PART C Decision under Appeal The decision under appeal is the Ministry of Social Development (the ministry) reconsideration decision of April 18, 2013, which found that the appellant satisfied all but one of the 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 meets the age requirement; that the appellant has a severe physical or mental impairment; 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; and that as a result of those restrictions, the appellant requires the significant help or supervision of another person. The ministry was not, however, satisfied that -in the opinion of a medical practitioner -the appellant's impairment is likely to continue for at least two years. • PART D Relevant Legislation · Employment and Assistance for Persons with Disabilities Act (EAPWDA), section 2 EAAT003(10/06101)
PART E -Summarv of Facts The information before the ministry at the time of reconsideration included the appellant's application for PWD designation, including: • a physician's report (PR), signed by the appellant's former physician of 8 years, on June 5, 2012; • the appellant's self-report, dated May 23, 2012. In the PR, the appellant's former physician diagnosed the appellant with reflex sympathetic dystrophy (RSD), a painful prostate injury, anxiety disorder with likely post-traumatic stress disorder, major depressive disorder, and addictions. In response to the question in the application form "Is the impairment likely to continue for two years or more from today?" the appellant's former physician indicated "No", and explained: "He has previously worked through a serious complex regional pain problem with his [right] leg, and I believe that with continued counselling + support he will again be able to return to his prior high functioning baseline." Subsequently, in section F of the application form under the heading "Additional Comments", the appellant's former physician wrote in part " ... I anticipate that with treatment of the mood+ anxiety his pain will also improve to allow him to regain his former independence. This may take one to two years, however, and this is just an educated guess as the mood d/o may be resistant to treatment." The appellant moved from his former community in October, 2012 in order to have better access to medical services. In his new community he became the patient of his current physician, who, according to the appellant, he has seen at least once a month since October, 2012. On May 1, 2013, the appellant's current physician provided a letter addressed to the ministry (the May 1 st Letter) stating as follows: "Please be advised that I am the Family Doctor of [the appellant]. This is to confirm that his disabilities namely: 13. 0 Reflex Sympathetic Dystrophy, 11. 0 Prostatic injury secondary to traumatic catheterization ongoing pain, 5. 5 Anxiety disorder and Post Traumatic Stress Disorder, 5. 3 Major Depressive disorder, are severe and permanent." In his self-report and in his oral testimony the appellant provided evidence of the variability and unpredictability of the high degree of pain he experiences with both his RSD and prostatic conditions. In oral testimony on appeal the ministry stated that the primary issue is the duration of the appellant's disability, and noted that employability is not a relevant criterion for PWD designation. The ministry representative stated that he thought normally the ministry would contact both physicians to try to reconcile the two opinions on the expected duration. No evidence was provided to indicate whether the ministry had followed up with the two physicians during the approximately three weeks that it had been in receipt of the May 1s t Letter. Admissibility of New Information The oral testimony of both the aooellant and the ministry were substantiallv repetitive of information EAAT 003(10/06I01)
I APPEAL# that was before the ministry at the time of reconsideration. The appellant provided additional detail about the timing and reason for his move to his current community and the nature of his disability, and the panel accepts this information into evidence as oral testimony in support, as required bys. 22(4)(b) of the Employment and Assistance Act (EAA). The May 1s t Letter from the appellant's current physician provides new information regarding the expected duration of the appellant's disability. This information was not before the ministry at the st time of reconsideration. The panel asked the ministry's position on admissibility of the May 1 Letter st the ministry replied that it had "no problem" with its admission. In the panel's view, the May 1 Letter provides additional detail with respect to the expected duration of the appellant's impairment and is admissible in accordance withs. 22(4)(b) of the EAA. EAA T003(10/06/01)
I APPEAL# PART F Reasons for Panel Decision The issue on appeal is the reasonableness of the ministry's decision to deny the appellant's application for designation as a PWD on the basis that the appellant's impairment was not likely to continue for at least two years. EAPWDA: 2 (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. ******* Position of the Parties The appellant's position is that the expected duration of his impairment is the sole issue to be determined. He says that at the time his former physician expressed his opinion with respect to duration, the prostate/catheterization injury was still fairly recent, and that since then almost a year has passed, during which his current physician has determined that the appellant will not experience a recovery of his health within the timeframe contemplated by the former physician. The ministry said that the reconsideration officer had not had the May 1 st Letter. He suggested that the panel could either confirm the ministry's decision, in which case the appellant could reapply and have the May 1 st Letter considered as part of the evaluation of the new application, or the panel could rescind the earlier decision. In response to a question from the panel, the ministry expressly chose to take no position on the issue of duration. Panel Decision In its reconsideration decision, the ministry found that the appellant's former physician was "very specific" in his opinion that the appellant's impairment was not likely to continue for at least two years. The ministry did not address the same physician's statements in Part F of the application form in which the physician expressed the opinion that indirect resolution of the appellant's physical pain, through treatment of his mood disorder, "may take one to two years", with the implication that it could take longer if the mood disorder is "resistant to treatment." Viewed as a whole, the panel interprets the opinion of the appellant's former physician as being that the duration of impairment was likely to be up to two years, with the real potential to be longer. The more recent evidence of the appellant's current physician is that the duration of the aooellant's impairment will be significantly longer than 2 EAAT003(10/06/01)
[~~PEAL# years i.e. "permanent". In the panel's view, when read together, the weight of the medical opinions is that the appellant's impairment will be at least two years. The panel acknowledges that the ministry did not have the benefit of the May 1 st Letter at the time of reconsideration. Based on the foregoing analysis the panel finds that the ministry's decision regarding the duration of impairment is not reasonably supported by the evidence, and accordingly rescinds the decision in favour of the appellant. EAAT003(10/06/01)
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