") and regulations made under the VBR.

The VBR creates a mechanism for victims of crime to apply for compensation for injuries resulting from the commission of an offence.

Section 47 of the VBR provides that a victim is entitled to be reimbursed for certain expenses that were incurred as a result of an injury, in accordance with the regulations.

Section 11.1(1) of the Victims' Rights Regulation (the "Regulation") addresses compensation for medical and dental treatment, and provides as follows:

11.1(1) The director may pay compensation in accordance with this section for medical and dental expenses that are

(a) required as a direct result of the victim's injury; and

(b) necessary to return the victim to his or her pre-incident condition or address a disability or continuing pain resulting from the injury.

Section 11.1(2) addresses the level of coverage and limits, and provides that compensation for dental services may be paid in accordance with the current Manitoba Dental Association Fee Guide.

Claimant's Position

The claimant was assisted on the appeal by an advocate, who made a presentation to the panel. The claimant and his advocate responded to questions from the panel.

The claimant's position was that his right upper bridge became loose as a result of the September 21, 2019 criminal incident, and the Program should accept responsibility for the proposed dental treatment relating to his bridge.

The claimant's advocate reviewed the circumstances surrounding the incident, noting the claimant was assaulted and punched in the face. The advocate noted that the claimant was taken to hospital, where he was particularly concerned with getting his lip stitched up. The hospital report indicated that the claimant had been punched in the face, and he was treated and released. The advocate submitted that it was only when the claimant returned home, and went to eat, that he realized his bridge was loose. The advocate noted that the bridge is directly above where the claimant was hit and where he received stitches.

The claimant's advocate noted the incident occurred on a Saturday, and the claimant saw his dentist the following Monday, two days after the incident. The dentist confirmed that the bridge had become loose, and sent a report to Victim Services. The dentist said the claimant's bridge was not loose before, and indicated the claimant attended for regular dental care and cleaning. The dentist's entire file of the claimant's treatment history was provided to Victim Services.

The advocate noted that the Program accepted the claimant's claim, but denied his claim for dental treatment on the basis that this was a pre-existing condition which was not related to the assault and that the claimant did not tell the emergency room physician that his bridge was loose. The advocate submitted, however, that relying on a pre-existing condition was the easy way out and was not supported by the evidence. The advocate submitted that the reason the claimant did not tell the emergency room physician that his bridge was loose was that he only found that out when he got home and started chewing food.

In conclusion, the advocate submitted that the claimant's bridge became loose as a result of the incident, and the Program should accept responsibility for that injury and the proposed dental treatment. The advocate further submitted that even if there was a pre-existing history, the condition of the claimant's bridge changed as a result of the attack, where he was punched directly above the bridge, and the proposed dental treatment should be accepted.

Analysis

The issue before the panel is whether or not responsibility should be accepted for the proposed dental treatment. For the appeal to be successful, the panel must find, on a balance of probabilities, that the proposed dental treatment is required as a result of the claimant's injury and necessary to return him to his pre-accident condition or address a disability or continuing pain resulting from the injury. For the reasons that follow, the panel is able to make that finding, in part.

The VBR and regulations set out that the Program may pay compensation for an injury that is a result of a criminal incident. In this case, the Program accepted that the claimant was the victim of a criminal incident as defined in the VBR and certain expenses were paid. The Program denied responsibility, however, for recommended dental treatment based on its not being related to the September 21, 2019 criminal incident.

The claimant's advocate clarified at the hearing that their appeal related only to damage to, and treatment for, bridge work on the claimant's upper right side, where the condition of the bridge materially changed as a result of the September 21, 2019 criminal incident.

Based on our review of the evidence on file, and as presented at the hearing, the panel is satisfied that the bridge on the claimant's upper right side was impacted or damaged as a result of the September 21, 2019 criminal incident.

The panel notes that the evidence shows the police arrived at the scene of the incident shortly after it occurred. The police Occurrence Report on file indicates that the injuries suffered were "Cut upper lip (requiring stitches) and Abrasion to back of head." A statement was taken from a witness, who indicated the suspect punched the claimant from behind, hitting him on the right side of his face, and that the claimant was knocked unconscious on the ground. It was noted that a victim statement was not obtained from the claimant as he "…was knocked unconscious and could not clearly recollect the events that occurred."

The hospital emergency report indicates that the claimant presented "with laceration to his lip," that he had been assaulted and "…punched in the face and hit in the head," that he had "pain to the upper right lip and jaw. No changes in his bite. Denies other injuries." It is noted on the physical exam that the claimant had "No pain on palpation of mandible. No pain on palpation of facial bones. There is a 2 cm V-shaped laceration to the lateral right upper lip. There is no loose teeth." The report went on to note that the "Wound was closed with 6 times sutures."

The panel places little weight on the indication in the hospital emergency report that the claimant had "no loose teeth" and "no changes in his bite" and that he "Denies other injuries." The panel is satisfied that the hospital and the claimant were focused on the claimant's jaw and right upper lip at that time. The panel finds it reasonable, and accepts, that the claimant did not recognize that his bridge was loose until he "went home and had food and quickly realized there was a problem with my bridge."

The panel notes that there is conflicting evidence as to whether the claimant lost consciousness as a result of the incident. As indicated above, the police Occurrence Report, which was closest in time to the incident, records the witness's statement that the claimant was "knocked unconscious on the ground" and that a victim statement was not obtained from the claimant as he "…was knocked unconscious and could not clearly recollect the events that occurred." At the hearing, the claimant indicated that he believed he was knocked unconscious for a brief time after he was punched.

The information provided in the police and emergency department reports substantiates that the claimant sustained a facial injury as a result of the criminal incident. The evidence shows that the injury was to the right side of his face, resulting in a laceration of the lateral right lip which required 6 stitches.

The evidence shows that the claimant saw his dentist on Monday, September 23, 2019, being the first business day following the incident, complaining that "he had facial trauma and feels his bridge on the top is broken…" The dentist recorded, on examination, that the "upper front bridge…is coming loose on the right side…" The clinical notes provided by the claimant's dentist indicate that he had a dental checkup two months earlier and had seen his dentist again approximately two weeks before the incident and there was no indication that the bridge was loose at those times.

The panel is satisfied that the evidence supports that the blow to the claimant's face was in the same area as the bridge, directly above it, and was of sufficient force to have caused the claimant's bridge to loosen. The panel is further of the view that regardless of whether there was a pre-existing condition, it is reasonable that the blow altered the claimant's upper bridge work in the right lateral side of his mouth. Based on the evidence, the panel finds, on a balance of probabilities, that the claimant sustained an injury or damage to his bridge work as a direct result of the criminal incident, which required treatment.

The panel notes that in his letter dated February 14, 2020, the Program's dental consultant opined that the "current oral status of tooth no. 13 could be the cause of the existing fixed prosthesis to be loose" and that the claimant's "current occlusal wear could also impact to the mobility of the existing bridge." The panel notes that these statements are speculative in nature. While the consultant went on to state that there was "no documentation on file that the assault was directly responsible for the current bridge not to be fixed in place," that conclusion is inconsistent with the panel's finding above, that the claimant sustained an injury as a direct result of the criminal incident.

The panel would note, however, that the proposed dental treatment plan appears to include items or treatments which would not be related to the loose bridge or procedures to treat the damage to the bridge. Information on file indicates there was some confusion and disagreement between the claimant's dentist and the Program's consultant with respect to the appropriate dental codes or procedures. In response to questions from the panel, the claimant's advocate agreed that based on the numbering or coding, he did not believe that all of the items set out in the plan, such as broken porcelain on a particular tooth, would be related to the attack on the claimant. As indicated above, the advocate confirmed that the focus on the appeal was on the bridge work in the claimant's right upper side only.

Based on the foregoing, the panel finds, on a balance of probabilities, that dental treatment relating to the claimant's right bridge work was required as a result of the claimant's injury and necessary to return him to his pre-accident condition or address a disability resulting from that injury.

The panel therefore finds that responsibility should be accepted for the reasonable expenses of the proposed dental treatment to the claimant's right bridge work as a result of the September 21, 2019 criminal incident.

The claimant's appeal is allowed, in part.

Panel Members

M. L. Harrison, Presiding Officer
J. Witiuk, Commissioner
M. Kernaghan, Commissioner

Recording Secretary, J. Lee

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

Signed at Winnipeg this 1st day of February, 2021