PAR T C -Decision under Appea l The decisi on under appe al is the December 5, 2 0 13 r D evelo p ment a nd S oci a l I nno vation (the " min is t ry "), in appe ll ant's daughte r (the " pat ient") was no t eligibl e 6 2 an d 65 of the Employment and Ass istan ce f o r P "EAPWD R"). In pa rtic u la r, the minis t r y fou nd that th failed to meet t he criteria of Sectio n 65 (2)(a) in t hat s s keletal dysplas i a with jaw mis alignment of t w o or P ART D Re levant Le gi slatio n EA PWDA Section 5 EAPWD R S e ction s 62 and 6 5 EAAT 003(10/06/01) APPE A L # I eco nsi d eratio n deci s i o n of the M i nist ry of S oci a l whic h the mi nistr y deter mi ned that t he for orthod ontic treat ment as provided in Se ct ions e r sons with Disabilit ie s Regulation (the e denta l requirements of a pp el la n t' s daughte r he has not b ee n di agno sed wit h a sever e m o re s tandard d e viations .
PAR T E -S u mm a r y of Fa c ts T he a ppel lan t is des i g n at ed as a person w it h disabilities, and The app el lant submit te d a completed Ortho don t ic o n J uly 11 , 20 13 which d escri bed th e patie n t 's ort hodontic On Oct ober 29, 20 13 th e ap pellan t was a d vi s ed by the re ceiv e o r t hodontia as she does not meet the c riteria t hat decision . The inf ormation befor e t he min istr y at the time o f r econsid • A letter fr om the He alth A ssistan c e Branch , dated Ju the r e quired c riteria for a ut hori z atio n o f treatment an for m to b e co mpleted . • A Request fo r O rtho dontic Ca r e fo rm , signed b • A letter fr om the referrin g dentist, d a ted J u ne 18, bilateral a c ute m yositis, out l ining the curren t an orthotic applianc e, a nd referr al f or orthodont • A com pl eted O rtho dontic As sess ment form, o rthodo n t ist, de s cribing t he pat ie nt's ort h o dontic • Straight Maxilla and Mandibu l ar Pr o f il • Molar Occ lusion -I right / I left); C uspid O • Anterior, Un ilatera l, Posteri or (l ef t s i d • Lower mid-li ne 1m m to Rt. • Ov erje t 0-3m m, Over b ite 5% • U pper ove r crowd in g (mo de rate) 6mm; • Bi la tera l po sterior o pe nbi te; history of TMJ di (episodes of c lose d lock) li mit e d range • A letter from the orthodontist, dated July 1 1, assessment above) and recom mende d treatmen • A letter from the orthodontist, dated July 11, 2013, to the appellant outlining the recommende treatment plan, associated costs and payment schedule. • A series of diagnostic photos from the orthodontist, dated Ju • A letter from the orthodontist, dated July 11 , 2 diagnostic findings and recommended treatment plan for the patient. • A completed Orthodontic Screening form, dated October 7, 2013, completed by the ministry contracted ort h odont ist, indicating that the patient does not meet the legislated criteria, adding t h a t there is , " No skeletal dvs plasia ap pare nt EAAT 003( 10/06/01) AP PEAL# I i s a rec ipient of disabil it y a ssi s t a nce. Ass ess me n t form for her daughte r to the min i stry problems. m i nist r y t hat h er dau ght er was not el ig ib le to . Th e appe l lant requ este d a rec on si d e r ation of eration included t he fol lo wing: ne 19, 2 013, to th e o r th odont i st, ou tl i ni ng d p rov i d i ng a n Orth odonti c Ass essm en t y the r ef er ring dent ist, dated Ju ne 18, 20 13. 2013, d escribing the pa t ien t 's diagnosi s of tr eatme nt re gi m en which inc ludes U L F TENS and ic car e. date d J u ly 11 , 2013 and sig n ed by the prob le ms. Det ails included: e c clu si on -I left/II rig ht e) Cro ssb it e Lower o ver c r o wdin g (moderate) 5 m m. sc di spl ace m e nt w i th and without reduc tion o f motio n on opening+++ facial muscle pain. 201 3 , out lining the diagnostic findings (noted in t plan for the patient. d ne 12, 2 0 1 3. 013, t o the referring denti s t o utlining th e . Pt's ma locclusion more re lated to mode rate
I APPFbl .,. Maxillary Grinding." • A letter from the ministry, dated October 29, 2013 to the orthodontist, explaining that the patient has been denied her request for an orthodontic supplement, as she has not met the required criteria. Attached to the letter is an Orthodontia Decision Summary indicating that the patient is a dependent child of a recipient of income [sic] assistance; there are no resources available to the family to cover the cost of the orthodontic treatment; orthodontia has not been provided without prior authorization from the minister; and the patient does not have severe skeletal dysplasia with jaw misalignment by two or more standard deviations, meaning that the ministry's criteria have not been met. • The patient's Attendance Summary, provided by her school, indicating that she has been absent for 8 periods and excused for 218 periods of her 684 period school term. • The appellant's Request for Reconsideration (RFR), dated November 22, 2013 and signed by the appellant. • A letter from the orthodontist, dated November 18, 2013, requesting a reconsideration of the ministry decision. He explains that the patient has a long history of TMJ issues and that with the orthotic treatment provided by the patient's dentist earlie. r in the year she showed marked improvement in all areas. He adds that the next step to continue the patient's progress would be orthodontic treatment to stabilize a new jaw position. He states that without this treatment the patient may begin to experience the debilitating symptoms she had before and that this relapse has already begun. He adds that he fears that her condition will worsen and at that point, surgery becomes the best option. • A Clarification Log which states that the ministry contacted the orthodontist on December 5, 2013 requesting that he advise as to whether the patient meets the required criteria of severe skeletal dysplasia with jaw misalignment by two or more standard deviations. The orthodontist telephoned that same day, indicating that he was unsure about two or more standard deviations but describes the patient's condition as severe, adding that the patient did benefit from treatment provided by the dentist and that orthodontics would be the logical next step. The appellant submitted a signed Notice of Appeal on January 16, 2014, which was received by the tribunal on January 21, 2014. The Appellant, with the assistance of an advocate, submitted the following additional documentation, which was received by the panel prior to the hearing. • Received on January 29, 2014, copies of two tribunal decisions rescinding ministry decisions regarding orthodontic treatment. The first decision was from July 2007 and had a portion underlined, by the appellant's advocate, "the patient's orthodontist stated that there is no standardized method of interpretation of the severity of a skeletal discrepancy that is not subjective." The second decision, from September 2009, had a portion underlined, by the ap ellant's advocate that highli_g_hted that the orthodonti�t c()mf)leted the assessment form and EAAT 003(10/06/01)
APPEAL# I proceeded with records, which the panel accepted as evidence that the orthodontist must have concluded that the patient met the required criteria. • Received on February 11, 2014, a letter from the orthodontist, dated January 29, 2014, asking for careful reconsideration of this case and re-stated information from his previous letters, assessment and treatment plan, as well as noted that, "there is no non-subjective orthodontic standard to measure this deviation accurately," continuing, "in [the patient's] case, her cephalometric values may not indicate a severe enough dysplasia, but in my opinion, her functional issues are definitely severe," and he added, "I can confidently say that her overall condition is greater than the two standard deviations from normal." The ministry representative did not object to the previously rescinded decisions, however; she did express concern that without knowing additional details regarding the specific circumstances of these decisions, she was unsure how this information was applicable or relevant to the appellant's current appeal. The panel accepted the past tribunal decisions as argument. The ministry representative did object to the admissibility of the January 29, 2014 letter from the orthodontist, as she felt that it contained new information, rather than information in support of the information and record that was before the ministry at the time of reconsideration. The ministry representative submitted an email dated February 5, 2014 from the ministry contracted orthodontist, which clarified the clinical symptoms that may be present in order to meet the requirements of the legislated criteria, to which the appellant did not object. Specifically, it is noted, "I look for cases of severe skeletal malocclusion -usually resulting in a posterior crossbite, class Ill or anterior crossbite and significant class II or excess overjet. The latter two situations can be demonstrated on the lateral cephalometric analysis with measures such as ANB>=6 degrees for a class II. In order to help an orthodontist know whether a case will qualify they should look for cephalometric analysis measures which fall >=2 s.d. from the Norms." The panel accepted the January 29, 2014 letter from the orthodontist and the email from the ministry as they were in support of the information and record that was before the Ministry on Reconsideration and provided further detail regarding the current status of the patient's orthodontic assessment and were therefore accepted pursuant to section 22(4) of the EM. The appellant's oral evidence on appeal included the following information: • As a mother, she cannot bear to see her daughter experiencing such severe pain and missing so much school due to the ongoing problems with her jaw, noting that some days she has to give her daughter Advil and Tylenol in order to cope with the pain. • She is frustrated that she has been working on getting approval for orthodontic care for her daughter for such a long time. • Under the advisement of the orthodontist, the appellant has been told that without orthodontic care, her daughter's only option will be to undergo painful surgery, which will involve breaking her jaw in order to realicm her teeth. She adds that multiple sun:ieries mav have to occur and . EMT 003( 10/06/01)
th e appe ll a nt d o es not feel th a t this is a viable option, pro blems. • She states that her daughter is curr ently wearing de ntist and paid for by th e appe l lant' s parents, intende has now be en we ar in g for wel l ove r a year. • She states that the orth od onti c ca r e she is see cosmetic concern s, only to alleviate h e r o ngoing • She states tha t she discussed the option of monthly paym c o ver th e costs, bu t it is n ot a pos sibility that she and her family can curr • She noted t hat the Ortho d o ntic S cre ening form, dated m in istry con t r ac ted or t hodontist, indicated a scree that had not seen the patient in a ver y long time • She c larifie d that th e dia gn ostic photos take ta ke n p r i or to th e den ti s t's ref erral letter to th • S he appr ec iated that t h e minist ry ac kn owledged sy m p a th etic t o her daught e r 's cas e. Th e app el lant's daughte r ad ded that she experi en ces t empo romadi b ular joint, and d e scribe s it as a "b on e on T h e a ppell ant's mot her (t he pati ent 's g randmo ther) add granddau ghte r's severe pai n an d h a s eve n taken h The mi ni str y r elie d p rim a ril y o n i ts reconsider ation d co nt r acte d o rtho dont ist wh ic h f u r the r cl arifie d the legisla Th e m ini stry com mented that the Or th odontic Screen th e minis try con trac t ed orthodontist , that was qu est recent screen ing from the curre nt orthodontist and that the screenin name was likely automatically populated from a previ EAAT 003(1 0/06/01) APPEAL I #. when orthodon t ic care could solve the an o rthodontic appliance, provided by the d to be worn for four months, that she ki n g for her da u ght er i s n ot to address any pain. e nts with the orthodontist in order to ently afford. October 7, 2013, completed by th e ning date of July 2011 by an orthodonti s t . n on June 12, 201 3 a t th e orthodontist o f fice were e o r tho dontist, on June 18, 2013. i n the r e con side r atio n d e c i sion th a t they were f r eq uent , s ha rp pain i n he r jaw, s peci fically the bon e" se nsation when ev er sh e bites down . e d t hat she has wi tness ed her er t o t h e hos pital due to l o c k ing of her ja w. ec ision an d pr ov ided t he email f rom th e ministr y t ed c riteria . ing form, dated October 7 , 2013, co m plet ed by ioned by the a pp el lant was b a sed on the most g date and incorrect orthodontist ous form.
PA RT F -Reasons fo r Panel Decisio n The deci sion under appeal is the Decembe r 5, 2013 recon determi ned that the appellan t's daug hter was not eligible f Sections 62 and 65 of the Employment and Assistan "EAPWDR"). I n p ar ticular, the minis try found that the den f ailed to mee t the criteria of Section 65 ( 2 )( a) i n th a sk eletal dyspl asia with jaw misalignment of tw o or T h e r el e v ant legislation i s as follows: EAPWDA S e c tion 5 Subject to the regu lations, the minis ter ma y provide dis ability el i gible f o r i t. E AP W D R Secti o n 6 5 -Orth odontic S u pplement 6 5 (1) Subject to subs e c tion ( 2. 1), th e mi n i ster may provide orthod ortho d o ntic supp lements a re pr o vided t o or for a per son in the ( 2 ) a n d who i s (a) a pe r s on with d is abilitie s w ho is eligib le for hea l th (i ) sectio n 62 { 1) ( a) o r (b) ( iii), (ii) section 62 ( 1 ) {b) (i) or (f ) , i f (A) the pe r son is und er age 65 and the M ed i care Protect ion Act, or (B ) the person i s a ge d 6 5 o r mo r e a nd spo u s e' s a llowance or t he federal guarantee Reg . 114/201 0) ( i ii) if the family unit is receiv ing p remium as (iv) section 62 {1) {b) (ii), or (v) section 62 (1) (g), or (b) a dependent child of a person referred to in (i) paragraph (a) (i), (ii) paragraph (a) (ii ) , if (A) t h e pe rson i s und er age 6 5 an d the family unit is rec Medicare Protection Act, o r (B) the person is aged 65 or more and any person in the family unit is receiving the federal spouse's all o wa nce or the federal guaranteed income supplement, (B.C. Reg. 67 /2010) {B.C. Reg. 114/ 2010) (iii) paragraph (a) (iii), or --� -__ _( iv) paragraph (a) (iv). ( B.C. R eg. 6 7 /2010) EAAT 003(10/06/01) APP EAL# I sideration decisi on i n which the min istry or o rth odont ic tr eatment as provid e d in ce for Per s o ns w ith Di sabiliti es Regulation (the tal requiremen ts of appellant 's daughter t s he has not bee n diagnosed with a sev ere more s tanda r d devi a ti ons. assis tance or a supp lement to o r for a family unit that is o n tic s u ppl em ent s t o or for a fa mily unit i f the fa mi l y unit w ho meets t he cond itions under su b s e ction sup pl e m e nts und er fa mily un i t is receiv ing premium assis tan ce un de r t he any perso n in the f amil y unit is receiving the fede ral d in come s upp le ment , {B .C. Reg. 67 /20 10) (B .C. sistance under the M e dic are Pr otection Act, eiving pre mium a s sistance und er the
APPEAL# I (2) For a person referred to in subsection (1) to be eligible for health supplements, the person's family unit must have no resources available to cover the cost of the orthodontic supplements and the person must (a) have severe skeletal dysplasia with jaw misalignment by 2 or more standard deviations, and {b) obtain prior authorization from the minister for the orthodontic supplements. (2.1) A person eligible to receive orthodontic supplements under subsection (1) (a) (iii) or (bl (iii) of this section may receive the supplements {a) while any person in the family unit is (i) under age 65 and receiving a pension or other payment under the Canada Pension Plan, or (ii) aged 65 or more and receiving the federal spouse's allowance or the federal guaranteed income supplement, and {b) for a maximum of one year from the date on which the family unit ceased to be eligible for medical services only. (B.C. Reg. 67 /2010) {B.C. Reg. 114/2010) * * * Whether the patient (dependent child of the appellant) has no available resources to cover the cost of orthodontic treatment (Section 65 (2) The appellant stated that she is currently unable to cover the cost of the orthodontic treatment, even if monthly installments were offered to her. The ministry was satisfied that the information provided by the appellant has established that she does not have available resources to cover the costs and has met the statutory criteria for EAPWDR (Section 65 (2)) Whether the patient has a severe skeletal dvsplasia with iaw misalignment bv two or more standard deviations {Section 65 (2) {a)) The appellant argued that her daughter's orthodontist has stated that orthodontic treatment is required to stabilize the jaw position and without it the condition will worsen, leading to increased pain and suffering as well as a greater loss of function and eventually surgery will be the only option. She further states that the orthodontist described her daughter's condition as "severe" and that the measurements required to meet the eligibility requirements are subjective. She added that there are no ways of measuring skeletal dysplasia that are not subjective. She concludes that the orthodontist has explained that the functional issues are severe and considered to be greater than two standard deviations from normal. The ministrv's position was that, in the opinion of the minister, and the ministrv contracted EAA T003(10/06/01)
o r t h o d o n t i s t t h a t t h e i n f o r m a t i o n p r o v i d e d d i d n o t e s e v e r e s k e l e t a l d y s p l a s i a , t h a t t h e m a l o c c l u s i o n d e ' s e v e r e ' a n d t h e c e p h a l o m e t r i c a n a l y s i s d i d n o t m e n o r m . T h e m i n i s t r y a d d e d t h a t w h e n t h e y c o n t a c t e m e t t h e l e g i s l a t e d c r i t e r i a , t h e o r t h o d o n t i s t ' s r e s p o m o r e s t a n d a r d d e v i a t i o n s b u t w o u l d d e s c r i b e h e r c d i d e n c o u r a g e t h e a p p e l l a n t t o r e a p p l y fo r t h e o r t h c o n d i t i o n c h a n g e i n a m a n n e r t h a t m e e t s t h e c r i t e r T h e p a n e l a c c e p t s t h a t t h e p a t i e n t i s e x p e r i e n c i n g a c k n o w l e d g e s t h a t t h i s p a i n i s h a v i n g a s i g n i f i c a n t f i n d s t h a t a l t h o u g h t h e p a t i e n t ' s o r t h o d o n t i s t h a s a a n d n o t e s s e v e r e l y i m p a i r e d f u n c t i o n a l i t y , t h e a s s e d y s p l a s i a n o r a s e v e r i t y o n t h e s t r u c t u r a l a n d a n a t o d e v i a t i o n s , a s r e q u i r e d t o e s t a b l i s h e l i g i b i l i t y a s r e q 6 5 ( 2 ) ( a ) . T h e p a n e l a c c e p t s t h e p r e v i o u s t r i b u n a r e g a r d i n g t h e s u b j e c t i v i t y o f o r t h o d o n t i c a s s e s s m e p a r t i c u l a r d e c i s i o n ; t h e p a t i e n t h a d n o t u n d e r g o n e p a n e l f o u n d t h a t t h e i n f o r m a t i o n p r o v i d e d b y t h e m d i a g n o s t i c m e a s u r e s c o n s i d e r e d b y t h e m i n i s t r y w h ( p o s t e r i o r c r o s s b i t e , c l a s s I l l o r a n t e r i o r c r o s s b i t e a a p p l i e d t o t h e p a t i e n t ' s o r t h o d o n t i c a s s e s s m e n t , e s " m o d e r a t e o v e r j e t ( 0 -3 m m ) " r a t h e r t h a n e x c e s s o v e m a l o c c l u s i o n . W h e n c o n s i d e r i n g t h e l e t t e r o f J a n u a c c e p t s t h a t t h e p a t i e n t ' s f u n c t i o n a l i s s u e s a r e n o t e p a t i e n t ' s c e p h a l o m e t r i c v a l u e s m a y n o t i n d i c a t e a s t h e a p p e l l a n t ' s a r g u m e n t t h a t c o m p l e t i o n o f t h e m i n w i t h p a t i e n t r e c o r d s b y t h e o r t h o d o n t i s t w a s e v i d e n n o t i n g t h a t t h e p a t i e n t h a d a t t e n d e d t h e o r t h o d o n t i s t a k e n ( J u n e 1 2 , 2 0 1 3 ) p r i o r t o t h e i n i t i a l c o n t a c t m a 2 0 1 3 ) s t a t i n g t h e l e g i s l a t e d c r i t e r i a . C o n c l u s i o n F o r t h e r e a s o n s d e t a i l e d a b o v e , t h e p a n e l f i n d s t h a a p p l i c a t i o n o f t h e l e g i s l a t i o n i n t h e c i r c u m s t a n c e s o i s c o n f i r m e d . E M T 0 0 3 ( 1 0 1 0 6 1 0 1 )[ A P P E A L # _ _ _ _ _ _ _ __, s t a b l i s h t h a t t h e p a t i e n t h a s b e e n d i a g n o s e d w i t h a s c r i b e d i n t h e a s s e s s m e n t w a s n o t c o n s i d e r e d a s u r e t w o o r m o r e s t a n d a r d d e v i a t i o n s f r o m t h e d t h e p a t i e n t ' s o r t h o d o n t i s t i n o r d e r t o c l a r i f y i f s h e n s e w a s t h a t h e w a s n o t s u r e a b o u t t h e t w o o r o n d i t i o n a s s e v e r e . T h e m i n i s t r y r e p r e s e n t a t i v e o d o n t i c s u p p l e m e n t , s h o u l d h e r d a u g h t e r ' s i a s e t o u t i n E A P W D R S e c t i o n 6 5 ( 2 ) ( a ) . c o n s i d e r a b l e p a i n a n d d i s c o m f o r t a n d i m p a c t o n h e r q u a l i t y o f l i f e . H o w e v e r , t h e p a n e l s s e s s e d h e r c l i n i c a l c o n d i t i o n a s b e i n g " s e v e r e " s s m e n t s p r o v i d e d d o n o t r e p o r t a s e v e r e s k e l e t a l m i c m e a s u r e s , s p e c i f i c a l l y t w o o r m o r e s t a n d a r d u i r e d b y t h e l e g i s l a t e d c r i t e r i a , s p e c i f i e d i n S e c t i o n l d e c i s i o n , s u b m i t t e d b y t h e a p p e l l a n t a s a r g u m e n t , n t o f s k e l e t a l d i s c r e p a n c y , h o w e v e r i n t h a t a n y c e p h a l o m e t r i c f i l m s o r a n a l y s i s . F u r t h e r , t h e i n i s t r y c o n t r a c t e d o r t h o d o n t i s t w h i c h c l a r i f i e d t h e e n a s s e s s i n g f o r s e v e r e s k e l e t a l m a l o c c l u s i o n n d s i g n i f i c a n t c l a s s I I o r e x c e s s o v e r j e t ) a n d t a b l i s h e d e v i d e n c e t h a t t h e p a t i e n t h a d a r j e t a n d m o d e r a t e ( c l a s s 1 / 1 1 ) , n o t s e v e r e a r y 2 9 , 2 0 1 4 f r o m t h e o r t h o d o n t i s t , t h e p a n e l d a s ' s e v e r e ' , h o w e v e r t h e l e t t e r s t a t e s t h a t t h e e v e r e e n o u g h d y s p l a s i a . T h e p a n e l d i d n o t a c c e p t i s t r y o r t h o d o n t i c a s s e s s m e n t f o r m a n d p r o c e e d i n g c e t h a t t h e p a t i e n t h a d m e t a l l l e g i s l a t e d c r i t e r i a , t a n d h a d a s e r i e s o f d i a g n o s t i c p h o t o s a n d x r a y s d e b y t h e m i n i s t r y t o t h e o r t h o d o n t i s t ( J u n e 1 8 , t t h e m i n i s t r y d e c i s i o n w a s a r e a s o n a b l e f t h e a p p e l l a n t . A c c o r d i n g l y , t h e m i n i s t r y d e c i s i o n
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.