I APPEAL# PART C Decision under Appeal The decision under appeal is the Ministry of Social Development and Social Innovation (the ministry) reconsideration decision dated October 11, 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 his 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 -Summarv of Facts The appellant did not attend the hearing. After confirming that the appellant was notified, the hearing proceeded under Section 86(b) of the Employment and Assistance Regulation. The evidence before the ministry at the time of the reconsideration decision included the Person With Disabilities (PWD) Application comprised of the applicant information and self-report dated April 19, 2013, a physician report (PR) and an assessor report (AR) both dated April 23, 2013 and completed by the appellant's family physician who has known him 6 years, as well as the following documents: 1) Emergency Discharge Summary dated July 25, 2013; and, 2) Request for Reconsideration-Reasons dated September 11, 2013. Diagnoses The appellant has been diagnosed by his general practitioner with back strain-moving job (2000), right carpel tunnel surgery (2009), COPD [chronic obstructive pulmonary disease] (2005), chronic rhinitis (2000), and DOA [degenerative osteoarthritis] in both thumbs and small joints of hands (1993). Physical Impairment • In the health history in the PR, the general practitioner wrote that the appellant has "multiple medical problems that have slowed his mobility and reduced the function of his hands and back." • The general practitioner reported in the PR that the appellant has not been prescribed any medication and/or treatments that interfere with his ability to perform his daily living activities (DLA) and does not require a prosthesis or aid for his impairment. • In terms of the degree and course of impairment, the general practitioner commented that the appellant: "has a chronic lung problem made worse by smoking (not quit yet); back and hand problems appear to be chronic problem." • Functional skills reported in the PR indicated that the appellant can walk 4 or more blocks unaided on a flat surface, climb 2 to 5 steps unaided, lift 7 to 16 kg. (15 to 35 lbs.) and remain seated for 2 to 3 hours. • In response to a request in the AR to describe the appellant's impairments that impact his ability to manage DLA, the general practitioner wrote that the appellant "has slowed down due to his back injury and his right carpel tunnel and progressive arthritis in his hands and thumbs. He has COPD requiring puffers and needs meds for insomnia." • In the AR, the general practitioner assessed the appellant as taking significantly longer than typical with walking indoors, walking outdoors, and climbing stairs, with no further comment. The appellant is independent with standing. • For lifting and carrying and holding, the general practitioner assessed the appellant as requiring continuous assistance from another person and noted: "no more than 35 lbs., limits his carrying." • In his self-report, the appellant wrote that he hurt his back in 2000 and there is recurring pain. The operation for carpel tunnel 4 years ago was no help and he has constant pain in his right arm. He has COPD and is having a harder and harder time breathing. It is very difficult for him to climb stairs anytime and he can walk 3 to 4 blocks. He has a lot of trouble sleepinq and
I APPEAL Ii he takes medications for all of these conditions. • In his Request for Reconsideration, the appellant wrote that when his doctor was asking him questions, he was not exactly sure what he meant. For example, when the doctor asked how much he could lift, he answered 35 lbs. but he did not know it also meant to carry because he is sure that he would not be able to carry anything over 10 lbs. very far. • The appellant wrote that he was assaulted in July 2013 and hit in the back of the head when his bicycle was stolen, waking up in hospital. Since the assault, his health "has gone downhill considerably." He has a "major headache" constantly, dizzy spells when he stands or walks. He often can only walk a short distance (20 to 30 feet) and he has to stop until the dizziness subsides. He also has blurred vision. The appellant wrote that he can no longer sit more than half an hour. • The appellant wrote that he discussed these issues with his doctor who seemed understanding but did not check him out so he is "going to seek out a specialist and check all this out." • The Emergency Discharge Summary dated July 25, 2013, states in part that the appellant was admitted to hospital on July 25, 2013 with a head injury, that the primary discharge diagnosis was contusion scalp, the secondary diagnosis was recreational drug intoxication NOS [not otherwise specified], and the disposition was "unknown at report time." • The comment by the care provider on the Emergency Discharge Summary states that the appellant was found down by city worker who heard a thud. "Supposed assault and motorbike was stolen. Had helmet on, cracked at back with blood. Decreased LOC [loss of consciousness], AVSS [afebrile, vital signs stable]. CT head and neck was normal." Mental Impairment • In the PR, the general practitioner reported significant deficits with cognitive and emotional function in the areas of executive, memory, emotional disturbance, motivation, and motor activity, with a comment added that the appellant did not finish high school, that he left home and worked. • The general practitioner indicated that the appellant does not have difficulties with communication and, in the AR, that the appellant has a satisfactory ability to communicate in all areas. • In the AR, the general practitioner assessed no major impacts, with moderate impacts to cognitive and emotional functioning in the areas of bodily functions, memory, and motivation. Minimal impacts are assessed for emotion, executive, motor activity and other neuropsychological problems. The general practitioner commented that the appellant " ... has several symptoms of depression and limited functioning to complete his AOL's because of his physical problems; back pain, moderately severe COPD and right carpel tunnel syndrome. He has severe sleep disturbance for which he takes medication. His memory is failing." • The general practitioner assessed the appellant as independent in all areas of social functioning, including making appropriate social decisions, developing and maintaining relationships, interacting appropriately with others, dealing appropriately with unexpected demands, and securing assistance from others. The appellant has good functioning in both his immediate and extended social networks. • In his Request for Reconsideration, the appellant wrote that he is not a "transit person", that he feels he cannot handle a lot of people in a closed space. He has anxiety attacks and he has to get off.
I APPEAL# Daily Living Activities (DLA) • In the health history of the PR, the general practitioner wrote that it takes the appellant longer to shop and he needs help to carry groceries home. When his carpel tunnel pain is severe, he is unable to cook his meals in the usual time. He cleans his own room except when his back pain is severe. He is able to do his own laundry. He is able to slowly and carefully shower on his own. • The general practitioner also commented in the PR that the appellant "seems to have misunderstood most of the questions posed to him in this section ... he is reluctant to admit or understand that his physical problems (COPD, progressive arthritis, right carpel tunnel despite surgery) have severely limited his ability to complete his AOL's. This quiet man has minimized his medical problems, perhaps because he believes that this will qualify him for disability." • In the additional comments to the PR, the general practitioner added that the appellant "is isolating himself and he does not consider asking for help to do his AOL's which are very poorly completed at the present time. He does take medication for all his medical problems but his ability to manage is deteriorating progressively. He needs more help and supervision to complete his AOL's in a reasonable time and in an efficient manner at present time." • In the AR, the general practitioner assessed the appellant as independent with 4 of 8 tasks of the DLA personal care, taking significantly longer than typical with grooming and transfers in/out of bed and on/off of chair, and requiring periodic assistance from another person with regulating his diet (note: "weight loss, needs high calorie diet"). • The appellant is assessed as taking significantly longer than typical with doing his laundry and basic housekeeping, with no explanation or description provided by the general practitioner. • For shopping, the general practitioner assessed the appellant as independent with paying for purchases, taking significantly longer than typical with going to and from stores, requiring periodic assistance from another person with making appropriate choices and continuous assistance from another person with 2 tasks, namely reading prices and labels and carrying purchases home (note: "35 lbs. to carry home"). The general practitioner did not provide further comment. • The general practitioner indicated that the appellant is independent with 2 of 4 tasks of the DLA meals, namely cooking and safe storage of food, while requiring periodic assistance from another person with food preparation and continuous assistance with meal planning (note:"eats out"). • The appellant is assessed as independent with banking and requires continuous assistance from another person with budgeting and paying rent and bills (note: "direct payment"). • The general practitioner assessed the appellant as independent with all tasks of the DLA medications, and as taking significantly longer than typical with the DLA transportation. Need for Help • In the reports included in the PWD application, the general practitioner indicated that the appellant does not require an aid for his impairment but commented in the AR that the appellant occasionally uses a cane "if he is feeling weak." • The general practitioner indicated in the AR that the appellant lives alone and no help is available for DLA, with a comment that the appellant "is very independent and refuses to ask for help but ii is taking him longer to do his ADL." The general practitioner responded to the reauest to describe assistance necessarv where helo is not available by commentina "he
I APPEAL# would be forced to get his ex-wife to help him." • In his Request for Reconsideration, the appellant wrote that he has help around his place from his ex-girlfriend, who helps him clean, shop, take care of bills, etc. The appellant wrote that without her help, he would need someone to come in. In his Notice of Appeal, the appellant expressed his disagreement with the reconsideration decision. The appellant wrote that, with the added information he provided, he believes that that the ministry did not take into account that his abilities and lifestyle has changed largely since his doctor's report. His recent head injury has made very many changes in his life and ability to do the things he was previously capable of doing. At the hearing, the ministry provided a copy of the Emergency Discharge Summary dated July 25, 2013 which did not appear in the Appeal Record. The panel admitted the document as part of the information and records that were before the ministry when the decision being appealed was made, pursuant to Section 22(4) of the Employment and Assistance Act. 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 reconsideration decision, which found the appellant is not eligible for designation as a person with disabilities (PWD), 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 his 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, ii 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;
I APPEAL# (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. Severe Physical Impairment The appellant's position, as reflected in the Request for Reconsideration and his written Notice of Appeal, is that a severe physical impairment is established by the evidence of his pain due to his back injury, carpel tunnel in his right arm, and osteoarthritis in both thumbs and the small joints of his hands, as well as shortness of breath due to COPD. The appellant also submitted that his health "has gone downhill considerably" since he suffered a head injury as the result of an assault on July 25, 2013. The appellant wrote that he has a "major headache" constantly, dizzy spells when he stands or walks and he often can only walk a short distance (20 to 30 feet) and he has to stop until the dizziness subsides. The appellant wrote that he can no longer sit more than half an hour. The ministry's position is that a severe physical impairment has not been established by the information provided by the general practitioner. The ministry argued that the general practitioner indicated that the appellant is able to walk 4 or more blocks unaided, climb 2 to 5 steps unaided, that he can lift between 15 and 35 lbs. and remain seated for 2 to 3 hours. The ministry argued that, in terms of mobility and physical ability, the general practitioner indicated that the appellant takes significantly longer than typical with walking indoors and outdoors, and climbing stairs, but how much longer has not been reported. The ministry pointed out that although the general practitioner indicated that the appellant requires continuous assistance with lifting, and carrying and holding, the appellant is also assessed with being able to lift 35 lbs. and argued that it is unclear why the appellant requires continuous assistance. 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 ability to manage his DLA as evidenced by functional skill limitations, the restrictions to DLA, and the degree of independence in performing 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 physiological structure or function causing a restriction in the ability to function 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, takin into account all of the evidence includin that of the appellant. However, the
I APPEAL# legislation is also clear that the fundamental basis for the analysis is the evidence from a prescribed professional respecting the nature of the impairment and its impact on daily functioning. The medical practitioner, the appellant's general practitioner of 6 years, diagnosed the appellant with back strain, right carpel tunnel pain, COPD, chronic rhinitis, and DOA in both thumbs and small joints of his hands. The general practitioner commented in the health history that the appellant has "multiple medical problems that have slowed his mobility and reduced the function of his hands and back." Functional skills reported in the PR indicated that the appellant can walk 4 or more blocks unaided on a flat surface, climb 2 to 5 steps unaided, lift 7 to 16 kg. (15 to 35 lbs.) and remain seated for 2 to 3 hours. With his COPD, the appellant wrote in his self-report that he is having a harder and harder time breathing and ii is very difficult for him to climb stairs and he can walk 3 to 4 blocks. In the AR, the general practitioner assessed the appellant as taking significantly longer than typical with walking indoors, walking outdoors, and climbing stairs, with no further comment to indicate how much longer it takes the appellant. The general practitioner indicated that the appellant uses a cane "if he is feeling weak," but there is no indication how often this occurs. The appellant is independent with standing. For lifting and carrying and holding, the general practitioner assessed the appellant as requiring continuous assistance from another person and noted: "no more than 35 lbs., limits his carrying." In his Request for Reconsideration, the appellant wrote that when his doctor was asking him questions, he was not exactly sure what the doctor meant. For example, when the doctor asked how much he could lift, he answered 35 lbs. but he did not know ii also meant to carry because he is sure that he could not carry more than10 lbs. As the carpel tunnel impacts the appellant's right arm, the panel finds it is not clear, without further detail, whether the restriction with carrying is with both arms. The appellant stated in his Request for Reconsideration that his health "has gone downhill considerably" since the assault on July 25, 2013, when he says he sustained a head injury. He has a "major headache" constantly, dizzy spells when he stands or walks, that he often can only walk a short distance (20 to 30 feet) and he has to stop until the dizziness subsides, and he can no longer sit more than half an hour. The Emergency Discharge Summary states in part that the primary discharge diagnosis was a contusion on the appellant's scalp and the disposition was "unknown at report lime" but that the CT scan of his head and neck was normal. The appellant wrote that he discussed these issues with his doctor who did not check him out so he is "going to seek out a specialist and check all this out." No additional information was provided by the appellant prior to the hearing. In response to a request in the AR to describe the appellant's impairments that impact his ability to manage DLA, the general practitioner wrote that the appellant "has slowed down due to his back injury and his right carpel tunnel and progressive arthritis in his hands and thumbs. He has COPD requiring puffers and needs meds for insomnia." The panel finds that the evidence demonstrates that the appellant takes longer to perform his mobility and physical ability within his moderate degree of functional skill limitations and the evidence of the impact of the appellant's recent head injury is inconclusive without further in the way of medical information. Considering the evidence provided by the general practitioner together with that of the appellant, the panel finds that the ministry reasonably determined that the appellant's level of independent physical functioning does not establish that the appellant has a severe physical impairment under section 2(2) of the EAPWDA.
I APPEAL# Severe Mental Impairment The appellant did not advance a position that he has a severe mental impairment. However, he wrote that he cannot handle a lot of people in a closed space and he has anxiety attacks on public transit. The ministry's position is that a severe mental impairment has not been established by the information provided. The ministry argued that the while the general practitioner indicated that the appellant has significant deficits with cognitive and emotional functioning in the areas of emotional disturbance, motivation, motor activity, memory and executive, in assessing the impacts on daily functioning the general practitioner indicated that the appellant's impairment has a moderate, minimal to no impact. The ministry pointed out that although the general practitioner reported that the appellant isolates and does not ask for help with his AOL's which are very poorly completed, as the assessor the general practitioner indicated that the appellant is independent with all his social functioning and he has good functioning in his immediate and extended social networks. Panel Decision The general practitioner did not diagnose the appellant with a mental disorder but wrote in the AR that the appellant " ... has several symptoms of depression." In the PR, the general practitioner reported significant deficits with cognitive and emotional function in the areas of executive, memory, emotional disturbance, motivation, and motor activity, with a comment added that the appellant did not finish high school, that he left home and worked. However, in the AR the general practitioner assessed no major impacts to cognitive and emotional functioning, with moderate impacts in the areas of bodily functions, memory, and motivation. The general practitioner assessed minimal or no impact to the remaining 9 areas of cognitive and emotional functioning. Comments added by the general practitioner included that the appellant has severe sleep disturbance for which he takes medication and his memory is "failing." The general practitioner indicated that the appellant does not have difficulties with communication and has a satisfactory ability to communicate in all areas. In the additional comments to the PR, the general practitioner commented that the appellant is "isolating;" however, the general practitioner also assessed the appellant as independent in all areas of social functioning, with good functioning in both his immediate and extended social networks. Given that there was no diagnosis of a mental disorder and the little evidence of impact to the appellant's cognitive and emotional and social functioning, the panel finds that the ministry reasonably determined that the information provided did not establish a severe mental impairment under section 2(2) of the EAPWDA. Restrictions in the ability to perform DLA The appellant's position is that his physical impairment directly and significantly restricts his ability to perform DLA on an ongoing basis to the extent that he requires the significant assistance of another person. The ministry's position is that the information from the prescribed professional does not establish that impairment significantly restricts the appellant's DLA either continuously or periodically for extended periods. The ministry pointed out that the general practitioner commented that the appellant has difficulties asking for help and that the general practitioner had difficulty assessing the appellant's abilit to man a e his DLA. The minist ar ued that the assessment of a need for continuous
IA PPEAL# assistance for several tasks of DLA is not consistent with other information provided by the general practitioner so that the degree of assistance is not clear. For example, continuous assistance is indicated for reading prices and labels while shopping although the general practitioner reported that the appellant has no difficulty with communication and is rated satisfactory in his ability to read, write, speak and hear. Panel Decision The evidence of the appellant's general practitioner of 6 years is that the appellant takes significantly longer than typical with walking indoors and walking outdoors and that he can walk 4 or more blocks unaided, using a cane only "if he feels weak." Under health history in the PR, the general practitioner wrote that it takes the appellant longer to shop and he needs help to carry groceries home. In the AR, for the DLA shopping the general practitioner assessed the appellant as independent with paying for purchases, taking significantly longer going to and from stores, requiring periodic assistance for making appropriate choices and continuous assistance with reading prices and labels and with carrying purchases home. The panel finds that the ministry reasonably determined that an assessment of a need for continuous assistance with these tasks is not consistent with the other assessment of a satisfactory ability to read and an ability to lift up to 35 lbs., with no other explanation for the requirement. In the PR, the general practitioner wrote that the appellant is unable to cook his meals in the usual time when his carpel tunnel pain is severe. However, in the AR the appellant is assessed as being independent with cooking and safe storage of food, and as requiring continuous assistance from another person with meal planning and periodic assistance with food preparation, without an explanation of how often or how long the appellant requires assistance. In the PR, the general practitioner wrote that the appellant cleans his own room except when his back pain is severe, and he is able to do his own laundry. In the AR, the general practitioner assessed the appellant as taking significantly longer than typical with doing his laundry and basic housekeeping, with no narrative to describe how much longer it takes him. In the PR, the general practitioner wrote that the appellant is able to slowly and carefully shower on his own. In the AR, the appellant is assessed as independent with bathing, toileting, feeding self and dressing, while taking significantly longer than typical with grooming, and with transfers in/out of bed and on/off of chair. Although the appellant is assessed as requiring continuous assistance from another person with regulating his diet, the note by the general practitioner "weight loss, needs high calorie diet", does not correspond with the note in the form, which indicates that this task refers to issues relating to eating disorders characterized by major disturbances in eating behaviour. The general practitioner assessed the appellant as independent with managing his DLA medications and taking significantly longer than typical with managing DLA transportation. For paying rent and bills, the appellant is assessed as independent with banking and requiring continuous assistance from another person with budgeting and paying rent and bills. In the additional comments to the PR, the general practitioner added that the appellant " ... is isolating himself and he does not consider asking for help to do his AOL's which are very poorly completed at the present time. He does take medication for all his medical problems but his ability to manage is deteriorating progressively." However, for those DLA which relate to a mental impairment, the appellant is assessed in the AR as independent with making appropriate social decisions and with relating to, communicating and interacting with others, as well as with securing assistance from others.
I APPEAL# The panel finds that the evidence demonstrates that the appellant has a number of medical problems which have slowed his ability to complete several tasks of DLA, although how much longer it takes the appellant or how often he has a need for periodic assistance has not been defined. The appellant has been assessed with requiring continuous assistance with a few tasks of the DLA shopping, meals and finances; however, the assessment with some of these tasks is not entirely consistent with other information provided in the PWD application. Although the appellant wrote that his health has deteriorated since his head injury, there was no further information provided from a prescribed professional to detail these impacts. Without a more consistent and detailed picture of how the appellant's medical conditions restrict his daily functioning, the panel finds that the ministry reasonably concluded that there is not enough evidence currently available from the prescribed professional to establish that the appellant's impairment significantly restricts his ability to manage his DLA either continuously or periodically for extended periods, thereby not satisfying the legislative criterion of section 2(2)(b )(i) of the EAPWDA. Help to petiarm DLA The appellant's position is that he requires the significant assistance of another person to perform DLA, and the use of a cane as an assistive device. 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. The ministry argued that the general practitioner indicated that the appellant requires the occasional use of a cane and that no assistance animal is required. 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, the significant help or supervision of another person, or the services of an assistance animal in order to perform a DLA. The evidence of the prescribed professional in the AR is that the appellant lives alone and that no help is available for DLA, with a comment by the general practitioner that the appellant "is very independent and refuses to ask for help but it is taking him longer to do his AOL." However, the appellant wrote in his Request for Reconsideration that his ex-girlfriend helps him to clean, shop, and take care of bills. The general practitioner indicated that the appellant occasionally uses a cane "if he is feeling weak," with no detail provided regarding the frequency. The panel 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, as defined by section 2(3)(b) of the EAPWDA. 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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