I APPEAL# PART C Decision under Appeal The decision under appeal is the Ministry of Social Development (the ministry) reconsideration decision of April 24, 2012, which found that the appellant did not meet three of five statutory requirements of section 2 of the Employment and Assistance for Persons With Disabilities Act (EAPWDA) for designation as a person with disabilities (PWD). The ministry found that the appellant met the age requirement and that in the opinion of a medical practitioner her impairment is likely to continue for at least two years. However, the ministry was not satisfied that the evidence establishes that she has a severe physical or mental impairment. The ministry was also not satisfied that the appellant's daily living activities (DLA) are, in the opinion of a prescribed professional, directly and significantly restricted either continuously or periodically for extended periods. As the ministry found that the appellant is not significantly restricted with DLA, it could not be determined that she requires help as defined in section 2(3)(b) of the EAPWDA. ---····· PART D Relevant Legislation Employment and Assistance for Persons with Disabilities Act (EAPWDA), section 2 Employment and Assistance for Persons with Disabilities Regulation (EAPWDR), section 2 EAA T003( 10/06/01 I
I APPEAL# PART E -Summarv of Facts With the written consent of both parties, this hearing was conducted as a written hearing in accordance withs. 22(3)(b) of the Employment and Assistance Act (EAA). The information before the ministry at the time of reconsideration included the following: • The appellant's application for designation as a PWD, signed by the appellant on February 23, 2012. The application included an extensive self-assessment prepared by the appellant, as well as a physician report (PR) signed by the appellant's physician and dated February 15, 2012 and an assessor report (AR) also signed by the appellant's physician, dated February 23, 2012. • A letter from the ministry to the appellant, dated March 19, 2012 advising the appellant that she had been found ineligible for designation as a PWD. • The appellant's Request for Reconsideration form signed by the appellant on April 13, 2012. • A 9-page written submission from the appellant, which appears to have been date-stamped as received by the ministry on April 12, 2012. • A "to whom it may concern' letter aatedl\prlf3~2Ul2, from a a,abefesedrn:::aroractvtslngth·at ··· ·········· the appellant has Type 2 diabetes and expressing the opinion that the appellant requires additional financial assistance to meet her specific dietary requirements. For this appeal hearing the appellant provided a 2-page written submission, and another brief submission in the Notice of Appeal. The ministry relied on its reconsideration decision. In the Diagnoses section of the PR, the appellant's physician of more than 10 years provided a specific diagnosis of mood disorder (depression). In the Health History section of the PR, he wrote that the appellant's depression is disabling -causing difficulties with decision-making, concentration, and emotional !ability and that her activities are limited by claustrophobia. In terms of functional skills the physician described the appellant as being able to walk unaided for more than 4 blocks, to climb more than 5 steps unaided, to lift 7 to 16 kilograms, to have no limitation on the ability to remain seated, and to have no difficulties with communication. The physician reported significant deficits with 5 out of 11 categories of cognitive and emotional function executive (e.g. planning, organizing), emotional disturbance (depression), motivation, impulse control, and attention/sustained concentration. In Section E of the PR form the physician indicated that 8 of 10 prescribed DLA are directly restricted by the appellant's impairment. Mobility and transportation are the only DLA shown as unrestricted. Personal self care, social interaction, and decision making are shown as continuously restricted, with the comment "Memory poor unable to function in many social situations due to impulsive behaviour". The DLA of meal preparation, management of medications, basic housework and daily shopping were shown as being periodically restricted but no detail was provided as to the duration or frequency of the periodic restrictions. In the AR, the physician indicated the appellant's ability to communicate is good in terms of speaking and hearing, satisfactory with respect to reading, but poor as far as writing. This evidence contrasts with the physician's indication of no difficulties with communication in the PR. The ohvsician EAAT 003(10/06/01)
I APPEAL# describes the appellant as being independent in terms of mobility, personal care, housekeeping, shopping, meal preparation, and transportation, as well as in 2 of 3 categories of medication management. He indicates the appellant required periodic assistance in taking medications as directed and in paying rent and bills. In part B of the AR form the assessor is to "indicate to what degree the applicant's mental impairment or brain injury restricts or impacts his/her [cognitive and emotional] functioning". Part B lists 13 categories of cognitive and emotional functions. 5 are shown as not being impacted, 2 are shown as being minimally impacted, 5 are shown as moderately impacted, and 1 motivation is shown as being impacted in a major way. In terms of social functioning which is relevant with respect to mental impairment the physician has indicated the appellant requires either periodic or continuous support or supervision. He describes the appellant as being marginally functional with respect to immediate and extended social networks. In terms of assistance provided by other people, the physician has simply noted "friends" in both the PR and the AR. He has made no indication in the AR as to whether assistive devices or assistance animals are required, but he did reply "no" to the question in the PR asking whether the appellant requires any prostheses or aids for her impairment. In the self report in her PWD application and in her written submission to the reconsideration officer the appellant listed a number of conditions from which she suffers including sleeping disorder, hypothyroidism, depression, arthritis, flux bladder, mood swings, compulsive behaviour, severe headaches, equilibrium problems, visual impairment, picking sores, ecthyma, sinus problems, easily tr1g-gereu-temrrerchanges;-high-chotesterot-ancl-obesity:-8he-wFete-#laJshehasbruised nei-ves-in----her feet and that walking and standing cause her pain, and that she can get blackouts, dizziness, and neck pain from turning her head too quickly. She provided a list of several medications that she currently takes. She takes Paxil for depression and remembers to take her medications about 80% of the time. She reported that the medications mostly keep her depression under control, but the compulsive behaviours, claustrophobia, and attention difficulties continue. The appellant wrote that she struggles to avoid alcohol, and that she has recently been diagnosed with Type II diabetes. She indicated that she is largely independent with respect to DLA while making it clear that she has difficulty with motivation and only performs many DLA when she has no other choice. At her current residence she carries in 2 totes of firewood each day for her heat and she walks ½ hour into town once a month for shopping and then takes a taxi home. She tends to self-isolate and avoid interaction with others because she feels overwhelmed in crowds and is concerned with incontinence and needing to have ready access to a bathroom. The physician who completed the PR and AR is now semi-retired, so the appellant is seeing a new doctor who has ordered a number of medical tests. In her written submission for this appeal hearing the appellant indicated that she has her family and friends do shopping for her because of her fear of crowds and she expressed despair with her efforts to improve her situation. She indicated some positive developments in her life in terms of a new place to live, a new physician, help from an advocate, and a better understanding of the PWD application process. The panel finds that the appellant's written appeal submission provides further detail with respect to the information and records that were before the minister at the time of reconsideration, and accepts it as evidence in accordance with section 22(4) of the Employment and Assistance Act. The ministry relied on its reconsideration decision. EAA T003(10/06/01)
I APPEAL# PART F Reasons for Panel Decision The issue on this appeal is whether the ministry's decision to deny the appellant designation as a PWD was reasonably supported by the evidence or was a reasonable application of the applicable enactment in the circumstances of the appellant. In particular, was the ministry reasonable in determining that the appellant does not have a severe physical or mental impairment, and that in the opinion of a prescribed professional the appellant's impairments do not directly and significantly restrict her from performing DLA either continuously or for extended periods, and that as a result of those restrictions the appellant does not require help to perform DLA? The relevant legislation is as follows: EAPWDA: 2 (1) In this section: "assistive device" means a device designed to enable a person to perform a daily living activity that, because of a severe mental or physical impairment, the person is unable to perform; "daily living activity" has the prescribed meaning; "prescribed professional" has the prescribed meaning. (2) The minister may designate a person who has reached 18 years of age as a person with disabilities for the purposes of this Act if the minister is satisfied that the person has a severe mental or physical impairment that (a) in the opinion of a medical practitioner is likely to continue for at least 2 years, and (b) in the opinion of a prescribed professional (i) directly and significantly restricts the person's ability to perform daily living activities either (A) continuously, or (B) periodically for extended periods, and (ii) as a result of those restrictions, the person requires help to perform those activities. (3) For the purposes of subsection (2), (a) a person who has a severe mental impairment includes a person with a mental disorder, and (b) a person requires help in relation to a daily living activity if, in order to perform it, the person requires (i) an assistive device, (ii) the significant help or supervision of another person, or (iii) the services of an assistance animal. EAAT 003(10/06/01)
I APPEAL# EAPWDR section 2(1): 2 (1) For the purposes of the Act and this regulation, "daily living activities" , (a) in relation to a person who has a severe physical impairment or a severe mental impairment, means the following activities: (i) prepare own meals; (ii) manage personal finances; (iii) shop for personal needs; (iv) use public or personal transportation facilities; (v) perform housework to maintain the person's place of residence in acceptable sanitary condition; (vi) move about indoors and outdoors; (vii) perform personal hygiene and self care; (viii) manage personal medication, and (b) in relation to a person who has a severe mental impairment, includes the following activities: (i) make decisions about personal activities, care or finances; (ii) relate to, communicate or interact with others effectively. (2) For the purposes of the Act, "prescribed professional" means a person who is authorized under an enactment to practice the profession of (a) medical practitioner, (b) registered psychologist, (c) registered nurse or registered psychiatric nurse, (d) occupational therapist, (e) physical therapist, (f) social worker, (g) chiropractor, or (h) nurse practitioner. ******* Severe Mental Impairment The appellant has not expressly stated a position on whether she has a severe mental impairment, though it seems implicit from her evidence of the impacts on her DLA that her position is that she does have a severe mental impairment. The ministry's position, as expressed in the reconsideration decision, is that the impacts of the appellant's mental condition are mostly moderate, and that "without compelling narrative to support a severe mental health condition that severely limits [the appellant's] ability to function either continuously or periodically for extended periods" (emphasis included), the evidence does not support a conclusion that the annellant has a severe mental imoairment. EAAT 003(10/06/01)
I APPEAL# The appellant's evidence is that she suffers from a fear of crowds and crowded places, and a lack of motivation to perform most DLA until she has no other choice but to do so. The lack of motivation is confirmed by her physician who noted this as a major impact. However, much of the physician's evidence is difficult to reconcile. In the PR he describes the appellant's depression as being "disabling", and indicates significant deficits with aspects of cognitive and emotional function. However, in the more detailed analysis of cognitive and emotional function in the AR, the physician notes a major impact to only 1 category of cognitive and emotional functioning motivation with impacts to the other 12 categories being moderate, minimal, or none. In the PR he describes the appellant as being "unable" to function in "many" social situations due to impulsive behaviour, but has failed to provide any detail as to what those situations are or how often they occur or how long they last. In the Social Functioning section of the AR the physician described the appellant as functioning (albeit marginally) in both immediate and extended social networks. It's clear from the evidence that the appellant does have emotional difficulties. She has provided information that there may be other conditions and impacts that may affect her ability to perform DLA. However, much of this information is not confirmed by a prescribed professional and such professional evidence as there is, is incomplete or inconsistent. In her appeal submission the appellant appeared to recognize and acknowledge that the medical information that had been provided was incomplete. Based on the evidence, the panel finds that the ministry was reasonable in concluding that the appellant does not have a severe mental impairment. Severe Physical Impairment The appellant has not expressly stated a position on whether she has a severe physical impairment, though she has described a number of physical conditions from which she suffers and has indicated that they affect her ability to perform some DLA. The ministry's position, as expressed in the reconsideration decision, is that there is no evidence of a severe physical impairment since "there is no physically inhibiting diagnosis and functional skills are limited only in lifting ability (up to 35 lbs.) with all aspects of mobility and physical abilities performed independently." The appellant has provided evidence of numerous physical medical conditions which have not been confirmed by a prescribed professional. Even with respect to Type II diabetes, the diabetes educator is not a prescribed professional. Even if the appellant does suffer from these physical medical conditions, there is insufficient evidence from which the panel can conclude that these conditions are likely to continue for two years or more and constitute a severe impairment or that a prescribed professional has provided an opinion that these conditions directly or significantly restrict her ability to perform DLA. Based on the evidence, the panel finds that the ministry was reasonable in concluding that the appellant does not have a severe physical impairment. Direct and Significant Restrictions In her Notice of Appeal the appellant argued that she has a severe impairment that restricts her rDLAl. She has provided evidence that her mental condition restricts her motivation to perform DLA in EAAT003(10/06/01)
I APPEAL# that she limits her socializing with others, infrequently does housework, cooking or self-care, and isolates herself at home as much as possible except when forced to go out for medical appointments or necessary shopping approximately once a month. The ministry takes the position that since a severe impairment has not been established and since the majority of DLA are performed independently or require little help from others, the information from the appellant's prescribed professional does not establish that impairment significantly restricts DLA either continuously or periodically for extended periods. The evidence of both the appellant and the physician is that the appellant performs most DLA independently. Though the appellant has provided evidence with respect to some restrictions in her performance of DLA, her physician has not provided sufficient detail as to the extent to which DLA are restricted, how often the restrictions occur (with the exception of personal self-care and social functioning which are shown as continuously restricted in the PR), or the duration of the restrictions. For example, the physician indicated that the appellant requires periodic assistance from another person with respect to paying bills, banking, budgeting, and taking medications as directed. Even though there is space on the form requesting an explanation or description of these restrictions, the physician has provided none. The legislation requires that direct and significant restrictions must be confirmed by the opinion of a prescribed professional. There is insufficient information to conclude that in the opinion of a prescribed professional, the appellant's ability to perform DLA is directly and -significantly-restrieted---eithereentint1et1sly-E>f-peFiooiGallY-foFe-xrended-pei:iods~-According1',1,thepaneL _ finds that the ministry was reasonable in its conclusion regarding restrictions of DLA. Help in Relation to DLA Regarding the need for help with DLA, the legislation requires that the need for assistance must arise from direct and significant restrictions in the ability to perform DLA that are either continuous or periodic for extended periods in the opinion of a prescribed professional. The physician's evidence is that the appellant does not use assistive devices, and there is no evidence that the appellant requires an assistance animal. There is also no evidence that the appellant receives the "significant help or supervision of another person". The panel finds that the ministry reasonably determined that as it has not been established that DLA are directly and significantly restricted, it cannot be determined that help is required under section 2(2)(b)(ii) of the EAPWDA. Conclusion Having reviewed and considered all of the evidence, the panel finds that the ministry's decision declaring the appellant ineligible for PWD designation was reasonably supported by the evidence and therefore confirms the ministry's decision. EAA T003(10/06/01 i
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