Tribunal File Number: 17-008334/AABS
In the matter of an Application pursuant to subsection 280(2) of the Insurance Act, RSO 1990, c I.8., in relation to statutory accident benefits.
Between:
D. S.
Applicant
and
Wawanesa Mutual Insurance Company
Respondent
DECISION
ADJUDICATOR:
Brian Norris
APPEARANCES:
For the Applicant:
Louis DelSignore Jr., Counsel
For the Respondent:
Garett Harper, Counsel
HEARD:
In writing on July 30, 2018
OVERVIEW
1The applicant was injured in an automobile accident on July 25, 2017 and sought benefits from the respondent pursuant to Statutory Accident Benefits Schedule – Effective September 1, 2010, O. Reg. 34/10 (the “Schedule”). The respondent refused to pay for certain medical benefits and the applicant has applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of this dispute.
ISSUES
2The disputed claims in this hearing are:
(1) Is the applicant entitled to a medical benefit in the amount of $8,911.00 for dental work recommended by Dr. Al-Jahlawi, dentist, in a treatment plan dated August 31, 2017?
(2) Is the applicant entitled to interest on any overdue payments?
RESULT
3The applicant is entitled to the following goods and services as they are reasonable and necessary expenses:
(1) The composite restorations for teeth 1.4 and 2.2; and
(2) The implant replacement for tooth 4.7.
4The applicant is not entitled to the goods and services proposed for teeth 4.4 and 4.5.
OVERVIEW
5The applicant was driving a vehicle which was struck on the passenger side, causing the applicant to strike his head on the driver’s side window. The applicant visited Dr. R. Luton, physician, on August 22, 2017 with complaints of a twisted left foot, concussion, whiplash symptoms, migraines, dizziness, blurred vision, tinnitus, soft tissue injuries, and “broken teeth causing infection” (from the OCF-1). Dr. Luton diagnosed the applicant with cervical, lumbar, and bilateral shoulder strains, broken teeth, concussions headaches, and psychological symptoms.
6The applicant visited Dr. Al-Jahlawi, dentist, to address the broken teeth. Dr. Al-Jawlawi provided the applicant with a cost breakdown of the goods and services proposed to remedy the damage to teeth 1.4, 2.2, 4.4, 4.5, and 4.7 (the “dental proposal”). The dental proposal sought goods and services totalling $9,892.00.
7The respondent refused to pay for the goods and services recommended in the dental proposal and requested the applicant attend an assessment by Dr. K. Spencer, dentist, pursuant to section 44 of the Schedule. Dr. Spencer concluded that only some of the goods and services in the dental proposal were reasonable and necessary and the respondent has adopted this position.
CAN THE APPLICANT MAKE THIS CLAIM WITHOUT A TREATMENT PLAN?
8In addition to its position that only some of the goods and services proposed in the dental quote are reasonable and necessary, the respondent submits the applicant’s claim has not complied with the Schedule. The respondent submits the applicant has not submitted the claim for dental services on a treatment plan pursuant to section 38(2) and the dental proposal submitted by the applicant fails to qualify under section 38(4) because it is not signed. The respondent submits this disentitles the applicant from filing this application.
9The applicant was provided an opportunity to reply to this position but chose not to.
10I have reviewed the respondent’s submissions and the Schedule and will allow the application because it does not fall within the restrictions on proceedings outlined in section 55. Regardless of the provisions in section 38(2) and 38(4), the respondent’s actions during the course of the adjusting of this claim are evidence the respondent has received adequate notice of the circumstances giving rise to the claim for medical benefits. The respondent subjected the applicant to an in-person section 44 assessment with a dentist and failed to raise the issue in the letters and explanation of benefits (OCF-9’s) dated October 30, 2017 and November 23, 2017. I find this evidence disentitles the respondent from taking the position the applicant is prohibited from making this application.
Teeth 1.4 & 2.2
11The treatment plan proposes porcelain crowns for teeth 1.4 and 2.2. The applicant submits porcelain crowns are the ideal way to address the chips on the mesial and lingual surfaces, the dislodged restoration for tooth 1.4 and the dislodged restoration on tooth 2.2. The applicant submits that using a composite restorative material is only a temporary solution and does not provide the durability of a crown.
12The respondent relies on the opinion of Dr. Spencer who found the most appropriate remedy would be to only apply a composite restorative material to the chip on the mesial surface of the tooth. Dr. Spencer found that although a crown would be the ideal way to address the issue, it would address issues unrelated to the accident-related injuries and would put the applicant’s tooth in a much better state than pre-accident.
13Upon review of the evidence before me, I find the treatment proposed by the applicant is not reasonable and necessary because porcelain crowns are an excessive remedy for the damage to teeth 1.4 and 2.2. The argument for a longer-lasting solution to the damaged teeth does not consider the state of teeth 1.4 and 2.2 at the time of the accident. The two teeth were already in a state of declining health and unlikely to remain functional for a period as long as the porcelain crowns would.
14I find that restorations with composite material, as proposed by the respondent, are reasonable and necessary remedies for the damage to teeth 1.4 and 2.2. This remedy is not excessive and restores the applicant’s teeth to a state which is as close to where they were prior to the accident. The applicant’s dental records also support this remedy. Fewer than two months prior to the accident, a composite restorative material was previously explored and found to be the solution to the applicant’s issues with tooth 1.4 and I do not have evidence before me to suggest the accident changed this opinion.
Teeth 4.4 & 4.5
15In written submissions, the applicant conceded the dental work for 4.4 and 4.5 is related to wear and erosion and not entirely as a result of the accident. The applicant did not provide any submissions to assert how any of the dental work for proposed for teeth 4.4 and 4.5 is reasonable and necessary but maintained that position anyway.
16The respondent holds that tooth 4.5 did not suffer any accident-related damage. It submits tooth 4.5 had wear and erosion surrounding an old composite restoration as well as decay on the medial aspect of the tooth.
17In light of the absence of evidence or submissions in favour of the work proposed for teeth 4.4 and 4.5, I find the applicant is not entitled to the work proposed for these two teeth.
Tooth 4.7
18The crown on tooth 4.7 was broken in the accident. The applicant acknowledges the pre-accident wear and erosion with respect to tooth 4.7. However, the applicant submits that tooth 4.7 was functional and that simply removing the tooth, as proposed by the respondent, puts the applicant in a worse position than pre-accident, both functionally and aesthetically. The applicant submits that although an implant replacement for tooth 4.7 would put the tooth in a better condition than pre-accident, it is the only option because there is no intermediate option available.
19The respondent holds the position that the accident may have contributed to the loss of the crown on tooth 4.7 and found the extraction of the tooth was reasonable and necessary. The respondent submits Dr. Spencer found tooth 4.7 to be grossly decayed and had a poor long term prognosis prior to the accident.
20I have reviewed the submissions and evidence and find the applicant is entitled to the proposed treatment for tooth 4.7. There is no doubt that tooth 4.7 had a crown and was in substandard condition prior to the accident; however, it was still functional at the time it was damaged in the accident. Considering this, I find the respondent is liable to replace the applicant’s tooth. Upon review of the evidence and the two remedies proposed − removing the tooth or an implant replacement − I find an implant is a more appropriate remedy than simply removing the tooth because it most closely restores the tooth to its pre-accident status.
BREAKDOWN OF REASONABLE AND NECESSARY GOODS AND SERVICES
21Below I provide a chart, derived from the dental proposal, with a breakdown of the reasonable and necessary goods and services which I find the applicant is entitled to:
(00) Specific-Examination and Diagnosis
$135.00
(00) Single film-Panoramic
$65.00
(00) Two images – lntraoral, Periapical
$34.00
(14) Replace composite restoration
$212.00
(22) Replace composite restoration
$208.00
(47) First Tooth-Complicated
$227.00
(47) Per Site-Allograph
$1,037.00
(47) Oss , Root Form Desc-Surg inst w impl cover
$988.00
(47) Indirect Custom, per impl-Mesostructures
$327.00
(47) Implant Supported-Fused to Metal
$742.00
Commercial Lab Fees
$2,000.00
Total cost of reasonable and necessary goods and services
$6,209.00
CONCLUSION
22Composite restorations for teeth 1.4 and 2.2 are reasonable and necessary. The applicant may incur this dental work and the respondent is liable to pay for it.
23The dental implant and related services proposed for tooth 4.7 are reasonable and necessary. The applicant may incur this dental work and the respondent is liable to pay for it.
24The goods and services proposed for teeth 4.4 and 4.5 are not reasonable and necessary. The applicant’s claim for the dental work for these teeth is dismissed.
Released: December 11, 2018
Brian Norris
Adjudicator