Prevention Mutuals
Cost-sharing is an option worth considering for any company or organization wishing to reduce its costs in workplace injury cases.
What is cost-sharing?
Cost-sharing, also known as cost-transfer, is a method provided for under the Act respecting industrial accidents and occupational diseases (AIAOD) to lessen the financial impact of an employment injury on the employer's file.
Another effective way of reducing the impact of occupational injuries on your contributions to the Commission des normes, de l'équité, de la santé et de la sécurité du travail (CNESST) is to join a prevention mutual. A prevention mutual is a group of employers who share their risk in order to mitigate the impact that an accident could have on their file, if they were on their own. An effective prevention mutual is a mutual that can offer its members substantial savings on CNESST contributions.
The general rule on the cost allocation is set out in section 326 of the AIAOD, which stipulates, among others, that the costs of benefits attributable to a work-related accident are recorded in the employer's file. The request for Cost-Sharing or transfer is therefore an exception to this rule.
Under what circumstances can an employer request cost-dharing or a transfer of benefits?
Section 326 of the AIAOD provides for two situations that give rise to a transfer of benefits: an occupational accident that is predominantly attributable to a third party, and cases where the employer is unfairly burdened by the costs. Over the years, case law has clarified the situations in which the employer is unfairly burdened.
Accident Attributable to a Third Party
To secure a transfer of costs, the employer must demonstrate that the accident is mainly attributable to a third party (the third party cannot be a colleague working for the same company) and that the resulting charge is unfair, due to its exceptional, rare or unusual nature. In other words, one that does not fall within the inherent risks of the job.
Interruption of Temporary Assignment or Treatment due to an Intercurrent Condition
In this context, it may be possible to obtain a transfer of costs if the employer can demonstrate that, had it not been for a condition unrelated to the employment injury, the associated costs would have been different. For example, following a cancer diagnosis for which specific treatments are required, an employee compensated by the CNESST for an ankle sprain must cease all treatment, as well as the temporary assignment he was performing full-time with his employer. The CNESST will continue to compensate him, since it is the first payer and the original injury has not healed. However, the amounts paid during this period may be withdrawn from the employer's financial file.
Resignation, Dismissal, Relocation, Return to School or Incarceration
Despite two trends in case law on this issue, some decision-makers still agree to remove sums from an employer's financial file when they result from a situation over which the employer has no control - resignation, moving, incarceration or return to school - and which interferes with the treatment plan or temporary assignment in progress.
The employer will naturally have no influence over such a situation and the resulting costs. Some judges, however, consider that this kind of scenario is part of the hazards of the trade, and that no injustice can result from it.
Disabling Functional Limitations not Declared at the Time of Hiring
The Tribunal administratif du travail (TAT) recognizes that failure to declare permanent functional limitations at the time of hiring may constitute an unfair situation for the employer, and thus alleviate the resulting financial burden. Over the years, jurisprudence has defined the necessary application criteria:
- The worker deliberately failed to declare his functional limitations;
- These limitations are incompatible with the job;
- The employer was unaware of the individual's history;
- The employer would not have hired the individual had he known of the said limitations;
- There is a relationship between the functional limitations and the employment injury, i.e., the injury is the consequence of not respecting the functional limitations
How does an employer benefit from working with Lussier for cost-sharing or benefit transfers?
Our dedicated legal team is committed to maximizing employers' performance in the management of occupational injuries, whether they are in a prevention mutual or a retrospective scheme. We ensure that all appropriate claims are submitted to the CNESST, whether for compensation or cost allocation, and have no hesitation in pleading the case before the TAT. In 2023, more than 550 cases benefited from our service, all with the primary objective of minimizing costs for the employer and/or the prevention mutual.
