APPEAL# I PART C -Decision under Appeal The decision under appeal is the Ministry of Social Development and Social Innovation (the ministry) reconsideration decision dated April 9, 2014 which found that the appellant did not meet two of the five statutory requirements of Section 2 of the Employment and Assistance for Persons with Disabilities Act for designation as a person with disabilities (PWD). The ministry found that the appellant met the age requirement and that he has a severe mental impairment that, in the opinion of a medical practitioner, 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 impairment; • the appellant's daily living activities (DLA) are, in the opinion of a prescribed professional, directly and significantly restricted either continuously or periodically for extended periods; and, • as a result of these restrictions, the appellant requires the significant help or supervision of another person, the use of an assistive device, or the services of an assistance animal to perform DLA. PART D -Relevant Legislation Employment and Assistance for Persons with Disabilities Act (EAPWDA), Section 2 Employment and Assistance for Persons with Disabilities Regulation (EAPWDR), Section 2
APPEAL# I PART E -Summarv of Facts The evidence before the ministry at the time of the reconsideration decision included: 1) Person With Disabilities (PWD) Application comprised of the applicant information and self report dated October 22, 2013, a physician report (PR) and an assessor report (AR) both dated November 1, 2013 and completed by the appellant's family physician who has known the appellant for approximately 2 months; 2) Letter dated March 20, 2014 from the appellant's physician 'To Whom It May Concern'; 3) Undated letter from a mental health and substance use counselor; and, 4) Request for Reconsideration dated March 26, 2014. Diagnoses In the PR, the appellant was diagnosed by his general practitioner with atherosclerotic heart disease angina with onset in January 1999, pre-diabetes with onset in 2005, and chronic depression with onset in 2005. Physical Impairment In the PR, the appellant's physician reported that: • In terms of health history, the appellant "suffers from angina with minimal activity such as short walk up a hill or stairs" and he "needs better diet and lifestyle to prevent the onset of diabetes since his current blood work is borderline for diabetes." • The appellant does not require any prostheses or aid for his impairment. • In terms of functional skills, the appellant is able to walk 4 or more blocks unaided on a flat surface, lift 2 to 7 kg. (5 to 15 lbs.), remain seated less than an hour, and it is unknown how many stairs he can climb unaided. • The appellant has no difficulties with communication. • In the additional comments, the physician wrote that the appellant's "medical condition is very serious (heart) and he will need to overcome his depression, obesity, poor lifestyle to have an impact on his poor prognosis. Medical therapy will great(ly) help curtail his deterioration if he can maintain good follow-up at the medical clinic." In the AR, the general practitioner reported that: • The appellant requires periodic assistance from another person with walking indoors, walking outdoors, and climbing stairs with a note by the general practitioner that "angina limits this/ suffers from angina walking up hills and stairs." • The appellant is independent with standing, lifting, and carrying and holding. In the letter dated March 20, 2014, the appellant's general practitioner wrote: • The appellant suffers from quite disabling medical problems, partly related to his Type II diabetes. • He has atherosclerotic heart disease, which is currently being investigated, and peripheral arterial disease related to his diabetes. • He suffers from hypertension, high cholesterol and chronic low back pain. Daily Living Activities (DLA) In the PR, the general practitioner indicated that: • The appellant has not been prescribed medication and/or treatment that would interfere with his dailv livino activities.
APPEAL# I • The appellant does not require any prostheses or aid for his impairment and he can walk 4 or more blocks unaided on a flat surface. In the AR, the general practitioner reported that: • The appellant requires periodic assistance from another person with walking indoors and walking outdoors, with a note by the general practitioner that "angina limits this/ suffers from angina walking up hills and stairs." • The appellant is assessed as independent in all tasks of the personal care DLA: dressing, grooming, bathing, toileting, feeding self, regulating diet, transfers in/out of bed, and transfers on/off of chair. • The appellant can independently do his laundry and requires periodic assistance with his basic housekeeping, with a note by the general practitioner that the appellant's need for assistance relates to angina. • For the shopping DLA, the appellant is assessed as requiring periodic assistance with going to and from stores and carrying his purchases home, both noted to relate to angina. The appellant can independently read prices and labels, make appropriate choices and pay for purchases. The general practitioner also noted: "poor choices of food-will be seeing dietician." • For the remaining DLA of preparing his own meals, managing personal finances, managing his personal medication, using public or personal transportation facilities, making appropriate social decisions and interacting with others effectively, the appellant is assessed as independent in all tasks, with no further comments provided by the general practitioner. In his self-report, the appellant wrote that: • He has experienced heart problems with a sporadic work history since 2000. • His mood is anger, tired, no goals, depressed, no drive, no goals, unable to sleep or eat right as "welfare too low to buy right food." • He has become anti-social. He is very negative and goes into fits of rage very easily. He is also not sleeping at night. In the undated letter, the mental health and substance use counselor wrote: • She would like to draw attention to the appellant's mental impairment. • The appellant experiences severe depression and anxiety. He has extreme difficulty with his impulse control, he has difficulty being around community members because of his depression and anxiety and he has been known to react without restraint from emotional and physical outbursts. • The appellant has limited insight into his behaviours around others; he is quick to react to his environment and the people in his space. • The appellant appears to struggle with his thoughts; his memory appears to be impaired as he is tangential and requires support to refocus his thoughts to the task at hand. • The appellant demonstrates a lack of ability to problem solve and requires weekly support to navigate his way through issues that arise in his day-to-day activities. • The appellant presents as someone who has extreme tension in his body and agitation. • The appellant has difficulty organizing his thoughts, and his speech tends to race when he is recalling the past; he expresses rising anxiety with heart pounding frequently during the course of his interviews. • These factors severely impact the aooellant's daily functioninq and, coupled with his serious
h e a r t c o n d i t i o n , m a k e i t i m p o s s i b l e f o r h i m t o 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 • T h e m i n i s t r y h a s n o t r e c o g n i z e d t h e f u l l a n d i s s u e s . • T h e d e c i s i o n i s i n c o r r e c t b e c a u s e i t w a s f o u n a n d t h e o r i g i n a l a p p l i c a t i o n w a s c o m p l e t e d b s u b s t a n c e u s e a n d p r i o r t o h i s a p p o i n t m e n t w • T h e a s s e s s o r ' s p o r t i o n w a s c o m p l e t e d b y h i s h e a rt c o n d i t i o n b u t h a s n o t b e e n f a m i l i a r w i t h f a c t , i t t a k e s h i m s i g n i f i c a n t l y l o n g e r t o d o e v H e h a s d i f f i c u l t y m o v i n g h i s b o d y a r o u n d . • H e i s c h r o n i c a l l y f a t i g u e d , u n a b l e t o w o r k , a n t h e p o i n t w h e r e l i f e h a s n o t m u c h m e a n i n g . N e e d fo r H e l p I n t h e A R , t h e g e n e r a l p r a c t i t i o n e r i n d i c a t e d : • I n t e r m s o f t h e h e l p r e q u i r e d f o r D L A , t h e g e n t h e a p p e l l a n t ' s f r i e n d s w i t h a n o t e t h a t " d u e t • I n t h e s e c t i o n o f t h e r e p o r t i n d i c a t i n g a s s i s t a n n o n e o f t h e i t e m s a r e i d e n t i f i e d . I n h i s N o t i c e o f A p p e a l d a t e d A p r i l 2 2 , 2 0 1 4 , t h e a p m i n i s t r y ' s r e c o n s i d e r a t i o n d e c i s i o n a n d w r o t e t h a t : • H e s u f f e r s f r o m a s e v e r e p h y s i c a l a n d m e n t a l i v i n g a c t i v i t i e s . H i s p h y s i c i a n w i l l b e c o m p l e P r i o r t o t h e h e a r i n g , t h e a p p e l l a n t p r o v i d e d a l e t t e r f w h i c h h e w r o t e t h a t : • T h e a p p e l l a n t s u f f e r s f r o m s e v e r a l s e r i o u s m p r o b l e m i s h e a r t d i s e a s e w h i c h i s i n t h e p r o c • H e s u f f e r s f r o m a n g i n a w i t h m i n i m a l e x e r t i o n c a u s e s h i m f a t i g u e w i t h e x e r t i o n . • T h e a p p e l l a n t a l s o s u f f e r s f r o m p e r i p h e r a l v a p a r t i c u l a r l y a f f e c t i n g h i s l e f t l e g . • H e a l s o s u f f e r s f r o m s e v e r e c h r o n i c b a c k p a i • H e a l s o s u f f e r s f r o m c h r o n i c d e p r e s s i o n f o r a • O t h e r m e d i c a l p r o b l e m s i n c l u d e o b e s i t y a n d • I n s u m m a r y , t h e a p p e l l a n t s u f f e r s f r o m q u i t e b e i n g o n m a x i m a l m e d i c a l t h e r a p y . • T h e r e f o r e , h e c a n n o t w o r k a n d h a s l i m i t e d f u i n v e s t i g a t i o n s a r e p l a n n e d . A t t h e h e a r i n g , t h e a p p e l l a n t p r o v i d e d a l e t t e r f r o m h w h i c h h e w r o t e t h a t : • T h e a p p e l l a n t ' s a c t i v i t i e s o f d a i l y l i v i n g t a k e m • H e h a s s e e n d e t e r i o r a t i o n i n t h e a n n e l l a n t ' s h A P P E A L # I s e c u r e e m p l o y m e n t . r o t e t h a t : c o m p l e t e e x t e n t o f h i s h e a l t h i; m d m e n t a l h e a l t h d e d o n o n e d o c u m e n t c o m p l e t e d b y h i s d o c t o r e f o r e h e b e c a m e i n v o l v e d w i t h m e n t a l h e a l t h a n d i t h p s y c h i a t r y . d o c t o r w h o w a s f u l l y k n o w l e d g e a b l e a b o u t h i s h i s f u n c t i o n i n g a t h o m e o r i n t h e c o m m u n i t y . I n e r y t h i n g t h a t a p e r s o n w o u l d n o r m a l l y d o i n a d a y . d l i v i n g i n p h y s i c a l a n d e m o t i o n a l d i s c o m f o r t t o e r a l p r a c t i t i o n e r i n d i c a t e d t h a t i t i s p r o v i d e d b y o a n g i n a r e q u i r e s a s s i s t a n c e b y o t h e r s . " c e p r o v i d e d t h r o u g h t h e u s e o f a s s i s t i v e d e v i c e s , p e l l a n t e x p r e s s e d h i s d i s a g r e e m e n t w i t h t h e l i m p a i r m e n t t h a t a f f e c t s h i s a b i l i t y t o p e rf o r m d a i l y t i n g a l e t t e r t o s h o w e v i d e n c e o f t h i s . r o m h i s g e n e r a l p r a c t i t i o n e r d a t e d M a y 6 , 2 0 1 4 i n e d i c a l p r o b l e m s ; t h e m o s t i m m i n e n t s e r i o u s e s s o f b e i n g i n v e s t i g a t e d . w h i c h r e s t r i c t s h i s a c t i v i t i e s c o n s i d e r a b l y . I t a l s o s c u l a r d i s e a s e w i t h d e c r e a s e d c i r c u l a t i o n n f r o m p r e v i o u s i n j u r i e s . t l e a s t t h e l a s t 1 0 y e a r s . h y p e r l i p i d e m i a . a s e v e r e d i s a b i l i t y a t t h e p r e s e n t t i m e j u s t b y n c t i o n a t h o m e . F u r t h e r i n t e r v e n t i o n s a n d i s g e n e r a l p r a c t i t i o n e r d a t e d M a y 9 , 2 0 1 4 i n u c h l o n g e r t h a n n o r m a l . e a l t h , i n c l u d i n g h i s d e o r e s s i o n , s i n c e h e l a s t f i l l e d
APPEAL# I out his original application for disability benefits. Therefore, the appellant now needs more help with his activities of daily living. At the hearing, the appellant stated that: • He has an appointment for later in the month for testing to be done on his heart. It is not a matter of whether he requires further surgery, but more a question of how many stents will be needed. He has been referred to a cardiologist who is conducting investigations and has recommended surgery. • In the last 3 weeks to a month his condition has deteriorated. He can walk less than 50 yards and then he becomes weak and short of breath. He requires help carrying groceries from the food bank to his vehicle. He then has to take the bags into his home one at a time. • Some days his heart is OK, and other days it is painful. The chest pains will start without much exertion. Walking 80 yards on a slight incline, he had to stop twice to rest. He carries Nitroglycerin with him for the pains. • His hygiene is poor. He has not showered in 3 months because he has no ambition, or drive. • His sleep pattern is disrupted and he is awake every 2 to 3 hours. • He is frustrated because he cannot fix things around the house because he has no power in his arms. He loses power in his legs and has pain in the back of his legs which is occurring more and more often. • It took him 2 ½ days to change the tire on his vehicle. It used to take him 20 minutes. • His son has given notice at his job and will be moving from another province to live with the appellant to help him. • He cannot shave because when he lifts his head up, he gets dizzy. • On an average day, he gets up, gets something to eat and he keeps falling asleep throughout the day. Some days, he does not get up out of bed at all. It is a big difference for him because he used to be an avid outdoorsman. • He does not clean his place. He has used up all his dishes and pots and pans and has started using the least dirty over again. • His meal preparation is "up and down." He cannot lift a cast iron frying pan. • He manages to deal with his medications although his memory is not as good as it was. He will get a can of soup from the cupboard, put it on the stove and then turn around and hit his head on the cupboard because he forgot it was open. With the stress of his heart condition, his mind "goes into a different world." He has put food on the stove to heat and then forgotten. • He can get around inside the house but he walks "at an old man's pace." If he goes too fast, his heart starts causing pains. • He has nothing to do with managing finances because he has no "finances." • His daughter, who lives in another province, calls him every night to make sure he is OK. • As soon as he mentioned some of his symptoms of relapse to his family doctor, and from some of his mannerisms, his doctor referred him to a psychiatrist right away. He is to see the psychiatrist every month and has seen the psychiatrist twice so far. Anti-depressant medication has been prescribed. • He gets frustrated by the effects of his heart condition and gets depressed and then his finances get worse and he gets frustrated by that and a "snowball effect" starts and everything gets worse. • He is not the whining type and his answers were not complete when his physician first prepared the reports for the PWD application. He may be able to do something one day, and then not the next dav.
APPEAL# I At the hearing, the advocate stated that: • Mental health has observed the appellant's functioning and his depression has increased. The appellant's lack of hygiene is an example of his lack of motivation. He also has been unable to get proper sleep. • The appellant experiences difficulties because he lives in an isolated community and there is no support available for his daily living activities. • His shortness of breath has been observed and the appellant is taking significantly longer to complete his daily living activities. • The assessment by mental health is that the appellant's depression stems from his previous work in a stressful environment. He experiences flashbacks from situations in his work. Admissibility of New Information The ministry did not object to the admissibility of the physician's letters and did not raise an objection to the admissibility of the appellant's oral testimony. In the letters 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 s. 22(4) of the Employment and Assistance Act. The ministry relied on its reconsideration decision.
I APPEAL# PART F -Reasons for Panel Decision The issue on the appeal is whether the ministry's decision, which found that the appellant is not eligible for designation as a person with disabilities (PWD) as he does not meet all the criteria in Section 2 of the EAPWDA, was reasonably supported by the evidence or was a reasonable application of the applicable enactment in the circumstances of the appellant. The ministry found that the appellant has a severe mental impairment but that his daily living activities (DLA) are not, in the opinion of a prescribed professional, directly and significantly restricted either continuously or periodically for extended periods and that, as a result of those restrictions, it could not be determined that the appellant requires the significant help or supervision of another person, the use of an assistive device, or the services of an assistance animal to perform DLA. The criteria for being designated as a person with disabilities (PWD) are set out in Section 2 of the EAPWDA as follows: Persons with disabilities 2 ( 1) In this section: "assistive device" means a device designed to enable a person to perform a daily living activity that, because of a severe mental or physical impairment, the person is unable to perform; "daily living activity" has the prescribed meaning; "prescribed professional" has the prescribed meaning. (2) The minister may designate a person who has reached 18 years of age as a person with disabilities for the purposes of this Act if the minister is satisfied that the person has a severe mental or physical impairment that (a) in the opinion of a medical practitioner is likely to continue for at least 2 years, and (b) in the opinion of a prescribed professional (i) directly and significantly restricts the person's ability to perform daily living activities either (A) continuously, or (B) periodically for extended periods, and (ii) as a result of those restrictions, the person requires help to perform those activities. (3) For the purposes of subsection (2), (a) a person who has a severe mental impairment includes a person with a mental disorder, and (b) a person requires help in relation to a daily living activity if, in order to perform it, the person requires (i) an assistive device, (ii) the significant help or supervision of another person, or (iii) the services of an assistance animal. (4) The minister may rescind a designation under subsection (2). Section 2(1)(a) of the EAPWDR defines DLA for a person who has a severe physical or mental impairment as follows: Definitions for Act 2 (1) For the purposes of the Act and this regulation, "daily living activities" , (a) in relation to a person who has a severe physical impairment or a severe mental impairment, means the following activities: (i) prepare own meals; (ii) manage personal finances;
( 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 ( 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 ( 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 ( 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 ( 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 i b e d p r o f e s s i o n a l " m e p r a c t i c e t h e p r o f e s s 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 , ( b ) r e g i s t e r e d p s y c h o l o g i s t , ( c ) r e g i s t e r e d n u r 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 , ( d ) o c c u p a t i o n a l t h e r a p i s t , ( e ) p h y s i c a l t h e r a p i s t , ( f ) s o c i a l w o r k e r , ( g ) c h i r o p r a c t o r , o r ( h } n u r s e p r a c t i t i o n e r . A t r e c o n s i d e r a t i o n , t h e m i n i s t r y w a s s a t i s f i e d t h a t t h m e n t a l i m p a i r m e n t , b u t w a s n o t s a t i s f i e d t h a t t h e i n p h y s i c a l i m p a i r m e n 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 a s e v e r e p h y s i c a l i m p a i n , w e a k n e s s , s h o r t n e s s o f b r e a t h a n d f a t i g u e d u p e r i p h e r a l a r t e r i a l d i s e a s e r e l a t e d t o T y p e I I d i a b e t e T h e m i n i s t r y ' s p o s i t i o n i s t h a t t h e i m p a c t s d e s c r i b e d w i t h a m o d e r a t e d e g r e e o f i m p a i r m e n t a n d t h e r e i s 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 i m p a i r m e n t . T h e m p h y s i c a l a b i l i t y , t h e g e n e r a l p r a c t i t i o n e r i n d i c a t e d t h u n a i d e d , i t i s u n k n o w n h o w m a n y s t a i r s h e c a n c l i m s e a t e d l e s s t h a n 1 h o u r . T h e m i n i s t r y a r g u e d t h a t , a b i l i t y , t h e g e n e r a l p r a c t i t i o n e r i n d i c a t e d t h a t t h e a p d o o r s a n d c l i m b i n g s t a i r s d u e t o a n g i n a ; h o w e v e r , n a p p e l l a n t r e q u i r e s a s s i s t a n c e a n d t h e a p p e l l a n t i s i n h o l d i n g . I n t h e r e c o n s i d e r a t i o n d e c i s i o n , t h e m i n i s t r a d e t a i l e d h i s t o r y a n d i n f o r m a t i o n o n h o w h i s i m p a i r r e p o r t , t h e P W D a p p l i c a t i o n i s n o t i n t e n d e d t o a s s e s e l i g i b l e c r i t e r i o n f o r d e s i g n a t i o n a s a P W D .I A P P E A L # � _ _ _ _ _ __J e 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 ; a 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 : f i n a n c e s ; c t i v e l y . a n s a p e r s o n w h o i s a u t h o r i z e d u n d e r a n e n a c t m e n t t o e i n f o r m a t i o n p r o v i d e d i s e v i d e n c e o f a s e v e r e f o r m a t i o n p r o v i d e d i s e v i d e n c e o f a s e v e r e p a i r m e n t i s e s t a b l i s h e d b y t h e e v i d e n c e o f h i s e t o a t h e r o s c l e r o t i c h e a rt d i s e a s e a n g i n a a n d s . b y t h e g e n e r a l p r a c t i t i o n e r a r e m o r e i n k e e p i n g n o t s u f f i c i e n t i n f o r m a t i o n t o c o n f i r m t h a t t h e i n i s t r y a r g u e d t h a t , i n a s s e s s i n g t h e a p p e l l a n t ' s a t t h e a p p e l l a n t i s a b l e t o w a l k 4 o r m o r e b l o c k s b , h e c a n l i f t b e t w e e n 5 a n d 1 5 l b s . a n d r e m a i n i n a s s e s s i n g t h e a p p e l l a n t ' s m o b i l i t y a n d p h y s i c a l 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 w a l k i n g i n / o u t o i n f o r m a t i o n i s p r o v i d e d o n h o w o f t e n t h e d e p e n d e n t i n s t a n d i n g , l i f t i n g a n d c a r r y i n g a n d y p o i n t e d o u t t h a t a l t h o u g h t h e a p p e l l a n t p r o v i d e d m e n t h a s i m p a c t e d h i s e m p l o y m e n t i n h i s s e l f s e m p l o y a b i l i t y s i n c e e m p l o y a b i l i t y i s n o t a n
Pane l Decision A di ag nos is of a serious medical condition do es not in itse severe im pai rment . A n " imp ai rment " i s a medical condi ability to fu ncti on independe ntly or effectively. To asse ss the sever ity of an impairm ent one mus t exte nt of its impact on daily fu nct ioning a s evide nced which perf ormin g DLA is restri c t ed. I n ma kin g i ts det rele vant evid ence, inc luding th at of th e appellant. f u ndamental basis fo r the analysis is the evidence fro appellant's physician. In th e PR, the medical practitioner, a physician who has known th the ap pellan t with athe roscl erotic heart d isease a ngin dated March 2014, refers to Ty pe I I diabe tes as one of the per ip her al arteri al disease r e la ted to his diab etes, hypertens ba ck p ain. I n his le t te r, t he physi cian w ro t e t h at t he inv esti gated. The physic ian no t ed in the health hi story angin a w it h mini m a l activ ity such as sh ort wa l k up a b o r de rline fo r d iabetes th at m i ght b e ave rt e d by ad opti re por t e d t hat t he a p pell a nt do es no t re quir e a ny pros fun c ti on al sk ills , the appel lant i s a ble to walk 4 or m l bs. , r emai n seated les s tha n an hou r, a nd it is unkn t h e AR, the gene ral pr actitioner re ported that t h e appell pe rso n with walk ing in doo rs a nd outdoor s an d wi t h climb suf fe rs from a n g i na walking up hill s a nd s t a irs. " At his heart is OK , and o t h er da y s it is pa inful , and he carries The app ellant stated he los es power in his · le g s a nd more a nd mo re often. The p hysic ian a lso w r ote in the PR that the a ve ry se rio us (heart) a nd he will n eed to ov erc o me his impact on his p oor progno s is ." In the letter dated May 6, 2014, the appellant 's physician report medical problem the appellan t is suffe r ing with is hear investigated." He currently su f fers from an g i na with activities considerably. The physician repeated that further interventions and investigations are planned and the appella nt stated a t the hea r ing t hat, he will have heart surgery. There was no further information provided by the appellant's physician regarding the appellant's required surgery or his prognosis following. the appellant suffers from "quite a severe disability at the present t medical therapy" and, th eref ore, he can not wo rk a n the appellant prov ided a detaile d history and information on how his impairment has impacted his employment. As f o r fin ding w ork and/or w o rking, the panel no in section 2(2) of the EAPWDA nor is it listed among the prescribed daily living activities in section 2 of the EAPWDR, and finds that the ministry reasonably held that employability is not a factor in assess ing eligibilit y for PWD designation. As discussed in more detail in the subsequent section of th is decision re viewing r estrictions to DLA, any physical limitations result i moairme nts have not tr anslated into sii:inificant restr I APPEAL# lf det ermine PWD eligibility o r establish a tion that results in restrictio n s to a pe rson's c onsider the nature of the impairment and th e by funct i onal ski ll limit a t ion s and the deg ree to er m ination t h e ministry must c o n si der all the However, the legis l ati on is clea r that the m a prescribed profes sional -in th is case, the e ap pellant for 2 months, diagnosed a and p re-dia bet es and, in the physician's letter appellan t ' s med ic al condi t i ons along with ion, h igh cholesterol a n d chro nic lo w appellant's athe ros cle roti c h ea rt diseas e is be ing of the PR that the appel la nt "s uff e rs from hil l or stair s" and, at that time, tha t he w as ng a "be t ter di et an d lifesty le". The ph ysic ian these s or a i d for his impairm ent. In terms of ore bloc ks una ide d on a flat s urfa ce, lift 5 to 15 own how m an y s t a irs h e can c li m b una ide d. In ant requires periodic assistance fr om an other ing s t a irs , w it h a no te that "angina li m i t s this/ t he h earing, the appellant state d t hat so m e days Nitrogl yceri n with him to reli eve the pain. has pain in the back of hi s l eg s whi ch is o cc u r ri ng pp e l la n t' s "me dic a l c o n d i tion i s dep ression , obes ity, poor l ifestyle to have a n ed that the most imminent, serious t disease, w h ich i s "in the proce ss of be ing minimal exert ion, a n d fatigue, wh ich restricts his following a test sched uled for l ater i n t he mon th, The physician concluded that ime j u s t by being o n max imal d has li mited function a t hom e . In h is self-repot, tes that em ployability is not a c ri terion ing from the appellant's i ctions in his ability to manaae his DLA
i n d e p e n d e n t l y . F o r t h e f o r e g o i n g r e a s o n s , t h e p a n e l f i n d s t h a t t h e s u f f i c i e n t i n f o r m a t i o n t o c o n f i r m t h a t t h e a p p e l l a n t h i m p a i r m e n t . W h i l e t h e a p p e l l a n t ' s h e a r t c o n d i t i o n i ' s e r i o u s ' a n d t h e a p p e l l a n t r e q u i r e s s o m e p e r i o d i c a s s i s t a n c e h a s n o t b e e n d e s c r i b e d a n d h e r e m a i n s a b i l i t i e s . T h e r e i s n o e v i d e n c e f r o m t h e p h y s i c i a n a a n d s e r i o u s m e d i c a l p r o b l e m ( a n g i n a ) a f t e r t h e p l a n 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 t h a t t h e r e i s n o t s u 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 u n d e r s e c t i o n 2 ( 2 ) o f R e s t r i c t i o n s i n t h e a b i l i t y t o p e r f o r m 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 i s s e v e r e p h y s i c a l r e s t r i c t h i s a b i l i t y t o p e r f o r m D L A a n d h e r e q u i r e s t h T h e m i n i s t r y ' s p o s i t i o n i s t h a t t h e e v i d e n c e o f t h e p a p p e l l a n t ' s i m p a i r m e n t s s i g n i f i c a n t l y r e s t r i c t D L A e i p e r i o d s o f t i m e . T h e m i n i s t r y a r g u e d t h a t t h e p h y s i f r e q u e n c y , o r d u r a t i o n o f a n y a s s i s t a n c e r e q u i r e d b r e m a i n i n g D L A a r e c o n s i d e r e d i n d e p e n d e n t a n d t h e l o n g e r t o p e r f o r m . T h e m i n i s t r y a r g u e d t h a t t h e p h y i n a l l a s p e c t s o f s o c i a l f u n c t i o n i n g a n d h e h a s g o o d s o c i a l n e t w o r k s . P a n e l D e c i s i o n S e c t i o n 2 ( 2 ) ( b ) o f t h e E A P W D A r e q u i r e s t h a t a p r e s a p p l i c a n t ' s s e v e r e i m p a i r m e n t d i r e c t l y a n d s i g n i f i c a n f o r e x t e n d e d p e r i o d s . I n t h i s c a s e , t h e a p p e l l a n t ' s f D L A a r e d e f i n e d i n s e c t i o n 2 ( 1 ) o f t h e E A P W D R a n d e t a i l s , i n t h e A R . T h e r e f o r e , a p r e s c r i b e d p r o f e s s i o p p o r t u n i t y t o d i r e c t l y i n d i c a t e w h i c h , i f a n y , D L A a r i m p a i r m e n t s , 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 T h e e v i d e n c e o f t h e a p p e l l a n t ' s p h y s i c i a n i s s e t o u t d a t e d M a y 6 a n d M a y 9 , 2 0 1 4 , a t w h i c h t i m e t h e p h a p p e l l a n t ' s m e d i c a l c o n d i t i o n . T h e p h y s i c i a n r e p o r t p r e s c r i b e d m e d i c a t i o n a n d / o r t r e a t m e n t t h a t i n t e r f e r 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 f r o m a n o o u t d o o r s , a n d w i t h t h e t a s k s o f b a s i c h o u s e k e e p i n g h o m e , w i t h a n o t e b y t h e p h y s i c i a n t h a t t h e n e e d f o r a p p e l l a n t s t a t e d t h a t h i s e x p e r i e n c e o f c h e s t p a i n f l u b u t , o v e r a l l , i t h a s b e e n g e t t i n g w o r s e . I n h i s l e t t e r o a p p e l l a n t e x p e r i e n c e s a n g i n a w i t h m i n i m a l e x e r t i o n a c t i v i t i e s c o n s i d e r a b l y " a n d t h a t h e h a s " l i m i t e d f u n c p h y s i c i a n w r o t e t h a t h e h a s s e e n a d e t e r i o r a t i o n i n t t a k e m u c h l o n a e r t h a n n o r m a l a n d h e n o w n e e d s m A P P E A L # I m i n i s t r y r e a s o n a b l y c o n c l u d e d t h a t t h e r e i s n o t a s m o r e t h a n a m o d e r a t e d e g r e e o f p h y s i c a l s d e s c r i b e d b y h i s p h y s i c i a n a s ' i m m i n e n t ' a n d a s s i s t a n c e , t h e f r e q u e n c y a n d d u r a t i o n o f t h e l a r g e l y i n d e p e n d e n t w i t h h i s m o b i l i t y a n d p h y s i c a l s t o t h e p r o g n o s i s r e g a r d i n g h i s m o s t i m m i n e n t n e d h e a r t s u r g e r y . T h e p a n e l f i n d s t h a t t h e f f i c i e n t e v i d e n c e t o e s t a b l i s h t h a t t h e a p p e l l a n t h a s t h e E A P W D A a n d m e n t a l 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 e s i g n i f i c a n t a s s i s t a n c e o f a n o t h e r p e r s o n . r e s c r i b e d p r o f e s s i o n a l s d o e s n o t e s t a b l i s h t h a t t h e 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 c i a n h a s p r o v i d e d n o e v i d e n c e a s t o t h e t y p e , y t h e a p p e l l a n t . T h e m i n i s t r y a r g u e d t h a t t h e r e i s n o i n d i c a t i o n t h a t t h e y t a k e s i g n i f i c a n t l 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 i s i n d e p e n d e n t f u n c t i o n i n g i n b o t h h i s i m m e d i a t e a n d e x t e n d e d c r i b e d p r o f e s s i o n a l p r o v i d e a n o p i n i o n t h a t a n t l y r e s t r i c t s h i s D L A , 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 a m i l y p h y s i c i a n i s t h e p r e s c r i b e d p r o f e s s i o n a l . d a r e a l s o l i s t e d i n t h e P R a n d , w i t h a d d i t i o n a l o n a l c o m p l e t i n g a n y o f t h e s e f o r m s h a s t h e e s i g n i f i c a n t l y r e s t r i c t e d b y t h e a p p e l l a n t ' s e d p e r i o d s . i n t h e P R a n d A R a s w e l l a s t h e a d d i t i o n a l l e t t e r s y s i c i a n p r o v i d e d a n u p d a t e r e g a r d i n g t h e e d i n t h e P R t h a t t h e a p p e l l a n t h a s n o t b e e n e w i t h h i s D L A . I n t h e A R , t h e p h y s i c i a n r e p o r t e d t h e r p e r s o n w i t h w a l k i n g i n d o o r s a n d w a l k i n g , g o i n g t o a n d f r o m s t o r e s a n d c a r r y i n g p u r c h a s e s a s s i s t a n c e r e l a t e s t o a n g i n a . A t t h e h e a r i n g , t h e c t u a t e s a n d s o m e d a y s a r e b e t t e r t h a n o t h e r s f M a y 6 , 2 0 1 4 , t h e p h y s i c i a n w r o t e t h a t t h e a n d f a t i g u e o n e x e r t i o n w h i c h " r e s t r i c t s h i s t i o n a t h o m e . " I n t h e M a y 9 , 2 0 1 4 l e t t e r , t h e h e a p p e l l a n t ' s h e a l t h a n d t h e a p p e l l a n t ' s D L A o r e h e l p ; h o w e v e r , n o f u r t h e r s p e c i f i c i n f o r m a t i o n
APPEAL# I is provided in either of the physician's letters regarding the particular activities or functions restricted or the extent of the restrictions. At the hearing, the appellant described restrictions that he experiences to his DLA, such as with walking "at an old man's pace" and requiring breaks on any incline, that his meal preparation is "up and down" and he cannot lift a cast iron frying pan and his memory is not as good as it was and he forgets food heating on the stove. He stated that his hygiene is poor and he has not showered in 3 months because he has no ambition, or drive. He cannot shave because when he lifts his head up, he gets dizzy. These restrictions have not been confirmed by the physician, as the prescribed professional. In the AR, the appellant is assessed by the physician as independent in all tasks of the DLA of performing personal hygiene and self care, preparing his own meals, managing personal finances, managing his personal medication, and using public or personal transportation facilities. The physician also reported that the appellant can independently perform the tasks of doing his laundry, reading prices and labels, making appropriate choices and paying for purchases when shopping. The letter from the mental health and substance use counselor indicated that the appellant has difficulty with his impulse control, he has difficulty being around community members because of his depression and anxiety and he has been known to react without restraint from emotional and physical outbursts. The counselor wrote that the appellant demonstrates the lack of an ability to problem solve, and he requires weekly support to navigate his way through issues that arise in his day-to-day activities. However, the physician, as the prescribed professional, did not indicate restrictions, either in the AR or in his letters, to the two DLA relating to a person with a severe mental impairment, namely: making decisions about personal activities, care or finances and relating to, communicating or interacting with others. The appellant is assessed as independent with his social functioning, with good functioning in both his immediate and extended social networks, as well as with managing his finances and medications and making appropriate choices when shopping, and with no difficulties identified with communication. The appellant stated at the hearing that he gets frustrated by the effects of his heart condition and gets depressed and then his finances get worse and he gets fru strated by that and a "snowball effect" starts and everything gets worse. The physician reported that the assistance required with DLA is related to the appellant's experience of angina and the physician wrote in his recent letters that further interventions and investigations are planned, described by the appellant as preparation for heart surgery, with no information provided by the physician or the appellant's cardiologist about the present prognosis. The panel finds that the ministry reasonably concluded that the physician has not provided evidence to define the type, frequency or duration of any assistance required by the appellant. The panel concludes that the ministry reasonably determined that there is not sufficient supporting evidence currently available to establish that the appellant's impairments directly and significantly restrict his DLA either continuously or periodically for extended periods, thereby not satisfying the legislative criterion of Section 2(2)(b)(i) of the EAPWDA. Help to perform DLA The appellant's position is that he requires the significant assistance of another person to perform DLA, even if he does not currently receive help with his DLA. The appellant argued that he sees a psychiatrist and attends for counseling through mental health and that his son will be moving to be close enough to help him in the future.
APPEAL# I The ministry's position is that because it has not been established that DLA are significantly restricted, it cannot be determined that significant help is required from other persons. The ministry pointed out that no assistive devices are required and the appellant does not require 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 restrictions in the ability to perform DLA, a person requires help to perform those activities. Help is defined in subsection (3) as the requirement for an assistive device or the significant help or supervision of another person or the services of an assistance animal in order to perform a DLA. The physician indicated in the AR that help required for DLA is provided by the appellant's friends with a note that "due to angina requires assistance by others." While the panel finds that the evidence of the prescribed professional establishes that the appellant requires some assistance, the panel also 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. Conclusion The panel acknowledges that the appellant's medical conditions have an impact on his ability to function. However, having reviewed and considered all of the evidence and the relevant legislation, the panel concludes 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.
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