Employment Insurance (EI)

Decision

[1] I am allowing the appeal and returning the matter to the General Division for reconsideration.

Overview

[2] The Appellant, D. K. (Claimant), is appealing the General Division decision dated June 4, 2021.

[3] The General Division found that the Claimant had injured his ankle on January 4, 2020 and that, as a result, he was incapacitated from working. The General Division concluded that the Commission properly converted the Claimant’s claim from Employment Insurance regular benefits to sickness benefits effective January 5, 2020. The General Division found that the Claimant was entitled to the maximum of 15 weeks of Employment Insurance sickness benefits.

[4] The General Division also found, after the Claimant had exhausted his sickness benefits on March 23, 2020, he was disentitled from receiving regular benefits. This was because it found that he had not made any reasonable and customary efforts to obtain work after March 23, 2020 and because he had set or had personal conditions that limited his chances of returning to the labour market.

[5] The Claimant acknowledges that he injured his ankle on January 4, 2020, but states that he was capable of working after January 4, 2020, until at least February 15, 2020, when he had surgery on his right ankle.

[6] The Claimant argues that the General Division made several errors. The Respondent, the Canada Employment Insurance Commission (Commission), denies that the General Division made any errors.

Issues

[7] The Issues in this appeal are:

1. Did the General Division fail to examine whether the Claimant was capable of working after his injury on January 4, 2020?
2. Did the General Division exceed its jurisdiction by deciding whether the Claimant was capable of and available for work after June 15, 2020?

Analysis

[8] The Appeal Division may intervene in General Division decisions if there are jurisdictional, procedural, legal, or certain types of factual errors.

History of proceedings

[9] The Claimant was collecting regular Employment Insurance benefits. He injured his ankle in January 2020. Weeks later, he discovered that his injury was more severe than he had realized. He had to have surgery on his ankle. He continued to receive regular benefits.

[10] In July 2020, the Claimant told the Commission about his ankle injury. The Commission converted the Claimant’s regular benefits to sickness benefits, effective January 5, 2020. The Claimant received 15 weeks of sickness benefits, the maximum number of weeks available.

[11] The Commission found that the Claimant could not resume collecting regular benefits after he exhausted the maximum number of weeks of sickness benefits. The Commission did not accept the Claimant’s assertions that he had recovered or that he was capable of returning to work after March 23, 2020. The Commission decided that the Claimant should not have received regular benefits after March 23, 2020. The Commission asked the Claimant to repay the regular benefits that it previously paid to him for the period after March 23, 2020.

[12] The Claimant asked the Commission to reconsider its decision, but the Commission did not change its decision.

[13] The Claimant appealed to the General Division. The General Division issued a decision on December 21, 2020. The General Division found that the Claimant was entitled to sickness benefits from January 5, 2020. The General Division also found that the Claimant was capable of and available for work as of June 15, 2020. It found that he remained disentitled from receiving regular benefits from March 23 to June 14, 2020 because he had not shown that he was capable of and available for work during that time.

[14] The Claimant appealed the General Division’s December 2020 decision to the Appeal Division. In April 2021, the Appeal Division returned the matter to the General Division for a reconsideration. The Appeal Division directed that “the General Division shall determine when the Claimant was first incapacitated by his ankle injury and how this affects the date that he would have exhausted his sickness benefits.”^{Footnote 1}

[15] The General Division held a second hearing, on April 27, 2021. The General Division issued a decision on June 4, 2021. The General Division acknowledged the Claimant’s argument that he was available for work “up to the point in February when his broken ankle was diagnosed as he continued to walk on it without any problems.”^{Footnote 2}

Did the General Division fail to examine whether the Claimant was capable of working after his injury on January 4, 2020?

[16] The Claimant argues that the General Division failed to examine whether he was capable of working after his injury on January 4, 2020. He claims that the General Division assumed that he had to have been unable to work because of the injury to his right ankle.

[17] The Claimant maintains that he did not recognize the severity of his injury until he had x-rays in February 2020. He claims that he was capable of working from the date of his injury until his surgery in mid-February 2020. For that reason, the Claimant argues the Commission should not have converted his regular to sickness benefits with an effective start date of January 2020.

[18] The Claimant claims that, if the General Division had not equated injury with incapacity, and if it had recognized that he was capable of working, he would have been entitled to continue to collect Employment Insurance regular benefits between January 4, 2020 and February 15, 2020.

[19] If the Commission had delayed the conversion of Employment Insurance benefits to mid-February 2020, the Claimant would have received the maximum of 15 weeks of sickness benefits starting in February 2020, rather than in January 2020. This would have meant that the Claimant did not exhaust his sickness benefits on March 23, 2020.

[20] In previous proceedings before the Appeal Division, the Commission acknowledged that it had not done a full investigation into the circumstances of the Claimant’s injury, including when he may have been incapacitated. The Appeal Division noted that the Commission thought the Claimant had an insufficient opportunity to provide evidence to support his arguments that the Commission should not have converted his regular benefits to sickness benefits until after his ankle surgery.^{Footnote 3}

[21] The Appeal Division gave directions to the General Division. The Appeal Division directed that, “As part of its reconsideration, the General Division shall determine when the Claimant was first incapacitated by his ankle injury and how this affects the date that he would have exhausted his sickness benefits.”^{Footnote 4}

[22] The General Division held a new hearing. In coming to its decision, the member wrote:

[9] While the [Claimant] argues that he was unavailable for work up to the point in February when his broken ankle was diagnosed as he continued to walk on without any problems it was he who informed the Commission that the injury occurred on January 4, 2020 as a result of an accident involving a piano pedal.

[10] The [Claimant] asserts that using the January 4 date to begin his sick benefits has no basis and medical fact. However the state was supplied by the [Claimant] not selected by the Commission.

…

[16] The [Claimant], at his hearing, testified that his injury took place on January 4, 2020. He stated that he was not aware of the extent of his injury until he visited his doctor and it was confirmed that his ankle was broken and required surgery. He was in a cast from February 15, 2020 through to April 15, 2020, two weeks less than reported by the Commission.^{Footnote 5}

[23] There was some evidence in the hearing file to support the General Division’s conclusions that the Claimant was incapable of working immediately after his injury. The Claimant spoke with the Commission on July 14, 2020, and suggested that he became incapable of working in January 2020.

[24] The Commission’s agent noted that the Claimant stated that he “broke his ankle mid January 2020 and was in a cast up 2020/04/30.”^{Footnote 6} The agent also recorded that the Claimant would be requesting a conversion to sickness benefits “potentially from mid January [2020].”^{Footnote 7}

[25] The Commission relies on the Claimant’s advice from this telephone call. The Commission claims that the agent specifically asked the Claimant when he was first unable to work due to his medical condition, and that he answered “2020-01-04.”^{Footnote 8}

[26] The Claimant denies that the Commission asked him this specific question or that he provided this response. He alleges that the agent misinterpreted what he said. Specifically, he says that the agent mistakenly assumed that he became incapacitated and unable to work once he injured his ankle on January 4, 2020.

[27] Yet, the General Division member did not examine the Claimant on this issue during the hearing on April 27, 2021.The member also did not ask the Claimant about his telephone conversation with the Commission on July 14, 2020. The Claimant denied that he asked anyone to convert his claim to sickness benefits, even though the Commission’s notes say he would be requesting a conversion “potentially from mid January [2020].”^{Footnote 9}

[28] The member was aware of the Claimant’s arguments that he could continue working up to mid-February 2020. The Claimant testified that he thought he had only sprained his ankle. The Claimant testified that he continued walking on his ankle, sometimes for 1.5 hours. He was unaware that he broke his ankle until mid-February 2020.

[29] However, the member did not examine what functionality or capability the Claimant might have had after his injury. The member also did not examine the Claimant on what prompted him to seek medical attention, given that the Claimant had downplayed the severity of his injury up to that point.

[30] The General Division considered the Claimant’s July 2020 phone conversation with the Commission. However, the member did not address the agent’s specific notes that read, “[Claimant] will be requesting a conversion to sickness benefits potentially from mid January when he can provide these dates.”^{Footnote 10}

[31] This fell short of the directions from the Appeal Division on April 6, 2021, that “the General Division shall determine when the Claimant was first incapacitated by his ankle injury.”^{Footnote 11}

Did the General Division exceed its jurisdiction by deciding whether the Claimant was capable of and available for work after June 15, 2020?

[32] The Claimant argues that, in its decision of June 4, 2021, the General Division exceeded its jurisdiction by examining whether he was capable of and available for work as of June 15, 2020. He says that the General Division already considered this issue in its earlier decision of December 21, 2020. The Claimant notes that he did not appeal this aspect of the first General Division decision. Indeed, the Appeal Division did not identify this as an issue on appeal nor address it at all in its April 6, 2021 decision.

[33] In returning the matter to the General Division, the Appeal Division ordered that the matter be returned “for reconsideration.”^{Footnote 12} The Appeal Division also wrote, “As part of its reconsideration, the General Division shall determine when the Claimant was first incapacitated by his ankle injury and how this affects the date that he would have exhausted his sickness benefits.”^{Footnote 13}

[34] By writing, “As part of its reconsideration,” the Appeal Division suggested that the General Division was not restricted to considering the issue surrounding the start and end date of the Claimant’s entitlement to sickness benefits. However, the Appeal Division did not specify or describe other issues that the General Division should address on reconsideration.

[35] The Commission’s representations dated March 11, 2021, identifies one other issue. The Commission argued then that the “General Division’s failure to acknowledge and to consider the period before March 23, 2020, undermine the reasonableness of its decision that the claimant remains disentitled from March 23 to June 14, 2020.”^{Footnote 14} In other words, there was an outstanding issue about whether the Claimant was capable of and available for work (after he exhausted his sickness benefits) up to June 14, 2020.

[36] Given this, the General Division should have examined the following issues:

• when the Claimant became incapable of performing the duties of his regular or usual employment or of other suitable employment,
• if the Claimant became incapable sometime after January 4, 2020, to possibly mid-February 2020, when the Claimant exhausted his sickness benefits, and
• whether the Claimant was capable of and available for work, from the time that he exhausted his sickness benefits, up to June 14, 2020.

[37] The General Division should have accepted its findings of December 2020 that the Claimant was capable of and available for work as of June 15, 2020. In other words, the General Division exceeded its jurisdiction in April 2021 by examining whether the Claimant was capable of and available for work after this date.

Remedy

[38] How can I fix the General Division’s error? I have two basic choices.^{Footnote 15} I can substitute my own decision or I can refer the matter back to the General Division for reconsideration. If I substitute my own decision, this means I may make findings of fact.^{Footnote 16}

The parties’ arguments

[39] The Claimant argues that I should allow the appeal and give the decision that the General Division should have made. He says the General Division should have found that he was capable of working to mid-February 2020. In other words, he should have continued receiving regular benefits until then, before converting his claim to sickness benefits.

[40] The Claimant also argues that the General Division should have accepted its earlier findings (from December 2020) that he was available for work after June 15, 2020.

[41] The Commission argues that the General Division did not make any errors. The Commission asks me to dismiss the appeal altogether.

[42] The Commission also argues that, even if the Claimant says that he could have continued working to mid-February 2020, section 40(4) of the Employment Insurance Regulations states that he is considered unable to work if he is “incapable of performing the duties of [his] regular or usual employment or of other suitable employment.” The Commission argues that, based on the evidence and the law, it was reasonable for the General Division to conclude that the Claimant’s injury left him incapable of performing the duties of his usual employment after January 4, 2020.

[43] The Commission also argues that the General Division decision of December 21, 2021 has no bearing on the outcome of these proceedings. The Commission argues that, when the Appeal Division returned the matter to the General Division for reconsideration on April 6, 2021, it did not limit the issues. The Commission says that the General Division’s conclusions of June 4, 2021, that the Claimant was not available for work after June 15, 2020, should stand.

Returning the matter to the General Division

[44] This matter has already been at the General Division twice. Returning this matter to the General Division will prolong the matter and add further delay. However, returning the matter to the General Division is unavoidable in this case.

[45] The Commission argues that the appeal should be dismissed because the Claimant’s ankle injury meant he could not return to his usual duties or work in the construction area. But, section 40(4) of the Employment Insurance Regulations defines an injury as one that renders a claimant incapable of performing the duties of not only just their regular or usual employment but also of “other suitable employment.”

[46] While the Claimant might not have been able to return to his usual employment or duties, he might have been of “other suitable employment.” If so, then sickness benefits would not be available in those circumstances.

[47] The Appeal Division gave directions on April 6, 2021, to the General Division. The Appeal Division directed the General Division to determine “when the Claimant was first incapacitated by his ankle injury and how this affects the date that he would have exhausted his sickness benefits,” Despite this direction, the General Division did not examine this issue, other than in a cursory manner.

[48] As I noted above, the General Division could have examined the Claimant on several areas. This included the Claimant’s injury, his functionality and level of activity up to mid-February 2020. This would have also meant looking at the Claimant’s suitability for other employment. Or, in other words, looking at whether the ankle injury rendered the Claimant incapable of “other suitable employment.”

[49] As well, the General Division could have looked at the Claimant’s reports to the Commission, along with the Claimant’s telephone discussion on July 14, 2020. These could have been relevant to the Claimant’s capability.

Conclusion

[50] I am allowing the appeal and returning the matter to the General Division for reconsideration. The General Division shall determine the following:

• when the Claimant became incapable of performing the duties of his regular or usual employment or of other suitable employment,
• if the Claimant became incapable sometime after January 4, 2020, to possibly mid-February 2020, determine when the Claimant exhausted his sickness benefits, and
• determine whether the Claimant was capable of and available for work (from the time that he exhausted his sickness benefits) up to June 14, 2020.

[51] Finally, given that this matter has been before the General Division twice previously, I encourage the General Division to consider this appeal in as expeditious a manner as possible.