Under what conditions can an employer hope succeeding in court?
In recent years, the probability of success before the Commission des lésions professionnelles (hereinafter the “CLP”) in the context of a dispute regarding an imputation division request based on the provisions of Section 329 of the Act Respecting Industrial Accidents and Occupational Diseases (hereinafter the “Act”) has considerably decreased. The analysis of recent jurisprudence obliges us to conclude that the tribunal’s requirements in this regard have tightened significantly, to the point that employers must now redouble their efforts and, in particular, leave nothing to chance.
To begin, we should remember the terms of Section 329 of the Act, which reads as follows:
329. In the case of a worker already handicapped when his employment injury appears, the Commission may, on its own initiative or on the application of an employer, impute all or part of the cost of the benefits to the employers of all of the units.
Any application under the first paragraph must be filed in writing by the employer before the expiry of the third year following the year of the employment injury, and state the reasons for the application.
Since the end of the 1990s, the CLP considers that a “worker already handicapped” according to Section 329 of the Act is a worker who has a physical or psychological disability which resulted in effects on the incidence of the employment injury or the consequences of this injury.
In the case “Hôpital général de Montréal” , the CLP determined the criteria used to define the concept of handicap.
Le travailleur déjà handicapé au sens de l’article 329 de la loi est celui qui, avant que se manifeste sa lésion professionnelle, présente une déficience. Cette déficience constitue un amoindrissement de substance, de structure ou d’une fonction et correspond à une déviation par rapport à une norme biomédicale. Congénitale ou acquise, latente ou visible, elle doit exister avant la survenance de la lésion professionnelle et doit engendrer des effets sur la production de la lésion professionnelle ou sur ses conséquences.
This definition is still relevant. However, bringing the evidence required for the tribunal to conclude to the existence of a handicap has become harder. And the interpretation of the concept of “deviation from the biomedical standard” certainly did not simplify the employers’ tasks.
In this regard, in the case “Alimentation Richard Frenckcuec inc.” , the CLP stated what follows:
Le sens à donner à cette norme biomédicale doit refléter, d’une certaine façon, le caractère inhabituel ou inusité d’une anomalie ou d’une altération d’une structure anatomique. Lorsqu’on est rendu à établir que 30 % de la population est porteuse de l’anomalie en question, on est loin de faire ressortir le caractère inhabituel ou inusité de l’anomalie évoquée.
Thus, in the opinion of certain administrative judges, the “deviation from the standard” should now be interpreted as a truly significant deviation, even as an unusual situation. It is difficult to assess the exact limit or percentage which may vary from one decision to another. But one thing is certain: an employer who wants to establish that a personal condition which is present in a proportion of 30% or more of the population constitutes a handicap will have plenty to do to convince the tribunal that the claim is well-founded.
Most often, proving that a condition deviates from the standard requires the intervention of an expert physician whose opinion is based, as far as possible, on recognized medical literature on the subject. An insufficiently detailed opinion will generally not allow the employer to reach the objective.
On this matter, it is also important that the expert take into consideration all conditions identified about the worker which could have favored, directly or indirectly, the incidence of the employment injury itself or contributed to aggravate its consequences. Indeed, the probability of a person deviating from the standard necessarily increases proportionately to all potential handicaps identified. Even if each one of them is not deviating from the standard, it is still possible that the sum of all these “handicaps” places the worker in the exception zone mentioned by the jurisprudence.
Finally, if an employer chooses to abandon the management of a file for an eventual imputation division, he/she would be well advised to think about it twice. Indeed, some recent decisions of the CLP suggest that a decision from the Commission de la santé et la sécurité au travail (hereinafter the “CSST”) accepting the existence of a relation between an accidental fact and a determined event later prevents the employer from advancing that a handicap could be the source of the employment injury or could have aggravated its consequences.
This type of situation is very usual in practice, especially in the presence of diagnoses to be clarified in the light of a medical investigation. It is very important for the employer to follow up carefully on all decisions rendered by the CSST and to contest all those which could prove damaging to the defense of his/her future interest.
Medical and legal realities must be reconciled. A personal condition which was aggravated because of a work injury must be officially recognized as such by a decision of the CLP if the initial decision of the CSST could cast any doubt on this regard. It is however true that a decision of the CLP confirming that a personal condition was aggravated because of a work injury does not guarantee that an employer will obtain a favourable decision in the context of a division request based on Section 329 of the Act. In any case, the employer will have to establish the existence of a handicap and the impact of this handicap on the incidence of the employment injury or on its consequences. Nonetheless, the employer will at least have the chance to put forth his/her arguments and properly prepare the ground for a potential imputation division request.
Likewise, it is extremely important that the tribunal be able to base its decision on the accidental fact as it really happened. The accident description too often changes as contestations and medical examinations requested by the employer or the CSST progress. If when reading the file the accidental fact advanced by the worker seems more significant than it really was, it is important not to hesitate to rectify facts before the tribunal with solid evidence. By example, it is often possible to establish the real weight of the object manipulated or the exact nature of the effort deployed, which intensity may vary significantly if the worker had available instruments meant to facilitate the task. The example that comes spontaneously to mind is that of a heavy shopping trolley, filled to the brim, which can be easily manipulated by an elderly person.
In a nutshell, obtaining an imputation division based on the provisions of Section 329 of the Act, before the CLP, now requires the employer to pay special attention to each aspect of the file he/she is defending. As announced from the outset, it is highly recommended not to leave anything to chance.
Raymond Chabot Grant Thornton’s professionals specialized in occupational health and safety are definitely oriented towards results. That is the reason why they accompany you step by step in a process allowing you to implement an occupational health and safety files management plan which is based on the description of your enterprise in this area.
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