I APPEAL# PART C Decision under Appeal The decision under appeal is the Ministry of Social Development (the ministry) reconsideration decision dated March 21, 2013, which found that the appellant did not meet three of the five statutory requirements of Section 2 of the Employment and Assistance for Persons with Disabilities Act for designation as a person with disabilities (PWD). The ministry found that the appellant met the age requirement and that her impairment is likely to continue for at least two years. However, the ministry was not satisfied that the evidence establishes that: • the appellant has a severe physical or mental impairment; • 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, as a result of these restrictions, • the appellant requires the significant help or supervision of another person, the use of an assistive device, or the services of an assistance animal to perform DLA. 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
I APPEAL# PART E Summary of Facts The evidence before the ministry at the time of the reconsideration decision included the following: 1) Person With Disabilities (PWD) Application comprised of the applicant information dated November 13, 2012 and the physician report and assessor report both completed by a general practitioner, who has treated the appellant for approximately 5 years and dated November 6, 2012; 2) Letter dated February 14, 2013 from an orthopedic surgeon 'To Whom It May Concern'; and, 3) Request for Reconsideration dated February 20, 2013. Diagnoses The appellant has been diagnosed by her general practitioner with cerebral palsy, adjustment disorder with depressed mood, and left hemiparesis . .. Physical Impairment • In the physician report under health history, the general practitioner indicated that the appellant has " ... cerebral palsy since birth and as a consequence suffers from left hemiparesis ... her health condition was complicated with injuries sustained in MVA [motor vehicle accident] in 2002 where she suffered a pelvic fracture." • Functional skills reported in the physician report indicated that the appellant can walk 4 or more blocks unaided, she can climb 5 or more steps unaided, she can lift 15 to 35 lbs. and has no limitation with remaining seated. • The general practitioner reported that the appellant has not been prescribed medications or treatment that interfere with her ability to perform her daily living activities (DLA) , and she does not require any aids for her impairment. In the assessor report, the general practitioner marked "N/A" or not applicable with respect to assistive devices required. • In the physician report, the general practitioner marked both that the appellant is not restricted with mobility inside and outside the home and also that she is periodically restricted with mobility outside the home. • In the assessor report, the appellant is assessed as independent with walking indoors and walking outdoors and with climbing stairs. The general practitioner assessed the appellant as requiring periodic assistance from another person with standing and with lifting and carrying and holding. Comments in the general practitioner's handwriting are: "difficulty standing if prolonged" and "problem with left hand lifting and carrying" and in the appellant's handwriting: "standing-hard to stand for long, extended periods of time" and "lifting-my left hand is smaller and much weaker to lift" and "carrying and holding-anything heavy, safely." • In her self-report included with the PWD application, the appellant wrote that she was born with mild cerebral palsy, specifically hemiplegia which affects the left side of her body. The muscles throughout the left side are underdeveloped and weaker therefore her right side over-compensates in order to balance her body. • The appellant wrote that she can take care of herself; however, she does periodically need assistance from family members and friends with certain things that she cannot do by herself without potentially hurting herself. Her lack of ability to use both hands fully has made her extremely cautious and careful of how she does things, particularly picking things up or moving things around. • In the letter dated February 14, 2013, the orthopedic surgeon wrote that the appellant has been a patient of the hospital since 1989 and has a condition called schizencephaly. As such she has significant disability related to primarily her motor function and, to a certain degree, her mental function. She presents with a left hemiplegia secondary to schizencephaly. This has rendered her significantly disabled through her left upper extremity and moderately disabled through her left lower extremity. Her disability affects her ability to ambulate freely. • The orthopedic suri:ieon further wrote that her disability affects her ability to stand for proloni:ied
I APPEAL# periods, that it will interfere with her employability as she will have to choose a field that does not involve a lot of prolonged standing and prolonged movement. Particularly to be avoided is lifting heavy objects. She is strongly right hand dominant and her left hand purely serves as a helper hand. Mental Impairment • The general practitioner diagnosed adjustment disorder with depressed mood, and wrote in the health history that the appellant " ... recently developed depressed mood related to her disability and requires counseling. " • The general practitioner reported that the appellant has no difficulties with communication and has a good ability to communicate in all areas. • In the physician report, the general practitioner indicated that there is one significant deficit in the appellant's cognitive and emotional functioning in the area of emotional disturbance (e.g. depression, anxiety), with the comment that she " ... sometimes gets frustrated with her disability." • In the assessor report, the general practitioner assessed minimal impacts to the appellant's cognitive and emotional functioning in 3 areas, namely emotion (e.g. excessive or inappropriate anxiety, depression, etc.), attention/concentration, and motor activity, with the comment "frustrated with her disability." There are no impacts assessed to the other 11 areas of functioning. • The general practitioner indicated that the appellant is not restricted with social functioning and independently manages all 5 listed aspects, including making appropriate social decisions, developing and maintaining relationships, interacting appropriately with others, dealing appropriately with unexpected demands, and securing assistance from others. She is assessed with good functioning in both her immediate and extended social networks. • In the letter dated February 14, 2013, the orthopedic surgeon wrote that the appellant suffers from schizencephaly and, as such, she has significant disability related, to a certain degree, to her mental function. She has been seen at the Mood and Anxiety Disorder Clinic. Daily Living Activities (DLA) • In the physician report, the general practitioner wrote that the appellant is " ... restricted with her activities; significant limit. It will not change." • The general practitioner reported that the appellant is periodically restricted with basic housework. All other DLA are marked as not restricted; however, meal preparation and mobility outside the home are also marked as periodically restricted. The comment in the appellant's handwriting is: " ... meal preparation-periodically needs help with cutting and chopping food occasionally" and " ... basic housework-takes longer to fold laundry." • In the assessor report, the appellant is assessed as independent with walking indoors and walking outdoors, 4 or more blocks unaided without the use of an assistive device. • The general practitioner reported that most listed tasks of the DLA personal care are performed independently without any noted restriction, although the appellant requires periodic assistance from another person with grooming. The note in the appellant's handwriting is: " ... needs help with hair-e.g. pony tail, straightening." • The appellant is assessed as requiring periodic assistance from another person with laundry and basic housekeeping, with no explanation or description provided. • For shopping, the general practitioner assessed the appellant as independent with most tasks, including going to and from stores, reading prices and labels, making appropriate choices, paying for purchases, while requiring periodic assistance with carrying purchases home. The comment in the appellant's handwriting is "possibly would need assistance carrying purchases home if they were too heavy" and in the general practitioner's handwriting : "needs help with carrying heavy stuff." • The general practitioner reported that the appellant is independent with most tasks of meals, but requires periodic assistance from another person with food preparation. The additional comment in the
I APPEAL# appellant's handwriting is: "I may need assistance when cooking, lifting heavy pots and pans out of the oven. 1 ' • All listed tasks for the DLA paying rent and bills, medications and transportation are managed independently with no noted restrictions. • The general practitioner assessed the appellant as being independent in all areas of social functioning. • In the February 14, 2013 letter, the orthopedic surgeon wrote that although the appellant can conduct the required tasks, " ... in assessing her ability for assistance she takes an inordinate length of time" which further compounds her overall level of disability. • In her self-report, the appellant wrote that she can take care of herself; however, she does periodically need assistance from family members and friends with certain things that she cannot do by herself without potentially hurting herself. Her lack of ability to use both hands fully has made her extremely cautious and careful of how she does things, particularly picking things up or moving things around . • Need for Help • The general practitioner reported that the appellant lives with family, friends or caregiver and does not use an assistive device. • The general practitioner indicated that the help required for DLA is provided by family. The comment in the appellant's handwriting is that her " ... mother and sister provide assistance whenever needed." In her Notice of Appeal, the appellant expressed her intention to dispute the reconsideration decision since she has a lifelong, permanent disability. Prior to the hearing, the appellant provided a checklist dated April 18, 2013 completed by the orthopedic surgeon who provided the previous letter of February 14,and included the following: • The physician agrees with the statement that the appellant suffers from severe conditions including cerebral palsy, depression, schizencephaly and anxiety, that these conditions will likely continue for at least 2 years. • The physician agrees with the statement that the appellant is directly and significantly restricted in her ability to perform DLA continuously or periodically and these restrictions include: -disproportionately small left hand and left calf that results in weakness, pain and loss of sensation; she must disproportionately rely on her right arm and her right leg; -basic mobility: she can walk between 1 and 2 blocks before she requires rest; if she goes farther, she will develop severe pain and weakness later on. She is unable to run very fast and quickly becomes short of breath. She walks with a permanent limp. -climbing stairs: she can climb up to 6 stairs but requires a railing. Any use of stairs will result in pain and tension in her legs and arms later. -lifting and carrying: she can lift 5 to 15 lbs., but is unable to lift beyond 5 lbs. with her left arm. She must be careful whenever lifting or carrying anything. She has great difficulty gripping. -communication: slurred speech, blindness in right eye, minor hearing loss -DLA that she is able to complete are frequently only completed in a lengthy time span and while suffering through weakness and pain • As a result of the noted restrictions, the following assistance is required: -dressing: takes significantly longer than an able person to dress herself -grooming: takes significantly longer and requires continuous assistance to perform specialty activities that require two hands, like curling hair. -laundry and basic housekeeping: requires periodic assistance to do laundry when she is especially weak or in pain. She will often suffer through weakness and pain to complete it. -shopping: she requires continuous assistance from others to drive her to and from the store and periodically requires a shopping cart when weakness develops. She requires a shopping cart to stand in line or will develop pain or weakness. She reauires assistance to carrv purchases home, such as a
IA PPEAL# jug of water or milk. -meals: she requires continuous assistance preparing meals. She requires others to place things in and out of the oven. She requires assistance with cooking or preparing foods that requires two hands. -medications: takes significantly longer to open medicine containers. -assistive devices: requires assistance from assistive devices that are not currently used, including a cane and grab bars. At the hearing, the appellant provided a second copy of the checklist dated April 18, 2013 from the orthopedic surgeon which was the same in all respects except under the restrictions for 'communication', the statement was crossed out for "blindness in right eye and minor hearing loss." The advocate explained that this entry was inadvertently left in from a template used that related to another client and subsequently crossed out. At the hearing, the appellant provided a checklist dated April 17, 2013 completed by the general practitioner who also completed the reports for the PWD application, and in the same format as the checklist from the • orthopedic surgeon. The general practitioner agreed with the assessment made by the orthopedic surgeon with a few exceptions. The general practitioner: • crossed out the reference to schizencephaly. • agreed with the statement that the appellant has drowsiness and restlessness as a result of only 4 to 5 hours of sleep per night because of anxiety. • agreed that sitting is restricted, that the appellant can sit for 1 to 2 hours before she gets restless and needs to stand up. • agreed that standing is restricted, that the appellant is unable to stand for longer than 1 hour and requires assistance from other objects to lean on. • crossed out the reference to restrictions with communication. • agreed with the statement that there are deficiencies in planning, organizing, and judgment, particularly around the appropriate activity with her impairment. She will frequently do more activity than is appropriate given her impairment and will suffer pain and weakness afterwards. • agreed with the statement that the appellant has isolation from anxiety. She will become uncomfortable and develop heavy sweats. It is exacerbated by large crowds. • agreed with the statement that the appellant has panic attacks from anxiety roughly twice per week and lasting 20 minutes. She develops heavy sweats, nausea, headaches, tension and stress. • agreed with the statement that the appellant has depression, largely as a result of her own impairments. • agreed with the statement that the appellant has loss of motivation to perform many DLA largely because of depression. • agreed with the statement that the appellant has restrictions with transportation, that she requires continuous assistance taking public transit and will frequently avoid it or get off because of anxiety. She frequently suffers through pain and weakness on the bus in order to avoid missing it and having to walk. • agreed that the appellant has restrictions with social functioning, that she requires continuous support in order to develop and maintain relationship and to secure assistance from others. • crossed out the statement of restriction with social functioning and a need for assistance to help perform DLA to get her more involved in the community. • crossed out the reference to the need for assistance from assistive devices. At the hearing, the appellant and her advocate provided the following oral evidence: • The advocate explained that the orthopedic surgeon did not address the statements in the April 18, 2013 letter which relate to a mental impairment as he has not treated the appellant for these conditions. • The qeneral practitioner crossed out 'schizencephaly' because this is a rare neurological disorder and
I APPEAL# the general practitioner attributes her symptoms to cerebral palsy but the specialist has diagnosed this other condition as well, as set out in his letter dated February 14, 2013. The advocate stated that while there may be two medical opinions about the appellant's conditions, the impacts are the same. • The appellant has suffered with cerebral palsy since birth and this is a neurological disease that has severe impacts, both physical and mental. She has left-side hemiparesis so that her left side is significantly weaker and she has a disproportionately smaller hand and calf. She walks with a permanent limp and experiences pain and, if she does too much, can also get shortness of breath. • The appellant was involved in a motor vehicle accident in 2002 and suffered a fractured pelvis and migraine headaches. • The appellant is strong-willed and proud and she has dealt with her condition throughout her life, she deals with things as best as she can and she is fortunate to have supportive people around her. Although her disability does not defeat her, it does restrict her. • The appellant has recently developed depression largely as a result of her impairments and she requires counseling. • The appellant has a hard time answering how much longer it takes her to perform a task because she has no basis of comparison. Is it longer than it takes one of her friends, or longer than it took her when she was younger? • The appellant takes longer than typical with many 2-handed activities, and she struggles and has burned herself, for example, when straightening her hair. She has difficulty folding laundry. She has to be careful and move slowly when lifting or doing things that require both hands. • The orthopedic surgeon agreed that the appellant requires a cane and grab bars as assistive devices. The appellant is not currently using them because she is young and strong-willed and does not want to be seen with aids, but that does not mean that she does not require them. • The appellant clarified that she filled in parts of the assessor and physician reports and her doctor added to her information. The appellant stated that she did not fill in the check marks in the physician report for the restrictions to DLA. • The appellant has been a patient of the orthopedic surgeon since the appellant was born but that last time she saw him was in 2006. She did not see him when the letter was completed, it was just sent to him and returned. • The advocate explained the change in the assessments from the PWD application to the additional letters provided as the misunderstanding of many physicians to the words used in the forms and to the questions. For example, the use of the word "independent" is seen as an ability to do an activity and the fact that the person can only do the activity with an assistive device, such as a wheelchair, is not taken into account. • The new information provides more detail to the previous reports and was completed by the advocate after a lengthy interview with the appellant. The ministry did not object to the admissibility of the additional checklists from the orthopedic surgeon or the • general practitioner. The panel admitted the checklists and the oral evidence, pursuant to Section 22(4) of the Employment and Assistance Act, as providing further detail relating to the appellant's medical conditions and being in support of information and records that were before the ministry on reconsideration. The panel found that while anxiety was not listed as part of the diagnoses by the general practitioner in the physician report, the general practitioner assessed a significant deficit in the area of emotional disturbance, which includes depression and excessive or inappropriate anxiety, and this was information before the ministry at reconsideration. At the hearing, the appellant's advocate provided a written argument. The ministry relied on its reconsideration decision.
I APPEAL# PART F Reasons for Panel Decision The issue on the appeal is whether the ministry's decision, that the appellant is not eligible for designation as a person with disabilities (PWD) as she does not meet all the criteria in Section 2 of the EAPWDA, was reasonably supported by the evidence or was a reasonable application of the applicable enactment in the circumstances of the appellant. The ministry found that the appellant does not have a severe mental or physical impairment and that her daily living activities (DLA) are not, 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, it could not be determined that the appellant requires the significant help or supervision of another person, the use of an assistive device, or the services of an assistance animal to perform DLA. The criteria for being designated as a person with disabilities (PWD) are set out in Section 2 of the EAPWDA as follows: Persons with disabilities 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. (4) The minister may rescind a designation under subsection (2). Section 2(1)(a) of the EAPWDR defines DLA for a person who has a severe physical or mental impairment as follows: Definitions for Act 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;
I APPEAL# (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. The panel considered each party's position regarding the reasonableness of the ministry's decision under the applicable PWD criteria at issue in this appeal. Severe Physical Impairment . The appellant's position is that a severe physical impairment is established by the evidence of her weakness, pain, and loss of sensation as a result of cerebral palsy and left hemiparesis. The advocate argued that the evidence from her physicians refer to the appellant's conditions as severe and that she is significantly disabled. The advocate further argued that the breadth and extent of the impacts identified by the physicians indicate that the impairments are severe. The advocate argued that when terms are not defined in the legislation, the Interpretation Act clarifies that every enactment must be construed as being remedial and must be given such fair, large and liberal construction and interpretation as best ensures the attainment of its objects. The ministry's position is that while it is recognized that the appellant has limitations as a result of cerebral palsy and hemiparesis, the ministry is not satisfied that the information provided is evidence of a severe physical impairment. The general practitioner indicated that the appellant is able to walk 4 or more blocks unaided and to climb 5 or more steps unaided, to lift 15 to 35 lbs., and has no limitations with remaining seated. The ministry argued that in terms of mobility and physical ability, the general practitioner reported that the appellant is independent in most areas, with a need for periodic assistance with standing and lifting and carrying and holding that has not been defined in terms of frequency and duration. Panel Decision The diagnosis of a medical condition is not itself determinative of a severe impairment. To assess the severity of an impairment one must consider the nature of the impairment and its impact on the appellant's daily functioning as evidenced by functional skill limitations and the restrictions to DLA. The ministry describes this approach well when it defines the word "impairment" in the physician report as being "a loss or abnormality of psychological, anatomical or ohysioloaical structure or function causina a restriction in the abilitv to function
I APPEAL# independently, effectively, appropriately or for a reasonable duration." This definition is not set out in legislation and is not binding on the panel, but in the panel's view it quite appropriately describes the legislative intent. The legislation clearly provides that the determination of severity of impairment is at the discretion of the minister, taking into account all of the evidence including that of the appellant. However, the legislation is also clear that the fundamental basis for the analysis is the evidence from a medical practitioner or prescribed professional respecting the nature of the impairment and its impact on daily functioning. The medical practitioner, the appellant's general practitioner of approximately 5 years, diagnosed the appellant with cerebral palsy and left hemiparesis and her orothopedic surgeon also diagnosed schizencephaly and confirmed, in his April 18, 2013 checklist, that it is likely to continue for 2 years or more. Both physicians : described these medical conditions as severe; however, in her self-report included with the PWD application, , the appellant described her cerebral palsy as mild. The general practitioner assessed the appellant in the ' PWD application as independent with walking indoors and walking outdoors and with climbing stairs. In his 1 February 14, 2013 letter, the orthopedic surgeon indicated that the appellant has significant disability related to primarily her motor function and this has rendered her significantly disabled through her left upper extremity and moderately disabled through her left lower extremity. Her disability affects her ability to ambulate freely. However, the appellant was assessed by the general practitioner as able to walk 4 or more blocks unaided and to climb 5 or more steps unaided. In the recent checklists, the physicians agreed that the appellant can walk between 1 and 2 blocks before she requires a rest and if she goes farther, she will develop severe pain and weakness later on. The physicians agreed the appellant is unable to run very fast and quickly becomes short of breath. She can climb up to 6 stairs but requires a railing and any use of stairs will result in pain and tension in her legs and arms later. The general practitioner reported that the appellant does not require any aids for her impairment. While the orthopedic surgeon agreed with the statement, in the April 18, 2013 : checklist, that the appellant requires assistance from assistive devices that are not currently used, including a • cane and grab bars, this statement was specifically crossed out by the appellant's family physician of 5 years. In the assessor report, the general practitioner assessed the appellant as requiring periodic assistance from another person with standing and with lifting and carrying and holding. Comments in the general practitioner's handwriting are: " ... difficulty standing if prolonged" and " ... problem with left hand lifting and carrying." In the checklist, the orthopedic surgeon agreed with the statement that the appellant is unable to stand for longer than 1 hour and requires assistance from objects to lean on. In her self-report, the appellant wrote that she can take care of herself; however, she periodically needs assistance from family members and friends with certain things that she cannot do by herself without potentially hurting herself. The appellant stated that her lack of ability to use both hands fully has made her cautious, particularly picking things up or moving things around. In the checklists, the physicians agreed with the statement that the appellant can lift 5 to 15 lbs. with her right arm, but is unable to lift beyond 5 lbs. with her left arm and she has great difficulty gripping with two hands. In his letter dated February 14, 2013, the orthopedic surgeon wrote that the appellant's disability affects her ability to stand for prolonged periods, and particularly to be avoided is lifting heavy objects. She is strongly right hand dominant and her left hand purely serves as a helper hand. The panel finds that the evidence demonstrates that the appellant is independent with her mobility, that she is capable of running slowly, and has moderate limitations with her physical abilities, requiring periodic assistance for heavier lifting requiring the use of two hands, and with standing longer than 1 hour. The panel finds that the ministry's determination that the evidence does not establish that the appellant has a severe physical impairment as required under Section 2(2) of the EAPWDA was reasonable. Severe Mental Impairment The appellant's position is that a severe mental impairment is established by the physicians' evidence of a sianificant coanitive and emotional function deficit which has several impacts on the aooellant's daily
IA PPEAL#: functioning as a result of her adjustment disorder, depressed mood and anxiety. The ministry's position is that the general practitioner identified one significant deficit in cognitive and emotional functioning in the area of emotional disturbance with the explanation that the appellant sometimes gets frustrated with her disability. The ministry argued that the general practitioner indicated that the impacts are minimal to emotion, attention/concentration and motor activity, with no impacts to the remainder of the appellant's cognitive and emotional functioning. The ministry argued that the information provided by the general practitioner is not sufficient to establish a severe mental impairment. Panel Decision In the physician report, the general practitioner diagnosed the appellant with adjustment disorder and depressed mood and wrote that the appellant " ... recently developed depressed mood related to her disability and requires counseling. " There is one significant deficit reported in the appellant's cognitive and emotional . functioning in the area of emotional disturbance (e.g. depression, anxiety), with the comment by the general · practitioner that the appellant " ... sometimes gets frustrated with her disability." In the checklists, the physicians agree with the statement that the appellant also suffers from anxiety and that this condition will likely continue for at least 2 years. In the assessor report, the general practitioner assessed minimal impacts to the appellant's cognitive and emotional functioning in 3 areas, namely emotion (e.g. excessive or inappropriate anxiety, depression, etc.), attention/concentration, and motor activity, with the comment "frustrated with her disability." However, there were no impacts assessed to the other 11 areas of functioning, including the areas of executive (e.g. planning, organizing, sequencing, abstract thinking, problem-solving, calculations), rnotivation (e.g. lack of initiative, loss of interest) and insight and judgment. In the checklist dated April 17, 2013, the general practitioner agreed with statements that the appellant has deficiencies in planning, organizing, and judgment as well as a loss of motivation to perform many DLA largely because of depression. The general practitioner agreed with the statements that the appellant has isolation from anxiety, she will become uncomfortable and develop heavy sweats and this is exacerbated by large crowds. The appellant has panic attacks from anxiety roughly twice per week and lasting 20 minutes, in which she develops heavy sweats, nausea, headaches, tension and stress. The general practitioner agreed with the statement that that the appellant requires continuous assistance taking public transit and will frequently avoid it or get off because of anxiety. The general practitioner agreed with the statement that the appellant has restrictions with social functioning, that she requires continuous support in order to develop and maintain relationship and to secure assistance from others. The panel placed more weight on the original assessment by the general practitioner where it was inconsistent with the new information in the checklist, as the general practitioner has not provided an explanation for her change in assessment from independent to a need for continuous assistance or support. As well, the original assessment was based on the general practitioner's professional medical interview of the appellant, a home assessment and a review of the appellant's chart, whereas the information in the April 17, 2013 checklist was based solely on the advocate's interview of the appellant. The panel finds that the information regarding the appellant's ability to function in terms of specific daily tasks does not reflect a severe impairment of mental functioning. In particular, the general practitioner indicated in the assessor report that the appellant has good social functioning, including good functioning with both her immediate and extended social networks, and that the appellant independently manages all other listed ''mental" tasks of daily living, including no restrictions with making appropriate choices and paying for purchases when shopping, as well as managing her finances, medications and transportation. The panel finds that the ministry reasonably determined that a severe mental impairment was not established under Section 2(2) of the EAPWDA.
IA PPEAL#. ---Restrictions in the ability to perform DLA The appellant's position is that her physical and mental impairments directly and significantly restrict her ability to perform DLA and she requires the assistance of another person or it takes her significantly longer than typical to perform many DLA. The advocate argued that the restrictions occur continuously or periodically and include: basic mobility, climbing stairs, lifting and carrying, sitting, standing, gripping, emotional control, motivation, isolation, poor judgment, personal self-care, shopping, basic housekeeping, food preparation, cooking, transportation, and social functioning. The ministry's position is that the evidence of the general practitioner indicated that the appellant requires periodic assistance with meal preparation, basic housework, and mobility outside the home and that the appellant gets help from another person "when needed" with no information provided on how often or the duration of assistance required. The ministry argued that the general practitioner indicted that the appellant has no restrictions with her ability to perform the remainder of her DLA. The ministry argued that the general practitioner reported that the appellant is independent in the majority of her DLA and there was no indication that the appellant takes significantly longer to perform them. The ministry argued that although the orthopedic · surgeon wrote that the appellant takes an inordinate length of time to perform required tasks, more weight was placed on the evidence of the appellant's family physician of 5 years which did not indicate that the appellant · takes longer to perform any of her DLA. Panel Decision The general practitioner wrote in the physician report that the appellant is " ... restricted with her activities; significant limit. It will not change." However, in the physician report, the general practitioner indicated that the appellant is periodically restricted with basic housework and all other DLA are marked as not restricted. The comment added in the appellant's handwriting is: " ... basic housework-takes longer to fold laundry." In the assessor report, the appellant is assessed as requiring periodic assistance from another person with laundry and basic housekeeping, with no explanation or description provided. In the checklists, the physicians agreed with the statement that the appellant requires periodic assistance to do laundry when she is especially weak or in pain, and the panel finds that the evidence does not clarify the frequency or the duration of the assistance required with this DLA. In the physician report, as well as being marked as not restricted, meal preparation and mobility outside the home are also marked as periodically restricted and the comment added in the appellant's handwriting is: " ... meal preparation-periodically needs help with cutting and chopping food occasionally." In the assessor report, the general practitioner reported that the appellant is independent with most tasks of meals, but requires periodic assistance from another person with food preparation. The additional comment in the appellant's handwriting is: " ... I may need assistance when cooking, lifting heavy pots and pans out of the oven." In the checklists from the general practitioner and the orthopedic surgeon, the physicians agreed with the statement that the appellant requires continuous assistance preparing meals as she requires assistance with cooking or preparing foods that require two hands. For mobility outside the home, the general practitioner assessed the appellant in the PWD application as independent with walking indoors and walking outdoors 4 or more blocks unaided, without the use of an assistive device. In the assessor report, the general practitioner reported that most listed tasks of the DLA personal care are performed independently without any noted restriction, although the appellant requires periodic assistance from another person with grooming. The note in the appellant's handwriting is: " ... needs help with hair-e.g. pony tail, straightening." In the checklists, the physicians agreed that grooming takes significantly longer and requires continuous assistance to perform specialty activities that require two hands, and the appellant takes significantly longer than an able person to dress herself. Forsho
IA PPEAL# to and from stores, reading prices and labels, making appropriate choices, paying for purchases, while requiring periodic assistance with carrying purchases home. The comment in the appellant's handwriting is " ... possibly would need assistance carrying purchases home if they were too heavy" and in the general practitioner's handwriting : "needs help with carrying heavy stuff." In the checklists, the physicians agreed with the statement that the appellant requires continuous assistance from others to drive her to and from the store and she requires assistance to "carry purchases home, such as a jug of water or milk." The panel finds that a need for assistance is defined as being for heavier loads, as specified by the general practitioner. The general practitioner reported in the assessor report that all listed tasks for the DLA paying rent and bills, medications and transportation are managed independently with no noted restrictions. In the checklists, the physicians agreed with the statement that it takes the appellant significantly longer to open medicine containers. The general practitioner agreed with the statement that the appellant has restrictions with transportation, that she requires continuous assistance taking public transit and will frequently avoid it or get off because of anxiety. While the general practitioner also agreed that the appellant has restrictions with social , functioning, that she requires continuous support in order to develop and maintain relationship and to secure : assistance from others, the panel placed less weight on this evidence which is inconsistent with the original ' assessment in the absence of an explanation by the general practitioner for a marked change in her assessment. For those DLA relating to a person with a severe mental impairment, the general practitioner reported in the PWD application that the appellant is independent with making appropriate social decisions and with interacting appropriately with others and she has good functioning with both her immediate and extended social networks. The general practitioner reported that the appellant has no difficulties with communication and has a good ability to communicate in all areas. In the checklist, the general practitioner crossed out the reference to restrictions with communication. : The advocate argued that both physicians agreed with the statement in the checklists that it takes the · appellant "a lengthy time span" to complete her DLA and that the orthopedic surgeon wrote in his February 14, , 2013 letter, that although the appellant can conduct the required tasks, " ... in assessing her ability for . assistance she takes an inordinate length of time." In her self-report with the PWD application, the appellant wrote that she can take care of herself; however, she periodically needs assistance from family members and friends with certain things that she cannot do by herself without potentially hurting herself, that her lack of ability to use both hands fully has made her extremely cautious, particularly picking things up or moving things around. The panel finds that the evidence shows a few specific tasks of DLA which require the use of two hands take the appellant significantly longer but that, overall, the majority of the tasks of DLA are performed by the appellant independently without the need for assistance that is either continuous or periodic for extended periods of time. The panel concludes that the noted restrictions in the appellant's ability to perform some aspects of some DLA were reasonably viewed by the ministry as not constituting a direct and significant restriction of the appellant's ability to perform DLA in the opinion of a prescribed professional thereby not • satisfying the legislative criterion of Section 2(2)(b)(i) of the EAPWDA. Help to perform DLA The appellant's position is that she requires the significant assistance of another person to perform DLA and the use of a cane and grab bars as assistive devices. The ministry's position is that because it has not been established that DLA are significantly restricted, it cannot be determined that significant help is required from other persons, and no assistive devices are required.
I APPEAL# Panel Decision Section 2(2)(b)(ii) of the EAPWDA requires that, as a result of direct and significant restrictions in the ability to perform DLA, a person requires help to perform those activities. Help is defined in subsection (3) as the requirement for an assistive device or the significant help or supervision of another person or the services of an assistance animal in order to perform a DLA. The general practitioner indicated that the appellant lives with family, friends or a caregiver and that her mother and sister help her "whenever needed." While the orthopedic surgeon agreed with the statement that the appellant requires the use of a cane and grab bars as assistive devices, the appellant stated that she was last seen by the orthopedic surgeon in 2006. The general practitioner has seen the appellant 2 to 10 times in the previous year and specifically crossed out this statement in the checklist. The panel also finds that the ministry . reasonably determined that, as direct and significant restrictions in the appellant's ability to perform DLA have : not been established, it cannot be determined that the appellant requires help to perform DLA as a result of those restrictions. Conclusion Having reviewed and considered all of the evidence and relevant legislation, the panel finds that the ministry's reconsideration decision which determined that the appellant was not eligible for PWD designation was reasonably supported by the evidence, and therefore confirms the decision.
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