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PART C – Decision under Appeal
The decision under appeal is the reconsideration decision of the Ministry of Social Development and
Social Innovation (the ministry) dated 08 June 2015 denying the appellant designation as a person
with disabilities (PWD). The ministry determined that the appellant did not meet all of the required
criteria for PWD designation set out in the Employment and Assistance for Persons with Disabilities
Act
, section 2. Specifically, the ministry determined that the information provided did not establish that
the appellant has a severe mental or physical impairment that in the opinion of a prescribed
professional
(i) directly and significantly restricts her ability to perform daily living activities (DLA) either
continuously or periodically for extended periods; and,
(ii) as a result of those restrictions, she requires help to perform those activities.
The ministry determined that the appellant satisfied the other 2 criteria: she has reached 18 years of
age and her impairment in the opinion of a medical practitioner is likely to continue for at least 2
years.
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
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PART E – Summary of Facts
At the request of the appellant and with the consent of the ministry, the hearing, originally scheduled
for 06 July 2015, was adjourned awaiting additional information in support of the appellant’s appeal.
The evidence before the ministry at reconsideration consisted of the following:
1.
The appellant’s PWD Designation Application dated 26 January 2015. The Application
contained:
• A Physician Report (PR) dated 13 February 2015, completed by the appellant’s general
practitioner (GP) who has known the appellant for 1 year and has seen her 2 – 10 times in
the past 12 months.
• An Assessor Report (AR) dated 13 February 2015, completed by the same GP.
• A Self Report (SR) completed by the appellant.
2. The appellant’s Request for Reconsideration, dated 11 May 2015, to which was attached
numerous letters of support and medical reports (see below).
In the PR, the GP lists the following diagnoses related to the appellant’s impairment: anxiety
disorder/stress++ (onset about 2010); brain tumor, lymphoma (onset November 2000), and asthma.
The GP reports that the appellant’s impairment will likely continue for 2 years or more.
The panel will first summarize the evidence from the PR and AR relating to the appellant’s
impairments as it relates to the PWD criteria at issue.
Severity/health history
Physical impairment
PR:
Under health history, the GP writes:
“[The appellant] had brain tumor in 2000 and was operated. Since last year her headaches
are getting worse, especially at work. Progressively worse and now feels unable to work
because of headaches & dizziness and being forgetful.
“[She] also advises of having arthritis. [She] advises of having lots of pain, especially in her
joints and hands.”
Under additional comments, the GP writes:
“[The appellant] has a history of non-Hodgkin’s lymphoma in 2000, which was operated.
Lately [she] has developed symptoms related to her previous lymphoma. [illegible] Severe
headaches, dizziness, forgetfulness. Feels same like when she had the [non-Hodgkin’s
lymphoma]. [She] is unable to continue work because of her symptoms, as she is unable to
concentrate and focus and becomes dizzy.”
The GP indicates that the appellant’s height and weight are relevant to her impairment: 165 cm and
170 lbs.
The GP indicates that the appellant has not been prescribed medication and/or treatments that
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interfere with her ability to perform DLA and that she does not require any prostheses or aids for her
impairment.
As to functional skills, the GP reports that the appellant can walk 4+ blocks unaided, climb 5+ steps
unaided, is limited to lifting 5-15 lbs. and has no limitations remaining seated.
Mental impairment
PR:
The GP indicates that the appellant has no difficulties with communication.
The GP indicates that the appellant has significant deficits with cognitive and/or emotional function in
the areas of executive, memory, emotional disturbance, motivation, and attention or sustained
concentration.
AR:
The GP assesses the appellant’s ability as good for speaking and as satisfactory for reading, writing
and hearing.
With regard to cognitive and emotional functioning, the GP assesses the appellant's mental
impairment as having the following impacts in the listed areas of daily functioning:
•
Major impact: emotion, attention/concentration, memory.
•
Moderate impact: motivation, other emotional or mental problems
•
Minimal impact; impulse control, executive, and motor activity.
•
No impact: bodily functions, consciousness, insight and judgment, language, psychotic
symptoms, other neuropsychological problems.
The GP comments; “[The appellant] has a progressive decline in her functioning, because of her
brain tumor history.”
Under additional comments, the GP writes:
“Patient was sent home from work many a time because of headache & dizziness. Also
because of forgetfulness. She could not focus and could not remember the new job
description. Her pain symptoms were also getting worse @ work and was unable to walk
back home.”
Ability to perform DLA
AR:
The GP reports that the appellant lives alone.
Regarding mobility and physical ability, the GP assesses assistance required as follows:
•
Walking indoors and climbing stairs – independent.
•
Walking outdoors, standing, lifting, carrying and holding – periodic assistance from another
person.
The GP assesses the assistance required for managing DLA as follows:
•
Personal care – independent in all aspects.
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•
Basic housekeeping – independent in all aspects.
•
Shopping – independent for going to and from stores, reading prices and labels, making
appropriate choices, and paying for purchases; periodic assistance from another person
required for carrying purchases home.
•
Meals – independent for meal planning, cooking and safe storage of food; periodic assistance
from another person required for food preparation.
•
Pay rent and bills – independent in all aspects.
•
Medications – independent for taking as directed; periodic assistance from another person
required for the filling/refilling prescriptions and safe handling and storage.
•
Transportation – independent for getting in and out of vehicle; using public transit and using
transit schedules and arranging transportation: the GP comments: “never uses public transit
and unable to cope.”
With respect to social functioning the GP assesses the appellant as independent for making
appropriate social decisions, developing and maintaining relationships, and securing assistance from
others; he assesses the appellant as requiring periodic support/supervision for interacting
appropriately with others and dealing appropriately with unexpected demands.
The GP describes the impact of the appellant's mental impairment on her immediate and extended
social networks as marginal functioning.
Help provided/required
PR:
The GP indicates that the appellant does not require any prostheses or aids for her impairment
AR:
With respect to social functioning, the GP describes the support/supervision required as “no need for
help to maintain her in the community.”
Self report
The appellant writes:
“I had brain tumor in 2000. I am now experiencing similar symptoms as I had at that time. I
suffer from dizziness and severe headaches. I also suffer from anxiety and depression and
arthritis in my arms and legs. I have general body pain and fatigue. I am unable to work.”
Request for Reconsideration
Attached to the Request for Reconsideration are the following reports/letters:
Letters in support of the appellant’s PWD application:
•
A letter dated 07 May 2015 from a case manager [credentials unspecified] of a brain injury
support organization. The case manager writes that the appellant has received an intake and
become a client of the organization based on her brain injury sustained from the presence and
removal of a CNS lymphoma tumor and chemotherapy treatment in March 2000. The case
manager goes on to write:
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“From a brain injury case management perspective, it is clear that the appellant is dealing
with multiple brain injury symptoms. She experiences energy crashes, sleep problems,
headaches, chronic pain, changes in speech, problems with balance and coordination,
weakness in the arms and legs, numbness and tingling in hands. Her cognitive abilities are
compromised as well, which include difficulties focusing, memory problems, slowed
thinking, flooding, and challenges with the executive function which include organizing,
planning, reasoning, decision-making, problem-solving and multitasking…. She also deals
with a reduced self-awareness, emotional fluctuations, depression, anxiety, stress,
changes in social skills and reduced ability to work. This has been clearly shown in the
past year when she worked at eight jobs but could not follow through after each attempt
finally moving on from the job…. These are all indications that her brain injury symptoms
are very real and prevent her from employment.”
•
A letter 12 May 2015 from a nurse practitioner (NP) who writes that she has assumed provision of
the appellant's primary medical care following the dissolution of the therapeutic relationship
between the appellant and her GP. The NP writes:
“…it is my impression that [the appellant] suffers from symptoms of an acquired brain
injury, likely as a result of her previous brain cancer. In our interactions, during the
acquisition of a full history, it became clear that [the appellant] has lapses in both her short
and long-term memory. Her case manager from the [brain injury support organization]
attends our appointments, and has been able to fill in the gaps that [the appellant] is not
able to remember. In addition she reports symptoms of recurrent headaches, fatigue,
dizziness, pain, confusion, and emotional/psycho social deficits. If you refer to her MRI
dated 24 February 2015, she is found to have ‘Chronic changes within the right cerebellar
hemisphere and a previous craniotomy site in the right occipital region. Changes seen in
the right cerebral hemisphere could represent a resection cavity or an old region of
infarction.’
In my medical opinion, it is very probable that this is related to some of the
symptomatology that [the appellant] is experiencing.”
The NP goes on to write that she has referred the appellant to a psychiatrist for further opinion.
She has been made aware that the appellant has 90 days to submit all supporting
documentation, and would appreciate consideration of referral wait times in the needed
longitudinal time to gain a full and thorough cognitive assessment of the appellant.
•
A letter dated 21 May 2015 from a physician at the BC Cancer Agency (BCCA), who confirms that
the appellant was diagnosed approximately 15 years ago with a CNS lymphoma. She underwent
high-dose intravenous methofrexate chemotherapy and had an excellent response and has been
a disease free since then. Over the last 3-6 months she has developed increasing problems with
fatigue, confusion, cognitive challenges and difficulty concentrating and has been unable to work
effectively. She has had repeated MRIs, which have not shown recurrence of the lymphoma. The
physician has seen her twice and does not find any obvious evidence of recurrent CNS
lymphoma. Moreover it is certainly unusual for a patient to recur this far out from this type of
malignancy. However the physician feels that patients with CNS lymphoma who undergo this form
of therapy certainly can develop cognitive problems and develop problems similar to any patient
who has any form of brain injury.
•
A letter dated 04 June 2015 from a registered psychiatric nurse (RPN). The RPN writes that the
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appellant experiences self care problems and physical needs that include disrupted sleep
patterns, visual disruptions, exhaustion and fatigue, headaches, dizziness and medication
monitoring for adherence. She is coping with impaired comprehension, short-term memory
impairment, low mood, anxiety, disorganization, forgetfulness and an overall sense of distress
related to the suspected sequelas associated with their previous CNS lymphoma. Emotional and
interpersonal problems that have emerged include: indecisiveness, dependence on service
providers for assistance, passive behaviors, [loneliness], in the sense of loss contributing and she
can no longer maintain gainful employment. Her Global Assessment of Functioning is assessed at
50, indicating serious symptoms or serious impairment in social, occupational or school
functioning. Her Montreal Cognitive Assessment revealed a score of 21/30, with a score of 26/30
or higher considered normal.
Other documents submitted
•
Correspondence between a BC Cancer Agency oncologist and physician dated 22 March 2011
relating to her discharge from BCCA care at that time.
•
Several reports dating from 2000/2001 relating to the appellant's diagnosis and treatment of CNS
lymphoma.
•
A letter dated 17 December 2014 from a neurologist to the appellant's GP. The appellant had
been experiencing symptoms that she believes are very similar to what she experienced at the
time of her non-Hodgkin’s lymphoma. She reports some headaches and episodes of vertigo.
Symptoms have been increasing in severity to the point that she has not been working for the last
few months. She has daily episodes of vertigo that can last minutes of the time. Headaches tend
to recur often on a daily basis as well, and she does complain of memory loss. The examination
was relatively unrevealing. As her symptoms seem to have changed since her most recent CT
scan in March 2014, he will request an MRI scan.
•
Imaging Report of an MRI of the appellant on 23 February 2015. Impression: no evidence of
recurrence visualized. Chronic changes within the right cerebella hemisphere and a previous
craniotomy site in the right occipital region. Changes seen in the right cerebral hemisphere could
represent a resection cavity or an old region of infarction No enhancing lesion is apparent to
suggest recurrence or metastasis.
•
A letter dated 09 March 2015 from the above neurologist to the appellant's GP regarding the
appellant's recent MRI. This proved to show postsurgical changes only, with nothing about the
intracranial findings that would account for her recent symptoms. The appellant had been
experiencing chronic daily generalized headaches, which the neurologist suspects are likely
tension-type.
•
An Outpatient Clinic Note dated 19 March 2015 from the same BCCA physician reporting on a
visit by the appellant, covering much the same ground as the above 21 May 2015 letter.
•
Imaging Report of a CT scan on 27 March 2014 – no evidence of recurrent disease. Other than
for the postsurgical changes of the right posterior cranial fosse, there is no significant intracranial
abnormality evident.
•
A letter dated 05 May 2015 from the NP to Service Canada in support of the appellant’s request
for reconsideration of her CPP disability benefits application, along the same lines as the NP’s
letter of 12 May 2015 above.
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Information submitted after reconsideration
Notice of Appeal
The appellant's Notice of Appeal is dated 15 June 2015. Under Reasons for Appeal, the appellant
writes that she disagrees with the decision. She states that the GP's report is incomplete and that she
needs further testing. She is unable to be employed.
Request for Adjournment
The appellant submitted an Appeal Adjournment Request dated 02 July 2015. Attached to the
Request were the following documents:
•
A letter dated 13 July 2015 from the appellant’s current physician in support of the
appellant’s PWD application. The physician writes:
“In our opinion after to meetings, reviewing her records, interview and physical
examination, she does have a documented past medical history of cerebral malignancy 15
years ago with subsequently a brain injury, Anxiety and Depression, with a significant
impact on her daily activities.
She does struggle with simple activities going from personal care, preparing meals and
walking to more complex tasks. It appears that her cognitive functions declined over time
resulting in challenges in organization with worsening of her anxiety; the workup for
diagnosis and management is ongoing currently.”
•
A letter dated 22 July 2015 in support of a request by the appellant for transportation
assistance for a medical appointment in another city with a physician/allergist.
•
A 4 page Appeal Guide –DLA checklist completed by the appellant [undated]. She checks
aspects of DLA (set out in somewhat greater detail than in the PWD application form) for
which her disability makes it difficult for her to do. She checks almost all aspects of taking
medications, housework, shopping, moving around inside the home, moving around outside
the home, communication, mental and emotional skills and social skills. About half the
aspects of personal care, preparing meals, using transportation, managing money and
paying bills and eating are checked. Against some checked aspects, some commentary is
provided. The panel summarizes these entries as follows, with commentary in parenthesis:
-Personal care: standing in the shower, reaching out to wash her body all over
(dizziness), brushing her hair (arms difficult to lift overhead), having the energy to bathe
every day.
-Preparing meals: understanding recipes and labels (memory issues, as a result does
not cook or bake as before), remembering she has food on the stove or in the oven
(occasionally).
-Taking medications: taking the right amount of medications, remembering to take all
her medications when she is supposed to (memory issues, resort to blister packs seems
to be helping, has had issues with taking too many, forgetting).
-Housework: all aspects (energy levels, bending over, dizziness, inability to organize,
dropping dishes, arthritis in hand)
-Shopping: all aspects (confusion, memory, dizziness – walking in crowds, goes to
support).
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-Moving around inside the home: most aspects (dizziness affects ability to walk around,
persistent headaches)
-Moving around outside the home: (needs to hold onto things to support).
-Using transportation: going up and down stairs or ramps, understanding bus schedules
(not able to ride bus, depends on transportation by her worker).
-Managing money and paying bills: remembering to pay bills on time, budgeting for
groceries and other things she needs (has very little money to buy groceries).
-Eating: not throwing up after a meal (acid reflux, heat burn), remembering or being
motivated to eat regular meals, eating healthy foods.
-Communication: most aspects, such as being able to make herself understood,
understanding what people say to her, hearing what people say to her face-to-face or on
the telephone.
-Mental and emotional skills: most aspects, such as coping with anxiety and agitation,
depression, stress, confusion, planning ahead, making appropriate choices completing
tasks, coping with sensitivity to sound, light or motion.
-Social skills: most aspects, such as socializing without being anxious and scared,
interacting with friends and family (keeps to self, doesn't go out), asking for help, being
able to deal with unexpected situations (depends on family or case manager).
-Things she needs: eyeglasses, grab bars.
•
A 13 page article published by the brain injury support organization entitled “Introduction to
Brain Injury.”
Additional information submitted before the hearing
The appellant's advocate submitted the following documents on 28 July 2015:
•
A letter dated 28 July 2015 from the NP in support of the appellant's appeal. The NP writes
that she has seen the appellant for nine separate 30 minute appointments and her colleagues
have seen her multiple times as well. She writes: “Through my assessments it is clear that [the
appellant] suffers from significant mental impairment. Her memory and cognitive functioning
are diminished, and she struggles to remember the details of conversations, organizer
activities of daily living.” The NP goes on to write:
“[The appellant] suffers from what she describes as ‘bad days.’ These days happen
several days per week and are characterized by extreme fatigue, significant brain fog, pain
throughout her body, confusion, significant dizziness, headaches and memory lapses. On
these days she is unable to prepare her own meals. She requires accompaniment to do
her shopping and is unable to take transit as she often will have dizzy spells that result in
her falling or will get confused and lost. She has used volunteer driving programs for
transportation for the most part, and will have friends, family and social workers
accompany her to her various appointments.
[The appellant’s] medication adherence was inconsistent and she was getting confused
about when and what to take. She has since required medication blister packs, and she
will call the pharmacy regularly if she is confused…..
[The appellant] requires the aid of the social worker to make decisions about her personal
activities, her health care and her finances. She experiences paralyzing anxiety when she
is left to make these decisions alone, as she becomes easily overwhelmed and confused.”
The NP continues by stating that they are currently awaiting results of a recent cervical CT
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scan as the appellant has hand increasingly worrisome numbness, tingling, pain and
weakness to her arms and hands bilaterally. On physical exam, the findings are abnormal and
following receipt of the results she will be referring to an internal medicine neurologist. The
appellant is also on a waitlist to be assessed by a psychiatrist for further clarity on her
diagnosis.
The NP also refers to a medical opinion by a physician colleague (see below). She and the
physician found the appellant to have cognitive impairment significant enough to continually
impair her activities of daily living. She writes: “this impairment is severe in nature and the
appellant requires assistance and support to complete her daily activities at least 3-4 times per
week. She also refers to the appellant's Global Assessment of Functioning scale at 50 and the
Montreal Cognitive Assessment score of 21/30, with 26/30 or higher considered normal.
•
A Supplemental Medical Opinion dated 26 July 2015 prepared by current physician. The
physician indicates that in his medical opinion the appellant is severely restricted in performing
the following DLA (comments in parentheses):
-Prepare own meals (unable on bad days – several days per week).
-Shop for personal needs (not able, needs to be supervised).
-Use of public or personal transportation facilities (can not, loss of balance, relies on
BCCA, gets lost).
-Move about indoors and outdoors (loss of balance, headache and getting lost).
-Manage personal medication (uses blister packs, [unreadable]).
-Make decisions about personal activities, care or finances (supported by a social worker).
The physician indicates that in his professional opinion the appellant’s ability to perform these
DLA are directly and significantly restricted, commenting “cognition declining, needs support
daily to perform simple tasks.”
The physician indicates that the appellant is continuously restricted in her ability to perform the
restricted DLA – she is unable to cope and there are documented worsening of symptoms –
headaches, cognitive impairment and anxiety.
The physician indicates that in his professional opinion the appellant requires help to perform
her daily activities, especially for outdoor activities. He indicates that this help is required 3x-4x
days per week, commenting; “currently stays on her own but outdoors need supervision; needs
help at home as well (3-4x/week).
The physician indicates that in his professional opinion the appellant has a severe physical
and/or mental impairment.
A 17 page printout of the record of the appellant's visits to her medical clinic and copies of
related correspondence.
The Hearing
At the hearing, the appellant's advocate presented argument as to how the new information submitted
after reconsideration demonstrated that the appellant met the severe mental impairment, DLA and
help required criteria (see Part F, Reasons for Panel Decision, below).
The appellant's case manager at the brain injury support organization described how she provides
assistance to the appellant 3 to 4 times per week helping her organize her life by liaising with medical
professionals, making appointments, reminding the appellant of appointments and arranging
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transportation and making sure somebody accompanies her when she goes shopping or to
appointments.
The appellant described how she felt she was badly treated by her (now former) GP. She stated that
her application was the first that the GP had completed, and that this was reflected in how badly it
had been prepared. She is grateful for the fresh start she has with her new clinic and access to the
support provided by the brain injury support organization as well as the ongoing interest by her BCCA
physician. She described how her current condition, with her memory problems, confusion and
dizziness, makes her frustrated, angry and depressed in not being able to work: she had enjoyed
working for the past 30 years, and misses the daily contact with others. She is also in constant pain
with her arthritis, but the medication she takes has side effects, such as frequent need for urination,
which she finds it difficult to handle.
The ministry stood by its position at reconsideration.
Admissibility of new Information
The ministry did not object to the admissibility of the new written information submitted before the
hearing, but noted that information provided by the case manager in her testimony at the hearing on
the help she provides was not available to the ministry at reconsideration. Despite the ministry’s
position regarding the written material, the panel is guided by section 22(4) of the Employment and
Assistance Act (EAA), which states:
In a hearing referred to in subsection (3), a panel may admit as evidence only
(a) the information and records that were before the minister when the decision being
appealed was made, and
(b) oral or written testimony in support of the information and records referred to in
paragraph (a).
Section 22(4)(b) is designed to strike a balance between a pure appeal on the record of the ministry
decision and a hearing de novo (a completely new hearing). It contemplates that while a party may
wish to submit additional evidence to the panel on the appeal, the panel is only empowered to admit
– i.e. take into account in making its decision – “oral or written testimony in support of” the record of
the ministry decision; it provides appellants with a limited opportunity to augment their evidence on
appeal but it does not provide them with a hearing de novo or new hearing. If the additional evidence
substantiates or corroborates the information and records before the minister at the reconsideration
stage, the evidence should be admitted; if it does not, then it does not meet the test of admissibility
under section 22(4)(b) of the EAA and cannot be admitted.
The panel finds that the letter of 13 July 2013 from the appellant’s current physician is in support of
information and records before the ministry at reconsideration: this letter provides corroboration by a
medical practitioner of the statements by the NP and the appellant's case manager in their letters of
support submitted at reconsideration that she suffers from what amounts to a brain injury secondary
to her treatment for CNS lymphoma 15 years ago.
With respect to the appellant's DLA checklist, the NP’s letter of 28 July 2015 and the current
physician's Supplementary Medical Opinion, the focus of these documents is on restrictions to the
appellant's ability to perform DLA and the resulting help required. In the panel's view, none of the
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letters of support or other medical reports submitted by the appellant at reconsideration address
ability to perform DLA in any detail – instead they describe symptoms such as dizziness, memory
loss, etc. The only evidence before the ministry at reconsideration that deals specifically with ability to
perform DLA and help required is that contained in the PR and AR. The panel finds that the
information provided in the DLA checklist, the NP's letter and the physician’s report is in essence not
consistent with, or contradicts, that contained in the PR and AR and is therefore not in support of the
PR or AR. For example, the GP assesses the appellant as independent in all aspects of personal
care and basic housekeeping; the appellant indicates she has difficulty with many aspects of the
former and all aspects of the latter; the GP assess the appellant as independent for shopping, except
for carrying purchases home, while the current physician states that she is “not able, needs to be
supervised.” There is no mention in the PR or AR that the appellant experiences “bad days” most
days of the week or that she needs to be accompanied for activities outside the home. The
information provided by the NP and the physician that the appellant requires the help of a social
worker in making decisions contradicts the GP's statement that “no need for help to maintain her in
the community.” Given these inconsistencies and contradictions, and pursuant to section 22(4)(b) of
the EAA, the panel does not admit as evidence the information provided in these documents.
The panel accepts the article “Introduction to Brain Injury” as background information of general
application not specific to the appellant.
The panel does not admit as evidence the testimony of the case manager regarding the support to
the appellant she provides, as this information does not corroborate or substantiate any evidence
before the ministry at reconsideration.
The panel admits as evidence the testimony of the appellant as in support of what was before the
ministry at reconsideration.
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PART F – Reasons for Panel Decision
The issue in this appeal is whether the ministry reasonably determined that the appellant is ineligible
for PWD designation because she did not meet all the requirements in section 2 of the EAPWDA.
Specifically the ministry determined that the information provided did not establish that the appellant
has a severe mental or physical impairment that in the opinion of a prescribed professional
(i) directly and significantly restricts her ability to perform daily living activities either continuously
or periodically for extended periods; and,
(ii) as a result of those restrictions she requires help to perform those activities.
The ministry determined that she met the 2 other criteria in EAPWDA section 2(2) set out below.
The following section of the EAPWDA applies to this appeal:
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.
The following section of the EAPWDR applies to this appeal:
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.
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(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 panel will consider each party’s position regarding the reasonableness of the ministry’s decision
under the applicable PWD criteria at issue in this appeal.
Severity of impairment
Mental impairment
In the reconsideration decision, the ministry reviewed the evidence in the PR and AR, noting that in
the PR the GP assessed the appellant with significant deficits in several areas of cognitive and
emotional functioning and in the AR identified major impacts in the areas of emotion,
attention/concentration and memory as well as moderate impacts in other areas. The GP indicated
that the appellant requires periodic support/supervision with interacting appropriately with others and
dealing with unexpected demands, but does not provide an explanation of the degree and duration of
support and supervision as requested on the application, while stating that the appellant does not
need help maintaining herself in the community. The ministry referred to the letters of support
provided at reconsideration advising that her symptoms are that of a person with a brain injury, but
held that these letters do not provide enough information on the appellant's cognitive and emotional
functioning. The position of the ministry was that there was not enough information provided by the
appellant's previous medical practitioner and in the additional information submitted to establish that
she has a severe mental impairment.
The position of the appellant is that there is sufficient information to establish a severe mental
impairment. In addition to the GP’s identification of the major impacts of her mental health condition
on daily functioning in the areas of emotion, attention/concentration and memory, the physician's
letter of 13 July 2015 supports a finding of a severe mental impairment: “…[the appellant] does have
a documented past medical history of cerebral malignancy 15 years ago with subsequently a brain
injury, Anxiety and Depression, with a significant impact on her daily activities. She does struggle with
simple activities going from personal care, preparing meals and walking to more complex tasks. It
appears that her cognitive functions declined over time resulting in challenges in organization with
worsening of her anxiety ….”
APPEAL #
Panel findings
A diagnosis of a serious medical condition does not in itself determine PWD eligibility. Under the
legislation, eligibility for PWD hinges on “an impairment” and its severity. An “impairment” is more
than a diagnosed medical condition. An impairment is a medical condition that results in restrictions
to a person’s ability to function independently, appropriately, effectively or for a reasonable duration.
To assess the severity of an impairment one 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 the ability to perform DLA is restricted
At reconsideration, the ministry had before it the original application with the PR and AR completed
by the GP and several letters of support and medical reports submitted by the appellant’s new
medical team. The appellant had “dissolved” her doctor/patient relationship with the, and in the time
available to submit additional information for reconsideration the new medical team was focusing on
clarifying the diagnosis of her medical condition, trying to obtain a better understanding of her
symptoms and the impact on daily functioning, while arranging for new tests and examinations.
The GP has diagnosed the appellant with Anxiety Disorder/stress++ and brain tumor, lymphoma in
2000. The latter diagnosis was subsequently clarified by the NP, and corroborated by the appellant’s
current physician, as acquired brain injury as a result of the appellant's treatment for CNS lymphoma
15 years ago. As noted by the ministry, in the PR the GP identified significant deficits with cognitive
and emotional function in the areas of executive, memory, emotional disturbance, motivation and
attention or sustained concentration. In the AR, the GP assessed the appellant's mental impairment
as having a major impact on daily functioning in the areas of emotion, attention/concentration and
memory, noting that the appellant has experienced a progressive decline in her functioning due to her
brain tumor history. However, the GP did not provide further commentary to support these
assessments. In the reconsideration decision, the ministry found that the letters of support provided
with the Request for Reconsideration advising that the appellant’s symptoms are that of a person with
a brain injury do not provide enough information on the appellant’s cognitive and emotional
functioning.
With respect to the material submitted at reconsideration, the letters of support from her new medical
team go into further detail on the appellant’s mental health condition. For instance, the case manager
from the brain injury support organization wrote:
“From a brain injury case management perspective, it is clear that the appellant is dealing
with multiple brain injury symptoms. She experiences energy crashes, sleep problems,
headaches, chronic pain, changes in speech, problems with balance and coordination,
weakness in the arms and legs, numbness and tingling in hands. Her cognitive abilities are
compromised as well, which include difficulties focusing, memory problems, slowed
thinking, flooding, and challenges with the executive function which include organizing,
planning, reasoning, decision-making, problem-solving and multitasking…. She also deals
with a reduced self-awareness, emotional fluctuations, depression, anxiety, stress,
changes in social skills and reduced ability to work. This has been clearly shown in the
past year when she worked at eight jobs but could not follow through after each attempt
and finally moving on from the job….”
APPEAL #
Similarly, the NP wrote:
“In our interactions, during the acquisition of a full history, it became clear that [the
appellant] has lapses in both the short and long-term memory. Her case manager from the
[brain injury support organization] attends
our appointments, and has been able to fill in the
gaps that [the appellant] is not able to remember. In addition she reports symptoms of
recurrent headaches, fatigue, dizziness, pain, confusion, and emotional/psycho social
deficits.”
Inability to work is in itself not a criterion for PWD designation. However, the panel considers that the
evidence that the appellant in the past year worked at eight consecutive jobs but could not hold down
these jobs because of memory and concentration problems tends to substantiate the GP’s
assessment of major impacts on daily functioning in the areas of memory and attention/concentration.
The NP’s evidence that due to short and long-term memory lapses the appellant required the
assistance of her case manager in providing her medical history further substantiate these
assessments.
The RPN reported that the appellant’s Global Assessment of Functioning is assessed at 50,
indicating serious symptoms or serious impairment in social, occupational or school functioning. Her
Mont
real Cognitive Assessment revealed a score of 21/30, with a score of 26/30 or higher considered
normal. Her current physician, who wrote: “It appears that her cognitive functions declined over time
resulting in challenges in organization with worsening of her anxiety…”
On review of this material submitted at reconsideration, the panel notes that the information provided
relates mainly to an extensive list of symptoms of the appellant’s acquired brain injury (and test
scores supporting that diagnosis). With the exception of the impacts of the appellant’s memory
deficits on her ability to work and to describe her medical history, the information does not describe in
what way, to what extent and under what circumstances her brain injury restricts her ability to function
effectively or independently, as might be evidenced on her ability to manage her DLA. For example,
the case manage wrote: “Her cognitive abilities are compromised as well, which include difficulties
focusing, memory problems, slowed thinking, flooding, and challenges with the executive function
which include organizing, planning, reasoning, decision-making, problem-solving and multitasking.”
While these symptoms/difficulties may point to a serious mental health condition, no detailed
description is provided on the impact on daily functioning, including the nature and extent of
restrictions in the ability to perform DLA, such as, regarding the above-quoted sentence, the DLA of
making decisions about personal activities, care or finances. Without such information, the panel
finds that the ministry was reasonable in concluding that the information provided in the letters of
support do not provide enough information on the appellant’s cognitive and emotional functioning,
especially in terms of restrictions in the ability to perform DLA, that would “satisfy” the ministry that a
the appellant has a severe mental impairment.
The legislation requires that for PWD designation, the minister must be “satisfied” that the person has
a severe mental or physical impairment. For the minister to be “satisfied” that the person’s impairment
is severe, the panel considers it reasonable for the ministry to expect that the information provided
presents a clear and complete picture of the nature and extent of the impacts of the person's medical
conditions on daily functioning.
APPEAL #
Considering that
a) while the GP assessed 3 major impacts of the appellant’s mental health condition/brain injury on
daily functioning, he provided no further analysis to substantiate these assessments,
b) the GP has assessed the appellant as independent in most aspects of DLA (see also Direct and
significant restriction on the ability to perform DLA, below), and
c) the panel’s finding above that the information contained in the letters of support do not provide
enough information on the impacts of the appellant’s brain injury on daily functioning, including on
restrictions to DLA,
the panel finds that the ministry was reasonable in determining that the information provided did not
establish a severe mental impairment.
Physical impairment
In the reconsideration decision, the ministry noted that the GP has assessed the appellant has been
able to walk 4+ blocks unaided, climb 5+ steps, lift 5 to 15 lbs and remain seated for a limited amount
of time. In terms of mobility and physical ability, the GP assessed the appellant as requiring periodic
assistance from another person with walking outdoors, standing, lifting, and carrying and holding;
however no explanation is provided regarding this assessment. Based on the information provided in
the assessments provided by the GP and the additional information provided at reconsideration, the
ministry found that there was not enough information to demonstrate that the appellant experiences
significant limitations to her physical functioning. Therefore the ministry could not determine that the
appellant has a severe physical impairment.
At the hearing, the appellant did not argue that she has a severe physical impairment, though she
does suffer from arthritis, and resulting pain.
Panel findings
In his diagnoses related to the appellant's impairment, the only one listed of a physical nature is
asthma. The GP also mentions under Health History that the appellant also has arthritis, complaining
of pain especially in her joints and hands. While the GP assesses the appellant as requiring periodic
assistance in moving about outdoors, standing, lifting and carrying and holding, as the ministry notes,
the GP provided no explanation. Given the functional ability reported by the GP (able to walk 4+
blocks, etc.) and the appellant assessed as independent in almost all other DLA requiring physical
effort, the panel finds that the ministry was reasonable in determining that a severe physical
impairment had not been established.
Direct and significant restrictions in the ability to perform DLA.
In the reconsideration decision, the ministry reviewed the AR, noting that the GP has assessed the
appellant as requiring periodic assistance with their ability to manage carrying purchases home, food
preparation, filling and refilling prescriptions and safe handling and storing medications. However the
nature, frequency and duration of periodic assistance required is not described. The ministry further
notes that all other aspects of the appellant's DLA are managed independently, with the GP indicating
that the appellant never used public transit as she is unable to cope. The position of the ministry is
APPEAL #
that the information provided by the GP does not establish that a severe impairment significantly
restricts the appellant's ability to perform DLA either continuously or periodically for extended periods
The position of the appellant is that the information provided by her current physician in the
Supplementary Medical Opinion submitted after reconsideration demonstrates that her ability to
perform DLA is significantly restricted on a continuous basis.
Panel findings
The legislation – section 2(2)(b)(i) of the EAPWDA – requires the minister to assess direct and
significant restrictions of DLA in consideration of the opinion of a prescribed professional. This
doesn’t mean that other evidence shouldn’t be factored in as required to provide clarification of the
professional evidence, but the legislative language makes it clear that the prescribed professionals’
evidence is fundamental to the ministry’s determination as to whether it is “satisfied”.
For the reasons explained in Part E above, the panel has not admitted as evidence the
Supplementary Medical Opinion completed by the appellant's current physician submitted after
reconsideration. The only analysis of the appellant's ability to perform DLA before the ministry at
reconsideration is that of the GP in the AR.
With regard to those DLA applicable to a person with a severe mental or physical impairment, for the
DLA of moving about indoors and outdoors, the GP has assessed the appellant as requiring periodic
assistance from another person for walking outdoors, standing, lifting and carrying and holding and
independent for walking indoors and climbing stairs. For the other DLA in this category, the GP has
assessed the appellant as independent for most aspects except for carrying purchases home, food
preparation, filling and refilling prescriptions and safe handling and storing of medications, where
periodic assistance from another person is required. While the GP did not specifically assess the
appellant's ability or using public transit and using transit schedules and arranging transportation, the
GP did indicate that the appellant never uses public transit as she is unable to cope. As the ministry
noted, for those aspects of DLA for which the GP assessed the appellant as requiring periodic
assistance, no further information is provided as to the nature, frequency and duration of such
assistance. Without such explanatory detail, it is not possible to determine whether the need for such
periodic assistance is a direct result of the appellant's physical impairment (e.g. her asthma for
walking outdoors or her arthritis for food preparation), the severity of which has not been established
in this appeal, or her severe mental impairment.
Regarding the “social functioning” DLA applicable to a person with a severe mental impairment as set
out in section 2(1)(b) of the EAPWDR, namely make decisions about personal activities, care or
finances and relate to, communicate or interact with others effectively, the GP assesses the appellant
as independent for making appropriate social decisions, developing and maintaining relationships
and securing assistance from others; he assesses the appellant as requiring periodic
support/supervision for ability to develop and maintain relationships and dealing appropriately with
unexpected demands. Where the prescribed professional is asked to explain/describe these
assessments, including a description of the degree and duration of support/supervision required, the
GP left this area of the form blank. Asked to describe the support/supervision required which would
help to maintain the appellant in the community, the GP writes: “No need for help to maintain her in
the community.”
APPEAL #
Considering that the GP has assessed the appellant as independent in managing most aspects of her
DLA, and the lack of explanatory detail in describing the nature and extent of periodic assistance
required that would enable an assessment as to whether her restrictions were continuous (on an
ongoing basis) or periodic (episodic) for extended periods, the panel finds the ministry was
reasonable in determining that there was not enough evidence to establish that the appellant’s
impairments directly and significantly restrict her ability to perform DLA either continuously or
periodically for extended periods.
Help with DLA
The ministry’s position is that as it has not been established that DLA are significantly restricted, it
cannot be determined that significant help is required from other persons.
The position of the appellant is that she requires the support and assistance from her case manager
at the brain injury support organization many times a week to help her organize her life.
Panel findings
The panel notes that the legislation requires that in the opinion of a prescribed professional the need
for help must arise from direct and significant restrictions in the ability to perform DLA that are either
continuous or periodic for extended periods. Since it has not been established that DLA are directly
and significantly restricted, the panel finds that the ministry was reasonable in finding that it cannot be
determined that help is required as provided under section 2(2)(b)(ii) of the EAPWDA.
Conclusion
Having reviewed and considered all of the evidence and the relevant legislation, and for the reasons
provided above, the panel finds that the ministry’s decision that the appellant was not eligible for
PWD designation was reasonably supported by the evidence. The panel therefore confirms the
ministry’s decision.
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