By Laurence Dubé-Proulx, attorney-at-law
For the vast majority of people who deposit a claim at the CNESST or the SAAQ, there are two possible options. The first option, which is the best one, is when the organism accepts your claim and pays you everything that you are entitled to, which includes salary replacement, physiotherapy treatments and travelling expenses. As you probably guessed, the second option is when the organism refuses to compensate you. You must then fight to assert your rights. It is not complicated; it is either black or white.
However, there are grey zones that are unclear and not well understood.
For example, what happens if the CNESST accepts your professional injury and, afterwards, the Court declares that there has never been a professional injury after your employer’s contestation? Legally, it is as if there has never been a professional accident. Will you have to reimburse everything? It depends.
As for the income replacement indemnity, the Act respecting industrial accidents and occupational diseases establishes that :
- You must obligatorily reimburse the salary that your employer paid for the first fourteen days that you have not worked (sections 60 and 363);
- The CNESST can claim the sum of every benefit paid in excess, except in a few cases (section 430);
- The CNESST cannot claim other income replacement indemnity that you have received in good faith (section 363). Thus, if you pretend that you are hurt and the CNESST realizes it, expect the CNESST to claim the entire amount.
Additionally, the CNESST pays many medical assistance fees : doctors’ reports, physiotherapy treatments, medical imaging tests (X-rays, MRI scans). The Law establishes that this right ends once these fees are not required anymore, for instance, when your health problem is healed to a certain extent. In this case, it is as if you never had a right. What you need to know is that CNESST can decide to claim every medical assistance fee covered that it has covered, and this, at the organism’s discretion. What you must allow know is that the Tribunal will almost automatically annul these claims. Therefore, you need to contest these claims.
Finally, the CNESST will not claim any fees until your reclamation file is definitely closed.
Regarding the SAAQ, if you are still receiving indemnities, every income replacement indemnity paid in excess can be claimed and deducted from your indemnities. However, a payment for permanent impairments is not recoverable.
Now, if a Tribunal’s decision declares that you were not entitled to income replacement indemnity or other indemnities in the first place, the SAAQ cannot claim these amounts as long as you have received them in good faith (section 83.51 of the Automobile Insurance Act).
Let’s take another example: the SAAQ had determined that you could exercise the employment you occupied before your accident and ceased to pay your indemnities. You contested this. You went to Court and the Court acknowledged your disability. The SAAQ must then reimburse you the income replacement indemnity that you have not received. However, the SAAQ’s lawyers believe that the judge has made a mistake in his decision. They ask to revise this decision! A new judge hears your case and agrees with the SAAQ and annuls the preceding judgment. In this case, nothing is due to your fault. The faulty one is actually the first judge that heard your case. However, the jurisprudence is unfair in these kinds of cases : the SAAQ can and will claim the sums that she had to pay you!!!
All these reclamation stories are hard to follow. In doubt, contest the decisions and do not hesitate to contact us.