Employment Insurance (EI)

Persons in attendance

The Claimant,  S. A. with her representative (son), Mr. A. A., participated in the hearing by telephone.

Decision

[1] The Member finds that the Claimant is not entitled to compassionate care benefits pursuant to section 23.1 of the Employment Insurance Act (EI Act).

Introduction

[2] On April 27, 2014, the Claimant applied for compassionate care benefits.

[3] On May 27, 2014, the Commission advised the Claimant that compassionate care benefits could not be paid because she did not meet the requirements of section 23.1 of the EI Act.

[4] On June 2, 2014, the Claimant requested that the Commission reconsider its decision and on June 6, 2014, the Commission maintained its decision. On June 12, 2014, the Claimant appealed to the General Division of the Social Security Tribunal.

Form of hearing

[5] After reviewing the evidence and submissions of the parties to the appeal, the Member decided to hold the hearing by way of telephone conference for reasons provided in the Notice of Hearing dated August 19, 2014.

Issues

[6] Whether the Claimant is entitled to compassionate care benefits pursuant to section 23.1 of the EI Act.

The law

[7] Subsection 23.1 (1) of the EI Act stipulates that a “family member”, in relation to an individual, means

1. (a) a spouse or common-law partner of the individual;
2. (b) a child of the individual or a child of the individual's spouse or common-law partner;
3. (c) a parent of the individual or a spouse or common-law partner of the parent; and
4. (d) any other person who is a member of a class of persons prescribed for the purposes of this definition.

[8] Subsection 23.1(2) of the EI Act stipulates that notwithstanding section 18, but subject to this section, benefits are payable to a major attachment claimant if a medical doctor has issued a certificate stating that

1. (a) a family member of the claimant has a serious medical condition with a significant risk of death within 26 weeks
   1. (i) from the day the certificate is issued;
   2. (ii) in the case of a claim that is made before the day the certificate is issued, from the day from which the medical doctor certifies the family member's medical condition; or
   3. (iii) in the case of a claim that is regarded to have been made on an earlier day under subsection 10(4) or (5), from that earlier day; and
2. (b) the family member requires the care or support of one or more other family members.

[9] Section 41.2 of the Regulations stipulates that for the purpose of subsection 23.1(3) of the Act, the medical certificate under subsection 23.1(2) of the Act may be issued by the following persons:

1. (a) if the family member in need of care or support is in a geographic location in Canada where treatment by a medical doctor is not readily available, a medical practitioner designated by a medical doctor to provide treatment to the family member;
2. (b) if the family member in need of care or support is outside Canada, a medical doctor who is recognised by the appropriate government authority and has qualifications that are substantially similar to those of a medical doctor in Canada or, if the family member in need of care or support is in a geographic location outside Canada where treatment by a medical doctor is not readily available, a medical practitioner designated by that medical doctor to provide treatment to the family member.

Evidence

[10] On April 30, 2014, the Claimant applied for compassionate care benefits (GD3-2 to GD3-10) having taken a leave of absence from her place of employment to care for her husband (GD3-11, GD3-12 and GD3-14).

[11] Medical document dated April 23, 2014 from Dr. Mark Aubry indicates that the Claimant’s husband will require ongoing care as he is in a wheelchair (GD3-13).

[12] Medical documentation dated April 23, 2014 from Dr. R. Jain indicates that the Claimant’s husband requires support and care from her for 8 weeks (GD3-21).

[13] Other medical documentation submitted are evidence of the Claimant’s husband’s surgery, diagnostic and emergency reports (GE3-19,GD3-20,GD3-22 to GD3-24)

[14] On May 27, 2014 the Commission advised the Claimant that she did not qualify for compassionate care benefits because the medical certificate submitted does not indicate that the family member is at risk of dying with the next 26 months and that he requires care or support (GD3-15).

[15] On June 2, 2014, the Claimant requested that the Commission reconsider its decision submitting that her husband, although not at risk of dying, is in no condition to care for himself; he is bed ridden and cannot move without tremendous pain. She has had to take him to emergency four times while he still awaits surgery.  She is required to care for him on a daily basis (GD3-16 to GD3-18).

[16] On June 6, 2014, the Commission advised the Claimant of the requirements that must be met in order to be in receipt of compassionate care benefits under section 23.1 of the EI Act.  The Claimant found the explanation unfair because she had to take a leave of absence from work because her husband cannot take care of himself (GD2-25 and GD3- 26).

[17] In her notice of hearing, the Claimant reiterated her reasons for disagreeing with the Commission’s decision.  She noted that her husband needs care and support because he is completely dependent on her; he is bed ridden and his personal hygiene needs cannot be provided by a stranger for cultural and religious reasons. The medical evidence provided supports her position that her husband needs her ongoing care for 8 weeks (GD2-2).

[18] At the hearing, the Claimant’s representative, stated that the doctors’ notes do not provide details of the extent of care that the Claimant’s husband required.  The Claimant was the only person who could take care of him (all his personal needs) for both cultural and religious reasons; prepare food and take him to his appointments in a wheelchair. He questioned that if this situation (they) don’t need compassionate care benefits then who does?  The Member referred the Claimant’s representative/son to the legislation and reviewed the requirements and for whom this type of benefits was intended.

[19] The Claimant’s representative noted that although her husband was not at risk of dying, he was at risk of serious injury if the Claimant was not there to care for him.

Submissions

[20] The Claimant submitted that:

1. she has provided medical documentation that clearly states that her husband requires care for 8 weeks because he is completely dependent on her; he is in a wheelchair and cannot care for himself at all;
2. her husband cannot accept care from a stranger due to cultural and religious reasons;
3. although her husband was not at risk of dying, he was at risk of serious injury if the Claimant was not there to care for him.

[21] The Respondent submitted that:

1. it cannot pay compassionate care benefits from April 27th, 2014 under subsection 23.1 of the Act because the medical certificate provided by the Claimant does not indicate that her spouse has a serious medical condition with a significant risk of death within 26 weeks.

Analysis

[22] According to subsection 23.1(2) of the EI Act, in order for a claimant to receive compassionate care benefits, the claimant must submit a medical certificate issued by a medical doctor that states (a) the family member of the claimant has a serious medical condition and a significant risk of death within 26 weeks and (b) the family member requires the care or support of one or more other family member.

[23] In this case, the medical certificates provided by the Claimant do not indicate that the Claimant’s husband had a serious medical condition or that he was at a significant risk of death with 26 weeks.  It is undisputed evidence that the Claimant’s husband was not at risk of dying. The medical certificates dated April 23, 2014 attest only to the fact that the Claimant’s husband required ongoing care for 8 weeks.

[24] The Member considered the Claimant’s submissions regarding her husband’s complete dependency on her for his personal needs.  The Member acknowledges and understands the necessity of the Claimant having to care for her husband and that he was in lot of pain at the time. The intent of the legislation and the purpose of this type of benefit however, is for those caring for family members that have a serious medical condition and are at a risk of death within 26 weeks and require the care of that family member.  In this case, the Claimant meets only the latter requirement and not the former two requirements of the legislation. The Member therefore, agrees with the Commission, and finds that the Claimant is not entitled to compassionate care benefits pursuant to section 23.1 of the EI Act because she does not meet the clear legislative requirements of that section.

[25] The Member notes that it is not within the Member’s jurisdiction or discretion to ignore or change the legislation as it is written.   In this case, the Member finds that it cannot ignore the prescribed requirements of section 23.1 of the EI Act.

[26] The Member is supported by the Supreme Court of Canada’s consistent ruling, which stands for the principle that “a judge is bound by the law. He cannot refuse to apply it, even on grounds of equity” (Granger v. Canada (CEIC), [1989] 1 S.C.R. 141, paragraph 9).

Conclusion

The appeal is dismissed.