By Me Marianne Dessureault
If after an industrial accident you conserve functional disabilities and permanent impairment, the CNESST will then have a say on your capacity to regain your employment. When that’s impossible, the CNESST will determine a suitable employment that you are supposed to be able to occupy. But what happens when you present physical or mental health problems other than the ones related to the accident (personal condition)? How does the CNESST determine a suitable employment in this case?
The Act respecting industrial accidents and occupational diseases mentions that a suitable employment presents a reasonable chance of hiring and allows a worker to use his remaining ability to work and his vocational qualifications all while not endangering his health and safety. Therefore, personal characteristics that limit a person’s capacity to work such as unilingualism, lameness or the need to use a cane must be taken into account by the CNESST. In these cases, the CNESST and the Tribunal must interpret the concept of remaining ability to work on a larger scale and include it in the worker’s global condition.
A Court’s recent decision confirmed the “thin skull rule”, which means that the CNESST must take into consideration the worker’s reality and consider the state in which he is. We therefore understand that the global condition must predominate. In this file, the worker contested the determined suitable employment, which was a ticket agent, by pleading that his remaining capacity and his personal condition did not allow him to occupy the determined suitable employment and limited his hiring chances. As a matter of fact, the Tribunal retained from the medical follow-up that the worker was afflicted of continuous pain and had hypoesthesia non-related to the industrial accident, which forced him to wear a corset and to use a cane. Although there was no limitation associated with this personal condition that was established, the condition was medically known at the moment of the assessment of the suitable employment, which is why the Tribunal tipped the balance in favour of the worker. Therefore, the Court acknowledged that the worker’s constant pain prevented him from having the personal qualities required to be a ticket agent (courtesy, outgoing personality, patience, etc.) and that the hypoesthesia and the need for a cane had a big role to play in the refusal to hire the worker. Thus, the CNESST had to proceed to a global evaluation of the worker’s capacity.
However, if the working disability is mainly related to a personal condition or is not recognized by the CNESST, this organism generally refuses to take into consideration this condition while determining the suitable employment. It is therefore not always obvious to distinguish precisely the disability’s origin, but one fact is certain, the CNESST must consider your global condition to determine an employment that’s truly suitable.
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The information in this newsletter may be of juridical nature, but it is not juridical advice.