Workplace Health, Safety & Compensation Review Division

Transcription

1 Workplace Health, Safety & Compensation Review Division WHSCRD Case No: WorkplaceNL No: Decision Number: Lloyd Piercey Review Commissioner The Review Proceedings 1. The hearing of the review application was held at the Royal Inn and Suites in Happy Valley- Goose Bay, NL on June 7, The worker attended the hearing and was represented by Kim Ploughman, Government Members Office, who participated via teleconference. 2. The employer did not attend the hearing but was represented by Tammy Akey who participated via teleconference. 3. WorkplaceNL was represented by Kathy Fry who attended and participated in the hearing process. Introduction 4. On April 12, 2011 the worker completed a Form 6, Worker s Report of Injury stating he had incurred a right shoulder injury in March of 2011 while employed as a project manager. The worker noted it was the result of 3 weeks of replacing lead acid batteries. The worker did not lose any time from work and WorkplaceNL accepted the claim for healthcare costs. 5. On May 21, 2015 the worker submitted a claim for a recurrence of his original right shoulder injury. The worker stated his right shoulder injury of March 2011 had never adequately been treated and he was experiencing increased symptoms. 6. On July 20, 2015 the case manager rendered a decision advising the worker that his claim for recurrence of the March 2011 right shoulder injury was denied. 7. The worker appealed and in a decision dated October 8, 2015 the internal review specialist rendered a decision which upheld the July 20, 2015 decision by the case manager. 8. It is the October 8, 2015 decision by WorkplaceNL that is the first issue before the Review Division. 9. On November 5, 2015 the worker submitted a four page report from a psychiatrist and an additional submission from himself requesting that it be reviewed as new evidence. 1

2 10. On November 19, 2015 the intake adjudicator advised the worker in a written decision, she had reviewed the submitted material and did not find it was of the quality to re-open the claim and reconsider the July 20, 2015 decision to deny the claim. 11. The worker appealed and in a decision dated February 1, 2016, the internal review specialist rendered a decision that upheld the November 19, 2015 decision by the intake adjudicator. 12. It is the February 1, 2016 decision that is the second issue before the Review Division. Issue Issue Number 1 Internal Review Decision of October 8, The worker is requesting a review of the decision by WorkplaceNL dated October 8, The worker is requesting I find WorkplaceNL erred in not accepting his claim for a recurrence of his March 2011 right shoulder injury. Issue Number 2 Internal Review Decision of February 1, The worker is requesting a review of the decision by WorkplaceNL dated February 1, The worker is requesting I find WorkplaceNL erred in not accepting his submission of November 5, 2015 as new evidence that was of the quality to reopen his claim. Outcome Issue Number 1 Internal Review Decision of October 8, I find WorkplaceNL has arrived at a decision to deny the claim as a recurrence that is supported by the evidence and in accordance with the Act, regulations and Policy. The decision dated October 8, 2015 is upheld. Issue Number 2 Internal Review Decision of February 1, I find WorkplaceNL has arrived at a decision that is supported by the evidence and in accordance with the Act, regulations and Policy. The decision dated February 1, 2016 is upheld. Legislation and Policy 17. The jurisdiction of the Review Commissioner is outlined in the Workplace Health, Safety and Compensation Act (the Act), Sections 26(1) and (2), 26.1 and Also relevant and considered in this case are Sections 19(1), 60(1) and 64 of the Act, along with Policy EN-03: Recurrences and Policy EN-20: Weighing Evidence. 2

3 Relevant Submissions and Positions Issue Number 1: Internal Review Decision of October 8, Ms. Ploughman gave a brief history of the worker s employment and the time and nature of his original injury. She noted the worker sustained an injury to both shoulders after three weeks of lifting and moving heavy batteries in a confined space. 20. Ms. Ploughman stated it was significant to note, following the injury, the worker did not receive any medical attention on site, nor was he taken to see a doctor. He was sent back to NL with the commitment he would be paid for his time while recovering from the injury. 21. Ms. Ploughman stated the worker experienced severe pain following the injury. To cope with the pain from the workplace injury, and his ongoing medical condition of obstructive sleep apnea, he used marijuana to medicate himself. 22. Ms. Ploughman advised the worker did eventually seek medical attention from his family physician who diagnosed a rotator cuff injury. Subsequent to this diagnosis, WorkplaceNL, on May 3, 2011, accepted the claim for healthcare benefits only. 23. Ms. Ploughman noted the injury healed to a point where the worker could return to work, but the untreated shoulder injury contributed to a worsening of his obstructive sleep apnea, due to the pain in his shoulder causing him to sleep on his back. 24. The worker did eventually return to his pre-injury employment in Ontario. Ms. Ploughman stated however, while the worker was offered other duties, the unhealed shoulder injury caused him sleep deprivation and exhaustion which eventually led to a nervous breakdown. The worker returned to NL and attempted to rehabilitate himself and did get to a point whereby he could participate in temporary work. 25. Ms. Ploughman stated the worker, four years after the 2011 injury, filed a claim with WorkplaceNL for a recurrence of the original workplace injury. He argued that his right shoulder injury of March 2011 was never properly attended to and the absence of proper care led to ongoing issues with his right shoulder for the past five years. 26. Ms. Ploughman submitted, despite the medical consultant s opinion the evidence supports a minor occupational injury to the right shoulder in 2011 that resolved, the worker s right shoulder injury did not fully heal over the past five years and never resolved. 27. Ms. Ploughman acknowledged the workplace injury may have been exacerbated in an incident where law enforcement officials handled the worker on May 19, 2015 at the holding area of a court but had [the worker] no work-related injury to his right shoulder, the damage to the unrecovered shoulder caused by the altercation with the police would not have been noted - nor would it have been so bad. 28. Ms. Ploughman argued, while the worker did not seek medical attention between the March 2011 workplace injury and the filing for recurrence, it does not mean he did not experience a continuity of symptoms. She noted the pain continued to be severe enough the worker had to use marijuana to allow him to cope with the pain. 3

4 29. Ms. Ploughman submitted WorkplaceNL did not appropriately apply Section 60 of the Act that would, on the balance of probabilities, favour the worker in this instance. 30. Ms. Ploughman stated the worker is of the opinion his claim for recurrence of his right shoulder injury in 2011 should be accepted due to the errors committed by the Commission in its deliberations; and therefore, that WorkplaceNL should provide lost wages, the medical costs for rehabilitating his shoulder and prescription drug costs. 31. Ms. Akey, representing the employer, noted the worker did not report the injury to them until March 18, 2011, at which time they proceeded to submit the appropriate documentation to WorkplaceNL. 32. Ms. Akey noted the employer encourages all injured workers to seek medical attention for any workplace injury and to immediately notify the employer of a workplace incident. 33. Ms. Akey stated the employer does respond to worker s needs and has a return to work policy in place which this worker could have availed of for his injury of March Ms. Fry, on behalf of WorkplaceNL, submitted the worker s shoulder was reinjured due to the altercation he had with the officer. She noted the worker and his representative, Ms. Ploughman, dedicated a great deal of time on the worker s obstructive sleep apnea, however, the sleep apnea is not an issue in the decision by WorkplaceNL. The issue is whether there was a recurrence of the compensable right shoulder injury. 35. Ms. Fry submitted there is no medical evidence in the worker s file to support the argument the workplace injury of March 2011 has contributed to any worsening of the obstructive sleep apnea. She does acknowledge the worker has health issues due to the sleep apnea, but he had this before the March 2011 right shoulder injury. 36. Ms. Fry noted WorkplaceNL did accept the March 2011 claim but for healthcare benefits only. She stated the worker continued to work and did not receive earnings loss benefits. 37. Ms. Fry stated Policy EN-03: Recurrences states An onset of symptoms will not be considered a recurrence where other injuries, accidents or processes have intervened to cause the current condition. Relative to this part of the Policy, Ms. Fry submitted the worker s current symptoms were caused by his altercation with the officer which became the intervening factor. 38. Referenced was a claim note dated June 25, 2015, by the medical consultant who offered the opinion that the worker s current symptoms were related to an altercation with the officer and the evidence supported a minor occupational injury of the right shoulder in 2011 that had resolved. Ms. Fry also noted the medical consultant stated the obstructive sleep apnea was diagnosed prior to the 2011 compensable injury and there was no medical evidence to connect the obstructive sleep apnea with the March 2011 injury. 39. Ms. Fry referenced a clinical note dated August 17, 2010 from the worker s family physician, which indicated the worker complained of bilateral arm discomfort. She also referenced a clinical note from the family physician dated March 31, 2011, whereby it is 4

5 stated the worker presented for re-evaluation of his right injured shoulder. Ms. Fry stated the document indicated the worker had experienced good improvement and the sprains and strains of shoulder and upper arm were resolving. 40. Ms. Fry referenced clinical notes dated February 11, 2010, at which time the family physician noted the worker was using a machine to assist him with his sleep apnea. Also referenced was a document from a respiratory therapy specialist dated February 1, 2010 which indicated the worker was being tested and treated for his sleep apnea. Ms. Fry submitted these documents confirm the worker had sleep apnea that preceded his March 2011 workplace injury. 41. Ms. Fry stated the file information indicated the worker was treated for emotional issues and an outpatient report dated May 20, 2015 noted the worker had been detained and was diagnosed with a subsequent soft tissue injury. 42. Ms. Fry referenced the Form 6, Worker s Report of Injury dated as received by WorkplaceNL on May 21, In this report the worker identified the right shoulder as the part of the body injured, and in response to how the injury occurred the worker wrote Assaulted by police officer. 43. Ms. Fry submitted there is no evidence to support the claim as a recurrence of the March 2011 injury. She contends the decision to deny the claim was correct and appropriate and the October 8, 2015 decision by the internal review specialist should be upheld. Issue Number 2: Internal Review Decision of February 1, Ms. Ploughman stated WorkplaceNL s approach in denying the worker s submission as new evidence which was of the quality to reopen the claim, would suggest they do not comprehend the severity obstructive sleep apnea can have on a person s health. She submitted WorkplaceNL should have further investigated and understood the complexity of the sleeping disorder. 45. Ms. Ploughman further contends WorkplaceNL, in not fairly weighing the document from the attending psychiatrist, has denied the worker a fair and proper hearing. 46. It is the worker s position his written submission provided considerable research and first hand knowledge of obstructive sleep apnea, and the affect it has had on the quality of his life. 47. Ms. Ploughman submitted the worker s injury was more serious than first considered in 2011 and the new evidence would meet the criteria set forth in Section 64 of the Act. 48. Ms. Akey did not present on the second issue, that being the new evidence submitted by the worker. 49. Ms. Fry noted the intake adjudicator, in her decision dated November 19, 2015, had reviewed the documentation submitted by the worker as new evidence and found it was not 5

6 of the quality to reopen the claim. Ms. Fry also noted this decision was upheld by the internal review specialist on February 1, The internal review specialist, in the February 1, 2016 decision, stated that the report from the psychiatrist did not make any reference to the worker s right shoulder injury and did not support a claim for recurrence. Relative to the worker s own written document, the internal review specialist concluded it only discussed the initial injury and provided no new evidence which was not available to WorkplaceNL when it made a decision on July 20, 2015 to deny a recurrence of the March 2011 injury had occurred. Analysis Issue Number 1 Internal Review Decision of October 8, It is the position of the worker his present right shoulder symptoms are a compensable recurrence of his March 2011 workplace injury. He is seeking earnings loss benefits and all healthcare costs associated with the rehabilitation of the injured body part. The worker alleges he did not receive adequate medical attention in March 2011 and that contributed to the worsening of his right shoulder condition. 52. The employer disagrees with the worker s statement that his injury was not given the attention it merited in March The employer noted it had a safety conscious working environment and a return to work plan in place for all injured employees. The employer stated it filed the necessary reports with WorkplaceNL and was willing to participate and cooperate in the process. 53. WorkplaceNL submitted the worker s position that his current right shoulder symptoms are a recurrence of the initial work place injury of March 2011 is not supported by the medical evidence. WorkplaceNL stated the worker s 2011 symptoms and right shoulder injury had resolved itself. It noted at that time, the worker continued to work and received healthcare benefits only. WorkplaceNL stated it is their position the worker s current right shoulder symptoms were caused by an altercation with a officer on May 20, I point out the worker objected at the hearing that Ms. Fry raised the altercation and his arrest in May He stated the case was before the court and there was no decision from the court indicating he was guilty of any offence. I point out in writing my decision on the issue before me, that being whether the worker has experienced a recurrence of his March 2011 injury, is not influenced by the subject matter of an arrest, or the outcome of any court proceedings following from it. The only relevance of the altercation is whether it led to the current shoulder injury and if it affected the recurrence claim, and that will be a part of my adjudication of the evidence. 55. I note that Policy EN-03: Recurrences is the relevant policy to the issue before me. I will review the evidence and consider the criteria set out in that Policy to determine if the worker s position, that he has experienced a recurrence, can be confirmed. 56. A review of the file information indicated the worker s family physician examined him on March 24, 2011 and found the worker exhibited Painful ROM and palpable crepitus. He 6

7 noted the worker injured his right shoulder while changing batteries. This is confirmed by the worker in the Worker s Report of Injury dated April 12, 2011 and the Employer s Report of Injury submitted on March 25, 2011, who stated the worker had injured his right neck and shoulder while he was lifting heavy loads (batteries) over an extended period. 57. The nature and severity of the injury would be addressed by the x-ray and examination of the worker following the March 2011 injury. A radiology report dated March 24, 2011, relative to the worker s right shoulder, stated The projected bony structures and soft tissues are normal. The joint spaces are intact. There is no evidence of recent fracture. It went on to state that the impression was a normal examination. The family physician, following an examination of the worker s right shoulder on March 24, 2011, wrote that he reviewed x- ray no bony abnormalities. No calcific tendinitis and the worker has seen good improvement. 58. The x-ray findings and the medical opinion of the family physician would, I find, support the medical consultant s opinion that the injury was a soft tissue injury that had resolved itself. That direct opinion would be further validated by the indirect evidence and inactivity. I find, by the fact the worker did not miss any work in 2011 due to the shoulder injury, and after March 31, 2011 did not seek any medical attention for his right shoulder for the next four years, an inference can be drawn from this which supports the opinions provided by the medical professionals. 59. As already stated, it is the finding of WorkplaceNL that the worker s current right shoulder symptoms are not related to the March 2011 workplace injury, but rather due to an altercation the worker had with a officer in May There is adequate evidence in the worker s file that the incident did occur and, actually, the worker confirmed it in his Worker s Report of Injury form. I note, also, neither the worker nor his representative challenged the contribution the altercation made to the worker s current right shoulder issues. 60. I reference the following reports, relative to the injury of 2015: On May 20, 2015 an outpatient emergency report noted the worker had injured his right shoulder while being arrested. The Worker s Report of Injury dated May 21, 2015 indicated he had injured his right shoulder. In response to the question of How did injury or incident occur? the worker responded Assaulted by police officer. On May 22, 2015, in a clinical note, the family physician wrote: Patient c/o right shoulder pain secondary to an injury sustained yesterday. Was being held in court detention for when he was forcibly put in handcuffs by officer with twisting motion to the right arm behind his back. He then reports that arm was forcibly twisted up across his back with repeated thrusts. (emphasis mine) 7

8 On June 4, 2015, a treating physiotherapist wrote that he had examined the worker and he reports suffering a re-injury to the affected area when he was reportedly handled roughly by a police officer. 61. A claim note dated May 25, 2015 indicated the case manager had a telephone conversation with the worker and, at that time, he stated that on his right shoulder was reinjured by a police officer. 62. Subsequent to the worker filing his claim for a recurrence, the intake adjudicator contacted WorkplaceNL s medical consultant asking if he would review the documentation contained on this worker s claim file and provide your opinion on whether it is reasonable to relate worker s current issues, including the right shoulder and his sleep apnea issues to the workplace injury of March A claim note dated June 25, 2015 indicated the following in response from the medical consultant: I have reviewed the medical documentation on file consisting of MD clinic visit notes, worker s compensation reporting forms from NL and NS and a letter from a physiotherapist. Based on this information [the worker] injured his right shoulder on [The physician] diagnosed a rotator cuff injury 6 days later. Physiotherapy was recommended and completed. The treating physiotherapist discharged him on with full function. There is no medical evidence on file supporting ongoing or recurrent right shoulder problems until May of 2015 when he visited [the physician] after a new right shoulder injury unrelated to his occupation. A letter from a physiotherapist June 4, 2015 also supports a right shoulder injury in late May 2015 related to an altercation with police. The evidence supports a minor occupational injury to the right shoulder in 2011 that resolved. There has been a new non-occupational traumatic incident that is the likely source of the current right shoulder problems. There is evidence that this worker has obstructive sleep apnea (OSA) and that it was diagnosed prior to the compensable injury in There is no medical opinion amongst the imaged documentation supporting a connection between the OSA and the compensable shoulder injury from The worker s current issues with OSA are more likely than not related to problems other than the 2011 compensable shoulder injury. These comments are based on the current imaged information provided by the WHSCC and the balance of medical probability. I trust these comments will prove helpful with your management decisions for this claim. Please contact me at your earliest convenience should you wish to discuss anything in further detail. 64. Relative to the opinion of the medical consultant, I find the following medical opinions would validate his position on the recurrence issue of the right shoulder injury itself: After examining the worker on June 4, 2015 the attending physiotherapist wrote: 8

9 On objective examination, [the worker] displayed full active range of motion through the right shoulder. Special tests for the rotator cuff were unremarkable. A slight decrease in muscle bulk was noted in the right upper trapezius muscle as compared to the left. No significant weakness was noted on manual muscle testing. On May 20, 2015 the worker s family physician stated: Previous right shoulder injury sustained in workplace in 2011 I saw two occasions and returned to light duties after he reported symptoms had somewhat improved. Did not see after visit in Mar 2011 for reevaluation for further follow up. Patient states that he was forced back to work which aggrevated (sic) his pain symptoms. He did not present this to me as a concern in the several appointments we have had since that time. 65. A radiology report of the worker s right shoulder, dated May 20, 2015 validates the opinion offered by the medical consultant that the 2011 injury was a soft tissue injury that would have resolved. It stated: Findings: Comparisons made to a previous study from March 24, 2000 [sic]. There is no evidence of fracture. No bone, joint or soft tissue abnormality is identified. There s been no significant change. I note the reference made to a 2000 report. However, it is safe to conclude it is referencing a March 24, 2011 radiology report which appears in the worker s file. 66. The worker s representative and the worker dedicated a great deal of their submission on the obstructive sleep apnea experienced by the worker. It was their position that the right shoulder injury forced the worker to sleep on his back, thus contributing to the severity of his sleep apnea. While that is a view offered by the worker, I cannot find any medical evidence in the file to support that conclusion. A review of the file confirms the worker does suffer from sleep apnea and I have no doubt it has caused him serious health issues. I cannot conclude however, the March 2011 injury has contributed to this condition, nor can I find it to be relevant to the recurrence issue before me. I do note documents in the worker s file dated January 17, 2010, February 1, 2010 and February 11, 2010, indicated the worker was being assessed and treated for sleep apnea. However, this was before the March 19, 2011 workplace injury. 67. Policy EN-03: Recurrences states, in part A recurrence is a return of disabling symptoms directly related to an original work injury which results in loss of earning capacity more than 12 months after the worker was last considered capable of earning. Recurrence symptoms must result from and be medically compatible with the original injury. The nature and significance of the original injury and the length of time since the original injury are important factors to be weighed. An onset of symptoms will not be considered a recurrence where other injuries, accidents or processes have intervened to cause the current 9

10 condition. Decisions to accept or deny recurrence claims will consider medical and all other relevant evidence, and be based on the balance of probabilities. Compensation rates for recurrences are based on the earnings at the time of the recurrence. Where there are no earnings at the time of the recurrence but the worker demonstrates earnings in the 12 months prior to the recurrence, compensation may be based on those earnings. In either case, workers are eligible for health care benefits, case management support, and permanent functional impairment, if appropriate. 68. Policy EN-03: Recurrences also provides a number of factors to be considered before a recurrence claim is accepted. These factors provide guidelines to the decision maker in considering a recurrence claim. I have considered the medical and other relevant evidence and, based on the balance of probabilities, I accept the position of WorkplaceNL that the worker does not meet the criteria set out in the relevant policy to merit acceptance of the claim for recurrence. I find the following factors to be significant: There is a lack of evidence the worker s current symptoms are the result of and are medically compatible with the March 2011 injury. The opinion of WorkplaceNL s medical consultant does not support the worker s position and there is no other medical evidence in the file that would challenge or contradict the findings of the medical consultant. While it is the same body part that the worker has identified as the current injured body part, evidence supports the March 2011 injury was a rotor cuff injury which had resolved itself, and the physiotherapist report of June 4, 2015 and the radiology report of May 20, 2015, suggest the presence of the current right shoulder symptoms were mild in nature or non-existent. In this particular case, I find the evidence supports that the incident with the officer was an intervening factor within the meaning of the Policy which would likely have caused any current symptoms experienced by the worker in his right shoulder. The family physician noted in his clinical note dated May 22, 2015 the worker had not sought any appointments with him for his right shoulder issues since March A review of the worker s file does not indicate he sought medical attention from any other physician in the four year period between the original injury of 2011 and his claim for recurrence. Thus, it is reasonable to infer there was no continuity of symptoms during the period between stabilization or recovery from the original injury and the onset of the current impairment. 69. Policy EN-20: Weighing Evidence states in part: The standard of proof for decisions made under the Act is the balance of probabilities -- a degree of proof which is more probable than not. 10

11 Decision makers must assess and weigh all relevant evidence. This necessarily involves making judgments about the credibility, nature and quality of that evidence as they determine the weight of evidence on either side of an issue. Decision makers must weigh conflicting evidence to determine whether it weighs more toward one possibility than another. Where the evidence weighs more in one direction then that shall determine the issue. As a Review Commissioner my role is to review whether a decision of WorkplaceNL complies with the Act, regulations and policies, based on the information WorkplaceNL had before it at the time of its final decision. I cannot disregard the evidence in the claim record and how WorkplaceNL dealt with it. I am not making my own medical conclusions under the pretense of a review for error, as I do not have the expertise to do so. What I am reviewing is how WorkplaceNL dealt with the medical evidence provided to it, and whether WorkplaceNL weighed it properly relative to the entitlement provisions. In other words, what I am reviewing is whether WorkplaceNL s conclusion was called for, based on what was known to it. I have to conclude that, on those issues which require medical expertise to resolve, there was no significant conflict in the evidence. As such, WorkplaceNL did not commit an error in drawing the conclusion it did. Its conclusions from the medical evidence, in turn, informed the question of whether the worker s 2015 condition was caused by employment in the sense it represented a return of the 2011 work injury. WorkplaceNL found, on the balance of probabilities, it was more likely than not that this was not the case and I cannot determine it was in error. In this particular instance, I have comparatively reviewed and weighed the relevant evidence and considered the relevant policy and I find, on the balance of probabilities, the evidence supports the position of WorkplaceNL that the worker s claim for a recurrence be denied. The decision dated October 8, 2015 is upheld. Issue Number 2 Internal Review Decision of February 1, It is the position of the worker the November 5, 2015 submission he provided to WorkplaceNL with a report from his psychiatrist dated August 31, 2015 is new evidence which is of the quality to warrant a reopening of the July 20, 2015 decision denying a recurrence of his 2011 right shoulder injury. 71. It is the position of WorkplaceNL the correspondence submitted by the worker on November 5, 2015, and the report from the worker s psychiatrist, relative to his session with the worker at his clinic on August 31, 2015, is not new evidence and is not of a quality to warrant a reopening of the claim and a re-examination of the decision to deny his claim for a recurrence. 72. I note Section 64 of the Act states: The commission may reopen, rehear, redetermine, review or readjust a claim, decision or adjustment, where 11

12 (a) an injury has proven more serious or less serious than it was considered to be; (b) new evidence relating to the claim, decision or adjustment has been presented to it; (c) a change has occurred in the condition of an injured worker 73. Under Section 64 of the Act, and as articulated in Workers Compensation Commission (Newfoundland) v Breen, 1997, relative to new evidence, WorkplaceNL is not obligated to accept every piece of new evidence simply because an applicant demands that it did so, nor is WorkplaceNL bound to refer every matter for an extensive examination in each case. WorkplaceNL can exercise discretion under the Act and it does not have to accept fanciful or spurious evidence. 74. WorkplaceNL s focus at the preliminary screening stage is intended only to determine if the new evidence would merit an examination of the full file. Whether or not the new evidence would necessarily lead to a different outcome would follow the reopening of the claim and the weight of the evidence when compared to that which already exists in the worker s file. 75. The issue I must address is, specifically, if the November 5, 2015 correspondence from the worker, and the August 31, 2015 report from the psychiatrist, when viewed against the content of the full file, is of the quality to warrant a reopening of the claim. Furthermore, I must review whether WorkplaceNL gave the submitted material the preliminary examination required, as articulated in Breen and as stated under Section 64 of the Act. 76. I have reviewed the content of both the worker s submission and that of the psychiatrist. In summary, the worker made points about the following in his submission: Explanation of the circumstances which contributed to the workplace injury in March 2011; A description of his job duties and his perception of the poor treatment he received from his employer after the March 2011 injury; His sleep apnea and the health issues it caused him; The doctor s prescribing pain killers and his choice to use marijuana for the pain and to assist him with sleeping; His layoff and difficulty getting employment insurance benefits which were approved after an appeal; His apnea and lack of sleep caused him memory and concentration problems, along with a mood disorder; His return to NL and subsequent attempts to work; 12

13 The altercation and detention; and The injury he sustained due to rough treatment by the officer at the time of detention. 77. An examination of the content of the psychiatrist s report dated August 31, 2015 indicated he made the following points: The worker suffers sleep apnea and it may be in the family history; The worker s place of birth and educational background is noted; The worker s psychiatric history is noted and the medication prescribed for same; The worker s medical history which included mild obstructive sleep apnea; and The worker s marijuana use for his sleep disorder and the dosage he had prescribed for the worker; two grams a day for one month of medical marijuana. After a review of its benefits, he authorized a prescription for a 12 month period beginning on October 7, I note there is no reference to the worker s compensable shoulder injury, with the exception of stating I gather he had a work related injury in 2011 where he injured his right shoulder. 78. I find, after reviewing the decision by the intake adjudicator on November 19, 2015, and that of the internal review specialist dated February 1, 2016, that WorkplaceNL has met its obligation under Section 64 of the Act. As I have already stated, WorkplaceNL s focus at the preliminary screening stage is intended only to determine if the new evidence would merit a re-examination of the file as a whole. Whether or not the new evidence would necessarily lead to a different outcome would follow the reopening of the claim and weighing the new information against that which already existed in the file. At this stage, the standard is lower, but the submitted evidence still has to be evaluated for its persuasiveness relative to the issue, compared to the existing evidence on file. However, the new evidence still has to address the issue in the final decision which the worker wishes to reopen. 79. In my review of this particular case, and after an examination of the worker s November 5, 2015 submission, and the report dated August 31, 2015 from the attending psychiatrist, I find it does not meet the threshold as articulated in Breen. An examination of the worker s correspondence suggests only a narrative of events and circumstances that are no different than the information WorkplaceNL already had available to it and considered in the adjudication process. Likewise, the report from the psychiatrist, I find, adds nothing to the file evidence that would be considered new and of the quality to even consider a reopening of the claim, or a re-examination of the decision by WorkplaceNL to deny the recurrence claim. It does not address the question of whether the shoulder issues are a recurrence of the previous work injury. 13

14 Decision 80. Issue Number 1 Internal Review Decision of October 8, 2015 I find WorkplaceNL has arrived at a decision to deny the claim as a recurrence that is supported by the evidence and in accordance with the Act, regulations and Policy. The decision dated October 8, 2015 is upheld. 81. Issue Number 2 Internal Review Decision of February 1, 2016 I find WorkplaceNL has arrived at a decision that is supported by the evidence and in accordance with the Act, regulations and Policy. The decision dated February 1, 2016 is upheld. Review Denied July 25, 2016 Date LP/sb 14