APPEAL # PART C – Decision under Appeal The Ministry of Social Development and Social Innovation (the ministry) reconsideration decision dated 9 March 2015 determined 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 her impairment was likely to continue for at least 2 years. However, the ministry was not satisfied that • the appellant had a severe mental or physical impairment and • that the appellant’s mental or physical impairment, in the opinion of a prescribed professional, directly and significantly restricted her daily living activities (DLA) either continuously or periodically for extended periods and • that as a result of those restrictions, in the opinion of a prescribed professional, the appellant required help to perform DLA. PART D – Relevant Legislation Employment and Assistance for Persons with Disabilities Act (EAPWDA), section 2 Employment and Assistance for Persons with Disabilities Regulation (EAPWDR), section 2
APPEAL # PART E – Summary of Facts The hearing was set as a teleconference and the appellant was not in attendance. After confirming that the appellant was notified of the day, time, phone number and conference identification, the hearing proceeded under s. 86(b) of the Employment and Assistance Regulation. Approximately ½ hour after the hearing time and after it had been concluded, the appellant called into the teleconference and requested an adjournment. The appellant did not understand the teleconference instructions and thought the tribunal would initiate the call. Given that the hearing had already been concluded and the other party, the ministry, was no longer in attendance, the panel denied the request for an adjournment. The following evidence was before the ministry at the time of reconsideration: • A 3 page PWD Application – Applicant Information dated 7 October 2014, signed by the appellant and a witness indicating that she contracted hepatitis C virus in the mid-eighties as a result of tainted blood transfusion. She has been sick since then but found out only in 2001 what exactly her ailment was. She indicated she was extremely exhausted all the time; she found it almost impossible to do simple tasks i.e. groceries, cleaning, walking and carrying heavy bags; simple activities like cooking, showering, making coffee seem to take her forever; she was afraid of making plans with friends for fear of having to cancel and lost many friends; she was depressed most of the time, all that because of tainted blood transfusion. • A 8 page Physician Report (PR) dated 7 October 2014 completed and signed by the appellant’s physician indicated the following: o Specific diagnosis: Hepatitis C (onset 1985) and depression (onset 2008). o Health history: The appellant had chronic active hepatitis C for approximately 30 years and liver biopsy showed grade 3 inflammation and stage 2-3 fibrosis. She had 2 full treatment sessions each for a year and was chronically fatigued, tired with very little exertion, poor attention span and memory with no sustained focus. o No medication or treatments (they had ended) interfere with the appellant’s ability to perform daily activities. o The appellant did not require any prostheses or aids for her impairment. o The impairment was likely to continue for 2 years or more from that date and the physician explained that the appellant had reported chronic fatigue, poor energy since 1980’s / 90’s when she was given a diagnosis of chronic fatigue syndrome but in retrospect it was likely due to chronic active hepatitis C. o In terms of functional skills, the physician indicated that the appellant could walk 2 to 4 blocks unaided, she could climb 2 to 5 steps unaided, she was limited to lifting no more than 7 kg, she could remain seated 2 to 3 hours and had no difficulties with communication. o In terms of significant deficits with cognitive and emotional functions, the physician identified 5 areas: executive, memory, emotional disturbance, motivation and attention or sustained concentration and commented: poor memory, periodic depression, “scattered and in a mental fog” all the time. o In terms of DLA, the physician indicated that her impairment directly restricted her ability to perform DLA and identified 3 activities that were restricted periodically: meal preparation, basic housework and daily shopping. The 7 other activities (personal self care, management of medications, mobility inside and outside the home, use of transportation, management of finances and social functioning) were not restricted. The physician
APPEAL # explained what he meant by periodic: “Patient reports being periodically too tired to cook & shop, friends help her with windows, she does heavier housework slowly and in small increments”. With respect to social functioning, the PR does not indicate whether it is restricted and the physician left blank the section explaining impact on social functioning. In terms of assistance needed, he indicated that she reported needing help with heavy grocery bags, laundry and yard cleaning. o In terms of general additional comments, the physician mentioned multi decade chronic fatigue and poor exercise tolerance with reduced ability to concentrate and plan. She was still in recovery from her last treatment and was unlikely to improve to any significant degree. o The appellant had been his patient for over 2 years and had seen him 2 to 10 times during the previous 12 months. • An 11 page Assessor Report (AR) dated 22 October 2004 (certainly a typo for 2014), completed and signed by a registered hepatology nurse indicated the following: o The appellant lived alone. o The appellant struggled with brain fog and depression post treatment for hepatitis C and her ability to comprehend and follow through with basic tasks were extremely limited, leading to increased frustration. o The appellant’s speaking and hearing abilities were satisfactory while her abilities to read and write were poor as a result of a lack of concentration and limited job skills. o In terms of mobility and physical ability, she was independent walking indoors but needed periodic assistance from another person for walking outdoors (comment: due to stability and increased fatigue levels), climbing stairs (comment: climbs slowly requiring many rest periods), standing (comment: short periods only) and carrying and holding (comment: unable to carry and hold heavy or large objects); she used an assistive device for lifting (comment: requires use of a buggy and uses a walking stick). Additional comments: Over the years, her illness has taken a “huge physical toll” on her ability to do many basic daily activities. o In terms of cognitive and emotional functioning, her mental impairment impacted her daily functioning as follows: major impact for attention/concentration and motivation (comment: due to fatigue and depression); moderate impact for bodily functions (comment: chronic sleep disturbance – fatigue), emotion (depression), executive, memory and other neurological problems (comment: dyslexic); minimal impact on language and no impact on impulse control, insight & judgment, motor activity and psychotic symptoms. The assessor commented that the appellant found it difficult to deal with stressful and emotional issues, leading to tearful episodes and frustration. She was isolated and withdrew from conversation and confrontation. o In terms of DLA, she is described as “independent” for the vast majority but takes significantly longer than typical for feeding herself and regulate diet (comment: cooking difficult – food has less appeal & digestive issues reduce food intake), food preparation (no explanation), cooking (no explanation) and budgeting (no explanation). She needed periodic assistance from another person for basic housekeeping (no explanation), going to
APPEAL # and from stores (no explanation) and carrying purchases home (no explanation). The assessor noted that she was independent for paying rent and bills, commenting that she struggled with constant lack of funds. The assessor did not provide any additional comment as to the type and amount of assistance required or identify any safety issues. o For social functioning, the assessor indicated she was independent other than requiring periodic support/supervision for ability to develop and maintain relationships (comment: avoids relationships due to fatigue, brain fog & depression) and for ability to deal appropriately with unexpected demands (comment: unexpected demands places anxiety at a high level leading to inability to cope). o Her functioning is marginal in terms of her immediate and extended social networks. o The assessor did not indicate what support/supervision was required that would help maintaining the appellant in the community and did not identify any safety issue. o Her family and friends provided the help she required for her DLA. o In terms of assistive devices, the nurse indicated that the appellant used a cane to compensate for her impairment. o She had no assistance animal. o The nurse commented that the appellant’s chronic hepatitis C exacerbated other co-morbid conditions affecting her immune system and damaging other systems and treatment can slow the progression of the disease but it also leaves the patient quite debilitated, which is the case for the appellant. o The sources of information used by the assessor were: Office interview with the appellant; Long history of following while she was on treatment; The appellant’s physician, a hepatitis physician and general practitioner. o She had known the appellant for approximately 3 ½ years and saw her 11 or more times during the previous year. o The assessor’s organization offers emotional, physical and medical care for pre, on and post-treatment and follow up care for ongoing liver disease. • A 4-page document from the appellant’s clinic for observations made on 9 November 2010 with a handwritten mention “first treatment stuff” indicated the results of a number of tests done on the appellant. • A 2-page ultrasound report dated 18 November 2011 requested because of the appellant’s hepatitis C condition and showed “uncomplicated gallstone”. • A 2-page pathology report dated 16 August 2012 by a medical doctor confirmed the chronic hepatitis diagnosis, consistent with HCV infection and that the results of the analysis were consistent with chronic viral hepatitis C. • A 4-page document from the nurse who completed the AR describing the procedure of the treatment for the appellant in 2013 and the side effects of therapy. • A letter from a friend dated 2 October 2014 stating he had known the appellant for a long time and noticed in the past 5 or 6 years that her condition has deteriorated, she was more tired, slower, depressed and could not seem to focus. He visited the appellant at least once a month to check on her and do some chores that she found too hard or exhausting for her and also to go shopping for groceries. • In her request for reconsideration dated 2 March 2015, the appellant indicated she had not done some of her house chores for 3 years, and that a family member was doing those chores. She indicated she took about 3 to 4 days doing her dishes and laundry as she could not stand for more
APPEAL # than 1 hour. She was getting worse physically and mentally, was unable to walk and having to use a cane or walking stick 75% of the time when outside her home. She was insecure in public and has lost memory and had difficulties comprehending what she read. She has lost her friends and rarely gets phone calls and she felt her body was “crumbling” and was taking her mind with it. She explained that she might not have told everything to her physician who is a man since she felt it easier to explain her situation to a woman (the nurse for the AR), that probably explaining the differences between the PR and the AR. • With her request for reconsideration, the appellant added a 1-page pathological report from 12 March 1986 for a medical condition that was treated by surgery and that she indicated was the source of the blood transfusion that caused hepatitis C. In her Notice of Appeal, dated 18 March 2015 and signed by the appellant, she indicated that she felt she might not understand what the ministry wants from her or that she might not have been heard, having been ill for a long time and having lost friends and family, remaining house bound. No new evidence was presented at the hearing.
APPEAL # PART F – Reasons for Panel Decision The issue under appeal is whether the ministry’s determination that the appellant has not met all of the eligibility criteria for designation as a PWD because it was not satisfied that • the appellant had a severe mental or physical impairment and • that the appellant’s mental or physical impairment, in the opinion of a prescribed professional, directly and significantly restricted her DLA either continuously or periodically for extended periods and • that as a result of those restrictions, in the opinion of a prescribed professional, the appellant required help to perform DLA was either a reasonable application of the legislation or reasonably supported by the evidence. The ministry determined that the age requirement and that her impairment was likely to continue for at least 2 years had been met. The criteria for being designated as a person with disabilities are set out in s. 2 of the EAPWDA and s. 2 of the EAPWDR. Section 2 of the EAPWDA states: 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; "health professional" repealed "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 of the EAPWDR provides further clarification: 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;
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. (2) For the purposes of the Act, "prescribed professional" means a person who is (a) authorized under an enactment to practise 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 (viii) nurse practitioner, or (b) acting in the course of the person’s employment as a school psychologist by (i) an authority, as that term is defined in section 1 (1) of the Independent School Act, or (ii) a board or a francophone education authority, as those terms are defined in section 1 (1) of the School Act, if qualifications in psychology are a condition of such employment. The ministry acknowledged that the appellant meets 2 of the conditions for PWD designation in that she is at least 18 years of age and that her impairment is likely to continue for at least 2 years. However, the ministry argued that she did not meet the other 3 criteria. The physician and the assessor reports: The appellant mentioned that there might be some differences between the PR and the AR since her physician is a man and the assessor is a woman and because of her past experiences, she felt more comfortable explaining and detailing her condition to a woman rather than to a man, urging the panel to focus on the AR. The panel noted that there were indeed some differences between the reports and that the nurse who completed the AR had spent more time with the appellant throughout the years of treatment she had undergone. The panel acknowledge that the AR provides more details, is credible and accepts that information where there is an inconsistency with the PR in terms of communication or more information in terms of social functioning. Severe physical impairment: The ministry argued that the evidence was not sufficient to establish a severe physical impairment since the PR described a moderate impairment since the appellant could walk unaided 2 – 4 blocks,
APPEAL # climb 2 – 5 stairs, lift up to 7 kg and remain seated for 2 – 3 hours. While there are some indications that the appellant needed assistance for lifting and used assistive devices (cane & buggy), there was no information as to how often she required assistance. The appellant argued that her health condition has deteriorated for some time and that she is unable to walk well, being unbalanced and having to use a cane or walking stick for 75% of the time when outside. She argued that her body is crumbling and she is basically housebound. She stated there were only 3 small steps in her house but she had to pull herself up on the railing. She indicated she was exhausted all the time and found it impossible to do simple chores. Panel findings: The panel recognizes that the appellant suffers from a serious illness mainly caused by tainted blood transfusion decades ago and that her condition has deteriorated and is not likely to improve. The evidence shows that her treatments can last 1 year and cause serious side effects and while the physician indicated that treatments have ended, it is not clear whether side effects were still causing some of the problems suffered by the appellant as the physician also indicated that she was in “recovery” from her last treatments; the panel assesses the evidence as a whole, whether the impairment is caused by the side effects or by the illness itself. The physician described some physical limitations as a result of the appellant’s condition because she reported being periodically too tired to cook and shop but she could accomplish some heavy housework “slowly and in small increments” without specifying how slowly that could be done. He stated the appellant told him she needed help with heavy grocery bags, laundry and yard cleaning. The panel notes that the physician is careful to mention this information came from the appellant. This is confirmed to a great extent by the AR that provides more information: she needed periodic assistance for walking outdoors, climbing stairs, standing and carrying & holding and required an assistive device for lifting, specifying that she used a buggy and a walking stick. Yet, there is no information as to what assistance and how often it is required and the appellant’s evidence is that she could manage most of the time but was fortunate to have some friends and family coming once in a while to help her with cleaning her house, the yard and some errands, like grocery shopping – which is confirmed by a friend’s letter. The panel concludes that the ministry reasonably determined the evidence was consistent with moderate physical impairment but fell short of providing enough information to establish a severe physical impairment. Severe mental impairment: While the ministry recognized the appellant had limitations in terms of mental functioning it argued that there are inconsistencies between the PR and the AR in terms of communication and while the AR indicated more impacts than the PR, the whole evidence falls short of demonstrating a severe mental impairment and is consistent with moderate mental impairment. The appellant argued that her illness causes her to be depressed and, as a result, unsure and insecure around other people. She stated she could lose words in the middle of a sentence and her
APPEAL # memory is basically gone and she had difficulties understanding what she read. She lost her friends because she could not go with them, having to cancel as a result of her illness and got very isolated. Panel findings: The panel notes that the appellant had still at least one friend who wrote a letter on her behalf and traveled a long distance to check on her and provide some assistance approximately once a month. There is no doubt that her illness has resulted in a depression and that the appellant suffers some impacts from her mental impairment, for instance, according to the physician, in the areas of executive, memory, emotional disturbance, motivation and attention or sustained concentration. This was confirmed by the AR that assessed the impact as “major” for motivation and attention, however moderate for executive, memory and emotional disturbance, plus 2 more areas: bodily functions (fatigue) and dyslexia. The panel accepts the nurse’s assessment in the AR and notes that the vast majority of the impairments, except for 2 that are major, are moderate, minimal or non-existent. Both reports mentioned mental fog and depression. In terms of social functioning (including interaction, relations and communications with others) that is a DLA specific to mental impairment under s. 2(1)(b)(ii) of the EAPWDR, the physician did not indicate whether there was an impact and provided no explanation for not completing this section. The panel notes that the questionnaire indicated that this category only applied “for persons with an identified mental impairment or brain injury”. Yet, the AR indicated some impact (periodic support/supervision) on her ability to develop and maintain relationships and to deal appropriately with unexpected demands; however, there is no explanation as to what is meant by “periodic” nor is there any information about what support/supervision would be required. Further, there was an indication in the AR that the appellant was assessed as “marginal functioning” for immediate and extended social networks without further information. The evidence indicates that the appellant maintains a supportive family relationship with her sister who visits on a monthly basis to help with chores, and she independently manages the social relationships necessary for her to conduct DLA in the community, such as shopping, managing her medications and managing her finances. The panel finds the ministry reasonably determined those impairments were consistent with a moderate mental impairment and the information provided did not establish a severe mental impairment. Daily living activities: The ministry argued that while some DLA were impacted by the appellant’s illnesses, there is no information as to how often she is restricted and there is no information as to how often she needed assistance. Further, while it takes longer for the appellant to do her meals and budgeting, there is no information as to how much longer it takes her to perform those activities. The ministry also argued that the appellant was independent on most of those activities and that there was not enough evidence to confirm that her impairment significantly restricted her ability to perform DLA continuously or periodically for extended periods. The appellant argued that she has been ill for so much time that she is unable to do her DLA and that if she could have help every day or at least once a week, her life would be much better. She has
APPEAL # family and friends helping her with some tough chores once a month, like cleaning windows and floors, vacuum cleaning as well as yard maintenance. She argued it took her 3 to 4 days to do her dishes and laundry and she could not stand for more than 1 hour at a time. She stated it took her a whole afternoon, once a week, to go and get groceries and pay her bills and she usually comes back very exhausted. Panel findings: It is important to note that the legislation states the opinion of a prescribed professional is key when assessing the ability to perform DLA. In the PR, there are periodic impacts on meal preparation, basic housekeeping and daily shopping but she is said to have reported she still did heavier housework slowly and in small increments, getting help with heavy grocery bags, laundry and yard cleaning. The AR indicated that the appellant was independent for most of her DLA and where there were any restrictions, she required periodic assistance from another person or took significantly longer. However, the panel notes that there is no indication of what “periodic” means nor is there any indication of how much longer it takes, despite areas in the questionnaire dedicated to those issues that the assessor left blank. In terms of budgeting, there is no indication as to why it took longer or how much longer it took her but the panel notes that the comment after “Pay rent and bills” to the effect that she struggles with constant lack of funds would be the reason why she has this type of difficulty, which is not related to a physical or mental impairment. The panel finds the ministry reasonably determined the information was not sufficient to establish that the appellant’s impairment significantly restricted her ability to perform her DLA continuously or periodically for extended periods and that the ministry reasonably determined the appellant had not met that legislative requirement. As a result of those restrictions, help required to perform DLA: The ministry argued that since DLA are not significantly restricted, it cannot be determined that significant help is required from other persons and that no assistive device is required. The appellant argued that she needed help to improve her life and that she needed family members and friends to do some of her chores. Panel findings: Given the evidence as described above, the panel finds that while there is evidence the appellant could benefit from the assistance of others, particularly for heavy housework and carrying grocery bags, such assistance would make her life easier but is not required to perform her DLA and finds the ministry reasonably determined the appellant did not meet the legislative test for the need for help arising from significant restrictions to perform DLA either continuously or periodically for extended periods. Conclusion: The panel acknowledges the appellant’s difficulties caused by a tainted blood transfusion, and that it
APPEAL # does have an impact on her daily functioning. However, based on the above analysis and evidence, the panel comes to the conclusion that the ministry reasonably determined that the appellant does not have a severe physical or mental impairment and that a prescribed professional did not establish that an impairment directly and significantly restricted her ability to perform DLA either continuously or periodically for extended periods and that, as a result of those restrictions she requires help to perform those activities under s. 2(2) of the EAPWDA. Consequently, the panel finds the ministry’s decision was reasonably supported by the evidence and is a reasonable application of the applicable enactment in the circumstances of the appellant and confirms the decision.
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