By Me Marianne Dessureault
Sadly, it is not rare that applications for occupational disease (tendinitis, carpal tunnel, asbestosis, deafness, etc.) are refused by the CNESST because the worker submitted his application after the six months’ delay established by the Law. Nevertheless, due to the particular nature of occupational diseases, it is still possible to have such a diagnostic recognized depending on when the worker acquired the knowledge that he was suffering from an occupational disease.
As a matter of fact, the section 272 of the Act respecting industrial accidents and occupational diseases establishes that the six months’ delay to submit a claim to the CNESST starts as of the day the worker acquires the knowledge that he carries an occupational disease. Thus, it is possible for the worker to argue about the date on which he learned about his condition. The Tribunal administratif du travail (TAT) has defined the question of the moment of this knowledge in a broad manner in order to respect the particular nature of an occupational disease: the symptoms appear slowly or many exams and follow-ups are necessary before establishing a diagnostic.
Therefore, it has been established that knowledge involves two elements: a diagnostic formally established by the attending physician and a possible relation with the employment. Without talking about medical certitude, the TAT retains that knowledge is more than a mere suspicion, intuition, perception, impression or belief by the worker. On the contrary, it has to be an intellectual process that allows the worker to understand and establish a relation with the employment and must even originate from a source capable of explaining the existing relation.
Let’s take for example an employee working as a waiter that receives a shoulder tendinitis diagnostic in early September. His physician writes in his notes that he’s questioning himself on the relation with the employment and that other exams are necessary. It is only in April, after the exams, that the physician confirms the relation that is motivated by his medical notes by producing a CNESST medical report and by explaining this relation to the worker. Although the CNESST has initially refused the worker’s claim because it was submitted after the permitted delay, the TAT accepted the claim by indicating that the delay should begin in April when the disease was explained to the worker.
However, what should be done when a worker believes that he has been exposed to toxic substances or to a non-conforming work environment but there still hasn’t been an established diagnostic or any symptoms for the moment? For example, workers that are exposed to asbestos fibres or ionizing radiation due to their employment could never develop a disease or develop one only a decade later. Even though the CNESST cannot pronounce itself without a diagnostic, it is important to denounce the situation immediately and to document it. This would, for instance, prevent losing proof after a company closes or after major changes that resolve the toxic exposition. To do so, it is useful to produce a denunciation to the CNESST for a preventive aspect to try to obtain one of their inspectors to come visit your work environment. Otherwise, if the CNESST refuses to inspect your work environment, you can also produce a preventive application in order for your exposition to be documented and inscribed, which could later on avoid a refusal for a non-respected deadline or for absence of exposition proof.
The information contained in this newsletter can be of juridical nature, but does not constitute legal advice.