The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

The worker is appealing the decision made by the Workers Compensation Board ("WCB") that his shingles condition was not related to his July 29, 2014 compensable injury. A file review was held on July 26, 2016 to consider the worker's appeal.

Issue

Whether or not the worker's shingles condition is a consequence of his July 29, 2014 compensable injury.

Decision

That the worker's shingles condition is not a consequence of his July 29, 2014 compensable injury.

Background

The worker has an accepted claim with the WCB for injuries to his neck/upper back and left shoulder that resulted from a motor vehicle accident on July 29, 2014.

On November 19, 2014, the worker's mother spoke with a WCB review officer regarding the appeal process and stated that her son had shingles related to stress he had endured because of his injury and dealings with his compensation claim.

On August 26, 2015, the worker's mother spoke with another review officer with respect to an appeal submission from the worker dated August 14, 2015. The worker's mother indicated that the worker was claiming wage loss benefits for time missed from work in November 2014 due to shingles, and payment for associated prescriptions and doctor's notes. The review officer advised that the issue would be addressed by a case manager and a written decision would follow.

On August 28, 2015, the worker's claim was referred to the WCB's healthcare branch to obtain a medical opinion as to whether the worker's shingles condition was related to his July 29, 2014 workplace injury. In a response dated August 31, 2015, the WCB medical advisor stated:

No. While it is well documented that the cause of shingles is reactivation of dormant varicella zoster virus from within dorsal root ganglia, the specific trigger of the episode of reactivation is undetermined. Multiple theories have been proposed, particularly related to relative decrease in immunity/immune system function. This is speculation. Shingles is well recognized to develop in otherwise well individuals of any age without a recognized trigger. The proposal that stress in some manner alters immune function and triggers shingles is entirely speculative.

On August 31, 2015, the worker was advised that based on the opinion from the WCB medical advisor, a cause and effect relationship could not be substantiated between the worker's motor vehicle accident of July 29, 2014 and his subsequent development of shingles. On November 25, 2015, the worker appealed the decision to Review Office.

On January 11, 2016, Review Office determined that shingles was not a compensable condition. Review Office considered the worker's submission which contained various reports regarding shingles and physical trauma. Review Office noted that shingles was a viral infection characterized by a painful, blistering skin rash. Review Office accepted the WCB medical advisor's opinion and found that the November 2014 development of shingles was not related to the workplace injury in July 2014.

Review Office noted that difficulties related to the worker's perception of his treatment by the WCB or decisions made by the WCB were not considered compensable. They were related to what could be called process, not the injury. The fact that these difficulties resulted from matters related to the administration of the worker's compensation claim, as opposed to his injury which the claim was for, did not make them compensable.

On March 5, 2016, the worker appealed Review Office's decision to the Appeal Commission and a file review was arranged.

Reasons

Applicable Legislation

The Appeal Commission and its panels are bound by The Workers Compensation Act (the "Act"), regulations and policies of the WCB's Board of Directors.

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, compensation shall be paid to the worker by the WCB.

Section 37 of the Act outlines the types of compensation payable to workers as follows:

Compensation payable

37 Where, as a result of an accident, a worker sustains a loss of earning capacity or an impairment, or requires medical aid, the following compensation is payable:

(a) medical aid, as provided in section 27;

(b) an impairment award, as provided in section 38; and

(c) wage loss benefits for any loss of earning capacity, calculated in accordance with section 39.

Worker's Position

The basis of the worker's appeal is set out in his appeal form and attachments filed March 8, 2016.

The worker's position was that his shingles appeared after his workplace accident, trauma and stress, all of which were part of his injury. The worker noted that he had documented his personal situation on many occasions, and provided medical information and references regarding shingles and the triggers for that condition. He submitted that there have been changes in the medical field, and that as research and investigation continues into shingles, it has been documented that reactivation of the varicella zoster ("VZ") virus is triggered by an injury. The worker submitted that the workplace accident and the trauma and stress he has endured have taken a toll on his body, and the documentation proves that there was a direct relationship to reactivation of the VZ virus and his shingles.

The worker stated that the difficulties he has had to go through while dealing with the WCB were not just his perception of the process. He submitted that the "process" he has gone through has been very stressful, and has made it harder for him to heal and resulted in his having shingles. The worker submitted that his shingles should be acknowledged as being related to his compensable injury, and he should be compensated accordingly.

Employer's Position

The employer did not participate in the appeal.

Analysis

The worker has an accepted claim arising out of a July 29, 2014 motor vehicle accident. The worker is seeking benefits with respect to a shingles condition as a consequence of his compensable injury. For the worker's appeal to be successful, the panel must find that the worker's shingles complaint or condition is causally related to the July 29, 2014 workplace accident. The panel is unable to make that finding.

At the outset, the panel notes that there is no diagnosis or identification of shingles by a medical practitioner on the claim file.

The worker has stated that he was absent from work from November 12 to 19, 2014 due to shingles, and provided sick notes from two physicians with respect to those absences. The sick note from the first physician states that the worker was seen on November 12 "due to a medical concern" and would be away from work from November 12 to 16. The second note, from the worker's treating physician, indicates that the worker sought medical advice on November 17 "relative to ill health", and on the basis of the history provided, would have required to be off work from November 17 to 19. There was no indication as to the nature of the medical concern or ill health in either sick note.

The panel notes that the worker attended a call-in examination on December 3, 2014 with a WCB physiotherapy advisor. Prior to meeting with the advisor, the worker completed a pain diagram on which he was asked to locate and describe his symptoms at that time. The panel notes that the worker made no reference to shingles on that diagram. The worker was then interviewed and examined by the WCB physiotherapy advisor. Detailed notes of the call-in examination reveal that there were no complaints by the worker or findings relating to shingles or a shingles-type condition at the call-in examination.

Accordingly, based on our review of all of the information on file and the submissions of the worker, the panel finds that there is no medical evidence to support that the worker had or has shingles.

The panel further finds that even if we were able to conclude that the worker had or has shingles, there is no medical support on the claim file for the worker's position that his shingles condition was or is related to his workplace accident or compensable injury.

The panel considered the medical literature provided by the worker but is not able to apply weight to that literature as a basis for concluding that the worker's shingles complaint is related to the worker's compensable injury. The panel notes that, at the very least, the fact situations in the case studies and examples referred to in that literature bear no resemblance to the facts in this case.

While the worker relied in his appeal on difficulties which he said he went through while dealing with his claim and injuries, the panel notes that difficulties resulting from matters related to the administration of a WCB claim are not compensable.

In conclusion, the panel finds that the worker's shingles condition is not a consequence of his July 29, 2014 compensable injury.

The worker's appeal is dismissed.

Panel Members

M. L. Harrison, Presiding Officer
A. Finkel, Commissioner
P. Walker, Commissioner

Recording Secretary, B. Kosc

M. L. Harrison - Presiding Officer

Signed at Winnipeg this 22nd day of September, 2016