PART C -Decision under Appeal The decision under appeal is the reconsideration decision of the Ministry of Social Development and Social Innovation (the ministry) dated January 15, 2014 denying the appellant designation as a person with disabilities (PWD). The ministry determined that the appellant did not meet two of the five criteria required for PWD designation as set out in the Employment andA ssistance for Perso11s w/117 Disabilities Ac/(EAPWDA) section 2. The ministry found that the appellant meets the criteria of being 18 years of age or older (criterion 1), that in the opinion of a medical practitioner, her impairment is likely to continue for two or more years (criterion 2), and the minister is satisfied that she has a severe mental impairment (criterion 3). However, the ministry determined that, based on the information provided, the following criteria as set out in section 2(2)(b) of the EAPWDA were not met: • In the opinion of a prescribed professional, the appellant's impairment significantly restricts her ability to perform daily living activities (DLA) either continuously or periodically for extended periods; and • As a result of the restrictions, the appellant requires the significant help or supervision of another person to perform the DLA restricted by her impairment. PART D -Relevant Legislation Employment andA ssistance for Persons with Dlsab1Jilies Ac/(EAPWDA) -section 2 Employment andA ssistance for Persons with Disabllltles Regulation (EAPWDR) -section 2 EAAT003(10/06/01)
P A R T E S u m m a o f F a c t s T h e e v i d e n c e b e f o r e t h e m i n i s t r y a t r e c o n s i d e r a t i o 1 . T w o v e r s i o n s o f t h e a p p e l l a n t ' s P W D D e s i g f o l l o w i n g t w o p a r t s : • T h e a p p e l l a n t ' s S e l f R e p o r t ( S R ) c o m p l e t e • T h e P h y s i c i a n R e p o r t d a t e d J u n e 1 7 , 2 0 1 3 P s y c h i a t r i s t ) w h o h a s k n o w n t h e a p p e l l a n t o r m o r e t i m e s i n t h e p r e v i o u s y e a r . T h e p R e p o rt o f t h e P W D D e s i g n a t i o n a p p l i c a t i o T h e s e c o n d v e r s i o n o f t h e P W D D e s i g n a t i ( t h e a p p e l l a n t d i d n o t c o m p l e t e t h e S R i n t • T h e P h y s i c i a n R e p o r t d a t e d J u l y 2 2 , 2 0 1 3 P h y s i c i a n ) w h o h a s k n o w n t h e a p p e l l a n t fo m o r e t i m e s i n t h e p r e v i o u s y e a r . • T h e A s s e s s o r R e p o r t ( A R ) d a t e d J u l y 2 2 , 2 p h y s i c i a n . 2 . T h e a p p e l l a n t ' s r e q u e s t fo r r e c o n s i d e r a t i o n a o n e p a g e l e t t e r f r o m t h e a p p e l l a n t ' s p s y c h p s y c h i a t r i s t w r o t e t h a t h e w i s h e d t o " c l a r i fy • T h e a p p e l l a n t h a s " s i g n i fi c a n t a n d c h • S h e h a s " m a r k e d d i f f i c u l ty i n c o p i n g i n a d e q u a t e s o t h a t s h e i s q u i t e v u l n e e p i s o d e s o f i n t e n s e d i s t r e s s , m a r k e d i n a b i l i ty t o c o p e " ; • T h e a p p e l l a n t " h a s s o m e s u p p o r t i n t h a s l i m i t e d r e s o u r c e f u l n e s s t o w o r k t • " I n v i e w o f t h e a b o v e , I d o fe e l t h a t s d i s a b i l i t i e s . " Th e a p p e l l a n t c o m p l e t e d h e r n o t i c e o f a p p e a l o n J " n o t p h y s i c a l l y o r m e n t a l l y a b l e t o h o l d d o w n a j o b h a d t o g i v e th a t u p d u e t o p h y s i c a l a n d m e n t a l p r o s h e i s t o o i l l t o d o a n y t h i n g . P r i o r t o t h e h e a r i n g , t h e a p p e l l a n t s u b m i t t e d t h e f o 1 . A c o p y o f a o n e p a g e l e t t e r f r o m h e r f a m i l y p h y s i c i a n h a s w r i t t e n t h e s e n t e n c e , " T h i s i s e m p l o y a b l e b e c a u s e o f m e d i c a l r e a s o n s f o r 2 . A 4 p a g e c o m p u t e r p r i n t o u t d a t e d J a n u a r y m e d i c a t i o n s p r e s c r i b e d f o r t h e a p p e l l a n t . 3 . A 2 p a g e i n i t i a l a s s e s s m e n t r e p o r t d a t e d J a f r o m a r e s p i r a t o r y s e r v i c e t h a t h a d c o n d u c t e a n e a . . EM T 0 0 3 ( 1 0 / 0 6 / 0 1 )n c o n s i s t e d o f t h e f o l l o w i n g : n a t i o n A p p l i c a t i o n , t h e f i r s t v e r s i o n c o n t a i n e d t h e d J u n e 1 7 , 2 0 1 3 ; c o m p l e t e d b y t h e a p p e l l a n t ' s p s y c h i a t r i s t ( P R s i n c e M a y 2 0 1 2 a n d i n d i c a t e d h e h a d s e e n h e r 1 1 s y c h i a t r i s t d i d n o t c o m p l e t e o r c e r t i fy t h e A s s e s s o r n . o n A p p l i c a t i o n c o n t a i n e d t h e f o l l o w i n g t w o p a r t s h i s v e r s i o n ) : c o m p l e t e d b y t h e a p p e l l a n t ' s f a m i l y p h y s i c i a n ( P R r 3 y e a r s a n d i n d i ca t e d h e h a d s e e n h e r 1 1 o r 0 1 3 a l s o c o m p l e t e d b y t h e a p p e l l a n t ' s fa m i l y d a t e d D e c e m b e r 3 0 , 2 0 1 3 , a tt a c h e d t o w h i c h w a s i a t r i s t d a t e d D e c e m b e r 3 0 , 2 0 1 3 . I n t h i s l e t t e r , t h e t h e f o l l o w i n g p o i n t s " : r o n i c d i f f i c u l t i e s w i t h h e r m e n t a l h e a l t h " ; a n d h e r i n t e r p e r s o n a l f u n ct i o n i n g i s c h r o n i c a l l y r a b l e o n a n o n g o i n g b a s i s a n d h a s h a d f r e q u e n t a n x i e t y , a n d p e r i o d s o f s a d n e s s , t e a r f u l n e s s a n d h e c o m m u n i t y b u t h a s f a m i l y o f o r i g i n i s s u e s a n d h r o u g h t h e r a p i e s " ; a n d h e w o u l d b e n e fi t f r o m d e s i g n a t i o n a s a p e r s o n w i t h a n u a r y 2 0 , 2 0 1 4 , a n d o n i t s h e w r o t e t h a t s h e i s " a n d t h a t s h e h a d t r i e d t o d o v o l u n t e e r w o r k , b u t b l e m s . S h e c o n c l u d e d b y w r i t i n g t h a t r i g h t n o w , l l o w i n g t h r e e a d d i t i o n a l d o c u m e n t s t o t h e p a n e l : p h y s i c i a n d a t e d J a n u a r y 2 9 , 2 0 1 4 i n w h i c h h e r t o c o n f i r m t h a t [ t h e a p p e l l a n t ] w i l l n o t b e t h e f o r e s e e a b l e f u t u r e . " 3 0 , 2 0 1 4 fr o m a d r u g s t o r e l i s t i n g a l l o f t h e n u a r y 3 1 , 2 0 1 4 t o t h e a p p e l l a n t ' s f a m i l y p h y s i c i a n d t e s t s o n t h e a p p e l l a n t f o r o b s t r u c t i v e s l e e p
In her submissions at the hearing, the appellant said that she wanted the panel to consider the additional documents because in document #1, her doctor has confirmed she is unable to work, document #2 -the list of medications -shows how many medications the appellant takes, their dosage and frequency and supports that she has a severe impairment that affects her ability to perform daily living activities, and document #3, the report from the respiratory centre, shows that her health is deteriorating and she is now having respiratory difficulties and sleep apnea. The ministry representative did not contest the admission of additional documents #1 and #2 and said that these two documents contained inf o rmation that was before the ministry at the time of the reconsideration ( document #2) or was in support of information before the ministry at reconsideration (document #1). However, the ministry argued that the panel should not admit document #3, as there was no information before the ministry until the appeal hearing that the appellant suffers from sleep apnea and this constitutes new inf o rmation. The panel finds that the information in document #2 provided by the appellant at the hearing is admissible as information that was before the ministry at the time of the reconsideration -the ministry had information about the appellant's medications, their dosages and frequency as set out in document #2. The panel also finds that the information in document #1 provided by the appellant at the hearing is admissible as information from her family physician in support of the information provided by the family physician in the PR and AR that was before the ministry at the reconsideration. The panel therefore admits the additional inf o rmation in documents #1 and #2 pursuant to section 22(4)(a) and (b) of the Employment and Assistance Act. However, the panel finds that the information contained in document #3 submitted by the appellant at the hearing constitutes new information that was not before the ministry at the reconsideration there was no reference to the appellant suffering from respiratory problems or sleep apnea in either the PR-Physician or the PR Psychiatrist Accordingly, the panel does not admit the additional inf o rmation in document #3 because it does not meet the tests set out section 22(4)(a) or (b) of the Employment and Assistance Act. At the hearing, the appellant told the panel that the ministry has qualified her as a person with persistent medical barriers to employment ("PPMB") for the last 20 years and her most recent renewal of her PPMB status was a few months ago. She told the panel that she should be designated as a person with disabilities and she and her representative, her mother, described the ways in which the appellant's impairments affect her ability to perform her DLA and this is noted where applicable in the following summary of the evidence. The following is a summary of the evidence from the two PRs, and the AR, as well as the psychiatrist's letter of December 30, 2013, and the information set out in admitted documents #1 and #2, as they relate to the PWD criteria at issue. The panel has also included reference to the appellant's SR in the PWD application, as well as her submissions at the hearing. Severity of physical impairment (criteria set out in subs. 2(2) EAPWDAJ The appellant's physician and psychiatrist have diagnosed her as having a major depressive disorder, panic disorder with agoraphobia, dependent and borderline personality disorder, as well as scoliosis and back pain. At reconsideration, the ministry changed its original decision and accepted that the information provided establishes that the appellant has a severe mental impairment. At the EM T003(10/06101)
hearing, the appellant asserted that her scoliosis and back pain is severe and the ministry should have f o und that she also has a severe physical impairment. In the PR-Physician and PR-Psychiatrist, both doctors diagnosed her with scoliosis and her family physician also indicated she suffered from back pain. In her SR, the appellant wrote that she has scoliosis that required surgery, that she has Harrington rods in her back which have "settled in" over the years causing a lot of pain limiting her physical activn:ies. Her psychiatrist noted in the PR Psychiatrist that the appellant's surgery occurred in 1990 and wrote that the appellant has a Harrington rod inserted in her back and this has caused chronic back pain. The appellant told the panel at the hearing that the rod can never be removed from her back. In the PR-Psychiatrist, the appellant's psychiatrist indicated that the appellant has been prescribed medications that interfere with her ability to perform DLA, writing, "medications cause SEs [side effects ] and impair functioning." In the functional skills assessment in the PR-Physician, the appellant's physician indicated that the appellant could walk 4+ blocks unaided on a flat surface, that she could climb 5+ steps unaided, and that she could lift 2-7 kg (5-15 pounds). The physician check marked "unknown" regarding how long the appellant can remain seated. In this same section of the PR-Psychiatrist, the appellant's psychiatri st check marked "unknown" in answer to the question of how far the appellant can walk unaided on a flat surface, and indicated the appellant could climb 5+ steps unaided. The psychiatrist check marked " unknown" wrth respect to the appellant's limitations in lifting, and indicated she had no limitations in remaining seated. In the AR completed by the appellant's family physician, he indicated that the appellant was independent in 4 aspects of mobility and physical ability (walking indoors, walking outdoors, climbing stairs and standing). The physician indicated that the appellant required periodic assistance with the tasks of lifting and carrying and holding, writing the comment, "scoliosis with chronic back pain limiting her lifting abilities." The appellant's psychiatrist did not complete the AR section of the PWD application. The appellant told the panel that she is in constant pain because of her scoliosis and the rod in her back and as a result she takes strong, prescribed pain medication three times per day which she has been taking f o r a year. She told the panel that she saw a pain specialist a few years ago, but that she could not afford the therapies the pain specialist recommended (such as massage and physio therapy). Ability to perform DLA (criteria set out in subs. 2(2/(b) EAPWDA) In the PR-Psychiatrist. the psychiatrist indicated that the appellant's impairment directly restricts her ability to perform the DLA of daily shopping and management of finances periodically. The psychiatrist wrote the comment, "During periods of more intense symptoms vulnerable to monetary exploitation" to explain his answer. The psychiatrist also indicated that the appellant's impairment directly restricts her social function continuously, writing the comment, "Due to anxiety, low self esteem. panic attacks & fears of negative appraisal and rejection." The appellant's psychiatrist did not complete the AR section of the PWD application. The appellant's physician completed the AR. The physician indicated that the appellant is indeoendent in erformin. all as eds of the DLAs of ersonal care, meals _, _ . Q£!Y.il!9 rent and bills, EMT003(10106/01)
medications and transportation. The physician indicated that the appellant is independent in performing 4 of the 5 listed tasks of the DU\ of shopping, indicating that the appellant requires periodic assistance carrying purchases home, commenting "back pain." The appellant's physician indicated the appellant required periodic assistance "[secondary] to back pain" for the task of basic housekeeping, but was able to independently perform the task of laundry, under the DU\ of basic housekeeping. In the AR, the appellant's physician indicated that she was independent in all aspects of social functioning and had good functioning with her immediate social network. The physician indicated that the appellant had marginal functioning wrth her extended social networks. and wrote, "borderline and dependent personality trait." At the hearing, the appellant and her mother described the extent to which the appellant's impairments affect her ability to perform her DU\, some of which is also set out in the appellant's SR. The appellant told the panel that she has severe depression and she finds it very difficult to get up in the morning and to function throughout the day. She said that she does not like to go out and has anxiety. In her SR, the appellant wrote, "it is always going to be an ongoing battle for I will never be able to do these things on my own." The appellant lives in an apartment in the same complex as her mother and stepfather. The appellant's mother has a key to the appellant's apartment and told the panel that every morning, she goes to the appellant's apartment, lets herself in, wakes up her daughter and helps her get out of bed and get dressed if the appellant's back is in pain. In her SR, the appellant wrote that if her mother didn't help her get up every morning, "I would stay in bed for days" and that there are some days she can't even go outside because of her loneliness, hope lessness and feelings of anxiety. The appellant will accompany her mother to her mother's apartment, where she will eat breakfast. The appellant's mother told the panel that she does most of the cooking and meal preparation although she tries to get the appellant to help if she is up to it. If there are errands, the appellant's mother said that her husband (the appellant's step~father) will drive them to the store and to medical appointments. The appellant's mother does all of the shopping f o r the family. After lunch, the appellant will return to her apartment for a nap, but her mother will come and wake her up after a few hours. The appellant will eat her dinner with her mother and stepfather in : their apartment. The appellant's mother will take the appellant back to her apartment and help her l · get ready for bed, which includes making sure the appellant takes her medications. • The appellant and her mother confirmed that her mother administers the appellant's medication to her and the appellant told the panel that when she has tried to take her medications herself, she has over / dosed hersetf and on one occasion had to go to the hospital as a result. · i The appellant's mother told the panel that she and the appellant's grandmother have been assisting the appellant financially on an ongoing basis, but that as they are both on limrted incomes and the grandmother is moving into a care facility, they cannot afford to help the appellant anymore. The appellant told the panel that her stepfather pays her rent for her, ensuring that her cheques (or cash) are provided to the landlord on time. Assistance required/provided (criteria set out in subs. 2(2/{b){ii) EAPWDA) In the section of the AR describing the assistance provided for the appellant, the family physician wrote, "Close contact with mother who is on disability." At the hearing, the appellant and her mother described the extent to which her mother assists the appellant with all aspects of her DLA, as set out a bove. The appellant told the panel that on the occasions when her mother is not available, her EMT003(10/06/01)
grandmother, a friend or her own daughter (who lives in another city) will help her with her DLA. The appellant and her mother have a friend who they pay to clean their apartments on a regular basis (once a week) and the appellant said this friend does all of her house cleaning. The panel finds that the new information provided by the appellant and her mother at the hearing is in support of the information before the ministry at the time of the reconsideration. The testimony of the appellant reiterates the information in her SR and describes the extent of the help provided her in managing her DLAs. The panel therefore admits the appellant's testimony pursuant to section 22(4)(b) of the Employment and Assistance Act. EAAT 003(10/06/01)
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 appellan t has a severe physical impairment (although it establishes that she has a severe mental impairment) and that the information provided did not demonstrate that her severe mental impairment in the opinion of a prescribed professional directly and significantly restricts her ability to perform daily living activities either continuously or periodically f o r extended periods, and, as a result of those restrictions she requires help to perform those activrties. The following section of the EAPWDA applies to this appeal: 2 (1) rn this section: "assislive 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 (8) 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 (iiO the services of an assistance animal. The following section of the EAPWDR applies to this appeal: 2 (1)For the purposes of the Act and this regulation, "daily living activities", (a) in relallon to a person who has a severe physical impairment or a severe mental impairment, means the f o llowing activities: (i) prepare own meals; (ii) rnanage 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 erform ersonal h iene and self care; EAAT003(10106/01)
(v iii ) manag e personal medication, and (b } in relat ion to a p erson w h o has a severe mental imp (i) make decisions about per s ona l activities, car e or fina (ii) relate to, communicate o r interac t wit h others effectiv Severitv of physical impairment The ap pellant told the pan el th a t he r scoliosis ca uses daily prescribed medicatio n. She said that her back pain is must help h er get dres sed. T h e app e llant told the panel that fam i ly physician a n d that he "doesn't believe" her and doesn't listen to her when she tells her difficul ties. Th e appellant tol d the p a nel she f eels psychiatrist and that he knows her bett e r and ha s a fa mily p h y sician (wh o i s also h e r m ot h er's d octor ). In t he recon s ideration dec is io n, t h e mi ni s tr y based was not a se ver e imp airm ent on t he inf o r m a tio n prov Physician a n d b y the ap pe l la nt' s psychiat rist in the respo n ses of the a ppella n t 's phys i cian and psychiatr her psyc hiat rist in dicates "unknown" wh e n as ked to assess the lift ing, that she is able t o clim b 5 + steps un aide d an that the app e l l a n t 's physici an i ndi c ate s she is ab le to 1 5 l bs and d oes not k n o w how long she can re main s s atisfied th at "the i nf o r mation prov i ded from bo th phy im pa ir m ent." T h e mini s try also noted that in the AR to pe rf or m indep endent ly a l arge ma jori ty o f h e r DLA ap pella nt's psych iatrist] pr ovi des re lat es to [her] mental of [her] physical cap ab i l i ties." The ministry a lso w rot phys ic i a n did not describe th e degree of pain s he expe med i ca t ions help her and "there a re n o medi cal r epo Ana lys is and deci sion The legislatio n provides that the minister may designate a person as a PWD if the min that th e 'person has a seve r e mental or physical impairment that in the opinion of a medical practrtioner is likely to continue f o r at least 2 years (subs. 2 a ccepted that the app e ll ant has a severe mental im p disorders including depressio n , anxiety and panic and agoraphob confirmed in th e PR sections of the PWO applic ation also has scoliosis an d chronic bac k pain and the appellant asserts that this is a severe physical i mp ai r ment. In the PWD application f o rm, the ministry has provided a definition of "impairment" which, although it is not set out in the applicable legislation, offers guidance an applicant's impairment. The ministry states, "impairment" is a "loss or abnormali psychological, anatomical or physiological structure or functioning causing a restriction in the ability to function inde endentl , effective I , a ro riatel or for a reasonable duration." To determine the EAAT003(10/06i01) airment, in cludes the foll o w ing activiti es: nce s; el y. her severe bac k pain for which she must take sometimes so se vere t h a t her moth er she has trouble communicating with h er h i m abo ut sh e ha s a good relati onship with her better under standing of her srtua tion than her rt s d eterm inati on t hat th e appell ant's back pain id ed b y the a ppel lant 's physi c i an in t he PR PR-P sy c hiatr ist. The min i stry n o ted the fo ll owi ng ist in t he functiona l s kills s e cti o n of t he PRs: that ap pell ant's capability of walking an d d h as no limitations li fti ng o r remai n i n g se a ted ; wal k 4 + bl ocks, climb 5 + sta i r s un aid ed , l i f t 5 to e a te d. For this reason , the m i niste r w as not s i cia n s is ev i d ence o f a s e vere phy si ca l . , the ap pellant's p hysi cian r epor ts that she is a ble i , and that "a larg e ma j ority of t h e i nfor mat ion [t he i h e al th and does not provide an a ss essment e in it s recon s ide r ation decis io n th at t he rienc es o n a da i l y b asis nor de s c ribe how her r t s, tests or referral s t o p h ysica l t h e rapist s." ister is satisfied ( 2)(a) of the EAPWDA). The ministry airment-specifically, severe ment al health i a . The appellan t 's physicians that, in addition to her m e ntal i mpairments, she in considering the existence and severity of ty of
sever ity of a n impa irment, there is both a c ause -the imp to which it r e stricts the ab ility to fu nction inde p en dently, duration. The panel no tes tha t the legislat ion provid impairme nt is at the discr e tion of the ministe r , taking i the appella n t . However, the starting point must b e the PR section s of the PWD a pplication, together with the additional informa #2, as well as the lett er from th e appellant 's psychia In t he PR-Ps ychiatrist, t he psychiatrist indic ated that the appel a b ilit y to p eriodically per f o r m daily shopping and management of finances, but his comm di r ected to her mental i mpai r me nt (" d u ring periods of more intense symptoms vu e x p loi tation") and does not refer to back pain. The psychiatrist indic impair ment direct ly restricted her social function i ng rel a ted to h e r me n tal impairment, "Due to anxiety, low self esteem, pani app raisal & reject ion." In as sessi n g the ap pellan t' s p s yc hiatrist indica t e d she could c limb 5+ st ep s and not kn ow how far she c oul d w alk una id ed on a flat su I n the PR-Phy sic ian, her p h ys i c ian indica te d sh e could wa c l imb 5+ steps, li ft 27 - po unds, but he did not know app ell ant's physic ian indic at ed tha t t h e impairm e n are "depr ession with [illeg ible] p anic disorder wi th a app ella n t's sc o l io s i s and bac k p ai n i mp act her abi lity phy si cian i ndicat ed in th e AR th at t h e app ella n t require h oldi ng , w rit ing " sco liosis with chronic ba ck pa i n limitin in dependen t w a lking in door s and outd oors, cl imb ing In his le tt er o f December 3 0, 2013, the ap pe l lant's im p ai r m ent and does not refer t o h e r s c olios is or bac ap pel lant's physician did not com ment at all on the ap only th at she is unem plo yable " bec aus e of m e dica i s on a numb e r of medications ( as ev idenced in document #2 and her t is no information in the l ist of medica tions a b out th e Accordingly, given th e inf o rmation provided by the appellant's physicians, the panel find ministry's determinati on that the inform a t ion provide impairment of chronic back pain resulting from scoliosis is reasonable. Dir e ct a nd s ign ificant restri c t io n s in the a bility to perform DLA. The appellant told t he panel th at because of her m is incapable of performing any of her DL A . As set out previously, described that her mother assists her with all aspects of her DLA -she starts by waking up the appellant, helping her get out of bed , bathe an d dress herself. the meals f o r the family in her apartment, and with the assistance of her husband (the appellant's stepfather) does all of the family shopping and drives the appellant to her a a ellant's mother administers the ao ellant's medications as the EAAT003(10/06/01) airment it self -an d a n effe ct the degre e ef fectively, appropr iat ely o r f o r a reas on a ble es that the determination of the severi ty of an n to ac co unt all o f t he e v idence, inclu ding that of the medical eviden ce -the inf o r mation s e t out i n t ion in docu ments #1 and trist dated December 30, 2013. lant's impairment directly restricted her e nt is lnerable to monetary ated that t h e a ppellant's continuously, but his comment ind ica te s it is c attac k s & fears o f n egati ve fu n ctional skills in the PR-Psychiat r is t, her had no li m it a t io n s remaini ng se ated, and he did r fac e o r her l imi tat ions i n lifting. l k 4 + block s un ai ded on a flat s ur fa ce, ho w long she c oul d r e m ain s ea ted. In the A R. the ts that impa ct the appellant' s ability to manage D LA g orap h obia" -he di d not indi cate t hat the I ! to perfo r m her DLA in th e AR. The ap pell ant's . i d p erio di c as sis tanc e lifti ng an d car rying a nd g he r lrftin g a b il i tie s" b u t indic ated t h at she was stairs a n d stan ding . psy ch iatrist did no t addr e s s her phys ical k pa in. I n the let t e r of Ja n u ary 29, 2 0 14, the pell ant 's phy sical or m ental impa i rment , w r i ting l reas ons" and al tho ugh it is c lear that the appellant : e s ti m ony at the heari ng) , there .i ir eff ects on he r ability to perform her DLA. s that the d does n ot establish a severe physical en t al imp airments and her scoliosis/back pain, she t he a ppellant and he r m other The appellant's mother prepares all of p poin t men t s. The a oellant ets confusE!d and has.
o v e r d o s e d h e r s e l f i n t h e p a s t T h e a p p e l l a n t ' s s t e p d e l i v e r i n g h e r c h e q u e s . T h e a p p e l l a n t w a s o ft e n e m t h a t s h e d o e s n o t h o w t o f u n c t i o n w i t h o u t h e r m o t h e I n t h e r e c o n s i d e r a t i o n d e c i s i o n , t h e m i n i s t r y d e t e r m h a s a s e v e r e m e n t a l i m p a i r m e n t , t h e i n f o r m a t i o n p r 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 ts " t h e a p p e l l a n t ' s a b t h e l e g i s l a t i o n . T h e m i n i s t r y r e f e r r e d t o t h e fa c t t h a t h a t h e r i m p a i r m e n t p e r i o d i c a l l y r e s t r i c t s h e r a b i l i t y o f f i n a n c e s , b u t t h a t h i s e x p l a n a t o r y s t a t e m e n t s ( " d " v u l n e r a b l e t o m o n e t a r y e x p l o i t a t i o n " ) d o n o t " e x p l a p e r i o d s o f m o r e i n t e n s e s y m p t o m s . " T h e m i n i s t r y a t h e a p p e l l a n t r e q u i r e s c o n t i n u o u s a s s i s t a n c e f o r s o e s t e e m , p a n i c a t t a c k s a n d fe a r s o f n e g a t i v e a p p r a i n o t e d t h a t th e p s y c h i a t r i s t " d o e s n o t d e s c r i b e t h e s u a p p e l l a n t ] o r p r o v i d e t h a t d e t a i l t h a t [ t h e r e l e v a n t p a r e c o n s i d e r a t i o n d e c i s i o n n o t e d t h a t i n t h e A R , t h e a i n d e p e n d e n t l y p e r f o r m " a l a r g e m a j o r i t y " o f h e r D LA p h y s i c i a n i n d i c a t e d t h a t s h e r e q u i r e d p e r i o d i c a s s i s t h e D L A o f s h o p p i n g , b e c a u s e o f " b a c k p a i n " . T h e i n d i ca t e d s h e h a d m a r g i n a l f u n c t i o n i n g i n h e r e x t e n A n a ly s i s a n d d e c i s i o n T h e l e g i s l a t i o n r e q u i r e s i n s u b s . 2 ( 2 ) ( b ) o f t h e E A P W t h e a p p e l l a n t ' s i m p a i r m e n t s d i r e c t l y a n d s i g n i fi c a n t l c o n t i n u o u s l y o r p e ri 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 . T p r o f e s s i o n a l m a y i n d i c a t e t h a t , b e c a u s e o f a r e s t r i c 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 fo r e x t e n d e d p e r i o d s , t h b e i n g a " d i r e c t a n d s i g n i fi c a n t r e s t r i c t i o n . " T h e D L A i m p a i r m e n t a r e , a s s e t o u t i n s u b s . 2 ( 1 ) o f t h e E A P W • P r e p a r e o w n m e a l s ; • M a n a g e p e r s o n a l fi n a n c e s ; • S h o p fo r p e r s o n a l n e e d s ; • U s e p u b l i c o r p e r s o n a l t r a n s p o rt a t i o n f a c i l i t i e • P e r f o r m h o u s e w o r k ; • M o v e a b o u t i n d o o r s a n d o u t d o o r s ; • P e r f o r m p e r s o n a l h y g i e n e a n d s e l f c a r e ; • M a n a g e p e r s o n a l m e d i c a t i o n ; • M a k e d e c i s i o n s a b o u t p e r s o n a l a c t i v i t i e s , c a • R e l a t e t o , c o m m u n i c a t e o r i n t e r a c t w i t h o t h e r I n t h e a p p e l l a n t ' s c a s e , t h e a p p e l l a n t a n d h e r m o t h e p i c t u r e o f t h e a p p e l l a n t ' s t y p i c a l d a y a n d t h e e x t r e m i s s u e s i m p a c t h e r a b i l i t y t o p e r f o r m h e r D L A . H o w e . • . . . . · r n f e !) S ! Q ! J c! l , i n o t h E! r W Q r cl s , o n e o r b o t h o f t h e a EM T 0 0 3 ( 1 0 / 0 6 / 0 1 )f a t h e r p a y s t h e a p p e l l a n t ' s r e n t f o r h e r b y o t i o n a l d u r i n g t h e h e a r i n g , s t r e s s i n g t o t h e p a n e l r . i n e d t h a t a l t h o u g h i t r e c o g n i z e d t h a t t h e a p p e l l a n t ! o v i d e d d o e s n o t d e m o n s t r a t e t h a t " t h i s i m p a i r m e n t i i l i t y t o p e r f o r m t h e d a i l y l i v i n g a c t i v i t i e s s e t o u t i n . 1 t t h e a p p e l l a n t ' s p s y c h i a t r i s t i n h i s P R i n d i c a t e d t o p e r f o r m t h e D L A o f s h o p p i n g a n d m a n a g e m e n t u r i n g p e r i o d s o f m o r e i n t e n s e s y m p t o m s " a n d i n h o w f r e q u e n t l y [ t h e a p p e l l a n t ] e x p e r i e n c e s l s o a c k n o w l e d g e d t h a t t h e p s y c h i a t r i s t i n d i c a t e d c i a l f u n c t i o n i n g ( " d u e t o l o w a n x i e t y , l o w s e l f s a l a n d r e j e c t i o n " ) b u t t h e r e c o n s i d e r a t i o n d e c i s i o n p p o r t o r s u p e r v i s i o n t h a t w o u l d b e n e f i t [ t h e g e ] i n t h e A R w o u l d p r o v i d e . " T h e p p e l l a n t ' s p h y s i c i a n i n d i c a t e d t h a t s h e c o u l d s . Th e m i n i s t r y a c k n o w l e d g e d t h a t t h e a p p e l l a n t ' s i t a n c e w i t h t h e t a s k o f c a r r y i n g p u r c h a s e s h o m e i n i m i n i s t r y a l s o n o t e d t h a t t h e a p p e l l a n t ' s p h y s i c i a n : d e d s o c i a l n e t w o r k . D A t h a t a p r e s c r i b e d p r o f e s s i o n a l c o n fi r m t h a t y r e s t r i c t h e r a b i l i t y t o p e r f o r m h e r D L A h e p a n e l n o t e s t h a t a l t h o u g h a p r e s c r i b e d t i o n , a n i n d i v i d u a l r e q u i r e s a s s i s t a n c e e i t h e r i s d o e s n o t n e ce s s a r i l y m e e t t h e l e g i s l a t i v e t e s t o f t o b e c o n s i d e r e d fo r a p e r s o n w i t h a m e n t a l D R , a s f o l l o w s : s ; r e o r f i n a n c e s ; a n d s e f f e c t i v e ty . r a t t h e h e a r i n g s e t o u t a c l e a r a n d c o m p e l l i n g e d e g r e e t o w h i c h h e r s e v e r e m e n t a l h e a l t h v e r , 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 a p r e s c r i b e d e U a n t ' s t r e a t i n . h y s i c i a n s \,\/ h q 9 o m l e t e d t h e . . . . f .
port ion s o f th e P WD applic ation -provid e an op inion directly and significantly r e stric ts her ability t o perform D extended p eri o ds. The appellant's psy ch iatrist -the physician who she says -did not co mp l ete the AR portion of the PWD application. prescribed professional to complete the AR, commen he r ability to perfo rm her DLA. The panel notes tha appellant required pe r iodic ass ista n ce i n the task of bas under the DLA of basic h ousekeeping, but did n ot indicate that t severe menta l impa irment. The pa n e l also notes that the appe impairment restricted her periodically in car rying purch DLA of shopping, b ut t hat t hi s was related to "bac k pain" mental impairment. For th e DL A specif ic al ly relat e d t o persons with a mental impairment, there b y her p h y s icia n in th e AR to in dicat e that the appe significa nt impact on her perfor m an ce of the DLA of mak or f inances (t h e ph ys ician in dica ted she w a s i nde pende financ es pa ying r en t a nd bill s -a nd medic ati on s) . ov er do se d on h er pa in me d i c at ion an d w as taken t in form a tion i n the AR provided by h e r ph ysic i a n, there pr of es sion'al b efo r e the ministry or this p anel to des hospita l or at tend ing physici a n w hen she over dosed). i n tera cting w ith o thers ef fectively, t h e appel lant's phy independ e n t in all aspe cts of soc ial func tion ing and net wo rk but margi nal f u nctioni ng with ex t ended social networks dependa nt perso nality trait." T he pa nel f i nds re as o nable t he m in istry' s as ses sment d e m onstrate that the ap pellan t's s e v e r e menta l impair and significantl y restricts her ability to perform DLA. evidence provided by the appellant' s physicians in the 2 PRs and the 1 AR, m in i s t ry's d etermination that -although the appellant h information provided does not establish that this impairme continuously or periodically for extended periods is reasonable. Help with DLA The appellant an d her mother to ld the panel that she needs extensive ongoing help from her mother (as well as her stepfather and, when her mother is not available, her grandmother, a fr daughter) to perfor m all of her DLA. In its reconsideration, the ministry noted that as it "had not been established that [DLA] are significantly restricted ... it cannot be dete rmined that si No other assistive devices are required." --=.·:.-:..:.: • ---:--__- -,-_ E M T 00 3 ( 10 /06/01 )that the appellant's severe ment al imp airment LA e i t h e r continu ously o r pe r i od ically fo r knows her bett e r than her fami ly phys ician The app ellant's physician was the o nly t in g on how the appellant's im pairments restrict t in tl ie AR, her ph y sic i an indicate d that the i c house keeping "[s econ da r y ] to back pain " . h is r est r iction was a result of her ll a nt' s physician indicated th a t he r a ses home, o ne o f 5 tasks listed under the -a s opposed to the appellant's severe is no inf or m ation pr ovided llant's mental impairment h as a direc t a nd i ng d ecisions a bo u t perso n al activi ties, care nt in a ll t ask s o f man agi ng her pe r sona l Althou g h t he a pp ellan t 's te s ti mony that sh e h a s o hospital as a r esu l t dir ectly co ntradic ts the is no f urthe r inform ati on f r om a pr e s cribed cribe th i s impact (such as a rep o r t fro m t he For t he DLA o f relating to, comm unicating or sicia n indic ated in t he AR th at she w a s had go od functio n in g w i th her immedia te s ocial , writi ng the co mme nt , "Bord e rline & that t he inf o rm ation pro vid ed do e s no t m en t as op pos e d t o her ba ck p ain -di rectly Without such informa tion, and based on the the pa nel finds that the as a s ev ere mental impairment the n t significantly restricts her DLA i e nd and her gnifican t help is required from other persons.
'\ The leg i s lation r e quir e s in subs _ 2(b) (i i i) t h a t in the the appe ll ant's res t rictio ns, the appell ant requires help to bef ore the minist r y at t he recon si deration as se t out by t th e app e l lant ri e eds periodic a ss i s tance wit h li ft i ng, purch a ses hom e and b asi c houseke eping. The phy appell ant rece i ved h elp for DL A fro m he r f amily, wr disabil i ty'' as the explan ation. H o w eve r, the p h y sici as sis t anc e i s as a direct re sult of h er seve re mental i s.a s r esult of scoliosis and b ack p ain. The pan e l fi it has not b een established th at DLA ar e dir e ctl y a nd th at help is required a s provi d ed unde r section 2(2) Con clusio n H aving revi ewed a n d consi de r ed all of the e v idenc e t h e m inistry's dec i sion t h a t the ap pellan t was not eligib supported b y t h e evi d en c e . T he panel therefore conf EMT 003(10106/01) o p i nion of a prescr ib ed profess i onal , as a res ul t of i perform DL A. Th e pa n el n ot e s the evide n ce i he ap pe l l ant's phys ician in the AR was that c arryin g and hold ing -more specifi cally, c arry ing sici an has a lso che ck mark ed in t h e AR tha t the iting "clo se contact with moth er who is on an does not i ndi cate tha t t h e a p p ella nt' s nee d for im pairment (her mental h ealth issues), b u t ra th er n d s that the minis tr y's d etermi nati on th at b ecause signific antl y res tricte d , it cannot be determ ined (b)(ii ) of th e EAPWDA, is re aso na ble. and the re levant l egisl a t ion, t he pa n e l f inds th at le f o r P W D desi gnation i s reaso n ab l y i rms the mi nistry ' s decision. ! I i '
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.