Ministry of Social Development and Poverty Reduction

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 December 14, 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 section 2 of the Employment and Assistance for Persons with Disabilities Act. Specifically, while the ministry was satisfied that the appellant has a severe physical impairment, though not a severe mental impairment, the information provided did not establish that in the opinion of a prescribed professional his impairment (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 At the hearing, the appellant was accompanied by an advocate and an observer. The ministry did not object to the presence of the observer. The evidence before the ministry at reconsideration consisted of the following: 1. The appellant’s PWD designation application dated June 17, 2015. The application included: •A physician Report (PR) dated June 7, 2015 completed by the appellant’s general practitioner (GP) who has known the appellant since 2011 and has seen him 2-10 times over the past year. •An Assessor Report (AR) dated June 17, 2015 completed by the same GP. The appellant chose not to complete the self-report. 2. A CT of the appellant’s lumbar spine dated August 7, 2015. 3. A 4-page questionnaire/report (QR) dated December 1, 2015 and signed by the appellant’s GP that describes the appellant’s physical and mental impairments, the restrictions resulting from these impairments and the assistance required by the appellant as a result of these restrictions. 4. The appellant’s Request for Reconsideration signed and dated on November 27, 2015 and accompanied by a 3-page (undated) submission by the appellant’s advocate. The appellant’s Notice of Appeal was signed but not dated, and included the following reason for the appeal “The Minister has erred and has not correctly applied legislation.” In the PR, the GP lists the following diagnoses related to the appellant’s impairment: hip pain/replacement (date of onset unspecified); (left) ankle Fx (date of onset unspecified); leg pain (date of onset unspecified); and shoulder pain (date of onset unspecified). Under “Health History” the GP has written “Pt states has a history of hip replacement. He has chronic pain in (left) hip. States has pain there everyday. Grades it 10/10 at times. Pt states also had (left) ankle fracture and reconstruction surgery + still has pain there. Pt states gets pain in legs. Has chronic pain in them. Unable to walk long distances, has to take frequent breaks. Also has chronic shoulder pain. Has difficulty lifting heavy loads + difficulty putting on shoes.” In the QR, the GP confirms that the appellant suffers from the following severe conditions: Hip pain/replacement, (left) ankle fracture, leg pain, shoulder pain and depression. The panel will summarize the evidence from the PR, AR and QR relating to the appellant’s impairments as it relates to the PWD criteria at issue. Mental impairment PR: The GP indicated that the appellant has no difficulties with communication. The GP indicated that the appellant has significant deficits with the following cognitive and emotional functions: consciousness, memory, emotional disturbance, motivation, impulse control, motor activity and attention or sustained concentration.

The GP reports that the appellant is not restricted in his social functioning. AR: The GP lists the appellant’s ability to communicate as “good” for speaking, reading, writing and hearing. For cognitive emotional functioning, the GP reports that the appellant’s mental impairment has a major impact on: emotion, motivation and motor activity; a moderate impact on bodily functions, consciousness, and attention/concentration; and a minimal impact on impulse control and memory. He reports that there is no impact upon the following areas of the appellant’s cognitive/emotional functioning: insight and judgement, executive, language, psychotic symptoms, other neuropsychological problems and other emotional or mental problems. QR: The GP reports that the appellant suffers from severe depression and as a result of his mental health conditions he experiences the following symptoms daily: lack of appetite, sleep disturbances, drowsiness, lack of motivation, depressed moods, difficulty concentrating & paying attention, extreme tension & agitation, social isolation, difficulty developing & maintaining relationships and difficulty dealing with unexpected demands. Ability to perform DLA PR: The GP comments: “Unable to walk long distances, has to take frequent breaks. “ and “Has difficulty lifting heavy loads & difficulty putting on shoes.” The GP indicates that the appellant has not been prescribed any medication and/or treatments that interfere with his ability to perform DLAs. The GP indicates that the appellant’s impairment directly restricts his ability to perform DLAs. He reports that the appellant has continuous restrictions to: personal self care, meal preparation, basic housework, daily shopping, mobility outside the home and use of transportation. He reports that the appellant is not restricted in the following: management of medications, mobility inside the home, and social functioning. AR: The GP assesses the appellant as independent for the following DLAs: grooming, toileting, feeding self, regulating diet, transfers (on/off chair) (but the GP comments “Takes longer 2X holds chair arm”), reading prices and labels, making appropriate choices (shopping), meal planning, safe storage of food (ability, not environmental circumstances), budgeting, pay rent and bills, filling/refilling prescriptions, safe handling and storage (medications), using transit schedules and arranging transportation, appropriate social decisions (incl. avoiding situations dangerous to self or others, good social judgement), interacts appropriately with others (e.g. understands and responds to social cues; problem solves in social context), and able to secure assistance from others. The GP assesses the appellant as requiring periodic assistance from another person for the following DLAs: laundry and basic housekeeping; and periodic support/supervision for being able to deal appropriately with unexpected demands. The GP assesses the appellant as requiring continuous support for the following DLAs (GP comments in parentheses): dressing (Can’t put socks on), bathing (Difficult to do), transfers - in/out of

bed (Hard to do due to pain), going to and from stores (Can’t do long distances), paying for purchases (Can’t stand in line too long), carrying purchases home (Unable to do), food preparation (Has to sit to do it), cooking (Can’t do prolonged standing), banking (Can’t do prolonged standing), taking medications as directed (Needs reminders), getting in and out of a vehicle (Painful, difficult to do) and using public transport (Can’t do long distances – difficult to walk); and continuous support/supervision for being able to develop and maintain relationships (Stays isolated, gets depressed). Under “Additional Comments” the GP writes “Requires periodic (70% of time) to continuous assistance (with) all above DLAs due to physical and mental impairment.” This comment appears to apply only to the following DLAs: dressing, bathing, transfers (in/out of bed), laundry, basic housekeeping, going to and from stores, paying for purchases and carrying purchases home. QR: The GP indicates the following restrictions apply to the appellant: •Dressing: significant restrictions with bending to put on shoes, socks and pants due to chronic pain in back, and both legs. •Grooming: directly restricted with grooming due to pain in back, and both legs. Takes 2x longer. •Bathing: significant restrictions with standing in shower longer than 10 to 15 minutes due to chronic pain in back, and both legs. Neglects 2 to 3 times per week due to depression. •Toileting: directly restricted from transferring on and off the toilet due to chronic pain back, and both legs. Has to hold on to the counter to get up. •Transfers on/off bed or chair: significant restrictions with transferring in and out of bed due to chronic pain in back, both legs and depression. Has to roll in and out of bed on daily basis. •Laundry/Basic housekeeping: significant restrictions with bending and being unable (to) lift to complete laundry or housekeeping due to chronic pain in back, legs and fatigue as well as depression. Friend helps. •Going to and from the store: significant restrictions with shopping due to chronic pain in back and both legs as well as depression. Avoids going to the store 80% of the time. •Reading labels and prices: directly restricted from reading labels, gets significantly frustrated and irritated due to pain and depression. •Making appropriate choices: significantly restricted from making appropriate choices due to depression and pain. Experiences overwhelmed and frustrated due to depression. •Paying for purchases: directly restricted from standing longer than 10 to 15 minutes in a line up due to chronic pain in back and both legs. •Carrying purchases home: directly restricted from lifting, carrying or holding more than 5 to 10 pounds due to chronic pain in back, and both legs. Uses shuttle bus services. •Food preparation/Cooking: significant restrictions with standing longer than 10 to 15 minutes due to chronic pain in back, both legs and depression. •Banking: direct restrictions with standing in line ups longer than 10 to 15 minutes due to chronic pain in back, and both legs. •Getting in/out of vehicle: significantly restricted from getting in and out of a vehicle due to chronic pain in back, and both legs. Takes 2x longer. •Using public transit: significant restrictions with walking more than 1 block to the bus stop; stepping up onto the bus and with standing on bus due to chronic pain, fatigue and depression. Help provided/required PR:

The GP indicates that the appellant does not require any prostheses or aids for his impairment. The GP makes no comment in response to the question “What assistance does your patient need with Daily Living Activities? AR: The GP indicates that the appellant lives alone. In regard to assistance provided by other people the GP writes “No one.” No response is given by the GP in response to the question “If help is required but there is none available, please describe what assistance would be necessary.” No assistive devices are identified by the GP and he confirms that the appellant does not have an assistance animal. QR: The GP indicates that the appellant receives the following assistance: •Dressing: continuous assistance from a shuttle bus service(s). •Bathing: continuous assistance from holding to the walls with getting in and out of the shower. •Toileting: continuous assistance of a counter when transferring on and off the toilet. •Transfers on/off the bed and chair: continuous assistance with transferring in and out of bed and by rolling himself in and out as well as holding on to the walls and counter. •Laundry/Housekeeping: continuous assistance from friend with laundry and housekeeping. •Going to and from the store: continuous assistance from shuttle bus services to access the community. •Paying for purchases: continuous assistance when standing in line ups longer than 5 minutes by leaning on a shopping cart or uses a cane. •Carrying purchases home: continuous assistance from friend carrying purchases home. •Food preparation/Cooking: requires continuous assistance, otherwise eats microwaved meals. •Banking: Sits down after 10 to 15 minutes of standing. •Getting in/out of vehicle: continuous assistance with getting in and out of a vehicle by pulling himself using the car door. The GP indicates that the appellant would benefit from bathing & toileting aids and a scooter. At the hearing, the appellant indicated that he believed that he met the criteria associated with a severe mental impairment as well as a severe physical impairment. The rest of the appellant’s presentation went to argument and is summarized in part F. In response to questions from the panel, the appellant explained the following: 1. The QR was prepared and submitted because the GP completed the PR and the AR in June, 2015 and some things had changed by December, 2015 (when the QR was completed by the GP) and other issues required clarification. 2. The appellant has found a means of putting on his socks but generally finds that he is significantly restricted from bending and this makes dressing himself extremely difficult. 3. The appellant explained that he had told his GP that he “had no one” to assist him but did not mean that he “needed no one” to assist him. In addition, he noted that he has since found a friend who assists him with laundry, vacuuming and carrying his purchases. The ministry summarized the contents of the Reconsideration Decision but provided no new information.

In response to questions for the panel, the ministry explained the following: 1. The Reconsideration Decision contains some contradictory information regarding whether the ministry accepts that the appellant has a severe physical impairment but the ministry does accept this conclusion. 2. The ministry was asked if taking twice as long to perform an ADL was not considered to be a significant restriction (e.g. with grooming or transfers in/out of a car) then what would qualify as a significant restriction? The ministry explained that the legislation provides for ministry discretion in reviewing the evidence and the Reconsideration Officer had made a judgement in this matter.

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. The ministry was also satisfied that the appellant has a severe physical impairment, though not a severe mental impairment. However, the ministry was not satisfied that the evidence establishes that the appellant’s impairment:  directly and significantly restricted his ability to perform DLA 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 Mental impairment The appellant argues that he does have a severe mental impairment and while allowing that the PR did not include a diagnosis of mental impairment, the appellant argued that the GP did confirm in the QR that the appellant has a severe condition of depression which is expected to continue for at least 2 years and that the appellant is directly, significantly and continuously restricted in his ability to do his DLAs as a result of this condition. The appellant challenged the arguments contained in the Reconsideration Decision that the GP had not provided enough detail/explanation to establish that he did not have a severe mental impairment. It was the appellant’s contention (and this argument was also made in regard to the ministry’s determinations regarding restrictions on DLAs and on the amount of assistance required by the appellant) that the amount of space available to the prescribed professional(s) completing the PWD application is so limited as to make it impossible to provide the level of detail/explanation expected in the Reconsideration Decision. Moreover, the appellant noted that the PR identified seven areas of cognitive/emotional function that the GP determined were significant deficits. In addition, the AR identified 3 areas of cognitive and emotional functioning that had a major impact on daily functioning, 3 areas that had a moderate impact and 2 areas that had a minimal impact. Finally, the appellant noted that in the QR, the GP confirmed that the appellant’s depression restricted his ability to do the following: bathing, transfers on/off bed or chair, laundry and basic housekeeping, going to and from the store, reading labels and prices, making appropriate choices, food preparation and cooking, and using public transit. The appellant argued that taken

together, these assessments confirmed a severe mental impairment rather than a moderate mental impairment. In the Reconsideration Decision, the ministry argued that: 1. In the PR, the GP indicated that the appellant has no difficulties with communication and although the GP identified seven areas of cognitive emotional functioning in which the appellant is restricted, the GP did not describe the nature of these deficits. Additionally, the GP indicated that the appellant is not restricted in social functioning. 2. In the AR, the GP indicated that the appellant has major impacts to three areas of cognitive/emotional functioning, moderate impacts to three areas and minimal impact to two areas. The ministry concludes that this is indicative of a moderate as opposed to a severe impairment of mental functioning. Additionally, although the GP indicates that the appellant requires support/supervision in regards to social functioning (continuous for being able to develop/maintain relationships and periodic for being able to deal appropriately with unexpected demands) and has marginal functioning with both immediate and extended social networks, he does not describe the support/supervision that the appellant would require to maintain him in the community. The ministry notes that the GP does not indicate that there are any safety issues with regards to social functioning. Finally, the ministry notes that the GP does not describe the frequency/duration of the periodic support/supervision the appellant requires with being able to deal appropriately with unexpected demands. 3. In the QR, the GP does not describe the severity/frequency/duration of the appellant’s lack of appetite, sleep disturbances, drowsiness, lack of motivation, depressed moods, difficulty concentrating/paying attention, social isolation, difficulty developing/maintaining relationships and dealing with unexpected demands. Furthermore, the GP does not describe the frequency/duration of the appellant’s extreme tension/agitation. The ministry concludes by acknowledging that the appellant currently experiences limitations to his cognitive and emotional functioning due to chronic pain and depression, but based upon the GP’s assessments in the PWD application finds that the appellant has a moderate as opposed to severe impairment of mental functioning. Panel findings The panel notes that the Reconsideration Decision confirms that the appellant has major impacts to three areas of cognitive/emotional functioning, as well as three areas in which there is moderate impact, and two areas in which there is minimal impact (as well as six areas in which there is no impact). The Reconsideration Decision concludes that this is indicative of a moderate as opposed to a severe mental impairment. But there is no explanation of how that conclusion follows from the evidence. The panel also notes that the Reconsideration Decision argues that the QR “does not describe the severity/frequency/duration of your lack of appetite, sleep disturbances, drowsiness, lack of motivation, depressed moods, difficulty concentrating/paying attention, social isolation, difficulty developing maintain(ing) relationships, and difficulty dealing with unexpected demands. Furthermore, he does not describe the frequency/duration of your extreme tension/agitation.” Having reviewed these (apparent) omissions, the ministry concludes “Therefore, it is difficult to establish a severe impairment of mental functioning based on the questionnaire included with your request for consideration.” But the panel does not agree that the ministry’s conclusion is reasonable. Consider the following: •the Reconsideration Decision notes that the legislation does not require that the “frequency” of