Costs Due to Treatment or Failure to Provide Treatment: the Workers’ Compensation Tribunal Puts an End to a Debate¹

Published by our Labour and Employment Law team.

Québec’s Workers’ Compensation Tribunal, the Commission des lésions professionnelles, (the “Commission”) recently struck a panel of three commissioners in order to resolve conflicting decisions on the application of section 327(1) of the Act respecting Industrial Accidents and Occupational Diseases (the “Act”) concerning the imputation of certain costs. The commissioners have now rendered their decision: when a worker experiences one or more complications from treatment received for an occupational injury or disease, the employer can request that the costs associated with such a complication be transferred to all employers, on one condition…  

The Commission also ruled that such a complication must have been the subject of a decision by the CSST, Quebec’s occupational health and safety board. The decision must accept the complication as an injury arising out of care received or omitted to be provided for an employment injury, pursuant to section 31 of the Act, which reads as follows:

 31. An injury or a disease is considered to be an employment injury if it arises out of or in the course of

(1) the care received by a worker for an employment injury or the lack of such care;

(2) an activity prescribed to the worker as part of the medical treatment he receives for an employment injury or as part of his personal rehabilitation program.

But wait! If the injury or disease is accepted by the CSST as having arisen out of an initial occupational injury, even if it is evident that it arose in the context of medical care or treatment for the initial injury, the employer will not have the right to the imputation of costs provided for in section 327 of the Act, which reads as follows:

327. The Commission shall impute to the employers of all the units the cost of

(1) benefits due by reason of an employment injury described in section 31;

(1) medical aid benefits due by reason of an employment injury that does not make the worker unable to carry on his employment beyond the day on which his injury appears.

Consequently, in managing your files it is extremely important to pay close attention when the CSST accepts a new diagnosis of such a complication: if you think the new diagnosis arises out of medical treatment received or omitted to be provided by a doctor, the CSST‘s decision must so indicate by expressly specifying that the new diagnosis is accepted pursuant to section 31 of the Act.

If the CSST doesn’t so specify, contest the decision so that the clarification is made by either the CSST review board (Direction de la révision administrative) or the Commission. Remember that you have 30 days from the date of its notification to contest a decision initially rendered by the CSST.

By doing so, you will probably be able to benefit from section 327 of the Act and have your file shorn of all of the costs associated with the new diagnosis (e.g. treatments, medical appointments, income replacement benefits exclusively related to the injury or disease, etc.)