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 J a n u a r y 2 1 , 2 p e r s o n 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 f i v e c r i t e r i a r e q u i r e d f o r P W D d e s i g n a t i o n a s s e t o u w i t h D i s a b i lit i e s A c t ( E A P W D A ) s e c t i o n 2 . T h e m i n a g e a n d d u r a t i o n o f i m p a i r m e n t i n t h a t h e i s 1 8 y e a p r a c t i t i o n e r , h i s i m p a i r m e n t i s l i k e l y t o c o n t i n u e f o r t d e t e r m i n e d t h a t , b a s e d o n t h e i n f o r m a t i o n p r o v i d e d o f t h e E A P W D A w e r e n o t m e t : • T h e m i n i s t e r i s s a t i s f i e d t h a t t h e a p p e l l a n t h a • 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 p r o f e s s i o n a l , t h a b i l i t y t o p 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 ) p e r i o d s ; a n d • A s a r e s u l t o f t h e r e s t r i c t i o n s , t h e a p p e l l a n t r a n o t h e r p e r s o n t o p e r f o r m t h e D L A r e s t r i c t e d 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 f o r P e r s o n s w i t h D i s a b E M T 0 0 3 ( 1 0 / 0 6 / 0 1 )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 0 1 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 i n e d t h a t t h e a p p e l l a n t d i d n o t m e e t t h r e e o f t h e t i n t h e 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 i s t r y f o u n d t h a t t h e a p p e l l a n t m e e t s t h e c r i t e r i a o f r s o f a g e o r o l d e r a n d i n t h e o p i n i o n o f a m e d i c a l w o o r m o r e y e a r s . H o w e v e r , t h e m i n i s t r y , t h e f o l l o w i n g c r i t e r i a a s s e t o u t i n s e c t i o n 2 ( 2 ) ( b ) 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 r m e n t . e a p p e l l a n t ' s i m p a i r m e n t s i g n i f i c a n t l y r e s t r i c t s h i s e i t h 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 q u i r e s t h e s i g n i f i c a n t h e l p o r s u p e r v i s i o n o f b y h i s i m p a i r m e n t . i lit i e s A c t ( E A P W D A ) s e c t i o n 2 i lit 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
PART E -Summary of Facts The evidence bef o re the ministry at reconsideration consisted of the following: 1. The appellant's PWD Designation Application, containing the following three parts: • The appellant's Self Report (SR) completed May 24, 2013; • The Physician Report (PR) dated July 14, 2013, completed by the appellant's physician who indicates he has known the appellant for 4 years and had seen him 11 or more times in the previous year; and • The Assessor Report (AR) dated July 14, 2013 also completed by the appellant's physician. 2. The appellant's request for reconsideration dated January 1, 2014 to which were attached the f o llowing documents: • Submission of the appellant dated December 20, 2013 (one page); • Consultation request completed by a physician at the clinic of the appellant's physician on November 15, 2013 (one page); • Copy of documentation for the appellant from his physician's clinic for November 14, 15, 19 27 and 28, 2013 (f o ur pages); • Letter from a general surgeon to the appellant's physician dated November 20, 2013 (2 pages) ; • Lab report for the appellant dated November 19, 2013 (one page); • A physician assessment and treatment record for the appellant dated September 12, 2011 from a hospital in the appellant's city (one page); • A one page medical report relating to an insurance claim f o r the appellant dated October 28. 1999; • A one-page discharge summary of a physiotherapist for the appellant dated November 13, 1996; • A one-page hospital report dated May 23, 1993 regarding the appellant's injuries sustained when he was hit by a truck while riding his bicycle; and • A one-page hospital report dated May 16, 1992 regarding the appellant's injuries sustained when he was hit by a car while riding his bicycle. The appellant completed his notice of appeal on January 30, 2014, and on it he wrote that the ministry's decision is wrong, he has a severe medical impairment that significantly restricts his ability to do daily living activities and he needs the significant help or supervision of another person to perform his daily living activities restricted by his impairment. At the hearing, the appellant provided the panel with a one-page typed letter written and signed by his sister-in-law dated February 17, 2014. In this letter the appellant's sister-in-law describes how the appellant's health is deteriorating and how it is difficult for him to "do many of the things he used to do" writing that "he finds it hard to go up hills and stairs and has to stop to rest often" and "he feels weak with very little energy for accomplishing the tasks of daily living." The appellant says the information from his sister-in-law supports that his health is deteriorating and his low energy prevents him from performing DLA. The ministry had no objection to the admission of the letter from the appellant's sister-in-law. The panel finds that the information in the letter from the appellant's sister in-law is written testimony in support of information before the ministry at the time the decision under EAA T003(10/06/01)
a p pe al was ma de and ad mits t he a dditiona l infor mat 22( 4 ) (b) o f t he Employme nt a ndA ss i s tance A ct. At the hearing , the a pp ell ant told the p an e l that his healt pe r for m his usual acti vities. The a ppella n t h as bee th an the 3 0 days maximum stay ty pica lly all owed to indi b e en ho mel ess for se veral years. The a ppella nt a nd only ac cess es medi c al car e whe n his s ymp toms are acu PWD appl ic ation do es n't know him pa rticul a rly we ll on a r egular ba s i s . T he f o llowing i s a s umm ary o f t he e videnc e from the P cr iter i a at is sue. The panel has als o inclu ded r e f erence application, as wel l a s his sub missions on rec o n side Sev erity of impa irments (crit e ria set out i n subs. 2(2) E Th e appe llant's physic ian d i a g nose d h im in the PR di sease , d egenerative d isc di s ea s e, osteoarth riti s and onset for any of the listed conditi ons. In comm ent i n p hysician w rot e in the PR, " [ the app ellant] h as se v ere physical a bil it y to d o [ DLAs]. H e d oes no t a tte nd t o perso na r ide s a bi ke but has dif ficu lty w alking mo re th an 2 blo h as not b e en prescribe d a n y me dicatio n that int erf er nee d any prosth eses or ai ds fo r hi s im pairme nt. In the impairm e nt s a s, "He pat itis C, chron ic ba ck pain, is chemi In the fun c t ion al s kill s asse ss m e n t in the PR, t h e a p could w alk 1-2 blocks una ided on a flat surfa c e, that h li f t 7 -16 k g (15-35 p ounds) but with t h e comm e n t, " u t h a n 1 hou r, with the co mme nt "20 m inut e s." In t he appellant is able to indepe n dently perform 3 of the 6 listed aspects of mo (walk ing indo or s , climbing stairs, and standing). The physician i per i odic assistance from another person in the areas of walking outdoors, "Cannot blocks" and lifting and carrying and holding, "unable to lift more than 10 pounds." In the PR, the physician checked that th e appellant does cognitiv e and emotional functi o n and in the AR, the physician wrote the and checked no impact for all listed aspects for cognitive and emotional functioning. phys ician indicated t hat t h e a ppel lan t had s a tis f actory a provide any commentary. In the September 12, 2011 hospital report, there is a note that the appellant has fatigue." In the letter of November 20, 2013 written by the general surgeon to the appellant's physician, t h e general surge o n indi cated t ha t th e app hospital on November 15, 2013 and in the clinic documentation for the appellant, it is indicated he was in ER for a astro-intestinal bleed. The eneral sur EMT 003(10/06/01) ion in the qu estionna ire pu r s u a n t to se ction h is de t e r i or a t i n g a n d t h at he l ac k s energy to n l i vin g in a s h elter for the p as t 3 months (longe r v i du al s at the shel ter) a n d b efo re that he h a d his advoca t e t o ld the panel that the a pp ellant te and t hat his physi cian who c omple te d th e bec au s e . the a ppe llant d oe sn't see his ph ysician R and th e AR a s th e y r elate to the PWD to t h e a ppellant's SR in the PWD ratio n an d at the h ea r ing. A PWDA) completed in J ul y 201 3 as havin g i sc h e mic hear t Hepati ti s C, bu t di d n ot ind icate the date of g on th e sev er ity o f the ap pel lan t's co n d itions, t h e imp air m ent s w hich int erfere wit h h is l need s like co okin g , clea nin g, laund r y e tc. He cks." T he physician i n dic ate d that the app ella nt e s with his abilit y t o pe r fo r m DLA, an d d oe s n ot AR , t h e physi cian i den tified the a p pel lan t's c h e art dise a s e, d egen e rative d isc disease . " pel lant 's phys ician ind i cat e d that t he a pp el lan t e cou l d cli m b 2-5 step s una ided, t ha t h e c o ul d p t o 10 lbs", and co ul d re m ain seat ed fo r les s A R , the ap pellant 's physici a n in dicated that the bil it y and physical ab ilit y n dicated t h a t the appellant requires wa l k mor e than 2 not have any has s ignifican t d e f ic its wi t h comment, "not appli cable" In the AR, the bility to c o mmunicate in a l l areas, but did not "Hep. N B /C chr o nic ellant had been in the emergency room of the eon noted the a ellant had an extreme!
low hemoglobin count and was prescribed iron supplements, that the appellant has an enlarged liver and that he "likely had an upper GI bleed either from an ulcer or diffuse alcoholic gastritis." The general surgeon noted that the appellant was now living in a shelter, but "generally lives in a shack in the bush" and also wrote that the appellant "obviously doesn't frequent the doctor's office." In his SR, the appellant wrote that he has Hepatitis A, B and C, chronic back pain, neck and shoulder pain, has had 3 heart attacks and diabetes. He wrote in the SR that he has neck, shoulder and back pain all the time and he told the hearing panel that he is in a lot of pain. In his SR, the appellant wrote that he has no energy to do anything and he repeated this to the hearing panel. The appellant told the panel that he can ride his bike, which he uses instead of walking because he doesn't have the energy to walk, but that he can no longer ride his bicycle up hills or further than a couple of blocks before he has to stop. In his SR, the appellant wrote that he can't lift anything heavy -more than 15 pounds -and wouldn't have the energy to lift it if he could. The appellant told the panel that he is taking iron pills to regain energy, as his blood levels were low. In her letter, the appellant's sister-in law wrote that the appellant's health "has become precarious" and she writes that he is easily short of breath and finds it hard to go up hills and stairs and has to stop to rest often. She also wrote that the appellant feels weak with very little energy "for accomplishing the tasks of daily living." Ability to perform OLA (criteria set out in subs. 2{2)(b) EAPWDA) The physician did not complete the DLA section of the PR. In the AR, the physician indicated that the appellant is independent in performing all aspects of the DLAs of personal care, paying rent and bills, medications and transportation. The physician indicated that the appellant requires periodic assistance in performing the 2 tasks of the DLA of basic housekeeping (laundry and basic housekeeping), writing "unable to do about 60% of time." The physician indicated that the appellant is able to independently perform 3 of the 5 listed tasks of the DLA of shopping (reading prices and labels, making appropriate choices, and paying for purchases), but that the appellant requires periodic assistance to perform the tasks of going to and from stores ("unable to do 60% of time") and carrying purchases home ("can't lift more than 10 pounds"). The appellant's physician wrote the comment, "low energy and pain prevents [him] from going to store and carrying groceries." The physician indicated the appellant required periodic assistance for 3 of the 4 tasks of the DLA of meals (meal planning, food preparation and cooking), commenting, "doesn't do these 60% of time due to pain and lack of energy." The physician indicated the appellant could independently perform the task of safe storage of food under the DLA of meals. In the AR section regarding the appellant's social functioning, the appellant's physician indicated that the appellant was independent in all of the 5 aspects and indicated that the appellant had good functioning with his immediate and extended social networks, but did not provide any commentary. At the hearing, the appellant described a typical good day (before living in the shelter) would be one in which he got up, rode his bike downtown where he would have a noon meal at a social service agency and take a shower there, collect recyclables on his bike, have a sandwich or dinner at a social service agency and then return to where he was sleeping. On a typical good day in the shelter, the appellant said he will get up and have breakfast, then take the bus downtown. At the shelter, the appellant's meals are prepared and provided for him. He told the panel he is able to bathe independently and take his iron pills (he doesn't need help from the shelter staff to remember to take his iron pills). The aooellant said that he can do his own laundry, but that he can't shop or do thinas .,,, EMT 003(10/06/01)
like peel potatoes� he just doesn't have the energy and it hurts too much. In her letter, the appellant's sister-in-law wrote that the appellant feels weak and has very little energy and that "this includes his usual routine of recycling to afford the basic necessities of life." 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 physician indicated that the appellant received help from friends, but did not provide any commentary. In the PR, the physician indicated that the appellant does not require any aids for his impairment, but in the AR indicated that the appellant routinely uses a cane to help compensate f o r his impairment. At the hearing, the appellant's advocate said that the physician misunderstood the question in the AR and meant that the appellant would benefit from the use of a cane to help him walk. The physician indicated that the appellant could use the assistance of a cane, but did not provide any commentary in the AR. The panel finds that the testimony provided by the appellant at the hearing is in support of the information bef o re the ministry at the time of the reconsideration. The testimony of the appellant reiterates the information in his SR and describes his impairments and the effect his impairments have on his DLA. The panel therefore admits the appellant's testimony pursuant to section 22(4)(b) of the Employment and Assistance Act EAAT003(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 he 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 physical or mental impairment or demonstrate that his impairments in the opinion of a prescribed professional directly and significantly restricts his ability to perform daily living activities either continuously or periodically for extended periods, and, as a result of those restrictions he requires help to perform those activities. 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 lo 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. 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 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 lo 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 lb ) in relation to a oerson who has a sever e mental imoairment, includes the followina activities: EMT 003(10/06/01)
(i) make decisions about personal activities, care or finances; (ii) relate to, communicate or interact with others effectively. Sever/Iv of impairment The appellant and his advocate told the panel that he suffers from severe low energy which is made worse by his identified heart disease and osteoarthritis. The appellant's advocate told the panel that the appellant will only seek medical attention when his conditions are acute and she pointed to the hospital records from the appellant's bike accidents in 1992 and 1993 to illustrate that he doesn't see the doctor often, as well as the comment in the letter of November 20, 2013 from the general surgeon that the appellant "obviously doesn't frequent the doctor's office." For this reason, the appellant and his advocate argue that the information provided by the appellant's physician is necessarily limited because the physician doesn't know the appellant well. The appellant's advocate says that where the appellant's physician has indicated that the appellant cannot perform certain DLAs "60% of the time" that this shows the severity of the appellant's impairments in that it is more than half of the time. The advocate argued that the appellant's ability to ride his bicycle -which is limited and decreasing is to compensate for his low energy which restricts his ability to walk any distance. The advocate asserted that this illustrates that the appellant's impairment -his low energy coupled with heart disease and osteoarthritis -is severe. In the submissions on reconsideration, the appellant's advocate wrote that the appellant "is reluctant to acknowledge any mental health impairment and he doesn't attend a [doctor's] office enough for them to truly know his functional skill level." The appellant and his advocate did not argue at the hearing that he has a severe mental impairment, although sister-in-law wrote in her letter that the appellant took special classes and didn't get the same education as his siblings and has lived outside "with no real desire to follow the normal rules of society." The appellant has lived his adult life outside "in a shack in the bush" until he moved to the shelter 3 months ago. In the reconsideration decision, the ministry based its determination that the appellant did not have a severe impairment on the inf o rmation provided by the appellant's physician in the PR and AR, as well as the other medical information (letter from general surgeon and related hospital reports). The ministry noted that the appellant had been diagnosed with ischemic heart disease, degenerative disc disease, osteoarthritis, Hepatitis C and a recent gastrointestinal bleed. The ministry referred to the information provided by the appellant's physician in the PR regarding his functional skills -that the appellant is able to walk 1-2 blocks and climb 2-5 steps unaided, lift up to 10 lbs and sit for less than 1 hour. The ministry determined that "this level of impairment is more in keeping with a moderate degree of impairment rather than severe." The ministry noted that the appellant's physician "makes note of low energy and pain" but does not explain which of the appellant's medical conditions the doctor is referring to when describing the symptoms "making it difficult to determine which one condition (or a combination of conditions)" cause the appellant's symptoms. For this reason, the ministry found ii was difficult to assess the severity of each of the appellant's conditions. The ministry also noted that the appellant rides a bike "as a tool to get from place to place to compensate" f or the appellant's walking limitations. However, according to the ministry, "the ability to continue to ride [hisj bike as a mode of transportation is not indicative of a severe physical impairment." The ministry acknowledged that the appellant has certain limitations as a result of his medical conditions, but found that the information provided does not establish evidence of a severe physical impairment. The ministry noted that "no mental health conditions have been identified" by his physician in the appellant's PWD application, his physician did not identify significant deficits with his cognitive and emotional functionin in the PR and AR and wrote "not a licable" and for this reason, the minister EMT003(10106101)
was not satisfied that the information provided established a severe mental impairment. Analysis and decision The legislation provides that the minister may designate a person as a PWD if the minister is satisfied that the person has a severe mental or physical impairment that in the opinion of a medical practitioner is likely to continue f o r at least 2 years (subs. 2(2)(a) of the EAPWDA). The appellant's physician confirmed in the PR that the appellant has ischemic heart disease, degenerative disc disease, osteoarthritis and Hepatitis C and wrote in the PR, "[the appellant] has severe impairments which interfere with his ability to do [DLAs]." The appellant also had a gastrointestinal bleed in November 2013. 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 in considering the existence and severity of an applicant's impairment. The ministry states, "impairment" is a "loss or abnormality of psychological, anatomical or physiological structure or functioning causing a restriction in the ability to function independently, effectively, appropriately or for a reasonable duration." To determine the severity of an impairment, there is both a cause -the impairment itself -and an effect -the degree to which it restricts the ability to function independently, effectively, appropriately or for a reasonable duration. The panel notes that the legislation provides that the determination of the impairment's severity is at the discretion of the minister, taking into account all of the evidence, including that of the appellant. However, the starting point must be the medical evidence -the information set out in the PWD application completed in July 2013, together with the information in the documents from the other physicians who attended the appellant at hospital. In the PR, the physician wrote that the appellant "has severe physical impairments which interfere with his ability to do [DLAs]" and he wrote that the appellant "does not attend to personal needs like cooking, cleaning, laundry etc. He rides a bike but has difficulty walking more than 2 blocks." In assessing the appellant's functional skills in the PR, the physician indicated he could walk 1-2 blocks unaided on a flat surface, climb 2-5 steps, could lift 7-16kg although with the qualifying comment "up to 10 lbs" which is less than 7-16 kg, and could remain seated less than one hour with the comment "20 minutes." In the AR, the physician indicated the appellant could independently walk indoors, climb stairs and stand. The physician indicated the appellant required periodic assistance walking outdoors -"cannot walk more than 2 blocks", and periodic assistance lifting and carrying and holding -"unable to lift more than 10 pounds." In the other medical reports, there is very little information provided about the effect of the appellant's impairments on his functional skills. In the letter of November 20, 2013, the general surgeon notes that the appellant "had all sorts of layers of clothing on and he didn't seem very swift at undoing buttons, etc." with the further remark, "he seems to be managing fairly well." The panel acknowledges that although the appellant may not have a regular relationship with his physician, his physician has had more contact with him than the doctors at the hospital or specialists who have only seen him once, and for this reason, the panel places more weight on the information provided by the physician in the PR and AR. In describing his typical day to the panel, the appellant said that he gets up, eats a meal, and takes the bus downtown before returning to the shelter later in the day. The appellant told the panel he is able to dress and bathe himself and take his iron pills without being reminded. In the PR, the h sician indicated that the a pellant had no significant deficits with cognitive and EAAT003(10/06/01)
e motion al f unc tioning and in the A R , t h e physician wro impact of t h e appellant's impairm ents on his cogniti reference to mental impai rment in any of the ot her appellant i s an alcoholi c (" k nown to binge drink" in consultation request of November "admits to signific an t binge drinking" in notes of Novembe he ar ing, the appe llant w a s a b le to answ er questions and was alert and following the pr The a p pellant d id not asse rt tha t h e has a se vere mental impair submissio ns on reconsider a t ion. T h e information set out by the physician in t he P R and AR functional skills and indicates that h e has funct ionality may not see his physician regularly, the appellant's testimon i nf o rmatio n provided by his physic ian tha t he has fun bike a few b locks, clim b stairs, lift some things that weigh less than 10 period s ) . Accordi n gly, given the inform ation provided by the appella that the ministry's determi nat i o n t h at the i n for mation p i m pair m e n t is reasonab le. Bas e d on th e in formation a ppellant, t he pa ne l a lso finds reasonab le th e mi n i str info r m ati on pro v i ded establ i s hes a severe me n t al imp Direc t and s igni f i cant re s trict ions in the abi lity to p e rfo The a p pellant's advoc a t e stre ss ed to the pa nel tha t mos t of his adult life, a n umb er of the tasks o f DLA do tha t on a typica l da y, h e will g e t his mea ls at a s oc ial currentl y li ving) and tha t he doesn't pr epare me a ls for us ed to coll ect recycl ing on h is b ike, b u t that he doesn't sh take s howers at t h e s ocial service a genc y (and at the s appellant us e s h i s bike for mobi lit y, bu t told the panel it m ore tha n a fe w blocks w ithou t stopping becau se he panel h e t ake s his ir o n pi ll s. In t h e reconsideration decision, the ministry determined that although it acknowle a ppellant has certain l i m ita tions as a re sult of his medical c information provided did not estab lish that a n impai rment continuously or periodically for extended periods. The ministry acknowle appell ant 's advocate that, because the appel lant was homeless, some of applicat ion form are irrelevant. However, the ministry referred to the fact that the appellant's physician indicated in the PR and AR that he was independent in all aspects of the DL c are, pay ing ren t and bills, medication and tra nsp ortation and reported t walking indoors, climbing stairs, standi ng, reading prices and labels s hopping a n d p ay i n g f o r pu rchases. The m in i s try also referred to the fact tha physician had reported that he does not require continuous suppor and that the report that he required periodic assistance walking outdoors, lifting, carrying and holding is "more in keeping with a moderate restrictions, rather than a significant r ability to per fo r m his DLAs. T h e ministry also no ted reasons that the a ellant was unable to erform as EMT 003(10/06/01) te "not appl ica b le" in the s e ction rega r ding t h e v e an d emotional funct ioning. Th e re is no medical reports, altho u gh it is ind icated th a t the 15, 2013, r 14, 2013). The panel n o tes t hat during the ocee dings. m e nt, altho u gh i i was alluded to in his d irectly address e s the appellant's altho u gh it is limite d. Altho ugh the appellant y at the hearing supported t h e ctionality, a lth ough i t i s limited (he can ride his pounds, and stand for some n t 's physician, the panel finds rovided does not est ab l ish a severe phys i cal provid ed by t h e a ppel lan t ' s ph ysic ian a nd by the y 's det erm i n atio n t h at i t i s not s atisfied the airment. rm DLA. b ecause t he app ella nt has been h omele s s for n o t a pply t o h i m . The appellant to ld the pan el ser vi c e agenc y (or at th e shelte r where h e is h i m self. Th e ap p el l an t told the panel th at he op f o r himself. T he app ellan t said he could helter) and cou ld do h is own laundr y . The has b een ha r der f o r him t o r ide an y dista n ce ha s s u ch low e nergy. T he app ella nt told th e d ge d that t h e onditio n s , the mi nistry found t ha t the significantly r estricts his DLA either dged the argume nt of the t h e DLAs on t he PWD As of per sona l hat he was independent in , making approp riate choices in t the appellant's t or su pervision in any o f hi s DLA s estriction" in the appell ant 's that the ap pellant's physician did not e xp lain the ects of t he D L As o f basi c housework and me al
preparation without periodic support "60% of the time." Analysis and decision Subsection 2(2)(b) of the EAPWDA requires that a prescribed professional confirm that the app ellant's impairments directly and significantly restrict his ability to perform his DLA continuously or periodically for extended periods. The panel notes that although a prescribed professional may indicate that, because of a restriction, an individual requires assistance either continuously or periodically for extended periods, this does not necessarily meet the legislative test of being a "direct and significant restriction." The DLA to be considered for a person with a physical impairment are, as set out in subs. 2(1) of the EAPWDR, as follows: • Prepare own meals; • Manage personal finances; • Shop for personal needs; • Use public or personal transportation facilities; • Perform housework; • Move about indoors and outdoors; • Perform personal hygiene and self care; and • Manage personal medication. The appellant argues that because he has been homeless for most of his adult life and because he does not have a regular relationship with his physician, the information about the appellant's ability to perform DLAs set out in the AR and PR is not accurate because as a homeless person, several of the DLA are inapplicable (such as manage personal finances, shop for personal needs and perform housework). However, the legislation requires that a prescribed professional -in other words, the appellant's physician who completed the portions of the PWD application -provide an opinion that the appellant's impairment directly and significantly restricts his ability to perform DLA either continuously or periodically for extended periods. The appellant's physician wrote in the PR that the appellant's physical impairments "interfere with his ability to do" his DLAs, adding, "he does not attend to personal needs like cooking, cleaning, laundry etc." The physician did not specify whether the appellant does not attend to cooking, cleaning and laundry because of his impairment or because he is homeless and does not have access to a kitchen or his own laundry facilities, or live in housing he needs to clean himself. In the AR, the physician indicated that the appellant was able to independently perform all aspects of the DLAs of personal care, paying rent and bills, medications, and transportation. The appellant's physician indicated that he required periodic assistance to perform both tasks of the DLA of basic housekeeping, writing "unable to do 60% of the time," but the panel notes that the physician does not tie the appellant's inability to perform the tasks to his impairment. The physician indicates that the appellant requires periodic assistance for the task of going to and from stores with the comment, "unable to do 60% of time" but again -does not tie this restriction to the appellant's impairments. The physician indicates that the appellant requires periodic assistance carrying purchases home as he "can't lift more than 10 pounds" adding the comment, "low energy and pain prevents [him] from going to store and carrying groceries." The physician also indicated that the appellant required periodic assistance in 3 of the 4 tasks of meals, commenting, "doesn't do these 60% of time due to pain and lack of energy." PAGE 11 of 13 EAAT003(10/06/01)
The pan el f in ds re aso nable the ministry 's assessment dem ons t rate th a t t h e appellan t's im pairments dir e ctl DLA. Without s uch infor ma t ion f r o m th e a ppell a nt's impairment directly a nd si gnificant ly res t r ict his abil it prov id e d b y the app ella nt's physician a nd t he a ppella ministry's determinatio n that -alt hough t he appel lant conditions -t he information provided d oes no t establ DLA c ontinuous l y or p e riod ically f or e xtend e d periods H elp with DLA T h e appel lant t old the pan el that a t the s helt er , he is pr energ y to p repa re his ow n meals so would ne ed help. i ncreasing ly d if f icult for h im to ride his bike an d h e ha walking. In i t s re con s ideration, the m i nistry noted that as it "h si gnificantly restricted ... i t canno t be determ ined t h The mi nistry note d that th e appe ll an t's p hysi cian had in c a n e. The legislation requir es in su bs. 2(b)(i ii ) th a t in the o t he appel lan t 's restrict io ns, the a ppell a n t requires h be fore th e m ini st r y at th e reco ns id e rati o n as set out t he ap pellant needs per iod ic assist a n ce with w a l king sp ec i fically, basi c h o u sekeeping, go ing to a nd fro m s f o o d pr epar ation and coo king . T he ph ysicia n h as al received h elp f o r DLA from his friends, but without any the AR has the p hys ician ind icate d that t he appel lant's res ul t of his pa in and l o w energy ( c ar r ying purcha ses The panel finds th a t th e min is t ry's determina t io n that b are d ire c t ly and sig n i f i c a ntly r estricted , it c an not be det under section 2(2)(b)(ii) of the EAPWDA, is reason able. Conclusion Having reviewed and c onsidered all of t h e evidence and the m i nistry's decisi o n that t h e a pp el lant was n ot e l igib supp or ted by the evidenc e. The panel therefore confirms the ministry's decision. EAA T003(10/06/01) th a t th e in f o rmatio n pr ovided d oes not y an d s ignifi c ant ly restrict his a bility to perfo rm p hysicia n( s) sh o wing how th e ap pellan t' s y to pe rform DLA, and based o n th e e vid e nc e nt a t the h eari ng, t he p a nel finds that the has ce rtain lim itations as a resu lt of his medic al ish that a n i m pai rmen t sig n i fican tl y restri c ts his is r easonab le. ovid e d with his mea l s a n d t ha t h e h as n o He a lso t old the panel that it is be c oming s used his bic y cle as i t is easier for hi m t han a d not be en es tablis hed that [DLA] are at signif icant he lp is re q u ire d from ot he r persons." dica t ed he w ould b enefit from th e use o f a pinion of a prescribed prof essional, as a res ult of elp to perform D LA. Th e pa nel n ote s the ev id e n ce by th e a p pe lla nt's phy sician i n th e AR w as tha t outd oo rs , lifting, car ryi ng and hold ing -mo r e to re s, carrying purcha ses home, me a l p lann i n g , s o c h eck ma rked i n th e AR tha t the a ppella n t c om mentary. H owe v e r, i n o nly two areas of n e ed for per iodic assi stan c e is a s a direct ho me, a nd the thre e tasks o f meal pre p aration). ecaus e i t has no t been e stablishe d tha t DLA ermined th a t hel p is re q ui re d as pro vided the releva n t legislation, the panel find s that l e fo r PWD designation is reasonably
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.