APPEAL # PART C – Decision under Appeal The decision under appeal is the Ministry of Social Development and Social Innovation (the “Ministry”) February 3, 2015 reconsideration decision in which the Ministry determined that the Appellant did not meet all of the 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 established 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.
APPEAL # PART E – Summary of Facts For its reconsideration decision, the Ministry had the following evidence: 1. Appellant’s PWD application consisting of: • The Appellant’s self-report dated October 31, 2014. • A physician’s report and an assessor’s report both completed on September 26, 2014 by the Appellant’s doctor who indicated the Appellant has been his patient for more or less 12 years and he has seen the Appellant between 2-10 times in the past 12 months. 2. Appellant’s January 28, 2015 reconsideration request in which he submitted several arguments supporting his application and also provided information about his medical conditions. At the hearing, the Appellant said that his doctor really doesn’t know or understand all of his medical conditions. The Appellant said that he was not present to answer questions or give more information when the doctor completed the PWD application forms. The Appellant described his medical conditions and how they impact him every day, which according to the Appellant were not reflected in the doctor’s reports. Pursuant to section 22(4) of the Employment and Assistance Act, the Panel admits the Appellant’s testimony as being consistent with and tending to corroborate the evidence the Ministry had at reconsideration. The Panel has summarized the relevant evidence from the Appellant at the hearing and in the Ministry’s record under the PWD criteria at issue below. At the hearing, the Ministry explained that it made its reconsideration decision based on the information, especially the doctor’s reports, that it had at the time it made that decision. The Ministry reaffirmed the reconsideration decision. Diagnoses The Appellant’s doctor diagnosed the Appellant with abdomen, stoma, hypertension and arthritis. The doctor added “chronic pain - arthritis, abdomen (multiple surgeries, adhesions)”. The doctor did not diagnose any mental health conditions. Physical Impairment In his hearing testimony, his request for reconsideration and in his PWD self-report, the Appellant described his disability as follows: • Has constant pain in his neck, elbows, knees, hips, hands and wrists due to arthritis; has severe pain in his stomach; has a binder on his stomach. • His doctor failed to address his kidney failure and how he spent 3 ½ months in hospital. • His doctor failed to address how his digestive system doesn’t work, food and dietary needs need to be monitored constantly; had surgeries to have intestines partially removed. • Must take water pills because his ankles and arms swell up; leg balloons up so much that he cannot even walk; was hospitalized to relieve the swelling with injections. • Can barely walk 2 blocks; might have to start using a cane; is taking pain killers. • Arthritis is getting worse so that he has trouble holding things; has dropped dishes; joints are more swollen; granddaughter helps by doing most of the cooking. • Stomach cramps are getting worse; legs and thighs also cramp up. • Unable to lift and carry things like laundry; granddaughter’s boyfriend helps carry groceries
APPEAL # home; home support services does laundry. The Appellant’s doctor reported that the Appellant: • Can walk 2-4 blocks unaided on a flat surface; can climb 2-5 steps unaided; can lift 5-15lbs.; and can remain seated 1-2 hours. • Independently manages walking indoors and outdoors, and climbing stairs, but all take significantly longer – “chronic pain”. • Independently manages and needs periodic assistance with lifting, with carrying and holding. Mental Impairment The Appellant stated that he struggles to leave the house. He experiences anxiety, stress and depression from chronic pain. The Appellant’s doctor reported that the Appellant: • Has no difficulties with communication. • Has significant deficits with emotion in areas of cognitive and emotional functioning - depressed due to disease and chronic pain. • Experiences the following impacts to his cognitive and emotional functioning: moderate impact to bodily functions and to emotion; minimal impact to consciousness, attention/concentration, executive, memory and motivation. • Has no impacts to 7 other areas of cognitive and emotional functioning. • Has “mild anxiety; marked major depression (intensity flexible)”. Daily Living Activities The doctor reported that the Appellant has not been prescribed any medications and/or treatments that interfere with his ability to perform daily living activities. As for the ability to manage those activities, the doctor reported that the Appellant: • Independently manages all areas of personal care, but transfers in/out of bed and chairs take significantly longer. • Needs continuous assistance with laundry and basic housekeeping. • Independently manages all areas of shopping, but needs continuous assistance with carrying purchases home depending on weight. • “above due to chronic pain, arthritis, abdominal pain”. • Independently manages all aspects of meals, paying rent and bills, managing medications and transportation. • Independently manages all aspects of social functioning; has good functioning in his immediate and extended networks. Help with Daily Living Activities The doctor reported that the Appellant receives assistance from family, friends and home care. In the physician’s report, the doctor indicated that the Appellant requires a prostheses or aid for his impairment and added – “Stoma”. The doctor did not complete the section in the assessor’s report regarding assistive devices, but did indicate that the Appellant did not have an assistance animal.
APPEAL # PART F – Reasons for Panel Decision The issue in this appeal is whether the Ministry’s reconsideration decision, which determined 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 enactment in the Appellant’s circumstances Applicable Legislation The following sections of the EAPWDA apply to the Appellant’s circumstances in this appeal: 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. (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. The Panel will consider the parties’ positions under each PWD criterion at issue in this appeal. Severe Physical Impairment The Appellant’s position is that he has several very serious medical conditions which significantly impact his ability to function. He submitted that he experiences constant chronic joint and abdominal pain affecting his ability to move, to hold things and to carry things. He relies on pain medications. In its reconsideration decision, the Ministry wrote that it took into consideration the detailed information from the Appellant as well as the information from the Appellant’s doctor. The Ministry acknowledged that the Appellant has physical limitations; however, based on all of the information from the doctor, the Ministry determined that it did not have enough information to confirm that the Appellant has a severe physical impairment.
APPEAL # The Panel’s Findings The diagnosis of a serious medical condition or a medical professional’s statement that a condition or an impairment is severe does not in itself establish a severe impairment for the purposes of satisfying the criteria for PWD designation. To meet the requirements in section 2(2) of the EAPWDA, there must be evidence of how and the extent to which an impairment directly restricts daily functioning and the ability to manage the daily living activities defined in section 2(2)(b) of the EAPWDR. Such evidence includes information from the Appellant as well as from medical or prescribed professionals. The Appellant described how his arthritis is getting worse, how he has constant chronic pain in his neck, elbows, knees, hips, hands and wrists. He also has chronic severe pain in his stomach and experiences swelling in his legs and hands. All of his medical conditions affect his ability to hold things, to lift and carry things, to walk and to get up and around. According to the Appellant, these conditions are so severe that he now needs help with daily tasks. The Panel acknowledges that the Appellant described serious medical conditions which restrict his ability to manage daily activities. However, the Appellant’s descriptions of the extent of his impairments was not confirmed by his doctor. The doctor did write that the Appellant experiences severe, chronic daily pain in his joints and abdomen, but the doctor also reported that, although some activities take significantly longer, the Appellant still independently manages most physical activities. (e.g., walking indoors and outdoors, climbing stairs, standing, all areas of personal care and meals, and all areas of transportation). Therefore, when all of the information is considered, the Panel finds that the Ministry reasonably determined that there was not enough information from the doctor to confirm that the Appellant has a severe physical impairment. Severe Mental Impairment The Appellant’s position is that the doctor reported 5 out of 14 minimal impacts to areas of cognitive and emotional functioning, and 2 out of 14 moderate impacts; that is, impacts to half of the areas listed in the assessor’s report. The Appellant stated that he struggles to leave the house. He experiences anxiety, stress and depression from the constant chronic pain. The Ministry’s position is that when it reviewed all of the information provided, it did not have enough information to confirm that the Appellant has a severe mental impairment. The Panel’s Findings The Appellant stated that he experiences anxiety, stress and depression from the constant pain. His doctor also reported that the Appellant experiences moderate to minimal impacts to some areas of cognitive and emotional functioning. The doctor indicated that the Appellant experiences mild anxiety and marked major depression (intensity flexible) from his medical conditions and chronic pain. However, the doctor did not provide a diagnosis of any mental health condition and did not report any restrictions to any daily living activities which require cognitive and emotional functioning abilities, such as managing medications and finances, or any areas of social functioning. Therefore, the Panel finds that the Ministry reasonably concluded that there was not enough information to confirm that the Appellant has a severe mental impairment. Restrictions to Daily Living Activities The Appellant’s position is that, in the assessor’s report, his doctor indicated that it takes him
APPEAL # significantly longer or needs help with 5 out of 6 areas of mobility and physical ability. The Appellant also submitted that his doctor reported that he needs continuous support in 3 daily living activities and takes significantly longer with others. The Appellant noted that his doctor clearly stated that chronic pain affects his daily living activities. Also, the Appellant argued that the doctor’s report was gathered from a medical chart and not through a detailed interview. The Ministry stated that it relies on the medical opinion and assessments from the Appellant’s doctor to determine whether the Appellant has met this criterion. Based on the doctor’s reports, the Ministry found that there was not enough evidence to establish that the Appellant’s impairment directly and significantly restricts daily living activities continuously or periodically for extended periods. The Panel’s Findings To qualify for PWD designation, the Appellant must provide a prescribed professional’s opinion confirming that his severe physical or mental impairment directly and significantly restricts his daily living activities, continuously or periodically for extended periods. It is not enough, however, for the prescribed professional to merely report that such activities are restricted. The prescribed professional must assess and describe the degree of restriction and the extent of assistance needed to manage the daily living activities defined in section 2(1) of the EAPWDR. The physician’s and assessor’s reports specifically address these legislated requirements. In this case, the Appellant’s doctor is the prescribed professional. The doctor reported that the Appellant needs continuous assistance with only 3 of the daily living activities listed in the assessor’s report; that is, laundry, basic housekeeping and carrying purchases home depending on the weight. Some activities take significantly longer, such as dressing, bathing, and transferring in/out of bed and chairs. On the whole however, the doctor reported that the Appellant independently manages most daily living activities. Therefore, based on the doctor’s reports, the Panel finds that the Ministry reasonably concluded that there was not enough evidence to establish that the Appellant’s impairment directly and significantly restricts daily living activities continuously or periodically for extended periods. Need for Help with Daily Living Activities The Appellant’s position is that because of his severe impairments he needs ongoing help with daily living activities. His granddaughter, her boyfriend and home care provide some of that help. 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 or an assistive device. 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 needs help with those activities. The doctor’s report only indicated that family, friends and home care provide help, but the doctor did not describe what kind of help they provide or how often. The doctor also did not indicate that the Appellant needs assistive aids, except for Stoma. Therefore, based on the doctor’s evidence and based on the Ministry’s determination that the Appellant’s daily living activities are not directly and significantly restricted, the Panel finds that the Ministry reasonably
APPEAL # concluded that the requirements in section 2(2)(b)(ii) of the EAPWDA were not satisfied. Conclusion Having reviewed all of the evidence and the relevant legislation, the Panel finds that the Ministry’s reconsideration decision was reasonably supported by the evidence and was a reasonable application of the applicable enactments in the Appellant’s circumstances. Therefore the Panel confirms that decision.
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