APPEAL# I PART C -Decision under Appeal The decision under appeal is the Ministry of Social Development and Social Innovation's (the ministry) reconsideration decision dated July 8, 2014 which found that the appellant did not meet three of the five statutory requirements of section 2 of the Employment and Assistance tor Persons with Disabilities Act (EAPWDA) for designation as a person with disabilities (PWD). The ministry found that the appellant met the age requirement and that his impairment is likely to continue for at least two years. However, the ministry was not satisfied that: • the evidence establishes that the appellant has a severe physical or mental impairment; • the appellant's daily living activities (DLA) are, in the opinion of a prescribed professional, directly and significantly restricted either continuously or periodically for extended periods; and that • as a result of those restrictions, the appellant requires the significant help or supervision of another person, an assistive device, or the services of an assistance animal, 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 II I PART E -Summary of Facts The evidence before the ministry at the time of reconsideration consisted of: 1) The appellant's Request for Reconsideration (RFR) dated June 30, 2014; 2) PWD Decision Summary dated June 6, 2014; 3) A PWD application comprised of a Self-report (SR) signed by the appellant on May 27, 2014; a Physician Report (PR) and an Assessor Report, both dated June 2, 2014 and completed by the appellant's general practitioner. The general practitioner reports that the appellant has been his patient for five years and he has seen him two to ten times in the last year; 4) Letter from the ministry to the appellant dated June 6, 2014 advising that his application for PWD designation was denied. In his Notice of Appeal the appellant states that there has been a drastic worsening of his mental and emotional well being, that he has seen his physician twice and is now taking an anti-depressant to cope with extreme depression, anxiety and sleeplessness. The appellant states that he is trying to cope with effects of radiation and chemotherapy as well as chronic obstructive pulmonary disease (COPD). Admissibility of New Information At the hearing, the appellant provided oral testimony and submitted a written submission, six pages, regarding his condition. He states that he has seen his family doctor twice in the last month and his condition has changed drastically in the last two months. The appellant reports that his physical condition is changing rapidly and he is about 30% of his normal functioning, and spends most of his day sitting, laying down or sleeping. He cannot walk more than one block, is breathless going up one flight of stairs and cannot stand for more than 3-4 minutes before he has to sit down. He continues to go to the washroom 40 times per day. His wife has assumed all duties of shopping, driving, cooking, cleaning, financial matters, and taking care of him. The appellant states that he is extremely depressed, caused by stress, financial worries, poor health and constant pain and discomfort from cancer radiation therapy, chemotherapy and COPD. He reports that he lapses into a state of inaction that can last up to an hour at a time. He reports occasional thoughts of suicide and has daily panic and anxiety attacks. The appellant provides a list of the activities that he is unable to do and the assistance provided by his wife. The ministry did not object to the new information and documentation. The panel has admitted the new documentation and oral testimony into evidence as it is in support of information and records that were before the ministry at the time of reconsideration, in accordance with section 22(4) of the Employment and Assistance Act. In particular, the new documentation provides further information regarding the impact of the appellant's impairment on his impairment and functional abilities. In addition, although there was no diagnosis of depression at the time of reconsideration the appellant had, in his SR, indicated that he had a lot of stress and worry and in the RFR, he stated that he was extremely frustrated, depressed and avoided social situations and interactions. The ministry did not submit any new information and relied on the reconsideration decision. Physical Impairment In the SR, the appellant states that he has rectal cancer and is about to begin six weeks of radiation followed by reassessment, surgery and further chemotherapy. He states that he is unable to work at all due to physical limitations from COPD and cancer and has extreme shortness of breath and cannot lift heavv weiaht or do
I APPEAL# strenuous labor. The appellant states that he has chronic pain and discomfort that are increasing in intensity as time goes on. He states that he goes to the washroom at least 40 times per day, has daily weakness and dizziness and has sporadic and interrupted sleep of no more than two hours at a time. The appellant states that his disability has compromised his ability to be independent and self-reliant. He states that he is unable to walk more than two blocks or up and down stairs without the need to go to the washroom and be out of breath. In the RFR the appellant states that his general practitioner was mistaken in his reports of his functional abilities. The appellant states that although the general practitioner reported that he could walk 4+ blocks, that is not accurate as in his SR he stated that he is unable to walk more than 2 blocks. The appellant states that if he had to walk 4 blocks he would be on the ground gasping for breath and would certainly have uncontrollably soiled himself. At the hearing and as reported in his written submissions, the appellant stated that his physical symptoms have drastically worsened and he is about 30% of his normal functioning and he is now unable to walk more than one block, is breathless after going up one flight of stairs and cannot stand for more than 3-4 minutes. In the PR, the general practitioner reports that the appellant has COPD and impairment to his digestive organs and peritoneum and that he is about to undergo treatment including chemotherapy, radiotherapy. and surgery. He reports that the appellant is unable to work in any capacity due to his extensive cancer treatment. He also reports that the appellant's COPD is permanent and may get worse following his chemotherapy. The general practitioner reports that the appellant's chemotherapy may interfere with the appellant's ability perform daily living activities (DLA) and his condition post surgery will be poor initially. His COPD will never improve and the duration of his cancer treatments is harder to estimate. Functional skills reported in the PR indicate that the appellant can walk 4+ blocks unaided, can climb 5+ stairs, lifting limitations were unknown and he can remain seated for 1 to 2 hours. The physician reports that the appellant does not require any prostheses or aids for his impairment. Under Part F -additional comments, the general practitioner reports that the appellant's condition is going to worsen as he starts his cancer treatment which will be extensive and prolonged. He notes that the appellant will require a lot of support during his treatment. In the AR, the general practitioner reports that the appellant has severe shortness of breath and weakness. He is independent with walking indoors, standing, lifting and carrying and holding but takes significantly longer than typical with walking outdoors and climbing stairs. The general practitioner comments that the appellant has emphysema, and is about to undergo extensive cancer treatment that will worsen his condition. Mental Impairment In the SR the appellant states that he has a lot of stress and worry, particularly about financial matters. In the RFR the appellant states that he feels extremely frustrated, depressed and avoids social situations and interacting with others because of a feeling of inadequacy. He reports that he does not feel equal and finds himself wondering why he cannot react normally. At the hearing, and in his written submissions, the appellant stated that he has daily anxiety and panic attacks, severe depression, suffers from periods of confusion and decreased self-esteem. His position is that his mental impairment has diminished his energy reserves leaving him constantly fatigued, sluggish and unable to get through his daily appointments. The appellant states that he finds his mind wanting to disassociate. In the PR, the general practitioner reports that the appellant does not have any significant deficits with cognitive and emotional function.
I APPEAL# In the AR, the general practitioner reports that the appellant's ability to communicate with speaking, reading, writing and hearing are good. For section 4, cognitive and emotional functioning, the appellant's physician reports that there is a major impact to the appellant's bodily functions but no impact to the remaining areas: consciousness, emotion, impulse control, insight and judgment, attention/concentration, executive, memory, motivation, motor activity, language, psychotic symptoms, other neuropsychological symptoms or other emotional or mental problems. DLA In the SR, the appellant states that he can no longer continue his usual occupation of flooring installation, that he has a lessening ability to take care of his basic needs on a daily basis. He cannot do laundry, cleaning, shopping or cooking by himself. Due to his extreme shortness of breath he cannot lift heavy weights or do strenuous labour. In the PR, the general practitioner reports that the appellant has continuous restrictions to his DLA of basic housework, daily shopping, mobility outside the home and use of transportation. His DLA of personal self care, meal preparation, management of medications, mobility inside the home, management of finances and social functioning are not restricted. In the AR, the general practitioner reports that the appellant is independent with the following DLA: dressing, grooming, bathing toileting, feeding self, regulating diet, transfers (in/out of bed), transfers (on/off of chair), making appropriate choices, paying for purchases, meal planning, safe storage of food, banking, budgeting, paying rent and bills, filling/refilling prescriptions, taking prescriptions as directed, safe handling and storage of medications, getting in and out of a vehicle, using transit schedules, and all aspects of social functioning. The general practitioner reports that the appellant takes significantly longer with the following DLA: laundry, basic housekeeping, going to and from stores, reading prices and labels, carrying purchases home, food preparation, cooking and using public transit. The general practitioner also reports that once the appellant starts chemotherapy and has surgery he will require assistance with toileting, transfers, bathing, etc. reports that the appellant has good functioning with his immediate and extended social networks. In the RFR the appellant states that his physical limitations have permanently impaired his ability to walk, climb stairs, personal care, cooking, cleaning and shopping. At the hearing, and in his written submissions the appellant reports that he is capable of eating, dressing, bathing, shaving and going to appointments, but he is unable to perform the following on his own: cooking, dishes, cleaning, laundry, shopping, driving, meal preparations, dealing with financial matters, answering telephone calls, participating in social situations, walking any distance, keeping track of commitments, picking up medications, dealing with stressful situations, performing any physical tasks that require physical stamina. Need for Help In the SR, the appellant states that he requires daily medications and cannot afford to purchase them. In the PR the general practitioner reports that the appellant requires help with any physical activity and that he cannot walk long distances to bus stops. In the AR, the general practitioner reports that the appellant requires help from his wife. He does not require any assistive devices or the assistance of an assistance animal. In the RFR the aooellant states that he requires siqnificant assistance with personal care, cookinQ, cleaninQ
a n d s h o p p i n g . A t t h e h e a r i n g , a n d i n h i s w r i t t e n s u b m i s s i o n s t h e a p p e l c l e a n i n g , d i s h e s , l a u n d r y , s h o p p i n g , d r i v i n g , m e a l p r e p a p a r t i c i p a t i n g i n s o c i a l s i t u a t i o n s , w a l k i n g a n y d i s t a n c e a w i t h s t r e s s f u l s i t u a t i o n s a n d p e r f o r m i n g a n y p h y s i c a l t a s w i t h o u t h i s w i f e ' s h e l p h e c o u l d n o t f u n c t i o n p r o p e r l y o r a p p o i n t m e n t s , h o u s e k e e p i n g , t r a v e l , p u r c h a s e s , c o o k i n g a d v a n c e o f c o m m i t m e n t s .A P P E A L i i I l a n t r e p o r t s t h a t h e r e q u i r e s h e l p i n g w i t h c o o k i n g , r a t i o n s , a n s w e r i n g p h o n e c a l l s , p i c k i n g u p m e d i c a t i o n s , t a l l , e n s u r i n g t h a t h e a t t e n d s a p p o i n t m e n t s , d e a l i n g k s t h a t r e q u i r e s t r e n g t h o r s t a m i n a . H e s t a t e s t h a t m a i n t a i n h i s h e a l t h , c l e a n l i n e s s , d i e t , f i n a n c i a l m a t t e r s , , c l e a n i n g , d e c i s i o n m a k i n g a n d p r e p a r a t i o n s i n
I A PPEAL // _ _ _ __ ___ __, P A RT F -Reasons for P an el De c ision The iss ue o n the a ppea l is w hether t h e mi ni stry's recon si dera t ion decision de n ying the app ell ant des ignation as a PWD was reasonably s uppor ted b y t h e evidence or was a reason abl e app lica t i on of the ap plicabl e le gisla t io n in t he ci rcu ms t ances o f the ap pella nt. In p a rticula r, w as the m i nistry reasonable in determining that the appe ll ant: • does no t ha ve a severe p hysical or m ental i m pair ment; • tha t the appe l lan t 's D L A 's are not, i n t h e opin ion of a p r escribed p r ofess ional , dire c tl y and si gnificantly re stricted either co nt inuo usly or periodical ly for extended p eriods; a nd that • as a res u l t of th ose restrictions, the appellant doe s not require the sign if ican t h elp or su p e rvi s i o n o f a nothe r p erson, an a ssi sti ve dev ic e , o r the s er vices of an assistance animal, to perform DLA ? The cr i teria f or being d es i gn ated as a p erso n w ith disab i l ities (PWD ) are se t out in Se cti on 2 o f the EAPWDA as follows: Persons w i th d i s a b i litie s 2 ( 1 ) I n this se ct io n : "as sis tive d ev ice" mea n s a d evi ce desig n ed to e n able a p e r so n t o perform a da i ly li vi n g a cti vity that , b eca use o f a se vere mental o r physical impairm en t, t he p erson is una ble t o perfo r m ; "daily living act i v i t y" has t he pres cribe d meani ng; " p re scri bed profession al" has th e pres c ribe d meaning. (2) The mi nist er m ay d e sig nate a perso n who has reached 1 8 year s of a ge as a person w ith d i s abiliti e s for the purposes of t h is A ct if th e mi ni ster is sa t isfie d that the person has a sev ere me ntal or p hys i cal impairm ent th a t (a) in th e opinion of a med ical practitione r is likely to continue f or at least 2 years, an d (b) in the opi nio n of a prescribed pro fess iona l (i) directly an d signifi c a ntly re stricts th e p e rson 's a bil ity to perfo r m daily li v ing activities ei ther ( A) contin uously , or (B) periodically f or extended periods, and (ii) as a result of those restrictions, the person requires help to perform those activities. ( 3) For t he pu rpos es of su bsection (2), (a) a person wh o has a sev ere mental impairment i n c l udes 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 und e r 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 ) p r e p a r e o w n m e a l s ; ( 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 S e v e r i t y o f m e n t a l i m p a i r m e n t : T h e a p p e l l a n t ' s p o s i t i o n i s t h a t h e m e e t s t h e c r i t e r i a o f s e p a n i c a t t a c k s , s e v e r e d e p r e s s i o n , s u f f e r s f r o m p e r i o d s o t h a t h i s m e n t a l i m p a i r m e n t h a s d i m i n i s h e d h i s e n e r g y r e u n a b l e t o g e t t h r o u g h h i s d a i l y a p p o i n t m e n t s . 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 r e i s n o t e n o u g h e v i d e n i m p a i r m e n t . P a n e l D e c i s i o n T h e p a n e l f i n d s t h a t t h e a p p e l l a n t ' s g e n e r a l p r a c t i t i o n e r r t h e a r e a s o f 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 s a n d n o i m 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 . T h e g e n e r a l p r a c t i t i s p e a k i n g a n d h e a r i n g a r e g o o d a n d t h a t h i s r e l a t i o n s h i p s g o o d . T h e p a n e l a c c e p t s t h e a p p e l l a n t ' s i n f o r m a t i o n a s t o h i s d t h e g e n e r a l p r a c t i t i o n e r h a s n o t d i a g n o s e d a m e n t a l d i s o r t o t h e a p p e l l a n t ' 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 s , t h e p t h a t t h e r e w a s n o t e n o u g h i n f o r m a t i o n t o e s t a b l i s h a s e v e E A P W D A , w a s r e a s o n a b l e . S e v e r e p h y s i c a l i m p a i r m e n t : T h e a p p e l l a n t ' s p o s i t i o n i s t h a t h e h a s d e b i l i t a t i n g C O P D c h e m o t h e r a p y t h a t h a s d r a s t i c a l l y w o r s e n e d h i s c o n d i t i o n a n d t h a t w i t h o u t h i s w i f e ' s s i g n i f i c a n t h e l p h e c o u l d n o t m 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 t h e i n f o r m a t i o n p r o v i d e d b s u f f i c i e n t t o e s t a b l i s h 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 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 n f o r m a t i o n p r o v i d e d b y e s t a b l i s h 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 i n i s t r y n o t e a p p e l l a n t t a k e s s i g n i f i c a n t l y l o n g e r w i t h m o b i l i t y o u t s i d e t h i n f o r m a t i o n o n h o w m u c h l o n g e r i t t a k e s . T h e m i n i s t r y n o a n n e l l a n t i s i n d e p e n d e n t w i t h w a l k i n q i n d o o r s , s t a n d i n o , l i 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 . v e r e m e n t a l i m p a i r m e n t a s h e h a s d a i l y a n x i e t y a n d f c o n f u s i o n a n d d e c r e a s e d s e l f e s t e e m . H i s p o s i t i o n i s s e r v e s l e a v i n g h i m c o n s t a n t l y f a t i g u e d , s l u g g i s h a n d 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 a s e v e r e m e n t a l e p o r t s t h a t t h e a p p e l l a n t h a s n o s i g n i f i c a n t d e f i c i t s i n p a c t s o n t h e a p p e l l a n t ' s d a i l y f u n c t i o n i n g d u e t o o n e r r e p o r t s t h a t t h e a p p e l l a n t ' s r e a d i n g , w r i t i n g , w i 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 s o c i a l n e t w o r k s i s e c l i n i n g m o o d a n d e m o t i o n a l c o n d i t i o n . H o w e v e r , a s d e r o r i d e n t i f i e d a n y m e n t a l i m p a i r m e n t o r a n y i m p a c t a n e l f i n d s t h a t t h e m i n i s t r y ' s d e c i s i o n , w h i c h f o u n d r e m e n t 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 t h e a n d i s u n d e r g o i n g c a n c e r t r e a t m e n t i n c l u d i n g . H e r e p o r t s t h a t h e i s f u n c t i o n i n g a t 3 0 % o f n o r m a l a i n t a i n e v e n t h e b a s i c f u n c t i o n s i n h i s d a y t o d a y l i f e . y h i s g e n e r a l p r a c t i t i o n e r i n t h e P W D a p p l i c a t i o n i s t h e a p p e l l a n t ' s g e n e r a l p r a c t i t i o n e r i s n o t s u f f i c i e n t t o s t h a t 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 s t h a t t h e e h o m e a n d s t a i r s b u t d o e s n o t p r o v i d e a n y t e s t h a t t h e g e n e r a l p r a c t i t i o n e r r e p o r t s t h a t t h e f t i n o a n d c a r r v i n q a n d h o l d i n q . T h e m i n i s t r y n o t e s
that alt ho u gh th e g e n e ral p ractitio ner i n dicates that t he appel tre at ment, t he a p pli cation is no t intended to assess e m pl for d esignat i on as a PWD. Panel Decisio n A lthough t h e ge ne ral pra ctitio n er repo rts tha t t h e ap pellant i s not an el i gible criter io n f or designation as a P W D. To assess t he severity of an impairment, on e must consid a ppe l l ant 's ab i lity to manage his DLA as e vide nc e d by func the d egree of in depen dence in perf ormin g DL A. T h e determ inati on of sev erity of im p a irme nt is at the d iscretion t h a t the s tat utory cri t eria for g ran t i ng PWD designa tio n are must act r easonab ly and consi d er all the r el evan t eviden legi sla tion is clear t h a t th e fun dament al b as is f or th e an alysis the profess iona l e v ide n ce h as to b e w eighed and asse ssed In the a p pell ant 's c a se, the p a ne l finds t h at a m edi cal p r ac diagn osed th e a p pella nt wit h COPD and Neopl as m s t o his di ab o u t to undergo cancer trea tment i n c l udi ng ch e mo t herap practiti o ner repor t s that the appe llant h a s s e v e r e shortness o app ellant has emph ysema a n d i s a bo u t to unde rgo cancer tre On t h e R FR the appellant st at es t ha t the gene ral p ractiti one a bilities . In parti cul ar, the general p r acti t i o ner reports th a appellant says he canno t walk more th a n 2 blocks. H ow appel l ant can walk 4+ blocks he pr o vide s f urther com men s to p s a nd r equi r es help wi th a ny phys ical act iv ity. The p general p ractitioner rep o rts that the appellant i s con tinuou shoppi n g, m obility o utsid e the hom e and use of transp or ta that the a ppe lla nt ta kes sign ificantly longe r with s hopp i ng, The panel's jurisdiction is to determine whether the ministry's reconsideration accordance with the legisl at ive requ irement s. The panel finds that the mini not have a severe physical impairment was not reasonable considering the continuou the general practitioner at the time of the applic ation, and help with any physical acti vity. In th e reconsideration decision, the ministry does not provide any information as to why the general practiti on er's additional comments were not taken into consideration along with the fu n c tion a l ski l l s assessme nt. Although the ministry notes that the general practitioner did not provide information about how much longer it takes the appellant with mobility outside the home and stairs the panel finds tha t the m inistry was not reas o nab le in not c onsidering pract itioner with resp ect to the appellant' s functi onal limi tations condition. In part icular the panel finds that th e mi nistry gave gre did not reasonably take into account the noted restrictions to DLA and the appellant's degree of independence in performing DLA. In addition, the ministry states that the appellant's physician reports that the appellant has" ... emp/oyment however you are about to undergo extensive cancer treatment which will worsen your conditiori'. However the appellant's physician reports that the appellant has emphysema not emp ministrv made a tvooaraohical error in the reconsideration decision or if the ministrv did not understand the APP EAL# I la n t is una ble to w o r k due to th e extensiv e cancer oyab i l ity a n d e m pl oyab i l ity is no t an el i gibl e cr iter ion i s unab le to w o rk the p anel no tes that e mployab ility er th e nature of th e impair m e nt and its impact o n t he t io nal skil l s l imitatio n s, th e re str ictions to DLA, and o f th e minist er the m inis t er must be "sat i sfie d" f ulfil led . In ma k ing its determinatio n th e ministry ce, inc lud in g th at of th e ap pe llant. Whi le t he is the evidence from prescrib ed p rofes s io n als , like any other e vi d ence. titio ne r , the appel lant 's gen eral pr a c t itio ner, has gestive or gan s a nd p eri toneum, and th a t he is y , rad iation and surg ery. O n the AR th e general f b reath and weakness. He al so r eports t hat th e atm e n t, wh ich will w orsen his con di tio n. r ma de a fe w m is tak es re g ardin g his phys ica l t the a p pe llant can wa lk 4 + b locks w hereas th e ev er , although the general pra ct ition er repor t s that the t that the app ellant cann ot w a lk long distances to b u s ane l al so notes that in terms of severity, on the PR the sly restric te d with respe ct to bas ic ho use wo rk, daily tio n, a n d o n the A R the general p racti tioner r epor t s f ood prep a rat ion and us e of transi t. decision was reasona ble in s try' s dec i sion that the appellant did s rest ric t ion s no te d by the additional comments tha t the appel la nt re quires all of th e informat io n provided by the general i n de termi n i ng the severity of the appellant's a t weight to the func tio n a l skills limitations but l oyment a nd i t is not clear if the
I APPEAL# physician's comments. It appears that the ministry preferred the information on the functional skills assessment without consideration of the comments of the appellant's worsening condition. Although the general practitioner did not provide any further information to clarify this issue or an update as to the appellant's current circumstances, the panel finds that the appellant's information in the RFR and at the hearing and in the written submissions regarding his declining condition is entirely consistent with the general practitioner's reports that the appellant's COPD would worsen with the cancer treatment. The panel's determination is based on the assessment of the appellant's current limitations and not what may happen in the future. The appellant reports that his COPD related restrictions have worsened since he began the cancer treatments and this is consistent with the general practitioner's information that the chemotherapy may affect the appellant's ability to perform DLA. The panel finds that when considering the information at the time of reconsideration of both the prescribed professional and the appellant, the panel finds that the ministry's determination that the appellant's physical impairment was not severe was not reasonable. The panel concludes that based on all of the evidence the ministry was not reasonable in finding that the appellant does not have a severe physical impairment under section 2(2) of the EAPWDA. Restrictions in the ability to perform DLA The appellant's position is that he is functioning at about 30% of his normal function and has significant restrictions to his DLA including unable to perform the following on his own: cooking, dishes, cleaning, laundry, shopping, driving, meal preparations, dealing with financial matters, answering telephone calls, participating in social situations, walking any distance, keeping track of commitments, picking up medications, dealing with stressful situations, performing any physical tasks that require physical stamina. The appellant's position is that the information provided by his general practitioner with respect to the restrictions to his DLA supports a designation of PWD. The ministry's position is that based on the information provided by the appellant's physician, there is not enough evidence to establish that the appellant has a severe impairment that directly and significantly restricts his DLA continuously or periodically for extended periods. In particular the ministry notes that although the physician indicates that the appellant requires continuous assistance with basic housework, daily shopping, and mobility outside the home and use of transportation with the explanation that the appellant needs help with physical activities and cannot walk long distances, he is not restricted in DLA of self care, meal preparation, management of medications, mobility inside the home, management of finances and social functioning. The ministry notes that the appellant's physician indicates that the appellant takes significantly longer with laundry, basic housekeeping, going to/from stores, reading prices and labels, carrying purchases home, food preparation, cooking and using public transit but that no further information is provided on how much longer it takes to perform these tasks. The ministry states that the rest of the appellant's DLA are considered independent and there was no indication that that they take the appellant significantly longer to perform them. The ministry is also unclear why the appellant takes significantly longer with reading prices and labels based on the diagnosis provided. The ministry also notes that in the PR the physician indicates that the appellant requires continuous assistance with basic housework, daily shopping and mobility outside the home and use of transportation but on the AR the physician indicates that the appellant takes significantly longer in these areas. The ministry's position is that it is difficult to develop a clear and cohesive picture of the degree of restrictions the appellant has with DLA. Panel Decision
si gnifica nt ly res t ric t s th e a ppellant's ability to p erform DLA eit perio ds . EAPWDR se ction 2 d ef i nes DLA t o m ean t h e f ollowing activi p ers onal finances, s h op for personal needs, u se pu b l ic or personal to maintain t he person's pl a ce of r es idence in a cceptable san perform personal h y g ie ne and self ca re, and manag e personal With re s p ect to pre pa ri ng h is own mea ls, on the PR the re stri cted but he c omm e nts t hat t he app ellant r eq ui re s hel reports t ha t t he a p pe llant take s significa nt ly longer wi th f With respe ct t o managing pe r s o n a l fi n a n ces, the app ellant's ind epe nden t with thi s DLA . With res pect to shopping for p er s onal needs, o n the P R contin uo u s and o n the AR he repo r ts that the a p pell a nt t re adi ng pri ces a n d labels and ca rryi ng purcha ses home. W ith r esp ect to u s e of pub lic or pe rsonal transpo r tation facil th at th e appe l lant h as a c on tinuous rest r iction and on th e take s significantly lon g e r than typ ical. With r espect to housework, on th e PR the app ellant's p h re striction and o n the AR h e is n oted to take s ignif ic an tly Wit h res pect to mov i n g ab out indo ors and ou t doors, the c ontinuo usly restricted a nd he comm ents th at th e appe ll ant re walk lon g dista n ces t o bus st op. On the AR, t he physician notes of a ve h icl e , walking i n doors, standing, li ftin g a nd c ar ryin walking o ut d oors a n d c l im b ing s t airs. In ad dit ion th e phy and is ab out to under go extensi ve cance r trea tme nt w h ic Wit h respect to p erformin g pe r s onal hygi ene a n d self care, the bu t the physician adds tha t h e r e q uires he lp w ith any phys the app ellan t is ind ep end en t i n a ll aspe ct s of pe r s onal c a surge ry he will require assistance with toileti n g, tr ans f ers With res pect t o managing p ersonal medicati o n, the PR and AR with this DLA. Based on the information in the PR and the AR, the evidence of the prescribed professional indicates that the appellant is restricted continuously and/or takes significantly longer with 5 of the 8 prescribed DLA, being: preparing own meals, shopping for personal needs, use of public or personal transportation facilities, housew ork, and moving ab ou t out do ors. Alth ough the g eneral prac is restric t ed with DLA o f perso nal care, he states that o nce con dition is going t o worsen. T h e p hysician als o reports that his treatment wi and he will require a lot of support d ur ing his t rea t ment. While the ministry states that it finds it difficult to develop a clear and cohesive picture of the degree of restrictions the appellant has with his DLA, the panel finds that the physician's report, when taken together and considered with the appellant's evidence demonstrate that his physical impairment directly and significantly restricts his DLA con t in u ously or periodically for extended perio re a son a ble in de t e rminina that the info rmation oro vided did not constitute a dire I APPEA L u h er co ntinuously or p er iod ic a lly for ex t ended ties : prep ar e own m ea ls, m anage tra nsportation facili t ies, perfo r m ho u sewo r k it a ry co nditio n, move a bout in doors and o u tdoo r s, m e dic ati on s. a p pel lant' s physi cia n r e por ts t ha t th e ap pe llant is n o t p with any ph ysica l act ivit y. On the AR the physic ian oo d preparation and cooking. p h y sic ian reports that he is not r e str icted and is t h e app ell ant's ph ysici an rep o rts t ha t th e r est ric t io n is a kes sig nifica ntl y long er wi t h go ing to a nd f rom store s, it ies, o n the PR t he app ellant's p hysician r eports AR h e repo rts t ha t the app ellan t is in de pe nd en t b ut y sician rep or ts that the appe ll ant h a s a co n tinuou s longer t h an ty pical in thi s ar ea. PR ind ic at es that his m obility outsi de the ho me is qu ire s help w i th an y phys ic al activ ity and can not t hat h e is in de pe nd en t wit h gett ing in and out g a n d holding but t a kes s i gnifi cantly l ong e r wit h sician c omm ents t hat th e app ell an t has emphysema h will wo rsen his condition. P R indicates tha t the a ppella nt is not restr icted i c a l activi ty. O n th e AR th e phys i cian reports th at re but t hat once h e s tart s che mothera p y and h as , bathing, etc. b ot h indi ca t e t hat th e app ell ant i s not restricted titio ner does n ot in dicate that the appellant th e appellant starts his cancer treatment his ll b e ex t ensi ve an d pro longed ds. The pane l finds that the ministry was not ct and sii:inificant restriction of
t h e a p p e l l a n t ' s a b i l i t y t o p e r f o r m h i s D L A t h e r e b y n o t s a t E A P W D A . H e l p w i t h D L A T h e a p p e l l a n t ' s p o s i t i o n i s t h a t h e r e q u i r e s s i g n i f i c a n t a s s h o p p i n g . 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 t h e i n f o r m a t i o n p h y s i c a l 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 t l y r e s t r i c t s h i s 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 h a t a s a r e s u l t o f t D L A . I n p a r t i c u l a r , 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 d u e t o t h e c o h o u s e w o r k , d a i l y s h o p p i n g , m o b i l i t y o u t s i d e t h e h o m e a n c l e a n i n g , d i s h e s , l a u n d r y , s h o p p i n g , d r i v i n g , m e a l p r e p a r m e d i c a t i o n s , p a r t i c i p a t i n g i n s o c i a l s i t u a t i o n s , w a l k i n g a n a p p o i n t m e n t s , d e a l i n g w i t h s t r e s s f u l s i t u a t i o n s a n d p e r f o s t a m i n a . H i s p o s i t i o n i s t h a t w i t h o u t h i s w i f e ' s h e l p h e c o c l e a n l i n e s s , d i e t , f i n a n c i a l m a t t e r s , a p p o i n t m e n t s , h o u s e k m a k i n g a n d p r e p a r a t i o n s i n a d v a n c e o f c o m m i t m e n t s . 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 a s i t h a s n o t b e e n e s t a b l i s h d e t e r m i n e d t h a t s i g n i f i c a n t h e l p i s r e q u i r e d f r o m o t h e r p e S e c t i o n 2 { 2 ) ( b ) ( i i ) o f t h e E A P W D A r e q u i r e s t h a t , i n t h e o p a n d s i g n i f i c a n t 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 , a H e l p i s d e f i n e d i n s u b s e c t i o n ( 3 ) o f t h e r e q u i r e m e n t f o r a o f a n o t h e r p e r s o n , 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 T h e p a n e l n o t e s t h a t i n t h e P R t h e p h y s i c i a n r e p o r t s t h a t T h e g e n e r a l p r a c t i t i o n e r a l s o s t a t e s t h a t t h e a p p e l l a n t ' s C a n d t h a t h e w i l l r e q u i r e a l o t o f s u p p o r t d u r i n g t h i s t r e a t m e p r e s c r i b e d p r o f e s s i o n a l e s t a b l i s h e s t h a t 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 l y r e s t r i c t s t h e a p p e l l a n t ' s a b i l i t y t o p e r f o r m D L A p a r t i c u l a r , t h e g e n e r a l p r a c t i t i o n e r ' s i n f o r m a t i o n i n d i c a t e s c a u s e s c o n t i n u o u s r e s t r i c t i o n s t o h i s D L A o f b a s i c h o u s e k u s e o f t r a n s p o r t a t i o n 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 T h e p a n e l a l s o f i n d s t h a t t h e i n f o r m a t i o n f r o m t h e a p p e l l a w i t h t h e p h y s i c i a n ' s p r o g n o s i s o f w h a t w a s t o b e e x p e c t e d c o m m e n c e m e n t o f h i s c a n c e r t r e a t m e n t . B a s e d o n t h e e v i d e n c e , t h e p a n e l f i n d s t h a t t h e m i n i s t r y w d o e s n o t r e q u i r e h e l p t o p e r f o r m D L A a s a r e s u l t o f h i s r e C o n c l u s i o n H a v i n g r e v i e w e d a n d c o n s i d e r e d a l l o f t h e e v i d e n c e a n d r r 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 d e t e r m i n e d t h a t t h e a p p e l l r e a s o n a b l y s u p p o r t e d b y t h e e v i d e n c e a n d w a s n o t a r e a s c i r c u m s t a n c e s o f t h e a n n e l l a n t . T h e r e f o r e , t h e p a n e l r e s c I A P P E A L # i s f y i n g t h e l e g i s l a t i v e c r i t e r i a o f s e c t i o n 2 ( 2 ) ( b ) ( i ) o f t h e s i s t a n c e w i t h p e r s o n a l c a r e , c o o k i n g , c l e a n i n g a n d f 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 c o n f i r m s t h a t h i s s e v e r e a b i l i t y t o p e r f o r m D L A e i t h e r c o n t i n u o u s l y o r h o s e r e s t r i c t i o n s h e r e q u i r e s h e l p t o p e r f o r m t h o s e n t i n u o u s r e s t r i c t i o n s t o h i s a b i l i t y t o p e r f o r m b a s i c d u s e o f t r a n s p o r t a t i o n , h e r e q u i r e s h e l p w i t h c o o k i n g , a t i o n s , a n s w e r i n g p h o n e c a l l s , p i c k i n g u p y d i s t a n c e a t a l l , e n s u r i n g t h a t h e a t t e n d s r m i n g a n y p h y s i c a l t a s k s t h a t r e q u i r e s t r e n g t h o r u l d n o t f u n c t i o n p r o p e r l y o r m a i n t a i n h i s h e a l t h , e e p i n g , t r a v e l , p u r c h a s e s , c o o k i n g , c l e a n i n g , d e c i s i o n e d t h a t D L A ' s a r e s i g n i f i c a n t l y r e s t r i c t e d , i t c a n n o t b e r s o n s , a n d n o a s s i s t i v e d e v i c e s a r e r e q u i r e d . 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 , a s a r e s u l t o f d i r e c t p e r s o n r e q u i r e 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 . n a s s i s t i v e d e v i c e , 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 l i n o r d e r t o p e r f o r m a D L A . t h e a p p e l l a n t r e q u i r e s h e l p w i t h a n y p h y s i c a l a c t i v i t y . O P D w i l l w o r s e n a s h e s t a r t s h i s c a n c e r t r e a t m e n t , n t . T h e p a n e l f i n d s t h a t t h e e v i d e n c e o f t h e 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 a t d i r e c t l y a n d 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 p e r i o d s . I n t h a t t h e a p p e l l a n t ' s s e v e r e p h y s i c a l i m p a i r m e n t e e p i n g , s h o p p i n g , m o b i l i t y o u t s i d e t h e h o u s e a n d o n s h e r e q u i r e 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 . n t r e g a r d i n g t h e d e c l i n e i n h i s c o n d i t i o n i s c o n s i s t e n t a n d t h e i n c r e a s e d l e v e l o f h e l p r e q u i r e d w i t h t h e a s n o t r e a s o n a b l e i n d e t e r m i n i n g t h a t t h e a p p e l l a n t s t r i c t i o n s a s r e q u i r e d b y E A P W D A s e c t i o n 2 { 2 ) ( b ) ( i i ) . e l e v a n t l e g i s l a t i o n , t h e p a n e l f i n d s t h a t t h e m i n i s t r y ' s a n t w a s n o t e l i g i b l e f o r P W D d e s i g n a t i o n w a s n o t o n a b l e a p p l i c a t i o n o f t h e a p p l i c a b l e l e g i s l a t i o n i n t h e i n d s t h e m i n i s t r v ' s r e c o n s i d e r a t i o n d e c i s i o n .
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.