Employment Insurance (EI)

Decision

[1] The appeal is dismissed. The Appellant cannot receive regular benefits for the period from December 15, 2017, to March 12, 2018, because he failed to show his capacity for work. Furthermore, the Appellant received overpayments of Employment Insurance benefits; therefore, he is required to repay them.

Overview

[2] The Appellant experienced a disruption of employment because of a shortage of work in December 2017, and he received Employment Insurance regular benefits until March 12, 2018. Later, the Appellant asked that his regular benefits be converted to sickness benefits effective March 13, 2018, because he had been unable to work as of December 15, 2017. The Canada Employment Insurance Commission (Commission) determined that the Appellant could receive sickness benefits for the period from March 13 to April 27, 2018, but it later decided to convert the regular benefits that were paid for the period from December 15, 2017, to March 12, 2018, to sickness benefits because the Appellant reported that he had been unable to work as of December 15, 2017. This decision resulted in an overpayment of Employment Insurance benefits.

[3] The Appellant maintains that he was entitled to regular benefits during the period from December 17, 2017, to March 12, 2018, because he was capable of and available for work. Furthermore, the Appellant submits that the Commission mistakenly declared an overpayment of benefits and that he should not be held responsible for repaying it.

Issues

[4] The Tribunal must decide the following issues:

1. Was the Appellant capable of work during the period in question? If so, was he available for work?
2. Does the Appellant have to repay the overpayment?

Analysis

[5] A claimant is not entitled to be paid regular benefits for a working day in a benefit period for which they fail to prove that on that day they were capable of and available for work and unable to obtain suitable employment (section 18(1)(a) of the Employment Insurance Act (Act)).

[6] The Appellant argues that he is entitled to regular benefits because he was capable of and available for work during the period from December 15, 2017, to March 12, 2018.

Was the Appellant capable of work during the period in question?

[7] No, the evidence shows that the Appellant was unable to work during the period from December 15, 2017, to March 12, 2018.

[8] The Appellant maintains that his capacity for work as of December 15, 2017, is shown by the Record of Employment his former employer issued, indicating that the termination of employment took place as a result of a disruption of employment and not because of illness. The Tribunal finds that this argument cannot succeed because, according to the record of employment, the Appellant stopped working December 2, 2017 (GD3-17), which is well before December 15, 2017.

[9] What is more, the Appellant testified that, in November 2017, he provided his former employer with a medical certificate indicating that he was unable to do his normal duties following a carpal tunnel diagnosis but that he could do light work. He added that his employer had no light work to offer him. He claimed that he was capable of work but that it was impossible for him to do the work because his employer could not accommodate him. The Tribunal finds that this argument cannot succeed. Indeed, the Appellant maintains that he lost his employment on December 2, 2017, as a result of a shortage of work and not because he was unable to work. Furthermore, the employer stated that the Appellant’s ability to carry out his normal duties was not a determining factor in the termination of employment that took place on December 2, 2017, because the Appellant stopped working as a result of a shortage of work (GD3-40). Therefore, when he became unable to work on December 15, 2017, the Appellant did not have a job and, for this reason, could not do light work despite the medical prescription.

[10] The Appellant’s inability is further demonstrated by the medical certificates. Indeed, a first medical certificate issued on December 15, 2017, prescribed light work effective January 15, 2018 (GD3-37). A second medical certificate issued on February 5, 2018, called for light work effective March 15, 2018 (GD3-38). A third medical certificate issued on March 2, 2018, stated that the Appellant was totally disabled as of December 15, 2017 (GD3-25), because he did not have the opportunity to do light work with his employer. A fourth medical certificate issued on May 9, 2018, indicated that the Appellant was unable to work until June 30, 2018 (GD3‑32). The Tribunal finds that these medical certificates unequivocally show that the Appellant was unable to work as of December 15, 2017.

[11] In a fifth medical certificate issued on September 10, 2018 (GD6-4), the doctor modified the medical certificates issued earlier by changing the incapacity date that was initially established on December 15, 2017. This certificate states that the Appellant had a carpal tunnel issue since December 15, 2017, and he was referred to surgery during a doctor’s appointment on March 13, 2018. Therefore, the doctor felt that it was necessary to correct the medical certificate issued on March 2, 2018 (GD3-25), so that it reflected that the Appellant was totally disabled as of March 13, 2018, and not as of December 15, 2017. With all due respect to the doctor’s opinion, the Tribunal finds that the doctor could not have known on March 2, 2018, that the Appellant would be totally disabled at a future date, on March 13, 2018. Furthermore, the doctor indicated that the Appellant was totally disabled as of March 13, 2018, but the Tribunal cannot ignore the fact that, in a questionnaire provided to the Commission on March 22, 2018, the Appellant himself stated that he had been unable to work because of his health condition since December 15, 2017 (GD3-21).

[12] To receive Employment Insurance regular benefits, a claimant must prove that, for every working day, they were capable of and available for work and that they were unable to obtain suitable employment (section 18(1)(a) of the Act). In this way, availability and capacity are related concepts because a claimant’s availability may be limited if they are unable the work, and it is up to the claimant to prove their availability. In this case, the Appellant was not capable of work as of December 15, 2017, because his medical certificates and his statements clearly indicate this inability. Therefore, since the Appellant has failed to show his capacity for work during the period in question, the Tribunal will not analyze whether the Appellant was available for work.

[13] Based on all of the above, the Tribunal finds that the Appellant was unable to work during the period from December 15, 2017, to March 12, 2018. The Tribunal also finds that the Commission’s decision to convert the regular benefits to sickness benefits complies with the Act because the Appellant was unable to work during the period in question, which made regular benefits impossible.

Does the Appellant have to repay the overpayment?

[14] A claimant is liable to repay an amount paid by the Commission to the claimant as benefits to which the claimant is not entitled (section 43 of the Act).

[15] In the Appellant’s case, he had received one week of sickness benefits from November 5 to November 11, 2017, and, after his regular benefits were converted to sickness benefits, he received 18 weeks of sickness benefits during the period from December 17, 2017, to April 15, 2018 (GD3-45 and 46). Therefore, the Appellant received a total of 19 weeks of sickness benefits when, according to the Act, he was entitled to only 15 weeks (section 12(3)(c) of the Act). The Tribunal finds that the Appellant received four weeks of sickness benefits in the amount of $2,172 to which he was not entitled, and the Appellant is liable to repay this amount under section 43 of the Act.

Conclusion

[16] The Tribunal has made the following decisions:

1. The Appellant was not capable of work during the period from December 15, 2017, to March 12, 2018. Therefore, he could not receive regular benefits under section 18 of the Act.
2. The Commission’s decision to convert the regular benefits received during the period from December 15, 2017, to March 12, 2018, to sickness benefits complies with the Act because the Appellant was unable to work during the period in question.
3. Finally, the Appellant received four weeks of overpayments of Employment Insurance benefits, and he is required to repay these benefits because he was not entitled to receive them.

[17] The appeal is dismissed.