PART C -D e cis ion under Appeal Th e decision under appeal is the Ministry of Social Developme reconsideration dec i sion of July 21, 20 1 4, wh i ch f o un d that t requir e m en ts of section 2 of the E mployment and Assist designation as a p e rson with d isabili ties (" PW D"). T he ministry found t r equireme n t and that i n the opinion of m edical pr a cti t i oner t least two years. H owever, the m inistry was n o t satisfied th • the evid en ce es tab lishes tha t the a ppellant has a se • the appella nt's daily living act i vities ("DLA") are, in th significantly re s t ricted either continuously or periodicall • as a res ult of those res trictions, the appe llant re quires per s on , an ass istive devi ce, or the services of an PART D Relevant Le gislati on Emp l oym ent and A ss istance for Person s wi th Disabilit ies-Emp l oym ent and Assi stance for Person s wi th Dis a bilit ie EMT 003(10/06/01) nt and Social Innova tion (the "ministry" ) he appellant did not me et th r e e of five statutory an ce for Persons With Disabili t ies Act ("EAPWDA ") f or hat th e appel lant met the age he app e llant's impairment i s likely t o co nti nue for at at: vere physical or ment al im pa i rment; e opinion o f a prescribed professional, d ire ctly a nd y for extende d periods; and that the significa nt help or supervision of another assi stanc e an i mal. Ac t ( "EAP WD A"), sectio n 2 s Regul at ion ("E APWD R"), sectio n 2
PART E -Summar of Facts The information before the ministry at the time of reconsideration included the following: 1. The appellant's application for designation as a PWD dated October 13, 2013 which included a self-report (SR). 2. A physician's report (PR) dated December 27, 2013. 3. An assessor's report (AR) completed by the same physician dated December 27, 2013. 4. A prescription note from · ian indicating that he is unable to independently care for his twin daughters hronic medical condition. 5. A medical report from a R oporosis specialist dated May 28, 2013. 6. The appellant's Request for Reconsideration dated June 27, 2014. In the Notice of Appeal dated August 8, 2014, the appellant wrote that he has spoken to his physician who agrees that his disability is severe and will continue to get worse, the longer it is left. Diagnosis In the PR, the physician -who has seen the appellant 2 -1O times in the last 12 months and has been his physician for 4 years -diagnosed the appellant with Ankylosing Spondylitis, Mechanical Neck and Back pain and Severe Dental Caries. Under Health History, the physician indicated that the appellant had been involved in a motor vehicle accident (MVA), 2009 -rear-ended, and has had persistent pain since the accident. Despite physical therapy and work conditioning program, the physician reported features of mechanical neck and low back pain. Other developed features reported by the physician are; inflammatory arthritis, sacroiliac joints and lumbar/spine -sacroiliitis and ankylosing spondylitis. The cumulative effect of the 2 conditions has resulted in a severe impairment. In response to the question; Has the applicant been prescribed any medication and/or treatments that interfere with his ability to perform DLA? The physician indicated no. In response to the question; Does the applicant require any prostheses or aids for his impairment? The physician indicated no. In the AR, the physician noted that lower back stiffness, restricted movements and painful movements impact the appellant's ability to manage Daily Living Activities. In the medical report, the Rheumatology & Osteoporosis specialist reported that the appellant's back is worse, he is stiff for a few hours in the morning, has not had gel phenomenon, has occasional pyrosis, and has not had bleeding or symptoms of IBD. Further stated was that the appellant had a full range of motion of his joints, did not have synovitis and has tried multiple anti-inflammatories with insufficient symptomatic relief. The next step would be biological therapy, however as the appellant has multiple dental caries; to add a biologic agent until his teeth are fixed, he would be at risk of significant dental infection. Physical Impairment • In terms of Functional Skills, the physician reported that the appellant can walk 4+ blocks unaided on a flat surface, can climb 5+ steps unaided, lifting is unknown, and has no limitation to remain seated. No difficulties with communication were noted. • In the AR, under Mobility and Physical Ability, the physician noted that the appellant requires periodic assistance from another erson with res ect to walkin indoors, walkin outdoors, climbin stairs and EAAT 003(10l06/01)
standing and that he needs continuous assistance from another person or is unable with lifting carrying and holding. Explanations noted are that the appellant has a slower gait in the mornings due to stiffness and that he will support himself with whatever he can hold on to rails, chairs and walls during sustained standing. His symptoms are worse in the morning -stiffness/pain requires someone else to help with any lifting, carrying and holding. • In the SR, the appellant stated that he has continuous back pain between the hips which causes some neck pain and headaches and also causes his legs to go numb followed by a pins and needles feeling. It is hard for him to bend over and sometimes he can't bend at all. The appellant indicated that he is unable to walk for long periods of time and if he does, it takes longer than it used to. The pills that the appellant takes make him feel sick all the time and give him dizzy spells to the point that he breaks out in sweats and almost passes out. Carrying things also causes the appellant pain. Mental Impairment • In the PR, the physician indicated that the appellant has no significant deficits with cognitive and emotional function. • The two sections in the AR that are to be completed only for applicants with an identified mental impairment or brain injury were not completed. • The appellant's ability to communicate was indicated as good with speaking and hearing, satisfactory with reading and poor with writing, noting that he has achieved a grade 9 education. Daily Living Activities In the AR, the physician indicated that the appellant: Under Personal Care requires continuous assistance from another person or is unable to manage ( wife helps put on pants, socks and shoes, tends to foot care and cutting nails); dressing, grooming, bathing, toileting (grab bars required), while feeding self and regulate diet, he is independent and requires periodic assistance for transfers in/out of bed and transfers on/off chair. Under Basic Housekeeping, -requires continuous assistance in both aspects; laundry and basic housekeeping. Under Shopping -independently manages reading prices and labels, making appropriate choices and paying for purchases; he requires periodic assistance for going to and from stores (walking difficulties) and requires continuous assistance for carrying purchases home (wife often helps). Under Meals independently manages meal planning and safe storage of food whereas he requires continuous assistance with food preparation and cooking, taking significantly longer than typical when he has to do it. Under Pay Rent and Bills -independently manages all 3 aspects of DLA; banking, budgeting and paying rent and bills. Under Medications -independently manages all 3 aspects of DLA; filling/refilling prescriptions, taking as directed and safe handling. Under transportation -independently manages using transit schedules and arranging transportation (will get rides from friends and family as needed) and requires continuous assistance getting in and out of a vehicle. He does not use public transit. In the SR, the appellant states that sometimes his wife has to help him get out of bed, get dressed and put his socks on as it is hard for him to bend over. When going to the bathroom, his legs will go numb so he can't get up at all and often has to use the sink or door handle to push himself up. He is unable to do laundry, house cleaning -vacuuming sweeping -cleaning bathroom and when attempts to do dishes needs to sit every couple of minutes and when he gets back up it causes too much pain to do them. He is unable to carry groceries home or even from the car to the house. The appellant stated that he doesn't drive when he is having a bad day because of fear that he will pass out and cause an accident. Help Required with DLA • In the AR, it is noted that the appellant requires help with activities that require bending and lifting and due to stiffness, he takes approximately 3X longer than average. Also, specified under toileting aids are "arab bars" that the annellant could routinelv use to helP compensate for his impairment. The aPPellant EAAT 003( 10/06/01)
is noted not to have an Assistance Animal. • In the SR, the app ellan t stated that he relies on family and Oral T estimony At the hearing, the app ellant testified that he is doing follo treatment. He further stated that he has been asking for help f In re sponse to a qu esti o n, the ap pellant indicated that he has under rehabilitation and until he get s h is teeth fixed, which he can't aff trea tments such as bio-injections. Wh e n asked by the p completed before he app l ied for PWD designation. In regards to the bio-t hi s is a new treatment which costs abo ut $20,000 . He stated that and li f ting anything heavy, getting up, if he ca n sit do wn is pr escribed naproxen and takes T ylenol arthri tis and buys other ove t hat his w i fe c an't return to work becau se he c an 't b e l ef asked to describe his da y and ho w often he req u ires help to requires help for on e a ctivity or th e othe r 5 0 percent o f the tim The appellant stated th a t h e w alk s d a i ly about 1/2 block T he minis try r epresent a t ive tes tifi e d that t he appellant was co 1 0 t r eatment s of physiot herapy a yea r a n d m or e if his p represent ative s tated t ha t t h e app ellant can recei v e d en deter mi n ed t hat he ne eded to have tee th p u l led a nd that T he m inistry relied on i ts r e consi de rati on decis ion a nd submitt A d m is sibilit y of N ew I nf o rmation T he pa nel has a dmitted the a ppe lla n t' s t e sti m ony w hic h a d dressed i n t he or iginal PWD ap plic at io n and are in sup mini stry a t th e t im e o f reconsi d e r a t i on, in accor d an ce w it Ac t . EM T003(10/06101) friends, a lo t . w-ups and is pursuing this appeal in order to get or 8 mon t hs a n d i s progressivel y ge tting worse. gone phys i o t he rapy and had back to wor k ord, h e c annot be consid e red for other a n e l, the appellant stated that thes e tr eatments were inject i ons, the appellant stated that his limitations consisted of bending, twisting a n d getting in and o ut o f a vehicle. F o r medicat i o n h e r the counter medication. He indicates t alone wi t h h is 9 m onth o l d twi n d aughters. When get ou t of be d, the a p pe llant re sp on d e d t ha t h e e. E v ery 2nd d ay, h e r eq uire s help with DLA . eac h wa y. v e red by insurance and wo uld be entit led to up t o hysici an req u est s, at no c ha r ge . In a dditio n t he ministr y tal tr ea t m ent for pain which he would have a s it was d entu r e s wo uld also b e covered . e d no new inf o r m ation. p r ovi d es addit ional det ails with respe ct t o i ss ues po rt of informati on a n d r e cords t ha t were before the h sect i on 22(4) of the E mplo y m ent a nd Assistance
P A R T F R e a s o n s f o r P a n e l D e c i s i o n T h e i s s u e u n d e r a p p e a l i s w h e t h e r t h e m i n i s t r y ' s d e c i s i o n t o d e n y t h e a p p e l l a n t d e s i g n a t i o n a s a P W D w a s r e a s o n a b l y s u p p o r t e d b y t h e e v i d e n c e o r w a s a r e a s o n a b l e a p p l i c a t i o n o f t h e a p p l i c a b l e e n a c t m e n t i n t h e c i r c u m s t a n c e s o f t h e a p p e l l a n t . I n p a r t i c u l a r , w a s t h e m i n i s t r y 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 d o e s n o t h a v e a s e v e r e p h y s i c a l o r m e n t a l i m p a i r m e n t , a n d 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 r o f e s s i o n a l t h e a p p e l l a n t ' s i m p a i r m e n t s d o n o 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 h i m f r o m p e r f o r m i n g D L A e i 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 p e r i o d s , a n d t h a t a s a r e s u l t o f t h o s e r e s t r i c t i o n s t h e a p p e l l a n t 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 ? T h e r e l e v a n t l e g i s l a t i o n i s a s f o l l o w s : E A P W D A : 2 ( 1 ) I n t h i s s e c t i o n : " a s s i s t i v e d e v i c e " m e a n s a d e v i c e d e s i g n e d t o e n a b l e a p e r s o n t o p e r f o r m a d a i l y l i v i n g a c t i v i t y t h a t , b e c a u s e o f a s e v e r e m e n t a l o r p h y s i c a l i m p a i r m e n t , t h e p e r s o n i s u n a b l e t o p e r f o r m ; " d a i l y l i v i n g a c t i v i t y " h a s t h e p r e s c r i b e d m e a n i n g ; " p r e s c r i b e d p r o f e s s i o n a l " h a s t h e p r e s c r i b e d m e a n i n g . ( 2 ) T h e m i n i s t e r m a y d e s i g n a t e a p e r s o n w h o h a s r e a c h e d 1 8 y e a r s o f a g e a s a p e r s o n w i t h d i s a b i l i t i e s f o r t h e p u r p o s e s o f t h i s A c t i f t h e m i n i s t e r i s s a t i s f i e d t h a t t h e p e r s o n h a s a s e v e r e m e n t a l o r p h y s i c a l i m p a i r m e n t t h a t ( a ) i n t h e o p i n i o n o f a m e d i c a l p r a c t i t i o n e r i s l i k e l y t o c o n t i n u e f o r a t l e a s t 2 y e a r s , a n d ( b ) i n t h e o p i n i o n o f a p r e s c r i b e d p r o f e s s i o n a l ( i ) d i r e c t l y a n d s i g n i f i c a n t l y r e s t r i c t s t h e p e r s o n ' s a b i l i t y t o p e r f o r m d a i l y l i v i n g a c t i v i t i e s e i t h e r ( A ) c o n t i n u o u s l y , o r ( B ) p e r i o d i c a l l y f o r e x t e n d e d p e r i o d s , a n d ( i i ) a s a r e s u l t o f t h o s e r e s t r i c t i o n s , t h e p e r s o n r e q u i r e 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 . ( 3 ) F o r t h e p u r p o s e s o f s u b s e c t i o n ( 2 ) , ( a ) a p e r s o n w h o h a s a s e v e r e m e n t a l i m p a i r m e n t i n c l u d e s a p e r s o n w i t h a m e n t a l d i s o r d e r , a n d ( b ) a p e r s o n r e q u i r e s h e l p i n r e l a t i o n t o a d a i l y l i v i n g a c t i v i t y i f , i n o r d e r t o p e rf o r m i t , t h e p e r s o n r e q u i r e s ( i ) a n a s s i s t i v e d e v i c e , ( i i ) t h e s i g n i f i c a n t h e l p o r s u p e r v i s i o n o f a n o t h e r p e r s o n , o r ( i i i ) t h e s e r v i c e s o f a n a s s i s t a n c e a n i m a l . E A P W D R s e c t i o n 2 ( 1 ) : 2 ( 1 ) F o r t h e p u r p o s e s o f t h e A c t a n d t h i s r e g u l a t i o n , " d a i l y l i v i n g a c t i v i t i e s " , ( a ) i n r e l a t i o n t o a p e r s o n w h o h a s a s e v e r e p h y s i c a l i m p a i r m e n t o r a s e v e r e m e n t a l i m p a i r m e n t , m e a n s t h e f o l l o w i n g a c t i v i t i e s : ( i ) p r e p a r e o w n m e a l s ; ( 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 rf 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 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 ; ( 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 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 ) 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 n a n c e s ; ( 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 c t i v e l y . ( 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 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 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 o a t i o n a l t h e r a o i s t , E M T 0 0 3 ( 1 0 / 0 6 / 0 1 )
(e) physical therapist, (f) social worker, (g) chiropractor, or (h) nurse practitioner. Severe Physical Impairment The appellant's position is that he does have a severe physical impairment due to his Ankylosing Spondylitis, Mechanical Neck and Back Pain and Dental Caries. He suffers from continuous low back pain between the hips which causes some neck pain and headaches and also causes his legs to go numb followed by a pins and needle feeling. The appellant stated that his limitations consisted of bending, twisting and lifting anything heavy, getting up, if he can sit down and getting in and out of a vehicle. The appellant manages daily walks about 1/2 block each way. The ministry's position, as set out in its reconsideration decision, is that the appellant's functional skills as reported by the physician are that the appellant can walk 4+ blocks unaided on a flat surface, can climb 5+ steps unaided, lifting is unknown and there is no limitation to how long he can remain seated. The appellant is noted to be independently able to do most aspects of mobility and physical abilities with continuous help to lift/carry/hold. Walking indoors and out as well as climbing stairs and standing are reported to require periodic assistance and walking and climbing stairs take significantly longer, especially in the morning due to stiffness. Standing is noted to require an assistive device -which is noted to be whatever the appellant can hold on to such as rails, chairs and walls during sustained standing. Pain is reported to cause the appellant to require help from someone with any lifting, carrying and holding. The ministry noted that the appellant's physician reports that there are no therapies available to the appellant which is not supported by the appellant's specialist. Although the appellant indicated that he is on medication, no medication or treatment information was provided by his physician while the specialist reported that the appellant had been prescribed Naproxen 650 mg. Remedial measures in the form of analgesics would be expected to ameliorate the appellant's back and neck pain and allow for more physical functionality. The above noted assistive devices are not defined by legislation as a device designed to enable a person to perform a daily living activity that because of a severe impairment, the person is unable to perform. The ministry found that there is only one consult report provided with the original application which stated that the appellant had been referred for ongoing care of sacroiliitis, and that his back is worse. The appellant is reported to be stiff for a few hours in the morning and was advised to quit smoking. The appellant appeared well on his exam with a full range of motion of his joints, and he did not have synovitis. The appellant reported that trials of multiple anti-inflammatories had insufficient symptomatic relief, and the next step was to be biological therapy. Due to the appellant's multiple dental caries, he would be at a significant risk of dental infection and a health risk; therefore, it was recommended that he proceed with dental treatment first. The appellant was to book a follow-up appointment with the specialist once he sorted what he could or could not do with his teeth. As no follow-up consults were provided since May, 2013, the ministry could not determine if this treatment/approach was tried and whether it was effective in allowing better functionality. In terms of functional skills in the evidence provided in the original application and consult the ministry determined the appellant is in the mid-range of functionality. The appellant's consult confirms his impairment, but also confirms there are options available to treat his conditions. The ministry determined that while the appellant experiences limitations to his physical functioning, particularly in the areas of lifting, carrying and holding and standing; the assessments provided in the original PWD application and confirmed in the document submitted at reconsideration speak to a moderate degree of physical impairment. EAAT 003( 10/06101)
Panel Decision The diagnosis of a medical condition is not itself determinative of a severe impairment. Accordingly, to assess the severity of an impairment one must consider the nature of the impairment and its impact on the appellant's ability to manage his DLA as evidenced by functional skill limitations, the restrictions to DLA, and the degree of independence in performing DLA. The determination of severity of impairment is at the discretion of the minister -the ministry must be "satisfied" that the statutory criteria for granting PWD designation are fulfilled. In making its determination the ministry must act reasonably and consider all the relevant evidence, including that of the appellant. While the legislation is clear that the fundamental basis for the analysis is the evidence from prescribed professionals, the professional evidence has to be weighed and assessed like any other evidence. In the appellant's case, the PR reported his diagnoses as Ankylosing Spondylitis, Mechanical Neck and Back pain and Dental Caries. Under Functional Skills, it is indicated that the appellant can walk 4+ blocks unaided on a flat surface, can climb 5+ steps unaided, limitations for lifting -unknown, and no comment is made about any limitation to remain seated. In the AR, under Mobility and Physical Ability, the physician noted that the appellant requires periodic assistance from another person with respect to walking indoors, walking outdoors, climbing stairs and standing and that he needs continuous assistance from another person or unable with lifting carrying and holding. Explanations noted are that the appellant's symptoms are worse in the morning. The panel finds that the limitations to physical functioning reported in the AR are not consistent with the functional skills reported by the same general practitioner in the PR or with the consult's report which noted that the appellant has a full range of motion with his joints. The information provided by the physician respecting physical Functional Skills is not reflective of a severe impairment of daily functioning. While the appellant's diagnoses of Ankylosing Spondylitis and Mechanical Neck and Back Pain may limit his ability to function; the evidence does not establish that the symptoms restrict the appellant's ability to function independently, effectively, appropriately or for a reasonable duration. Based on the evidence, the panel finds that the ministry reasonably determined that the information provided did not establish a severe physical impairment. Severe Mental Impairment The appellant does not present an argument for a mental impairment. The ministry's position is that based on the information provided, they cannot determine that the appellant has a severe mental impairment. The appellant's physician reported that there are no significant deficits or major impacts with cognitive and emotional functioning. Therefore, the ministry finds that the information provided does not establish a severe mental Impairment. Panel Decision In the appellant's case, the PR does not diagnose any mental impairment or brain injury and the physician has not reported that the appellant has been prescribed any medication and/or treatments that interfere with his ability to perform DLA. The appellant has not been noted to have significant deficits with cognitive and emotional functions and the AR does not indicate any impacts under Cognitive and Emotional Functioning. Section 2(1 )(b) of the EAPWDR prescribes two DLA that are specific to mental impairment -make decisions about personal activities, care or finances (decision making), and relate to, communicate or interact with others effectivelv (social functionina). EMT 003(10/06/01)
T h e p h y s i c i a n m a d e n o r e m a r k s u n d e r S o c i a l F u n c t i o n i i n d i c a t e d a s g o o d w i t h s p e a k i n g a n d h e a r i n g , s a t i s f a c t o a c h i e v e d a g r a d e 9 e d u c a t i o n . T h e e v i d e n c e i n d i c a t e s t h a t t h e a p p e l l a n t i s n o t s i g n i f i c a h e i n d e p e n d e n t l y m a n a g e s t h e d e c i s i o n m a k i n g a s p e c t s h o p p i n g ( m a k i n g a p p r o p r i a t e c h o i c e s ) , a n d m e a l p r e p a p e r s o n a l m e d i c a t i o n , t h e a p p e l l a n t i n d e p e n d e n t l y m a n a d i r e c t e d a n d s a f e h a n d l i n g a n d s t o r a g e o f m e d i c a t i o n s ) I n v i e w o f t h e a b o v e , t h e p a n e l c o n c l u d e s t h a t t h e e v i d e i m p a i r m e n t a n d t h e r e f o r 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 i m p a i r m e n t w a s n o t e s t a b l i s h e d . S i g n i f i c a n t R e s t r i c t i o n s t o D L A T h e a p p e l l a n t ' s p o s i t i o n i s t h a t h e i s r e s t r i c t e d w i t h d a i l y o n l y g e t t i n g w o r s e a n d t h a t s o m e t i m e s h i s w i f e h a s t o h s o c k s a n d w h e n g o i n g t o t h e b a t h r o o m , h i s l e g s w i l l g o l a u n d r y , h o u s e c l e a n i n g v a c u u m i n g s w e e p i n g c l e a n t o s i t e v e r y c o u p l e o f m i n u t e s a n d w h e n h e g e t s b a c k u p c a r r y g r o c e r i e s h o m e o r e v e n f r o m t h e c a r t o t h e h o u s e . h a v i n g a b a d d a y . T h e a p p e l l a n t t e s t i f i e d t h a t h e r e q u i r e t i m e . E v e r y 2 n d d a y , h e r e q u i r e s h e l p w i t h D L A . 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 b a s e d o n t h e i n f o r m a t i o n p d o e s h a v e c e r t a i n l i m i t a t i o n s r e s u l t i n g f r o m h i s m e d i c a l a n d s o m e a c t i v i t i e s r e l a t e d t o p e r s o n a l c a r e t h a t r e q u i r e r e q u i r e p e r i o d i c a s s i s t a n c e f o r t r a n s f e r s i n / o u t o f b e d a n l o w e r b a c k s t i f f n e s s i s s e v e r e ; h o w e v e r , i t i s n o t s t a t e d h b a s i c h o u s e k e e p i n g a r e t o b e c o n t i n u o u s l y a s s i s t e d a n d b e n d / r e a c h t o w a s h c l o t h i n g , v a c u u m , e t c . , a n d i t i s u n k m i n i s t e r i s u n c l e a r w h y c l o t h i n g c a n n o t b e s o r t e d o r f o l d w o u l d b e o p e r a t e d f r o m a s t a n d i n g p o s i t i o n f o r a s h o r t p o f d o i n g d i s h e s w i t h s o m e m o d i f i c a t i o n s . T h e m i n i s t e r i s m a y b e m o r e r e f l e c t i v e o f a h o u s e h o l d d i s t r i b u t i o n o f d u o f p h y s i c a l f u n c t i o n i n g r e p o r t e d b y t h e a p p e l l a n t ' s p h y s i c e x p l o r e d o t h e r o p t i o n s t o c o m p l e t e t h e s e t a s k s s u c h a s p o r t i o n s s o t h e y d o n o t b e c o m e o v e r w h e l m i n g , o r d e v e l o s p e c i a l i s t h a s s t a t e d t h a t t h e a p p e l l a n t h a s a f u l l r a n g e o d u e t o m o r n i n g s t i f f n e s s . I t i s r e a s o n a b l e t o a s s u m e t h a t d a y w h e n t h e a p p e l l a n t i s m o r e c o m f o r t a b l e . G o i n g t o a n a s s i s t a n c e a n d t a k e s i g n i f i c a n t l y l o n g e r d u e t o w a l k i n g d h a s a c c e s s t o a v e h i c l e a n d h i s p h y s i c i a n r e p o r t s t h a t h e f r e q u e n c y o r t y p e o f a s s i s t a n c e i s n o t d e s c r i b e d a n d a s t h a n a v e r a g e w h i c h i s n o t c o n s i d e r e d b y t h e m i n i s t e r a s r e p o r t e d f o r c a r r y i n g p u r c h a s e s h o m e a n d t h a t t h e a p p e d e l i v e r y a n d c a r r y i n g o f g r o c e r i e s . F o o d p r e p a r a t i o n a n d p h y s i c i a n h a s s t a t e d t h a t i t i s t h e a p p e l l a n t ' s w i f e w h o d o T h e m i n i s t e r i s n o t s a t i s f i e d t h a t s o m e o f t h e s e t a s k s c o u a s s u m e d t h a t t h e s e c o o k i n n t a s k s a r e a l s o r e f l e c t i v e o f h E AA T 0 0 3 ( 1 0 / 0 6 / 0 1 )n g a n d t h e a p p e l l a n t ' s a b i l i t y t o c o m m u n i c a t e w a s r y w i t h r e a d i n g a n d p o o r w i t h w r i t i n g , n o t i n g t h a t h e h a s n t l y r e s t r i c t e d w i t h r e s p e c t t o d e c i s i o n m a k i n g i n t h a t s o f p e r s o n a l f i n a n c e s ( b a n k i n g a n d b u d g e t i n g ) , d a i l y r a t i o n ( m e a l p l a n n i n g ) . I n r e g a r d s t o m a n a g i n g g e s a l l 3 a s p e c t s ( f i l l i n g / r e f i l l i n g p r e s c r i p t i o n s , t a k i n g a s . n c e d o e s n o t 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 m e n t a l t r y h a s r e a s o n a b l y d e t e r m i n e d t h a t a s e v e r e m e n t a l l i v i n g a c t i v i t i e s d u e t o h i s p h y s i c a l i m p a i r m e n t w h i c h i s e l p h i m g e t o u t o f b e d , g e t d r e s s e d a n d p u t o n h i s n u m b s o h e c a n ' t g e t u p a t a l l . H e i s u n a b l e t o d o i n g b a t h r o o m a n d w h e n a t t e m p t s t o d o d i s h e s n e e d s i t c a u s e s t o o m u c h p a i n t o d o t h e m . H e i s u n a b l e t o T h e a p p e l l a n t s t a t e d t h a t h e d o e s n ' t d r i v e w h e n h e i s s h e l p f o r o n e a c t i v i t y o r t h e o t h e r 5 0 p e r c e n t o f t h e r o v i d e d b y t h e a p p e l l a n t ' s p h y s i c i a n , t h e a p p e l l a n t c o n d i t i o n s , p a r t i c u l a r l y w i t h s h o p p i n g , h o u s e k e e p i n g b e n d i n g e a r l y i n h i s d a y . T h e a p p e l l a n t i s r e p o r t e d t o d o n / o f f c h a i r s a s w e l l a s a s s i s t a n c e t o s t a n d u p w h e n o w o f t e n t h i s o c c u r s . A s i t i s r e p o r t e d t h a t l a u n d r y a n d t h a t t h e a p p e l l a n t d o e s n o t d o t h i s , a s h e i s u n a b l e t o n o w n r e g a r d i n g t h e a p p e l l a n t ' s l i f t i n g c a p a b i l i t i e s , t h e e d f r o m a s e a t e d p o s i t i o n f o r l a u n d r y , a s t h e m a c h i n e s e r i o d a n d t h e a p p e l l a n t h a s s t a t e d t h a t h e i s c a p a b l e n o t s a t i s f i e d t h a t t h e s e t a s k s c a n n o t b e s h a r e d , a n d t i e s , r a t h e r t h a n a n i n a b i l i t y t o c o m p l e t e , g i v e n t h e l e v e l i a n . T h e r e i s n o d i s c u s s i o n o f h o w t h e a p p e l l a n t h a s d i v i d i n g h o u s e h o l d c h o r e s i n t o m o r e m a n a g e a b l e p i n g c h r o n i c p a i n m a n a g e m e n t s t r a t e g i e s . T h e f m o t i o n o f h i s j o i n t s a n d t h a t h i s d i f f i c u l t i e s a r e m o s t l y m a n y a c t i v i t i e s c o u l d b e b e t t e r m a n a g e d l a t e r i n t h e d f r o m s t o r e s i s r e p o r t e d t o r e q u i r e p e r i o d i c i f f i c u l t i e s , h o w e v e r t h e a p p e l l a n t h a s n o t e d t h a t h e c a n w a l k 4 + b l o c k s u n a i d e d . F u r t h e r m o r e , t h e n o t e d , t h i s w o u l d t a k e t h e a p p e l l a n t 3 t i m e s l o n g e r a s i g n i f i c a n t r e s t r i c t i o n . C o n t i n u o u s a s s i s t a n c e i s l l a n t ' s w i f e o f t e n h e l p s y e t o p t i o n s a r e a v a i l a b l e f o r c o o k i n g i s c o n t i n u o u s l y a s s i s t e d a n d t h e a p p e l l a n t ' s e s t h e m a j o r i t y o f t h e f o o d p r e p a r a t i o n a n d c o o k i n g . l d n o t b e c o m p l e t e d f r o m a s e a t e d p o s i t i o n a n d i t i s o u s e h o l d d i s t r i b u t i o n o f d u t i e s . T h e a o o e l l a n t ' s =c :.:....::. _ _____J _
p hy si cian state d that if the appell ant has to cook, it is beca su p ports the minister's p osition that a lt h ough the a ppellant househo l d tasks completed b y h is sp ouse. The nature of th out of a vehi cl e has not been provid ed and it is not c lea bein g used to assist or if a person a s si sts. T he app ellant's physicia n has rep orted that he has not prescribed interfere wit h his ability t o p erf o rm D LA and t hat no m obili to assist with DLA. The ministry relies on the medi cal opinion and expertise determine that the a p pell ant's impai r ment significantly restricts continuously or periodically for extended perio ds . T he m D isabilities eligibility based on p hysical, men t al a nd daily living assess p ractitioner. Al though the min istry acknowledges that the appel medi cal conditions, particularly with shopping, housekee require bendin g earl y i n the day, it fin d s th e informatio n p signific an tly restricts the appel lant's abil ity to perform daily ex ten ded periods; therefo re, no t me etin g the legi sl a tive P a n el Decis io n The legisl atio n Section 2(2)(b)(i ) of the E APWDA -requires the signifi cant re str ictions of DL A in co n side ration of th e op inion that other ev ide nce -such a s t h a t f r om the a ppe l lant -s cl a rif icat ion of th e p rof e ss ional e vid ence, but the le gis l a ti p rofess i o n al's opi n ion is fundament al to the mini stry's dete p rescribed pro fes sionals' evi dence mu st like a ny othe r ev The legislation requires t hat a severe impairment directly and perf orm DL A either c ontin uousl y or p eriodically for ext ended must be a c a u sa l link bet w een th e severe impairment and tim e or du ration. The direct and sig nifi c a nt rest r i ction ma must be for a n extended t ime . I nherentl y , a ny analy s is of frequency. In circumsta nc e s where the eviden ce indicat appropriate for the minist r y to require eviden ce of the duration and "satisfi ed" that this legislative criterion is met. I n the AR, the p hysician reported that the appellant: under Personal Care, independently manages 2 of aspects of DLA, specifi cally feeding self and regulating diet; he requires continuous assistance (wife helps) for dressing, grooming, bathing and t oileting (requires grab in/out of bed and transfer s o n/off c hair. U n der Basic H ouse aspect s; laundry and basic housekeeping (does not do, wife does, unable to bend). Under Shopping he independently manages readi ng prices and label s, making appro requires periodi c assistance for going to and from stores (relate a ssistance for ca rrying purchases ho m e (wife often helps). Under Meals the appellant independently manages meal plan ning and safe storage of food whe r e as he requires continuous assis cooking (wife does majority, if alone takes him longer). Unde manages al l 3 a spects o f D L A; ban king, budget ing and payin independently manages all 3 aspects of DLA; filling/refilling prescriptions, taking as directed and safe handling and storage. Under trans ortation , the a EMT 003(10/06/01) use he is alone , and it tak es him a longer time which is ca p a ble of these tasks, they are genera l ly e continuous ass istance required for ge tting in and r if t his relates to t he frame or handle s on the ve hicle a n y me dication and /o r treatments t hat t y aids o r prostheses are required for his impairm e nt fr o m the physi cian and other health profess i o n als to h is abi lity to perform daily li ving ac tivities inis try makes the dec ision regardi ng P ersons w ith men ts p ro v ided by the med ical lant has certain l im itations th a t resu lt from his ping and some activities r e lated to p ersonal care that ro v ide d does not est ablis h t h a t a se ve r e impair m en t livin g act ivi ti es conti nuo us ly or per io di c all y for criteria. m iniste r to sub s ta n ti ally a ssess dire ct and of a p res c r ibe d pr ofe ssi o nal. Th i s d o es n't me an ho uldn ' t be fact ored in as r equ i red to p rovid e ve l a ngu age m ake s i t c le ar that th e pres c rib ed rminat io n a s to whet her it is "sat isfied". The idence be we ighed and acc essed. s igni f i c a nt ly res tri cts the appel lant' s ab ility to period s. The t erm " direct l y" mea ns that there th e restriction. Th e re is also a com pone n t related t o y be ei ther c onti nuo us or p eriod ic . If i t is p eriodic it p erio d i cit y m u s t also include c o nsideration of the es that a restriction aris es pe r i odi c a ll y, it is e ntir ely frequenc y o f the restricti on in ord er t o be 8 b a r s) ; h e requires p eriodic assistance fo r t r a n s fers keeping, he r equ ir e s co n tinuous assistance in both priate choices and paying for pu r ch ases; he d to walking dilliculties)and requires continuous tance with food preparation and r Pay Rent and Bills, the a p pellant independently g re nt and bills. Und er Me di cat i on s, the a ppellant
and does not use public transit. The onus is on the appellant to prove on the balance of probabilities that he satisfies the legislative criteria with respect to direct and severe restrictions in his ability to manage his DLA independently. In the panel's view, having placed greater weight on the general practitioner's evidence respecting the appellant's physical functional skills as reported in the physician report which is consistent with the consult report and that of the appellant's own evidence that he requires help with DLA 50% of the time; the panel finds that the explanations given in the AR do not substantiate why the appellant requires continuous assistance for DLA that do not require bending or lifting heavy items such as grooming, some aspects of laundry (folding clothes), food preparation and cooking. While the evidence indicates that the appellant has some difficulty with his DLA, specifically those that require bending and lifting and that due to stiffness, activities require approximately 3 times longer than average, the panel finds that the ministry reasonably determined that the evidence does not establish that, in the opinion of a prescribed professional, his impairments directly and significantly restrict his ability to manage his DLA either continuously or periodically for extended periods. Accordingly, the panel finds that the ministry reasonably found that this legislative criterion is not satisfied. Help with DLA The appellant's position is that he requires help every 2 nd day. The physician has confirmed that the appellant would be assisted by "grab bars" for his physical impairment and that his wife helps him regularly with DLA. The ministry's position is that since it has not been established that the appellant's DLA are significantly restricted, it cannot be determined that significant help is required from other persons. Panel Decision Finding that a severe impairment directly and significantly restricts a person's ability to manage his DLA either continuously or periodically for an extended period is a precondition to a person requiring "help" as defined by section 2(3)(b) of the EAPWDA. In the PR, it is noted that the appellant does not require aids or prostheses for his impairment. In the AR, it is noted that the appellant needs "grab bars". In the AR, the prescribed professional indicated that the appellant does not have an assistance animal. The panel finds that the ministry reasonably concluded that since it has not been established that the appellant's DLA are significantly restricted, it could not be determined that the appellant requires help with DLA as defined by the legislation. Conclusion The panel acknowledges that the appellant's medical conditions affect his ability to function. However, having reviewed and considered all of the evidence and the relevant legislation, the panel finds that the ministry's decision finding the appellant ineligible for PWD designation is reasonably supported by the evidence. The panel therefore confirms the ministry's decision. EMT003(10/06/01)
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.