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KNOW YOUR RIGHTS

What is an “occupational injury or illness?”

Pierrette Gosselin, Regional Representative

Contributor: Pierrette Gosselin, Regional Representative, Montréal Office.

Concerns about occupational health and safety are just as important for the Institute as for its members. You have to wonder sometimes whether this is also the case for some employers. And yet, the provisions in Part II of the Canada Labour Code leave no doubt as to the employer’s responsibility to “ensure that the health and safety at work of every person employed by the employer is protected.” In the event of a grievance, the dispute between two parties may sometimes be based on the interpretation of what constitutes an “occupational injury or illness”. Here is an example of such a situation.

A CS member at the Department of National Defence (DND) filed a complaint with the Commission des lésions professionnelles (CLP) in February 2007 to obtain recognition that the neck and shoulder pain she was suffering, which had forced her to remain away from work for more than two months, was directly related to her computer programming duties at the Val Cartier Canadian Forces Base. The employer challenged the complaint. Both the Commission de la santé et de la sécurité au travail (CSST) and the administrative review had dismissed the complaint, citing that in their opinion, there had not been “any sudden, unexpected incident” – one of the key tests in such cases – and that it was not an occupational injury.

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In other words, the CLP had to determine whether the pain the complainant was suffering really constituted an occupational injury under the Quebec Act respecting occupational health and safety, and whether, therefore, the complainant should be compensated for the time she had been away from work. Besides the two months’ salary at issue, it was just as important to the complainant to obtain recognition that it was indeed an occupational injury, in case of relapse later on.

The level of evidence required in such a case is very high, because the employee does not have the advantage of the general presumption that applies in the case of an occupational accident which is sudden and unexpected.

In its judgment in favour of the complainant, the tribunal explained (decision # 323985-31-0707): “The members are of the opinion that the preponderant evidence, in particular the worker’s articulate, detailed and credible testimony, as well as the testimony by physiatrist (...) and ergonomist (...) establish that the worker performed her duties for several years in a poorly designed workstation, resulting in a high level of static muscle contractions involving muscles in the neck and the whole cervicoscapular region , and particularly the trapezius.” [translation]

Besides the testimony from the experts which helped establish that this is indeed an occupational injury, the tribunal also retained as grounds for its decision the complainant’s job description under the‘risks to health’ section, which states: “The regular and continuous need to use fingers, eyes and wrist muscles to operate a keyboard, a mouse and a pointer for four to six hours every day may cause muscle pain, eye fatigue, backache, repetitive strain injuries and other discomfort.”

Under these circumstances, the employer was aware of the health risks associated with the complainant’s work. The tribunal also mentioned in its decision that an ergonomic assessment of the complainant’s workstation performed by Health Canada in March 2007 revealed several deficiencies. On this matter, the tribunal noted: “The conclusions and observations in this report are quite eloquent and generally confirm the worker’s allegations regarding the changes her workstation requires to prevent the pain she has endured for many years while performing her duties as a computer programmer.”

The CLP therefore allowed the complaint. Consequently, having suffered an actual occupational injury associated with risks specific to her job, the complainant was entitled to be reimbursed all the wages she lost during her absence.

What is the lesson here?

When you recognize that the layout of your workstation is causing you discomfort, don’t hesitate to ask your employer to request that an assessment be performed by Health Canada to make sure it is up to ergonomic standards. Health Canada may require you to obtain a medical prescription. Get it from your physician and make sure his or her recommendations are followed.


Publish Date: 05-FEB-2009 12:52 PM