P A RT C -Dec ision un der App ea l T he de c ision und er a ppea l i s t h e Ministr y o f So cial D r eco nsider ati o n deci sion d ate d Oc tober 10, 2014 whic the five st a tuto ry require me nts o f Sec t io n 2 of the Empl D isabilities Ac t for design a tion as a pe r son wi t h disabilit ap pel lant m et t h e age r eq u iremen t an d tha t h i s im p airm Ho weve r, the ministry was not s a ti sfied tha t t he evidenc • t h e appe llan t h as a sever e ph ysi c al or m enta l • th e appe llan t's da il y l i ving activi ties (O LA) ar e, directly a nd sign ifi c antly rest r icte d either con tinuous • as a r e su l t of these r estric tions, t he a ppel lant anothe r person , the use of an assistive de v ice, or the perform DL A. PART D -Releva nt Le gis lation Empl oyment and Assistance for P e rs on s w i th Disab ilit Empl o y ment and Ass i s ta nc e for Perso n s with Disa bilit APPE A L # I e v elop ment and Socia l In novation (th e ministry) h fo u nd tha t t h e app ellant did not meet thr ee o f oyment a n d Ass i s tance f or P ersons with ies (P WD). Th e m i n i st ry found that th e ent is likely to con ti n u e for at lea s t two years. e est ablishe s t ha t: imp air m ent; i n th e opini on of a prescri bed profes sional, l y or p eriodic ally for e x t en de d period s; and, r e q u ires the s ignifican t hel p or sup er visio n of s e rvice s of an ass ista n ce a nima l to ies Ac t (E APWDA ) , Sec ti on 2 ies Re g ulation ( E A PWDR), S ection 2
I APPEAL# PART E -Summa ry of Facts With the consent of both parties, the hearing was conducted as a written hearing, pursuant to section 22(3)(b) of the Employment and Assistance Act. The evidence before the ministry at the time of the reconsideration decision included the Persons With Disabilities (PWD) Application comprised of the applicant information and self-report dated May 23, 2014, a physician report (PR) and an assessor report (AR) both dated May 29, 2014 and completed by a general practitioner who has known the appellant since September 2013. The . evidence also included the Request for Reconsideration dated September 26, 2014 with an attached handwritten note by the appellant dated September 27, 2014. Diagnoses In the PR, the appellant was diagnosed by the general practitioner with arthritis (10 years) and HTN [hypertension] for 5 years. There is no diagnosis of a mental health condition. Physical Impairment In the PR, the general practitioner reported that: • In terms of health history, the appellant has "sore joints with reduced mobility." • The appellant does not require an aid for his impairment. • In terms of functional skills, the appellant can walk 1 to 2 blocks unaided and can climb 5 or more stairs unaided, can lift 2 to 7 kg (5 to 15 lbs.) and has no limitation with remaining seated. • The appellant is not restricted with mobility inside the home or mobility outside the home. • The appellant experiences pain due to arthritis which reduces his mobility. In the AR the general practitioner indicated that: • The appellant is assessed as independent with walking indoors, walking outdoors, climbing stairs, standing, lifting and carrying and holding, with no comments added by the general practitioner. • The appellant has poor mobility, with arthritis pain in his hip and knee joints. In the appellant's self-report, he wrote that: • He has painful arthritis and a lot of problems that go along with it. He had two operations to put plates and screws in his ankle. • His right wrist is fused. There were five difficult surgeries to complete this and eventually he had no movement [in his wrist]. • He has trouble walking. He can only walk 1 block and has to stop and rest. • He has trouble sitting and sleeping. In the his Request for Reconsideration submission, the appellant wrote that: • He can only walk with a cane or a walker. He needs a cane just to get around short distances and a walker to go any long distances. He is older and has really bad arthritis and does not have the mobility. • He has a hard time to stand for more than a few minutes. • His arthritis is very painful and he feels he has a permanent disability and can no longer work in the future.
Mental Imp a irment In the PR, the ge neral pra c tit ioner report ed: • Th e a pp e llan t h as n o dif ficult y w ith communic emoti onal f u n ct i on, wi th no c omme nts provide In the A R, the ge n e ral pr actit ion er indic ate d that : • Th e appell ant h as a good a bi l ity t o comm u n icate i • Th e se cti on o f t he repor t describ in g imp acts t completed a s no t appl y i ng to the appellant. • The app el lan t is ind e p e nd e n t i n all as pec t s o f his i mm e di a t e and extend e d social networ ks Daily L i vin g Ac tivities (D LA) In the P R, t he gene r al p r a c tit ioner i ndica ted that: • Th e a pp e llan t h a s n o t been p re scribed any medic d aily li ving ac t ivi ties. • T h e appe ll a nt is n ot r e stricte d in a ny of t he listed In th e A R , the general p ractitioner reported tha t: • The appe ll ant is independe n t i n all tasks of all outd o ors, p e r sonal care, ba sic hou sek e ep ing, shopping his personal finan ce s [pay rent and bills ] a nd so cial f unctioning. In his self -rep ort, t he a ppe llant wro t e that : • He has problem s getting f o od and b athi ng. Need fo r Help The gene ra l pra c t i t i oner i n dic ated in th e AR t h a t t he assis ta nce prov ided by other pe ople, the appellant's fri the rep ort setting out the assista nc e prov id ed t hroug "NA", or not applicable to the appellant. In the PR, the appella nt does not require an aid for his impairme n t. In h is Notice of Appeal da t ed October 10, 2014, the appellant express ministr y's re co n s i d e ratio n decision, and wr o te that he b short distances with a cane or walker. He has no chance of getting work although he has gone on many job interviews. He cannot l ift 50 lbs . a nd he canno cane. Th e minist r y r elied on its reconsideration decision fo Admissibility of Additi o na l Informa tion The appellant's Notice of Appeal includes information that is consistent with, and tends to corroborate, information that was before the ministry regarding the impacts the appellant is experiencing as a result of his health conditions. The panel has admitted this informa testimony in support, in accordance with section 22(4) of the Employment and Assistance Act. A P PEA L# I ation an d n o significant d efi cits wit h cogn itive and d. n a ll are a s. o cog nitive a nd emotional function i n g is n ot s o ci al f uncti o ni ng, wit h goo d f u nc tioning i n both . a tion and/or treat m ent s that interfe r e with h i s D LA, inclu d in g social fu n c t io n ing. l i sted DLA , namel y : mo ving about indoors a n d , p r epa ring his ow n meals, managing medi catio n s , us ing t ransporta tio n fac ilitie s a nd appe ll ant live s alone an d, with res pec t t o the e nd s provide hi m with this he lp. T he sec tion of h the u se of a ssistive de v i ce s has b een mark ed gene ral p r a ctitioner al s o indic ated that the ed his d isagreement wi th the e l iev es he is disabled as he can only w alk t stand all day without th e a s sista n ce of a r i ts s ubmi s sion. tio n as written
I APPEAL# PART F -Reasons for Panel Decision The issue on the appeal is whether the ministry's reconsideration decision, which found that the appellant is not eligible for designation as a person with disabilities (PWD), was reasonably supported by the evidence or was a reasonable application of the applicable enactment in the circumstances of the appellant. The ministry found that the appellant does not have a severe mental or physical impairment based on the information provided and that his daily living activities (DLA) are not, in the opinion of a prescribed professional, directly and significantly restricted either continuously or periodically for extended periods. Also, as a result of those restrictions, it could not be determined that the appellant requires the significant help or supervision of another person, the use of an assistive device, or the services of an assistance animal to perform DLA. The criteria for being designated as a person with disabilities (PWD) are set out in Section 2 of the EAPWDA as follows: Persons with disabilities 2 (1) In this section: "assistive device" means a device designed to enable a person to perform a daily living activity that, because of a severe mental or physical impairment, the person is unable to perform; "daily living activity" has the prescribed meaning; "prescribed professional" has the prescribed meaning. (2) The minister may designate a person who has reached 18 years of age as a person with disabilities for the purposes of this Act if the minister is satisfied that the person has a severe mental or physical impairment that (a) in the opinion of a medical practitioner is likely to continue for at least 2 years, and (b) in the opinion of a prescribed professional (i) directly and significantly restricts the person's ability to perform daily living activities either (A) continuously, or (B) periodically for extended periods, and (ii) as a result of those restrictions, the person requires help to perform those activities. (3) For the purposes of subsection (2), (a) a person who has a severe mental impairment includes a person with a mental disorder, and (b) a person requires help in relation to a daily living activity if, in order to perform it, the person requires (i) an assistive device, (ii) the significant help or supervision of another person, or (iii) the services of an assistance animal. (4) The minister may rescind a designation under 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) prepare own meals; (ii) manage personal finances;
I APPEAL# (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. Severe Physical Impairment The appellant's position is that a severe physical impairment is established by the evidence of the pain and restricted mobility he experiences due to arthritis. The appellant wrote that he has painful arthritis and a lot of problems that go along with it, including that he can only walk with a cane or a walker. He needs a cane just to get around short distances and a walker to go any long distances, and he has a hard time standing for more than a few minutes. He also has trouble sitting and sleeping. The appellant wrote that he has no movement in his right wrist as it has been fused. The appellant argued that, due to his physical limitations, he can no longer work. The ministry's position is that the information provided by the general practitioner indicated that the appellant has a few physical limitations and there is not enough information from the medical professional to confirm that the appellant has a severe physical impairment. The ministry wrote in the reconsideration decision that the general practitioner reported that the appellant is able to walk up to 1 to 2 blocks unaided and can climb 5 or more steps unaided, that he can lift between 5 to 15 lbs. and has no limitation with remaining seated. The general practitioner reported that the appellant is independent in all aspects of mobility and physical ability and he does not require an aid for his impairment. The ministry argued that employability is not an eligibility criterion for designation as a PWD and the application is not intended to assess employability or vocational abilities. Panel Decision A diagnosis of a serious medical condition does not in itself determine PWD eligibility or establish a severe impairment. An "impairment" is a medical condition that results in restrictions to a person's ability to function independently or effectively. To assess the severity of an impairment, the ministry must consider the nature of the impairment and the extent of its impact on daily functioning as evidenced by functional skill limitations and the degree to which performing DLA is restricted. In making its determination the ministry must consider all the relevant evidence, including that of the appellant. However, the legislation is clear that the fundamental basis for the analysis is the evidence from a prescribed professional in this case, the appellant's general practitioner. The general practitioner, who had known the appellant since September 2013, diagnosed the appellant with hypertension and with arthritis that causes sore joints, with pain in his hip and knees, and reduced mobility. Although the appellant wrote that he can only walk with a cane or a walker and he needs a cane to go short distances and a walker to go any long distances, the general practitioner indicated that the appellant does not require an aid for his impairment. The general practitioner re orted in the PR that the appellant can walk 1 to 2 blocks unaided and, in the AR, the appellant is
assesse d as ind epende nt wi th w alking indoors a nd assistive d evice. The g e n e r al p r actit ioner also indicate mor e stairs una ided, h e c a n l ift 5 t o 1 5 lbs . and has gener al p r ac ti tioner ind i cate d that the a p pella nt is indepen an d carr y i ng and holdin g. The appellan t , on the ot her st andin g for more th an a few m inut e s. The appellan t a rgued t hat, due t o h is phys ical l i mita that on e's abil ity to partic ipat e i n pa id e mplo ym ent PWD. The foc us of t he l egis l ation is whet her a sev man agin g his DLA independently . This d iffe r e n tiat conside ra tion unde r the l e g islation f or stat u s as a Pers the Canada Pension Pl an d i sabilit y pe n s i o n und er f to work and e m ployab il ity are k ey consi d erat ions. Th e p ane l finds that the evidenc e demons trates that while th t o hi s m o b il i t y, h e remains indep e n dent with his mob descriptio n o f rest rict ions i n th e se areas has not b e p ractiti oner. In t he a bsence of furthe r detail fr om t he med restriction s to t he appe llant's fu nctioning, t he pan el t here i s not sufficien t evidence to establ is h that the appel s ect ion 2(2) o f the EAPWDA. Seve r e Menta l Imp a irmen t The ap pellant d id n ot maintai n a p os i t i o n that h e has a sev Th e minis t ry 's p osit i o n is th at ther e i s i n s uffici ent evidence to s ever e me nta l impairment. T he mini stry stated that a p pe llant do es not have any di ff iculti es with c omm u functi o ni ng . Panel D ecision In the PR, the general pra c titioner did not diagnose a mental health condition and reported that the appellant has no sign i ficant deficits with cognitive and emotional function and no difficulty with communication. The sections of the report describing impacts to cognitive and emotional is indicated to be not app licable to the appellant and the app ell social fun ct ioni ng. Given the absenc e of a mental health diagn appellant's m e ntal or s ocial functi oning, the pa n el f severe mental impairment was not established under Section 2(2) of the EAPWDA. Restrictions in the ability to perform DLA The appellant's position is that his physical impairment directly and significantly restricts his ability to perform D LA o n a n ongoing basis to the point tha t person or the use of an assistive device. The appellant wrote in his Request for Reconsideration that he needs a cane just to get around sho r t distances a has problems getting food and bathing. The minist 's osition is that there is not sufficient evidence from the I APP E A L# o utdoo rs and wit h no indication of the u se of an d in the P R that th e app e llant can c limb 5 o r no limitatio n wit h remaini ng seated. In the AR the dent wi th cl imbing stairs, standing, l ifting han d , wr ote t hat he has a hard time s itting a nd ti ons, h e can no longer work. T he p an el notes is n ot a stat u t o r y cri t er ion for de s igna tio n a s a ere impairmen t s ignific ant l y res tri c ts a person from e s the d isabilit y as sis tance re g ime from on wi th Persist e n t Mul tiple B a rrie rs ( PPMB) or eder al l egi sl ation, where re strictions to the abil ity e ap pellant experi ences s ome limitatio ns i l it y an d phys i c al abili ties. The appell ant's en ide n tifie d nor d e s cribe d by his genera l ical p r a ctitioner re g a rding t he e x te n t of f inds that the mi nis tr y reasona bly d ete r m ined tha t lant has a s e vere physi ca l impairm en t un d er ere mental i mpa i rment . es tab lish that t he app ellan t has a t he general pr acti tione r rep orted tha t the nication and n o defi cits to cogn itive a nd emot ional an t is assessed as independent wi th all aspe cts of osis a nd no re p orted impacts to the i nds that the ministry reasonably determined that a he requires the significant assi stance of anot her nd a w alker t o g o any long dista n ces and that he rescribed rof essional to
I APPEAL# establish that the appellant's impairment significantly restricts his ability to perform DLA either continuously or periodically for extended periods of time. The ministry stated that the general practitioner indicated that the appellant's impairment does not restrict him in his DLA and that he is independent in all aspects of his DLA, including social functioning. Panel Decision Section 2(2)(b) of the EAPWDA requires that a prescribed professional provide an opinion that an applicant's severe impairment directly and significantly restricts his DLA, continuously or periodically for extended periods. In this case, the general practitioner, who has known the appellant since September 2013, is the prescribed professional. DLA are defined in section 2(1) of the EAPWDR and are also listed in the PR and, with additional details, in the AR. Therefore, a prescribed professional completing these forms has the opportunity to indicate which, if any, DLA are significantly restricted by the appellant's impairments continuously or periodically for extended periods. In the appellant's circumstances, the general practitioner indicated in the PR that the appellant has not been prescribed medications that interfere with his DLA and that he is not restricted in his ability to perform any of the listed DLA. Although the appellant reported that he requires a cane to walk short distances and that he has problems getting food and bathing, the general practitioner reiterated in the AR that the appellant is independent with walking indoors and walking outdoors and that the appellant is independent in all tasks of all DLA, including shopping and personal care. Given the absence of restrictions to DLA reported by the general practitioner, the panel finds that the ministry reasonably concluded that there is not enough evidence from the prescribed professional to establish that the appellant's impairment significantly restricts his ability to manage his DLA either continuously or periodically for extended periods, thereby not satisfying the legislative criterion of Section 2(2)(b)(i) of the EAPWDA. Help to perform DLA The appellant's position is that his physical impairment directly and significantly restricts his daily living functions to a severe enough extent that assistance is required, including the use of a cane or walker as assistive devices. The ministry's position is that because it has not been established that DLA are significantly restricted, it cannot be determined that significant help is required. Panel Decision Section 2(2)(b)(ii) of the EAPWDA requires that, as a result of direct and significant restrictions in the ability to perform DLA, a person requires help to perform those activities. Help is defined in subsection (3) as the requirement for an assistive device, the significant help or supervision of another person, or the services of an assistance animal in order to perform a DLA. The general practitioner indicated in the AR that the appellant lives alone and, with respect to the assistance provided by other people, the assistance is provided by the appellant's friends. The section of the AR indicating assistance provided through the use of assistive devices is marked by the general practitioner as not applicable to the appellant. The panel finds that the ministry reasonably determined that as direct and significant restrictions in the appellant's ability to perform DLA have not been established, it cannot be determined that the appellant requires help to perform DLA as a result of those restrictions, as defined b Section 2(3 b of the EAPWDA.
I APPEAL# 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.
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