I APPEAL# PART C -Decision under Appeal The decision under appeal is the Ministry of Social Development and Social Innovation (the "ministry") reconsideration decision of January 3, 2014 which found that the appellant did not meet three of five statutory requirements of section 2 of the Employment and Assistance for Persons With Disabilities Act ("EAPWDA") for designation as a person with disabilities ("PWD"). (The panel notes that the date on the reconsideration decision is January 3, 2013, but based on the chronology of events concludes this was a clerical error and the year was actually 2014.) The ministry found that the appellant met the age requirement and that in the opinion of a medical practitioner the appellant's 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 that • as a result of those restrictions, the appellant requires the significant help or supervision of another person, an assistive device, or the services of an assistance animal. 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 EAAT 003( 10/06/01)
I APPEAi # PART E -Summarv of Facts The information before the ministry at the time of reconsideration included the following: • The appellant's PWD application form consisting of the appellant's self-report [dated June 29, 2013], and a physician's report ("PR") and assessor's report ("AR") both signed by the appellant's physician of 6 years [dated June 29, 2013]. • The appellant's undated handwritten reconsideration submission. • A "to whom it may concern" letter from the appellant's physician [dated December 10, 2013]. Admissibility of New Information At the appeal hearing the appellant, through her advocate, submitted the following documents for consideration by the panel: 1. A letter from the appellant's physician, dated January 27, 2014. 2 . A written outline of the submissions to be made by appellant through her advocate. The panel accepted document 2 as written argument. The ministry was invited to make submissions of the admissibility of document 1. The ministry took the position that the above-noted document provided new information regarding the frequency or duration of restrictions caused by the appellant's impairment that was not before the ministry at the time of reconsideration. The ministry noted that if this new information had been available at reconsideration it may have made a different decision. The appellant argued that it was implicit from the information previously provided by the physician that the appellant's impairments affect her chronically or continuously, and that his January 27, 2014 letter was simply providing clarification in support of that previous information rather than being entirely new. In the panel's view, if document 1 were to be interpreted as meaning that wherever the physician had previously stated that the appellant required "periodic" assistance he was now saying she needed "continuous" assistance, it would represent a significant change from what had been before the ministry and so would not be admissible. However, the panel has interpreted document 1 as providing express clarification of the GP's previously stated opinion as to the continuous nature of the appellant's restrictions, rather than the significance of the restrictions. Accordingly, the panel admitted document 1 as information in support of information and records that were before the ministry at the time of reconsideration in accordance with section 22(4) of the Employment and Assistance Act. In oral testimony the appellant provided additional information regarding her impairment. This information provides detail with respect to issues addressed in the original PWD application. Accordingly, the panel has admitted this new information as being in support of information and records that were before the ministry at the time of reconsideration, in accordance withs. 22(4) of the Employment and Assistance Act. EAAT003(10/06/01)
APPEAL# I The ministry relied on its reconsideration decision and submitted no new information. Physical Impairment • In the PR the appellant's physician diagnosed her with anemia, loss of sensation in her right arm, a skin disorder, colitis, and a torn rotator cuff. He commented that she has permanent chronic pain and loss of sensation in her right arm. He noted that she has recurrent bouts of abdominal pain due to colitis, and that she suffers from mild iron deficiency. • In terms of functional skills the physician indicated the appellant can walk 4+ blocks unaided on a flat surface, climb 5+ stairs unaided, and experiences no limitations in remaining seated. He indicated "no lifting", and commented in the AR that pain and loss of sensation in her right arm impair her ability to carry heavy objects and that even minor tasks are difficult. • In his letter of December 10, 2013 the physician wrote that the appellant is undergoing investigations including a CT scan of her abdomen, and that she is scheduled to see a gynecologist and a urologist. • In her self-report the appellant wrote that she has severe diverticulitis. She also wrote that she has swelling in her face every day and that she cannot get her right eye to focus. She reported that she has psoriasis on her back because her immune system is not good, and that most nights she has a fever. • In her written reconsideration submission the appellant wrote that the iron IV causes phlebitis in her left arm, and that her right arm has carpel tunnel, tennis elbow, a torn rotator cuff, and nerve damage. She also noted that she suffers abdominal pain from clamps that were left in her from previous surgery. • In her oral testimony the appellant said that she sleeps poorly, and that for 3 to 5 days out of every 7 she is awake with fever and throwing up. She indicated that she is still undergoing medical tests and appointments to determine the cause of the fever, with the expectation that it is some sort of chronic infection. She said that she has been waiting for months to see specialists. Mental Impairment • In the PR the appellant's physician diagnosed her with severe recurrent depressive episodes. He noted that she has had poor response to therapy. • With respect to functional skills, the physician indicated that the appellant's ability to communicate is good in all respects. He noted significant deficits in 3 categories of cognitive and emotional function: emotional, motivation, and motor activity/bodily function. In the AR the physician described these 3 deficits as having major impacts on the appellant's functioning. He indicated minimal or no impacts in the remaining 10 categories of cognitive and emotional function. • In the AR the physician commented that when the appellant's depressive symptoms "are not controlled she has severe depression with loss of motivation. When she is in treatment her mood is better and she is able to function better but her depression interferes with memory, planning, attention and causes poor concentration. " • In his letter of December 10, 2013 the physician wrote that the appellant's medical condition interferes with her DLA, that she cannot afford a full time housekeeper, that she is the only caregiver for her 3 children, and that there are no family supports for her. He stated "It is my o inion that she is not medicall fit to work at this time." EMT 003(10/06/01)
[��PEAL# • In his letter of January 27, 2014 the physician wrote that he has known the appellant for 6 years and that her physical health has not improved much. He said that her physical symptoms play a huge role in her mental health, and that despite her depression medications having been adjusted and optimized, she continues to struggle mentally. He wrote "Her depression affects her ability to function 100% of the time. Her mood interferes with her sleep, her appetite, [h]er ability to take care of her physical needs as well as those of her children. " • In her written reconsideration submission the appellant wrote that she's been treated for depression for the past 8 years. • In her oral testimony, the appellant said that 3 or 4 times a week she can't get out of bed. She said that she has been under treatment for her depression continuously over the past year, and that she cries about three times a week. DLA • In the PR the physician commented that he has known the appellant for 6 years, that she was a high functioning individual who ran her own business, but that at the moment her symptoms are severe and impair her abilities to work and to ". . . take care of her home tasks. " • In the AR the physician commented that "Even minor tasks e.g. dressing + brushing hair are difficult." • In the AR the physician indicated that the appellant is independent with respect to managing all aspects of the DLA of personal self-care, manage personal medication, and use of transporlation. • He indicated the appellant requires periodic assistance with respect to the DLA of basic housekeeping, and with one aspect of daily shopping (carrying purchases home), commenting that "[The appellant] needs help carrying and lifting due to her right shoulder pain. " • The physician indicated that the appellant requires periodic assistance with all aspects of the DLA manage personal finances (when depressive symptoms are severe she needs encouragement and support from friends) and social functioning ( . . . h as a limited social network . . . does not have good relationships when she is depressed.) The physician indicated that the appellant is functioning marginally with both her immediate and extended social networks. • In response to questions from the panel the appellant responded: ► that she doesn't do well with meal preparation, she can't chop vegetables and she often drops items because of her right arm. She said that she has to manage because she has to feed her children. She said she has no help so she has to be independent. ► she can't carry laundry up and down the stairs in her residence so her children do that for her about 3 times per week. Otherwise, she said that she receives "no assistance with anything. " ► regarding the type of assistance she receives with social functioning, the appellant stated "None. " She said that she doesn't get anything from anybody, and that Mental Health says she is "managing OK", "coping". She noted that she does get some counseling help for herself and her children who also suffer from depression. ► regarding the type of assistance she gets with paying rent and bills, the appellant said that she sometimes forgets appointments and bills. She said she gets no help with anything. EAAT003(10/06/01)
I ��PEAL# Help • With respect to social functioning, the physician indicated that the appellant "does have help through mental health services." • In response to the question "The help required for [DLA] is provided by:" in the AR, the physician responded "NIA". He Indicated that the appellant does not require any prostheses or aids, and that she does not have an assistance animal. • In his letter of January 27, 2014, the physician wrote that the appellant has received some help from mental health services as well as the ministry in the past. EMT 003(10/06/01)
I APPEAL# PART F -Reasons for Panel Decision The issue on this appeal is whether the ministry's decision to deny the appellant designation as a PWD was reasonably supported by the evidence or was a reasonable application of the applicable enactment in the circumstances of the appellant. In particular, was the ministry reasonable in determining that the appellant does not have a severe physical or mental impairment, and that in the opinion of a prescribed professional the appellant's impairments do not directly and significantly restrict her from performing DLA either continuously or periodically for extended periods, and that as a result of those restrictions the appellant does not require help to perform DLA? The relevant legislation is as follows: EAPWDA: 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. EAAT 003(1 0/06/01)
E A P W D R s e c t i o n 2 ( 1 ) : 2 ( 1 ) F o r t h e p u r p o s e s o f t h e A c t a n d t h i s r ( a ) i n r e l a t i o n t o a p e r s o n m e n t a l i m p a i r m e n t , m e a ( i ) p r e p a r e o w n m ( i i ) m a n a g e p e r s o ( i i i ) s h o p f o r p e r s o ( i v ) u s e p u b l i c o r ( v ) p e r f o r m h o u s e a c c e p t a b l e s a n i t a r ( v i ) m o v e a b o u t i n ( v i i ) p e r f o r m p e r s o ( v i i i ) m a n a g e p e r s ( b ) i .n r e l a t i o n t o a p e r s o n f o l l o w i n g a c t i v i t i e s : ( i ) m a k e d e c i s i o n s ( i i ) r e l a t e t o , c o m m ( 2 ) F o r t h e p u r p o s e s o f t h e A c t , " p r e s c r ( a ) a u t h o r i z e d u n d e r a n e ( i ) m e d i c a l p r a c t i t ( i i ) r e g i s t e r e d p s y ( i i i ) r e g i s t e r e d n u r ( i v ) o c c u p a t i o n a l t ( v ) p h y s i c a l t h e r a ( v i ) s o c i a l w o r k e r , ( v i i ) c h i r o p r a c t o r , ( v i i i ) n u r s e p r a c t i t ( b ) a c t i n g i n t h e c o u r s e o f b y ( i ) a n a u t h o r i t y , a s I n d e p e n d e n t S c h o o ( i i ) a b o a r d o r a f r d e f i n e d i n s e c t i o n 1 i f q u a l i f i c a t i o n s i n p s y c h o l o g y a r e a c o n d i t * S e v e r e P h y s i c a l I m p a i r m e n t T h e a p p e l l a n t ' s p o s i t i o n i s t h a t h e r i m p a i r m e n t s c a u s s e v e r e p h y s i c a l i m p a i r m e n t . E AA T 0 0 3 ( 1 0 1 0 6 1 0 1 )[ � P P E A L � e g u l a t i o n , " d a i l y l i v i n g a c t i v i t i e s " , w h o h a s a s e v e r e p h y s i c a l i m p a i r m e n t o r a s e v e r e n s t h e f o l l o w i n g a c t i v i t i e s : e a l s ; n a l f i n a n c e s ; n a l n e e d s ; p e r s o n a l t r a n s p o r t a t i o n f a c i l i t i e s ; w o r k t o m a i n t a i n t h e p e r s o n ' s p l a c e o f r e s i d e n c e i n y c o n d i t i o n ; d o o r s a n d o u t d o o r s ; n a l h y g i e n e a n d s e l f c a r e ; o n a l m e d i c a t i o n , a n d w h o 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 , i n c l u d e s t h e 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 o r f i n a n c e s ; 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 s e f f e c t i v e l y . i b e d p r o f e s s i o n a l " m e a n s a p e r s o n w h o i s n a c t m e n t t o p r a c t i s e t h e p r o f e s s i o n o f i o n e r , c h o l o g i s t , s e o r r e g i s t e r e d p s y c h i a t r i c n u r s e , h e r a p i s t , p i s t , o r i o n e r , o r t h e p e r s o n ' s e m p l o y m e n t a s a s c h o o l p s y c h o l o g i s t t h a t t e r m i s d e f i n e d i n s e c t i o n 1 ( 1 ) o f t h e l A c t , o r a n c o p h o n e e d u c a t i o n a u t h o r i t y , a s t h o s e t e r m s a r e ( 1 ) o f t h e S c h o o l A c t , i o n o f s u c h e m p l o y m e n t . * * * * * * e s e v e r e p a i n a n d l a c k o f s l e e p , c o n s t i t u t i n g a
appella nt has l imi t at i o n s with h e r rig ht arm and s houl funct i o nal abi lities of the left arm and h an d . The min t he m a jori t y of h e r D L A in de p e n dentl y or wit h perio severe physi cal i mpairment. Pane l Decis ion A diag n osi s of a s e r iou s medica l cond iti o n d o es not se ver e i m p a i rment. An " im p air m ent " i s a medi c al co a bi lity t o func tion in de pendent ly or effec ti ve l y. To asse ss t h e severi ty o f a n impairme n t o n e mu s t c exte nt o f i t s impa ct o n d ail y fun ct i on i n g a s ev i de n ce w h ich perfo rm ing DLA is res trict ed . A me d ical barr emplo ym ent is n ot a le gisla ted crit erion f or s ever it y. determination of s ev erity is at th e d iscre tion o f th e m includ ing tha t o f the a p pellant. However, t he leg islatio the a nalysis is t h e eviden ce f r om a pre scribed pro f e Th e phy s icia n's evid ence f rom the PR is th at th e appella climb ing stair s, s tandi ng , and sitting. H is evide nce phys i c i an n oted "no li fting", but his c ommentary in the ab ility to l ift "he a vy objects ." He noted in th e AR tha n ec ess arily co nstitut e a "sev ere " impair ment as cont The panel n o tes th at the app e l lant i s s till un der going me the panel must ba se its d ec i s i on on t he evi denc e that i As dis cussed in more d e tai l in th e subse q ue nt se ctio Re s t rictio ns to DLA , the fu n c t i on a l skills l imita tio ns appear t o h ave transl a ted i nto s ig ni ficant re s t rictio ns i For the foregoing reasons, the panel has concluded tha physical health issues, the ministry reasonably determined that the evidence falls shor establishing that the appellant has a sev ere physical i Severe Mental Impairment The appell an t a rgued that h er chronic depres sion con stated that her physical impairments aggravate her me worse n ing. Th e ministry's position, as set o u t in its reconsideration appellant has episodes of depression or how long her mood is better when she is in treatm ministry concluded that not enough evidence had been provided by the physician to confirm a severe mental impairment. EAAT 003(1 0/06/01) I APP C:<\L # I der, but says ther e was no inform atio n rega r ding i s try says that a s the appe llant is able to ma n a ge di c assis tance, the e v ide nce d o es not establish a in i t s e l f d etermin e PWD eli gib ili ty o r e stablish a ndi tion th at res ul t s in res tri c tions t o a per s on' s onsi der the n ature of the imp a i rm e n t an d t he d b y func ti o n a l skill l imitations and the d e gree to ier to th e app e l lant ' s abil ity to engage in pai d Th e leg i slation mak es it c lea r th a t the i niste r, taking into a c count al l of t h e e vide n ce n i s als o clear that the fun da mental b a si s f or ss io na l -in th is c a s e, the a ppell ant's phy sic ian. n t is un r est ricted in te rm s o f walk ing, in t h e AR i s consis tent with this. In the PR the AR make s i t cl e ar that he wa s refer ring to her t " e v en minor t as ks are di fficu lt", but t h is doesn' t e m p lated by section 2 of the EAPWDA. d ic a l tests f o r other p otenti al pr oblems, but t curr ently h as be fore it. n o f this d e cis ion und e r t h e h ead ing Signif icant r esulting fr om the app e ll ant' s impa i r ments d o not n he r abil ity to mana g e her DLA ind e p e ndently. t while the appellant does have some serious t of m pai r ment as c ontempl a t e d by t he l e gislation. stitutes a severe mental imp a i r ment. She ntal con dition, an d that he r condition is decision, is t hat it is not clear how often the ent. The
P a n e l D e c i s i o n T h e p h y s i c i a n ' s e v i d e n c e i n t h e P R a n d t h e A R i s c e p i s o d i c . . . t h e r e a r e p e r i o d s w h e n i t i s b e t t e r a n d p e b e t t e r , t h e a p p e l l a n t m a n a g e s t o f u n c t i o n b e t t e r , t h o m e m o r y , p l a n n i n g , a n d a t t e n t i o n / c o n c e n t r a t i o n . T h 2 7 , 2 0 1 4 i n w h i c h h e n o t e s t h a t h e r D L A a r e a f f e c t e o b s e r v a t i o n , t h e r e i s n o e v i d e n c e a s t o h o w o f t e n o a n d h o w o f t e n o r h o w l o n g h e r m o o d i s " b e t t e r " . S e c t i o n 2 ( 1 ) ( b ) o f t h e E A P W D R p r e s c r i b e s t w o D L A 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 o r f i n a n c e s i n t e r a c t w i t h o t h e r s e f f e c t i v e l y ( s o c i a l f u n c t i o n i n g ) . s i g n i f i c a n t l y r e s t r i c t e d w i t h r e s p e c t t o d e c i s i o n m a k i d e c i s i o n m a k i n g a s p e c t s o f d a i l y s h o p p i n g ( m a k i n g m e d i c a t i o n ( f i l l i n g / r e f i l l i n g / t a k i n g a s d i r e c t e d ) , a n d m n o t e d t h a t t h e a p p e l l a n t r e q u i r e s p e r i o d i c a s s i s t a n c e r e n t a n d b i l l s ) w h e n " d e p r e s s i v e s y m p t o m s a r e s e v e g e t s n o h e l p w i t h t h i s . W i t h r e s p e c t t o s o c i a l f u n c t i o n i n g , t h e p h y s i c i a n i n d w i t h a l l a s p e c t s , b u t t h e r e i s n o e v i d e n c e b e fo r e t h e f r o m w h o m . T h e e v i d e n c e i n d i c a t e s t h a t t h e a p p e l l a s a i d t h a t s h e g e t s n o h e l p w i t h s o c i a l f u n c t i o n i n g , a n h e r d e p r e s s i o n s h e i s n o t c u r r e n t l y r e c e i v i n g a n y c o t h e a p p e l l a n t m a n a g e s t o f u n c t i o n m a r g i n a l l y , b u t t o h e r i m m e d i a t e a n d e x t e n d e d s o c i a l n e t w o r k s . C o n s i d e r i n g t h e e v i d e n c e a s a w h o l e , t h e p a n e l c o n t h a t i i d o e s n o t d e m o n s t r a t e a s e v e r e m e n t a l i m p a i r m S i g n i f i c a n t R e s t r i c t i o n s t o D L A T h e a p p e l l a n t ' s p o s i t i o n i s t h a t h e r D L A a r e s i g n i f i c a u s e o f t h e t e r m s " r e c u r r e n t " a n d " c h r o n i c " t o a r g u e t h d e p r e s s i o n c o n t i n u o u s l y r e s t r i c t h e r m a n a g e m e n t o f a r g u e d t h a t t h e m i n i s t r y e q u a t e d t h e t e r m s " i n d e p e n t h e l e g i s l a t i o n c l e a r l y d i ff e r e n t i a t e s b e t w e e n t h e t w o . T h e m i n i s t r y ' s p o s i t i o n , a s s e t o u t i n i t s r e c o n s i d e r a t i i n d e p e n d e n t l y , o r w i t h p e r i o d i c a s s i s t a n c e , m a n a g e p r e s c r i b e d p r o f e s s i o n a l s h a v e n o t p r o v i d e d s u ff i c i e n p e r i o d i c r e s t r i c t i o n s . T h e m i n i s t r y s t a t e d t h a t t h e r e i s 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 f i c a n t l y r e s 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 . E AA T 0 0 3 ( 1 0 / 0 6 / 0 1 )A P P E A L # � o n s i s t e n t t h a t t h e a p p e l l a n t ' s d e p r e s s i o n i s r i o d s w h e n i i i s w o r s e . W h e n s h e i s f e e l i n g u g h h e r d e p r e s s i o n c o n t i n u e s t o a f f e c t h e r i s i s s u p p o r t e d b y t h e p h y s i c i a n ' s l e t t e r o f J a n u a r y d " 1 0 0 % i f t h e t i m e . " H o w e v e r , d e s p i t e t h i s r f o r h o w l o n g h e r d e p r e s s i o n i s " n o t c o n t r o l l e d " , t h a t a r e s p e c i f i c t o m e n t a l i m p a i r m e n t m a k e ( d e c i s i o n m a k i n g ) , a n d r e l a t e t o , c o m m u n i c a t e o r T h e e v i d e n c e i n d i c a t e s t h a t t h e a p p e l l a n t i s n o t n g i n t h a t s h e i n d e p e n d e n t l y m a n a g e s t h e a p p r o p r i a t e c h o i c e s ) , m a n a g e p e r s o n a l e a l p r e p a r a t i o n ( m e a l p l a n n i n g ) . T h e p h y s i c i a n f r o m o t h e r s i n m a n a g i n g p e r s o n a l f i n a n c e s ( p a y r e " , b u t t h e a p p e l l a n t ' s e v i d e n c e w a s t h a t s h e i c a t e d t h a t t h e a p p e l l a n t r e q u i r e s p e r i o d i c s u p p o r t p a n e l a s t o w h a t t y p e o f s u p p o r t s h e r e c e i v e s o r n t h a s g o o d c o m m u n i c a t i o n s k i l l s . T h e a p p e l l a n t d i n d i c a t e d t h a t w h i l e s h e i s o n m e d i c a t i o n f o r u n s e l l i n g o r t h e r a p y . T h e p h y s i c i a n i n d i c a t e d t h a t s u ff i c i e n t l y t o m e e t h e r b a s i c n e e d s w i t h r e s p e c t c l u d e s t h a t t h e m i n i s t r y r e a s o n a b l y d e t e r m i n e d e n t . n t l y r e s t r i c t e d . S h e e m p h a s i z e d t h e p h y s i c i a n ' s a t t h e c o m b i n a t i o n o f p h y s i c a l i m p a i r m e n t a n d D L A 1 0 0 % o f t h e t i m e . T h e a p p e l l a n t a l s o d e n t l y " a n d " w i t h p e r i o d i c a s s i s t a n c e " , b u t t h a t o n d e c i s i o n , i s t h a t t h e a p p e l l a n t i s a b l e t o t h e m a j o r i t y o f h e r D L A . T h e m i n i s t r y f e l t t h a t t h e t e v i d e n c e o f t h e f r e q u e n c y o r d u r a t i o n o f n o t e n o u g h e v i d e n c e t o c o n f i r m t h a t t h e t r i c t h e r a b i l i t y t o p e r f o r m D L A e i t h e r c o n t i n u o u s l y
I APPl=AI it Panel Decision The legislation requires that a severe impairment directly and significantly restricts the appellant's ability to perform DLA either continuously or periodically for extended periods. The term "directly" means that there must be a causal link between the severe impairment and the restriction. The direct restriction must also be significant. Finally, there is a component related to time or duration. The direct and significant restriction may be either continuous or periodic. If it is periodic it must be for an extended time. Inherently, any analysis of periodicity must also include consideration of the frequency. All other things being equal, a restriction that only arises once a year is less likely to be significant than one which occurs several times a week. Accordingly, in circumstances where the evidence indicates that a restriction arises periodically, it is appropriate for the ministry to require evidence of the duration and frequency of the restriction in order to be "satisfied" that this legislative criterion is met. Section 2(1) of the EAPWDA prescribes ten DLA. Of those ten, the physician's evidence indicates that the appellant manages four of them independently in all respects: use of transportation, move about indoors and outdoors, personal self-care, and manage personal medication. Based on the analysis presented above under the heading Severe Mental Impairment, the panel concludes that the appellant also manages the three DLA of manage personal finances, decision making, and social functioning independently. The physician indicates that the appellant's impairments directly and continuously restrict the appellant's ability to manage her DLA, but because she manages them independently or with minimal assistance -as discussed below under the heading Help with DLA -the restriction cannot be said to be "significant" as required by the legislation. Regarding the three remaining DLA -meal preparation, basic housework, and daily shopping-the evidence indicates that the appellant is performing these DLA with at most some limited help from her children. Other than the evidence that her children carry laundry up and down the stairs three times per week, that she gets help with lifting or carrying heavy objects while shopping, and that she has difficulty chopping vegetables and often drops things while cooking, the panel has been presented with no evidence to demonstrate that the appellant is significantly restricted with these DLA. Accordingly, the panel concludes that the ministry reasonably determined that the appellant's ability to manage her DLA is not significantly restricted either continuously or periodically for extended periods. Help with DLA The appellant's position is that she requires help to manage her DLA, even though she is not currently receiving any help. She says that she manages her DLA independently because she has to -she has no alternative. The ministry's position is that since it has not been established that the appellant's DLA are significantly restricted, it cannot be determined that siqnificant help is required from other persons. EAAT 003( 10106101 I
APPEAL# I Panel Decision The panel notes that there may be situations in which a person may "require" help but not be receiving it. The appellant essentially argues that "require" means that a person would benefit from having assistance. In the panel's view the word "require" indicates a degree of necessity so that it is something that a person cannot reasonably do without. If the person does not get the help she requires, the DLA goes undone either continuously or periodically for extended periods, or the DLA takes an unreasonably long time to complete. The panel acknowledges that the appellant's medical conditions impact her ability to manage her DLA, and that she would likely benefit from having assistance with some of her DLA. However, the panel is bound by the legislation, and in the panel's view there is simply insufficient evidence to show that the appellant's DLA go undone for lack of assistance, that it takes her an inordinate amount of time to perform DLA, or that she relies upon "the significant help or supervision of another person" as required by EAPWDA section 2(3)(b)(ii). The panel finds that there is no evidence to indicate that the appellant uses assistive devices or that she has an assistance animal. Accordingly, the panel finds that the ministry reasonably concluded that as it has not been established that DLA are significantly restricted, it could not be determined that the appellant requires help with DLA as defined bys. 2(3)(b) of the EAPWDA. Conclusion The panel acknowledges that the appellant's medical conditions affect her ability to function as she once did. However, having reviewed and considered all of the evidence and the relevant legislation, the panel finds that the ministry's decision finding the appellant ineligible for PWD designation is a reasonable application of the legislation in the circumstances of the appellant. The panel therefore confirms the ministry's decision. EAAT 003(10/06/01)
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.