APPEAL# I PART C -Decision under Appeal The decision under appeal is the Ministry of Social Development and Social Innovation (the ministry) reconsideration decision dated January 7, 2014 which found that the appellant did not meet three of the five statutory requirements of Section 2 of the Employment and Assistance for Persons with Disabilities Act for designation as a person with disabilities (PWD). The ministry found that the appellant met the age requirement and that his impairment is likely to continue for at least two years. However, the ministry was not satisfied that the evidence establishes that: • the appellant has a severe physical or mental impairment; • the appellant's daily living activities (DLA) are, in the opinion of a prescribed professional, directly and significantly restricted either continuously or periodically for extended periods; and, • as a result of these restrictions, the appellant requires the significant help or supervision of another person, the use of an assistive device, or the services of an assistance animal to perform DLA. PART D -Relevant Legislation Employment and Assistance for Persons with Disabilities Act (EAPWDA), Section 2 Employment and Assistance for Persons with Disabilities Regulation (EAPWDR), Section 2
APPEAL# I PART E -Summarv of Facts The appellant did not attend the hearing. After confirming that the appellant was notified, the hearing proceeded under Section 86(b) of the Employment and Assistance Regulation. The evidence before the ministry at the time of the reconsideration decision included the Person With Disabilities (PWD) Application comprised of the applicant information and self report dated July 16, 2013, an undated physician report (PR) and an assessor report (AR) dated July 24, 2013, both completed by the appellant's family physician who has known the appellant for 15 years. The evidence also included the appellant's Request for Reconsideration dated December 18, 2013. Diagnoses The appellant has been diagnosed by his general practitioner with scoliosis, compression fracture (L1 ), and osteopenia, with no dates of onset provided. There was no diagnosis included in the PR of any mental health conditions. Physical Impairment In the PR, the appellant's family physician reported that: • " . . . because of the compression fracture L 1 and scoliosis, he is in constant pain. Now he has also got degenerative disc disease of the spine (age-related). He is on narcotics regularly to help with pain." • The appellant requires a prosthesis or aid for his impairment and noted: "orthotics to help with scoliosis." • In terms of functional skills, the appellant can walk 4 or more blocks and climb 2 to 5 steps unaided, lift between 2 to 7 kg. (5 to 15 lbs.) and remain seated 1 to 2 hours. In the AR, the appellant's family physician indicated that: • His impairments that impact his ability to manage daily living activities are: "constant pain and scoliosis aggravating degenerative disease." • The appellant is assessed as independent with walking indoors and outdoors, and taking significantly longer than typical with climbing stairs (note: "lumbar fracture causes pain"). • The appellant is assessed as requiring periodic assistance with standing and lifting and carrying and holding. • The appellant "takes narcotics regularly to help with pain. Any prolonged activity aggravates. Not able to do any activity longer than 1 to 2 hours." • The appellant routinely uses a prosthesis to help compensate for his impairment, with a note that he "recently bought orthotics to correct scoliosis." • In response to the request to describe the equipment or device that is needed but not currently being used, the family physician indicated 'none'. • The appellant had an accident "several years ago" and sustained the L 1 fracture. Over the years he developed scoliosis. Now the degenerative disc is aggravating the lumbar pain. He has to be on narcotics all the time. In his self-report in the PWD application, the appellant wrote that: • He has been living with severe, chronic scoliosis, an incredibly painfu I disability that significantly impacts his day-to-day life. • His two lower lumbars are 90% fractured. He is in constant, severe pain. He cannot sit or
APPEAL# I stand in one position for any significant period of time before the pain becomes too intense. • He has to take frequent breaks when he walks. In his Request for Reconsideration, the appellant wrote that: • He has lived alone f o r the past 6 years. • He cannot stand in one place for more than an hour at a time, or sit for one hour at a time. • He uses a cane at all times and cannot walk more than 3 blocks at once. • He is on major pain killers and he cannot enjoy the simple things in life anymore without a lot of pain. • His family physician has been on holidays and she will fill out the necessary forms in the new year. Mental Impairment In the PR, the appellant's family physician reported a significant deficit with cognitive and emotional functioning categorized as "other", with a note that the appellant has "pain due to fracture and being on narcotics." The physician noted that the appellant has no difficulties with communication. In the AR, the family physician indicated that the sections of the report relating to an applicant with an identified mental impairment or brain injury do not apply to the appellant. Therefore, there was no assessment provided for the degree of impact to daily functioning as a result of deficits to cognitive and emotional functioning, nor to aspects of social functioning. Daily Living Activities (DLA) In the PR, the family physician indicated that the appellant has not been prescribed any medication and/or treatment that interfere with his daily living activities. In the AR, the physician reported that: • The appellant is independent in all tasks of several DLA, including moving about indoors and outdoors, personal care, shopping, paying rent and bills, and medications. • For basic housekeeping, the appellant requires periodic assistance with doing his laundry and he takes significantly longer than typical with basic housekeeping (note: "wife does. Cannot bend because of fracture.") • The appellant recently bought orthotics and "seems to help with the alignment." • For all of the tasks of both meals and transportation, the appellant requires periodic assistance. • The appellant's wife does the meal planning, food preparation, cooking and safe storage of food. • The appellant's wife "seems to help him a lot where he is required to lift, bend, etc." In his self-report in the PWD application, the appellant wrote that: • He has trouble breathing, which is a common symptom of severe scoliosis. He believes that his disability prevents him from doing basic activities and he has a significantly reduced quality of life as a result. In his Request for Reconsideration, the appellant wrote that: • He has lived alone for the past 6 years and he has to hire people to clean his place and shop for groceries for him. • The worst oart is he has to depend on others for normal daily living activities.
APPEAL# I Need for Help The family physician reported that the appellant uses orthotics and that the help required for DLA is provided by the appellant's family, specifically his wife. In response to the request in the AR to describe the equipment or device that is needed but not currently being used, the family physician indicated 'none'. In his Notice of Appeal, the appellant wrote that: • He cannot maintain a normal, standard daily living routine without suffering and agony all the time. • He has to hire people to shop and prepare meals, to bathe and shower for long periods. • He cannot walk or sit for half an hour at a time. • He cannot maintain a normal lifestyle. The ministry did not raise an objection to the admissibility of the additional information provided in the appellant's Notice of Appeal. The panel admitted the appellant's evidence as further detail of the impacts of his diagnosed conditions and, therefore, in support of the information and records before the ministry on reconsideration, pursuant to section 22(4)(b) of the Employment and Assistance Act. The ministry relied on its reconsideration decision.
I APPEAL# PART F -Reasons for Panel Decision The issue on the appeal is whether the ministry's reconsideration decision, 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 mental or physical impairment and that his daily living activities (DLA) are not, in the opinion of a prescribed professional, directly and significantly restricted either continuously or periodically for extended periods and that, as a result of those restrictions, it could not be determined that the appellant requires the significant help or supervision of another person, the use of an assistive device, or the services of an assistance animal to perform DLA. The criteria for being designated as a person with disabilities (PWD) are set out in Section 2 of the EAPWDA as follows: Persons with disabilities 2 ( 1) In this section: "assistive device" means a device designed to enable a person to perform a daily living activity that, because of a severe mental or physical impairment, the person is unable to perform; "daily living activity" has the prescribed meaning; "prescribed professional" has the prescribed meaning. (2) The minister may designate a person who has reached 18 years of age as a person with disabilities for the purposes of this Act if the minister is satisfied that the person has a severe mental or physical impairment that (a) in the opinion of a medical practitioner is likely to continue for at least 2 years, and (b) in the opinion of a prescribed professional (i) directly and significantly restricts the person's ability to perform daily living activities either (A) continuously, or (B) periodically for extended periods, and (ii) as a result of those restrictions, the person requires help to perform those activities. (3) For the purposes of subsection (2), (a) a person who has a severe mental impairment includes a person with a mental disorder, and (b) a person requires help in relation to a daily living activity if, in order to perform it, the person requires (i) an assistive device, (ii) the significant help or supervision of another person, or (iii) the services of an assistance animal. (4) The minister may rescind a designation under subsection (2). Section 2(1)(a) of the EAPWDR defines DLA for a person who has a severe physical or mental impairment as follows: Definitions for Act 2 (1) For the purposes of the Act and this regulation, "daily living activities", (a) in relation to a person who has a severe physical impairment or a severe mental impairment, means the following activities: (i) prepare own meals; (ii) manage personal finances;
APPEAL# I (iii) shop for personal needs; (iv) use public or personal transportation facilities; (v) perform housework to maintain the person's place of residence in acceptable sanitary condition; (vi) move about indoors and outdoors; (vii) perform personal hygiene and self care; (viii) manage personal medication, and (b) in relation to a person who has a severe mental impairment, includes the following activities: (i) make decisions about personal activities, care or finances; (ii) relate to, communicate or interact with others effectively. Severe Physical Impairment The appellant's position is that a severe physical impairment is established by the evidence of his pain and difficulty breathing as a result of his scoliosis, compression fracture, and osteopenia. The ministry's position is that the ministry does not have enough inf o rmation from the general practitioner to confirm that the appellant has a severe physical impairment. The ministry argued that, in terms of physical functioning, the general practitioner indicated that the appellant can walk 4 or more blocks and climb 2 to 5 steps unaided, lift 5 to 15 lbs. and sit for 1 to 2 hours. The ministry argued that the general practitioner indicated that the appellant is independently able to walk indoors and outdoors, and can stand, lift, carry and hold with periodic help. The ministry argued that, in considering the appellant's evidence that he cannot stand in one place or sit for more than one hour or walk for more than 3 blocks at once, the functional skills are still not significantly restricted. Panel Decision The diagnosis of a medical condition is not itself determinative of a severe impairment. To assess the severity of an impairment one must consider the nature of the impairment and its impact on the appellant's ability to manage his DLA as evidenced by functional skill limitations, the restrictions to DLA, and the degree of independence in performing DLA. The ministry describes this approach when it defines the word "impairment" in the physician report as being "a loss or abnormality of psychological, anatomical or physiological structure or function causing a restriction in the ability to function independently, effectively, appropriately or for a reasonable duration." This definition is not set out in legislation and is not binding on the panel, but in the panel's view it quite appropriately describes the legislative intent. The legislation clearly provides that the determination of severity of impairment is at the discretion of the minister, 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, the appellant's family physician of 15 years, diagnosed the appellant with scoliosis, compression fracture (L 1), and osteopenia. While no dates of onset are provided, the family physician commented that the appellant had an accident "several years ago" and sustained the L 1 fracture and, "over the years he developed scoliosis." The family physician also noted that ". ..n ow he has also got degenerative disc disease of the spine (age-related). He is on narcotics regularly to help with pain." The functional skills reoorted in the PR indicated that the aooellant can walk 4 or
APPEAL# I more blocks unaided on a flat surface, climb 2 to 5 steps unaided, lift 5 to 15 lbs. and remain seated f o r 1 to 2 hours. In his Request for Reconsideration, the appellant wrote that he cannot stand in one place for more than an hour at a time, or sit for one hour at a time, that he uses a cane at all times and cannot walk more than 3 blocks at once. The family physician, however, indicated that the aid used by the appellant is orthotics to correct his scoliosis and, in response to the request to describe the equipment or device that is needed but not currently being used, the family physician indicated 'none' In the AR, the appellant is assessed as independent with walking indoors and outdoors, taking significantly longer than typical with climbing stairs, and requiring periodic assistance with standing and lifting and carrying and holding. The physician does not specify the frequency of the assistance required by the appellant except to note that " . .. any prolonged activity aggravates; not able to do any activity longer than 1 to 2 hours." The panel finds that the ministry reasonably concluded that the appellant's functional skills are not significantly restricted. While the appellant wrote in his Request f o r Reconsideration that he is on major pain killers and he cannot enjoy the simple things in life anymore without a lot of pain, his family physician indicated in the PR that the appellant has not been prescribed any medication that interferes with his ability to perform daily living activities. The appellant wrote in his Request for Reconsideration that his family physician had been on holidays and she will fill out the necessary forms in the new year; however, there was no further information from a medical practitioner submitted on the appeal. The panel finds that the ministry reasonably determined that the available evidence, as corroborated by the appellant's long-time family physician, demonstrates a level of independent physical functioning that does not establish that the appellant has a severe physical impairment under section 2(2) of the EAPWDA. Severe Mental Impairment The appellant did not take the position that he has a severe mental impairment. The ministry's position is that the general practitioner did not provide a mental health diagnosis and a severe mental impairment has not been established. The ministry argued that while there is a significant deficit in cognitive and emotional functioning reported, it is related to pain due to fracture and being on narcotics, and there are no impacts on daily functioning and no difficulty with communication. Panel Decision There was no diagnosis included in the PR of any mental health conditions but the physician reported a significant deficit with cognitive and emotional functioning categorized as "other", with a note that the appellant has "pain due to fracture and being on narcotics." The physician noted that the appellant has no difficulties with communication. In the AR, the family physician indicated that the sections of the report relating to an applicant with an identified mental impairment or brain injury do not apply to the appellant. There was no further information with respect to a mental health condition provided from the physician. Therefore, the panel finds that the ministry reasonably determined that a severe mental impairment was not established under section 2(2) of the EAPWDA. Restrictions in the ability to perform DLA The aooellant's position is that his physical impairment directlv and siqnificantlv restricts his abilitv to
APPEAL# I perform DLA on an ongoing basis to the point that he requires the significant assistance of another person and the use of an assistive device. The ministry's position is that the appellant is able to manage the majority of his DLA independently or with little help from others and the information from the prescribed professional does not establish that his impairment significantly restricts DLA either continuously or periodically f o r extended periods. The ministry argued that the general practitioner indicated that the appellant requires periodic help to do the laundry as well as meals and transportation; however, there is no indication of the frequency and duration of the periodic assistance. Panel Decision Section 2(2)(b) of the EAPWDA requires that a prescribed professional provide an opinion that an applicant's severe impairment directly and significantly restricts his daily living activities, continuously or periodically for extended periods. In this case, the appellant's family physician is the prescribed professional. Daily living activities are defined in section 2(1) of the EAPWDR and are also listed in the physician's report section of the PWD application and with additional details in the assessor's report section of the PWD application. Theref o re, a prescribed professional completing any of these f o rms has the opportunity to directly indicate which if any daily living activities are significantly restricted by the appellant's impairments, continuously or periodically for extended periods. The prescribed professional can also report what help the appellant may need. In the appellant's circumstances, the family physician reported that the appellant is independent in all tasks of several DLA, including moving about indoors and outdoors, personal care, shopping, paying rent and bills, and medications. While the appellant wrote that he uses a cane all the time, this was not reported by his family physician. The physician indicated that the appellant requires periodic assistance with doing his laundry and for all of the tasks of both meals and transportation and that "his wife seems to help him a lot where he is required to lift, bend, etc." There is no further information provided regarding the frequency and duration of the periodic assistance and the panel finds that the ministry reasonably concluded that there is not sufficient inf o rmation from the prescribed professional to establish that the assistance indicated is required f o r extended periods of time. While the appellant wrote that he has lived alone for the past 6 years and he has to hire people to clean his place and shop for groceries for him, to prepare meals and to bathe and shower f o r long periods, these restrictions have not been confirmed in the opinion of a prescribed professional. There is also no further inf o rmation regarding the degree of restriction to these DLA, as required by section 2(2)(b )(i) of the EAPWDA The panel finds that the ministry reasonably concluded that there is not enough evidence from the prescribed professionals to establish that the appellant's impairment significantly restricts his ability to manage his DLA either continuously or periodically f o r extended periods, thereby not satisfying the legislative criterion of section 2(2)(b)(i) of the EAPWDA. Help to perform DLA The appellant's position is that he requires the significant assistance of another person or an assistive device to perform DLA. The ministry's position is that because ii has not been established that DLA are significantly restricted, ii cannot be determined that siQnificant help is required. The ministry amued that the
orthotics are helpi n g w i th alignme nt for t he ap pellant's Panel Decision S ection 2(2)(b )(ii) of the EAPWDA req uires that, as a result of direc ability to perform DLA, a person requires help to perfor su bsecti o n ( 3) as the r equirement fo r an assistive device, the significant help o anoth er pers on, or the services of an assist ance animal in order t The evid en ce of t he fam ily physic ian , as a prescribed p is provided by famil y , spe cifically th e appellant's wi f orthoti cs an d com mented that the a ppella nt "rec e ntly bought orthotics to correct scoliosi not rep ort the n eed for a cane as in dicated by t h e a re asonably de termined that as direct and signific ant DLA have not been established, it cannot be determined that the app DL A as a res u lt o f t hose rest rict ions, a s defi ned by sect Con c lusi o n Havi ng r e viewed and considere d a l l o f the e v i d e nce and relev m inistry's re c o nside ration d e cision w hi c h d eterm ined desig nation w as reason ably sup ported by the evidence A P PEAL # I sc o liosi s. t and significant restricti on s in the m those acti vities. Help is defined in r supervision of o perform a DLA. rofessional , is that the help required with DLA e. The family physician confirmed th e n e ed f o r s," but does ppell a n t . The pa n el finds that the ministry restric tion s in the appellant's ability to perform e l lant requires help to perform io n 2(3)( b) of the E APWDA. ant le g i s la t i on, th e pane l fin d s that th e tha t th e ap pella nt w as no t eligi ble for P WD , and therefor e confirms the de ci sio n.
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