The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

The worker is appealing the decision made by the Workers Compensation Board ("WCB") that they are not entitled to coverage for dental treatment (crowns) for teeth 14 and 15. A file review was held on May 9, 2023 to consider the worker's appeal.

Issue

Whether or not the worker is entitled to coverage for crowns on teeth 14 and 15.

Decision

The worker is not entitled to coverage for crowns on teeth 14 and 15.

Background

This claim was the subject of a previous appeal. Please see Appeal Commission Decision No. 91/21 dated July 16, 2021. The background will therefore not be repeated in its entirety.

The worker was diagnosed with mesothelioma in November 2012. On December 2, 2012, the worker filed a claim with the WCB reporting exposure to asbestos during their employment, and on January 10, 2013, the WCB accepted the worker's claim for occupational exposure to asbestos.

The worker was treated with a series of six cycles of chemotherapy between February and June 2013. On July 26, 2013, the worker's spouse contacted the WCB to advise that the worker required dental treatment as some of their teeth had cracked and fallen out, which their treating dentist attributed to the recent chemotherapy.

In a report to the WCB dated September 30, 2013 (received October 7, 2013), the worker's treating dentist advised that the worker had been a long-term patient and was seen on a regular basis. The dentist noted that the worker endured a great deal of discomfort while undergoing chemotherapy due to lesions in their mouth. The dentist further noted that proper maintenance of the worker's teeth was difficult due to those lesions and resulted in tooth fractures. The dentist listed dental treatment performed to date and provided a treatment plan for further proposed dental work for the WCB to review.

At the request of the worker's WCB case manager, a WCB dental consultant reviewed the worker's file, and requested that further information be obtained from the worker's dentist in the form of imaging records taken prior to the start of the worker's treatment. Following receipt of those records, the worker's file was again reviewed by the WCB dental consultant, and on November 12, 2013, the WCB advised the worker's treating dentist that they accepted responsibility for the dental work performed to date and work to be performed on teeth 24 and 25.

Coverage for further dental treatment was sought by the worker's treating dentist and oral surgeon on May 12, 2014 and June 4, 2014. On June 25, 2014, the proposed treatment was reviewed by a WCB medical advisor, who advised that they were unable to establish a relationship between the worker's dental conditions and the chemotherapy they underwent.

On June 30, 2014, the proposed treatment was reviewed by a WCB dental consultant and the WCB's Senior Medical Advisor, who opined that the "…dental issues as described in a September 30, 2013 report from the treating dentist have not been medically accounted for in relation to chemotherapy dating to early February 2013." It was further noted, however, that as financial responsibility had been accepted for the dental work on the worker's teeth 24 and 25, the WCB would continue to accept responsibility for the proposed treatment on those teeth but not others.

On September 19, 2014, after further discussion with the worker's treating dentist, the WCB dental consultant also approved the proposed treatment to the worker's tooth 23.

On April 28, 2015, the worker's treating dentist provided the WCB with an additional proposed dental treatment plan involving the worker's tooth 22. On May 27, 2015, the WCB advised the worker that it did not accept responsibility for the dental treatment to that tooth. The worker requested that Review Office reconsider that decision, and on September 3, 2015, Review Office determined that responsibility for the proposed dental treatment for tooth 22 should be accepted.

The worker continued to attend for regular dental visits, and on April 15, 2019, the treating dentist submitted a further proposed dental treatment plan. On April 23, 2019, the WCB advised the worker and the treating dentist that responsibility would not be accepted for the proposed treatment.

On May 6, 2019, the worker requested that Review Office reconsider the WCB's decision, and on June 12, 2019, Review Office determined that the worker was not entitled to coverage for the proposed dental treatments. On September 17, 2019, the worker's treating oncologist provided a letter and medical article in support of the worker's appeal, and on September 18, 2019, Review Office advised there would be no change to the earlier decision.

The worker appealed Review Office's decision to the Appeal Commission, and on July 16, 2021, pursuant to Decision No. 91/21, the Appeal Commission determined that the worker was entitled to coverage for the proposed dental treatment.

On July 18, 2022, the worker's treating dentist submitted a report to the WCB, with x-rays, requesting approval for crowns for the worker's teeth 14 and 15. On July 19, 2022, the WCB dental consultant reviewed the report and imaging, and opined that the proposed dental treatment for teeth 14 and 15 could not be dentally accounted for in relation to the worker's diagnosis or medical treatment, but could be accounted for in relation to the natural history of the worker's pre-existing dental health.

On July 20, 2022, the WCB's case manager spoke with the WCB's dental consultant who clarified that "…the need for the treatment did not relate to decay or accelerated decay, rather the teeth had been heavily restored and the request related to crowns." On July 21, 2022, the WCB advised the worker they were not entitled to coverage for the proposed treatment for teeth 14 and 15 as it could not be correlated to their workplace injury.

On October 31, 2022, the worker requested that Review Office reconsider the WCB's decision. The worker noted they had previously appealed WCB decisions regarding proposed dental work and had those decisions overturned. The worker submitted that the conditions with the current proposed dental work were the same, as the damage requiring treatment was done by the chemotherapy treatment they had undergone.

On December 22, 2022, Review Office spoke with the WCB dental consultant who advised that the worker's teeth 14 and 15 had been heavily restored prior to September 1, 2012, being the date of accident.

On December 29, 2022, Review Office determined that the worker was not entitled to coverage for dental treatment (crowns) for teeth 14 and 15. Review Office relied on the opinion of the WCB dental consultant that the worker's teeth 14 and 15 had been heavily restored prior to the compensable injury, and found that the evidence supported the proposed crowns on teeth 14 and 15 were not causally connected to the compensable injury or related chemotherapy.

On February 17, 2023, the worker appealed Review Office's decision to the Appeal Commission and a file review was arranged. Following the review, the appeal panel requested additional medical information prior to discussing the case further. The requested information was later received and was forwarded to the worker for comment. On February 28, 2024, the appeal panel met further to discuss the case and render its final decision on the issue under appeal.

Reasons

Applicable Legislation and Policy

As the worker was employed by a federal government agency or department, their claim is adjudicated under the Government Employees Compensation Act (the "GECA"). Subsection 4(1) of the GECA provides that an employee who is caused personal injury by an accident arising of and in the course of their employment is entitled to compensation.

"Accident" is defined in section 2 of the GECA to include "a wilful and an intentional act, not being the act of the employee, and a fortuitous event occasioned by a physical or natural cause." Paragraph 4(2)(a) of the GECA provides that a federal government employee in Manitoba is to receive compensation at the same rate and under the same conditions as a worker who is covered under The Workers Compensation Act (the "Act").

The Appeal Commission and its panels are bound by the provisions of the Act, regulations made under the Act, and policies established by the WCB's Board of Directors. The provisions of the Act which were in effect at the date of the worker's accident are applicable.

Subsection 4(1) of the Act provides that where a worker suffers personal injury by accident arising out of and in the course of employment, the worker is entitled to compensation. Section 37 of the Act provides that when the WCB determines the worker requires medical aid as a result of an accident, compensation is payable as set out in section 27 of the Act. Subsection 27(1) states that the WCB "…may provide a worker with such medical aid as the board considers necessary to cure and provide relief from an injury resulting from an accident."

The WCB's Board of Directors has established Policy 44.120.10, Medical Aid (the "Medical Aid Policy"), which defines key terms and sets out general principles regarding a worker's entitlement to medical aid. The Policy confirms that medical aid includes dental treatment. The general principles that apply include the following:

• The Board is responsible for the supervision and control of medical aid funded under the Act or this policy. 

• The Board determines the appropriateness and necessity of medical aid provided to injured workers in respect of the compensable injury. 

• In determining the appropriateness and necessity of medical aid, the Board considers: 

o Recommendations from recognized healthcare providers; 

o Current scientific evidence about the effectiveness and safety of prescribed/recommended healthcare goods and services; 

o Standards developed by the WCB Healthcare Department. 

… 

• The Board's objectives in funding medical aid are to promote a safe and early recovery and return to work, enable activities of daily living, and eliminate or minimize the impacts of a worker's injuries. …

The Board of Directors has also established Policy 44.10.80.40, Secondary Injury (the "Secondary Injury Policy"), which explains when a secondary injury will be compensable. The Policy states that the WCB determines an injury is a secondary injury where:

• it is caused to the worker by an intervening incident, event or exposure ("intervening event"); 

• the intervening event is not work related; and, 

• there is a causal link or relationship between the intervening event and the previous workplace accident.

The Secondary Injury Policy goes on to provide that a secondary injury will be compensable:

(i) when the dominant cause of the intervening event that caused the secondary injury is the previous workplace accident – for the secondary injury to be compensable on this basis, the WCB must determine that the previous workplace accident is the dominant or primary cause of the intervening event that caused the worker's secondary injury. 

… 

(iii) where the secondary injury was caused by the delivery of treatment for the previous workplace accident – for the secondary injury to be compensable on this basis, the injury must have occurred during the course of treatment authorized by the WCB. Injuries that are part of the normal course of treatment and recovery, including known or expected complications, are not secondary injuries.

Worker's Position

The worker was self-represented on the appeal. The worker filed a written submission with their appeal form, as well as a written submission dated April 24, 2023 in support of their appeal.

The worker's position was that the proposed dental treatment (crowns) for teeth 14 and 15, as outlined in the treating dentist's report of July 18, 2022, is required as a result of the worker's compensable diagnosis of mesothelioma and arose out of the chemotherapy treatment required for that diagnosis.

The worker submitted that Review Office's finding that teeth 14 and 15 were heavily restored prior to the compensable injury was totally incorrect. The worker submitted that the evidence shows a lot of work was done after the chemotherapy, some of which was paid for by the WCB. It was submitted that records attached as Exhibits to the worker's written submissions showed that work was done on tooth 14 on July 14, 2013; that "major work" was also done on tooth 14 in August 2017; and that work was done on tooth 15 in April 2015. The worker noted that all of this work was done after their 2013 chemotherapy.

The worker argued that the finding that teeth 14 and 15 were heavily restored prior to chemotherapy was based entirely on xrays, which did not show the dates of the restorative work, and not on dental records. The worker submitted that the decision on this issue should be based on actual dental records which show the heavy restoration of teeth 14 and 15 which was done after chemotherapy damaged their mouth and teeth.

The worker stated that they dealt with major mouth issues during chemotherapy, including extreme dry mouth and major sore gums. The worker argued that chemotherapy is known to potentially damage the lining of the mouth and the production of saliva, and the lack of saliva is known to increase the incidence of tooth decay. The worker submitted that the chemotherapy did a lot of damage to the microbiome, and they still have a lot of problems with xerostomia (dry mouth) and have to rinse with a dry mouth oral rinse to help with this issue as advised by the hygienist.

The worker noted they have always taken good care of their teeth, and faithfully and consistently attended dentists and received routine dental hygiene both before and after chemotherapy. The worker submitted that it could take time for damage which was done during chemotherapy to create major dental issues. They submitted that under normal circumstances, with constant follow-up with the dentist, all of the issues they have experienced and the treatment they have required should not have been necessary.

The worker submitted that the WCB should cover their major dental issues and expenses as they are all related to their injury and treatment for that injury. The worker noted that their initial dental issues were eventually accepted as compensable as having been caused by the chemotherapy. The worker stated that they have not been cured of mesothelioma, and living with this diagnosis and constantly having to appeal the WCB's denial of their claims has taken a toll on them and caused major stress to both them and their family.

Employer's Position

The employer did not participate in the appeal.

Analysis

The issue on appeal concerns a request for dental treatment which the worker believes is related to the compensable diagnosis of mesothelioma and arises out of the chemotherapy treatment they received for that diagnosis. For the worker's appeal to be successful, the panel must find, on a balance of probabilities, that the requested medical aid (dental treatment) is causally related to, and required to cure and provide relief from, the compensable diagnosis and injury caused by the delivery of treatment for that diagnosis.

Based on our review and consideration of the information and submissions which are before us, on file and as provided at our request following the review, and for the reasons that follow, the panel is unable to make that finding.

The worker has argued that the proposed crowns for teeth 14 and 15 are required as a result of their compensable diagnosis and the chemotherapy treatment they underwent as a result of that diagnosis. In support of their position, the worker submitted and relied on various records as showing heavy restoration of teeth 14 and 15 having been done subsequent to their 2013 chemotherapy.

With respect to that documentation, the panel acknowledges that in their September 30, 2013 report to the WCB, the treating dentist listed a composite filling to tooth 14 as one of the treatments which had been performed to date. The panel further recognizes that responsibility for the dental work performed to that date, including the treatment to tooth 14, was accepted by the WCB on November 12, 2013.

While the worker also referred in their appeal submissions to "major work" having been done on tooth 14 in August 2017, and provided a page from a record which referred to work on that tooth, the panel was unable to locate any previous indication on file that this work was ever reported to the WCB or authorized by the WCB as being related to the compensable injury or treatment.

With respect to tooth 15, the panel recognizes that there is reference in a treatment record on file to that tooth having been restored on April 8, 2015. However, the panel was unable to locate any documentation to indicate that the treating dentist requested authorization or coverage from the WCB with respect to this treatment.

The panel notes that there is a lack of information on file with respect to other treatments having been performed on teeth 14 and 15 subsequent to the worker's 2013 chemotherapy treatment.

The worker has disputed Review Office's finding that teeth 14 and 15 were heavily restored prior to the compensable injury.

The panel notes that information on file shows that in the course of reviewing this claim, the WCB dental consultant received and reviewed pre and post 2013 chemotherapy dental xrays which were provided by the worker's treating dentist.

On July 19, 2022, the WCB dental consultant reviewed the July 18, 2022 request for approval of crowns for teeth 14 and 15, together with further xrays provided with that request, and opined that the proposed treatment for teeth 14 and 15 could not be correlated to the workplace accident, "…but could be dentally accounted for in relation to the natural history of the worker's pre-existing dental health."

The WCB dental consultant provided clarification of their opinion in subsequent conversations with the WCB and Review Office. Thus, on July 20, 2022, the consultant clarified that "…the need for the treatment did not relate to decay or accelerated decay, rather the teeth had been heavily restored and the request related to crowns." On December 22, 2022, the consultant further clarified that teeth 14 and 15 "…were heavily restored prior to the date of the Compensable Injury" and that "When a tooth is restored involving 4 or more surfaces of a tooth, the probability of a crown in the future is high."

The panel places weight on and accepts the opinion of the WCB dental consultant that the worker's teeth 14 and 15 had been heavily restored prior to the compensable injury and chemotherapy treatment, as identified in the xrays provided by the worker's treating dentist.

Following the review, the panel requested that the treating dentist provide their opinion as to why and how the proposed dental treatment, as outlined in their July 18, 2022 report, was related to the worker's compensable injury. On September 19, 2023, the treating dentist responded that:

Teeth # 14 and # 15 clinically present with wear secondary to bruxism and occlusion. This is partially attributed to missing and fractured teeth 22-23 and due to an unrestored implant 13…Furthermore, teeth 12 and 13 were later restored as per approval by WCB…It is reasonable to conclude that the lack of adequate anterior occlusion has resulted in increased stress factors on teeth 14 and 15 and therefore is a contributing factor for the need of full coverage crowns.

A copy of the treating dentist's response was subsequently forwarded to the WCB dental consultant for comment, with a request that they provide their opinion as to whether the chemotherapy would have caused or contributed to the deterioration in the worker's teeth 14 and 15 and the need for the proposed treatment.

By letter dated January 14, 2024, the WCB dental consultant responded to that request, and noted with respect to the treating dentist's September 19, 2023 report, that "There is no literature that chemotherapy treatment causes wear on teeth secondary to bruxism and occlusion."

In the circumstances, the panel is unable to find a causal relationship between the worker's 2013 chemotherapy, the reference to wear secondary to bruxism and occlusion, and a need for crowns for teeth 14 and 15.

The panel considered the worker 's submission that chemotherapy is known to potentially damage the lining of the mouth and the production of saliva, thereby potentially increasing the incidence of tooth decay, and the worker's assertion that the chemotherapy did a lot of damage to the microbiome, and they still have a lot of problems with dry mouth. The panel is satisfied, however, that as noted by the WCB dental consultant in their letter of January 14, 2024, there is an absence of documentation on file indicating the worker developed dry mouth after chemotherapy treatment leading to the development of gum problems or oral infections. Based on the evidence, the panel is unable to relate the worker's comments and concerns in this regard to a need for the proposed treatment of crowns on teeth 14 and 15.

The panel notes that in arriving at our decision, we have also reviewed and considered Appeal Commission Decision No. 91/21, but are satisfied that the issue on this appeal relates to different teeth and different treatments than those which were the subject of that appeal and decision, and that the evidence in this instance does not support the worker is entitled to the proposed dental treatment for teeth 14 and 15.

Based on the foregoing, the panel finds, on a balance of probabilities, the requested medical aid (dental treatment) is not causally related to, or required to cure and provide relief from, the compensable diagnosis or injury caused by the delivery of treatment for that diagnosis. The panel therefore finds that the worker is not entitled to coverage for crowns on teeth 14 and 15.

The worker's appeal is dismissed.

Panel Members

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

Recording Secretary, J. Lee

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

Signed at Winnipeg this 5th day of April, 2024