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
the appellant’s restrictions be described. Recognizing that fact, the panel does not understand why
the Reconsideration Decision repeatedly comments upon the absence of evidence relating to the
frequency of the appellant’s symptoms/restrictions. Moreover, the QR reports that the symptoms
listed above are experienced on a daily basis. For both of these reasons, the ministry’s argument that
the appellant has not described the frequency of these symptoms/restrictions is not a reasonable
one.
•The Reconsideration Decision (as quoted above) concludes that the GP has not described the
severity of these symptoms/restrictions. Insofar as the QR is concerned, this is a reasonable
conclusion. But the panel notes that the severity of these symptoms/restrictions is (in every case)
addressed in the AR. For example, insofar as lack of motivation is concerned, the AR reports that the
appellant experiences a major impact on daily functioning insofar as motivation is concerned.
Similarly, the appellant experiences a major impact upon daily functioning insofar as emotion (which
includes depression). The panel considers that the Reconsideration Decision has critiqued each
piece of evidence (i.e. the PR, AR and QR) in isolation and has failed to consider it as part of an
integrated and complementary set of evidence. The panel therefore concludes that the ministry’s
determination that the appellant suffers from (only) a moderate mental impairment and not a severe
mental impairment is not a reasonable conclusion.
Direct and significant restrictions in the ability to perform DLA.
The appellant's position is that the GP has identified multiple DLAs which are directly and significantly
restricted as a consequence of the appellant’s severe impairments. The AR reports 12 DLAs that
require continuous assistance from another person (or are ones which the appellant is unable to do)
and one (social functioning) that requires continuous support/supervision. The appellant noted that in
each case the GP had provided explanatory comments. Moreover, the QR confirms that the appellant
is significantly restricted in 12 DLAs (note that the QR combines transfers on/off bed or chair,
laundry/basic housekeeping and food preparation/cooking but these are actually six separate DLAs).
In the Reconsideration Decision, the ministry argued that:
1.
In the PR the GP indicates that the appellant is not currently prescribed any medications or
treatments that interfere with his ability to perform DLAs. In addition, although the GP indicates that
the appellant’s impairment directly restricts his ability to perform DLAs and that he is continuously
restricted with personal self-care, meal preparation, basic housework, daily shopping, mobility outside
the home and use of transportation, the GP has not described the nature of the appellant’s
restrictions with DLAs.
•although the GP indicates that the appellant is continuously restricted with dressing, his
statement “can’t put socks on” is not indicative of a significant restriction with dressing.
•although the GP indicates that the appellant is continuously restricted with bathing, his statement
“difficult to do” does not describe the nature or severity of the appellant’s restriction with bathing.
•although the GP indicates that the appellant is continuously restricted with transferring in/out of
bed, his statement “hard to do due to pain” does not describe the nature or severity of the appellant’s
restriction with transferring in/out of bed.
•taking 2 times longer with transferring on/off a chair is not indicative of a significant restriction.
Furthermore, an arm chair is not considered an assistive device when establishing that help is
required with transferring on/off a chair.
•the GP does not describe how much longer than typical the appellant takes with laundry.
•although the GP states “Requires periodic (70% of the time) to continuous assistance [with] all
above DLAs […]” (i.e. personal-care, basic housekeeping, shopping), he also indicates that the
appellant is independent with grooming, toileting, feeding self, regulating diet, transferring on/off
chairs, reading prices/labels and making appropriate shopping choices.
•although the GP indicates that the appellant requires continuous assistance from another person
in taking medications as directed (you need reminders) he also indicates that impacts to the
appellant’s cognitive and emotional functioning in the area of memory are minimal.
•although the GP indicates that the appellant requires continuous assistance from another person
with getting in/out of vehicles, his statement “painful difficult to do” does not describe the nature or
severity of the appellant’s restriction with getting in/out of vehicles.
•although the GP indicates that the appellant requires continuous assistance from another person
with using public transit, his statement “can’t do longer distances, difficult to walk” speaks to the
appellant’s limitations with mobility as opposed to his ability to use public transit.
3.
In regard to the QR, the ministry makes the following comments regarding the GPs assessments of
the appellant’s DLAs:
•the GP’s indication that the appellant must bend to put on shoes/socks/pants and sit to put on
pants/shoes is not considered indicative of a significant restriction with dressing.
•taking 2 times longer with grooming is not considered indicative of a significant restriction.
•a limitation of standing in the shower and public line ups for 10 to 15 minutes is not considered
indicative of a significant restriction.
•bathroom walls/counters are not considered assistive devices when establishing that help is
required with entering/exiting the tub and transferring on/off the toilet.
•needing to roll in/out of bed is not considered indicative of a significant restriction with
transferring in/out of bed. Furthermore, walls/counters are not considered assistive devices when
establishing that help is required with transferring in/out of bed.
•the use of a public shuttle bus for going to/from the store is not considered indicative of a
significant restriction.
•the GP does not describe the frequency/duration of your restrictions with reading labels/prices
due to frustration/irritation/pain/depression.
•the GP does not describe the frequency/duration of your restrictions with making appropriate
choices due to depression.
•although the GP indicates that the appellant requires continuous assistance when standing in
line ups longer than 5 minutes (paying for purchases), he also indicates restrictions with standing in
line ups for upwards of 10 to 15 minutes (paying for purchases, banking).
•taking 2 times longer to transfer in/out of a vehicle is not considered indicative of a significant
restriction. Furthermore, a car door is not considered an assistive device when establishing that help
is required with transferring in/out of vehicles.
•although the GP indicates that the appellant has significant restrictions when using public transit
due to chronic pain/fatigue/depression, he also indicates that the appellant uses the shuttle bus for
transportation (going to/from stores, carrying purchases home).
The ministry concludes that while it acknowledges that the appellant experiences restrictions with
DLAs requiring lifting and prolonged standing, there is not enough evidence to confirm that the
appellant has a severe impairment that significantly restricts his ability to perform DLAs continuously
or periodically for extended periods.
Panel findings
The panel notes that there are some contradictions between the evidence presented in the AR and
the QR insofar as restrictions experienced by the appellant in his ability to perform DLAs. For
example, the QR reports that the appellant experiences restrictions in his ability to perform the
following: grooming, toileting, reading labels and prices, and making appropriate choices. By contrast,
the AR reports that the appellant is independent in performing all of these DLAs. As noted earlier, this
may be a consequence of the QR having been completed six months later than the AR.
Nonetheless, the panel notes that there are numerous DLAs in which the appellant is reported to be
restricted where the evidence presented in the PR/AR/QR is consistent. Consider the following:
•The AR reports that the appellant is limited to lifting 5 to 15 pounds. The AR reports that the
appellant is continuously restricted in “carrying purchases home” and the GP comments “Unable to
do”. The QR reports that the appellant is “directly restricted from lifting, carrying or holding more than
5 to 10 lbs. due to chronic pain in back, and both legs. Finally, the appellant reported that he is
unable to carry his purchases home and requires the assistance of a friend to do so.
•The PR reports that the appellant is continuously restricted in regard to basic housework. The
AR reports that the appellant requires periodic assistance to do laundry and basic housekeeping. The
GP has added the following comment “Requires periodic (70% of time) to continuous assistance for
all of the above DLAs due to physical and mental impairments.” The QR reports that the appellant
has “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.”
•The PR reports that the appellant is continuously restricted in personal self care. The AR reports
that the appellant requires continuous assistance from another person (or is unable to do) both
dressing and bathing. In regard to dressing, the GP comments “Can’t put socks on” and in regard to
bathing he comments “Difficult to do.” The QR reports that in regard to dressing, the appellant has
“significant restrictions with bending to put on shoes, socks, and pants due to chronic pain in back,
and both legs.” In regard to bathing, the QR states that the appellant has “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.”
•The PR reports that the appellant is continuously restricted in meal preparation. The AR reports
that the appellant requires continuous assistance from another person for (or is unable to do) food
preparation and the GP comments “Has to sit to do it.” The QR reports that in regard to food
preparation/cooking, the appellant has “Significant restrictions with standing longer than 10 to 15
minutes due to chronic pain in back, both legs and depression.”
The panel notes (once again) that the Reconsideration Decision has critiqued each piece of evidence
in isolation and has not acknowledged the integrated and complementary picture they present of
significant restrictions experienced by the appellant in performing DLAs. Based upon the above-noted
considerations the panel concludes that the ministry determination that the appellant is not
significantly restricted in performing his DLAs was not a reasonable conclusion.
Help with DLA
The position of the appellant is that he does require significant assistance from another person to
perform DLAs. As noted previously, the appellant explained that the GP’s comment in the AR that the
appellant received assistance from “no one” was a result of the appellant telling the GP that he had
no one to help but not that he needed no one to help. The appellant noted that the QR reported that
he received assistance from a friend for lifting/carrying holding, laundry/housekeeping, and carrying
purchases home. As explained previously, the appellant did not have assistance from others at the
time the GP completed the PR and the AR (June 2015) but when the QR was completed (December
2015) the appellant had secured help from a friend.
In the Reconsideration Decision, the ministry argued that:
1.
In the PR the GP indicates that the appellant does not require any prostheses or aids for his
impairment.
2.
In the AR, the GP indicates that the appellant is not provided assistance by other people.
3.
In the QR the GP indicates that the appellant would benefit from the use of bathing/toileting
aids and a scooter.
The ministry argues that as it has not been established that DLAs are significantly restricted, it cannot
be determined that significant help is required.
Panel findings
The panel notes that there is some ambiguity/contradiction in the evidence regarding the level of
assistance required by the appellant. It is clear that the appellant does not use assistive devices
(although the QR reports that the appellant sometimes uses a cane when standing in line ups longer
than 5 minutes) and the appellant does not have an assistance animal. In the AR, the GP reported
that the appellant (has) no one to assist him. In addition, the GP did not answer the question
regarding what assistance the appellant would require if help is required but none is available.
Nonetheless, the panel notes that the AR reported that the appellant requires continuous assistance
with 12 DLAs and periodic assistance with 2 DLAs as well as continuous support/supervision for one
DLA and periodic support/supervision for one DLA. Accordingly, the panel concludes that the AR
supports that appellant’s claim that he requires significant help or supervision from another person.
Moreover, the QR reports that the appellant requires assistance for the following: dressing, bathing,
toileting, transfers on/off bed and chair, laundry/housekeeping, going to and from the store, paying for
purchases, carrying purchases home, food preparation/cooking, banking and getting in/out of a
vehicle. More importantly, the QR reports that the appellant receives assistance from a friend for
lifting/carrying/holding, laundry/housekeeping and carrying purchases home. The appellant indicated
at the hearing that he was dependent on such assistance on a regular basis. Accordingly, the panel
concludes that the ministry determination that it cannot be determined that significant help is required
by the appellant is not a reasonable conclusion.
Conclusion
Having reviewed and considered all of the evidence and the relevant legislation, and for the reasons
provided above, the panel finds that the ministry’s decision that the appellant was not eligible for
PWD designation was not reasonably supported by the evidence. The panel therefore rescinds the
ministry’s decision.
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