PART C -D ecision unde r Appe al T he dec i sion un d er app e al is th e Mini s tr y o f S o c ial De velo reconsi derat ion d ecision da t ed March 25, 2014 w hic h foun statuto ry requ i rements of Sect io n 2 of the E m pl o yment a des i gna ti on as a pers on wit h di s abil iti e s (PWD ) . The minis a nd that she has a severe mental, tho u g h not a se vere physi tw o y ears. Howeve r , the mi n ist ry w a s no t sat isfied t hat th • the a ppell a nt's daily l ivi n g act i v i t ie s ( DLA) a re , in the si gni ficantly restri ct ed eithe r c o nti n uo u sl y o r p er iodicall • as a resu lt o f t he se restr ic t ions, t he ap pell ant requi pe rson, the u se of a n assi st i v e de vi c e, o r the servi PART D -Relev an t Legis l a t i on E mplo y ment a nd Assi stanc e f or Persons with Disab i l i ti e s E mplo y ment a nd Assi stanc e to r Persons with Disabil i ties pmen t an d So ci al Inn o va t io n (" th e mi nistr y ") d tha t the appella nt d id not meet two of the fiv e nd Assis tance tor Person s w ith Disabi lit i es Act f or try foun d that the appellant met th e a g e r e quir e men t cal impair me nt t h at is like ly to c o n ti n ue fo r at l e as t e evidence estab li shes that : o p i nion o f a p r escrib ed p r ofessi onal, directly a nd y for ext ended periods; and, r e s the s ig nificant hel p or superv ision of anot her ces of an as sista nce animal to perf o r m DLA. A ct (EAPWDA), S ectio n 2 R egulation ( EAPW DR), Sect ion 2
PA R T E -Summ a rv of Facts Th e e vide nce be fo re t he m in is t ry at the t im e o f the reco nsidera D isabil ities (P WD) Appli catio n comp rise d of t he appli cant 2 01 3, a p hy s icia n repor t ( PR) and a ss esso r report (A R) dat re spectiv ely and bo t h prepared by th e appellan t's g e nera al so includ e d th e appellant' s Request fo r Reconsidera t ion by the ap pell ant's p sychiatri st al so date d March 10, 2 0 14 Dia g n o s es The app ellant has b een diag nos ed by h er G P wi t h bipola goi t e r ( no d a te of o nset noted ). The di a gno si s of bipola r th e Ps y chiatris t Lett er . P hy sic al Impa irment • In response to the que s tio n as to whether t h e appel or more t h e G P c h ecks th e "yes " box and comm ent that t h e GP d o e s not speci ficall y refe r e n c e which c • Functional sk ills rep o rted in the PR indicated th at climb 5 or m o re s tep s , h e r limitation s i n lifti n g are u li m itation remaini ng seate d. • In the A R, the GP indic ate s t hat the appell ant's abil hearing are all good. • The GP furth e r indicat e d in the AR th at t h e a p pella clim bing s tairs , s t a nding a nd li ft in g. M ent a l Imp air ment • In the S R, t h e a p pella nt s t a te s t hat sh e has bipola i m p a ir m ent as a ffe cting her slee p, her mot ivatio n m o od s w in g s, anx ie t y, agit atio n and stre ss. • In the PR, the GP indic ate s in t h e healt h h istor y t m o od disorder especially if sh e is in a stressful environm close m o nitoring with respect to medic a tions an d • The GP furth er r e p o rt s in the PR that the appellant has signi function in the areas of memory, emotional disturbance, impulse control and motor activity and added the comment tha t the appellant "is generally well controlled but ex suicidal ideation and plans when disease is exacerbated. 20, 2012." The panel notes that the psychiatrist clarified in the Psychiatrist Letter that the last exacerbation in fact occur red i n 2 0 1 3. The appella communicatio n . • In the AR, the GP assessed major impacts to daily functionin emotional functioni ng: emotion, impulse control, insight and judgment and attention/concentration. Further, th e general practitioner n o te d moderate impact on language and minimal impact on exec memory, motivation, oth er neuropsychological problems and other GP found no impact in the areas of bodily functions or consciousn the appellant has "periodic impairment when in manic phase, esp. exacerbated ii placed in situation." • In the Psychiatrist Letter, the psychiatrist provides the opinion that the appellant "suffers from and persistent mental disorder , Bipolar Disorder." tio n decisio n inclu de d th e P e rson With in form ation and self-rep o r t ("SR " ) da t e d O ctobe r 7, e d Novembe r 19, 201 3 and No v embe r 20, 2013 l p ractit i on e r ( " G P" ). The e vide n ce b efore the ministry (RFR) dated M arch 10, 20 14 and a lett er prepared ("th e P sychiatrist Letter ' ') . r dis order wit h date of o nset as 1 986 an d mult i nodula r disorde r i s s h a r ed by th e appellan t's p sych i atri st in lan t 's impa i rmen t is l ikely to co nt i nue for two years s '' Th is is a per m an e n t d isa b il ity" bu t t h e panel n ote s ond ition t his r efe r s to. the appe llant c a n walk 4 o r more b loc ks unaided a nd n k n own a nd t h e a p pella nt is not ed as havin g no ity t o co mmunicate by sp eakin g, read ing, w r i tin g a nd nt is indepe n d ent wal k i ng ind o ors a nd out d oo rs, r ill ness with onset i n 1 986 . Sh e des cri bes her a nd org anizat ion an d that it c a u s e s h er t o experience hat the app ellant "s uffers se ve re exacerb ations of h er e n t" and that as a result the appellant "requires /or hospitalizations." ficant deficits with cognitive and emotional peri e nces severe dis ability with Has been well controlled. Last issue April nt is n oted i n the PR as hav ing no di ff i culti es with g in the following areas of cognitive and u tiv e, emotional or menta l problems. The ess. The GP further commented that a stressful a serious He goes on to describe the appellant's condition as
I "'" . "lifelong" and notes that it "constitutes a severe and persistent mental impairment." Daily Living Activities (DLA) • In the SR, the appellant says that she has some difficulty with DLA and states further that she has trouble with budgeting for groceries and she describes difficulty with social functioning, specifically with establishing and maintaining relationships with others. • The GP reported in the PR that the appellant has been prescribed two different medications that interfere with her ability to perform her DLA. • In the PR, the GP notes that the appellant is not restricted in any of her DLA other than social functioning for which she is periodically restricted. The GP describes the nature of this restriction as arising when the appellant is stressed and sleep deprived causing her to be unable to concentrate and results in her having morbid thoughts and plans. The GP comments further on the impact on the appellant's social functioning stating that the appellant is "unable to tolerate people when exacerbation of her disease, becomes agitated, suspicious" and she concludes by noting "if severe -requires hospitalization." • In the AR, the GP indicated that the appellant is independent with all tasks of the DLA including personal care, basic housekeeping, shopping, meals, paying rent and bills, medications and transportation. The appellant is also noted in the AR as being independent in all aspects of social functioning and with marginal functioning in both her immediate and extended social networks. • In the psychiatrist's letter, he describes the appellant as experiencing sedation due to her medications and that she is unable to function effectively until at least 8:30am when the effects of the nighttime medications begin to subside. Need for Help • In the SR, the appellant stated that she receives help from 'family, friends and professionals." She says that her mother helps her with grocery shopping, picking up medication, advice, moral support and driving her to doctor's appointments. She states further that her father provides financial support to her. • In the PR, the GP did not indicate that the appellant requires an assistive device. • The GP did not report in the AR what the appellant's living situation is nor did she indicate whether the appellant receives assistance from other people or through the use of assistive devices. In the RFR the appellant states that she is taking two types of medication which make her tired and that she can't function in a full time job. She notes that she finds it challenging concentrating for more than 1 hour and that she becomes sleepy in a job that requires sitting. She says that she has experienced a lot of stress in relationships with men and is unable to cope with stress. At the hearing, the appellant confirmed that she was diagnosed with bipolar disorder in 1986 and that she has a hard time socially and in other areas of her life. She stated that she has difficulty following through with things from beginning to end and that she does not sleep properly which in turn causes her to have difficulty functioning during the day. The appellant stated that her medications make her tired, that she is tired throughout the day and particularly after 2pm. In response to questions, the appellant stated that she has difficulties with social functioning and in particular has problems keeping friends especially when they tell her what to do which she has a low tolerance for. The appellant stated that she sometimes has trouble focusing while reading and had to recently drop out of a course. The appellant stated that she has difficulty with impulse control as she will purchase items that she wants but does not need. The appellant stated that the worst thing that happens on a daily basis is that she tends to lose her temper rather than trvinQ to work thinQs out.
I '"''"" The appellant further responded to questions stating that she receives some help from a family member with shopping; her mother will drive her to the store on weekends as the appellant does not own a car. The appellant stated that it can sometimes be overwhelming doing things by herself and if her family member is not available, she will walk to a closer store and make fewer purchases each trip. The appellant stated further that she does receive some monthly financial help from another family member. In response to a question, the appellant stated that her multinodular goiter condition is caused by her bipolar medication and causes a little bit of pain in her neck which is currently mild to moderate in nature. The panel finds that the appellant's oral testimony did not raise any new conditions or information beyond that before the minster at the time the reconsideration decision was made and was related to that in the PWD application. The panel therefore admits the appellant's oral evidence as oral testimony in support of the information and records that were before the minister when the decision being appealed was made pursuant to section 22(4)(b) of the Employment Assistance Act. The ministry relied on its reconsideration decision. At the hearing, the ministry stated that the evidence supported a finding that the appellant suffered from a severe mental impairment but explained that there was not enough information to find that the appellant's DLA were, in the opinion of a prescribed professional, directly and significantly restricted either continuously or periodically for extended periods. The ministry stated that the evidence in the PR and AR demonstrated a slight or moderate impact and that the AR noted the appellant to be independent in all tasks of DLA. In response to a question, the ministry reiterated that the appellant need not demonstrate restrictions in all DLA but that multiple DLA need to be significantly restricted and that section 2(2)(b)(i) of the EAPWDA must be satisfied. The ministry further stated that if, for example, only one task of DLA is just moderately restricted, it would not meet the legislative criteria. In response to a question, the ministry stated that in determining restriction of DLA, in the case of a person with a severe mental impairment the factors in section 2(1 )(b) of the EAPWDR are to be considered and not just physical type activities.
PART F -Reasons for Panel Decision The issue on the appeal is whether the ministry's reconsideration decision, which found that 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 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) and (b) of the EAPWDR defines DLA for a person who has a severe 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 (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. In her Notice of Appeal dated March 31, 2014, the appellant states that she has a severe mood disorder diagnosed in 1986, that she cannot hold down a job to support herself and that she becomes sleepy after taking her medication. Severity of impairment Section 2(2)(a) of the EAPWDA is clear that when addressing the issue of a severe physical or mental impairment in the context of a person applying for a PWD designation, that person must be found to have a severe physical or mental impairment that, in the opinion of a medical practitioner, is likely to continue for at least 2 years. In the Reconsideration Decision, and confirmed at the hearing of this matter, the ministry has found that there is evidence to support a finding that the appellant is at least 18 years of age and that she has a severe mental impairment that will continue for two years or more. Severe Physical Impairment The appellant's position is that she has a physical condition, multinodular goiter, which causes her pain in the neck that is currently mild to moderate in nature. The ministry's position is that it does not have enough information from the GP to confirm that the appellant has a severe physical impairment. 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 or her DLA as evidenced by functional skill limitations, the restrictions to DLA, and the degree of independence in performing DLA. 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 prescribed professional respecting the nature of the impairment and its impact on daily functioning. The medical practitioner in this matter, the annellant's GP, diaanosed the appellant with multinodular aoiter but
the panel notes that there is no date of onset provided nor is there any further comment on this condition anywhere else in the PWD application either by the GP or the appellant herself. While the appellant commented that this condition causes her pain, she described it as mild to moderate. The functional skills reported in the PR indicate that the appellant can walk four or more blocks unaided and climb 5 or more steps unaided, remain seated without limitation. The appellant's lifting limitations are listed as not known by the GP. In the AR, the general practitioner assessed the appellant as independent with all aspects of mobility and physical ability. Based on this evidence, the panel finds that the ministry reasonably determined that the appellant's current level of physical functioning does not establish that the appellant has a severe physical impairment under section 2(2) of the EAPWDA. Restrictions In the abilitv to perform DLA The appellant's position is that her severe mental impairment directly and significantly restricts her ability to perform DLA on an ongoing basis to the extent that she requires the significant assistance of another person. The ministry's position is that there is not enough evidence from the GP to confirm the appellant's impairments directly and significantly restricts her DLA continuously or periodically for extended periods. The ministry argued that the appellant is able to manage the majority of her DLA independently. Panel Decision Section 2(2)(b) of the EAPWDA requires that in the opinion of a prescribed professional, a person's DLA are directly and significantly restricted by their severe impairment either continuously or periodically for extended periods. The appellant states in the SR that she has "some difficulty with daily activities" and provides examples of having difficulty budgeting and with social functioning. This was reiterated at the hearing as the appellant commented that it can sometimes be overwhelming for her to do things by herself and that she has some challenges with social functioning and impulse spending. In the PR, the appellant's GP indicates that she is independent in all DLA other than social functioning which is described as periodic in nature. The GP comments further that when the appellant is stressed and sleep deprived she is unable to concentrate and has morbid thoughts and plans. She describes the impact on the appellant's social functioning as being unable to tolerate people when her condition is exacerbated and that she become agitated and suspicious. In the AR, the appellant is assessed by her GP as independent with all aspects of DLA including those relating to social functioning set out in section 2(1 )(b) of the EAPWDR and applicable to a person with a severe mental impairment and she adds the comment "As long as [the appellant] has a stable environment and close monitoring by trusted caregiver (physician) she functions well. Any changes in her care and environment are likely to precipitate a relapse." In the Psychiatrist Letter, the appellant's psychiatrist notes that the medications that the appellant takes leave her unable to properly function until at least 8:30am and that throughout the day the medication limits her energy and her ability to concentrate. The psychiatrist also clarifies that the appellant's last exacerbation of her illness was in 2013. While the panel notes the appellant's evidence that doing things by herself can sometimes be overwhelming, the panel finds that the ministry reasonably concluded that there is not enough evidence from the prescribed rofessional to establish that the a ellant's severe mental im airmen! si nificantl restricts her abilit to
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