I APPEAL# PART C -Decision under Appeal The decision under appeal is the ministry's reconsideration decision dated August 29, 2014, which held that the appellant did not meet 3 of the 5 statutory requirements of section 2 of the Employment and Assistance for Persons with Disabilities Act for designation as a person with disabilities (PWD). The ministry found that the appellant met the age requirement and that his impairment is likely to continue for at least two years. However the ministry was not satisfied that the appellant has a severe physical or mental impairment or that his daily living activities (DLA) are, in the opinion of a prescribed professional, directly and significantly restricted either continuously or periodically for extended periods. The ministry also found that as the appellant is not significantly restricted with DLAs, it could not be determined that he requires the significant help or supervision of another person, the use of an assistive device, or the services of an assistance animal to perform his DLAs. PART D -Relevant Legislation Employment and Assistance for Persons with Disabilities Act (EAPWDA), section 2 (2) Employment and Assistance for Persons with Disabilities Regulation, (EAPWDR), section 2 EAAT 003(10/06/01)
I APPEAL# PART E -Summary of Facts The information before the ministry at the time of reconsideration included the following: • A physician's report completed by the appellant's physician dated February 13, 2014. The physician's report diagnoses the appellant with post brain meningioma excision with an onset date of November 2008 and that his prognosis is incurable. In the health history, the physician indicates that as a result of brain surgery the appellant ended up with poor balance, occasional falls, dizzy spells, difficulties with concentration, and short term memory problems. The physician indicates by checking a box the appellant has significant deficits relating to consciousness, executive functioning, memory, emotional disturbance, motivation, and attention however, the physician provides no further comment or explanation of how these deficits affect the appellant. The physician indicates that the appellant is not on prescription medications that interfere with his ability to perform daily living activities, does not require prosthesis or aids for his impairment, that he can walk 4+ blocks unaided, climb 5+ stairs unaided, is limited to lifting 2kg or less, and he has no limitation in the length of time he can remain seated. The physician has had the appellant as a patient for 16 years and has seen him 2-10 times in the past 12 months. • An assessor's report completed by the appellant's physician dated February 13, 2014. The report states that the appellant lives with his wife, that he has impaired cognitive functions, poor balance, has poor hearing, uses a cane to walk, climb stairs, stand, lift, and carry items. In the category of cognitive and emotional impairment the physician indicated by checking boxes that the appellant has a moderate impact in consciousness, emotion, attention/concentration, executive, memory, and motivation however the physician provides no further comment or explanation of how these deficits affect the appellant. The appellant is independent in all areas of personal care, basic housekeeping, shopping, paying bills/rent, medications, and transportation. The physician indicates the appellant uses an assistive device for meals but writes that this is because his "wife does it." The physician doesn't explain if his wife prepares the meals because the appellant cannot or if it is due to their domestic arrangement. The physician writes the appellant is independent in most aspects of social functioning, he receives help from his wife in dealing with unexpected demands, has good functioning in relationships within his immediate social network, as well as his extended social network. The assessor's report states the appellant receives assistance from his wife for his DLA's and that he uses a cane and crutches as assistive devices but he does not use an assistance animal. The assessor relied on an office inteNiew with the appellant and his file/chart to complete his report. • An application for Persons With Disability Designation completed by the appellant dated February 3, 2014. The appellant writes since his brain surgery in 2008 he has problems with basic balance, walking, thinking and concentrating, he gets dizzy spells, occasionally has difficulty walking straight, has fallen many times in his apartment, and is unable to work in his profession as a trades person. He adds that he relies on his wife for his care and suffers from depression and frustration due to his condition. • An undated letter completed by the appellant. The appellant writes that he is unable to work because of his medical condition; he gets dizzy, has problems with his balance, he cannot stand or work for long, has pressure problems in his legs, has swollen legs, difficulty concentrating, has difficulty lifting and walking, and the therapies prescribed by his physician have not helped. He adds that his inability to work is not due to lack of trying but rather, he just cannot put in a days work and because of this he suffers from depression. EAAT003(10/06/01)
I APPEAL# • A Request for Reconsideration application completed by the appellant dated April 19, 2014. The appellant writes in his reason for request for reconsideration that because of his medical conditions he is unable to work, he has developed depression, and that his doctor has confirmed his inability to work. In the appellant's written submissions to the appeal panel dated September 23, 2014, he writes that he is incapable of part-time or full-time employment. He writes that after his brain surgery he was paralyzed on his left side and has developed DVT (deep vein thrombosis). He adds that in his profession he must have a good balance and work on ladders but he cannot do that anymore. He writes that he relies on his wife to make decisions for him, he gets easily confused, he cannot be left alone for long periods, and his doctor has diagnosed his condition as life-long. The panel determined the additional documentary evidence was admissible under s. 22(4) of the Employment and Assistance Act (EAA) as it was in support of the evidence before the minister at reconsideration and provides corroborating information about the appellant's condition. EAAT003(10/06/01)
I APPEAL#' PART F -Reasons for Panel Decision The issue under appeal is whether the ministry reasonably determined that the appellant's impairment is not severe, in the opinion of a prescribed professional his impairment does not directly and significantly restrict his daily living activities either continuously or periodically for extended periods of time and, as a result of those restrictions, it could not be determined that he requires the significant help or supervision of another person, the use of an assistive device, or the services of an assistance animal to perform his DLAs. To be considered a person with a disability the legislation requires a person to provide evidence to satisfy the legislative criteria. These are detailed in EAPWDA Section 2 (2): (2) The minister may designate a person who has reached 18 years of age as a person with disabilities for the purposes of this Act if the minister is satisfied that the person has a severe mental or physical impairment that (a) in the opinion of a medical practitioner is likely to continue for at least 2 years, and (b) in the opinion of a prescribed professional (i) directly and significantly restricts the person's ability to perform daily living activities either (A) continuously, or (B) periodically for extended periods, and (ii) as a result of those restrictions, the person requires help to perform those activities. The definitions for the above legislation are contained in the EAPWDR: 2 (1) For the purposes of the Act and this regulation, "daily living activities", (a) in relation to a person who has a severe physical impairment or a severe mental impairment, means the following activities: (i) prepare own meals; (ii) manage personal finances; (iii) shop for personal needs; (iv) use public or personal transportation facilities; (v) perform housework to maintain the person's place of residence in acceptable sanitary condition; (vi) move about indoors and outdoors; (vii) perform personal hygiene and self care; (viii) manage personal medication, and (b) in relation to a person who has a severe mental impairment, includes the following activities: (i) make decisions about personal activities, care or finances; (ii) relate to, communicate or interact with others effectively. (2) For the purposes of the Act, "prescribed professional" means a person who is (a) authorized under an enactment to practice the profession of (i) medical practitioner, (ii) registered psychologist, (iii) registered nurse or registered psychiatric nurse, (iv) occupational therapist, (v) physical therapist, (vi) social worker, (vii) chiropractor, or EAAT 003(10/06/01)
( v i i i ) n u r s e p r a c t i t i o n e r , o r ( b ) a c t i n g i n t h e c o u r s e o f t h e p e r s o n ' s e ( i ) a n a u t h o r i t y , a s t h a t t e r m i s d e f i n e d i ( i i ) a b o a r d o r a f r a n c o p h o n e e d u c a t i o n o f t h e S c h o o l A c t , i f q u a l i f i c a t i o n s i n p s y c T h e a p p e l l a n t a r g u e s t h a t h i s i m p a i r m e n t i s s e v e r e , a c t i v i t i e s e i t h e r c o n t i n u o u s l y o r p e r i o d i c a l l y f o r e x t e n a s s i s t a n c e o f a n o t h e r p e r s o n , i n p a r t i c u l a r h e r e l i e s a s s i s t i v e d e v i c e , a c a n e . H e a r g u e s t h a t b e c a u s e o f e n g a g e i n f u l l t i m e e m p l o y m e n t a n d t h a t h e c a n n o t I t i s t h e m i n i s t r y ' s p o s i t i o n t h a t t h e a p p e l l a n t m e e t s t l i k e l y t o l a s t m o r e t h a n t w o y e a r s . T h e m i n i s t r y m a i n t h a t h i s i m p a i r m e n t i s s e v e r e , d i r e c t l y a n d s i g n i f i c a n 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 t o d e v i c e o r a n o t h e r p e r s o n . T h e a p p e l l a n t a r g u e s t h a t d u e t o h i s m e d i c a l c o n d i t i p a n e l n o t e s t h a t t h e l e g i s l a t i o n f o r a p e r s o n ' s q u a l i f i n o t i n c l u d e a n e m p l o y a b i l i t y c r i t e r i a . T h e P W D a p p l i e m p l o y a b i l i t y . S e v e r e P h y s i c a l I m p a i r m e n t A d i a g n o s i s o f a s e r i o u s m e d i c a l c o n d i t i o n d o e s n o t s e v e r e i m p a i r m e n t . A n " i m p a i r m e n t " i s a m e d i c a l c o a b i l i t y t o f u n c t i o n i n d e p e n d e n t l y o r e f f e c t i v e l y . T o a s s e s s t h e s e v e r i t y o f a n i m p a i r m e n t o n e m u s t c e x t e n t o f i t s i m p a c t o n d a i l y f u n c t i o n i n g a s e v i d e n c e w h i c h p e r f o r m i n g D L A i s r e s t r i c t e d . I n m a k i n g i t s d e r e l e v a n t e v i d e n c e , i n c l u d i n g t h a t o f t h e a p p e l l a n t . H f u n d a m e n t a l b a s i s f o r t h e a n a l y s i s i s t h e e v i d e n c e f r 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 ' s f a m i l y p h y s i c i a n o f 1 6 y e a r s w r i t e s i n p h y s i c a l i m p a i r m e n t s , t h e a p p e l l a n t ' s s u f f e r s f r o m d i H i s p h y s i c a l l i m i t a t i o n s i n c l u d e l i f t i n g i t e m s i n e x c e s s l i f t a n d c a r r y i t e m s , a n d s t a n d . H o w e v e r , t h e p h y s i c i u n a i d e d , c l i m b s 5 + s t a i r s u n a i d e d , a n d i s i n d e p e n d e m e a l s . T h e p h y s i c i a n d o e s n o t d e s c r i b e w h y h e c a n d o e s t h e w o r k . T h e p a n e l f i n d s t h a t g i v e n t h e l i m i t a t i o f w h y t h e a p p e l l a n t i s u n a b l e t o p r e p a r e h i s m e a l s , w a s n o t e n o u g h e v i d e n c e t o e s t a b l i s h t h a t t h e a p p e l S e v e r e M e n t a l I m p a i r m e n t E AA T 0 0 3 ( 1 0 / 0 6 / 0 1 )I A P P E A L # m p l o y m e n t a s a s c h o o l p s y c h o l o g i s t b y n s e c t i o n 1 ( 1 ) o f t h e I n d e p e n d e n t S c h o o l A c t , o r a u t h o r i t y , a s t h o s e t e r m s a r e d e f i n e d i n s e c t i o n 1 ( 1 ) h o l o g y a r e a c o n d i t i o n o f s u c h e m p l o y m e n t . i 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 a f f e c t s h i s d a i l y l i v i n g d e d p e r i o d s o f t i m e a n d t h a t h e r e q u i r e s o n h i s w i f e t o m a k e d e c i s i o n s , a n d t h e u s e o f a n h i s i m p a i r m e n t h e c a n n o t w o r k i n h i s t r a d e o r f u n c t i o n n o r m a l l y , e v e n a t h o m e . h e a g e r e q u i r e m e n t a n d t h a t h i s i m p a i r m e n t i s t a i n s t h e r e i s i n s u f f i c i e n t e v i d e n c e t o e s t a b l i s h t l y r e s t r i c t s h i s 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 t h e e x t e n t t h a t h e r e q u i r e s t h e a i d o f a n a s s i s t i v e o n h e i s u n a b l e t o m a i n t a i n e m p l o y m e n t . T h e c a t i o n a s P W D d e s i g n a t i o n , s h o w n a b o v e , d o e s c a t i o n i s n o t m e a n t t o a s s e s s t h e p e r s o n ' s i n i t s e l f d e t e r m i n e P W D e l i g i b i l i t y o r e s t a b l i s h a n d i t i o n t h a t r e s u l t s i n r e s t r i c t i o n s t o a p e r s o n ' s o n s i d e r t h e n a t u r e o f t h e i m p a i r m e n t a n d t h e d b y f u n c t i o n a l s k i l l l i m i t a t i o n s a n d t h e d e g r e e t o t e r m i n a t i o n t h e m i n i s t r y m u s t c o n s i d e r a l l t h e o w e v e r , t h e l e g i s l a t i o n i s c l e a r t h a t t h e o m a p r e s c r i b e d p r o f e s s i o n a l i n t h i s c a s e , t h e t h e P h y s i c i a n ' s R e p o r t t h a t i n t e r m s o n h i s z z y s p e l l s d u e t o a b r a i n s u r g e r y h e h a d i n 2 0 0 8 . o f 2 k g a n d r e q u i r i n g a c a n e t o w a l k , c l i m b s t a i r s , a n a l s o i n d i c a t e s t h e a p p e l l a n t w a l k s 4 + b l o c k s n t i n a l l a r e a s o f h i s D L A ' s w i t h t h e e x c e p t i o n o f n o t p r e p a r e m e a l s e x c e p t t o w r i t e t h a t h i s w i d e o n s a s r e p o r t e d a n d w i t h n o f u r t h e r e x p l a n a t i o n t h e m i n i s t r y r e a s o n a b l y d e t e r m i n e d t h a t t h e r e l a n t ' s p h y s i c a l i m p a i r m e n t s w e r e s e v e r e .
The appellant' s family p h ysi cian indicates in the Asses and emotio n al impairme nt the physician in d i ca ted by checking boxes that in co n s ciousne s s, emotion, at te ntion/con centration, physician in dic a t es no impact in bodil y fu nctio n s , imp activity, language, psyc h o tic s y mptoms, other neuropsycholog emoti ona l problems. There were no cognitive or emotional functions that imp acted by his con d ition. The pane l no t e s the p hysician has not detailed any DLA's that are affected by these moderate impa i rm en t s. Given the absence of any major affect indicat the panel finds that the ministry reaso nably dete rmined established under section 2(2) of the E APW DA. The appe l lant repo rts that he suffers f r om d e pression however the physician has n w ith depressi on nor ha s he i nc luded depression in the requi r e s that a menta l or ph ys i c a l impairment must be there fore the ministry co ul d not r easonably c ons i de Restr i ct ions in the a b i l i ty t o perf orm D L A A s not ed a bove, the physic ian sta tes the appe llan t ho usekeepi ng, sh o p ping, and payi n g bi l ls/rent, m edi in d icate s the ap pell ant uses a n assi stive d evice for meals but w d oes it ." The pane l n otes the p hysici a n does n't ex plai appe llant c a nnot or i f i t is due t o their domestic a r ra physic ian could have menti o ned that the appel la nt need chec k ed n o r the bo x whe re the p hys ic ia n coul d have i me als a n d consi d er i ng th e app ellant's wi fe is certainly not an "ass mini s try reasonably det ermine d it cou l d m ea n a d omestic Report t he p h ysic ian i n di cate s the appell ant can lift no more t any of h is DL A's. The p hys i ci a n has p ro vided nei ther any l i mitat i ons it cau ses. The panel finds t hat the m inist r y reas on ably det ermine DLA indep endently and the assi st ance requi red i s f that the ministry reasonably concluded that there is not enough evidence from the prescrib p rofe ssi onal t o establish that the a p pella nt's im pairment DLA either cont inuously or periodical ly for e xtended criterion of section 2(2)(b )(i) of the EAPWDA. H elp to perform DLA The evidence of the p h ysic ian, as a p r e scribed professional, provided the appellant's wife and that use of a cane and crutches as assistive device routinely to help compensate for his impairment. The physician notes that the appellant is independe nt in all areas of mobility and he provided no additional explanation of the impact or importance of the cane, nor is there any other evidence by the physician or the appellant using crutches. The panel finds that the ministry reasonably determined that as direct and significant restrictions in the a ellant's abilit to erform DLA have not been established, EAAT 003( 1 0 /06/ 0 1 ) I APPEAL # sor's Report tha t in the category of cognitive there is a moderate impact executive, m emory, and motivation. T h e u lse control, insi ght and j udgment, mo tor ic al prob l e m s , a n d an y o the r men t al or were noted as being majorly e d by the ph y s ician, that a severe mental impairment was not o t dia gn osed him appellant's he a lth histor y. The legislation in th e opinion of a medical practitioner and r the condi t ion o f depress ion. is in d e penden t i n a ll areas of per sonal ca r e, ba sic c at i on s, a nd tra n s port a t ion. Th e physi c ia n rite s that th i s is b e cause his "wife n if his wi f e prepares the meals be c a use th e ng ement; s in ce the o ther b ox es where the ed ass i s tanc e to prepare m eals ar e not nd icate d i t ta k e s the appel la n t longer to prep a re istive d evi ce", th e pane l finds the arr ang ement. A l though in th e Physic ian' s han 2kg, this limi tat i on has not a ff ected explanation of the natu re of this re striction nor d that the appell a n t p er f o rms t he m a j o rity o f h is o r li fting h eavie r weights. Overall, the panel finds e d signi ficantly restricts his ability to manage his perio ds, thereby not satisfying the legi s lative is that the help require d w i th DLA i s s are required that he is it cannot be
I APPEAL# determined that the appellant requires help to perform DLA as a result of those restrictions, as defined by section 2(3)(b) of the EAPWDA. Conclusion Having reviewed and considered all of the evidence and relevant legislation, the panel finds that the ministry's reconsideration decision, which determined that the appellant was not eligible for PWD designation, was reasonably supported by the evidence, and therefore confirms the decision. EAAT 003(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.