WORKPLACE SAFETY AND INSURANCE APPEALS TRIBUNAL

Transcription

1 2002 ONWSIAT 1528 WORKPLACE SAFETY AND INSURANCE APPEALS TRIBUNAL DECISION NO. 415/02 [1] This appeal was heard in Toronto on March 18, 2002, by a Tribunal Panel consisting of: L. A. Bortolussi : Vice-Chair, A. P. Cremisio : Member representative of employers, M. Tzaferis : Member representative of workers. THE APPEAL PROCEEDINGS [2] The worker appeals the decision of Ms. Martine T. Dumais, Appeals Resolution Officer, dated December 31, That decision concluded that the worker is not entitled to the cost of dental implants. [3] The worker appeared and was represented by Mr. David Adamson, Teamsters Ontario, Joint Council, #52. The employer, although duly notified, did not participate. THE RECORD [4] The Panel considered the material included in the Case Record prepared by the Tribunal Counsel Office (Exhibit #1). In addition, we considered the following: Exhibit #2: Certification Letter Exhibit #3: Letter to the worker s representative confirming inactive status Exhibit #4: Addendum No. 1 dated December 4, 2001 to the Case Record Exhibit #5: Revised Hearing Ready Letter Exhibit #6: Medical Reportfrom Dr. Ken Luco Exhibit #7: Acknowledgment Letter to the worker s representative Exhibit #8: Case Update of Dr. K. Luco dated February 22, 2002 with Dental Pre-Treatment forms of A.M. Rees, D.D.S. and Robert P. Drouin, D.D.S. Attached thereto. [5] The Panel also heard oral evidence from the worker. Submissions were made by Mr. David Adamson. THE ISSUES [6] The issue in this appeal is whether the worker is entitled to the cost of the dental implants.

2 Page: 2 Decision No. 415/02 THE REASONS (i) Background [7] On July 15, 1996, while working as a driver for the employer, the worker was struck on the right side of the face and his left hand when a dolly handle on a tanker trailer he was cranking spun out of control and struck him. The worker was seen in the Emergency Room at the Hotel Dieu Hospital in Kingston by Dr. M. F. Taylor. He was diagnosed as having a laceration, tooth fractures and avulsion. On July 16, 1996, Dr. A. Ross at the Rideau Town Centre in Kingston, Ontario noted the laceration to the right cheek, as well as broken and misplaced teeth. (ii) The Worker s Testimony [8] The worker testified that he had been Dr. Ken Luco s patient prior to the accident for approximately ten years. He had, in May or June of 1996, just completed all of his dental work, including all fillings, cleaning and upper and lower partial dentures. He had seven teeth in the upper jaw and eleven teeth in the lower jaw prior to the accident. The worker could not recall why or how his teeth were extracted but did say that this occurred a very long time ago. [9] Prior to 1989, the worker had no dental plan. From 1989 to 1996, the worker s dental work was covered under his wife s dental plan. He indicated that his teeth were healthy and he had just completed all the dental work required in May or June of He did not even have any follow up appointments with his dentist to complete the full restoration. [10] Before the accident in July of 1996, the worker testified that he had no molars in the upper right jaw. He had a partial plate anchored to tooth #13 on the right upper and the left upper 2 nd bicuspid. [11] As a result of the work accident on July 15, 1996, the worker lost three teeth. Tooth #13 was pushed up. Tooth #12 was avulsed. Tooth #44 in the lower right jaw was also avulsed. On July 22, 1996, all three teeth or whatever portions remained in the jaw, were surgically removed by Dr. Matthews. [12] As a result of the damage caused by the injury, the partial plate no longer fit properly and on February 22, 2000, the worker attended with Dr. Ken Luco on an emergency basis due to his concerns about his upper left 2 nd bicuspid. He was told that he now needed a crown for this tooth in order that it act as a support for a partial denture clasp. [13] Dr. A. Calzonetti, Dental Consultant to the Board, recommended in his memo dated August 23, 1996 to Health Care and Claims Adjudication as follows: Implants are not WCB option in this case. For Maxila allow (A) or (B) (A) Extract all remaining teeth and construct full upper denture. (B) Extract any hopeless teeth including teeth pushed upward and construct new upper partial after wearing temporary partial for four to six months. [14] The worker clearly stated that he has not had the work recommended by Dr. A. Calzonetti because he was not prepared to remove five healthy upper teeth to facilitate a full denture. That

3 Page: 3 Decision No. 415/02 option was not acceptable to him when the complete restoration was done just prior to the accident in July of 1996 and is not acceptable to him now. (iii) The Medical Evidence [15] The treatment recommended by Dr. Ken Luco is found in his letter to the Board dated August 10, Dr. Luco confirms that: I. The teeth were in excellent condition prior to the injury sustained. We had recently completed major restorative procedures including updating all fillings, periodontal cleaning and placement of a cast partial upper and lower dentures. II. III. Teeth #13, 12 and 44 were lost in the accident. 13 was the main abutment of the cast partial upper denture which is now unserviceable. The proposed treatment plan is as follows: A. Placement of an osteointegrated implant in the region of tooth 17 and 13 (to act as abutments for a new cast partial upper denture). B. Construction of a transitional partial upper denture,for the patient to wear while the implants are healing. C. Placement of crowns on these implants, surveyed to a new cast partial upper denture. D. Addition of tooth 44 to the cast partial lower denture (this modification will make the lower prosthesis quite serviceable). [16] It should be noted that no treatment may be initiated for approximately 3 months, to facilitate healing of the fracture of the maxilla in the region of the tooth 13. The implants are mandatory as teeth 12 and 13 were the only remaining abutments in quadrant 1 and the only other option is to remove all remaining teeth and construct a complete upper denture. The remaining teeth are sound and this option is unacceptable. [17] Regarding fees associated with this treatment plan, Dr. Mark Matthews (oral surgeon) would place the implants as required. I would suggest you contact him regarding the cost of such treatment. The final crowns could not be placed for 3-6 months after the implant placement, to allow osteointegration. During this time, the patient would require a transitional partial upper denture, to prevent shifting of the teeth and TMJ complications. The cost of this treatment would be as follows: (not inserted here). For the final crowns on the implants, I would prefer to refer this patient to a colleague of mine in Kingston, who has a significant part of his practise dedicated to implantology and extensive expertise in this field. I will have him forward a separate estimate for his treatment. [18] The replacement upper denture would cost (not inserted here). [19] The cost of adding tooth #44 to the cast lower partial denture is as follows: (not inserted here).

4 Page: 4 Decision No. 415/02 [20] In the Standard Claim Form dated August 12, 1996, Dr. Mark Matthews, Oral and Maxillofacial Surgeon, notes the extraction of teeth 12, 13 and 44 on July 22, He indicates that: Treatment plan will be coordinated with restorative dentist. An implant-based restoration has been recommended. [21] The matter was reviewed by A. Calzonetti, D.D.S., a dental consultant of the Board. In his memo dated August 23, 1996, he states: Implants are not WCB option in this case. FOR MAXILA ALLOW: (A) or (B) Extract all remaining teeth and construct full upper denture. Extract any hopeless teeth including teeth pushed upward and construct new upper partial after wearing temporary partial for four to six months. Dentist and worker can decide option and we will allow according to 1993 ODA Fee Guide less 10 percent. [22] In his report of September 28, 1996, Dr. Ken Luco confirms that a transitional partial upper denture be placed immediately. [23] In his report of April 1, 1999, Dr. Ken Luco confirms his initial recommendations for restoration of the worker s teeth back to the pre-accident state. He further states: Only this treatment plan will restore the patient to his pre-accident state. Any other treatment plans will be a compromise and will render this patient with an inferior dental health state than before his accident. The accident caused injury to his right TMJ. My examination on April 1, 1999 clearly showed that this condition is still active and has not resolved. If final treatment is not rendered soon, this condition will progress and could result in arthritic degeneration. His TMJ pain is caused by him being forced to wear his original partial denture that is loose and ill fitting. It constantly drops on the right side and he must clench it back into place. This is completely unacceptable and could damage the teeth on the opposite side as well. Until the molar is replaced, a new partial denture cannot be constructed. [24] In his report of March 9, 2000, Dr. Ken Luco states: (The worker) was seen on emergency basis February 22, 2000 for fracture of his upper left 2 nd bicuspid (crown failure). The tooth requires extensive restorative treatment to salvage. It is my opinion that due to the state of disrepair of his upper partial denture, there has been excessive forces being placed upon this tooth resulting in its serious damage. It is unfortunate that he has been left this way, considering the facts surrounding his case. It is likely that the remaining teeth will fail in the near future if he is not rehabilitated promptly. [25] In his report dated February 22, 2002, Dr. Ken Luco states in his Case Update: (The worker) presented on February 19, 2002 for emergency examination of his upper left 2 nd bicuspid with a chief concern of a loose filling and sensitivity. Upon examination it was noted that the existing four surface filling (with pin retention) has failed. This is a direct result of the exc essive pressures being placed upon this tooth acting as a solitary

5 Page: 5 Decision No. 415/02 (iv) abutment tooth for his poorly fitting partial denture. This is the partial denture that was constructed just before his injury and has been in disrepair since. The treatment plan for this tooth is to undergo root canal therapy, a post and core buildup and PFM crown (surveyed to act as a support for partial denture clasp. The cost of this treatment is approximately $1, This is another expense that could have been avoided if the initial treatment plan had been completed in a timely manner. The longer this case delays, the more problems are likely to occur. The Law and Policy [26] The following Board Operational Policy Manual (OPM) Documents were considered by the Appeals Resolution Officer: Document # Health Care Entitlement Document # Dental [27] The Panel has considered Board OPM Document No Dental Entitlement: If the teeth, damaged at the time of accident, are reasonably sound and serviceable, the WSIB pays an allowance toward necessary restorative measures. However, if there is crown decay, indicating the teeth to be of little or no actual service, reimbursement for restoration is denied. If all or some of the worker's teeth are injured, the WSIB pays to have the teeth restored and kept in repair for the worker's lifetime, providing there is no evidence of care lessness or misconduct on the worker's part. If a worker has 4 or fewer remaining teeth prior to the accident, the WSIB pays for full restoration but may limit continuing entitlement. If some of the worker's teeth are damaged but the number of teeth to be restored increases because of the preexisting condition of the mouth, the worker may receive the dental service but this completes the entitlement. When some teeth are damaged and the remainder in the same arch show evidence of pre-accident dental disease, and the recommended treatment is extraction of all teeth, the WSIB pays for the extraction of the injured teeth only. This may complete entitlement. If the restorations supplied cause deterioration of abutting teeth to the extent that they must be restored or extracted at a later date, any necessary dental work is provided. The entire restoration will be kept in permanent repair. If the WSIB supplies the worker with necessary restoration and, later, teeth in the same arch have to be removed, the WSIB pays 50 per cent of the cost of the new restoration, provided it includes the teeth originally restored by the WSIB. This service completes the worker's entitlement. The WSIB is not responsible for maintaining the new work. In cases where vital teeth are traumatized and require crown restorations, it is considered accepted practice to protect the injured teeth with provisional crowns for a minimum of 3 months following the date of accident. If the teeth are still vital after this period, the final crown is authorized by the WSIB. If it is necessary to extract an injured tooth and a fixed bridge replacement is contemplated, a provisional denture may be supplied for a minimum of 3 months to permit healing of the ridge and a better final restoration. Dentures

6 Page: 6 Decision No. 415/02 (v) If a denture is broken in a work-related accident, the WSIB limits restoration of the denture to its pre-accident condition of fit and durability. If a simple repair or reline can correct the problem, no prior authorization from the WSIB is required. If replacement of the denture is necessary, the worker must get WSIB approval. The WSIB limits entitlement to the average cost of restoration of the denture. The Law as Applied to the Facts [28] The Panel accepts that the worker s 7 teeth in his upper jaw and eleven teeth in his lower jaw were healthy at the time of the accident and that the partial plate and other extensive treatment to his teeth were complete pre-accident. This has been confirmed by his dentist, Dr. Luco. [29] The accident on July 15, 1996 caused the worker to lose teeth #12 and #13 in his upper jaw and #44 in his lower jaw. These were healthy teeth which the worker is entitled to have restored. [30] Tooth #13 anchored the partial plate in the upper jaw before the accident. It is the opinion of the worker s family dentist that an implant for tooth #17 is now required to anchor the partial plate at the back of the upper jaw and the Panel accepts his professional opinion that nothing short of this would restore the worker s mouth to its pre-accident condition. [31] The panel accepts Dr. Luco s recommendations and would go so far as to authorize implants for tooth #12 (top right) and tooth #44 (bottom left), if this would help to restore the health and chewing function of the worker s teeth to their pre-injury condition in accordance with Board policy. [32] The worker is also entitled to treatment now required with respect to tooth #5 (the top left crown) due to the improper fit of the partial plate as a result of the accident and loss of the anchoring tooth for the plate. The Panel finds that the work recommended by Dr. Luco in his report dated February 22, 2002 for the 2 nd bicuspid, that is, root canal therapy, a post and core buildup and PFN crown (surveyed to act as a support for the partial denture clasp) is allowed. [33] The panel accepts Dr. Luco s recommendation in his letter to the Board dated August 10, 1996 that the placement of the crowns on the implants be surveyed to a new cast partial upper denture. The panel accepts Dr. Luco s recommendations that the worker is entitled to a new cast partial upper denture. [34] Board Policy No does not refer specifically to implants. It does say however that if possible, dental services should restore the health and chewing function of the teeth to their pre-injury condition. Dr. Luco and Dr. Matthews both very clearly have recommended the implants for teeth #13 and #17. The Panel finds that the worker is entitled under the policy to have implants for teeth #12 and #44 as well. [35] The Panel prefers the opinion of Dr. Luco as stated in his letter of August 10, 1996 to that of Dr. Calzonetti as stated in his memos. Dr. Calzonetti s opinion, as stated in his memos, seems to be based simply on the assumption that Board policy does not allow implants. His opinion does not appear to be grounded on a medical/dental analysis of the worker s pre-accident condition and how the recommended treatment would restore the worker s health and chewing function of the teeth to their pre-injury condition. The Panel does not accept that removing

7 Page: 7 Decision No. 415/02 seven healthy teeth from the upper jaw in favour of a full dental plate would restore the health and chewing function of teeth 12, 13 and 5 in the upper jaw. Similarly, the Panel finds that simply adding tooth #44 to the lower partial plate would not restore the health and chewing function of that tooth to the pre-accident condition. [36] The worker testified that his dental work including all fillings, cleaning and upper and lower dentures had been completed just prior to the accident. The worker had seven teeth in the upper jaw and eleven teeth in the lower jaw. Had the worker a full set of teeth or more teeth prior to the accident upon which to anchor the partial dentures, less restoration would have been required. The Panel is of the opinion that once the work authorized by this Decision has been completed, this completes the worker s entitlement under Policy No THE DECISION [37] The appeal is allowed. [38] The worker is entitled to: i) osteointegrated implants in the region of teeth #17 and #13 (to act as abutments for a new partial upper denture); ii) an implant for teeth #12; iii) an implant for tooth 44 unless Dr. Luco, in his discretion, is of the opinion that the addition of tooth #44 to the cast partial lower denture would restore the worker s teeth to their pre-accident state (as opposed to simply making the partial plate serviceable ). Should the latter prevail, then the worker shall have the addition of tooth #44 to the cast partial lower denture; iv) construction of a transitional partial upper denture for the patient to wear while the implants are healing; v) placement of crowns on these implants, surveyed to a new cast partial upper denture; vi) a new cast partial upper denture; vii) root canal therapy, a post and core buildup and PFM Crown for the upper left 2 nd bicuspid as described by Dr. Ken Luco in his Case Update dated February 22, 2002 (Exhibit #8).

8 Page: 8 Decision No. 415/02 [39] Re-imbursement of the stated dental services to the worker shall be in accordance with Board Policy # approved fee schedules and if necessary, those established by the Ontario Ministry of Health. [40] The completion of the dental services provided herein completes the worker s entitlement under Policy No for the dental services outlined above which were necessitated by the accident of July 15, DATED: July 10, SIGNED: L. A. Bortolussi, A. P. Cremisio, M. Tzaferis