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 23 October 2015 that denied 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 his ability to perform daily living activities (DLA) either
continuously or periodically for extended periods; and,
(ii) as a result of those restrictions, he requires help to perform those activities.
The ministry determined that the appellant satisfied the other 2 criteria: he has reached 18 years of
age and his 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
PART E – Summary of Facts
The evidence before the ministry at reconsideration consisted of the following:
1.
The appellant’s PWD Designation Application dated 12 May 2015. The Application contained:
A Physician Report (PR) dated 21 April 2015, completed by the appellant’s general
practitioner (GP) who has known the appellant since 1989 and seen him 2 - 10 times over the
past year
An Assessor Report (AR) dated 21 April 2015, completed by the same GP.
A Self Report (SR) dated 28 March 2013, completed by the appellant with the assistance of
his advocate.
2.The appellant’s Request for Reconsideration, dated 17 September 2015, to which was attached a
submission from the appellant’s advocate dated 22 October 2015.
In the PR, the GP lists the following diagnoses related to the appellant’s impairment: pseudo arthrosis
at L5 transverse process/sacrum, with onset December 2010, and reactive depression (mild).
The panel will first summarize the evidence from the PR and AR relating to the PWD criteria at issue.
Severity of impairment
Physical impairment
PR:
Under health history, the GP writes:
“[The appellant] has suffered with chronic lower back pain since a work related injury in Dec.
2010. This was extensively investigated & he was found to have a congenital pseudo arthrosis
on his left L5 transient process of his L5 vertebra articulating with his sacrum. He has had a
number of treatments to this area, without success.
He reports daily, > constant LBP [lower back pain] that prevents him from walking any
significant distances, climbing, standing or sitting too long. It is managed somewhat with
medications, but it has not improved.”
Under additional comments, the GP writes;
“[The appellant] is booked to see pain clinic [which] may provide some relief with his symptoms. His
lower back pain prevents him from enjoying his daily activities & impacts his quality of life. It is
hoped that he will be able to get some therapy or treatment that will alleviate his pain, to date
this has not happened. Although presenting disabled, I am hopeful that this will not be
permanent & a treatment to alleviate his pain will occur.”
The GP indicates that the appellant’s height and weight are relevant: ~ 180-185 cm. and ~105-110
kg.
A GP indicates that the appellant has not being prescribed any medication and/or treatments that
interfere with his ability to perform DLA.
As to whether the appellant requires any prosthesis or aids for his impairment, the GP reports that the
appellant uses a cane when walking any distances.
Regarding functional skills, the GP indicates that the appellant can walk less than 1 block unaided on
a flat surface, it is unknown how many stairs he can climb, is limited to lifting 5-15 lbs. and can remain
seated for less than 1 hour.
Mental impairment
PR:
Under health history, the GP writes that the appellant’s mood has suffered because of his chronic
pain.
The GP indicates that the appellant has no difficulties with communication.
The GP reports that the appellant has significant deficits with cognitive and emotional function in the
areas of executive (mild), memory (mild), emotional disturbance, and motivation. The GP comments:
“ When more disabled, this affects his mood, concentration, memory & executive function.”
AR:
Regarding the degree of how the appellant’s mental impairment restricts functioning, the GP
assessed the degree of impact in the listed areas as follows:
Major impact: none.
Moderate impact: motivation.
Minimal impact: emotion, attention/concentration, executive, and memory.
No impact: bodily functions, consciousness, impulse control, insight and judgment, motor
activity, language, psychotic symptoms, other neuropsychological problems, and other
emotional or mental problems.
The GP comments:
“[The appellant] suffers from mild depression, which at times worsens when his chronic LBP
flares. Although on medications for this, it at times will impact his motivation, mood, memory,
concentration & executive functioning.”
Ability to perform DLA
PR:
The GP reports that the appellant is restricted in performing the following DLA on a continuous basis:
personal self care (mild), basic housework, daily shopping and mobility outside the home.
The GP reports that the appellant is not restricted for meal preparation, management of medications,
use of transportation, management of finances and social functioning.
The GP indicates “unknown” for mobility inside the home.
The GP comments that the appellant uses devices to help with personal care.
AR:
The GP reports that the appellant lives alone.
The GP describes the impairments that impact the appellant’s ability to manage DLA as “Chronic,
daily low back pain (L.B.P.) prevents him from sitting/standing too long, unable any distances & any
significant weight.”
The GP indicates that the appellant’s ability to communicate is good for speaking, reading, writing
and hearing.
Respecting the assistance required for mobility and physical ability, the GP indicates that the
appellant uses a cane for walking indoors, walking outdoors and climbing stairs. No information is
provided for standing. GP indicates that the appellant's ability for lifting carrying holding is limited,
commenting ”His chronic LBP prevents him from significant lifting or carrying.”
Regarding the assistance required to manage DLA, the GP provides the following assessments (the
GP’s comments in parentheses):
Personal care – Independent for dressing, toileting, feeding self and regulating diet, transfers
in/out of bed and transfers on/off chair; uses assistive device for grooming and bathing (long-
handled the brushes, etc.).
Basic housekeeping – independent for all aspects.
Shopping – independent for all aspects (uses carts, etc. for carrying purchases home).
Meals – Independent all aspects.
Pay rent and bills – independent for all aspects.
Medications – independent for all aspects.
Transportation – Independent for all aspects.
In terms of social functioning, the GP assesses the appellant as independent for all listed aspects –
making appropriate social decisions, developing and maintaining relationships, interacting
appropriately with others, dealing appropriately with unexpected demands and securing assistance
from others.
The GP describes the appellant's relationships with his immediate and extended social networks as
good functioning.
Help provided/required
AR:
The GP reports that help is provided to the appellant by family and friends “when required.”
The GP indicates that the appellant routinely uses a cane as an assistive device.
The GP indicates that the appellant does not have assistance animal.
Self report
In describing his disability, the appellant writes that he suffers from chronic pain in his back and from
arthritis. An accident at work three years ago caused him to severely injure his lower back, resulting
in a state of near constant pain today. This greatly restricts his daily activities. It is only through the
use of a cane or other supportive device that he is able to go about his day. He has also been
diagnosed with and suffers from depression and diabetes and takes an antidepressant and must
manage his diabetes on a daily basis, taking insulin as required. His depression affects his motivation
and ability to function, impacting his ability to complete daily tasks and his relationships with family
and others. He has also suffered from issues with impulse control and anger management.
In summary, the appellant explains how his disability affects his life and his ability to take care of
himself as follows:
He is unable to walk more than a block without the assistance of a cane or crutches.
He avoids stairs if at all possible, and if he must take them he needs the assistance of a railing
and must take them very slowly.
He cannot sit for more than 20 minutes without pain and the need to adjust or move around.
Lifting any weight it is quite painful and forces him to suffer through the pain or seek assistance.
Maintaining personal self-care is difficult and takes much longer as a result of his pain. He uses
a long handled scrub brush to clean below his waist, as it is too painful to bend.
Laundry and housekeeping are extremely painful and he is unable to lift his laundry, usually
ending up pushing it around to move it.
He requires support from a table or some other surface to get in or out of bed or chair. Getting in
and out of a car can be quite painful.
He uses a grocery cart to support himself shopping.
His depression leads to extreme lack of motivation, chronic fatigue and anxiety. On bad days he
lacks the energy and desire to do household chores and the motivation to leave his home.
His severely depressed moods can prevent him from seeing to his own needs and things that
need to be done.
His lack of motivation and energy is aggravated by extreme disturbances in his sleep, caused by
high levels of pain. He ends up staying up until he is absolutely exhausted so he can fall
asleep through the severe back pain.
His mental struggles also have had an impact on his relationships. Problems with anger have
had a strong impact on his family, including his relationship with his son. After the end of his
marriage this past year, his struggles with depression increased and he suffers from anxiety
around his relationships with his family and tends to avoid contact, finding it hard to reach out
for the support he needs.
Request for Reconsideration
The submission by the appellant's advocate goes to argument, referring to a letter attached to this
submission that clarifies and elaborates on how the appellant meets the requirements for PWD
designation. The advocate states that this letter (“the advocate’s letter”) was prepared by the
advocate on the basis of extensive interviews with the appellant. The letter addresses several of the
GP’s assessments in the PR and AR as follows:
The appellant avoids stairs at all times; if unavoidable he must use a railing to pull himself up
and this takes approximately three times longer than average.
He is limited to lifting 10 pounds and only from waist height; he cannot twist and turn while lifting
nor can he hold or carry this weight due to his lower back pain; carrying and holding is limited
to 5 pounds
He can stand for only 2 to 3 minutes at a time due to his back pain; as a result he requires
assistance with any activity that requires him to stand for longer than a couple of minutes –
e.g. he uses a grab bar in the shower and requires a shower seat so that he can stay in the
shower long enough to have access to the lower half of his body
Getting up from a seated position is also difficult – he uses a towel bar to pull himself up from
the toilet, but requires a proper grab bar as well.
Getting out of bed take significantly longer than average – he has to move slowly and carefully
and the process can take several minutes.
He cannot get out of the chair unless it has armrests or is close to something that he can use to
pull himself up.
Getting dressed also takes significantly longer and he has to be seated to put clothes on – it
takes 3-4 times longer than it used to.
He eats only simple foods such as cereal or sandwiches at home as he cannot stand long
enough to cook proper meals for himself.
He requires continuous assistance with grocery shopping as he can only carry 5 pounds and
can't wait in line to pay – often his sons help and he uses a grocery cart to assist him walking
around the store, but would benefit from the use of a walker.
Laundry and housekeeping are also restricted: he cannot vacuum, clean his fridge, oven, under
his bed or baseboards; if something spills he cannot bend down to clean it up; to clean his
toilet he has made an extension for his toilet brush using an old broom handle; he has an
ironing board near the washing machine where he keeps his laundry hamper so that he does
not have to bend over to pick up and transfer his clothes to the machine.
As to social functioning, he loses focus easily and often repeats himself without realizing it; he
has very low motivation and procrastinates for extended periods; he avoids interacting with
others and has trouble relating to his friends as many of the activities he used to do with them
he no longer can; being intimate with his girlfriend is restricted by his back pain; all these
restrictions to social functioning further exacerbate his depression.
The appellant filed his Notice of Appeal on 03 November 2015. Under Reasons for Appeal, he writes
that his disability makes it impossible for him to work as he is in constant pain. He adds that he has
new information from his doctor.
The hearing
At the hearing, the appellant’s advocate presented a submission that went to argument (see Part E,
Reasons for Panel Decision, below). The submission referred to a “To whom it may concern” letter
dated 19 November 2015 from the appellant’s GP that was also submitted at the hearing. The letter
(“the GP’s letter”), which the advocate acknowledged that she drafted, reads:
I am [the appellant's] physician and am writing in support of his appeal of the decision to deny
his PWD application
I have read the letter from his advocate, [name], dated October 22, 2015 and confirm that it
represents a current reflection of the appellant's impairments and restrictions. The details
contained in the letter are the most accurate reflection of [the appellant's] disability.
Although I indicated in the original application that [the appellant] does not require assistance in
activities of daily living, further consultation has shown that to be inaccurate. [The appellant]
requires continuous assistance with any activity that requires him to remain standing longer
than 2-3 minutes or carry more than 5 pounds including: bathing, toileting, laundry,
housekeeping, shopping, and meal preparation.
As such, it is my medical opinion that [the appellant] meets the criteria for this designation.
In her submission and at the hearing, the advocate stated that due to difficulties with scheduling, the
GP was unable to meet with the appellant before the reconsideration deadline.
The ministry stood by its position at reconsideration.
Admissibility of new Information
The ministry did not object to the admissibility of the GP’s letter. The position of the appellant is that
the letter corroborates the information in the advocate’s letter and therefore should be admitted as
evidence.
The panel must be guided by section 22(4) and 24(1) of the Employment and Assistance Act (EAA),
which state:
22(4) 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).
24(1) After holding the hearing required under section 22 (3) [panels of the tribunal to conduct appeals], the panel must
determine whether the decision being appealed is, as applicable,
(a) reasonably supported by the evidence, or
(b) a reasonable application of the applicable enactment in the circumstances of the person appealing the decision.
Section 22(4)(b) of the EAA 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, as the panel is tasked
with assessing the reasonableness of the ministry’s decision. 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 s.
22(4)(b) of the Employment and Assistance Act and should not be admitted.
While the GP’s letter ostensibly corroborates the advocate’s letter, there are a number of issues to be
considered respecting its admissibility:
As the ministry noted in the reconsideration decision (see Part E, Reasons for Panel Decision,
below), and as the GP’s letter acknowledges, there are many inconsistencies between the
advocate’s letter and the assessments provided by the GP in the AR, to the point where the
panel finds that the two provide contradictory assessments.
The AR provides the opportunity for a prescribed professional to identify in detail whether and
to what degree the appellant’s impairments directly restrict the ability to perform aspects of the
legislated DLA and as a result of such restrictions how much help is required. Such
assessments are also crucial to the determination of the severity of impairment.
The GP’s letter states that after “further consultations” the original assessments have been
shown “to be inaccurate.” As it is not unreasonable to expect the GP to have completed the
AR with due diligence, the ministry would have made its decision accordingly.
In submitting the GP’s letter, the appellant’s advocate is asking the panel to largely ignore the
AR and to substitute the prescribed professional’s assessments with those set out in the
advocate’s letter.
Section 2 of the EAPWDA requires that for PWD designation the ministry is required to base
its determination as to whether the person is directly and significantly restricted by impairment
in performing DLA and whether as a result significant help is required primarily on the opinion
of a prescribed professional. Thus, under the EAPWDA the evidence from the prescribed
professional assumes a unique status different from any other information provided.
At reconsideration, the assessments in the advocate’s letter did not have the unique status of
that of the opinion of a prescribed professional. In essence the appellant’s advocate is asking
the panel to make a decision with the assessments in the advocate’s letter becoming the
opinion of the prescribed professional and the GP’s original assessments being ignored as
“inaccurate.” In other words, the advocate would see the advocate’s letter assuming the
unique status of that of the opinion of a prescribed professional.
Section 24(1) of the EAA limits the jurisdiction of the panel to determining the reasonableness
of the ministry’s reconsideration decision. Panels cannot become decision makers of first
instance. Section 22(4) limits a panel’s jurisdiction to reviewing the ministry’s decision, not
making a new decision based on information that was not before or in support of the
information before the ministry at reconsideration.
As the GP’s letter repudiates his opinion as a prescribed professional and replace them with a
different set of assessments, it cannot be said to corroborate or substantiate the opinion he
provided as a prescribed professional that was before the ministry at reconsideration. The
panel therefore finds that the GP’s letter is not in support of the information before the ministry
at reconsideration.
Accordingly, the panel does not admit the GP’s letter as evidence under section 22(4) of the EAA..
PART F – Reasons for Panel Decision
The issue in this appeal is whether the ministry decision that determined that the appellant did not
meet two of the five statutory requirements of Section 2 of the EAPWDA for designation as a person
with disabilities (PWD) is reasonably supported by the evidence or is a reasonable application of the
legislation in the circumstances of the appellant. The ministry found that the appellant met the age
requirement and that, in the opinion of a medical practitioner, his impairment is likely to continue for at
least two years. However, the ministry was not satisfied that the evidence establishes that:
the appellant has a severe physical or mental impairment;
the appellant's 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.
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 DVDs that require any form of
physical mobility. The information provided in his initial application reflects the assistance he, as he
does not have access to the continual support requires, as he does not have access to the continual
support he requires. In a beautiful 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.
(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.
Severity of impairment
Physical impairment
The position of ministry, as set out in the reconsideration decision, is that it is not satisfied that the
information provided is evidence of severe physical impairment. The ministry argues that a severe
physical impairment requires weighing the evidence provided against the nature of impairment and its
reported functional skill limitations.
While the ministry acknowledges that the appellant experiences some degree of restriction to his
impairment, it is not satisfied that the combination of his functional skills, mobility and physical
abilities exhibit severe impairment.
In reaching its decision, the ministry reviews the functional skill limitations reported by the GP (i.e.
able to walk less than 1 block unaided, etc.) Although it recognized that the appellant can walk less
than 1 block unaided and uses a cane when walking any distances, the ministry was not satisfied that
this in and of itself necessarily establishes a severe impairment, taking into account that the GP does
not indicate that the appellant requires periodic or continuous assistance or takes significantly longer
than typical when walking indoors and outdoors. This makes it appear to the ministry that he is able
to mobilize well with the use of a cane.
The ministry noted that the GP had known the appellant since 1989 and had completed his
application considering unspecified consult letters and provided a reasonable amount of narrative.
Considering this, ministry was satisfied that the GP had provided a full and knowledgeable
assessment of his condition and capabilities. The ministry went on to note that in the AR the GP
indicated that the appellant is largely independent in almost every category of DLA, only requiring the
use of a couple of assistive devices (e.g. long-handled brush) to accomplish his DLA and requires no
assistance from another person in any category of DLA. The GP does not even indicate that any of
his DLA takes significantly longer. The ministry concluded that it would be expected that if his lower
back pain were considered severe a few of his DLA would take him somewhat longer to accomplish.
The ministry also considered the additional information provided in the advocate’s letter, noting
several inconsistencies with that provided by the GP – e.g. limitation in standing: can stand 2-3
minutes at a time and requires a grab bar in the shower seat, vs. limitations in standing not indicated
by the GP, though he does indicate that the appellant uses an assistive device, commenting only
“long-handled brushes etc.” but not grab bar/shower seat. The ministry also noted inconsistencies in
assessments regarding climbing stairs, lifting, getting in/out bed, and in/out of chairs, getting dressed
and preparing meals, shopping laundry and housekeeping. Due to these inconsistencies, the ministry
determined that it would give less weight to the advocate’s letter than to the GP’s assessments.
The appellant's position, as set out in his advocate’s submission on appeal, is that the evidence
submitted in the SR, PR and AR and in the advocate’s letter establishes that he has a severe
physical impairment. The submission reviews evidence in the PR and AR, including that the appellant
uses a cane when walking any distance, can walk less than one block unaided, is continuously
restricted with mobility outside the home, uses an assistive device when walking indoors, outdoors
and climbing stairs, is limited to lifting 5 to 15 pounds due to back pain and is continuously restricted
with personal self care, basic housework and shopping. The submission also reviews the information
submitted in the advocate’s letter at reconsideration regarding mobility and DLA (see Part E above
under Request for Reconsideration).
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 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 performing DLA is restricted. The legislation makes it clear that the determination of severity is
at the discretion of the minister, and that the fundamental basis for the analysis is the evidence from
the prescribed professional – in this case, the appellant’s GP.
The panel will first address the ministry's position that the GP's assessments in the PR and AR be
given more weight than those described in the appellant's letter. As the ministry noted, the GP has
known the appellant for many years – since 1989 – and had seen him 2 to 10 times in the past year.
Over the years, the GP has been the appellant's primary health care provider, arranging for extensive
investigations and a number of treatments for his condition. Further, the panel notes that the
legislation requires the ministry to rely on the opinion of a prescribed professional in determining the
degree to which the appellant's impairments restrict his ability to perform DLA and how much help is
required. Given the inconsistencies noted by the ministry in the assessments provided by the GP
compared to those described by the advocate, and since the GP is a medical practitioner/prescribed
professional and the advocate is not, the panel finds that the ministry was reasonable in giving less
weight to the advocate’s letter and more weight to the GPs independent and professional
assessments.
Turning to the appellant’s lower back pain [LBP] impairment, mobility (the DLA of walking indoors and
outdoors) is a crucial factor in determining the severity of physical impairment. In the PR, the GP
assessed the appellant as being able to walk less than 1 block unaided and ability to climb stairs as
“unknown.” In the AR, the GP indicates that the appellant uses an assistive device for walking
indoors, walking outdoors, and climbing stairs, later indicating that he uses a cane. He also
comments that the appellant’s LBP prevents “walking any distances,” but it is unclear whether this is
with or without the cane, and how far he means. In his SR the appellant writes that only through the
use of a cane or other supportive device is he able to go about his day. He also writes that he is
unable to walk more than a block without the assistance of a cane or crutches, and avoids stairs if at
all possible; if he must take them he needs the assistance of a railing and must take them very
slowly. In her letter, the advocate states that this means 3x longer. As the ministry noted, the GP did
not indicate that the appellant required either periodic or continuous assistance from another person
or take significantly longer than typical walking indoors and outdoors or climbing stairs. Given this
evidence the panel finds that the ministry was reasonable in concluding that the appellant appears to
mobilize well with the use of a cane.
While the advocate indicated that the appellant was limited to standing 2-3 minutes, no limitations in
this respect were reported by the GP except a comment that the appellant reports that his constant
LBP prevents him from standing “too long” and the appellant made no reference to such a limitation
in his SR. It is not unreasonable to have expected the GP to report such a significant limitation and
finds that the ministry was reasonable in giving the advocate’s assessment little weight.
The GP assessed the appellant as being able to lift 5-15 lb. The advocate clarified this by stating that
the appellant could carry/hold 5 lb. maximum and 10 lb. from waist height, but cannot bend over
without experiencing extreme pain. The GP also commented that the appellant’s LBP prevents any
significant lifting or carrying. Despite these restrictions to the appellant’s mobility and physical ability,
the GP has assessed the appellant as independent with virtually all aspects of DLA requiring physical
effort, with no assessments that any take significantly longer than typical, and the use of assistive
devices only for walking indoors and outdoors and a long-handled brush for grooming and bathing
(publicly available stair railings and shopping carts are not considered assistive devices under the
legislation). (See also Direct and significant restrictions to the ability to perform DLA below.)
Considering the appellant's ability to mobilize with the use of a cane and the GP’s assessments
regarding his ability to perform independently and without taking significantly longer than typical those
aspects of DLA requiring physical effort, the panel find that the ministry was reasonable in
determining that the information provided did not establish a severe physical impairment.
Mental impairment
The position of the ministry is that the information provided does not establish a severe mental
impairment. The ministry noted that the GP had diagnosed the appellant with mild reactive
depression and assessed the appellant with no major impacts of daily functioning and only one
moderate impact, while providing assessments that he was independent in all aspects of social
functioning, with good functioning in both his immediate and extended social networks.
In her submission on appeal, the appellant's advocate did not specifically address severity of mental
impairment. From the hearing, the panel understands that the appellant's position is that the GP’s
diagnosis of reactive depression and the description of the impact of the appellant's mental health
condition on his daily functioning as described in the appellant's letter is sufficient to establish a
severe mental impairment.
Panel findings
The panel notes that the GP diagnosed the appellant's reactive depression as mild. and while he has
identified significant deficits with cognitive and emotional function in several areas – executive,
memory, emotional disturbance and motivation – he has not assessed any of these deficits as having
a major impact on daily functioning and with only one moderate impact, motivation. The advocate’s
letter describes several impacts of the appellant’s mental health condition on his daily functioning. For
the reasons discussed above, the panel places less weight on the advocate’s information than that
provided by the GP, who as assessor/prescribed professional, assessed the appellant as
independent in all aspects of social functioning and with good functioning with his immediate and
extended social networks, and finds that the ministry was reasonable in determining that a severe
mental impairment had not been established.
Direct and significant restrictions in the ability to perform DLA.
The position of the ministry is that the information provided does not establish that the appellant is
significantly restricted in performing his DLA either continuously or periodically for extended periods.
In the reconsideration decision, the ministry recognized that there are inconsistencies between the
GP’s assessment of the appellant's ability to perform DLA between those set out in the PR and those
in the AR and has given the information provided in the AR more weight because it provides a more
detailed, broken-down version of assessing the appellant's capabilities in performing his DLA. In the
AR, the GP indicates that the appellant is independent in almost every aspect of all DLA. Those
categories that he does not indicate as independent, he only explains that the appellant uses an
assistive device to perform the task (cane, long-handled brush). The ministry concluded that it was
not satisfied that the information established any kind of significant restriction.
The appellant's position, as described in his advocate’s submission on appeal, is that there is
sufficient evidence to demonstrate that this criterion has been met. The GP in the PR has assessed
the appellant as restricted for the DLA of personal self-care, basic housework, daily shopping and
mobility outside the home. The appellant's letter further clarifies and elaborates on his restrictions,
referring to his need for assistive devices such as a cane for mobility, a long handled brush for
showering, the use of shopping carts while shopping and railings while climbing stairs and his need
for a walker and grab bars and a seat in the shower. The advocate’s letter also documents that the
appellant takes significantly longer than typical for such activities as climbing stairs and dressing, and
requires continuous assistance from others for housekeeping and shopping. His social functioning is
also restricted as a result of his depression and limited mobility. Taken together, the appellant
submits that this evidence establishes that his impairments directly and significantly restrict his ability
to manage DLA on an ongoing basis.
Panel findings
According to the legislation, whether there is a direct and significant restriction in the ability to perform
DLA must be based on the opinion of a prescribed professional. The significant restriction in the
ability to perform DLA must also be a result of a severe impairment, a criterion that has not been
established in this appeal. This DLA criterion must also be considered in terms of the preceding
legislative language of section 2 of the EAPWDA, which provides that the minister may designate a
person as a person with disabilities “if the minister is satisfied that” the criteria are met, including this
one. In exercising the discretion conferred by the legislation, it is reasonable that the minister would
expect that the opinion of a prescribed professional be substantiated by information from the
prescribed professional that would satisfy the minister that there are direct and significant restrictions
in the ability to perform DLA, either continuously or periodically for extended periods, by presenting a
clear and complete picture of the nature and extent of these restrictions.
The appellant's advocate has argued that in the PR the GP assessed the appellant as restricted for
personal care, basic housekeeping, shopping and mobility outside the home. However these
assessments do not address the degree of restriction (except for personal care, which the GP notes
“mild”) – that is, whether the restriction is “significant.” In the AR, the GP assesses the appellant as
independent for meal preparation, basic housework and daily shopping. The ministry has referred to
these differences as “inconsistencies.” Another interpretation is that for these DLA, the appellant is
somewhat restricted on an ongoing basis, but not to the point where he needs continuous or periodic
assistance from another person, takes significantly longer than typical or requires the use of an
assistive device. For the DLA of moving about indoors and outdoors and personal care, GP has
reported that the appellant requires the use of a cane for the former and a long-handled brush for the
latter. While the advocate’s letter states that the appellant needs a walker, grab bars in the
bathroom/shower and a shower seat, this need has not been confirmed by the GP.
Regarding the DLA applicable to a person with a severe mental impairment – make decisions about
personal activities, care or finances, and relate to, communicate or interact with others effectively –
in the AR the GP assesses the appellant as independent in making appropriate social decisions,
developing and maintaining relationships, interacting appropriately with others, dealing with
unexpected demands and securing assistance from others. He assesses relationships with
immediate and extended social networks as “good functioning.”
Given that a severe physical or mental impairment has not been established and considering the
GP’s assessments of independent functioning across most DLA, the panel finds that the ministry was
reasonable in determining that the information provided did not establish that, in the opinion of a
prescribed professional, the appellant's impairments directly and significantly restrict his ability to
perform DLA either continuously or periodically for extended periods
Help with DLA
The ministry’s position is that since it has not been established that the appellant’s DLA are
significantly restricted, it cannot be determined that significant help is required.
The appellant’s position is that he requires significant assistance with DLA, requiring the use of a
cane for mobility, a long-handled brush for personal care, and needs a walker and assistive bathroom
accouterments. He also needs help from another person for shopping, housework and meal
preparation.
Panel Decision
A finding that a severe impairment directly and significantly restricts a person’s ability to manage his
DLA either continuously or periodically for an extended period is a precondition to a person requiring
"help“ as defined by section 2(3)(b) of the EAPWDA. For the reasons provided above, the panel finds
the evidence falls short of satisfying that precondition.
Accordingly, the panel finds that the ministry reasonably concluded it could not be determined that
the appellant requires help with DLA as defined by section 2(3)(b) 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 finding the appellant ineligible for PWD
designation is reasonably supported by the evidence. The panel therefore confirms the ministry’s
decision.
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