I APPEAL# PART C -Decision under Appeal The decision under appeal is the Ministry of Social Development and Social Innovation (the "Ministry") October 21, 2014 reconsideration decision in which the Ministry determined that the Appellant did not meet all of the statutory requirements for designation as a person with disabilities ("PWD") under Section 2 of the Employment and Assistance for Persons with Disabilities Act. The Ministry found that the Appellant met the age requirement and that his impairment is likely to continue for at least two years. However, the Ministry was not satisfied that the evidence establishes that: • the Appellant has a severe physical or mental impairment; • in the opinion of a prescribed professional, the Appellant's daily living activities are directly and significantly restricted either continuously or periodically for extended periods by a severe impairment; and, • in the opinion of a prescribed professional, as a result of these restrictions, 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 daily living activities. PART D -Relevant Legislation Employment and Assistance for Persons with Disabilities Act ("EAPWDA") Section 2(2) and 2(3). Employment and Assistance for Persons with Disabilities Regulation ("EAPWDR") Section 2. EAAT 003(10/06/01)
I APPEAL# PART E -Summar of Facts �or its reconsideration decision, the Ministry had the following evidence: : 1. Appellant's PWD application consisting of: 1 • His self-report dated January 24, 2014. • A physician's report and an assessor's report both completed on March 31, 2014 by the same doctor who indicated that the Appellant has been his patient for 20 years and he has seen the Appellant 11 or more times in the past year. ' · 2. Appellant's October 5, 2014 request for reconsideration together with: • Written argument from his advocate dated September 23, 2014. • Appellant's statement dated September 18, 2014. • A statement signed by the same doctor on October 3, 2014. Diagnoses , In the physician's report, the doctor diagnosed the Appellant with Hepatitis C (onset January 2005), liver transplant (2007), sleep disorder (onset 2012), chronic back pain (onset 2007) and chronic abdominal pain (onset 2005). The doctor diagnosed no mental health conditions. Physical Impairments In his PWD application, the Appellant described his disability as follows: • Hepatitis C, arthritis, liver transplant (2007), sleep disorder, daily fatigue, nausea, pain in abdomen, aches (pain in hands, wrists, arms, ankle and knee), deteriorating liver. • These disabling conditions are severe and make it difficult for him to do the following daily activities: standing in the shower and reaching up/down to wash; standing in the kitchen to make meals and move things around (food, pots, pans): trying to clean the kitchen, vacuum, do his laundry; having the motivation to keep his house clean because of the pain it causes; taking the right medications at the right times; remembering to eat regular and healthy foods; having trouble getting and carrying groceries; entering/exiting a vehicle or sitting for more than a couple of minutes to operate it; going up/down stairs or contending with any kind of slope; bending to pick things off the floor. In his reconsideration statement, the Appellant described his physical impairments as follows: • Hepatitis C, liver transplant, sleep disorder, chronic back pain and chronic abdominal pain. • Daily living activities are restricted to the point that he requires significant assistance from others or takes considerably longer than normal to perform. • Limited to walking 1-2 blocks, but only under ideal circumstances on flat, level ground. • Walking any distance outdoors takes him at least 3 times longer than normal; must stop frequently to rest to relieve increasing pain and fatigue. • Could climb between 5 + stairs -but needs a handrail, needs to stop and rest before going on. • All basic mobility tasks take him at least 3 times longer than normal. • Arm strength might allow him to lift within 7-16 kg., but he is restricted to lifting and carrying less than 2kg (5Ibs); generally avoids lifting altogether; limitations due to severe back and abdominal pain along with fatigue from flu-like symptoms associated with hepatitis C. • Sitting 1 to 2 hours causes his back and abdomen to get very sore and he has to lie down to relieve the pain. • Dressing and bathing takes at least 3 times longer than normal circumstances; due to severe pain in his abdomen is unable to sit in a bathtub, so onl stands in the shower, which takes 3 f.MT 003( 10/06/01)
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APPEAL# I -----------------------------------� • Independently manages walking outdoors -takes significantly longer, 1-2 blocks maximum. • All mobility tasks take 3 times longer than normal. Must stop and rest frequently when walking. • Independently manages all areas of personal care, shopping, paying rent and bills, medications, getting in/out of a vehicle. • Independently manages all areas of social functioning; has good functioning with immediate social network and marginal functioning with extended social network -stays mostly at home. • Indicated "N/A" [not applicable] for basic housekeeping and for meals -mother does all the cooking and planning; "N/A" for using transit/transit schedules and arranging transportation. • Lives with his mother; she does all the cooking and housekeeping Help with Daily Living Activities The doctor indicated that the Appellant does not need any prostheses or aids for his impairment and does not have an assistance animal. The doctor wrote that the Appellant lives with his mother; she does all the cooking, planning and housekeeping. In his PWD application and reconsideration statement, the Appellant described the help he gets as follows: • Needs weekly assistance lifting heavy loads of laundry to the washing machine, vacuuming, washing floors and doing any daily household tasks that require bending, lifting or is remotely physical. • Has no motivation for meal planning and cooking; has difficulty standing longer than 10 minutes so would benefit from assistance at least 3 times a week cooking healthy meals and cleaning up afterwards; cannot stand long enough to perform these tasks. • Without his mother's presence he would have even greater difficulty with his daily functioning; fortunate to have his mother to monitor his emotional well-being and help him cope with unexpected demands. At the hearing, the Appellant said he has known the doctor who completed the reports for perhaps 20 to 30 years. He was not present when the doctor completed the PWD application, but he was with the doctor, reviewing the September 8, 2014 statement, when the doctor signed the October 4, 2014 statement. The Appellant also described the same health conditions and impairments as in his PWD application and reconsideration statement. For example, he said that he has to roll out of low chairs to get up or use the arms of an upright chair. The Appellant said he lives in a suite downstairs from his mother. She is elderly, but cooks for him and helps him when she can. The Appellant's advocate submitted arguments on the Appellant's behalf. Those are summarized in Part F of this decision. Pursuant to section 22(4) of the Employment and Assistance Act, the Panel admits the Appellant's hearing testimony as being consistent with and therefore in support of the evidence the Ministry had at reconsideration. The Ministry reaffirmed its reconsideration decision. EAAT 003(10I06/01)
APPEAL# I PART F -Reasons for Panel Decision The issue in this appeal is whether the Ministry's reconsideration decision, concluding that the Appellant was not eligible for PWD designation because he did not meet all the requirements in section 2(2) of the EAPWDA, was reasonably supported by the evidence or was a reasonable application of the applicable enactments in the Appellant's circumstances. Applicable Legislation The criteria for PWD designation are set out in the following sections of the EAPWDA: 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 (BJ 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. The "daily living activities" referred to in EAPWDA section 2(2)(b) are defined in the EAPWDR as: 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. Evidentiary Finding The Appellant's advocate submitted that the statement signed by the doctor on October 4, 2014 was an endorsement of the information in the Appellant's September 18, 2014 statement and therefore should be considered as an additional medical opinion. The advocate said he prepared the September 2014 and October 2014 statements. The statement signed by the doctor states: "I agree that the foregoing statement is an accurate assessment of my patient's overall physical and mental health condition and his current circumstances. After reviewing this information, I can confirm that [the Appellant's] disability conditions will continue to persist, and are severe enough to restrict his daily living activities to the point where he requires significant assistance and supervision from other people, or takes him considerably longer than normal to perform." EAAT 003( 10/06/01)
T h e P a n e l n o t e s t h a t t h e p h y s i c i a n ' s a n d a s s e s s o r d o c t o r w i t h t h e o p p o r t u n i t y t o i d e n t i f y s p e c i f i c h e a l t t h e i m p a c t s o f t h o s e c o n d i t i o n s o n t h e A p p e l l a n t ' s f T h o s e r e p o r t s a r e a l s o d e s i g n e d s o t h a t t h e d o c t o r I n c o n t r a s t , t h e s t a t e m e n t s i g n e d o n O c t o b e r 4 , 2 0 1 a d d i t i o n a l e x p l a n a t i o n s f r o m t h e d o c t o r w h o h a s b e T h e d o c t o r d i d n o t i n d i c a t e w h e t h e r h e c o m p l e t e d a a n d a b i l i t i e s i n O c t o b e r 2 0 1 4 a n d h e d i d n o t e x p l a i n A p p e l l a n t ' s S e p t e m b e r 2 0 1 4 s t a t e m e n t a n d t h e M a S e p t e m b e r 2 0 1 4 s t a t e m e n t a b o u t t h e A p p e l l a n t ' s s r e a s o n s , t h e P a n e l g i v e s l i t t l e w e i g h t t o t h e O c t o b e b u t d o e s c o n s i d e r t h e i n f o r m a t i o n i n t h e S e p t e m b e f r o m t h e A p p e l l a n t . T h e P a n e l w i l l n o w c o n s i d e r t h e r e a s o n a b l e n e s s o f i s s u e i n t h i s a p p e a l . S e v e r e P h y s i c a l I m p a i r m e n t T h e a d v o c a t e s u b m i t t e d t h a t t h e A p p e l l a n t h a s b e e s e v e r e l y i m p a i r h i s m o b i l i t y a n d p h y s i c a l f u n c t i o n i n t o 2 b l o c k s i n i d e a l c i r c u m s t a n c e s a n d t o l i f t i n g a n d a n d f a t i g u e , a l l b a s i c m o b i l i t y t a s k s t a k e h i m a t l e a s a c t i v i t i e s s u c h a s d r e s s i n g a n d b a t h i n g , a n d s t r u g g m a n y t a s k s w h i c h r e q u i r i n g s t a n d i n g , b e n d i n g o r l i ft I n i t s r e c o n s i d e r a t i o n d e c i s i o n , t h e M i n i s t r y i n d i c a t e w e l l a s t h e i n f o r m a t i o n p r o v i d e d b y t h e A p p e l l a n t ' s A p p e l l a n t t a k e s l o n g e r t o m a n a g e a r e a s o f m o b i l i t y t h a t t h e i n f o r m a t i o n p r o v i d e d i s e v i d e n c e o f a s e v e r T h e P a n e l ' s F i n d i n g s T h e 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 s a t i s f y t h e r e q u i r e m e n t s i n s e c t i o n 2 ( 2 ) o f t h e E A P W e x t e n t t o w h i c h a n i m p a i r m e n t r e s t r i c t s d a i l y f u n c t i o w e l l a s f r o m p r e s c r i b e d p r o f e s s i o n a l s , s u c h a s t h e c o m p l e t e d t h e p h y s i c i a n ' s a n d a s s e s s o r ' s r e p o r t s . T h e d o c t o r d i a g n o s e d t h e A p p e l l a n t w i t h H e p a t i t i s C p a i n a n d c h r o n i c a b d o m i n a l p a i n . T h e A p p e l l a n t d e r e s t r i c t i n g h i s m o b i l i t y a n d p h y s i c a l a b i l i t i e s s o t h a t l o n g e r t h a n n o r m a l . F o r e x a m p l e , t h e A p p e l l a n t i n d c i r c u m s t a n c e s , a n d w a l k i n g a n y d i s t a n c e o u t d o o r s n e e d s t o s t o p f r e q u e n t l y t o r e l i e v e i n c r e a s i n g p a i n a b e d t a k e 3 t i m e s l o n g e r t h a n n o r m a l b e c a u s e o f s e p r e v e n t h i m f r o m d o i n g b a s i c h o u s e k e e p i n g t a s k s , E AA T 0 0 3 ( 1 0 / 0 6 / 0 1 )I A P P E A L # ' s p o rt i o n s o f t h e P W D a p p l i c a t i o n p r o v i d e d t h e h c o n d i t i o n s a n d t o m a k e s p e c i f i c a s s e s s m e n t s o f u n c t i o n i n g a b i l i t i e s a n d d a i l y l i v i n g a c t i v i t i e s . . c a n a d d c o m m e n t s , a s i n f a c t h e d i d . 4 i s j u s t t h a t , a p r e p a r e d s t a t e m e n t w i t h o u t a n y e n t h e A p p e l l a n t ' s d o c t o r f o r m o r e t h a n 2 0 y e a r s . n o t h e r a s s e s s m e n t o f t h e A p p e l l a n t ' s c o n d i t i o n s w h y t h e r e a r e s o m e d i f f e r e n c e s b e t w e e n t h e r c h 2 0 1 4 r e p o rt s . M o r e o v e r , t h e i n f o r m a t i o n i n t h e i t u a t i o n w a s n o t p r e p a r e d b y t h e d o c t o r . F o r t h e s e r 4 , 2 0 1 4 s t a t e m e n t a s a n o p i n i o n b y t h a t d o c t o r , r 1 8 , 2 0 1 4 s t a t e m e n t a s a n a d d i t i o n a l s e l f r e p o r t t h e M i n i s t r y ' s d e c i s i o n u n d e r t h e P W D c r i t e r i a a t n d i a g n o s e d w i t h s e v e r a l h e a l t h c o n d i t i o n s w h i c h g . F o r e x a m p l e , h e i s r e s t r i c t e d t o w a l k i n g o n l y 1 c a r r y i n g l e s s t h a n 5 l b s . B e c a u s e o f c h r o n i c p a i n t 3 t i m e s l o n g e r t h a n n o r m a l ; f o r e x a m p l e , l i n g o u t o f c h a i r s a n d b e d . H e a l s o n e e d s h e l p w i t h i n g . d t h a t i t c o n s i d e r e d t h e A p p e l l a n t ' s s e l f r e p o r t s a s d o c t o r . T h e M i n i s t r y a c k n o w l e d g e d t h a t t h e a n d p h y s i c a l a b i l i t y ; h o w e v e r , i t w a s n o t s a t i s f i e d e p h y s i c a l i m p a i r m e n t . n o t i n i t s e l f e s t a b l i s h a s e v e r e i m p a i r m e n t . T o D A , t h e r e m u s t b e e v i d e n c e o f h o w a n d t h e n i n g . T h i s i n c l u d e s e v i d e n c e f r o m t h e A p p e l l a n t a s A p p e l l a n t ' s d o c t o r o f m o r e t h a n 2 0 y e a r s w h o , l i v e r t r a n s p l a n t , s l e e p d i s o r d e r , c h r o n i c b a c k s c r i b e d g e n e r a l l y t h e s a m e c o n d i t i o n s a s a l l b a s i c m o b i l i t y t a s k s t a k e h i m a t l e a s t 3 t i m e s i c a t e d t h a t h e c a n o n l y w a l k 1 -2 b l o c k s i n i d e a l t a k e s h i m a t l e a s t 3 t i m e s l o n g e r t h a n n o r m a l . H e n d f a t i g u e . D r e s s i n g , b a t h i n g a n d g e t t i n g o u t o f v e r e p a i n . H e s u b m i t t e d t h a t h i s i m p a i r m e n t s a l s o l a u n d r y , c o o k i n g r e g u l a r m e a l s a n d s h o p p i n g f o r
,... I APPEAL# ·-. .. . · ----groceries and other items. He stated he can only lift 5 lbs., but generally avoids lifting altogether. In the physician's and assessor's reports, the doctor also reported that the Appellant's physical functioning abilities were limited; for example, walking outdoors 1-2 blocks unaided on a flat surface and lifting is difficult. Like the Appellant, the doctor described all mobility tasks as taking 3 times longer than normal and that the Appellant must stop and rest frequently. However, even with these restrictions, the doctor reported that the Appellant manages all areas of mobility and physical ability independently, including walking indoors/outdoors, climbing stairs, standing, and lifting. The doctor I also reported that the Appellant independently manages daily living activities which require physical I abilities, such as dressing, bathing, going to/from stores and getting in/out of a vehicle. Neither the 1 Appellant nor the doctor indicated that the Appellant uses any assistive aids. As for cooking and housekeeping, the doctor wrote only that the Appellant lives with his mother who does all these. Therefore, when the evidence is considered as a whole, the Panel finds that the Ministry reasonably . determined that the information provided is not evidence of a severe physical impairment. i Severe Mental Impairment · The Appellant's position is that depression, anxiety and lack of motivation affect his ability to get 1 through each day and he is socially isolated. 1 The Ministry's position is that it is not satisfied that the information provided is evidence of a severe mental impairment. ! The Panel's Findings ! Although the Appellant described dealing with depression, lack of motivation, a lot of anxiety, i frustration and stress, the doctor provided no diagnoses of any mental health condition. The : Appellant also stated that he is socially isolated and has difficulty motivating himself to get through ' each day. He has difficulty making decisions, planning ahead, doing the most important thing first and , finishing tasks. The doctor, on the other hand, only noted a significant deficit and major impact to : motivation, and a minimal to moderate impact to emotion (depression etc.). The doctor did add that : the Appellant experiences depression at times and anxiety, doesn't feel like doing anything and gets · tired. However, the doctor reported that the Appellant independently manages daily living activities which require cognitive and emotional functioning, such as taking medications and all areas of social · functioning, with the exception of marginal functioning with extended social networks. Therefore, 1 when all of the evidence of the doctor is considered with that from the Appellant, the Panel finds that i the Ministry reasonably determined that the information does not establish that the Appellant has a 1 severe mental impairment. : Restrictions to Daily Living Activities : The advocate submitted that, as a result of the Appellant's severe impairments, he either requires I 1 significant assistance or takes considerably longer to complete his daily living activities. In addition to : significant restrictions to all areas of mobility, the Appellant needs assistance with such activities as i carrying purchases home, with lifting heavy laundry loads, with cleaning, with cooking and with any ; tasks requiring bending, lifting or which are remotely physical. I The Ministry submitted that, as the majority of daily living activities are performed independently or ! require little help from others, the information from the prescribed professional does not establish that EAA T003(10/06/01)
I APPFAI. # the Appellant's impairment restricts daily living activities either continuously or periodically for extended periods. The Panel's Findings Section 2(2)(b) of the EAPWDA requires a prescribed professional's opinion confirming that the App ellant's severe mental or physical impairment directly and significantly restricts his daily living activities, continuously or periodically for extended periods. Daily living activities are defined in section 2(1) of the EAPWDR and are also listed in the physician's and assessor's reports. The prescribed professional in this case is the Appellant's doctor of more than 20 years. Although, in the assessor's report, the doctor wrote that all areas of mobility and physical ability take 3 times longer than normal the doctor nevertheless reported that the Appellant manages all such activities independently. In addition, the doctor reported that most daily living activities are managed independently, including all areas of personal care, shopping (including carrying/lifting), paying rent/bills, medications, getting in/out of a vehicle and all aspects of social functioning. As for basic housekeeping and meals, the doctor wrote "N/A" and reported that the Appellant's mother does all the cooking and housekeeping, but did not explain why. Therefore, the Panel finds that, based on the physician and assessor reports, the Ministry reasonably determined that the information from the pres cribed professional does not establish that the Appellant's impairments directly and significantly restrict his daily living activities either continuously or periodically for extended periods. Help with Daily Living Activities The advocate submitted that the Appellant requires significant help with daily living activities. His mother provides that, especially with all the cooking and housekeeping, with helping monitoring his emotional demands and with helping getting him motivated. The Ministry's position is that because the evidence does not establish that daily living activities are significantly restricted, it cannot determine that the Appellant requires significant help from other persons. Also, it noted that the information did not establish that the Appellant requires an assistive device or the services of an assistance animal. The Panel's Findings Section 2(2)(b)(ii) of the EAPWDA also requires the opinion of a prescribed professional confirming that, because of direct and significant restrictions in his ability to manage daily living activities, the Appellant requires help with those activities. The doctor indicated that the Appellant does not need any assistive aids for his impairments or in fact any assistance for the majority of daily living activities. The doctor only reported that the Appellant's mother does all the cooking and housekeeping, but with no other explanation. Therefore, the Panel finds that based on the doctor's physician and assessor reports and based on the Ministry's determination that the Appellant's daily living activities are not directly and significantly restricted, the Ministry reasonably concluded that the evidence does not establish that the Appellant satisfied the requirements in section 2(2)(b)(ii) of the EAPWDA. Conclusion Having reviewed all of the evidence and the relevant legislation, the Panel confirms the Ministry's reconsideration decision because it was reasonably supported by the evidence and was a reasonable application of the applicable enactments in the Appellant's circumstances. EAAT 003(10/06/01)
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