PART C -Decision under Appeal T h e decisi on under appeal is the reconsideration decision of the Ministry Social Innovation ("the ministr y") dated 06 August 2014 that h fo r qualif ication as a person wit h pe rsist e nt multiple bar determi ned that the a pp el lant's empl oy abilit y scre en eligibili ty u n der se ctions 2(2) and 2(4) of the Empl oyment found that the appell ant met the requirements of section 2(2). S for PPMB a person must have a medical c o n d ition, o m edica l practitioner and that in the o p i n i on o f t he me y ear, or has occ urr ed frequently in the past year, and is lik The mini st ry w a s no t satisfied that the infor m a t ion provid has co nfirmed that his m ed ical condition has c on tinued for at least 1 yea the past year, a n d t her efore deter mined that th e appellant d of the R eg ulat ion. P A RT D -Relevant Legislation Employm ent and Assi st a nce Reg ula t ion ( E AR ) , s ectio EMT003(10/06l01) of Social Develop ment and el d t hat the ap pellant was no t eligible riers t o employment (PPMB). T h e ministry score was 11 and therefore assessed his PPMB and Assistanc e Re gu lation . T h e minis t r y e ction 2(4)(a) r equ i res that to qualify ther than an addiction, t hat is co nfirmed by a dical practitioner ha s co ntinu e d for at least 1 e ly to continue for at least 2 more years. ed by the appellant ' s medical pract iti on e r r, or occurred frequently i n id not meet the criteria of section 2(4)(a) n 2.
P A R T E S u m m a r v o f F a c t s T h e e v i d e n c e b e f o r e t h e m i n i s t r y a t r e c o n s i d e r a t i o n 1 . F r o m t h e m i n i s t r y ' s f i l e s : t h e a p p e l l a n t h a s b D e c e m b e r 2 0 0 1 . 2 . T h e a p p e l l a n t ' s e m p l o y a b i l i t y s c r e e n , s h o w i n 3 . T w o M e d i c a l R e p o r t s P P M B , ( M R P P M B 1 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 ( G P ) , w h o h a M R P P M B ( 1 ) , d a t e d 2 9 N o v e m b e r 2 0 1 3 : • P r i m a r y m e d i c a l c o n d i t i o n : s e v e r e l e f t s h 2 0 1 3 . • S e c o n d a r y m e d i c a l c o n d i t i o n : s t i f f n e s s l e • T r e a t m e n t : p h y s i o t h e r a p y , m a y n e e d s u r • H o w l o n g h a s t h i s c o n d i t i o n e x i s t e d ? 3 m • P r o g n o s i s : e x p e c t e d d u r a t i o n o f m e d i c a l r e h a b i l i t a t i o n w i t h / w i t h o u t s u r g e r y . • T h e m e d i c a l c o n d i t i o n i s n o t e p i s o d i c . • R e s t r i c t i o n s : u n a b l e t o u s e l e f t a r m . M R P P M B ( 2 ) , d a t e d 2 2 F e b r u a r y 2 0 1 4 : • P r i m a r y m e d i c a l c o n d i t i o n : c h r o n i c r e g i o n • S e c o n d a r y m e d i c a l c o n d i t i o n : s e v e r e i n j u • T r e a t m e n t : p h y s i o t h e r a p y , p a i n l e f t a r m / r • H o w l o n g h a s t h i s c o n d i t i o n e x i s t e d ? 5 m • P r o g n o s i s : e x p e c t e d d u r a t i o n o f m e d i c a l • T h e m e d i c a l c o n d i t i o n i s n o t e p i s o d i c . • R e s t r i c t i o n s : n o u s e o f l e f t a r m , c h r o n i c p 4 . T h e a p p e l l a n t ' s R e q u e s t f o r R e c o n s i d e r a t i o n , f i r s t , t h e m i n i s t r y h a s w r o n g i n f o r m a t i o n : i t w a h e w a s d o i n g h i s s e c o n d c u t o f a h e d g e h e s h o u l d e r r o t a t o r c u f f a n d t o r e t h e t o p o f t h e s d e v e l o p e d a p r o b l e m w i t h h i s l e f t l e g , w h i c h c d o n e , l e a v i n g h i s d o c t o r t o b e l i e v e i t i s a c i r c u s o c k . I n h i s N o t i c e o f A p p e a l , d a t e d 1 4 A u g u s t 2 0 1 4 , t h e a m o b i l i t y i n h i s i n j u r e d a r m , n o r d o e s h e h a v e t h e l i f t i n u p p e r a r m m u s c l e a n d t w o t e n d o n s o n s a m e a r m . H T h e a p p e l l a n t s t a t e s : " N o m o r e l o n g w a l k s . P r o l o n g e w i t h a s t r a i g h t e n e d l e g a l s o c a u s e s s e v e r e c r a m p s . " A t t h e h e a r i n g , t h e a p p e l l a n t e l a b o r a t e d o n t h e d i f f i c l a d d e r . H e d e s c r i b e d h o w h i s l e a s a r e n o t w o r k i n Q r i E M T 0 0 3 ( 1 0 / 0 6 / 0 1 )i n c l u d e d t h e f o l l o w i n g : e e n i n r e c e i p t o f i n c o m e a s s i s t a n c e s i n c e g a s c o r e o f 1 1 . a n d M R P P M B 2 ) , b o t h c o m p l e t e d b y t h e s k n o w n h i m f o r m o r e t h a n 6 m o n t h s : o u l d e r f r a c t u r e . D a t e o f o n s e t 1 7 S e p t e m b e r f t s h o u l d e r / e l b o w / w r i s t . g e r y a n d e x t e n s i v e r e h a b i l i t a t i o n o n t h s . c o n d i t i o n -2 y e a r s o r m o r e , w i l l n e e d p r o l o n g e d a l p a i n s y n d r o m e l e f t a r m . D a t e o f o n s e t 2 0 1 3 . r y l e f t s h o u l d e r ( d i s l o c a t i o n ) a n d w r i s t . e h a b i l i t a t i o n , p r e s c r i p t i o n a n a l g e s i c . o n t h s . c o n d i t i o n -2 y e a r s o r m o r e . a i n . d a t e d 3 1 J u n e 2 0 1 4 . T h e a p p e l l a n t w r i t e s t h a t s a 2 0 f t . l a d d e r t h a t w e n t o u t f r o m u n d e r h i m a s w a s o n t h e 1 8 t h s t e p . T h e f a l l d e s t r o y e d h i s l e f t h o u l d e r t o e l b o w m u s c l e a n d t o t e n d o n s . H e h a s a u s e s s e v e r e c r a m p i n g . S e v e r a l t e s t s h a v e b e e n l a t i o n p r o b l e m , s o h e i s i n n e e d o f a c o m p r e s s i o n p p e l l a n t w r i t e s t h a t h e s t i l l d o e s n o t h a v e f u l l g s t r e n g t h i n h i s i n j u r e d l e f t a r m d u e t o t o r n e s t i l l h a s s e v e r e u p p e r l e g c r a m p s i n h i s l e f t l e g . d s i t t i n g a l s o c a u s e s s e v e r e c r a m p s . L y i n g d o w n u l t i e s h e h a s e x p e r i e n c e d s i n c e h i s f a l l f r o m a Q h t a n d w h i l e t h e r e h a s b e e n s o m e s l i Q h t
improvement with his left shoulder, there has been no improvement with his left hand and fist -he cannot close that hand. He has difficulty writing and cannot write a full sentence. He cannot lift and cannot hold onto a wheelbarrow. He has tried carving but cannot get a full push with his carving tools as needed. He has tried mowing the lawn but he cannot do that. He cannot hold onto a ladder. He tried helping his wife with the horses at her former workplace, but that didn't work either. His left arm always aches even when he takes pain medication. The appellant's wife explained that her husband had always worked as a landscaper. This involved heavy work, such as moving soil and rocks and installing pools. No landscaping company will hire anyone who cannot work with both hands. When asked by the panel, the appellant confirmed that his fall from a ladder occurred on 17 September 2013. The ministry stood by its position at reconsideration. When asked by the panel to differentiate between "has continued for at least one year" as in section 2(4)(a)(i) and "has occurred frequently in the past year'' as in section 2(4)(a)(ii), the ministry representative responded that continuous means ongoing without relief for a period of one year, and occurred frequently means the condition is episodic and occurring frequently over a one year period. The panel finds that the information provided by the appellant at the hearing is in support of the information before the ministry at reconsideration. The panel therefore admits as evidence the appellant's testimony under section 22(4) of the Employment and Assistance Act. EAAT 003( 10/06/01)
PART F -Reasons for Panel Decision The issue in this appeal is whether the ministry's reconsideration decision that found that the appellant did not qualify for PPMB because he did not meet the criterion set out in section 2(4)(a) of the EAR, requiring that a medical practitioner confirm that his medical condition has continued for at least year or has occurred frequently in the past year and is likely to continue for at least two years, is reasonably supported by the evidence or is a reasonable application of the legislation in the circumstances of the appellant. The relevant legislation is from the EAR: Persons who have persistent multiple barriers to employment 2 (1) To qualify as a person who has persistent multiple barriers to employment, a person must meet the requirements set out in (a) subsection (2), and (b) subsection (3) or (4). (2) The person has been a recipient for at least 12 of the immediately preceding 15 calendar months of one or more of the following: (a) income assistance or hardship assistance under the Act; (b) income assistance, hardship assistance or a youth allowance under a former Act; (c) a disability allowance under the Disability Benefits Program Act, (d ) disability assistance or hardship assistance under the Employment and Assistance for Persons with Disabilities Act. (3) The following requirements apply (a) the minister (i) has determined that the person scores at least 15 on the employability screen set out in Schedule E, and .... .[not applicable to this appeal] (4) The person has a medical condition, other than an addiction, that is confirmed by a medical practitioner and that, (a) in the opinion of the medical practitioner, (i) has continued for at least one year and is likely to continue for at least 2 more years, or (ii) has occurred frequently in the past year and is likely to continue for at least 2 more years, and (b) in the opinion of the minister, is a barrier that precludes the person from searching for, accepting or continuing in employment. In the reconsideration decision, the ministry referred to the MR-PPMB(2), noting that the appellant's GP indicates that the expected duration of his medical condition will be two years or more. However the date of the injury was 17 September 2013. The position of the ministry is that it is not satisfied that the information from a medical practitioner confirms that the appellant has a medical condition, other than an addiction, that has continued for at least one year. The ministry concludes that the requirements of section 2(4)(a) of the EAR have not been met. The nosition of the annellant is that the evidence shows that his medical condition is a barrier that EAAT 003( 10/06/01)
precludes him from searching for, accepting or continuing in employment and that therefore he meets the criteria for PPMB. The panel notes that the appellant's submissions all relate to his position that he meets the requirements set out section 2(4)(b) of the EAR-that is, his medical condition is a barrier that precludes him from searching for, accepting or continuing in employment. The ministry did not make a determination in this respect. The panel considers the criteria set out in section 2(4)(a) and 2(4)(b) of the EAR to be consecutive -in other words, the ministry need not make a determination with respect to whether the appellant's medical condition is a barrier to employment if the 1 and 2 year criteria set out in section 2(4)(a) have not been met. The legislation requires that the 1 and 2 year criteria must be confirmed by a medical practitioner the appellant's GP. The available evidence from the GP is that the date of onset of the appellant's medical condition is 17 September 2013 and that the GP has confirmed that, in the GP's opinion, it has continued up to the 22 February 2014, when MR-PPMB(2) was completed, or for 5 months. While the GP has given an opinion that the appellant's medical condition will continue for at least two years from that date, the panel finds that the ministry was reasonable in concluding that this is not the same as the GP providing explicit confirmation that the medical condition has continued for at least one year. The panel therefore finds that the ministry was reasonable in determining that the requirements set out in section 2(4)(a) of the EAR had not been met. On the basis of the foregoing, the panel finds that the ministry's decision that the appellant did not qualify for PPMB was reasonably supported by the evidence. The panel therefore confirms the ministry's decision. EAAT003(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.