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 M i n i s t r y o f S o c i a r e c o n s i d e r a t i o n d e c i s i o n d a t e d M a r c h 1 4 , 2 0 1 4 w h t h e f i v e s t a t u t o r y r e q u i r e m e n t s o f S e c t i o n 2 o f t h e D i s a b i l i t i e s A c t f o r d e s i g n a t i o n a s a p e r s o n w i t h d i s a p p e l l a n t m e t t h e a g e r e q u i r e m e n t a n d t h a t h i s i m p H o w e v e r , t h e m i n i s t r y w a s n o t s a t i s f i e d t h a t t h e e v • t h e a p p e l l a n t h a s a s e v e r e p h y s i c a l o r m e n t o t h e a p p e l l a n t ' s d a i l y l i v i n g a c t i v i t i e s ( D L A ) a d i r e c t l y a n d s i g n i f i c a n t l y r e s t r i c t e d e i t h e r c o n • a s a r e s u l t o f t h e s e r e s t r i c t i o n s , t h e a p p e l l a n a n o t h e r p e r s o n , t h e u s e o f a n a s s i s t i v e d e v i p e rf o r m D L A 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 E m p l o y m e n t a n d A s s i s t a n c e fo r P e r s o n s w i t h D i s a A P P E A L # I l D e v e l o p m e n t a n d 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 ) i c h f o u n 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 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 a b i l i t i e s ( P W D ) . T h e m i n i s t r y f o u n d t h a t t h e 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 a t l e a s t t w o y e a r s . i d e n c e e s t a b l i s h e s t h a t : a l i m p a i r m e n t ; r e , 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 i n u o u s l y o r p e r i o d i c a l l y f o r e x t e n d e d p e r i o d s ; a n d , t r 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 c e , o r t h e s e r v i c e s o f a n a s s i s t a n c e a n i m a l t o b i l i t i e s A c t ( E A P W D A ) , S e c t i o n 2 b i l i t i e s R e g u l a t i o n ( E A P W D R ) , S e c t i o n 2
APPEAL# I PART E -Summary of Facts The evidence before the ministry at the time of the reconsideration decision included the Person With Disabilities (PWD) Application comprised of the applicant information dated August 27, 2013, a physician report (PR) and an assessor report (AR) both dated August 26, 2013 and completed by a physician who has known the appellant for 6 months. In describing the approach and information sources used to complete the AR, the physician indicated only an office interview with the appellant and no review of his file or chart information or any other secondary source. The evidence also included the Request for Reconsideration-Reasons dated January 6, 2014. Diagnoses In the PR, the appellant was diagnosed by the medical practitioner with degenerative disc disease L spine and T-spine (prior vertebral fracture) with onset in 1985, COPD [chronic obstructive pulmonary disease], depression and anxiety; chronic pain disorder. Physical Impairment In the PR, the appellant's physician reported that: • In terms of health history, the appellant "suffers from severe chronic back pain as a result of previous vertebral fractures (thoracic spine) and degenerative disc disease (lumbar spine); this has led to chronic pain and depression. He is physically very limited-difficulty standing for very long. Unable to lift or carry anything more than about 10 lbs. Chronic cough and SOB [shortness of breath] due to significant COPD as well." • The appellant does not require any prostheses or aids for his impairment. • In terms of functional skills, the physician assessed the appellant as able to walk 4 or more blocks unaided on a flat surface, climb 2 to 5 steps unaided, lift 2 to 7 kg. (5 to 15 lbs.), and remain seated 1 to 2 hours. • In the additional comments, the physician wrote: "he has significant problems which prevent him from working; disabled." In the AR, the appellant's physician indicated that: • The appellant is assessed as independent with walking indoors, walking outdoors and climbing stairs, with a note: "some limitations to endurance." • The appellant is independent with standing and requires continuous assistance from another person with lifting and carrying and holding, with no further comments provided by the physician. In the appellant's self-report included as part of the PWD application, he wrote: • The appellant was in an accident in 1985 which resulted in a broken vertebrae T4ff5 area and not discovered until an X-Ray was done in 1990. His pain had grown to a chronic condition of daily pain and he was taking chiropractic treatments 3 to 4 times a week. • He was subsequently employed in a job requiring standing, bending and lifting and his condition worsened until he ruptured a disc at the L3-L4 area, pinching his sciatic nerve, and requiring surgery. • He has degenerative bone disease in his lower back and now experiences numbness in his left leg and foot. He has "patchy feelings" on his arms and legs, no feeling in some areas and hypersensitive in others, his hips "pop" and knees ache constantly. • He is in constant pain from his shoulder blades to his waist, his back spasms dailv, he has
d i m i n i s h e d c o n t r o l w i t h h i s b o w e l a n d b l a d d a s a c o u g h o r j u s t b e n d i n g d o w n t o p i c k s o m • H e h a s l i v e d w i t h c h r o n i c p a i n f o r a l m o s t 3 0 c o n s t a n t f a t i g u e a n d t i r e d n e s s . • I n N o v e m b e r 2 0 1 1 h i s l e f t l u n g c o l l a p s e d a n a n d ' f i b r o . ' • H e c a n n o t s t a n d f o r m o r e t h a n 2 0 m i n u t e s b • A n y p h y s i c a l a c t i v i t y w h e r e h i s h e a r t r a t e i n c a n d i n c r e a s i n g d i z z y e p i s o d e s t o t h e p o i n t o • H e c a n n o t l i f t o r c a r r y m o r e t h a n 1 0 l b s . f o r s p a s m , l e a d i n g t o l e g a n d l o w e r b a c k p a i n w m a k i n g d a i l y c h o r e s , a n d e v e n w a l k i n g , p a i n I n h i s R e q u e s t f o r R e c o n s i d e r a t i o n , t h e a p p e l l a n t w • S i n c e f i l i n g t h e r e p o r t s i n A u g u s t 2 0 1 3 , h e h f i r s t t i m e 1 0 d a y s , s e c o n d t i m e 3 w e e k s , a n d o n e o f t h e s e o c c a s i o n s d u e t o e x t r e m e p a i n s e c o n d s t o 1 m i n u t e t h a t h e c a n n o t s t a n d , c a l s o a f f e c t e d d u e t o p a i n . • H e h a d a n o t h e r X R a y a n d b r e a t h i n g t e s t D e w o r s e t o t h e p o i n t w h e r e h e i s l a b o r e d a f t e r w o r s e n t h i s c o n d i t i o n c o n s i d e r a b l y . M e n t a l I m p a i r m e n t I n t h e P R , t h e a p p e l l a n t ' s p h y s i c i a n r e p o r t e d t h a t : • T h e a p p e l l a n t ' s c h r o n i c b a c k p a i n h a s l e d t o • T h e r e a r e n o d i f f i c u l t i e s w i t h c o m m u n i c a t i o n • T h e a p p e l l a n t h a s s i g n i f i c a n t d e f i c i t s i n c o g n e m o t i o n a l d i s t u r b a n c e a n d m o t i v a t i o n , w i t h a d u e t o c h r o n i c p a i n . " I n t h e A R , 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 : • T h e a p p e l l a n t h a s a g o o d a b i l i t y t o c o m m u n i • T h e r e a r e n o m a j o r i m p a c t s t o t h e a p p e l l a n t ' • T h e r e a r e m o d e r a t e i m p a c t s t o t h e a p p e l l a n t o f b o d i l y f u n c t i o n s , e m o t i o n a n d m o t i v a t i o n , T h e r e a r e n o i m p a c t s i n t h e r e m a i n i n g 1 0 a r • T h e p h y s i c i a n a d d e d c o m m e n t s : " s o m e b o w p r o b l e m s c a u s e d b y d i s c d i s e a s e . S i g n i f i c a • T h e a p p e l l a n t i s i n d e p e n d e n t i n m a k i n g a p p r m a i n t a i n i n g r e l a t i o n s h i p s , i n t e r a c t i n g a p p r o p o t h e r s . 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 u n e x p e c t e d d e m a n d s . T h e p h y s i c i a n h a s n t h e s u p p o r t / s u p e rv i s i o n r e q u i r e d . • T h e a p p e l l a n t h a s g o o d f u n c t i o n i n g i n b o t h h I n t h e a o o e l l a n t ' s s e l f r e p o r t a s n a r t o f t h e P W D a o o I A P P E A L # e r , a n d h i s l o w e r b a c k c a n b e " p u t o u t " w i t h a s l i t t l e e t h i n g u p . y e a r s , w h i c h l e a d s t o p r o b l e m s s l e e p i n g , a n d d h e d i s c o v e r e d h e h a s e m p h y s e m a a n d C O P D e f o r e t h e p a i n g e t s t o b e t o o m u c h . r e a s e s l e a d s t o a w o r s e n i n g i n b r e a t h i n g a b i l i t y f a l m o s t " b l a c k i n g o u t . " m o r e t h a n 5 m i n u t e s b e f o r e h i s b a c k s t a r t s t o o r s e n i n g , a n d i n c r e a s i n g d i f f i c u l t y i n b r e a t h i n g , f u l . r o t e : a s h a d 3 s c i a t i c e p i s o d e s w h i c h h a v e l a s t e d , t h e t h i r d t i m e 6 d a y s . H e h a d t o g o t o t h e h o s p i t a l o n . T h e s e a t t a c k s l e a v e h i m i n s o m u c h p a i n a f t e r 3 0 a n h a r d l y w a l k , s i t t i n g i s p a i n f u l a n d h i s s l e e p i n g i s c e m b e r 2 0 1 3 a n d h i s b r e a t h i n g h a s b e c o m e 5 m i n u t e s w a l k i n g a n d a n y i n c l i n e s o r s t a i r s d e p r e s s i o n . . i t i v e a n d e m o t i o n a l f u n c t i o n i n t h e a r e a s o f n o t e b y t h e p h y s i c i a n : " s i g n i f i c a n t d e p r e s s i o n c a t e i n a l l a r e a s . s c o g n i t i v e a n d e m o t i o n a l f u n c t i o n i n g . ' s c o g n i t i v e a n d e m o t i o n a l f u n c t i o n i n g i n t h e a r e a s a n d a m i n i m a l i m p a c t t o a t t e n t i o n / c o n c e n t r a t i o n . e a s o f f u n c t i o n i n g . e l a n d b l a d d e r p r o b l e m s d u e t o n e u r o l o g i c n t d e p r e s s i o n , l o w m o o d , a n x i e t y . " o p r i a t e s o c i a l d e c i s i o n s , d e v e l o p i n g a n d r i a t e l y w i t h o t h e r s , a n d s e c u r i n g a s s i s t a n c e f r o m p o r t / s u p e rv i s i o n d e a l i n g a p p r o p r i a t e l y w i t h o t p r o v i d e d f u r t h e r c o m m e n t t o e x p l a i n o r d e s c r i b e i s 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 . l i c a t i o n , h e w r o t e :
I APPEAL# • Chronic pain has led to chronic depression and anxiety. He was on anti-depressants and, as a result, two suicide attempts. In his Request for Reconsideration, the appellant wrote: • Since filing the reports in August 2013, he is now on medication for anxiety and depression. Daily Living Activities (DLA) In the PR, the 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 with moving about indoors and outdoors, with some limitations to endurance. • The appellant is independent with all 8 tasks of the DLA personal care: dressing, grooming, bathing, toileting, feeding self, regulating diet, transfers in/out of bed and transfers on/off chair. • The appellant requires periodic assistance from another person with laundry and with basic housekeeping, with a note: "light work only." • The appellant is independent in performing 4 of 5 tasks of the DLA shopping, while requiring periodic assistance from another person with carrying purchases home, with no explanation or description provided by the physician. • The appellant is independent with all tasks of the DLA meals: meal planning, food preparation, cooking and safe storage of food. • The appellant is independent with all 3 tasks of the DLA paying rent and bills: banking, budgeting, and paying rent and bills. • The appellant is independent in performing all 3 tasks of managing his medications: filling/refilling prescriptions, taking as directed and safe handling and storage. • The appellant is independent with all 3 tasks of managing transportation, namely: getting in and out of a vehicle, using public transit, and using transit schedules and arranging transportation. In the appellant's self-report as part of the PWD application, he wrote: • The back spasms and difficulty breathing make daily chores and walking painful. In his Request for Reconsideration, the appellant wrote: • His breathing has become worse to the point where he is labored after 5 minutes of walking. Need for Help The physician reported in the AR that the help required for DLA is provided by the appellant's friends. In the section of the AR relating to assistance provided through the use of assistive devices, the physician has not indicated any of the listed items apply to the appellant. In his Notice of Appeal dated February 4, 2014, the appellant expressed his disagreement with the ministry reconsideration decision due to chronic back pain, recently diagnosed with emphysema and anxiety/ depression 10 years ago. He wrote that he has rapidly decreasing ability to do everyday menial chores including waling short distances without having an effect on his breathing abilities and endurance. This is also leadini:i to worsenini:i anxiety and depression.
I APPEAL# Prior to the hearing, the appellant provided the following additional documents: 1) Written submission prepared by his advocate; and, 2) Letter signed by the appellant's physician on April 29, 2014 in which he responded to a series of questions as follows: • The appellant has a severe physical or mental disability. He suffers from severe, chronic back pain as a result of degenerative disc disease and prior vertebral fractures. He has sciatica which causes pain and numbness throughout his left leg and foot. He experiences periodic, immobilizing flare-ups of sciatica lasting from 5 days to 3 weeks. This has occurred 3 times during the last year. He is also diagnosed with significant COPD resulting in chronic cough and shortness of breath. • The appellant has developed depression and anxiety which led to two suicide attempts in 2011. Since the time of his original application, the appellant has been prescribed additional medication for his anxiety and depression. He has a long history of substance abuse and recently spent 3 years in a recovery home. • Based on his knowledge of the appellant's medical history and current circumstances, he is significantly restricted in the ability to perform DLA. His mobility is significantly restricted. During episodes when the sciatica flares up, he is unable to walk or stand at all. At other times, he is limited to walking 5 to 10 minutes before needing to sit due to pain, shortness of breath and fatigue. He is unable to stand for extended periods and must sit down in the shower. He can only carry light items for very short distances. • The appellant has difficulty sleeping due to constant pain and is consequently fatigued during the day. Combined with worsening depression and anxiety, this creates significant restrictions in many daily activities. • All activities requiring mobility are restricted. The appellant is unable to get to and from stores on his own and rarely leaves the house. Basic housework and meal preparation take 5 times longer than normal to complete and he is unable to stand for extended periods and fatigues easily. He has difficulty remembering to take medications on time and does not have a regular appetite. • Asked if he could confirm that the appellant requires significant help with DLA as a direct result of his impairment, keeping in mind that when no help is available it takes the appellant significantly longer than normal to perform DLA on his own, the physician agreed and wrote: The appellant requires assistance with many AOL's. He lives with his partner who provides regular help with housework, meals and shopping. The appellant relies on friends and family for rides when leaving home and he is unable to walk long distances or take transit due to limited mobility. Without help, most ADLs would take 5 times longer to complete or frequently go undone. At the hearing, the appellant provided a handwritten letter with a summary of his background and current restrictions, which included: • He has suffered from depression and anxiety from the time he was a teenager until present. Along with issues of depression, anxiety, mood swings and addiction, he has made 2 attempts on his life. • Recent X-Rays have shown that he has degeneration in his neck which is causing numbness and tingling mostly in his right hand and frequent dizzy spells. It takes up to 2 hours to fall asleep due to pain and he has constant fatigue from not being able to sleep. • He cannot stand for longer than 5 minutes before his left leg starts to tremble and go numb. He needs heat and cold many times a day to help with the pain management.
APPEAL# I • He has to sit while showering in case of dizzy spells. • Walking distance is limited to about 5 to 15 minutes depending on how his breathing is. He cannot go out on days it is too hot due to shortness of breath. He only goes out when he absolutely has to and he usually has to rely on getting rides to do grocery shopping. Shopping trips are short and limited due to how much he can carry. He only shops two times a month or when needed. • He has trouble taking his medication and needs to be reminded by his partner. • Any physical activity like dishes, housework takes 5 times as long as it normally would as he needs to rest constantly to catch his breath. Daily chores such as dishes, cleaning, often go undone by him. • Preparing meals usually consists of 'quick prep' items or frozen dinners so he does not have to stand and watch over the cooking. • Due to anxiety/depression, he has an eating disorder where he does not eat for two days sometimes, even when being told by his partner to eat. • He cannot do anything when his back pain is too severe and he basically relies on his partner for help at these times. • He cannot walk up hills or slopes as it immediately affects his breathing and stairs have the same effect. Walking for exercise is limited to 5 to 10 minute intervals before he starts to experience shortness of breath. • Mentally, he is exhausted and he sometimes starts to cry for no reason. He has no self esteem or confidence left. To do daily activities is a big challenge and he is at the point where the frustration of living daily is an issue. At the hearing, the advocate stated that: • The physician did not interview the appellant when he filled out the AR and he may not have fully understood how to complete the form. The physician did not ask the appellant questions about his DLA, about what happens at home. He did not know that the appellant lives with his girlfriend who has to help him with many activities. • When the appellant completed his Request for Reconsideration, he did not have the assistance of an advocate and did not realize that he needed to verify his worsening condition with information from his doctor. • They acknowledge that the original PWD application did not paint a clear picture and that there are ambiguous portions. Despite having the ability to seek clarification from the physician, especially in view of the new information the appellant provided in his Request for Reconsideration that his condition has worsened, the ministry did not do so before making its decision as there was no telephone log to indicate communication with the doctor's office. • The advocate had a 2-hour interview with the appellant, in which he fully described his condition, and then the advocate contacted the physician to explain the requirements for PWD designation. The advocate explained the requirement that the person 'require' assistance, not that they necessarily 'receive' assistance with DLA. • The advocate drafted the questions and answers in the letter, based on her extensive interview of the appellant, for the physician to review and sign, thereby indicating his professional endorsement of the information set out. At the hearing, the appellant stated that: • He met with his doctor and he asked a few questions but likely only took about 5 to 10 minutes to complete the reports. He has been denied the Persons With Persistent Multiple Barriers to
I APPEAL# employment (PPMB) status twice in the past and his doctor was familiar with some of his restrictions. • For preparing meals, he cannot stand at the stove so he does it in stages. He will put something simple in the oven but he cannot cook like he used to, because he loves cooking. • He has done a lot of physical work in the past and "worked through" the pain until 2006 when he had back surgery. He was working 2 weeks after surgery because he had to support his family. He did not let his body heal properly. • He discovered that he has hyper-mobility in his pelvis and he had to see the chiropractor about this several times. • He had X-Rays done 2 weeks ago and he now has degeneration in his neck which is likely causing the numbness and tingling in his arm and the dizzy spells. If he turns his head sometimes, he will get dizzy and cannot see. • He experienced the sciatica episodes after he sent in the disability forms, sometime in November or December 2013. His hips "pop" at that time and he feels pain in his left leg which starts at his hip bone. He has no feeling in some of his toes and there are 3 vertebrae in his lower back that have no cartilage and simple movements can put his back "out." He feels shooting pain and sometimes he gets cramps in the arches of his feet too. The cramps will go away after a few minutes. • When he has the sciatica episodes, he cannot do anything except lie on the couch with hot packs or ice packs. When the episode lasted 3 weeks the pain got so bad he had to go to the hospital, in January 2014. They gave him a shot of morphine to help with the pain. He believes muscle relaxants do nothing for nerve pain. • He takes some pain medication but finds the anti-inflammatory medication is ineffective for his condition. He takes medication for his COPD every day and additional puffers as needed. • He tries to get out for a walk 3 or 4 times a day as this has been recommended to help his breathing. He has a trail he can walk with a pretty steep incline and when he walks the 300 yards to the top of the hill he is usually 'puffing' at the top of the hill and it takes him about 10 minutes to walk that distance. • He does not use a cane or any assistive device and will lean or hang on to things to provide support if he needs it. • At the time of his suicide attempts, there were personal issues in his life that caused him to become very depressed and he does not believe it was the result of the medications he was taking. • He has started taking anti-depressant medication again but has not been referred to a psychiatrist. The ministry relied on its reconsideration decision. Admissibility of New Information The ministry did not object to the admissibility of the physician's letter or the appellant's handwritten notes and did not raise an objection to the admissibility of the appellant's oral testimony. In the letter, notes and the oral testimony on behalf of the appellant, new information was provided regarding the appellant's impairment. This information provides additional detail with respect to issues addressed in the original PWD application. The panel admitted this new information as being 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. The advocate's written submission was considered as arqument on behalf of the aooellant.
P A R T F R e a s o n s f o r P a n e l D e c i s i o n T h e i s s u e o n t h e a p p e a l i s w h e t h e r t h e m i n i s t r y ' s r a p p e l l a n t i s n o t e l i g i b l e f o r d e s i g n a t i o n a s a p e r s o n b y t h e e v i d e n c e o r w a s a r e a s o n a b l e a p p l i c a t i o n o t h e a p p e l l a n t . T h e m i n 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 i m p a i r m e n t a n d t h a t h i s 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 r o f e s s i o n a l , d i r e c t l y a n d s i g n i f i c a n t l y r e s t r i c t e d e i t p e r i o d s a n d t h a t , a s a r e s u l t o f t h o s e r e s t r i c t i o n s , i t r 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 a n o t h s e r v i c e s o f a n a s s i s t a n c e a n i m a l t o p e r f o r m D L A . T h e c r i t e r i a fo r b e i n g d e s i g n a t e d a s a p e r s o n w i t h d E A P W D A a s f o l l o w s : P e r s o n s w i t h d i s a b i l i t i e s 2 ( 1 ) I n t h i s s e c t i o n : " a s s i s t i v e d e v i c e " m e a n s a d e v i c e d e s i g n e d t o e n a b l e 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 , t h e p e r s o n i s u n " d a i l y l i v i n g a c t i v i t y " h a s t h e p r e s c r i b e d m e a n i n g ; " p r e s c r i b e d p r o f e s s i o n a l " h a s t h e p r e s c r i b e d m e a n i n g ( 2 ) T h e m i n i s t e r m a y d e s i g n a t e a p e r s o n w h o h a s r e a c h e d o f t h i s A c t i f 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 p e r s o n h a s ( a ) i n t h e o p i n i o n o f a m e d i c a l p r a c t i t i o n e r i s l i k e l y t o c o n ( b ) 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 ( i ) d i r e c t l y a n d s i g n i f i c a n t l y r e s t r i c t s t h e p e r s o n ' s a b i l i ( A ) c o n t i n u o u s l y , o r ( B ) p e r i o d i c a l l y f o r e x t e n d e d p e r i o d s , a n d ( i i ) a s a r e s u l t o f t h o s e r e s t r i c t i o n s , t h e p e r s o n r e q u i r e ( 3 ) F o r t h e p u r p o s e s o f s u b s e c t i o n ( 2 ) , ( a ) a p e r s o n 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 ( b ) a p e r s o n r e q u i r e s h e l p i n r e l a t i o n t o a d a i l y l i v i n g a c t ( i ) a n a s s i s t i v e d e v i c e , ( i i ) 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 a n o t h e r p e r s ( i i i ) t h e s e r v i c e s o f a n a s s i s t a n c e a n i m a l . ( 4 ) T h e m i n i s t e r m a y r e s c i n d a d e s i g n a t i o n u n d e r s u b s e c t i o S e c t i o n 2 ( 1 ) ( a ) o f t h e E A P W D R d e f i n e s D L A f o r a p e r s o f o l l o w s : D e f i n i t i o n s f o r A c t 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 e g u l a t i o n , " d a i l y l i v ( a ) i n r e l a t i o n t o a p e r s o n 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 c t i v i t i e s : ( i ) p r e p a r e o w n m e a l s ;A P P E A L # I e c o n s i d e r a t i o n d e c i s i o n , w h i c h f o u n d t h a t t h e w i t h d i s a b i l i t i e s ( P W D ) , w a s r e a s o n a b l y s u p p o r t e d f t h e a p p l i c a b l e e n a c t m e n t i n t h e c i r c u m s t a n c e s o f t d o e s n o t h a v e a s e v e r e m e n t a l o r p h y s i c a l a r e n o t , i n t h e o p i n i o n o f a p r e s c r i b e d 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 c o u l d n o t b e d e t e r m i n e d t h a t t h e a p p e l l a n t e r p e r s o n , t h e u s e o f a n a s s i s t i v e d e v i c e , o r t h e i s a b i l i t i e s ( P W D ) a r e s e t o u t i n S e c t i o n 2 o f t h e a p e r s o n t o p e r f o r m a d a i l y l i v i n g a c t i v i t y t h a t , b e c a u s e o f a a b l e t o p e r f o r m ; . 1 8 y e a r s o f a g e a s a p e r s o n w i t h d i s a b i l i t i e s f o r t h e p u r p o s e 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 t h a t t i n u e f o r a t l e a s t 2 y e a r s , a n d 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 e i t h e r s h e l p t o p e r f o r m t h o s e a c t i v i t i e s . e s a p e r s o n w i t h a m e n t a l d i s o r d e r , a n d i v i t y i f , i n o r d e r t o p e r f o r m i t , t h e p e r s o n r e q u i r e s o n , o r n ( 2 ) . n w h o h a s a s e v e r e p h y s i c a l o r m e n t a l i m p a i r m e n t a s i n g a c t i v i t i e s " , a i r m e n t o r a s e v e r e m e n t a l i m p a i r m e n t , m e a n s t h e f o l l o w i n g
( i i ) m a n a g e p e r s o n a l f i n a n c e s ; ( i i i ) s h o p f o r p e r s o n a l n e e d s ; ( i v ) u s e p u b l i c o r p e r s o n a l t r a n s p o r t a t i o n f a c i l i t i e s ; ( v ) p e r f o r m h o u s e 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 ( v i ) m o v e a b o u t i n d o o r s a n d o u t d o o r s ; ( v i i ) p e r f o r m p e r s o n a l h y g i e n e a n d s e l f c a r e ; ( v i i i ) m a n a g e p e r s o n a l m e d i c a t i o n , a n d ( b ) i n r e l a t i o n t o a p e r s o n w h o h a s a s e v e r e m e n t a l i m p a ( i ) m a k e d e c i s i o n s a b o u t p e r s o n a l a c t i v i t i e s , c a r e o r f ( i i ) r e l a t e t o , c o m m u n i c a t e o r i n t e r a c t w i t h o t h e r s e f f e E v i d e n t i a ry C o n s i d e r a t i o n s T h e a d v o c a t e a r g u e d t h a t t h e m i n i s t r y d i d n o t c o n s i R e q u e s t f o r R e c o n s i d e r a t i o n o r , a l t e r n a t i v e l y , t h a t s e v i d e n c e , a s d i r e c t e d b y t h e c o u r t d e c i s i o n i n H u d s o f a l e g i t i m a t e r e a s o n n o t t o d o s o . T h e a d v o c a t e a c o n s i d e r i n g t h e a p p e l l a n t ' s e v i d e n c e t h a t h i s c o n d i t i p h y s i c i a n t o s e e k c l a r i f i c a t i o n a n d t h a t t h e m i n i s t r y d w e i g h t s h o u l d b e p l a c e d o n t h e e v i d e n c e o f t h e p h y t h e p h y s i c i a n m a y n o t h a v e f u l l y u n d e r s t o o d h o w t o s i n c e h e d i d n o t i n t e r v i e w t h e a p p e l l a n t w h e n h e f i l l e i m p o r t a n t d i s t i n c t i o n t h a t t h e p e r s o n m a y ' r e q u i r e ' a ' r e c e i v e ' a s s i s t a n c e w i t h D L A . T h e m i n i s t r y p o i n t e d o u t t h a t t h e e v i d e n c e p r o v i d e d R e c o n s i d e r a t i o n w a s r e f e r r e d t o i n t h e r e c o n s i d e r a t i a l o n g w i t h 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 r e p o r t s f i l t h a t i t d o e s n o t a l w a y s s e e k c l a r i f i c a t i o n f r o m a p h y s n o t f o l l o w u p w i t h t h e p h y s i c i a n i n t h i s c a s e . P a n e l d e c i s i o n W h i l e t h e a d v o c a t e a r g u e d t h a t t h e m i n i s t r y d i d n o t i n h i s R e q u e s t f o r R e c o n s i d e r a t i o n , t h e p a n e l f i n d s t e v i d e n c e i n d e t a i l a n d s t a t e d t h a t , s i n c e n o f u r t h e r i n d e c i s i o n w a s b a s e d o n t h e e v i d e n c e f r o m t h e p h y s i c i n d i c a t i o n b y t h e m i n i s t r y i n t h e d e c i s i o n t h a t t h e r e w o r t h a t i t w a s n o t c o n s i d e r e d , a n d t h e p a n e l f i n d s t h a w i t h 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 o r i g i n a l a p p l i c a t R e c o n s i d e r a t i o n p r o v i d e s i n f o r m a t i o n t h a t h i s c o n d i t r e q u i r e m e n t t h a t t h e m i n i s t r y c o n t a c t t h e p h y s i c i a n r p a r t i c u l a r l y s i n c e t h e a s s e s s m e n t b y t h e m i n i s t r y i s t i n f o r m a t i o n p r o v i d e d i n t h e o r i g i n a l P W D a p p l i c a t i o n m i n i s t r y m u s t c o n s i d e r t h e n a t u r e o f t h e i m p a i r m e n t a s e v i d e n c e d b y f u n c t i o n a l s k i l l l i m i t a t i o n s a n d t h e d m a k i n g i t s d e t e r m i n a t i o n t h e m i n i s ! m u s t c o n s i d e r A P P E A L # I o f r e s i d e n c e i n a c c e p t a b l e s a n i t a r y c o n d i t i o n ; i r m e n t , i n c l u d e s t h e f o l l o w i n g a c t i v i t i e s : i n a n c e s ; c t i v e l y . d e r t h e a p p e l l a n t ' s e v i d e n c e s e t o u t i n h i s i g n i f i c a n t w e i g h t w a s n o t g i v e n t o t h e a p p e l l a n t ' s o n v E A A T , 2 0 0 9 B C S C 1 4 6 1 , w i t h n o e x p l a n a t i o n r g u e d t h a t t h e m i n i s t r y h a d t h e a b i l i t y , u p o n o n s h a d w o r s e n e d , t o c o n t a c t t h e a p p e l l a n t ' s i d n o t d o s o . T h e a d v o c a t e a r g u e d t h a t m o r e s i c i a n i n t h e l e t t e r d a t e d A p r i l 2 9 , 2 0 1 4 b e c a u s e c o m p l e t e t h e r e p o rt s i n t h e P W D a p p l i c a t i o n , d o u t t h e A R a n d h e d i d n o t a p p r e c i a t e t h e s s i s t a n c e e v e n w h e n h e m a y n o t n e c e s s a r i l y b y t h e a p p e l l a n t i n h i s R e q u e s t f o r o n d e c i s i o n a n d a r g u e d t h a t i t w a s c o n s i d e r e d e d w i t h t h e P W D a p p l i c a t i o n . T h e m i n i s t r y a r g u e d i c i a n a n d a g r e e d t h a t i t a p p e a r s t h e m i n i s t r y d i d c o n s i d e r t h e i n f o r m a t i o n p r o v i d e d b y t h e a p p e l l a n t h a t t h e m i n i s t r y r e f e r r e d t o t h e a p p e l l a n t ' s f o r m a t i o n w a s p r o v i d e d b y h i s p h y s i c i a n , t h e i a n i n t h e o r i g i n a l a p p l i c a t i o n . T h e r e i s n o a s a r e a s o n t o d i s c o u n t t h e a p p e l l a n t ' s e v i d e n c e 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 c o n s i d e r e d a l o n g i o n . T h e a p p e l l a n t ' s e v i d e n c e i n h i s R e q u e s t f o r i o n s a r e w o r s e n i n g ; h o w e v e r , t h e r e i s n o e g a r d i n g t h e a p p e l l a n t ' s a d d i t i o n a l i n f o r m a t i o n , h a t i t i s n o t s i g n i f i c a n t l y d i f f e r e n t t h a n t h e . T o a s s e s s t h e s e v e r i t y o f a n i m p a i r m e n t , t h e a n d t h e e x t e n t o f i t s i m p a c t o n d a i l y f u n c t i o n i n g e g r e e t o w h i c h p e r f o r m i n g D L A i s r e s t r i c t e d . I n a l l t h e r e l e v a n t e v i d e n c e , i n c l u d i n g t h a t o f t h e
I APPEAL# appellant. However, the legislation is clear that the fundamental basis for the analysis is the evidence from a prescribed professional -in this case, the appellant's physician. Although the advocate argued that the physician did not interview the appellant when he completed the original reports, the appellant clarified that his physician was familiar with his restrictions from the appellant's previous applications to the ministry and that the physician asked a couple of questions but the appellant felt he did not take much time completing the reports. The panel notes that in the AR the physician added a handwritten comment with respect to basic housekeeping ("light work only") which indicates some interaction with the appellant and the physician reported that his appr oach and information source used to complete the form was solely an office interview with the appellant. The physician did not provide a reason for the change in his assessment in the April 29, 2014 letter and did not describe any misapprehension on his part regarding the initial reports as a reason for the letter. The panel therefore accorded equal weight to the additional medical information and the original reports, as supplemented by the evidence from the appellant. Severe Phvsical Impairment The appellant's position is that a severe physical impairment is established by the evidence of his chronic back pain and constant fatigue due to previous vertebral fractures and degenerative disc disease as well as his chronic cough and shortness of breath as a result of significant COPD. The appellant argued that he also experiences sciatica episodes that last 6 days to 3 weeks at which time he is immobilized and that his breathing is also gelling worse. The advocate argued that while the physician's statement that the appellant is unable to work does not directly address any criteria for PWD eligibility, being unable to work is a reasonably indication that the appellant is significantly restrict in performing at least some daily tasks and this should not be automatically dismissed. Section 8 of the Interpretation Act requires that the legislation be given a fair, large and liberal construction and interpretation that best ensures the attainment of its objects. The advocate argued that the court decision in Hudson is authority for the position that the evidence from a physician must be read in a broad way, including narrative sections, to determine if eligibility can be confirmed. The ministry's position is that the impacts described by the general practitioner are more in keeping with a moderate degree of impairment and there is not sufficient information to confirm that the appellant has a severe physical impairment. The ministry argued that, in assessing the appellant's physical ability, the general practitioner indicated that the appellant is able to walk 4 or more blocks unaided, climb 2 to 5 stairs unaided, lift 5 to 15 lbs. and remain seated 1 to 2 hours. The ministry argued that the general practitioner indicated that the appellant requires continuous assistance with lifting and carrying and holding, and is independent in the remainder of his mobility and physical abilities, with some limitations to endurance. The ministry stated that the general practitioner wrote that the appellant is unable to work and pointed out that the PWD application is not intended to assess employability as it is not an eligible criterion for designation as a PWD. Panel Decision A diagnosis of a serious medical condition does not in itself determine PWD eligibility or establish a severe impairment. An "impairment" is a medical condition that results in restrictions to a person's abili ty to function independently or effectively. The medical practitioner, a physician who has known the appellant for a period of 6 months, diagnosed the appellant with degenerative disc disease LÂ spine and T-spine (prior vertebral fracture), COPD and chronic pain disorder. The physician also noted in the health histo that the a ellant is ". .. h sicall ver limited-difficult stand in for ve
APPEAL# I long. Unable to lift or carry anything more than about 10 lbs. Chronic cough and SOB due to significant COPD as well." The physician indicated that the appellant does not require any aids for his impairment and, in terms of functional skills, the appellant's abilities are assessed at the higher end of the scale, being able to walk 4 or more blocks unaided on a flat surface, climb 2 to 5 steps unaided, lift 5 to 15 lbs., and remain seated 1 to 2 hours. In the AR, the appellant's physician reported that the appellant is independent with walking indoors, walking outdoors and climbing stairs, with "some limitations to endurance" and is also independent with standing. The appellant requires continuous assistance from another person with lifting and carrying and holding, with no further comments provided by the physician. In his self-report filed with the PWD application, the appellant wrote that he cannot lift or carry more than 10 lbs. for more than 5 minutes before his back starts to spasm. The appellant's evidence at the hearing was consistent with the assessment in the initial reports as well as with the information provided by the physician in the April 29, 2014 letter. The appellant stated that he tries to get out for a walk 3 or 4 times a day as this has been recommended to help his breathing. He has a trail he can walk with a pretty steep incline and when he walks the 300 yards to the top of the hill he is usually 'puffing' at the top of the hill and it takes him about 10 minutes to walk that distance, but he does not use a cane or any assistive device and the appellant stated that he will lean or hang on to things to provide support if he needs it. In the letter dated April 29, 2014, the physician reported that the appellant is limited to walking 5 to 10 minutes before needing to sit due to pain, shortness of breath and fatigue, he is unable to stand for extended periods, and he can only carry light items for very short distances. In the additional comments to the PR, the physician wrote: "he has significant problems which prevent him from working; disabled." As for finding work and/or working, the ministry noted that employability is not a criterion in section 2(2) of the EAPWDA nor is it listed among the prescribed daily living activities in section 2 of the EAPWDR. The advocate argued that the physician's comment is still indicative of restrictions to the appellant's functioning. The panel finds that the difficulty with the reference to medical problems 'preventing' the appellant from working is that the 'work' contemplated by the physician is more likely than not the appellant's previous employment. The appellant described his previous employment as being of a very physically-demanding nature, requiring a high level of physical ability and stamina such as prolonged standing, bending and lifting that caused his condition to worsen until he ruptured a disc. The nature of work is different from managing DLA as work involves constant and prolonged performance of tasks. The new information endorsed by the physician in the letter dated April 29, 2014 is that the appellant has a severe physical or mental impairment and that the appellant experiences periodic, immobilizing flare-ups of sciatica lasting from 5 days to 3 weeks, and that this has occurred 3 times during the last year. In his Request for Reconsideration dated January 6, 2014, the appellant wrote that, since filing the reports in August 2013, he has had 3 sciatic episodes which have lasted, the first time 1 O days, second time 3 weeks, and third time 6 days. These attacks leave him in so much pain that he cannot stand, he can hardly walk, and sitting is painful. At the hearing, the appellant also stated that he experienced the sciatica episodes after he sent in the disability forms, sometime in November or December 2013 and that, when he has the sciatica episodes, he cannot do anything except lie on the couch with hot packs or ice packs. When the episode lasted 3 weeks, the pain got so bad he had to go to the hospital, which was in January 2014. While the evidence demonstrates that the appellant's functioning during his episodes of sciatica is markedly decreased from his usual functioning, that he is 'immobilized' during these times, the panel finds that the evidence of how often these periods occur
I APPEAL# is not consistent and, therefore, it is given little weight. Whereas the physician's evidence is that there have been 3 episodes in 12 months, the appellant stated both that these 3 episodes have occu rred in just over 4 months, from August 2013 to January 2014, and also that they occurred over 2 months, from November/December 2013 to January 2014. As discussed in more detail in the subsequent section of this decision reviewing restrictions to DLA, any physical limitations resulting from the appellant's impairments have not translated into significant restrictions in his ability to manage his DLA independently. The panel finds that the ministry reasonably concluded that there is not sufficient information to confirm that the appellant has more than a moderate degree of impairment in his usual functioning. The panel finds that it is difficult to obtain an accurate picture of the appellant's experience of episodes of sciatica due to the inconsistencies discussed and the lack of detail in the evidence. In the absence of further detail, the panel finds that the ministry reasonably determined that there is not sufficient evidence to establish that the appellant has a severe physical impairment under section 2(2) of the EAPWDA. Severe Mental Impairment The appellant's position is that a severe mental impairment is established by the evidence of his significant depression, low mood and anxiety. The appellant argued that his condition has worsened since the original application and he has since been prescribed medication for depression and an xiety. The appellant argued that the fact that he has attempted suicide twice in the past is evidence of the severity of his mental impairment. The ministry's position is that there is insufficient evidence to establish that the appellant has a severe mental impairment. The ministry stated that the physician indicated that the appellant has deficits with cognitive and emotional function in the areas of emotional disturbance and motivation due to depression and chronic pain. The ministry argued that when assessing the impacts on daily functioning, the physician indicated that the appellant has moderate impacts to bodily functions (some bowel and bladder problems) and motivation, a minimal impact to attention/ concentration and no imp acts to the remainder of his cognitive and emotional functioning. The ministry argued that the physician also indicated that the appellant has no difficulties with communication and that he is good with speaking, reading, writing and hearing. Panel Decision The physician diagnosed depression and anxiety and wrote in the PR that the appellant's chronic back pain has led to depression. The physician also reported that there are no difficulties with communication and that the appellant has significant deficits in cognitive and emotional function in the areas of emotional disturbance and motivation, with a handwritten note added by the physician: "significant depression due to chronic pain." In the AR, the physician reported that there are no major imp acts to the appellant's cognitive and emotional functioning and moderate impacts in 3 out of a total of 14 areas of functioning, namely: bodily functions, emotion and motivation. The physician added handwritten comments: "some bowel and bladder problems due to neurologic problems caused by disc disease. Significant depression, low mood, anxiety." The panel finds that the physician repeatedly ties the appellant's depression to his physical experience of chronic pain. In his Request for Reconsideration, the appellant wrote that, since filing the reports in August 2013, he is now on medication for anxiet and de ression. The new information endorsed b the hysician
in the letter d at ed Ap ril 29, 2 014 is tha t the appellant has a seve the appellant has depression and anxiety wh i c h led the appellant clarified that, at the time of his suicide attempts, there t h at caused hi m to become v ery d epr ess ed. The phys of his ori ginal application , the appe ll a nt has been prescribed a nx ie ty and d epressio n . However, besid es agreeing that the appellant now has diffi remembering t o tak e medications, wh er ea s t h e re wa appellant's cogniti ve fun ctio n in the are a of me mory, t physician's assess m ent. With r e sp ect to t h e two DLA that are specific to mental activ ities, c are or f inances (decision making), a nd rel effectively (socia l fun cti oning), the evid enc e indicates w it h respec t to decision making. The physician r e ported in manages his f inanc e s (pay r en t a nd bi lls) and his m o f the DLA o f d ail y s ho p ping (making a pp ropri a te cho food stora g e ), an d is a l so i n de penden t wi t h mak i n g fun cti on ing. In the Apri l 29 , 2014 lette r , t h e ph y sic rememb erin g to t ak e medica t ion s on time, alt ho ugh ther with me dication s. R egardi ng the DL A of s o cial f unc tio n ing, the appell indep endent in de ve l o ping and mai ntaini ng re lat i o nships, in s e cur in g assistan ce fr om oth e r s. The a ppe llant re q appr opriatel y with u ne xpe cted de m ands and the ph exp la in or de s cri be the su p port/ su per vision r equir ed. a ppe llant has goo d f unct i oning in bo t h his immed ia w it h communi cati o n . In h is sel f report, the ap pel lan depression and a n xiet y , whic h is con s iste n t w ith th is a rea ction t o h is sit u at io nal e xperienc e o f pain . T d ep ress an t s by h i s fam ily physician wh o has not re w as no evi dence of a requir ement f or i nvolvement The panel finds that the ministry reasonably concluded that, overall, the impacts assessed to social and cognitive/emotional func tioning remain in a moderate range and to establish a severe mental impairment, pursuant to section 2(2) of the EAPWDA. Restrictions in the ability to perlorm DLA The ap pe llant's position is that his physical and mental impairments directly and significantly restrict his ability to perform DLA on an ongoing basis to the point that he requires the significant assistance of another person, namely his part ner. The advocate argued that the court decis authority for the position that there must be evidence from a prescribed professional indicating a direct and significant restriction on at least two DL A, than two DLA be restricted in order to meet the PWD eligibility requirements. The ministry's position is that the appellant can independently manage the majority of his DLA and, for those tasks where periodic assistance is reauired, the phvsician has not explained the extent of I A P PE AL # re physical or mental impair m ent a nd to two suic i d e attempt s in 2011. A t t h e h earing, were personal issues in his life i cian confirmed in the lett er tha t , si n ce the tim e a dditi o nal medication f o r wo r se ning cu l ty s prev i o usly no imp a ct repo rted to the h e re were no other specific changes to the impairment -m ake decisions about p ersonal a t e to, communicate or interact w it h others that the app ellant is n o t significantly rest r ic ted the A R tha t the appe ll a nt inde pendently e dica t ion s and t he decision-mak ing compon ents ices) a nd meal prep a rat i o n (meal plann ing a nd ap pro pria te soc i al dec isi ons as par t of his soci a l ia n ag re ed that th e appellant h as d i fficu lt y e wa s no issue raise d regarding c ompli a n c e a n t is asse sse d by the physici a n in t h e A R as t era cting appro p ri at e ly with ot h ers , and uir e s peri o dic su pport/ supervision dea l ing y sic ian ha s not p r ovided fu rthe r c omment to Overal l, the p hysici an repor t ed that th e t e a n d ex t end ed soci a l n e t wo rks an d n o d iffic ulties t wrote that c hronic pa in ha s led to chr o ni c e physi ci an ' s note tha t the a pp ella nt' s depres si o n he appella nt is being tre ated w ith an ti  fe rr e d the a pp ell a nt to a ps y chi atrist, and t h ere by mental h e al th se rvic e s. the re is not sufficient evi dence ion in Hudson i s but there i s no statutory requirement that more
APPEAL# I the periodic assistance required to indicate restrictions for extended periods of time. Panel Decision Section 2(2)(b) of the EAPWDA stipulates that the ministry must be 'satisfied' that a prescribed professional has provided an opinion that an applicant's severe impairment directly and significantly restricts his DLA, continuously or periodically for extended periods. In this case, the appellant's physician is the prescribed professional. DLA are defined in section 2(1) of the EAPWDR and are also listed in the PR and, with additional details, in the AR. Therefore, a prescribed professional completing these forms has the opportunity to indicate which, if any, DLA are significantly restricted by the appellant's impairments either continuously or periodically for extended periods. In the appellant's circumstances, his physician reported in the AR, that the appellant is independent with the DLA of preparing his own meals, managing his personal finances, with all but one task of shopping for his personal needs, with using public or personal transportation facilities, moving about indoors and outdoors (with some limitations to endurance), performing personal hygiene and self care and managing his personal medication. The appellant is assessed as requiring periodic assistance from another person with laundry and with basic housekeeping and with carrying purchases home when shopping. The physician commented that, for laundry and basic housekeeping the appellant can do light work only, so that he is not able to perform the heavier tasks, and there is no comment with respect to carrying purchases home, and it is more likely than not that this assistance .would be for heavier loads in excess of the appellant's functional limitation to lifting 1 0 lbs. The appellant has not been prescribed any medication and/or treatment that interfere with his daily living activities. With respect to the two DLA that are specific to mental impairment -make decisions about personal activities, care or finances (decision making), and relate to, communicate or interact with others effectively (social functioning), the physician did not indicate significant restrictions, either in the AR or in his letter, to either DLA. The appellant is assessed as independent with social functioning in the areas of making appropriate social decisions, developing and maintaining relationships, and interacting appropriately with others, with good functioning in both his immediate and extended social networks. He is also independent with managing his finances and making appropriate choices when shopping, and with no difficulties identified with communication. The physician agreed in the April 29, 2014 letter that the appellant has difficulty remembering to take his medications on time and, in his letter, the appellant wrote that he has trouble taking his medication and needs to be reminded by his partner. In the letter dated April 29, 2014, the physician agreed that the appellant is significantly restricted in the ability to perform DLA. The physician agreed that the appellant's mobility is significantly restricted and, during episodes when the sciatica flares up, he is unable to walk or stand at all. At other times, the appellant is limited to walking 5 to 10 minutes before needing to sit. The physician agreed that all activities requiring mobility are restricted. However, in his letter the appellant wrote that walking for exercise is limited to 5 to 1 0 minute intervals before he starts to experience shortness of breath. At the hearing, the appellant stated that he tries to get out for a walk 3 or 4 times a day as this has been recommended to help his breathing. He has a trail he can walk with a pretty steep incline and when he walks the 300 yards to the top of the hill he is usually 'puffing' at the top of the hill and it takes him about 10 minutes to walk that distance. While the appellant's mobility may be restricted, he remains capable of regular unaided ambulation over 4 blocks and the panel finds that this does not reflect a significant restriction with the DLA of moving about indoors and outdoors.
In the le tte r dat ed April 29, 2 01 4, t he p hysic ian ag r stores on his ow n and "rarely le ave s the house;" h w al ks se vera l times per day and that he shops tw o ag r ee d in t he letter tha t basic housew or k and me al normal to compl e te and he has dif ficult y re me mbe a r e gular appet i t e. The app ell a n t wrote in hi s l e tte eating disorder w her e he does not e at f or two days so e at; how eve r , the p anel fi nd s that an e a ting di sor der has n app el lant al so wrote that for pr e par ing me al s, he canno stag es. The physician a greed that "w i t h o u t he l p , mo frequ ently go undone ; " l ittle we i g ht is given t o t hi s st ( h o usekee pin g and meal p r e paratio n) d o not const provided. At the hea r ing, t he appe l lant s tated t hat a n y thing e xce pt lie on the couch w i t h hot packs or i that during t he sc iatica episo des the a ppellant's usual functioning avail ab l e evid en ce i s inconsistent w it h re sp e ct t o ho Th e c ourt hel d i n Hudso n that t hat the re mus t be e di rect and si g nific a nt r e stricti on on a t le as t two DL A, EAPWDA stipulates that the minist ry must b e sati sf professiona l establish e s dire ct a n d s i g nifica nt rest r DLA. In th is case , t he p hysi cian as the pr es cri bed ho usew ork to mai nt ai n th e pe r son ' s place o f residenc signific antly rest rict ed. In the AR, the p hysi cian i n dica anot her pers o n wi th heavie r ch o res and , i n the Ap ri ap pel lant 5 ti m e s l o n ger th a n n orma l . Whi l e th ere ap pel lant re m ai ns in de p e n dent w ith most tasks of bot mental im pairment. T he p anel fi nd s t hat t he mini s t ev ide nce from the pr e s cr i bed professiona l to est a bl sign i ficant l y re stri cts his ability to man age hi s DLA ei peri ods, t here b y no t sati s fying the le g i s lati ve crite rio Help to perform DLA The appellant's positio n is that he requires the significant assistance of another person, namely partner, to perform DLA. The advocate argued that the physician provided new information that the appellant's partner helps with housewor k, meals and shopping and t fam i ly for rides. The ministry's position is that because it has not been esta re strict ed, it c a nn ot b e d et ermin e d that significant help is required. physician indicated that the appellant does not require any assistive devices or the services of an assistance animal. Panel Decision Section 2(2)(b)(ii) of the EAPWDA requires that, as a result of direct and significant res ability to perform DLA, a person requires help to perform those activities. Help is defined in s ubsection (3) as the re a uir ement f o r an assi stive device, I APPEAL# eed tha t the ap pellant is un able t o ge t to a nd f rom o we v e r, the appe l lant state d t hat he ge ts out f o r t imes a mo nth or "whe n n e eded ." T he physician preparat i o n t ake the ap pellant 5 t i m es long er than rin g to take medi cation s o n t i m e and doe s no t hav e r that , due to his anxiety/d epression, he has an metime s e ven w hen being told by h is p artner to o t been diagno sed by the physi cian. T he t st and a t the stove s o he do es the co oking i n st A DLs would take 5 time s l on ger t o co mplete or atem ent as thos e tasks t h a t are refe r red to i t ute " m o st" DLA, and there is no ot her de tail w h e n he has the scia t ic a episode s, he cann ot d o ce pack. As p r ev i ou sl y discussed, the panel finds is greatly de cr ea sed and that t h e w o f t e n t his occur s. vid ence f rom a p r e s crib ed profe s s ion a l i ndicati ng a and the panel fi nd s t hat sect io n 2 of th e i ed i n e ach case that the opi nion o f a pres cribed i ctio ns t o t he pe r son's o v e r al l a bil i t y to perform p ro fessi onal confi rm e d that t he DLA o f perfo rm i ng e i n acce p t ab l e san i tary condit io n is direc tly and t ed that peri odi c assist ance is req uir e d fro m l 29, 20 14 le tte r, t he l ighte r ch ores t ake t he are s o me r estr ic tions w it h t asks o f o the r DLA , the h t he phy sical D LA and the t wo t hat re lat e to a ry re as o nab l y concluded t hat the re is not eno ug h ish that t he appellant 's impairment d i re ctl y and th er continuousl y or p e rio d i cal l y fo r ext ended n o f sect io n 2(2 )(b)(i) of the E A PW D A. his h e a p pellant relies on f rie n ds and bl ished that DLA are significantly The ministry argued that the tricti o n s in t h e the significan t help or su pe rvis ion of
APPEAL# I another person, or the services of an assistance animal in order to perform a DLA. The evidence of the physician, as a prescribed professional, is that the help required with DLA is provided by the appellant's friends. In the April 29, 2014 letter, the physician agreed that the appellant requires assistance with many AOL's and his partner provides help with housework, meals and shopping. The physician reported that the appellant requires no aids or assistive devices to compensate for his impairment. The panel finds that the ministry reasonably determined that as direct and significant restrictions in the appellant's ability to perform DLA have not been established, it cannot be determined that the appellant requires help to perform DLA as a result of those restrictions, as defined by section 2(3)(b) of the EAPWDA. Conclusion Having reviewed and considered all of the evidence and relevant legislation, the panel finds that the ministry's reconsideration decision which determined that the appellant was not eligible for PWD designation was reasonably supported by the evidence, and therefore confirms the decision.
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.