Burst: recent decisions of the Administrative Labor Tribunal, Occupational Health and Safety Division

Burst: recent decisions of the Administrative Labor Tribunal, Occupational Health and Safety Division


Burst: recent decisions of the Administrative Labor Tribunal, Occupational Health and Safety Division



Although it is not always easy to keep up with the constant evolution of case law, SOQUIJ keeps an eye on the grain.

Here, then, are a series of decisions rendered recently by the Administrative Labor Tribunal, Occupational Health and Safety Division, which caught our attention.

The psychological injury:

In this decision (MD), the Tribunal recognized a psychological injury, in this case a major depression and alcohol and opioid use disorder, at a beneficiary attendant in a CHSLD. The latter had been the victim of uttering and touching of a sexual nature by a resident who particularly suffered from mixed dementia causing behavioral difficulties. The Tribunal clarified that, although it was well-known knowledge that the resident in question had a significant disinhibition, it remained nonetheless an unwanted sexual touching, as the worker had suffered, cannot never be called “predictable”. He also pointed out that, no matter the workplace in question and his vocation, a sexual assault cannot be never be trivialized and relegated to the rank of common event, even if several people had been victims. The Court added that, although it was possible to characterize the resident’s actions as usual in the workplace, it would have been responsibility of the employer to adequately protect the mental balance of its workers, which had not been done in this case.

Accident “on the occasion of work”:

Unlike the decision that was already the subject of one of my blog posts, in this decision (Machinery Serge Lemay inc.), an accident “in the course of work” was recognized despite the use of a cell phone during the event. In this case, as the bell announcing the start of the health break rang and the worker was walking towards the rest area while checking her cell phone, she tripped on the pole of a trailer and fell . The Tribunal held that the activity mainly carried out by the worker was that of move to the rest area, or an activity falling within its professional sphere. He pointed out that the activity of looking at his cell phone was a secondary personal activity, who was not not come to replace the main activity exercised by the worker. The employer’s argument, which attributed full responsibility for the accident to the distraction of the worker, was not retained. The Court recalled that the rights conferred by the Act respecting industrial accidents and occupational diseases (LATMP) are regardless of anyone’s responsibility.

Death benefit:

In this decision (Walker), the worker’s wife contested with success the decision of the Commission for Standards, Equity, Health and Safety at Work (CNESST) declaring that she was not entitled to the death benefit on the grounds that she was not demonstrated that she was cohabiting with the worker at the time of his death. The Tribunal retained from a decision rendered in 2009 (Nerdjar (Estate of)) that the concept of “cohabitationWas essentially a question of fact which imposed a analysis of specific circumstances about the special habits of 2 people. He stressed that the concept of “cohabitation” should be interpreted broad, liberal and flexible. He added that it was necessary to take into account modern realities and new ways for couples to experience their relationship and seek to understand their mode of operation. In this case, even though the couple did not reside at the same address at the time of the worker’s death, the Court concluded that the couple had never had any real intention of breaking up or of terminating their relationship definitively. relationship. They had remained in practice physically present for each other and emotionally.

Gross and willful neglect:

In that case (Bricks et cie masonry inc.), the worker, a bricklayer-mason on a construction site, had made a fall from a height while he had removed the guardrails from a scaffolding and installed cantilever planks. The employer’s argument that the employer was gross and willful negligence by contravening Safety code for construction work n / A not been selected. The Tribunal recalled that the employer remained primarily responsible for ensuring compliance of these standards on site.

Medical cannabis:

In that case (Late), the worker contested a decision of the CNESST which refused in particular to reimburse him for the cost of medical cannabis on the grounds that the prescription of the doctor in charge did not mention the THC concentration of the prescribed cannabis. The CNESST’s argument that the prescription was not in accordance with Regulation respecting the standards relating to prescriptions made by a physician has been ruled out. Rather, the Tribunal held that the dispute resolution found in the Act respecting industrial accidents and occupational diseases. Indeed, he was of the opinion that the question of dose and some concentration of a drug is part of “the nature, sufficiency or duration of the care or treatment administered or prescribed” within the meaning of section 212 AIAOD and, even more so, of “any question relating to the injury” on which the doctor appointed by the CNESST can give his opinion in accordance with article 204 AIAOD. In this case, the CNESST, which had not sought the opinion of its designated doctor on the subject and had not used the medical evaluation procedure, was bound by the opinion of the attending physician. Thus, the Court declared that the worker was entitled reimbursement of medical cannabis claimed.

The preventive withdrawal of an ambulance technician due to exposure to a contaminant, the SARS-CoV-2 coronavirus:

In that case (Cinq-Mars), the Tribunal concluded that the preponderant medical evidence demonstrated that the Crohn’s disease, treated with an immunomodulator, altered the state of health of the worker and that his work of ambulance technician exposed it to a contaminant, i.e. the SARS-CoV-2 coronavirus, which included for him dangers since he could not respect the sanitary rules implemented by the Government of Quebec. He stressed, however, that his decision should not receive an application mutatis mutandis towards all ambulance technicians, medical personnel or all workers, regardless of the sector of activity, each case remaining a specific case.

References

  • D. and CSSS A (TAT, 2020-12-08), 2020 QCTAT 4653, SOQUIJ AZ-51729114, 2021EXPT-177.
  • Machineries Serge Lemay inc. and Parent (TAT, 2021-01-28), 2021 QCTAT 449, SOQUIJ AZ-51740337. As of the release date, the decision had not been reviewed or appealed.
  • Walker and Pepin (TAT, 2021-02-05), 2021 QCTAT 661, SOQUIJ AZ-51743186. As of the release date, the decision had not been reviewed or appealed.
  • Nerdjar (Estate of) and Agence de personnel Império inc. (CLP, 2009-04-24 (decision corrected on 2009-05-20)), 2009 QCCLP 2921, SOQUIJ AZ-50553002, CLPE 2009LP-12, [2009] CLP 104.
  • Bricks et cie masonry inc. and welcome (TAT, 2020-12-11), 2020 QCTAT 4707, SOQUIJ AZ-51730366, 2021EXPT-178.
  • Late and Aerotek (TAT, 2021-01-22), 2021 QCTAT 371, SOQUIJ AZ-51739087. As of the release date, the decision had not been reviewed or appealed.
  • Cinq-Mars and CTAQ (TAT, 2021-02-04), 2021 QCTAT 625, SOQUIJ AZ-51742380. As of the release date, the decision had not been reviewed or appealed.






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