In a much-anticipated decision,1 on February 14, 2013, the Superior Court ruled on the imputation2 of medical visit costs by the Commission de la santé et de la sécurité du travail (CSST). The Court affirmed the majority decision handed down by a set of three administrative judges of the Commission des lésions professionnelles (CLP) and ruled that the costs of medical visits that take place after the date of consolidation of an employment injury, without permanent impairment or functional limitation, are not imputable to the employer unless it can be proven, on a balance of probabilities, that a relationship exists between the healed injury and the visits.
Several employers applied to the CLP after the CSST refused to remove from their financial records the costs of medical visits that took place after consolidation, without permanent impairment or functional limitation, of their workers' employment injuries. The imputation of such costs to the employers' financial records had a direct impact on the assessment that the employers were required pay to help finance the CSST plan.
The evidence showed that costs of purely personal medical visits that take place months and sometimes more than a year after consolidation and that are not related to the employment injury suffered by the employee are regularly imputed to the employer by the CSST.
The employers' proceedings were based on the first paragraph of section 326 of the Act respecting industrial accidents and occupational diseases (AIAOD),3 which provides for the imputation by the CSST to the employer of "the cost of benefits payable by reason of an industrial accident". In support of their application, the employers argued that medical visits that take place after consolidation of an employment injury, without permanent impairment or functional limitation, are not made "by reason" of such injuries, which are by definition healed and therefore do not require further care or treatment at that point. While the cost of each visit may seem low, cumulatively such costs represent significant amounts each year that artificially inflate employers' CSST assessments.
Decision of the CLP
In view of disagreements in case law regarding the question of whether such costs are imputable, the CLP decided to have the various proceedings of the employers heard simultaneously before three administrative judges.
The CLP determined that section 326 of the AIAOD was the appropriate vehicle for contesting the imputation of the costs of medical visits that occur after the date of consolidation, without permanent impairment or functional limitation, and applied the three-year prescriptive period established by the Civil Code of Quebec.
The majority of the CLP determined that the limit on the employers' responsibility for medical visit costs must be fixed at the date of consolidation of the injury, without permanent impairment or functional limitation, unless proof on a balance of probabilities allows such a finding to be set aside.
Unfortunately, after this decision, the disagreement in case law regarding the burden of proof remained. Two of the three judges affirmed the majority view by concluding that the consolidation of an employment injury, without permanent impairment or functional limitation, puts an end to the employment injury and any medical visits that take place after that date are consequently no longer required "by reason of an industrial accident"; the dissenting judge affirmed the minority view that the injury's consolidation alone is not sufficient to conclude that the cost of medical visits must no longer be imputed to the employer. According to the minority view, the employer has the burden of showing that such appointments have not actually been made "by reason" of the employment injury and that such costs should therefore not be imputed to the employer.
The CSST filed for judicial review of this decision.
Decision of the Superior Court
During the judicial review, the CSST submitted that the CLP had erred in finding that the costs of medical visits are not imputable to the employer after the date of consolidation of an employment injury, without permanent impairment or functional limitation.
The Superior Court first noted that no formal decision by the prevention and compensation division of the CSST exists with respect to medical visits. Instead, it appears from the procedure in place that the costs are added automatically to the employers' record without the CSST asking itself whether a visit is related or not related to the employment injury.
In addition, the Superior Court, like the CLP, maintained that the decision regarding the consolidation of the employment injury crystallizes, for everyone, the medical consequences of an employment injury and must be allowed to produce its full effect. Normally, a healed injury without impairment or limitation should not require further medical visits and the costs for such visits should not be imputed to the employer.
For these reasons, the Superior Court determined that the majority decision of the CLP was reasonable, despite the dissenting view that it contained. It therefore affirmed that the costs of medical visits that take place after the date of consolidation of an employment injury, without permanent impairment or functional limitation, are not imputable to the employer's record. Consequently, if the CSST wishes to impute the costs of a medical visit that took place after the date of consolidation to the employer, it will have the burden of proving that there is a relationship between the employment injury and the medical visit.
It is important to mention, however, that the Court found that the dissenting view of the CLP, which placed upon the employer the burden of establishing the absence of a relationship between the employment injury and a medical visit that takes place after consolidation, was also "[translation] an acceptable possible outcome that is also defensible in respect of the law and the facts." The Court thus confirmed the CLP's decision, with the dissenting view that it contained.
This decision is obviously very favourable for employers as it confirms that the costs of medical visits that take place after consolidation of an employment injury, without permanent impairment or functional limitation, are not imputable to them. However, considering the Superior Court's comments to the effect that the dissenting position of the CLP was equally reasonable, the debate is not permanently closed. Certain decision makers could use this opening to place upon the employer the burden of showing that there is no relationship between an employment injury and medical visits that take place after the date of consolidation. Employers should therefore remain vigilant and collect all the relevant information needed to demonstrate the absence of such a relationship.
Nonetheless, the Superior Court clearly affirmed the correctness of the majority position of the CLP and this decision will serve as a very useful precedent for challenging the imputation to the employer's record of the costs of medical visits that take place after the date of consolidation of an employment injury, without permanent impairment or functional limitation. Employers should therefore continue to carefully review their monthly statements showing the costs imputed to them to determine whether the costs of medical visits of workers whose injuries were consolidated without permanent impairment or functional limitation are still being imputed to them by the CSST and, if so, they should request that the CSST remove such costs from their records.
One of the employers in this matter, McGill University, was represented by Marie-Hélène Jetté.
1. Commission de la santé et de la sécurité au travail c. Commission des lésions professionnelles (February 14, 2013), JB 3836, Québec #200 17-016380-123 (SC), Bouchard, J.S.C.
2. The term "imputation" is used in Quebec legislation to refer to the charging of costs against the employer.
3. Act respecting industrial accidents and occupational diseases, RSQ, c. A-3.001.
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