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 22 February 2016 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 her ability to perform daily living activities (DLA) either
continuously or periodically for extended periods; and,
(ii) as a result of those restrictions, she requires help to perform those activities.
The ministry determined that the appellant satisfied the other 2 criteria: she has reached 18 years of
age and her impairment in the opinion of a medical practitioner is likely to continue for at least 2
years.
PART D – Relevant Legislation
Employment and Assistance for Persons with Disabilities Act (EAPWDA) – section 2
Employment and Assistance for Persons with Disabilities Regulation (EAPWDR) – section 2
PART E – Summary of Facts
The appellant did not attend the hearing. After confirming that the appellant was notified of the
hearing, the hearing proceeded in accordance with section 86(b) of the Employment and
Assistance Regulation.
The evidence before the ministry at reconsideration consisted of the following:
1.
The appellant’s PWD Designation Application dated 02 June 2015. The Application
contained:
A Self Report (SR) completed by the appellant with the assistance of an outreach worker
from a charitable organization.
A Physician Report (PR) dated 10 August 2015, completed by the appellant’s general
practitioner (GP) who has seen her 2-10 times over the past year
An Assessor Report (AR) dated 14 August 2015, completed by a health authority
occupational therapist (OT) who has known the appellant for 4 months and seen her 2-10
times in that period.
2.
The appellant’s Request for Reconsideration dated 16 February 2016.
In the PR, the GP lists the following diagnoses related to the appellant’s impairment:
hydrocephalus (onset 1989), stroke (2015), hypertension (onset 2007) and migraine (onset 2007).
The panel will first summarize the evidence from the PR and the AR relating to the appellant’s
impairments as it relates to the PWD criteria at issue.
Severity/health history
Physical impairment
PR:
Under Health History, the GP writes: “[The appellant] suffered raised intracranial pressure in 1989
hence she has a VP [ventriculoperitoneal] shunt to reduce pressure. She is on treatment for high
blood pressure and depression. [Illegible] is secondary to the migraine.”
As to functional skills, the GP reports that the appellant can walk 4+ blocks unaided, can climb 5+
steps unaided, can lift 15 to 35 lbs., and has no limitation in remaining seated.
The GP reports that the appellant’s height and weight are relevant to her impairment: ~160 cm
and ~ 60 kg.
The GP indicates that the appellant has been prescribed medication that interferes with her ability
to perform DLA, without providing explanation. The anticipated duration of the medication is “for
life.”
AR:
The OT describes the appellant’s impairment as follows: “The appellant experiences fluctuating
dizziness negatively impacting motor skills & balance. She has poor visual scanning as well as
double vision. Constant headaches.”
Mental impairment
PR:
The GP assesses the appellant as having no difficulties with communications, though indicating
“Motor” as the cause.
The GP indicates that the appellant has significant deficits with cognitive and emotional function in
the areas of memory, emotional disturbance, motivation, motor activity, and attention.
In commenting on the appellant's social functioning, the GP writes: ”Her speech is sometimes
incomprehensible due to the stroke she suffered.”
AR:
The OT assesses the appellant's ability to communicate as good for speaking and hearing,
satisfactory for writing and poor for reading (commenting: “ double vision”)
Regarding cognitive and emotional functioning, the OT indicates that the appellant's mental
impairment restricts or impacts her functioning as follows:
Major impact – attention/concentration and memory.
Moderate impact – motivation.
Minimal impact – bodily functions, emotion, executive, and motor activity.
No impact – consciousness, impulse control, insight and judgment, language,
psychotic symptoms, and other neuropsychological problems.
Ability to perform DLA
PR:
The GP indicates that the appellant's impairment directly restricts her ability to perform DLA.
The GP indicates that the appellant’s activity is restricted on a periodic basis for the following
DLA: personal self-care, management of medications, basic housework, daily shopping, mobility
inside the home, mobility outside the home, and use of transportation. The GP indicates that the
appellant is not restricted for the following DLA: meal preparation, management of medications,
management of finances, and social functioning.
Commenting on those DLA for which the appellant is restricted on a periodic basis, the GP writes:
“Sometimes her migraine headaches make it difficult for daily basic functions.”
AR:
The OT reports that the appellant lives with family or friends.
Regarding mobility and physical ability, the OT assesses the appellant as independent for walking
indoors, walking outdoors, climbing stairs (“requires handrail for long stairs”), standing, lifting and
carrying and holding (for the latter 2 activities “able but affected by balance problems”).
The OT assesses the assistance required for managing DLA as follows (the OT’s comments in
parentheses):
Personal care – Independent for all aspects.
Basic housekeeping – independent for all aspects.
Shopping – no assessment for going to and from stores (able to walk under 1 km.; unable to
drive therefore requires assistance); independent for reading prices and labels (for a short
time, > unable to read & scan for long periods of time), making appropriate choices,
paying for purchases and carrying purchases home. The OT further explains: “[The
appellant] is able to go grocery shopping; however, attention and memory skill limit task
ability. Becomes fatigued & balance decreases when in store for more than 20 min.
Balance decreases with up/down scanning or extended reaching. Headaches increase with
mental & eye strain.”
Meals – independent for all aspects (slower pace & requires cues as she has forgotten to
turn off stove.
Pay rent and bills – independent for all aspects.
Medications – independent for filling/refilling prescriptions and safe handling and storage;
periodic assistance from another person required for taking as directed (sometimes forgets
to take medications).
Transportation – independent for all aspects (no public transport available at current
location; unable to drive).
With respect to social functioning, the OT assesses the appellant as independent for making
appropriate social decisions, developing and maintaining relationships, interacting appropriately
with others, dealing appropriately with unexpected demands and securing assistance from others.
The GP assesses the impact of the appellant's impairment on her immediate social networks as
good functioning and on her extended social network as marginal functioning, commenting
“Socially isolated due to environmental barriers. Family drives client into town; however this is not
a positive long-term solution.”
Help provided/required
PR:
The GP indicates that the appellant requires a prosthesis or aid for her impairment, noting the VP
shunt.
AR:
The OT reports that help required for the appellant’ DLA is provided by family, health authority
professionals and community service agencies.
The OT indicates the appellant routinely uses a bathing aid (a grab bar/clamp) to compensate for
her impairment.
The OT provides additional comment:
“The appellant struggles with managing iADL activities in a time sensitive manner.
Requires frequent breaks & rests to decrease eyestrain & headaches & dizziness.
Independent with most tasks, however slow & requires time to complete tasks. Headaches
& double vision & poor memory/concentration are primary limitations.”
Self report
In her SR, the appellant writes that in March 2015, she suffered a stroke that primarily affected
her left side. Since the stroke, the sight in her right eye is very blurry and she sees double all the
time. The stroke also affected her ability to concentrate – now she has a very poor memory. She
is also dizzy all the time and has very poor balance. She still suffers from extreme headaches and
is both light and motion sensitive – making it difficult, if not impossible, to move around or
complete the simplest tasks.
In describing how her disability affects her life and her ability to take care of herself, the appellant
writes that everything seems to take her at least 2-3 times longer to do than normal (7/7 days).
She has to move very slowly or she gets dizzy and she staggers when she walks or tracks to the
right side. Dizziness affects her every day and in everything she does – it is especially bad when
she bends over or moves side to side. She often will lose her balance, so she holds onto furniture
or anything else that is around.
She writes that she forgets to do things every day, giving examples such as making water for tea
and then forgetting to drink it. If she takes a break or sits for a rest, she seems to forget what she
was doing. Cooking and cleaning is almost all done for her by her cousin who lives with her. She
helps out where she can, usually sitting at the table cutting vegetables or prepping something, but
she can't move her focus or walk around without getting very dizzy. If she moves quickly, she can
be dizzy for15 seconds or up to 2 or 3 minutes – this happens at least 4-6 times/day -- and then
she is in danger of falling.
She goes on to write that she can't drive because everything is blurry and she sees double and
doesn't have any depth perception. Her cousin drives her to all her appointments or stores.
Grocery shopping is a chore because she often gets frustrated or overwhelmed and the light,
motion and sounds in stores stresses her out and then she feels anxious and must leave the
store. She has noticed that since the stroke she has trouble chewing on her left side so she does
all her chewing on the right side; she thinks this is because facial muscles were affected.
In terms of her mental health, the appellant writes that 7 days out of 7 she has confusion, anxiety
and depression. Every day she forgets things or doesn't finish things she started to do. At least 2-
3 times a week she forgets to take her medication on time or will forget to eat a meal. She has
difficulty interacting with others and has trouble asking for help and tends to avoid most activities
that would take her out of the house or around people. She is exhausted all day long.
The appellant reports that she has been prescribed medication for high blood pressure, for
anxiety/depression and for pain relief.
Regarding help from assistive devices, she writes that she uses chairs and furniture to stabilize
herself when she moves around the house. She uses handrails on all stairs, uses large handle
tools to help with her grip and a bath bar so she doesn't fall. She also uses an eye mask to help
her sleep or when she has a headache.
Request for Reconsideration
In her Request for Reconsideration, the appellant provides no new information. Under Reasons,
she explains her position (see Part E, Reasons for Panel Decision, below).
Notice of Appeal
The appellant's Notice of Appeal is dated 03 March 2016. Under Reasons, she writes:
“Not enough information from physician & OT. Vision problems affect all of daily living.”
The hearing
The ministry stood by its position at reconsideration.
.
PART F – Reasons for Panel Decision
The issue in this appeal is whether the ministry decision that determined that the appellant did not
meet three 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, her impairment is likely to continue for
at least two years. However, the ministry was not satisfied that the evidence establishes that:
the appellant has a severe physical or mental impairment;
the appellant's 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 living activity that, because of a
severe mental or physical impairment, the person is unable to perform;
"daily living activity" has the prescribed meaning;
"prescribed professional" has the prescribed meaning.
(2) The minister may designate a person who has reached 18 years of age as a person with disabilities for the
purposes of this Act if the minister is satisfied that the person has a severe mental or physical impairment that
(a) in the opinion of a medical practitioner is likely to continue for at least 2 years, and
(b) in the opinion of a prescribed professional
(i) directly and significantly restricts the person's 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.
The positions of the parties
The appellant’s position
The appellant's position is set out in her Request for Reconsideration. She writes:
“The issue as I see it and experience it on a daily basis is my vision impairment with blurred and
double vision, constant headaches and migraines. This affects my daily life with dizziness and
balance. I'm not able to read and therefore not able for work. I am also not able to drive and must
rely on other people to get to any of my appointments. I am also having anxiety, as I cannot
function at a normal capacity.
I don't feel the ministry has considered how life-changing it is when vision has been impaired.”
The ministry’s position
The position of the Ministry, as set out in the reconsideration decision, is that severe impairment of
the appellant's physical functioning has not been established. The ministry referred to the appellant's
functional skills limitations as reported by the GP in the PR (can walk 4+ blocks unaided, etc.). The
ministry also reviewed the information provided by the OT in the AR, noting that the OT has indicated
the appellant is independent in all listed areas of mobility and physical ability, and referring to several
gaps and inconsistencies in the information provided, Including a lack of description of this
severity/frequency/duration of the appellant's fluctuating dizziness or the severity or frequency of the
periods in which her ability with lifting/carrying/holding is affected by balance problems.
With respect to mental functioning, the ministry also determined that a severe mental impairment has
not been established. The ministry referred to the significant deficits with cognitive and emotional
functioning identified by the GP in the PR and the impacts on daily functioning assessed by the OT in
the AR and noted several inconsistencies. For example, while the GP indicates a significant deficit in
the area of emotional disturbance, the OT assesses a minimal impact in that area, and the GP
indicates a significant deficit with motor activity, the OT assesses a minimal impact. The ministry also
noted that although the OT indicates major impacts in the areas of cognitive and emotional
functioning, she also indicates moderate impacts in one area, minimal impacts in four areas and no
impacts in seven areas of cognitive and emotional functioning. The ministry found that the cumulative
impacts to cognitive and emotional functioning as indicated by the OT are indicative of a moderate,
as opposed to severe impairment of mental function. The ministry also the notes that the OT does not
describe the severity of the appellant's limitation with vision.
With regard to DLA, the ministry noted that the GP had indicated that the appellant was restricted in
performing several DLA on a periodic basis due to her migraines, but they GP did not describe the
frequency/duration of her migraine headaches that cause these periodic restrictions. The ministry
also reviewed the assessments of the appellant's ability to perform DLA as provided by the OT,
noting that the appellant was assessed as independent with all listed DLA except taking medications
as directed and going to/from stores, but no information was provided as to the frequency/duration of
the periodic assistance required with taking medications as directed. Based on the assessments
provided, the ministry found that there is not enough evidence to confirm that the appellant has a
severe impairment that significantly restricts her ability to perform DOA either continuously or
periodically for extended periods.
The ministry found that as it has not been established that DLA are significantly restricted, it cannot
be determined that significant help is required.
Panel decision
Severity of impairment
A diagnosis of a serious medical condition does not in itself determine PWD eligibility. Under the
legislation, eligibility for PWD hinges on an “impairment” and its severity. An “impairment” is more
than a diagnosed medical condition. An impairment is a medical condition that results in restrictions
to a person’s ability to function independently, appropriately, effectively or for a reasonable duration.
To assess the severity of impairment one must consider the nature of the impairment and the extent
of its impact on daily functioning, as evidenced by functional skill limitations and the degree to which
the ability to perform DLA is restricted. The legislation makes it clear that the determination of severity
is at the discretion of the minister, taking into account all of the evidence. However, the legislation is
also clear that the fundamental basis for the analysis is the evidence from a medical practitioner and
a prescribed professional – in this case, the appellant’s GP and the OT.
The legislation requires that for PWD designation, the minister must be “satisfied” that the person has
a severe mental or physical impairment. For the minister to be “satisfied” that the person’s impairment
is severe, the panel considers it reasonable for the ministry to expect that the information provided
presents a clear and complete picture of the nature and extent of the impacts of the person's medical
conditions on daily functioning.
Physical impairment
As stated in her Request for Reconsideration and her Notice of Appeal, it is clear to the panel that the
major physical issue affecting the appellant's physical functioning is her blurred and double vision and
related dizziness/balance problems, together with her migraine headaches. However, the GP makes
no reference to her vision/dizziness/balance issues in the PR, mentioning only the migraines. As the
ministry pointed out in the reconsideration decision, the GP provided no information as to the severity
or frequency of the migraines, only that “sometimes” they make daily functioning difficult. In the AR,
the OT identifies the vision/dizziness/balance problems as impacting the appellant's ability to manage
DLA, but again no description is provided as to the severity/frequency/duration of these problems
except that she requires frequent breaks and rests to decrease eye stain/headaches/dizziness and
that she is independent with most tasks, but she is slow and requires time to complete most tasks.
Considering the functional skill limitations reported by the GP (can walk 4+ blocks unaided, etc,) and
the assessments by the OT that of the appellant is independent in all listed aspects of mobility and
physical functioning and taking into account the (sometimes conflicting) assessments by the GP and
OT regarding her ability to perform DLA requiring physical effort (see below under “Direct and
significant restrictions in the ability to perform DLA”), the panel finds that the ministry was reasonable
in determining that a severe physical impairment had not been established.
Mental impairment
The GP does not identify a mental health condition as a diagnosis related to the appellant's
impairment, but does mention under Health History that she is being treated for depression. The GP
indicates that the appellant has several cognitive and emotional deficits and in the AR the OT
identifies major impacts in 2 areas: attention/concentration and memory, and a moderate impact with
motivation. As the ministry pointed out in the reconsideration decision, there are some
inconsistencies between the assessments in the PR and AR, including the GP indicating a significant
deficit for emotion and the OT assessing a minimal impact in that area.
In terms of impacts of the appellant's mental functioning on DLA, the information provided by the OT
points to memory issues as being a major factor, with the appellant requiring “cues” when cooking so
as not to forget to turn off the stove and periodic assistance required for taking medication as directed
as she “ sometimes” forgets to take her medication. In her SR, the appellant writes that forgetting to
take her medication on time happens 2-3 times a week, but this frequency is not confirmed by either
prescribed professional.
While the GP comments that the appellants speaking is sometimes “incomprehensible,” this impact
is not reported by the OT, who has worked with the appellant biweekly for 4 months, and who
assesses her speaking ability as good.
Considering that the GP has indicated that the appellant is not restricted in her social functioning, and
that the OT has assessed the appellant as independent in all listed areas of social functioning, with
good functioning with her immediate social network and marginal functioning with her extended social
network, the panel finds that the ministry was reasonable in determining that the appellant has a
moderate as opposed to a severe impairment of mental functioning.
Direct and significant restrictions in the ability to perform DLA
The panel notes that, according to the legislation, the direct and significant restriction in the ability to
perform DLA must be a result of a severe impairment, a criterion that has not been established in this
appeal. The legislation – section 2(2)(b)(i) of the EAPWDA – requires the minister to assess direct
and significant restrictions of DLA in consideration of the opinion of a prescribed professional, in this
case the appellant’s GP or OT. This doesn’t mean that other evidence shouldn’t be factored in as
required to provide clarification of the professional evidence, but the legislative language makes it
clear that the prescribed professional’s evidence is fundamental to the ministry’s determination as to
whether it is “satisfied.”
In the PR, the GP indicated that the appellant was restricted in her ability to perform several DLA on a
periodic basis, but except for the reference to migraines “sometimes” making it difficult for daily basic
functioning, does not further explain the reasons behind these restrictions – no reference to blurry
and double vision/dizziness/balance issues – or the frequency and duration of these restrictions.
In the AR, the OT assesses the appellant as independent for walking indoors, walking outdoors,
climbing stairs and standing (the DLA of moving about indoors and outdoors), noting that she
requires a handrail for long stairs (publicly available handrails are not considered assistive devices).
The OT also assesses the appellant as independent for virtually all aspects of the other DLA
applicable to a person with mental or physical impairment, with the exception of taking medications
as directed, for which periodic assistance from another person is required, but no information is
provided as to the nature, type or frequency and duration of such assistance. The OT also assesses
the appellant as independent for all listed areas of social functioning, while assessing her with good
functioning with her immediate social network and marginal functioning with her extended social
network. The OT also comments that the appellant is socially isolated due to environmental barriers
(without explaining what these barriers are) and that the family drives the appellant into town but this
is not a positive long-term solution.
Considering the lack of information provided by the GP and the extent to which the OT has assessed
the appellant as independent in her ability to manage almost all DLA, and taking into account that a
severe mental or physical impairment has not been established, the panel finds that the ministry was
reasonable in determining that there is not enough evidence to confirm that the appellant has a
severe impairment that significantly restricts her ability to perform DLA either continuously or
periodically for extended periods.
Help with DLA
Section 2(2)(b)(ii) of the EAPWDA requires that, as a result of being directly and significantly
restricted in the ability to perform DLA either continuously or periodically for extended periods, a
person requires help to perform those activities. That is, the establishment of direct and significant
restrictions under section 2(2)(b)(i) is a precondition of meeting the need for help criterion. Help is
defined in subsection (3) as the requirement for an assistive device, the significant help or
supervision of another person, or the services of an assistance animal in order to perform a DLA.
In the PR, the GP identified the appellant’s VP shunt as an assistive device. The panel does not
consider such a medical device, or other surgically implanted devices such as a heart pacemaker or
a replacement hip or knee, to meet the definition set out in section 2(1) of the EAPWDA of an
assistive device. The VP shunt was implanted to correct the appellant’s hydrocephalus. While
hydrocephalus is a serious medical condition, it is not a severe impairment established in this appeal.
Further, the definition speaks to a device “designed to enable a person to perform DLA,” implying that
the person has control over the device and how it is used. Such is not the case with an implanted
device.
The panel recognizes that the appellant benefits from the help of her cousin, with whom she lives,
and from the use of grab bar in the bath. However, as the ministry reasonably determined that direct
and significant restrictions in the appellant’s ability to perform DLA have not been established, the
panel finds that the ministry reasonably concluded that under section 2(2)(b)(ii) of the EAPWDA it
cannot be determined that the appellant requires help to perform DLA.
Conclusion
Having reviewed and considered all of the evidence and relevant legislation, the panel finds that the
ministry’s reconsideration decision determining that the appellant was not eligible for PWD
designation was reasonably supported by the evidence. The panel therefore confirms the ministry’s
decision.
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