P A R T C D e c i s i o n u n d e r A p p e a l T h e d e c i s i o n u n d e r a p p e a l i s t h e r e c o n s i d e r a t i o n d e S o c i a l I n n o v a t i o n ( t h e m i n i s t r y ) d a t e d 1 3 M a r c h 2 0 1 w i t h d i s a b i l i t i e s ( P W D ) . T h e m i n i s t ry d e t e r m i n e d t h a c r i t e r i a f o r P W D d e s i g n a t i o n s e t o u t i n t h e E m p l o y m A c t , s e c t i o n 2 . S p e c i f i c a l l y , t h e m i n i s t r y d e t e r m i n e d t h e a p p e l l a n t h a s a s e v e r e m e n t a l o r p h y s i c a l i m p a i p r o f e s s i o n a l ( i ) d i r e c t l y a n d s i g n i f i c a n t l y r e s t r i c t s h e r a b i l i t y t o p c o n t i n u o u s l y o r p e r i o d i c a l l y f o r e x t e n d e d p e r i o d s ; a n ( i i ) a s a r e s u l t o f t h o s e r e s t r i c t i o n s , s h e r e q u i r e s h T h e m i n i s t r y d e t e r m i n e d t h a t t h e a p p e l l a n t s a t i s f i e d a g e a n d h e r i m p a i r m e n t i n t h e o p i n i o n o f a m e d i c a l y e a r s . P A R T D R e l e v a n t L e g i s l a t i o n E m p l o y m e n t a n d A s s i s t a n c e f o r P e r s o n s w i t h D i s a b E m p l o y m e n t a n d A s s i s t a n c e fo r P e r s o n s w i t h D i s a b E AA T 0 0 3 ( 1 0 / 0 6 / 0 1 )A P P E A L I c i s i o n o f t h e M i n i s t r y o f S o c i a l D e v e l o p m e n t a n d 4 d e n y i n g t h e a p p e l l a n t d e s i g n a t i o n a s a p e r s o n t t h e a p p e l l a n t d i d n o t m e e t a l l o f t h e r e q u i r e d e n t a n d A s s i s t a n c e f o r P e r s o n s w i t h D i s a b i l i t i e s t h a t t h e i n f o r m a t i o n p r o v i d e d d i d n o t e s t a b l i s h t h a t r m e n t t h a t i n t h e o p i n i o n o f a p r e s c r i b e d e r f o r m d a i l y l i v i n g a c t i v i t i e s ( D L A ) e i t h e r d , e l p t o p e r f o r m t h o s e a c t i v i t i e s . t h e o t h e r 2 c r i t e r i a : s h e h a s r e a c h e d 1 8 y e a r s o f p r a c t i t i o n e r i s l i k e l y t o c o n t i n u e f o r a t l e a s t 2 i l i t i e s A c t ( E A P W D A ) s e c t i o n 2 i l i t i e s R e g u l a t i o n ( E A P W D R ) s e c t i o n 2
I APPEAL PART E -Summar of Facts The evidence before the ministry at reconsideration consisted of the following: 1. The appellant's PWD Designation Application dated 15 June 2013. The Application package contained: • A Physician Report (PR) dated 26 February 2013 completed by the appellant's general practitioner (GP) who has known the appellant for 7 months and has seen her 2-10 times in that period. • An Assessor Report (AR) of the same date, completed by the same GP. • A Self Report (SR) completed by the appellant. • A Disability Self Assessment dated 20 November 2006 completed by the appellant, with additional notes dated 10 August 2007. 2. The appellant's Request for Reconsideration, dated 07 February 2014, with a request for an extension. The appellant provided the following additional information at reconsideration: a submission from the appellant (reconsideration submission), an email from the appellant's son dated 25 January 2014 and a letter from the appellant's GP dated 26 February 2014. The appellant's Notice of Appeal is dated 14 March 2014. Summary of the evidence In the PR, the GP diagnoses the appellant with lower back pain (onset 2003) and depression (onset 2006). The panel will first summarize the evidence from the PR and AR relating to the appellant's impairments as it relates to the PWD criteria at issue. Physical impairment PR: Under health history, the GP comments that persistent lower back pain limits mobility. The GP notes the appellant's height and weight are relevant: 165 cm and over 70 kg. The GP reports that the appellant has not been prescribed any medication and/or treatments that interfere with her ability to perform DLA and that she does not require any prostheses or aids for her impairment. Regarding functional skills, the GP reports that the appellant can walk 2 to 4 blocks unaided, climb 2 to 5 steps (uses rails), is limited to lifting under 5 lbs. and can remain seated for 1 to 2 hours. Mental impairment PR: Under health history, the GP comments that the appellant has mood swings and depression affecting social functioning; there has been improvement in cognitive functioning after sleep improved, but she still has short term memory issues. She uses lists to aid day-to-day activities The GP indicates that the a ellant has no difficulties with communication. EMT 003(10/06/01)
T h e G P i d e n t i f i e s s i g n i f i c a n t d e f i c i t s w i t h c o g n i t i v e a e m o t i o n a l d i s t u r b a n c e , m o t i v a t i o n , a n d a t t e n t i o n o r A R : T h e G P a s s e s s e s t h e f o l l o w i n g i m p a c t s o n d a i l y f u n • M a j o r i m p a c t n o n e . • M o d e r a t e i m p a c t o t h e r e m o t i o n a l o r m e n t a • M i n i m a l i m p a c t e m o t i o n , a t t e n t i o n / c o n c e n t r • N o i m p a c t b o d i l y f u n c t i o n s , c o n s c i o u s n e s s a c t i v i t y , l a n g u a g e , p s y c h o t i c s y m p t o m s , a n d T h e G P p r o v i d e s n o f u r t h e r c o m m e n t s . R e s t r i c t i o n s i n t h e a b il i t y t o p e rf o r m D L A a n d h e l p r e A R : ( T h e G P ' s c o m m e n t s i n p a r e n t h e s e s . ) T h e G P a s s e s s e s t h e a p p e l l a n t ' s a b i l i t y t o c o m m u n h e a r i n g . A s t o m o b i l i t y a n d p h y s i c a l a b i l i t y , t h e G P m a k e s t h e • W a l k i n g i n d o o r s u s e s a s s i s t i v e d e v i c e ( u s e • W a l k i n g o u t d o o r s u s e s a s s i s t i v e d e v i c e ( s t i • C l i m b i n g s t a i r s t a k e s s i g n i f i c a n t l y l o n g e r t h • S t a n d i n g u s e s a s s i s t i v e d e v i c e . • L i f t i n g p e r i o d i c a s s i s t a n c e f r o m a n o t h e r p e r • C a r r y i n g a n d h o l d i n g p e r i o d i c a s s i s t a n c e f r T h e G P p r o v i d e s t h e f o l l o w i n g a s s e s s m e n t s o n t h e • P e r s o n a l c a r e u s e s a s s i s t i v e d e v i c e f o r t o i l e a s s i s t a n c e f r o m a n o t h e r p e r s o n r e q u i r e d f o r t p o s t s ) ; p e r i o d i c a s s i s t a n c e f r o m a n o t h e r p e r s i n d e p e n d e n t f o r g r o o m i n g , f e e d i n g s e l f , r e g u l • B a s i c h o u s e k e e p i n g p e r i o d i c a s s i s t a n c e f r o h o u s e k e e p i n g . • S h o p p i n g u s e s a n a s s i s t i v e d e v i c e f o r g o i n p u r c h a s e s h o m e ; i n d e p e n d e n t f o r r e a d i n g p r i p a y i n g f o r p u r c h a s e s . • M e a l s p e r i o d i c a s s i s t a n c e f r o m a n o t h e r p e r c o o k i n g , a n d s a f e s t o r a g e o f f o o d • P a y r e n t a n d b i l l s i n d e p e n d e n t i n a l l a s p e c t • M e d i c a t i o n s p e r i o d i c a s s i s t a n c e f r o m a n o t h w r i t e d o w n n o t e s o n w h e n t a k e n ) , i n d e p e n d e h a n d l i n g a n d s t o r a g e . • T r a n s p o r t a t i o n p e r i o d i c a s s i s t a n c e f r o m a n v e h i c l e ; " n o l o n q e r u s e s " f o r u s i n q p u b l i c t r a n E AA T 0 0 3 ( 1 0 / 0 6 / 0 1 )I A P P E A l n d e m o t i o n a l f u n c t i o n i n t h e a r e a s o f m e m o r y , s u s t a i n e d c o n c e n t r a t i o n . c t i o n i n g : l p r o b l e m s . a t i o n , e x e c u t i v e , m e m o ry , a n d m o t i v a t i o n . , i m p u l s e c o n t r o l , i n s i g h t a n d j u d g m e n t , m o t o r o t h e r n e u r o p s y c h o l o g i c a l p r o b l e m s . q u i r e d i c a t e a s g o o d f o r s p e a k i n g , r e a d i n g , w r i t i n g a n d f o l l o w i n g a s s e s s m e n t s : s f u r n i t u r e ) . c k ) . a n t y p i c a l ( n o s t a i r s a t h o m e ) . s o n r e q u i r e d . o m a n o t h e r p e r s o n r e q u i r e d . a p p e l l a n t ' s a b i l i t y t o p e r f o r m D L A : t i n g ( r a i l ) ; u s e s a n a s s i s t i v e d e v i c e a n d p e r i o d i c r a n s f e r s i n / o u t o f b e d ( 4 p o s t e r b e d g r a b s o n r e q u i r e d f o r d r e s s i n g a n d b a t h i n g ; a t i n g d i e t a n d t r a n s f e r s o n / o f f o f c h a i r . m a n o t h e r p e r s o n r e q u i r e d f o r l a u n d r y a n d b a s i c g t o a n d f r o m s t o r e s ( n e v e r a l o n e ) a n d c a r r y i n g c e s a n d l a b e l s , m a k i n g a p p r o p r i a t e c h o i c e s , a n d s o n r e q u i r e d f o r m e a l p l a n n i n g , f o o d p r e p a r a t i o n , s . e r p e r s o n r e q u i r e d f o r t a k i n g a s d i r e c t e d ( h a s t o n t f o r f i l l i n g / r e f i l l i n g p r e s c r i p t i o n s a n d s a f e o t h e r p e r s o n r e q u i r e d f o r g e t t i n g i n a n d o u t o f s i t a n d u s i n q t r a n s i t s c h e d u l e s , a r r a n a i n q
APPEAL I transportation. With respect to social functioning, the GP assesses the appellant as requiring periodic support/supetvision in the areas of making appropriate social decisions and dealing appropriately with unexpected demands; the GP assesses the appellant independent in the areas of developing and maintaining relationships, interacting appropriately with others and securing assistance from others. The GP describes the appellant's relationship with her immediate and extended social networks as marginal functioning. Regarding help for social functioning, the GP indicates that the support/supetvision required which would help the appellant maintain herself in the community is home care. The GP reports that assistance provided to the appellant by other people is from friends. The GP reports that the appellant routinely uses a cane as an assistive device. Self Report In her SR, the appellant writes that she has had varying diagnoses within the past 10 years: damaged joint within joints, chronic obstructive pulmonary disease, degenerative disc disease, carpal tunnel syndrome (both wrists), anxiety/depression attacks and sciatic netve issues. The appellant lists the following assistive devices she has used: power scooter, a cane, bathroom rails, furniture and people. Modifications have been made with respect to the garbage, bathroom and front entrance at home. She writes that she has trouble with the following: from a sitting to a standing position; standing still; getting out of breath; memory, anger (no real reason), anxiety and depression; back and leg spasms; disk in the wrist when it goes out; numbness -spots on top of hands, feet; right leg still gives out without warning; and not safe to cook, bathe or shop alone. Evidence submitted at reconsideration The appellant's submission In her reconsideration submission, the appellant writes that her GP would be happy to complete another form as her symptoms fluctuate between not being able to function to requiring periodic assistance. As she is off her regular anti-inflammatory drug due to trying to get her hiatus hernia under control, her functioning is not good at this time. She states that the ministry may not be aware of the diagnoses of COPD, hiatus hernia or carpal tunnel syndrome in both wrists. In the last month she has fallen three times and has been unable to get up by herself. She has also fallen inside the house or has been caught. With other people's insight she has come to realize that she can no longer live alone, ever. For instance she is not safe to use a stove. Sometimes all she needs is supetvision; at other times she needs help cuttinq veqetables or rememberinq what she was EMT 003(10/06/01)
APPEAL I doing. She regularly needs minor help such as putting on socks or getting out of bed after three hours sleep. She doesn't have any mobility when she first gets up. Winter or cold or wet weather always makes her worse. The worse she is the worse is her mind and concentration. She is unable to drive herself anywhere and since October has had to rely on the help of another person to go anywhere. Because of her memory she does not go one block without the assistance of a person, cane or a scooter. The appellant goes on to write that she needs the assistance of a cane for getting up after 20 minutes, depending on how well she was feeling beforehand. She is no longer capable of traveling out of town alone. She used to be a vibrant person doing various activities with her kids and at times held down two jobs at once. In the last year she has had to give up going to church because of her pain -she can't help verbalizing it when it comes and it's embarrassing to her and disturbing to others. She tried to go back to work, but couldn't physically deal with the clothes and had difficulties with the phone, as well as the traveling to and from the worksite. She also writes that she has gotten stuck in the bathtub due to the lack of mobility and her spasms. She has had trouble with saying what she thinks. She is estranged from her daughter and her family for the last five years and in the last year she has gotten together with her youngest son's family after seven years of him not wanting anything to do with her. Over the years she has acclimatized herself to knowing there are certain ways she cannot move without ending up in bed for days. She spent 2 -3 months in bed except for getting up to the bathroom -a 20 to 40 minute trip one-way with a cane. It took 1 1/2 years to teach her body to sit up again. She has come a long way but has realized that this level of functioning is the best she's ever going to get. She has been deteriorating again for the last two years. She can't go out anymore because of her mobility and dexterity and her life consists of reading and watching TV. She writes that she used a photocopy of the PWD Application to indicate changes that should be noted. She notes that she needs help from another person for the following: 1. shop, lift, carry 2. do laundry 3. bathe -periodically needs help getting out, uses rails all the time; uses shower at times because she can't wipe herself properly 4. garbage: is modified in kitchen -cannot deal with garbage bag disposing of it in the landfill 5. feed/water and empty litter for her cats 6. periodically for preparing meals, in/out of vehicles etc. 7. vacuum/sweep/change sheets. She writes that she can no longer own a dog -she would not be able to manage. She has to put things in the exact places or she loses them. She copes by writing down what she wants and needs to say on the phone and she writes everything on the calendar. She has been known to do dumb things like forgetting oven mitts and burning herself. She doesn't plan anymore because she doesn't know from minute to minute let alone days in advance. She is constantly uncomfortable physically. She was sure for a few years that she had Alzheimer's disease because her memory was so bad. Now she knows that this is just due to her pain level. The aooellant writes that she has major ups and downs. When she and her GP filled in the paperwork EAA T003(10/06/01)
s he was at her best level but has fallen to a low point, due t well as having to dea l with re c e ntly di a g n osed other medical iss she wa s diag nosed five years ago with COPD symptoms. She excep t use he r puffers -she has been on the waiting list to Without friends/family to help, she would have to move into a home/ ha c an no lo nger live alon e and she has to have help to make decisio At tached t o her submission a re co p ies of the PR and ha ndwr itte n entri es by the appe l lan t. Other documents submitted at recon sider at ion In his email, the appellant's son write s that often his mother wou times in a shor t peri od of time, not realizing s he had times he received pho ne calls from her b ecause s he h undred s o f times wa s the rig ht one or no t , j us t to mak was c o oki n g he w o uld have to wat c h to ma k e sure sh tur n t he stovetop burne r s o ff , etc. T he son goe s on to w rite tha t physi ca lly i t was d i f ficul a c t ivities. T he s h ort wal k to the closes t bus st o p , a b mo re. Ma n y tim e s her b a ck wou ld se ize just sitt in g i even w ith as si stanc e. A n y heavy lift in g w a s out of the shower or bath wi thout another pe rs o n in r e s iden ce In her "To w hom i t may c o ncern " le t ter d ated 26 Fe b "[The appellant's] chro n ic c onditi o ns include t o deg enerat ive d is c disease, anxi ety/de p ob st ruc tive pu l monary di se ase aff ecting breat h iatu s hern ia) an d ca r pa l t un ne l symptoms Her symptom s f lu ctuate and I w o uld be h detail sho uld you w ish to s e nd f ur ther forms. I bel PWD, but of co urse yo ur assessment of the clinical conditions described on such a form by me would form the basis of suc h a designation." Info rmation pr ovided on appeal The appellant's Notice of Appeal is dated 14 March 2014. Under Reasons for Appeal, the appellant writes that assistance is required wit h her daily living activities. Her vario daily liv ing ac tivities and her d oct ors, past a nd present, feel she is sever Before the hearing, the appellant submitted a letter from her GP dated 03 April 2014. The GP writes: "Unfortunately the patient did not have a second appropriate person to complete the A ssessor's Repor t (Sectio n 3) a nd s o I c o Section 3 was completed with the patient present in my office & my answers based on her d e scripti on of her day t o d ay life. It is apparent from the Deci not enouah detail was included. It was also stated that the use of furniture and railina could E M T003(10/ 0 6/ 0 1) I APPEAL o weather mainly, in t erms o f mobility. As ues -hiatus hernia for over a year, does n't know wh a t to do a b out it see a respirato ry nurse si nce J u ne. v e a daycare provider. She ns. AR, with what app ear to be additiona l l d ask him the same question severa l al r eady asked and it had b een answered. Many was n o t sur e if th e sa m e b us she ha d taken e s u re she w a s on the r igh t rout e. When she e di dn' t rep eat edly season the mea t or f o rge t to t f o r h er t o g e t aro und a n d do man y p hysical out t w o b loc k s, wou ld t ake her half an hour or n a chair , re nd erin g her unable to sta nd up a gain, q uest ion . On a b ad d a y, she woul dn't take a i n case she w as una ble to extra c t herse lf . ru ary 2 01 4, the ap pel lant's GP w r ites: p ersisten t a nd endur i ng l ower bac k pain due re ssion affe cting so c i a l functio ning , chr onic h ing & mob ility ( also at tim e s a f fec t e d by . a ppy t o provide her c u rren t di sabili t y le v e l in m ore ieve sh e c u rren t l y meets the criteria for . us diagnoses re strict her el y impaire d. m p leted t hi s in addition to the P hysicia n's Report. sion Summary that it was felt
n o t b e c o u n t e d a s a s s i s t i v e d e v i c e s " u n d t h a t t h e p a t i e n t u s e s t h e s e t h i n g s t o h e l p S h e a l s o u s e s a c a n e , s u p p o r t f r o m o t h e a t t e m p t t o w a l k o u t u n a i d e d s h e r e p o r t s m a i l b o x & b a c k . S h e t e l l s m e t h a t s h e c u r r e n t l y h a s h e l p a s n e e d i n g s o m e o n e e l s e t o b r i n g i n w o o h e l p c u r r e n t l y r e q u i r e d c o n s i s t e n t l y i n c l u d m a k i n g . I u n d e r s t a n d t h e p a t i e n t h a s g i v e n m o r e S u m m a r y . I b e l i e v e t h a t t h e p a t i e n t h a s s i g n i f i c a n t r o f h e r m e d i c a l c o n d i t i o n s . " A t t h e h e a r i n g , t h e a p p e l l a n t ' s l a n d l o r d / f r i e n d w i t h w o c c a s i o n s h e h a s h a d t o c a t c h h e r f r o m f a l l i n g w h e n s i n k o r s t o v e . H e h a s t o h e l p h e r i n a n d o u t o f v e h i c i n t o t h e v e h i c l e a n d c o l l a p s e d o n t o t h e g r o u n d . H e i a n d s o h e d o e s a l l t h e d r i v i n g t o a n d f r o m s t o r e s a n I n h e r p r e s e n t a t i o n , t h e a p p e l l a n t c o v e r e d m u c h t h e r e c o n s i d e r a t i o n ( s e e a b o v e ) . I n a d d i t i o n t o t h e i n f o r m m e m o r y d i f f i c u l t i e s , t h e a p p e l l a n t s t a t e d t h a t w i t h h e t o g o o f f t a k i n g a n t i i n f l a m m a t o r y m e d i c a t i o n s , s o w p a i n a n d m o b i l i t y d i f f i c u l t i e s a r e w o r s e . S h e s a i d t h a m o r n i n g a n d i f s h e o v e r d o e s i t d u r i n g t h e d a y , i t w i l l " t w i n g e s " o r m i n o r s p a s m s e v e r y d a y a n d m a j o r s p a d a y s . S h e g o e s t h r o u g h " u p s a n d d o w n s " a n d s o m e a n d , o t h e r t i m e s , s h e c a n f u n c t i o n n o r m a l l y . S h e f i n t h e w e a t h e r . S h e e x p l a i n e d t h a t t h e r e a r e c e r t a i n m o d i f i c a t i o n s a d i s a b i l i t y : t h e g a r b a g e p a i l i s s m a l l a n d i s r a i s e d o f f t h e t o i l e t i s 3 i n c h e s h i g h e r t h a n u s u a l a n d t h e r e a r e c a n e w h e n w a l k i n g o u t s i d e . S h e p r e v i o u s l y u s e d a s a r o u n d h e r r e s i d e n c e i s u n e v e n w h i c h m a k e s u s i n g w a l k e v e r y d a y t o l o s e w e i g h t b e c a u s e o f t h e h e r n i a . t h a t w e i g h t i s a n o t h e r m a t t e r . C a r r y i n g a j u g o f m i l k w o u l d d o h e r i n f o r t h e r e s t o f t h e d a y . S h e g e t s o u a n d s h e n e e d s h e l p o r s h e g o e s w i t h o u t . T h e a p p e l l a n t s t a t e d t h a t b e c a u s e s h e h a s f o r g o t t e n s t o v e w i t h o u t s u p e r v i s i o n f o r y e a r s . S o m e t i m e s s h e a p p o i n t m e n t b e c a u s e s h e h a s d i f f i c u l t y u n d e r s t a n d i n c h a r g e o f h e r a f f a i r s . S h e d o e s n o t t r u s t h e r o w n j u t h a t s h e h a s " c r o s s e d t h e l i n e " w i t h s o m e t h i n g s h e h E AA T 0 0 3 ( 1 0 / 0 6 / 0 1 )A P P E A l I e r t h e l e g i s l a t i o n . " T h i s d o e s n o t c h a n g e t h e f a c t h e r g e t a r o u n d a s s h e i s u n a b l e t o d o i t u n a i d e d . r p e o p l e a n d a m o b i l i t y s c o o t e r . O n a r e c e n t t a k i n g 2 5 m i n u t e s t o m a k e t h e o n e b l o c k t r i p t o h e r f r o m a n o t h e r p e r s o n f o r a l l s h o p p i n g t r i p s , a s w e l l d r e q u i r e d t o h e a t h e r h o m e . F u r t h e r e x a m p l e s o f e h o u s e h o l d c h o r e s s u c h a s v a c u u m i n g & b e d e x a m p l e s i n h e r r e s p o n s e t o t h e D e c i s i o n e s t r i c t i o n s o n h e r d a i l y l i v i n g a c t i v i t i e s a s a r e s u l t h o m s h e l i v e s t e s t i f i e d t h a t o n n u m e r o u s s h e h a s h a d b a c k s p a s m s w h i l e s t a n d i n g a t t h e l e : s h e r e c e n t l y h a d a b a c k s p a s m w h e n g e t t i n g s w o r r i e d t h a t s h e w i l l h a v e a s p a s m w h i l e d r i v i n g d t o a p p o i n t m e n t s , e t c . s a m e g r o u n d a s i n h e r s u b m i s s i o n a t a t i o n p r o v i d e d i n h e r s u b m i s s i o n r e g a r d i n g h e r r r e c e n t l y d i a g n o s e d h i a t u s h e r n i a , s h e h a s h a d h i l e h e r h i a t u s h e r n i a s y m p t o m s a r e b e t t e r , h e r t s h e i s n e v e r w i t h o u t p a i n ; i t i s a l w a y s b a d i n t h e b e b a d i n t h e e v e n i n g a s w e l l . S h e h a s b a c k s m s , t h a t c o u l d c a u s e h e r t o c o l l a p s e , e v e r y 2 -3 d a y s s h e c a n n o t s i t f o r e v e n 1 0 t o 2 0 m i n u t e s d s t h a t h e r c o n d i t i o n i s w o r s e w i t h d a m p n e s s i n r o u n d t h e h o m e t o h e l p h e r c o m p e n s a t e f o r h e r t h e f l o o r s o t h a t s h e c a n m o r e e a s i l y a c c e s s i t ; g r a b b a r s i n t h e b a t h r o o m . S h e a l w a y s u s e s a c o o t e r t o g e t a r o u n d h i l l y a r e a s b u t t h e g r o u n d t h e s c o o t e r d i f f i c u l t a n d h e r d o c t o r w a n t s h e r t o W h i l e s h e m a y a b l e t o l i f t 5 p o u n d s , c a r r y i n g -5 p o u n d s f r o m t h e s t o r e , a b o u t a b l o c k a w a y , t o f b r e a t h s o m e t i m e s j u s t p u t t i n g h e r s o c k s o n f o o d c o o k i n g o n t h e s t o v e , s h e h a s n o t u s e d t h e h a s t o t a k e s o m e o n e w i t h h e r t o t h e d o c t o r ' s g , a n d s h e h a s c o n s i d e r e d p u t t i n g h e r s o n i n d g m e n t a n d h e r s o n h a s h e l p e d h e r b y t e l l i n g h e r a s s a i d .
I APPEAL The appellant clarified that the reference in her reconsideration submission to being bedridden for 2 -3 months was related to a situation in 2003, involving to a workplace injury. The ministry stood by its position at reconsideration. The ministry did not object to the new information provided before the hearing and at the hearing. The panel finds that the information provided by the GP in her 03 April 2014 letter, and by appellant and her witness in their oral testimony, is in support of the evidence before the ministry when it made the decision under appeal, clarifying the material provided by the GP and the appellant at reconsideration. The panel therefore admits as evidence the information provided by GP, the appellant and the witness under section 22(4) of the Employment and Assistance Act. EAAT003(10/06/01)
I APPEAL PART F -Reasons for Panel Decision The issue in this appeal is whether the ministry reasonably determined that the appellant is ineligible for PWD designation because she did not meet all the requirements in section 2 of the EAPWDA. Specifically the ministry determined that the information provided did not establish that the appellant has a severe mental or physical impairment that in the opinion of a prescribed professional (i) directly and significantly restricts her ability to perform daily living activities either continuously or periodically for extended periods; and, (ii) as a result of those restrictions she requires help to perform those activities. The ministry determined that she met the 2 other criteria in EAPWDA section 2(2) set out below. The following section of the EAPWDA applies to this appeal: 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. And from the EAPWDR: 2 (1 )For the purposes of the Act and this regulation, "daily living activities", (a) in relation to a person who has a severe physical impairment or a severe mental impairment, means the following activities: (i) prepare own meals; (ii) manage personal finances; (iii) shop for personal needs; (iv) use public or personal transportation facilities; (v) perform housework to maintain the person's place of residence in acceptable sanitary condition; (vi) move about indoors and outdoors; /vii\ nerform nersonal h 1 1r1iene and self care; EAAT 003(1 0/06/01)
APPEAL I (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. The panel will consider each party's position regarding the reasonableness of the ministry's decision under the applicable PWD criteria at issue in this appeal. Severity of impairment Physical impairment In the reconsideration decision, the ministry reviewed the appellant's functional skills limitations as reported by the GP (can walk 2 -4 blocks unaided, etc.). The ministry noted that the GP reported that the appellant uses a cane for mobility outdoors and furniture for mobility indoors, though furniture is not considered an "assistive device" under the legislation. The ministry noted that the GP has indicated that the appellant requires periodic assistance with lifting and carrying and holding but that no information is provided on how often this assistance is required. The GP has also indicated that it takes the appellant significantly longer than typical for climbing stairs (no stairs at home) but no information is provided on how much longer it takes. The position of the ministry is that the impacts of the appellant's impairments as described by the GP are more in keeping with a moderate degree of impair ment and that therefore, based on the information provided by the GP, the ministry finds that there is not enough evidence to establish a severe physical impairment. The position of the appellant is that the evidence provided by her GP demonstrates the restrictions in her daily living activities resulting from severe lower back pain (degenerative disc disease), hiatus hernia, COPD and carpal tunnel syndrome, and the resulting.need for help, and is sufficient to establish a severe physical impairment. Panel findings For PWD designation, the legislation requires that a severe mental or physical impairment be established. The determination of the severity of impairment is at the discretion of the minister, taking into account all the evidence, including that of the applicant. However, the starting point must be medical evidence, with the legislation requiring that a medical practitioner (in this case, the appellant's GP) identify the impairment and confirm that impairment will continue for at least two years. In the discussion below concerning the information provided regarding the severity of the appellant's impairment, the panel has drawn upon the ministry's definition of "impairment" in the PWD Application. This definition consists of "cause" and "impact" components: "impairment is a loss or abnormality of psychological, anatomical or physiological structure or function [the cause] causing a restriction in the ability to function independently, effectively, appropriately or for a reasonable duration [impact]." This definition is not set out in legislation and is·not binding on the panel, but in the panel's view it reasonably describes the legislative intent. The cause is usually set out as a disease, condition, syndrome, injury or even a symptom (e.g. pain or shortness of breath). A severe impairment requires the identified cause to have a significant impact on daily functioning. EAAT 003(10/06/01)
L- A_P_P_E_A_L _ _ _ _ _ _ _ � 1 I The evidence is that in the PR the GP diagnosed the appellant's physical impairment as lower back pain. In her letter at reconsideration, the GP added that the lower back pain is a result of degenerative disc disease and provided additional diagnoses of COPD, hiatus hernia and carpal tunnel syndrome. In the PR, the GP assessed the appellant is able to walk unaided 2-4, climb 2 -5 steps using rails and lift under 5 pounds. From the starting point, the panel notes many gaps and inconsistencies in the information provided by the GP. For instance, no narrative is provided as to the impact on the appellant's daily functioning of her COPD, hiatus hernia or carpal tunnel syndrome besides the comment in her February 26, 2014 letter that COPD affects breathing and mobility (also at times affected by hiatus hernia) and carpal tunnel symptoms. In her testimony at the hearing, the appellant made frequent reference to back spasms, which at their worst can cause her to collapse, which she estimates to occur every 2 to 3 days. The appellant also stated that she goes through "ups and downs" and some days she can function normally but her condition is worse with dampness. No reference to these occurrences, and their frequency, appear in the material provided by the GP, despite being provided with an opportunity to do so in her most recent letter dated April 3, 2014. In the PR, the GP indicates that the appellant has not been prescribed any aid for her impairment, yet in the AR the GP notes that the appellant routinely uses a cane. In her letter on appeal the GP noted that the appellant took 25 minutes to walk the 1 block distance to and from her mailbox but did not explain whether this represented a revision to the original 2 -4 block walking unaided ability assessment. In terms of impacts of the appellant's impairments on daily living activities, the GP has assessed the appellant as requiring periodic assistance from another person with several aspects of personal care, housekeeping, meals, medications and transportation; however, no information is provided as to how often this assistance is required. The GP also assessed the appellant as requiring continuous assistance from another person for going to and from stores and carrying purchases home, but the nature of this assistance is not described. (See also below under Significant restrictions in the ability to perform DLA). Given the level of restrictions reported by the GP and the gaps and inconsistencies in the information provided by the GP, including that in the PR and AR and at reconsideration and on appeal, the panel finds that there is insufficient evidence of the frequency of the exacerbations of the appellant's symptoms and the ministry was reasonable in determining that a severe impairment had not been established. Mental impairment In the reconsideration decision, the ministry noted that the GP indicated that the appellant has deficits with cognitive and emotional function in the areas of memory, emotional disturbances, motivation and attention or sustained concentration. In assessing the impacts on daily functioning, the GP indicated that the appellant has a moderate impact to other emotional or mental problems and minimal impacts in several other areas. In addition the GP reported that the appellant has no difficulties with communication. Based on the information provided by the GP the ministry position was that there was not enough evidence to establish a severe mental impairment. The position of the appellant is that she has serious short-term memory problems, with a huge impact on her daily functioning. These impacts range from the fear of getting lost venturing outside the home alone and embarrassment from reoeatina herself in conversation to the risk of foraettina to turn off EAAT 003(10/06/01)
I APPEAL the stove. She submits that this is sufficient to establish a severe mental impairment. Panel findings The evidence is that the GP has diagnosed the appellant's mental impairment as depression. The GP noted in the PR that mood swings and depression affect social functioning and that there has been improvement in cognitive functioning after sleep improved but the appellant still has short-term memory issues. She uses lists to aid day-to-day activities. The GP indicated the appellant has significant deficits with cognitive and emotional function in the areas of memory, emotional distu rbance, motivation, and attention or sustained concentration. At the hearing, the appellant described her loss of memory issues requiring supervision for several tasks, including safety concerns, as well as her perceived lack of judgment and difficulty understanding that require help from others for decision-making. In terms of the impacts on daily functioning, however, the GP indicated that there are no major impacts, and one moderate impact in the area of "other emotional or mental problems," without explaining what these were. The GP also indicated minimal impacts in the areas of emotion, attention/concentration, executive, memory, and motivation, but provided no additional comments. As the ministry noted, the GP also reported no difficulties with communications. The GP also indicated that the appellant requiring periodic support/supervision in the areas of making appropriate social decisions and dealing appropriately with unexpected demands, but no explanation is provided as to the degree and duration of support/supervision required. Similarly, while the GP assesses the appellant's relationship with her immediate and extended social networks as marginal functioning, no narrative is provided to explain this assessment. Given that the GP assessed one impact on daily functioning in the moderate range, without explaining what was meant by "other emotional or mental problems," with other impacts at the minimal level, the panel finds that the ministry was reasonable in determining that a severe mental impairment had not been established. Significant restrictions in the ability to perform DLA. The position of the ministry is that, based on the information provided by the GP, the ministry does not have enough evidence to confirm that the appellant's impairment significantly restricts her ability to perform DLA either continuously or periodically for extended periods. The appellant's position is that, considering that her mobility inside and outside the home is significantly restricted and that she needs continuous assistance for shopping and periodic assistance from another person for such activities as cooking and housework, she has met this criterion. Panel findings The panel notes that, according to the legislation, the direct and significant restriction in the ability to perform DLA must be a result of a severe impairment, a criterion which has not been established in this appeal. This DLA criterion must also be considered in terms of the preceding legislative language of section 2 of the EAPWDA, which provides that the minister may designate a person as a person with disabilities "if the minister is satisfied that" the criteria are met, includinQ this one. In exercisina EAAT 003(10/06/01)
APPEAL I the discretion conferred by the legislation, it is reasonable that the minister would expect that the opinion ofa prescribed professional be substantiated by information from the prescribed professional that would satisfy the minister that there are direct and significant restrictions in the ability to pertorm DLA, either continuously or periodically for extended periods, by presenting a clear and complete picture of the nature and extent of these restrictions. The panel has set out in detail in Part E above the GP's assessments regarding the appellant's ability to pertorm DLA, as contained in the AR and in the GPs letter on appeal. In summary, the GP has provided information pointing to a greater degree of restriction in the following DLA: • Moving about indoors and outdoors -in the AR, the GP has assessed the appellant able to walk 2 -4 blocks unaided, and though she has not been prescribed any aids, the appellant does use a cane, and sometimes a scooter, for outdoor use. In the letter on appeal, the GP reports that the appellant took 25 minutes to walk the 1 block to her mailbox and back, without explaining whether this represented the new assessment and if so, why. Indoors, the GP reports that the appellant relies on furniture for support as she moves about. While, as the ministry notes, furniture is not considered an "assistive device" under the legislation, the panel recognizes that the use of furniture in this way is an indicator of some degree of restriction in the appellant's mobility; however, no information is provided as to whether, relying on furniture for support, she can move about at a reasonable pace or whether she takes significantly longer than typical or encounters other difficulties (e.g. shortness of breath). • Shopping -the GP reports the appellant requires continuous assistance from another person for going to and from stores and carrying purchases home, with the comment "never alone." The GP does not explain the nature of the help provided, though the panel obtained the impression from her landlord/friend that he provided this assistance as he was concerned about the appellant's safety should she have a back spasm while driving to or from stores. With respect to other DLA applicable to a person with a severe mental or physical impairment, the GP has assessed the appellant requiring periodic assistance from another person in the noted aspects of the following DLA: personal care (dressing, bathing, transfers in/out of bed), basic housekeeping (laundry, basic housekeeping), meals (meal planning, food preparation, cooking, and safe storage of food), medications (taking as directed) and transportation (getting in and out of vehicle). The panel notes that no information is provided as to the frequency of when this help is needed, or under what circumstances, in what way or to what extent the help is required. For the meals DLA, for example, the GP does not explain the nature of the help provided and whether it is related to the safety concerns as described by the appellant and her son or to the appellant's variable physical symptoms. Regarding the 2 DLA applicable to a person with a severe mental impairment -make decisions about personal activities, care or finances and relate to, communicate or interact with others effectively the GP has assessed the appellant as requiring periodic assistance from another person in making appropriate social decisions and dealing appropriately with unexpected demands; however, no information is provided as to how often, under what circumstances, in what way and for how long such help is required. On the basis of the above analysis of the information provided by the appellant's GP, the panel considers it reasonable that the ministry would not have had a clear and complete picture of how the appellant's impairments restrict her ability to pertorm her DLA. The panel therefore finds that the ministrv was reasonable in determininq that the information provided did not establish that the EAAT 003(10/06/0I)
a p p e l l a n t ' s i m p a i r m e n t s , i n t h e o p i n i o n o f a p r e s c r i b s i g n i f i c a n t l y r e s t r i c t s h e r a b i l i t y t o p e r f o r m D L A , e i t h p e r i o d s . H e l p w i t h D L A T h e p o s i t i o n o f t h e m i n i s t r y i s t h a t a s i t h a s n o t b e e n i t c a n n o t b e d e t e r m i n e d t h a t s i g n i f i c a n t h e l p i s r e q u i T h e a p p e l l a n t ' s p o s i t i o n i s t h a t s h e r e q u i r e s t h e u s e s u p p o r t o f f u r n i t u r e a n d b a t h r o o m r a i l s i n d o o r s a s w t h e o n g o i n g a s s i s t a n c e o f a n o t h e r p e r s o n f o r o t h e r D t r a n s p o r t a t i o n . P a n e l f i n d i n g s T h e p a n e l n o t e s t h a t t h e l e g i s l a t i o n r e q u i r e s t h a t i n t f o r h e l p m u s t a r i s e f r o m d i r e c t a n d s i g n i f i c a n t r e s t r i c c o n t i n u o u s o r p e r i o d i c f o r e x t e n d e d p e r i o d s . W h i l e t w a l k i n g o u t d o o r s , o c c a s i o n a l l y u s e s a m o b i l i t y s c o o f o r o t h e r D L A r e q u i r i n g p h y s i c a l e f f o r t , t h e p a n e l f i n d s i n c e i t h a s n o t b e e n e s t a b l i s h e d t h a t D L A a r e d i r e c d e t e r m i n e d t h a t h e l p i s r e q u i r e d a s p r o v i d e d u n d e r s C o n c l u s i o n H a v i n g r e v i e w e d a n d c o n s i d e r e d a l l o f t h e e v i d e n c e t h e m i n i s t r y ' s d e c i s i o n t h a t t h e a p p e l l a n t w a s n o t e l i g s u p p o r t e d b y t h e e v i d e n c e . T h e p a n e l t h e r e f o r e c o n E M T 0 0 3 ( 1 0 / 0 6 / 0 1 )I A P P E A L e d p r o f e s s i o n a l h e r G P d i r e c t l y a n d e r c o n t i n u o u s l y o r p e r i o d i c a l l y f o r e x t e n d e d e s t a b l i s h e d t h a t D L A a r e s i g n i f i c a n t l y r e s t r i c t e d , r e d f r o m o t h e r p e r s o n s . o f a c a n e t o m o v e a b o u t o u t d o o r s a n d t h e e l l a s t h e o c c a s i o n a l u s e o f a p o w e r s c o o t e r , a n d L A , p a r t i c u l a r l y f o r h o u s e k e e p i n g , s h o p p i n g a n d h e o p i n i o n o f a p r e s c r i b e d p r o f e s s i o n a l t h e n e e d t i o n s i n t h e a b i l i t y t o p e r f o r m D L A t h a t a r e e i t h e r h e e v i d e n c e i s t h a t t h e a p p e l l a n t u s e s a c a n e f o r t e r , a n d b e n e f i t s f r o m t h e h e l p o f a n o t h e r p e r s o n s t h a t t h e m i n i s t r y r e a s o n a b l y d e t e r m i n e d t h a t t l y a n d s i g n i f i c a n t l y r e s t r i c t e d , i t c a n n o t b e e c t i o n 2 ( 2 ) ( b ) ( i i ) o f t h e E A P W D A . a n d t h e r e l e v a n t l e g i s l a t i o n , t h e p a n e l f i n d s t h a t i b l e f o r P W D d e s i g n a t i o n w a s r e a s o n a b l y f i r m s t h e m i n i s t r y ' s d e c i s i o n .
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.