Digest of Benefit Entitlement Principles   Chapter 11 - Section 2

11.2.0 First entitlement condition: to be unable to work

Having met the required qualifying conditions to have a benefit period established does not necessarily authorize the payment of sickness benefits. The following extract of Section 18 (1) (b) identifies two conditions a claimant must meet to be entitled to receive sickness benefits.

A claimant is not entitled to be paid benefits for a working day in a benefit period for which the claimant fails to prove that on that day the claimant was

1. unable to work because of prescribed illness, injury or quarantine, and
2. that the claimant would otherwise be available for work.

The expression "to be unable to work" refers specifically to the fact that a person is, by reason of illness, injury or quarantine, incapable of performing the functions of his or her regular or usual employment or of other suitable employment ^{Footnote 1} .

There may be situations in which it will be necessary to decide whether a person is in fact unable to work within the meaning of the Act and the Regulations. The situation of each individual in this respect is unique. In other words, it will be necessary to determine to what extent the illness, injury or quarantine has reduced the person's prospects of finding work in either his or her regular or usual occupation or other activities suited to his or her training, aptitudes and abilities or work history ^{Footnote 2} .

For example, the fact that a person is incapable of performing all the duties required in his or her usual employment, such as lifting heavy objects, or that the person is only capable of performing simple tasks due to his or her state of health, does not necessarily prevent this person from holding other employment that would be compatible with this restricted capability.

Along the same lines, the fact that a person's capabilities decline with age or are reduced by reason of illness or injury does not necessarily mean that this person is irreparably incapable of work. There could very well be other employment suited to the person's condition.

Generally, when claimants become incapacitated while employed, the question of whether they are capable of other suitable employment is not an issue, unless there is a chance for claimants to obtain other employment within the short period of their incapacity without jeopardizing their regular employment.

Then the agent must determine what types of employment would be suitable for that particular claimant and, as well, the actual prospects of obtaining such employment.

If the agent determines that, even though the claimant proves limited capability, the possibilities of obtaining employment which would be appropriate to training, skills and abilities or past experience are practically non-existent or make it unrealistic to expect the claimant to undertake such employment, the officer will nevertheless consider the claimant physically unable to work for the purposes of sickness benefits, even if the medical evidence does not support total incapacity.

11.2.1 By reason of illness, injury or quarantine

There must be a cause-and-effect relationship between the illness, injury or quarantine and the fact that a claimant is incapable of work^{Footnote 3} . It should also be understood that only an illness, injury or quarantine affecting the person who is making a claim for benefits is relevant here.

Pregnancy and childbirth are not, strictly speaking, an illness. This, however, does not necessarily mean that a woman who is pregnant or who has just given birth to a child cannot, in some circumstances, make a claim and receive benefits under the sickness benefits provisions^{Footnote 4} .

A physical or mental disability is not necessarily the equivalent of an inability to work ^{Footnote 5} . Certain persons may prove that they are capable of work within the limits of their capacities, either because their handicap is not an obstacle to employment, because they were able to adjust to it on the basis of the labour market, or because they have the opportunity to work in a protected work environment.

Drug and alcohol dependency is without question another factor likely to render a person incapable of work during certain acute phases. It is possible that such a person will be treated in an outpatient clinic or will instead be admitted to a clinic, hospital or specialized centre for addiction treatment. Such a stay constitutes tangible proof that the person is not able to work, in which case the payment of sickness benefits will be considered, unless the admission is a condition of mandatory confinement which is occasionally imposed by courts of law in their sentences. Such mandatory confinement may be regarded as a stay in an institution similar to a prison^{Footnote 6} .

11.2.2 The medical certificate, a significant source of information

In order to prove that on any given day for which sickness benefits are requested, a person was unable to work because of a prescribed illness, injury or quarantine, this person must obtain, at their own expense, a medical certificate that attests to the incapacity, the start date, the probable duration of the incapacity and signed by a doctor or other medical practitioner.

A medical certificate is acceptable when signed by:

• a medical doctor (Canadian or American)
• a registered nurse, only in isolated areas, when a doctor is not available

A medical certificate is also acceptable when signed by one of the following health professionals if the illness being treated is within their field of expertise:

• a psychologist;
• a chiropractor;
• an optometrist;
• a dentist;
• a nurse practitioner;
• a midwife;
• a podiatrist.

A medical certificate completed and signed by a massage therapist, osteopath, naturopath, physiotherapist, an acupuncturist (with some exceptions ^{Footnote 7} ), Christian Science Adherence Practitioner or a foreign doctor (other than American) is not acceptable.

The Commission is authorized to make regulations prescribing the information to be submitted by a person to prove their inability to work ^{Footnote 8} . On this subject, the Regulations say that the information and evidence to be provided to the Commission by a claimant in order to prove inability to work because of illness, injury or quarantine pursuant to paragraph 18(b) of the Act, is a medical certificate completed by a medical doctor or other medical professional attesting to the claimant's inability to work and stating the probable duration of the illness, injury or quarantine.^{Footnote 9}

The individual is not always required to submit the medical certificate to the Commission, in order to receive sickness benefits. When applying for sickness benefits, the person is advised to obtain a medical certificate from their doctor and either submit it immediately, or keep it in a safe place as it may be required at a later date.

In some instances, the individual’s statement of being unable to work because of illness may not be sufficient. The same can be said that providing a medical certificate does not necessarily prove a person's inability to work. It is possible that the information in the medical certificate is not along the same lines as the individual's statements.

The Commission may also consider that there is no inability to work or that the proof provided will only cover part of the alleged period of inability to work. The Commission has various means and resources^{Footnote 10} to obtain adequate proof of inability to work in order to make a decision on varied or inconsistent information on file.

[ May 2015 ]

11.2.3 Other means and sources of information

The agent who makes the decision on the claimant's entitlement to sickness benefits must be in a position to gather and judge a multitude of sometimes contradictory information and medical declarations concerning the state of a person's health. It is therefore essential for the agent to have the means and resources to facilitate the determination of the validity of the statements.

The attending physician, especially a specialist in the field, is generally the best judge of a person's state of health. The physician's role in respect of benefits comes down to providing or certifying any information considered appropriate concerning the nature of the illness, injury or quarantine, the probable duration of the inability to work and any other circumstances related thereto.

The attending physician does not decide on the entitlement to sickness benefits. That responsibility rather, belongs to the Commission, which must rule on the various conditions to entitlement, provided for in the Act.

When determining entitlement to sickness benefits, clarification or additional information concerning a person's state of health may be required. As well, a variety of situations may arise where an independent medical examination will be considered necessary to counterbalance certain information already entered in the file, to dispel certain doubts as to a person's state of health or to help clarify cases of inability that are complex, ambiguous or contradictory. In these cases, the Commission has full authority to require an independent medical examination if it considers it appropriate to do so. This is a formal obligation for the claimant, and a failure to comply with this direction may be grounds for denying benefits ^{Footnote 11} .

If the Commission does consider that an independent medical examination is required, the choice of the independent medical examiner rests with the Commission. However, considering the intimate nature of such examinations and the need for a relationship of trust between the claimant and the physician, the Commission will provide the choice of another medical examiner where the claimant objects to the first selection, unless the reasons invoked are frivolous or trifling.

It is reasonable to conclude that not all these means and resources will be used in every case. It will depend on the quality of the information gathered in relation to the first entitlement condition to fulfill.