The Act respecting industrial accidents and occupational diseases1 (Act) provides that a worker who suffers an employment injury is entitled to the medical aid required by his or her condition as a result of the injury. The Act provides that the cost of such medical aid is borne by the Commission des normes, de l’équité, de la santé et de la sécurité du travail (CNESST), not by the injured employee. The CNESST also reimburses the worker for transportation and travel expenses incurred to receive treatment provided he or she submits vouchers.
Once the employment injury is consolidated, without permanent impairment or functional limitations, the injury is healed and medical aid is no longer required. The CNESST stops covering the costs of health care and reimbursing transportation expenses incurred to receive care which is no longer required.
What happens when the tribunal finds that the employment injury has been consolidated without permanent impairment or functional limitations for several months but the worker has been prescribed health care some time after the date of healing determined by the tribunal? More specifically, what about the medical aid and transportation expenses that were paid for by the CNESST? Does the worker have to reimburse the CNESST?
This question, which is far from uncommon, arises when the Administrative Labour Court, which is responsible for ruling on matters relating to the application of the Act, approves an agreement between the worker and his or her employer to settle one or more disputes between them. The parties can agree on a consolidation date without permanent impairment or functional limitations that predates the last treatment prescribed for the worker. Without going into the details of how the compensation and prevention scheme for employment injuries is financed, it should be noted that making the consolidation date of an employment injury retroactive is an important decision for an employer that is seeking to improve its experience record at the CNESST (which operates like an insurance record).
Recently, in Brevil et Hôtel Faubourg Montréal,2 the Administrative Labour Tribunal ruled on such a matter. The CNESST was demanding that a worker reimburse benefits paid to her because an agreement approved by the Tribunal had made the consolidation date without permanent impairment or functional limitations retroactive. After reviewing the relevant sections of the Act, the administrative judge held that the Act did not provide for the reimbursement of medical aid or transportation expense benefits. She observed that the Act seeks to achieve a social objective by compensating for employment injuries and their consequences for beneficiaries and that it allows workers to keep benefits previously paid. The judge thus found that the worker did not have to reimburse the amounts claimed by the CNESST.
As mentioned above, such a situation could also arise from a decision of the Administrative Labour Tribunal setting a consolidation date without permanent impairment or functional limitations at an earlier date than the last treatments received by the worker. Such a scenario would occur where, instead of entering into an out-of-court agreement, the employer and the worker had their dispute settled by the tribunal. In such circumstances, if the injury itself was disputed, the tribunal might find that the worker did not in fact suffer an employment injury. According to the reasoning in the Brevil decision, although the worker would have received treatment without actually suffering an employment injury within the meaning of the Act, the CNESST could not demand reimbursement of the costs of medical aid and transportation expenses.
What are the practical consequences of this decision?
The interpretation of the Act in the Brevil case facilitates out-of-court settlement of disputes arising from the application of the Act, as it eliminates a potential concern of workers who may be reluctant to enter into such agreements out of fear that the CNESST could demand that they reimburse their medical aid benefits and transportation expenses incurred after the consolidation date without permanent impairment or functional limitations that is fixed in the settlement agreement.
The reasoning of the Administrative Labour Tribunal in this case also resolves certain inconsistencies in the position maintained by the CNESST regarding the reimbursement of benefits. For example, the income replacement indemnity of a worker who fails or refuses to submit to medical treatment that is deemed necessary by his or her treating physician will be suspended or reduced. If a worker has in good faith followed the medical treatment recommended by health care professionals and would otherwise have had his or her income replacement indemnity suspended or reduced, how can the CNESST later claim that the worker was not entitled to the benefits received!
The CNESST has applied for judicial review of this decision by the Quebec Superior Court. We will keep you informed of future developments on this important question.
1 CQLR c. A-3.001.
2 2016 QCTAT 4306, application for judicial review, 2016-08-12 (Sup. Ct.), 500-17-095141-167.