PART C – Decision under Appeal The decision under appeal is the Ministry of Social Development and Social Innovation (the ministry) reconsideration decision dated September 15, 2015, which found that the appellant did not meet three of the five 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 is likely to continue for at least two years. However, the ministry was not satisfied that the evidence establishes that: the appellant has a severe physical or mental impairment; the appellant's daily living activities (DLA) are, in the opinion of a prescribed professional, directly and significantly restricted either continuously or periodically for extended periods; and, 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 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
PART E – Summary of Facts The evidence before the ministry at the time of the reconsideration decision included the Persons With Disabilities (PWD) Application comprised of the applicant information and self-report dated April 30, 2015, a physician report (PR) and an assessor report (AR) both dated April 30, 2015 and both completed by a general practitioner who has known the appellant for 4 years. The evidence also included the appellant’s Request for Reconsideration dated August 31, 2015 and attached handwritten letter from the appellant, letter dated August 5, 2015 from a housing society, and a completed application for a rent subsidy. Diagnoses In the PR, the appellant was diagnosed by the general practitioner with GAD [generalized anxiety disorder]- severe anxiety disorder with onset in 2011. In the AR, the general practitioner described the appellant’s impairments that impact her ability to manage daily living activities as: “…anxiety and fears and phobias distract her emotionally day to day, which interferes with her ability to focus on tasks.” Physical Impairment In the PR and AR, the general practitioner reported that: The appellant does not require an aid for her impairment. For functional skills, the appellant can walk 4 or more blocks unaided, climb 5 or more steps unaided, and has no limitation with lifting or remaining seated. The appellant is independent with all mobility and physical ability, specifically: walking indoors and outdoors, climbing stairs, standing, lifting, and carrying and holding. In the section of the AR relating to assistance provided through the use of assistive devices, the general practitioner did not identify any of the listed items. In her self-report, the appellant wrote: She has a slipped disc in her back which can “act up” and be very painful. She also has a DVT [deep vein thrombosis] in her upper left thigh which makes her leg swell up and causes pain. In her Request for Reconsideration, the appellant wrote: She has a slipped disc in her back which causes pain every day. She has a DVT in her left thigh which causes pain and swelling. She can walk but she cannot stand still, i.e. waiting in line. Mental Impairment In the PR and AR, the general practitioner reported: Regarding health history, the appellant “…found that she was becoming so anxiety-laden that she experienced anxiety induced SOB [shortness of breath]. Tremors frequent.” She was managed as an inpatient at a hospital and “since then, she has been constantly stressed with many fears/anxiety and phobias. Medications help a bit to reduce background anxiety, but panic attacks still occur unprovoked. Her tensions/ anxiety/ fears rendered her totally unable to work. Many days she cannot leave her home.” The appellant has no difficulties with communication. The appellant has significant deficits in her cognitive and emotional functioning in the areas of
emotional disturbance, motivation, and attention or sustained concentration. The general practitioner wrote: “…severity of her anxiety constantly interferes and distracts her.” In the additional comments, the appellant has added stress as the single parent of several children who live with her. The appellant “feels huge pressure” as a single parent trying to focus on raising her children and looking out for them. The oldest child has no support from his father and the other children receive emotional but no financial support from their father. The appellant has a good ability to communicate with speaking, reading, writing, and hearing. For the section of the AR assessing impacts to cognitive and emotional functioning, the general practitioner indicated major impacts in the areas of bodily functions, emotion and attention/concentration, with no moderate or minimal impacts. There are no impacts in 10 areas of functioning, with no assessment provided in the area of memory. The general practitioner wrote that “…anxiety issues are so severe, and combined with her fears/phobias, when she goes to bed she is overwhelmed with preoccupational thinking preventing sleep. She often becomes consumed with fear that she will not wake up. Insomnia issues involve frequent waking through the night and then has to get up, start housework/cleaning to calm her mind down.” For the section of the AR assessing impacts to social functioning, the general practitioner reported that the appellant is independent in four areas, specifically: making appropriate social decisions, developing and maintaining relationships, interacting appropriately with others, and securing assistance from others. She requires periodic support/supervision with dealing appropriately with unexpected demands, described as “…parents for emotional support.” The appellant has good functioning in both her immediate and extended social networks Asked to describe the support/supervision required which would help to maintain her in the community, the general practitioner wrote “parents/friends always available.” In her self-report, the appellant wrote that: Her disability is anxiety that she must deal with every day and that makes it hard to function. Her anxiety prevents her from going out of her house, sometimes her bedroom. In her Request for Reconsideration, the appellant wrote: She is very apprehensive about having a panic or anxiety attack in front of the public. They come on unexpectedly and most times very severe. She feels that the ministry has not realized the extent of her mental illness and how little quality of life she has. Daily Living Activities (DLA) In the PR and AR, the general practitioner indicated that: The appellant has not been prescribed any medication and/or treatments that interfere with her ability to perform DLA. The appellant is independently able to perform every task of all the listed DLA, namely: walking indoors and outdoors, personal care, basic housekeeping, shopping, meals, paying rent and bills, medications, and transportation. In her Request for Reconsideration, the appellant wrote: She is unable to drive a car because of the side effects of the medication. Every day she has to live with varying levels of anxiety and panic disorder which are devastating to her everyday living.
Some days she cannot even leave her room let alone go outside. She often ends up at the hospital looking for help, with the assistance of her parents or by ambulance. Her day-to-day living is unbearably erratic. She often cannot face doing even menial tasks such as meals, laundry, etc. She often misses appointments because her anxiety level gets too severe. She has several children and one with special needs and trying her best to keep up with food, clothing, and everyday expenses is challenging. This also contributes to her panic disorder. She fears that if she got a job right now she would miss days because of her illness and have to leave when the panic attacks come on. She does not need help with DLA such as a wheelchair, commode, housekeeping, etc. “because it is not a physical disease.” Need for Help In the AR, the general practitioner indicated that the help required for DLA is provided by family and friends. In the section of the AR relating to assistance provided through the use of assistive devices, the general practitioner did not identify any of the listed items. Additional Information In her Notice of Appeal received by the ministry on September 29, 2015, the appellant expressed her disagreement with the ministry’s reconsideration decision and the appellant wrote that she would like to talk in person. At the hearing, the appellant’s parents stated: They see more than other people the difficulties their daughter has coping with daily life. There are days and sometimes weeks when she does not cope well at all. She can spend lots of time in bed because of her depression. The appellant is taking many medications. They cannot rely on their daughter. They never know when she will be in bed and incapacitated. For example, they may have something planned, even a doctor’s appointment, and the appellant may or may not show up. She needs help to cope and they believe she should receive more help from the ministry. She received some counseling through the hospital but then they said she had finished her time and could not continue. Their daughter cannot face day-to-day living. If she gets a letter, her anxiety takes over and she could be “done” for a week or two. On good days, the appellant will call them, she will come to their house for dinner and she seems better. Sometimes there will be 3 or 4 days in a row where she can cope but there is no consistent pattern. There is never a whole week of good days. And a “good” day may start out good and then end up not so good. The appellant cannot cope with making meals and sometimes even talking on the telephone is difficult. The appellant’s condition is hard on her and her children and it’s hard on them too because they know their daughter has coped very well in the past on very little. It seems her mental health issues have “consumed” her. They get frequent phone calls from the appellant saying “I need someone now.” This happens about 6 or 7 times in a month. There is financial strain on the appellant to meet all of her responsibilities and she does not like
to ask for help from them. The appellant was in a car accident in July 2015 and she suffered broken ribs. She also has physical disabilities. At the hearing, the appellant stated that: She is not ready to go to work. She does not want to be fired. She has enjoyed work but it would be devastating to her to be fired. She has volunteered but she got let go from that for not showing up. She was involved in a car accident in July 2015 and had 4 broken ribs and her eye was cut open. It made her anxiety worse because now she is anxious sometimes riding in a vehicle. She goes to the hospital for anxiety attacks because she cannot calm down and it is very frightening and she only wants to go home. She received counseling from a mental health team with the hospital for 2 years and then they said that was enough. She saw a social worker every week and a psychiatrist every 6 weeks or so for the management of her medications, but she received no therapy from the psychiatrist. She chose to have “her brain electrocuted” [electric shock therapy] in 2011 and it did not work for her. She started having anxiety and panic attacks, which is almost like PTSD [post traumatic stress disorder]. The anxiety can “come and go” and she takes lots of medications to control it. She cannot drive because of the side effects of the medications and her fear and anxiety from the accident. Her doctor says that it is best if she does not work and instead concentrates on trying to control her anxiety without pills. He says she has to stay on the medications for now. She takes her medications at night but if she has trouble during the day she will take them then, and there is one medication she only takes when she has a panic attack. When she has anxiety, it is confusing for her and she does not know how to get out of it. She will call her parents and, if they are not available, she will go to the hospital. She has gone to the hospital about 3 to 6 times in the last year. She goes to the emergency department, they stabilize her and then let her go home. When she has a panic attack, she has very disorganized thinking so she does not understand why the doctor said there is no impact to her executive functioning. It is hard for her to get groceries. Her eldest child used to do the grocery shopping but he is working now so she has to force herself to go even though she does not want to. She does not want to talk to anyone and she wants to get back home where she is safe. She does not want to call her parents to help all the time. They have lost two family members in the last month and this has been especially difficult. Her youngest children go to their father’s home for meals and she prepares meals for the older children. On a bad day, she will just put in a simple, frozen meal. She can do all of her personal care on a good day. On a bad day she will stay in bed or stay in her pajamas all day. She can take care of paying her bills and managing her medications “with no problem.” Her child has to help with lifting the laundry. She would not feel comfortable with taking public transit in case someone sat “too close.” She does not agree with the doctor’s assessments in the AR. They went through the application together but he said that he would only report regarding her anxiety and not her physical conditions. He indicated that she is independent with lifting, but she cannot lift because she has 2 slipped discs in her back. One of her children does all of the lifting for her; she could lift up to about 5 lbs.
She also cannot stand for any length of time because her leg will swell up and it is very uncomfortable. She has a DVT and her doctor has recommended a special stocking to help with this. The ministry relied on its reconsideration decision, as summarized at the hearing. Admissibility of Additional Information The panel considered the oral testimony as information that corroborates the appellant’s previous testimony respecting the extent of her impairment as diagnosed in the PWD application, which was before the ministry at reconsideration. Therefore, the panel admitted this additional information as being in support of information and records that were before the ministry at the time of the reconsideration, in accordance with Section 22(4)(b) of the Employment and Assistance Act.
PART F – Reasons for Panel Decision The issue on the appeal is whether the ministry's reconsideration decision, which found that the appellant is not eligible for designation as a person with disabilities (PWD), was reasonably supported by the evidence or was a reasonable application of the applicable enactment in the circumstances of the appellant. The ministry found that the appellant does not have a severe mental or physical impairment and that her daily living activities (DLA) are not, in the opinion of a prescribed professional, directly and significantly restricted either continuously or periodically for extended periods and that, as a result of those restrictions, it could not be determined that the appellant requires the significant help or supervision of another person, the use of an assistive device, or the services of an assistance animal to perform DLA. The criteria for being designated as a PWD are set out in Section 2 of the EAPWDA as follows: Persons with disabilities 2 (1) In this section: "assistive device" means a device designed to enable a person to perform a daily living activity that, because of a severe mental or physical impairment, the person is unable to perform; "daily living activity" has the prescribed meaning; "prescribed professional" has the prescribed meaning. (2) The minister may designate a person who has reached 18 years of age as a person with disabilities for the purposes of this Act if the minister is satisfied that the person has a severe mental or physical impairment that (a) in the opinion of a medical practitioner is likely to continue for at least 2 years, and (b) in the opinion of a prescribed professional (i) directly and significantly restricts the person's ability to perform daily living activities either (A) continuously, or (B) periodically for extended periods, and (ii) as a result of those restrictions, the person requires help to perform those activities. (3) For the purposes of subsection (2), (a) a person who has a severe mental impairment includes a person with a mental disorder, and (b) a person requires help in relation to a daily living activity if, in order to perform it, the person requires (i) an assistive device, (ii) the significant help or supervision of another person, or (iii) the services of an assistance animal. (4) The minister may rescind a designation under subsection (2). Section 2(1) of the EAPWDR defines DLA for a person who has a severe physical or mental impairment as follows: Definitions for Act 2 (1) For the purposes of the Act and this regulation, "daily living activities" , (a) in relation to a person who has a severe physical impairment or a severe mental impairment, means the following activities: (i) prepare own meals; (ii) manage personal finances;
(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. Section 2(2) of the EAPWDR defines prescribed profession as follows: (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. Severe Physical Impairment The appellant’s position is that a severe physical impairment is established by pain from slipped discs in her back and pain and swelling from a DVT in her left thigh. The appellant argued that she cannot lift more than 5lbs. and although she can walk she cannot stand still for any length of time. The ministry's position, as set out in the reconsideration decision, is that there is insufficient evidence that the appellant has a severe physical impairment. The ministry argued that while the appellant described slipped discs and a DVT impacting her physical functioning, this was not reported by the general practitioner. The ministry argued that the general practitioner reported that the appellant has no physical limitations and that she is independent in her mobility and physical ability. Panel Decision The general practitioner did not provide a diagnosis for, or refer to, a physical health condition although the appellant reported slipped discs in her back and a DVT. In the PR, the general practitioner reported that the appellant does not require an aid for her impairment and she can walk 4 or more blocks unaided, climb 5 or more steps, and has no limitations in her ability to lift or to remain seated. In the AR, the general practitioner also assessed the appellant as being independent with all
areas of mobility and physical ability, specifically walking indoors and outdoors, climbing stairs, standing, lifting and carrying and holding. Given the absence of a diagnosis by the medical practitioner or an assessment of impacts to the appellant’s physical functioning, the panel finds that the ministry reasonably determined that there is not sufficient evidence to establish that the appellant has a severe physical impairment under Section 2(2) of the EAPWDA. Severe Mental Impairment The appellant’s position is that a severe mental impairment is established by the evidence of her inability to cope due to severe anxiety disorder with onset in 2011. The appellant argued that her anxiety and phobias distract her emotionally day to day, which interferes with her ability to focus on tasks. The appellant argued that she has many bad days were she is incapacitated and cannot leave her home and she requires the assistance of her children, her parents, and medical professionals at the hospital. The ministry’s position, as set out in the reconsideration decision, is that there is insufficient evidence to establish that the appellant has a severe mental impairment. The ministry acknowledged that the appellant experiences a chronic high level of anxiety; however, the ministry argued that the general practitioner reported that the majority of the areas of cognitive and emotional functioning is not impacted. The ministry also argued that while the general practitioner and the appellant reported that the appellant’s anxiety disorder prevents her from returning to work, employability is not a factor when determining the PWD designation. Panel Decision A diagnosis of a serious medical condition does not in itself determine PWD eligibility or establish a “severe” impairment. An “impairment” is a medical condition that results in restrictions to a person’s ability to function independently or effectively. To assess the severity of an impairment, the ministry must consider both 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. In making its determination the ministry must consider all the relevant evidence, including that of the appellant. However, the legislation is clear that the fundamental basis for the analysis is the evidence from a prescribed professional – in this case, the appellant’s general practitioner. The general practitioner who has known the appellant for 4 years diagnosed her with severe anxiety disorder with onset in 2011 and wrote that, since the appellant’s treatment in hospital, she has been “constantly stressed with many fears/anxiety and phobias.” The general practitioner wrote that medications help a bit to reduce background anxiety, but “panic attacks still occur unprovoked” and “her tensions/ anxiety/ fears rendered her totally unable to work” and “many days she cannot leave her home.” In the additional comments to the PR, the appellant has added stress as the single parent of several children who live with her. The appellant “feels huge pressure” as a single parent trying to focus on raising her children” and the oldest child has no support from his father and the other children receive emotional but no financial support from their father. As for finding work and/or working, the panel notes that employability is not a criterion in section 2(2) of the EAPWDA nor is it listed among the prescribed daily living activities in section 2 of the EAPWDR. The general practitioner reported that the appellant has significant deficits in her cognitive and emotional functioning in the areas of emotional disturbance, motivation, and attention or sustained
concentration, and wrote: “…severity of her anxiety constantly interferes and distracts her.” In assessing impacts to cognitive and emotional functioning in the AR, the general practitioner indicated major impacts in the 3 areas of bodily functions, emotion and attention/concentration, with no moderate or minimal impacts. In the 10 remaining areas of functioning, ‘no impact’ is assessed, with no assessment provided in the area of memory. At the hearing, the appellant stated that when she has a panic attack, she has very disorganized thinking so she does not understand why the doctor indicated there is no impact to her executive functioning. The general practitioner wrote that “…anxiety issues are so severe, and combined with her fears/phobias, when she goes to bed she is overwhelmed with preoccupational thinking preventing sleep” and “…insomnia issues involve frequent waking through the night and then has to get up, start housework/cleaning to calm her mind down.” In her Request for Reconsideration, the appellant wrote that she is very apprehensive about having a panic or anxiety attack in public since they come on unexpectedly and most times very severe. She believes that the ministry has not realized the extent of her mental illness and how little quality of life she has. The appellant’s parents stated at the hearing that the appellant has both bad days when she spends lots of time in bed because of her depression, and good days; sometimes there will be 3 or 4 days in a row where she can cope but there is no consistent pattern. With respect to the two DLA that are specific to mental impairment – make decisions about personal activities, care or finances (decision making), and relate to, communicate or interact with others effectively (social functioning), the evidence establishes that the appellant is not restricted in either. Regarding the decision making DLA, the general practitioner reported in the AR that the appellant independently manages all decision-making components of DLA, specifically: personal care (regulate diet), shopping (making appropriate choices and paying for purchases), meals (meal planning and safe storage of food), “paying rent and bills” (including budgeting), medications (taking as directed and safe handling and storage), and transportation (using transit schedules and arranging transportation). Further, the general practitioner reported that the appellant independently makes appropriate social decisions. At the hearing, the appellant stated that she can take care of paying her bills and managing her medications “with no problem.” However, the appellant’s parents also stated at the hearing that their daughter cannot face day-to-day living and if she receives a letter, her anxiety often takes over and she could be “done” for a week or two. Regarding the DLA of social functioning, the appellant is assessed by the general practitioner as independent in most areas of social functioning, including developing and maintaining relationships, interacting appropriately with others, and securing assistance from others. Asked to describe the support/supervision required which would help to maintain the appellant in the community, the general practitioner wrote “parents/friends always available.” The general practitioner assessed the appellant with good functioning in both her immediate and extended social networks. In the PR, the general practitioner reported that the appellant has no difficulties with communication and, in the AR, that the appellant has a good ability to communicate in all areas. At the hearing, the appellant’s parents stated that, on a bad day, even talking on the telephone is difficult for the appellant. Given the absence of significant impacts to the appellant’s cognitive, emotional and social functioning, the emphasis by the general practitioner and the appellant on her inability to work, and no description by the general practitioner of the frequency of exacerbations to the appellant’s anxiety, the panel finds that the ministry reasonably determined that a severe mental impairment was not established under Section 2(2) of the EAPWDA.
Restrictions in the ability to perform DLA The appellant’s position is that her physical and mental impairments directly and significantly restrict her ability to perform DLA on an ongoing basis to the extent that she requires the significant assistance of another person, specifically her family. The ministry’s position, as set out in the reconsideration decision, is that the information from the prescribed professionals does not establish that impairment significantly restricts DLA either continuously or periodically for extended periods. The ministry wrote that the general practitioner, as the prescribed professional, reported that all of the listed tasks of DLA are performed independently by the appellant. Panel Decision Section 2(2)(b) of the EAPWDA requires that a prescribed professional provide an opinion that an applicant’s severe impairment directly and significantly restricts her DLA, continuously or periodically for extended periods. In this case, the general practitioner is the prescribed professional. DLA are defined in Section 2(1) of the EAPWDR and are also listed in the PR and, with additional details, in the AR. Therefore, a prescribed professional completing these forms has the opportunity to indicate which, if any, DLA are significantly restricted by the appellant’s impairments either continuously or periodically for extended periods. In the appellant’s circumstances, while she stated at the hearing that she cannot drive because of the side effects of the medications, the general practitioner reported in the PR that the appellant has not been prescribed any medication and/or treatments that interfere with her ability to perform DLA. In the AR, the general practitioner also reported that the appellant is independent with walking indoors and outdoors and all of the other listed DLA, namely: personal care, basic housekeeping, shopping, meals, pay rent and bills, medications, and transportation. As discussed under the severity of mental impairment, with respect to the two DLA that are specific to mental impairment – decision making and social functioning, the available evidence indicates that the appellant is not restricted in either. In her Request for Reconsideration, the appellant wrote that her day-to-day living is unbearably erratic and she often cannot face doing even menial tasks such as meals, laundry, etc. The appellant wrote that she has several children including one with special needs and trying her best to keep up with food, clothing, and everyday expenses is challenging. She fears that if she got a job right now she would miss days because of her illness and have to leave when the panic attacks come on but she does not need help with DLA such as a wheelchair, commode, housekeeping, etc. “because it is not a physical disease.” The appellant stated at the hearing that she has difficulty preparing meals and attending to her personal care on bad days and requires help with lifting heavier groceries and laundry due to her physical impairment. The appellant also stated at the hearing that she is not ready to go to work and although she has enjoyed work in the past, it would be devastating to her to be fired. The appellant stated that her doctor says that it is best if she does not work. As previously mentioned, the panel notes that employability is not a criterion in section 2(2) of the EAPWDA nor is it listed among the prescribed daily living activities in section 2 of the EAPWDR. The panel finds that the ministry reasonably concluded that there is not enough evidence from the general practitioner, as the prescribed professional, to establish that the appellant’s impairment significantly restricts her ability to manage her DLA either continuously or periodically for extended periods, thereby not satisfying the legislative criterion of Section 2(2)(b)(i) of the EAPWDA.
Help to perform DLA The appellant’s position is that she requires the significant assistance of another person to perform DLA, specifically her family. The ministry’s position, as set out in the reconsideration decision, is that because it has not been established that DLA are significantly restricted, it cannot be determined that significant help is required from other persons or an assistive device. Panel Decision Section 2(2)(b)(ii) of the EAPWDA requires that, as a result of direct and significant restrictions in the ability to perform DLA, a person requires help to perform those activities. Help is defined in subsection (3) as the requirement for an assistive device, the significant help or supervision of another person, or the services of an assistance animal in order to perform a DLA. In the AR, the general practitioner indicated that the help required for DLA is provided by family and friends. In the section of the AR relating to assistance provided through the use of assistive devices, the general practitioner did not identify any of the listed items. In her Request for Reconsideration, the appellant wrote that she does not need help with DLA such as a wheelchair, commode, housekeeping, etc. “because it is not a physical disease.” The panel finds that the ministry reasonably determined that as direct and significant restrictions in the appellant’s ability to perform DLA have not been established, it cannot be determined that the appellant requires help to perform DLA as a result of those restrictions, as defined by Section 2(3)(b) of the EAPWDA. Conclusion Having reviewed and considered all of the evidence and relevant legislation, the panel finds that the ministry’s reconsideration decision, which determined that the appellant was not eligible for PWD designation under Section 2 of the EAPWDA, was a reasonable application of the applicable enactment in the appellant’s circumstances and therefore confirms the decision.
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