May a physician responsible for a worker define permanent functional disabilities arising out of an occupational injury suffered by an employee by reducing the number of weekly hours for the performance of his or her fulltime job? This was the issue raised before the Superior Court in Danielle Gagnon v. Commission des légions professionnelles.

For example, where a worker falls in the workplace and suffers a concussion which triggers a permanent disability, can her physician conclude that due to her medical condition this worker must be subject to a functional disability which takes the form of a reduction in the number of hours worked during her regular work week?

This recent decision of the Superior Court instructs us that the notion of permanent functional disability arising out of an occupational injury cannot be defined by the total number of hours that an employee may work per week.

I — The Facts

In this matter, the complainant worked for the Quebecministère du Revenu (Ministry of Revenue). In 2009, she suffered a work accident when a homeless person struck her in the face following an audit conducted in the home of a taxpayer.

The Commission des lésions professionnelles (CLP), which initially dealt with the file, refused to acknowledge the validity of the permanent functional disability defined by the complainant’s physician. Due to the physiological impact of this concussion, the physician came to the conclusion that the complainant could not carry out her work for more than 28 hours per week. The employee had previously worked a 35-hour work week.

For the CLP:

(…) the declaration that a worker cannot perform all normal work duties as set out in her schedule does not respond to the notion of functional disabilities whereby a physician specifically determines the acts, movements or positions that a worker can no longer carry out or adopt or the activities that she can no longer engage in and which subsequently will be used to determine whether she can resume her pre-injury employment”.

(Our bold)

This CLP decision was upheld in review.

The determination of functional disabilities is an important stage in the process of CSST management of a claim, as it allows for the determination of the capacity of an employee to occupy her pre-injury employment or, where applicable, the measures of re-adaptation required by the nature of her disability.

II — Superior Court Decision

In the present matter, the question to which the Superior Court had to respond was as follows: Did the CLP render an unreasonable decision by concluding that the functional disabilities established by the attending physician and based upon a weekly work week comprised of fewer work hours was not feasible within the framework of the current scheme of indemnification and re-adaptation, based on the definition of functional disabilities in the AIAOD?

After a review of the case law on the issue, the Court came to the conclusion that a permanent functional disability arising out of an occupational injury based on the capacity of the worker to work the number of hours stipulated in her weekly work schedule does not constitute a medical issue falling solely and exclusively within the jurisdiction of the attending physician. The Superior Court ruled in the following terms:

The Court deems the CLP position to be reasonable that a mere reduction in the number of hours that a person may work is not a medical question. To allow any such restriction to be deemed a functional disability would render the determination of suitable employment by the CSST very difficult, if not impossible. Can we conclude that a person with the same medical condition as Ms Gagnon could not perform any form of work in excess of 28 hours? With all due respect, any such affirmation borders on the unreasonable because it is clear that any employment that requires significant concentration will generally be more difficult for a person suffering from such injuries than a menial job position.”

(Our bold)

In fact, the establishment of the functional disability based on the number of weekly hours worked would in no way be useful if in the future the CSST were to be called upon to assess different job positions which correspond to the complainant’s disability. In fact, a determination of general functional disability based on the number of hours per week worked could potentially trigger a range of difficulties in application: What then is the effect on her daily schedule? Could she work two 14 hour shifts? Are these presumably four 7 hour shifts? For these reasons, the Superior Court upholds the decisions rendered by the CLP on this issue.

III — Commentary 

There exist two (2) lines of case law at the CLP: one acknowledges that a functional disability can be purely temporal (the first), and the other does not recognise this possibility (the second). The Superior Court, within the framework of the decision that it had to render, does not have to resolve this conflict in the case law. It has to rule on the reasonableness of the decision rendered by the CLP, which it has done, and it has judged that it was not appropriate to intervene.

Furthermore, and even if it did not have to rule on this issue, the Superior Court does point out that the first trend of the case law, because of its practical results, borders on the unreasonable”. The Court stated that any reduction in weekly work hours should necessarily vary based on positions occupied on a case-by-case basis, particularly in the presence of a psychological injury, for example, affecting the level of concentration required for a given job performance.

Within such a context, it would be interesting to monitor whether this judgment will have any impact on decisions rendered by the CLP over the upcoming months.


The Court concludes then that it is the responsibility of the physicians treating patients affected by psychological injury (trauma) to circumscribe limitations related to the nature of tasks such persons are capable of performing, but that this notion should be distinguished from the issue of determining the number of hours that a person is capable of working during the course of a week.