It is important to distinguish between an accident at work that is an unforeseen and sudden event occurring during work versus an occupational disease.
In this article, Me Lambert engages in an analysis based on an occupational disease by dissecting a recent file he won for his client at the Administrative Labour Tribunal. Please note that De Quervain’s tenosynovitis (tendonitis) can also be an accident at work in certain situations.
The presumption of occupational disease
If the worker, under section 29 of the Act, demonstrates, by preponderant evidence, that her work involves repetitions of movements or pressures over prolonged periods of time, the presumption of occupational disease applies.
If the presumption applies, the worker does not have to prove causation, since De Quervain’s tendinitis is a disease listed in Schedule 1 to the Act.
The notion of repetition of movements or pressures
The only risk factor adopted by the legislator allowing the presumption to be applied is the frequency of movements.
The case law retains similar or even identical movements or pressures, frequently soliciting the injured structure. In addition, a multitude of varied gestures using the same anatomical structure can also be considered as repetitions of movements or pressures over prolonged periods of time.
The concept of extended periods of time refers to the number of hours spent daily on repetitive gestures and not to the number of years during which the work in question was performed. In addition, an extended period of time does not mean the absence of interruption. Indeed, the Act must have a broad interpretation.
Reversal of the presumption
The presumption may be rebutted if the employer demonstrates that the worker’s illness is not caused by her work. To do this, the employer must demonstrate that the disease is not characteristic of the work or not related to the particular risks of the work, by demonstrating that various risk factors demonstrate that there is no causal link.
Here are some examples of risk invoices:
- strength;
- range of motion;
- the payback period;
- posture.
Analysis of the employee’s work
In a Quervain tendonitis case, it is essential to analyze the employee’s job description .
Among other things, it is important to know:
- What are the employee’s duties?
- How does the employee perform the tasks?
- What instruments are used in the performance of the work? (Please note that the constant use of pliers, scissors, scalpels, saws, bone cutters can influence the analysis of the file)
- What is the work schedule?
- How long are the breaks?
- Is there rotation at the workstation?
- Has there been an increase in working hours?
- Is the employee right-handed or left-handed?
Challenging a CNESST decision
If your employer refuses to recognize that your De Quervain tendonitis is an occupational disease, it is important to consult a lawyer specializing in administrative law in order to properly build your case from the outset.
Your file will often require a second opinion performed by an orthopedic surgeon to establish your claims.
Do not hesitate to contact us for an analysis of your file.