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 b e i n g a p p e a l e d i s t h e M i n i s t r y o f S o c i " M i n i s t r y ' ' ) M a y 2 8 , 2 0 1 4 r e ¢ o r i s i d e r a f i o n cl e c i s i o n i n w a s n o f e l i g i b l e f o r P e r s o n s w i t h D i s a b i l i t i e s ( ' ' P W D r e � u i t e m e n t s f o r P W D d e s i g n a t i o n i n s e c t i o n 2 ( 2 ) o w i t h O i s a b i l i t i e s A c t . B a s e d o n t h e i n f o r m a t i o n p r o v A p p e l l a n t h a 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 i;! i r rn e ( 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 h e r a b i l i t y t o p e r i o d i c a l l y fo r e x t e n d e d p e r i o d s ; 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 s h e . r e q u i r e s h 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 e A p p e l l a n t h a s r e m e d i c a l p r a c t i t i o n e r h e r i m p a i r m e n t I S l i k e l y t o c o n ! i P A R T b R e l e v a n t L e g i s l a t i o n E m p l o y m e n t a n d A s s i s t a n c e f o r P e r s o n s w i t h D i s a b E m p l o y m e n t a n d A s s i s t , m c e f o r P e r s o n s w i t h D i s a b EM T 0 0 3 ( 1 0 / 06 / 0 1 )'. A P P E A L # a 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 w h i c h t h e M i n i s t ry 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 ' ' ) d e s i g n a t i o n b e c a u s e s h e d i d n o t m e e t a l l t h e f t h e E m p l o y m e n t a n d A s s i s t a n c e f o r P e r s o n s i d e d , 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 n f t h a 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 p n :i f e s S i o h a l p e r f o r m d i;! 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 c o n t i n u o u s l y · o r · e l p t o p e r f o r m t h o s e a c . t i v i l i e s . a c h e d 1 8 y e a r s o f a g e a n d i n t h e o p i n i o n o f a n u e f o r a t l e a s t g y e a r s . i l i t i e s A c t ( " E A P W D A " ) S e c t i o n 2 ( 2 ) a h d 2 ( 3 ) . 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 .
P A R T E S u m m a r v o f F a c t s W i t h t h e c o n s e n t o f b o t h p a r t i e s , t h e h e a r i n g w a s c o n 2 2 ( 3 ) ( b ) o f t h e E A A . F o r i t s 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 y h a d t h e 1 . A p p e l l a n t ' s P W D a p p l i c a t i o n c o n s i s t i n g o f : • H e r s e l f r e p o r t d a t e d J a n u a r y 3 0 , 2 0 1 4 . • A p h y s i c i a n ' s r e p o r t a n d a n a s s e s s o r ' s r e p o r t A p p e l l a n t ' s d o c t o r w h o i n d i c a t e d t h a t s h e h a d m o n t h s , h a d s e e n h e r s i n c e D e c e m b e r 2 0 1 3 , s i n c e 2 0 0 9 . 2 . A p p e l l a n t ' s M a y 1 6 , 2 0 0 4 r e q u e s t f o r r e c o n s i d e r a t M a y 2 0 , 2 0 0 4 . I n h e r n o t i c e o f a p p e a l , t h e A p p e l l a n t w r o t e t h a t h e r d f o c u s a n d c o n c e n t r a t e h a v e t a k e n o v e r a l l a s p e c t s o f d a i l y f u n c t i o n s . P u r s u a n t t o s e c t i o n 2 2 ( 4 ) o f t h e E m p l o y m e n t a n d A s t h e n o t i c e o f a p p e a l a s b e i n g c o n s i s t e n t w i t h a n d i n s a t t h e t i m e o f r e c o n s i d e r a t i o n . F o r t h i s a p p e a l , t h e M i n i s t r y r e l i e d o n i t s r e c o n s i d e r a t T h e P a n e l h a s s u m m a r i z e d t h e r e l e v a n t e v i d e n c e a s D i a g n o s e s I n t h e p h y s i c i a n ' s r e p o r t , t h e d o c t o r d i a g n o s e d t h e A p t h a t t h e A p p e l l a n t ' s i m p a i r m e n t / d i a g n o s e s i s l i k e l y c h c o u n s e l i n g a n d e x e r c i s 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 p r o v i d e d n o i n f o r m a t i o n a b o u t a n y p h y r e p o r t , p r o v i d e d t h e f o l l o w i n g i n f o r m a t i o n a b o u t t h e A • C a n w a l k u n a i d e d o n a f l a t s u r f a c e f o r m o r e t h • C a n c l i m b m o r e t h a n 5 s t e p s u n a i d e d . • H a s n o l i m i t a t i o n s w i t h l i f t i n g o r w i t h r e m a i n i n g M e n t a l I m p a i r m e n t I n h e r s e l f r e p o rt a n d r e c o n s i d e r a t i o n s t a t e m e n t , t h e • H a s v a r i o u s m e n t a l i l l n e s s e s , i s c h r o n i c a l l y d e a n d o f t e n f e e l s a n x i o u s ; p a n i c a t t a c k s a r e b r o u w a s y o u n g e r , w h i c h s h e d e s c r i b e d i n h e r r e c o • S u f f e r s f r o m i m p u l s e c o n t r o l b r o u g h t o n b y h e r • I s u n a b l e t o f o c u s a n d c o n c e n t r a t e f o r t o o l o n q E AA T 0 0 3 ( 1 0 / 0 6 / 0 1 )I A P P E A L # d u c t e d a s a w r i t t e n h e a r i n g p u r s u a n t t o s e c t i o n f o l l o w i n g e v i d e n c e : b o t h c o m p l e t e d o n J a n u a r y 2 0 , 2 0 1 4 b y t h e s e e n t h e A p p e l l a n t 2 -1 0 t i m e s i n t h e p a s t 1 2 b u t t h e A p p e l l a n t h a d b e e n i n t h e c l i n i c ' s p r a c t i c e i o n w i t h a s t a t e m e n t f r o m t h e A p p e l l a n t d a t e d e p r e s s i o n , a n x i e t y , p a n i c a t t a c k s a n d i n a b i l i t y t o h e r l i f e . T h e y a l s o a f f e c t h e r a b i l i t y t o p e r f o r m s i s t a n c e A c t , t h e P a n e l a d m i t s t h e s t a t e m e n t s i n u p p o r t o f e v i d e n c e t h a t w a s b e f o r e t h e M i n i s t r y i o n d e c i s i o n . f o l l o w s . p e l l a n t w i t h d e p r e s s i o n . T h e d o c t o r a l s o w r o t e r o n i c b u t i t c a n b e m i n i m i z e d w i t h m e d i c a t i o n , s i c a l i m p a i r m e n t s . T h e d o c t o r , i n t h e p h y s i c i a n ' s p p e l l a n t ' s p h y s i c a l f u n c t i o n i n g : a n 4 b l o c k s . s e a t e d . A p p e l l a n t d e s c r i b e d h e r d i s a b i l i t y a s f o l l o w s : p r e s s e d , h a s p a n i c a t t a c k s , h a s m o o d s w i n g s g h t o n b y f l a s h b a c k s a b o u t i n c i d e n t s w h e n s h e n s i d e r a t i o n s t a t e m e n t . a n x i e t y a t t a c k s . , l e a d i n q h e r t o m a k e i r r a t i o n a l d e c i s i o n s t h a t
I APPEAL# affect her well being; suffers from grandiosity, hostility, racing speech, unfocused speech, hopelessness, agitation, lack of motivation, poor hygiene, poor grooming, obsessive compulsiveness and lack of self awareness .. • Hard to take care of herself when she is always depressed and tired. • Usually gets severely depressed at least one week out of a month. • Has been on medication for over 15 years. The doctor provided the following information in her reports about the Appellant: • The Appellant states that she is unable to concentrate, has mood swings, fatigue and occasional anxiety, occasional sleep disturbance and decreased interest. • Has no difficulties with communication. • Has significant deficits with cognitive and emotional function in the following areas: emotional disturbance, motivation, impulse control -"occasional", motor activity -"occasional", and attention or sustained concentration. • Is on medication for this and will be initiating counseling next week. • For cognitive and emotional functioning, her impairment has a major impact to attention/concentration and to motivation; moderate impact to emotion, impulse control and executive; and, no impact to bodily functions, consciousness, insight and judgement, memory, motor activity, language, psychotic symptoms, other neuropsychological problems and other emotional or mental problems. Dailv Living Activities The Appellant described the impact of her disabilities as follows: • Gets severely depressed at least one week a month leaving her unable to take care of her daily personal hygiene. • Has a significant impact on her quality of life and makes it hard to maintain relationships with family and friends. • Finds it hard to talk to people about the incidents in her childhood. • Daily life and ability to perform daily living tasks is severely impacted. • Inability to focus and concentrate, lack of motivation, conditions listed above result in poor hygiene, poor grooming. • When things get really bad, a friend comes to help out with house cleaning, meal preparation, grocery shopping and budgeting. In the physician's report, the doctor reported that the Appellant has not been prescribed any medication and/or treatments that interfere with her ability to perform daily living activities. In the assessor's report, the doctor provided the following information about the Appellant: • Occasional mental impairment (decreased energy, decreased motivation) to get self ready in the morning. • Has good ability to communicate in all areas; i.e., speaking, reading, writing and hearing. • Is independent in all aspects of mobility and physical ability: that is, walking indoors and outdoors, climbing stairs, standing, lifting, and carrying and holding. • Independently manages all areas of personal care, basic housekeeping, shopping, meals, paying rent and bills, medications and transportation. • Independently manages all aspects of social functioning, except that she needs periodic assistance with dealing appropriately with unexpected demands -"occasionally needs to call a friend." EMT 003(10106101)
�APPEAL# • Has good functioning with her immediate and extended social networks. Help with Daily Living Activities The doctor wrote that the Appellant will be starting counseling and occasionally needs to call a friend for help with dealing with unexpected demands. The doctor also wrote "N/A" [not applicable] in the section for assistance provided by other people. The sections in the AR for reporting the use of assistive devices or an assistance animal were left blank. The Appellant wrote that, when things get really bad, a friend comes to help with house cleaning, meal preparation, grocery shopping and budgeting. EMT003(10/06/01)
APPEAL# '. PART F -Reasons for Panel Decision The issue in this appeal is whether the Ministry reasonably determined that the Appellant was not eligible for PWD designation because she did not meet all of the requirements in section 2(2) of the EAPWDA, and specifically, that the Appellant does not have a severe mental or physical impairment that in the opinion of a prescribed professional (i) directly and significantly restricts her ability to perform daily living activities either continuously or periodically for extended periods; and, (ii) as a result of those restrictions she requires help to perform those activities. The eligibility criteria for PWD designation are set out in the following sections of the EAPWDA: 2 (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. The "daily living activities" referred to in EAPWDA section 2(2)(b) are defined in the EAPWDR as: 2 (1) For the purposes of the Act and this regulation, "daily living activities" , (a) in relation to a person who has a severe physical impairment or a severe mental impairment, means the following activities: (i) prepare own meals; (ii) manage personal finances; (iii) shop for personal needs; (iv) use public or personal transportation facilities; (v) perform housework to maintain the person's place of residence in acceptable sanitary condition; (vi) move about indoors and outdoors; (vii) perform personal hygiene and self-care; (viii) manage personal medication, and (b) in relation to a person who has a severe mental impairment, includes the following activities: (i) make decisions about personal activities, care or finances; (ii) relate to, communicate or interact with others effectively. The Panel will consider each party's position regarding the reasonableness of the Ministry's decision under the applicable PWD criteria at issue in this appeal. Severe Mental Impairment The Appellant submitted that her depression, anxiety, panic attacks, inability to focus and concentrate, and other illnesses have taken over all aspects of her life and severely impact her ability to function. In its reconsideration decision, the Ministry acknowledged that the Appellant may have deficits with mental functioning. However, the Ministry found that the doctor did not provide enough evidence for the Ministry to determine that the Annellant has a severe mental imoairment. EAAT 003(10/06/01)
I APPEAL# The Panel's Findings The diagnosis of a medical condition is not in and of itself evidence of the severity of impairment. To satisfy the requirements in section 2(2) of the EAPWDA, evidence of how and the extent to which a medical condition restricts daily functioning must be considered. This includes the evidence from the Appellant and from a prescribed professional regarding the nature of the impairment and its impact on the Appellant's ability to manage the daily living activities listed in section 2(1) of the EAPWDR. The Appellant described several mental health conditions, including chronic depression, anxiety attacks, inability to focus and concentrate, impulsiveness, mood swings which severely impact her functioning. Also, she wrote that her inability to focus and concentrate and her lack of motivation result in poor hygiene and poor grooming. When things get really bad, a friend comes to help out with house cleaning, meal preparation, grocery shopping and budgeting. She has been on medication for 15 years, but this was not confirmed by the doctor. The doctor diagnosed the Appellant with depression, and added that the Appellant stated that she is unable to concentrate, has mood swings, fatigue, decreased interest, occasional anxiety and occasional sleep disturbance. The doctor also reported significant deficits in the Appellant's cognitive functioning in 5 areas, but impulse control and motor activity are noted as "occasional".· in the cognitive and emotional functioning part of the assessor's report, the doctor reported major impacts only to attention/concentration and motivation, with moderate impacts in 3 areas and no impact in 9 areas. With respect to any effects on the Appellant's daily functioning, the doctor reported that the Appellant manages all aspects of daily living activities independently, notably personal care, medications, paying rent and social functioning, which all require mental abilities. The Appellant needs periodic assistance only with dealing appropriately with unexpected demands. Therefore, based on the evidence, especially from the doctor, the Panel finds that the Ministry reasonably determined that there was not enough evidence to find that the Appellant has a severe mental impairment. Severe Physical Impairment The Panel notes that there is no diagnoses of any physical health condition and no information from · the Appellant regarding any physical impairment. Also, the doctor reported that the Appellant has good physical functioning and independently manages all areas of mobility and physical ability. Therefore, the Panel finds the Ministry reasonably determined that the evidence did not demonstrate a severe physical impairment. Restrictions to Daily Living Activities The Appellant submitted that her conditions severely impact her daily life and ability to manage daily tasks. The Ministry wrote that it relies on the medical opinions and assessments provided by the doctor when determining PWD eligibility. The doctor indicated that the Appellant independently manages all daily living activities, except for needing periodic assistance with dealing appropriately with unexpected demands. Based on the information provided, the Ministry found that there was not enough evidence to establish that the Appellant's impairment directly and significantly restricts her daily living activities continuously or periodically for extended periods. EMT 003(10/06/01)
The Pan el 's Fi n dings Se ct ion 2 ( 2 )(b) of the EAPWDA r equires th at a prescribed professiona Appell ant ' s severe mental or physical impai rment directly a activities , continuously or periodi call y for extended peri section 2(1) of the EAPWDR, and are also listed in the PR an d oc t or is the prescribed professional. The Appellant state d that her impairments severely i m Appellant's docto r reported th a t the App ellan t manage for occasionally needing to call a friend when deali ng f unc tio nin g with her immediate and exte nded social networks. the doctor, the prescribed professiona l , the Panel finds that the Ministry there was n o t en ough evidence to establi sh that t he App rest ricts he r a bility t o ma nage daily living activi ties continuous Help with Daily Liv ing Activ ities Th e Appel lant st a ted th at, w hen th i ngs get r eall y bad, a fr . m eal prepar ation, g ro c e ry shoppi n g and budgeting. T he Min is tr y n oted tha t the d o ctor d i d not indicate that the Appel an a s sis tan ce animal . The M i nistry's pos i tion i s t h at, because the evidenc d aily l i ving activ it i e s a re significantly r estric ted , it cannot fr o m other persons. The Panel's F indings Section 2(2 }(b}(ii) of th e E APW D A a l s o requires t he opin t h at b ecause of direc t and s ig n ificant restric tions i n h e Appe llant r e q ui r es help wit h those a c tiv iti e s. H elp in rela se c t ion 3 of the EA PW DA as a n ass i s ti ve devi ce, th e o r the s e r v ices o f an assistanc e a n ima l. The doctor reported only that the Appellant is star tin g counselin friend when dealing with unexpecte d demands. Therefore and b ecause the Minis try reasonably determined that the e activities are directly and significantly restricted either continuously or periodically for extended pe r iods, the P a n el finds that t h e M inistry rea s onab l y fou of the EAPWDA were not met. Conclusion Having reviewed and considered all of the evidence and the relevant legislation, the Pane the Ministry's reconsideration decision, which determined that the Appellant was not eligible for PWD designation, was reasonably supported by the evidence. Therefore the Panel confirms that decision. EAAT 003(10/06/01) I APPEAL# l provide an opinion tha t the nd s ignifican t ly restri ct s her d aily livi ng o d s. Daily living activities are defi ned in d in the AR. In this c a se th e Appel lan t 's pact her ability to do d aily tas ks. However, the s all daily living activiti es independent l y , except with une x pected d e mand s. S he also has good Therefore, based on th e evidence from reasonably d e termined that e l lant ' s impairment directly and sig nificantly ly or periodically for exte nded periods. ie nd comes t o h elp with h o use cle aning , lant ne eds either as sisti ve devi ces or e do es not e stablish tha t determine tha t sign ificant help is req uired ion o f a prescribed profess i onal conf i r mi n g r ab i l i ty to ma nage dai ly l i ving ac t i vities, the t ion to a dai ly livi ng activi ty i s d efined in s i gnifi cant help o r su p e rvi s ion of another pe r s on g and occasiona l ly needs to call a , based on the evidence from the doctor v iden c e does not estab l ish that da i ly living nd that t h e requirements in section 2(2}(b}(i i) l finds that
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.