WORKPLACE SAFETY AND INSURANCE APPEALS TRIBUNAL

Transcription

1 2005 ONWSIAT 1489 WORKPLACE SAFETY AND INSURANCE APPEALS TRIBUNAL DECISION NO. 627/05 [1] This appeal was heard in Ottawa on April 1, 2005, by a Tribunal Panel consisting of: B. Alexander: Vice-Chair, J. Seguin: Member representative of employers, D. Broadbent: Member representative of workers. THE APPEAL PROCEEDINGS [2] The worker appeals the decision of the Appeals Resolution Officer (ARO) dated June 20, [3] The worker appeared and was represented by Mr. S. Linarello of OPSEU. The employer was represented Mr. D. Doran, a lawyer with the employer. [4] Ms. R. Lalonde, of the office of Occupational Health and Safety of the employer, attended on behalf of the employer. THE RECORD [5] The Panel considered the material included in the Case Record prepared by the Office of the Vice-Chair Registrar (Exhibit #1), along with: Exhibit #2: Addendum #1 to the Case Record dated April 20, 2004; Exhibit #3: Addendum #2 to the Case Record dated September 29, 2004; Exhibit #4: Addendum #3 to the Case Record dated March 9, 2005; and Exhibit #5: the Hearing Ready Letter dated October 4, [6] The Panel also heard oral evidence from the worker. Mr. Linarello and Mr. Doran made submissions. THE ISSUE [7] The issue is whether the worker has initial entitlement for dental injuries arising out of a workplace incident on February 19, THE REASONS (i) Background [8] The worker who was born on April 15, 1950, began working for the employer as a conservation officer on May 4, He retired from the employer on April 1, 2000.

2 Page: 2 Decision No. 627/05 [9] The worker testified that he did not have a regular dentist or annual checkups and the only times he could remember seeing a dentist before the incident in 1994 was in 1970 and in [10] The worker stated that he saw a dentist on an emergency basis in 1970, when he lost the top of a tooth in a non-compensable incident and had it replaced with a crown. There is no dental record of this visit. [11] An Employer s Report of Injury dated November 8, 1984, indicated that the worker was hit in the mouth by a tree branch and broke a cap off a front tooth while driving an all terrain vehicle. A Dental Report indicated that on November 27, 1984, the worker had a crown on tooth #21 replaced. The report stated that the worker was missing teeth # 10, 37, 36, 46 and 48, and that he had crowns on teeth #11 and #21. Teeth #11 and #21 were next to each other in the front of the worker s upper jaw. The worker advised that he had removed the missing teeth himself. [12] A letter to the worker dated December 17, 1984, indicated that the employer would pay for the worker s dental treatment, as it was the result of compensable injury. [13] On February 19, 1994, the worker was punched twice in the mouth by a person he had apprehended fishing illegally. [14] The worker testified that he was holding the fish in one hand and his flashlight in the other, when he was hit full in the mouth and knocked down. After he got back to his feet, he was hit again in the mouth by the same man and knocked down again. His lip was split open, his mouth was bleeding, his gums turned purple and his top and bottom teeth became loose. He reported the incident to his supervisor, but he didn t seek medical or dental attention. Instead he took Tylenol and gargled with mouthwash and waited until his teeth tightened up. It was the only time in his life that he had been hit in the mouth. [15] The Employer s Report of Injury dated December 7, 1999, stated that the worker was punched twice in the mouth causing loosening of teeth and that he had loose teeth (4), cut/bleeding gums, split/bleeding lower lip, sore jaw as a result of a routine enforcement incident. [16] The worker further testified that between 1994 and 1999 his teeth did tighten up. They were sore but he was able to chew and eat. He received no dental treatment during this period. [17] In 1999 a tooth broke off while the worker was eating. The worker was treated by Dr. P. Beamish, who reported on December 3, 1999 that the worker s #11 tooth, which had a crown, had been fractured at the gum line and that #21 was loose and had to be extracted. Dr. Beamish replaced #11 and #21 with a fixed bridge, that at the same time stabilized #12 and #22, which were beside #11 and #21 in the worker s upper jaw because, according to Dr. Beamish, that still have slight mobility. [18] On December 16, 1999, a Board Adjudicator reported that someone from Dr. Beamish s office had advised:

3 Page: 3 Decision No. 627/05 The accident occurred in He was punched twice in the mouth by an offender. His teeth were loose then. But after a while, they tightened up. There had been no dental treatment even until Oct/99 when he lost 2 of the 6 teeth (all in the upper jaw). [19] On November 8, 2001, Dr. Beamish reported that the worker had been treated for a fractured tooth on October 15, Dr Beamish added: Tooth #11 was fractured at the gumline and #21 was very mobile. The Buccal plate was intact. It was evident that the root tip of #11 was to be extracted and #21 was to be extracted as well. [The worker] said that he was punched in the face while arresting a poacher. It is possible that a blow to the face will cause the teeth to facture, although the teeth may not have fractured at the time he was hit, it is possible, that hairline fractures may have been present. The teeth were extracted because #11 was fractured to the gum line. #21 was mobile upon extraction it was evident that there was a mid root fracture. Yes it is possible that the fractures were related to the work-related assault. As answered in question #2 there may have been hairline factures present in the teeth. It is possible that the worker may not have had any pain or sensitivity. [20] On December 3, 2001, Dr. A. Calzonetti, a Board Dental Consultant, advised I cannot determine how a fracture could go unnoticed over such a long time span. [21] The ARO concluded that there was not enough evidence to support that the worker sustained any teeth injuries during the February 19, 1994 incident. (ii) Mr. Linarello s submissions [22] Mr. Linarello submitted that it was not surprising that the worker could go for a period of five years and a half years without seeing a dentist given his history of self administered dental care which included doing his own extractions. [23] The punches to the worker s mouth were sufficient to loosen his teeth but as the hairline fractures were below the gum line, the worker was able to manage with them until one broke off. [24] From a legal point of view, to establish entitlement the punches to the worker s mouth on February 19, 1994 need only have been a significant contributing factor to the subsequent loss of the worker s teeth and the necessary dental repairs. [25] The issue of whether the worker was practicing good dental hygiene is irrelevant as the Board must take the worker in the condition they present themselves at the time of an injury. [26] The worker s dentist thought it was possible that the worker s tooth problems were caused by the February 19, 1994 incident and there are no intervening factors that would explain them. (iii) Mr. Doran s submissions [27] Mr. Doran submitted that there was no proof of an accident that resulted in the worker s dental problem and there was no continuity of dental attention in the five and a half years between the time of injury and the dentist s intervention. The Board s dental consultant was correct that five and a half years was too long a period for a tooth fracture to go unnoticed.

4 Page: 4 Decision No. 627/05 [28] The worker s teeth obviously tightened up after the 1994 incident and the worker was able to chew and eat without difficulty. [29] The worker s lack of dental hygiene could lead to bone loss, decay and degeneration which is a more likely reason for his dental problems. The worker had a dental benefit plan and could have had dental treatment paid for at any time. He chose to neglect his teeth and his dental problems were the consequence. (iv) Relevant law and policy [30] Since the worker was injured February 19, 2004, the pre-1997 Workers Compensation Act is applicable to this appeal. The hearing of this appeal commenced after January 1, 1998; therefore, certain provisions of the Workplace Safety and Insurance Act, 1997 ( WSIA ) also apply to the appeal. All statutory references in this decision are to the pre-1997 Act, as amended, unless otherwise stated. [31] Pursuant to s.126 of the WSIA, the Board stated that the following policy packages are applicable to this appeal: Package #1 Initial Entitlement; Package #300 Decision Making/Benefit of Doubt/Merits and Justice. We have considered these policies as necessary in deciding the issues in this appeal. (v) The Panel s reasons [32] The Panel is satisfied that the punches the worker received to his mouth on February 19, 1994, made a significant contribution to the dental repair that the worker underwent in [33] There is no other explanation for the loss of the worker s two front teeth than the two punches that the worker took to the mouth on February 19, They were powerful enough to knock him down and as stated in the employer s report, loosen four teeth, create cut and bleeding gums and lower lip and a sore jaw and, in the opinion of the Panel, that would have been powerful enough to create hair line fractures to his two most prominent upper front teeth. [34] The fact that the worker did not seek dental assistance in the five and a half years between then and the time that a tooth broke off is not surprising given the fact the he could only recall two occasions in his life before 1999 that he had visited a dentist. The worker had a stoic, uncomplaining nature and had a history of dealing with painful teeth by extracting them himself. [35] The dentist who treated the worker in 1999, Dr Beamish, offered the opinion that one blow to the face could cause hairline fractures to teeth. In this case the worker received two blows to the face. Dr. Beamish offered the further opinion that it was equally possible that the worker may not have had any pain or sensitivity in these teeth during the five and a half years before one of them broke off. [36] The Board Dental Consultant, Dr. Calzonnetti, stated that he could not determine how a tooth fracture could go unnoticed for five and a half years. In the opinion of the Panel this may explained by the worker s self-reliance with respect to dental hygiene and his resistance to tooth pain.

5 Page: 5 Decision No. 627/05 [37] The Panel was impressed by the worker s resilience and toughness and finds him to be credible in his testimony that he was able to go through life without seeing dentists and managing his dental problems by living with the pain and extracting teeth if and when necessary. He is an extraordinary person and not the type of patient that dentists are used to dealing with. [38] The Panel has considered the submissions of the employer. The Panel finds no evidence, however, in support of Mr Doran s submission that the worker s lack of dental hygiene is a more likely reason for his dental problems. In contrast there is evidence that the 1994 incident made a substantial contribution to them. [39] The Panel finds that the worker has entitlement for dental injuries arising out of a workplace incident on February 19, 1994 and is entitled to payment of his related 1999 dental bills. [40] The matter is remitted to the Board to assess the nature and duration of benefits which flow from this determination. THE DECISION [41] The appeal is allowed. 1. The worker has entitlement for dental injuries arising of the February 19, 1994 incident and the matter is remitted to the Board to assess the nature and duration of benefits which follow from this determination; and 2. The worker is entitled to payment of his bills in connection with his related 1999 dental treatment. DATED: June 30, 2005 SIGNED: B. Alexander, J. Seguin, D. Broadbent