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 10 May 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 ministry did not attend the hearing. After confirming that the ministry 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 28 August 2015. The Application
contained:
A Self Report (SR) completed by the appellant.
A Physician Report (PR) dated 18 September 2015, completed by the appellant’s general
practitioner (GP), who has known the appellant for 6 months and seen her 2-10 times
over that period.
An Assessor Report (AR) dated 20 August 2015, completed by a health authority social
worker (SW), who had seen the appellant once and who relied on an office interview and
medical reports that were dated but provide history of medical conditions to first
diagnosis.
2.
The appellant’s signed Request for Reconsideration dated 13 April 2016. The ministry also
had before it at reconsideration a letter from the SW dated 27 April 2016 (see below).
In the PR, the GP lists the following diagnoses related to the appellant’s impairment: rheumatoid
arthritis (onset Jan 1981), and osteoporosis, confirmed recently with a second opinion (onset
2003).
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 in this appeal. [Panel note: in the AR, the
SW provided extensive commentary; in summarizing, the panel will provide the gist of the
commentary, shown in parentheses.]
Severity/health history
Physical impairment
PR:
Under Health History, the GP writes:
[The appellant] was diagnosed with rheumatoid arthritis in 1981. She has had multiple drug
therapies, but currently not on any disease modifying drugs. Her main symptoms are
multiple joint morning stiffness. She has varying pain in her joints – especially her knee,
wrists and elbow. She has osteoporosis with previous compression fractures of her lumbar
and thoracic spines. Has chronic back pain.”
Under Degree and Course of Impairment the GP indicates that the impairment is likely to continue
for two or more years, commenting “Likely life-long. Rheumatoid arthritis currently quiescent.”
Under Additional Comments, the GP writes: “[The appellant] likes to keep active but is limited by
her disease… She has a falls risk and previous osteoporotic spinal fractures.”
As to functional skills, the GP reports that the appellant can walk 2 to 4 blocks unaided, can climb
5+ steps unaided, can lift 5 to 15 lbs., and can remain seated for less than 1 hour. The GP
comments: “Mobility is restricted due to slow speed.”
The GP indicates that the appellant has not been prescribed any medication that interferes with
her ability to perform DLA.
AR:
The SW describes the appellant’s impairment as follows: “.“[The appellant] was diagnosed in
1981 with rheumatoid arthritis. Further diagnosis of polyarthritis involving: wrist (bilateral), feet
(bilateral), right knee and right hip… also severe neck pain. Sjogren’s Syndrome.”
Mental impairment
PR:
Under Health History, the GP writes: ”She currently has an improving reactive depression
secondary to her husband's death.”
The GP assesses the appellant as having no difficulties with communications.
The GP indicates that the appellant has no significant deficits with cognitive and emotional
function. The GP comments: “Reactive low mood – treated with antidepressants.”
AR:
The SW describes the appellant’s mental impairment as follows: “[The appellant] struggles to
keep depression from taking hold. History of flare-ups and remissions.”
The SW assesses the appellant's ability to communicate as good for reading and writing and
satisfactory for speaking and hearing (tinnitus).
The SW provides a 3 page supplement to the AR setting out her assessments of the impacts of
the appellant's mental impairment on daily functioning, as follows:
Major impacts:
•
Emotion: (feels depressed, grieving for loss of husband; anxious over matters that she cannot
control, making her impatient and uncertain).
•
Motor: (movement curtailed, at times significantly, when there are flare-ups with arthritis; can
become easily agitated, with tension around changes to her medical condition).
Moderate to major impacts:
•
Bodily functions: (careful with diet because she has ”slower bowel function;” takes medications
to help with sleep but still has difficulty sleeping.)
•
Attention/concentration: (variable: difficulty with staying focused in conversation and tasks due
to constantly “reading” the impact of medical condition on a daily basis.)
•
Motivation; (variable; motivation lost when there is a flare-up; maintaining the balance between
gauging what she can do and living within these limits is emotionally draining).
Moderate impacts:
•
Consciousness: (sometimes confused through the day, often enough to be disconcerting).
•
Memory: (depends on the extent that her attention/concentration are also impacted at any given
time).
•
Other emotional: (wants to move from where she is living with a friend and have an independent
lifestyle; this cannot be accomplished without PWD designation; if unsuccessful there will be
considerable emotional distress.
Minimal impacts:
•
Impulse control.
•
Insight and judgment.
•
Executive.
•
Language
•
Other neurological/neuropsychological problems.
Ability to perform DLA
PR:
The GP indicates that the appellant’s activity is restricted on a continuous basis for basic
housework and on a periodic basis for personal self-care and mobility outside the home. The GP
indicates that the appellant is not restricted for the following DLA: meal preparation, management
of medications, daily shopping, mobility inside the home, use of transportation, management of
finances and social functioning.
In commenting on periodic restrictions, the GP states: “Hurts/difficult to comb hair. Cannot
vacuum house. Has fall risk – trips easily.”
The GP provides additional comments regarding the degree of restriction: “Mobility is restricted
due to slow speed, stiffness and pain.”
AR:
The SW reports that the appellant lives with friends.
Regarding mobility and physical ability, the SW assesses the appellant as follows:
Walking indoors: independent.
Walking outdoors: uses assistive device (cane) and takes significantly longer than typical
(more than 2 blocks pain intensifies).
Climbing stairs: takes significantly longer than typical (about stair #9, fatigue and pain
become intense).
Lifting and carrying and holding: continuous assistance from another person or unable and
uses an assistive device (4 lbs. max; uses a wrist splint).
The SW comments that standing in the kitchen is limited to 15-20 minutes. The appellant also
reports that she is susceptible to barometric pressure changes
The SW assesses the assistance required for managing DLA as follows:
Personal care:
Dressing – takes significantly longer than typical (seats to dress).
Grooming – continuous assistance from another person or unable and take significantly
longer than typical (hair once/week; assistance for nails).
Bathing – uses an assistive device and takes significantly longer than typical (uses shower
chair; 2x longer).
Toileting – uses an assistive device and takes significantly longer than typical (uses grab
bar).
Feeding self – continuous assistance from another person or unable (cannot cut firm
veggies without help).
Regulate diet – Independent
Transfers in/out of bed – takes significantly longer than typical (requires 20 – 30 minutes of
stretches before getting out of bed)
Transfers on/ off chair – take significantly longer than typical (pushes off with right hand,
waits to ensure she can stand independently).
Basic housekeeping:
Laundry – continuous assistance from another person or unable (landlady does laundry for
her; cannot lift or transfer).
Basic housekeeping – continuous assistance from another person or unable (cannot
vacuum; very hard to make beds – needs assistance).
Shopping:
Going to and from stores – continuous assistance from another person or unable (goes with
landlady every other day).
Reading prices and labels – independent.
Making appropriate choices and paying for purchases – independent and uses assistive
device (asks for help to get items from above shoulder height, uses scooter in larger
stores).
Carrying purchase home -- continuous assistance from another person or unable (needs
help to pack items; landlady assists).
Meals:
Meal planning – independent.
Food preparation – continuous assistance from another person or unable (insufficient
strength to open cans and jars; needs help)
Cooking – periodic assistance from another person required.
Safe storage of food – Independent and takes significantly longer than typical.
Pay rent and bills:
Banking – continuous assistance from another person or unable (gets ride to bank).
Budgeting – independent.
Pay rent and bills – independent.
Medications:
Filling/refilling prescriptions – continuous assistance from another person or unable (gets
ride from landlady).
Taking as directed and safe handling and storage – independent.
(10/06/01)
Transportation:
Getting in/out of vehicle – uses assistive device and takes significantly longer than typical
(uses hand grip to ease out of car seat).
Using public transit and using transit schedules and arranging transportation – independent
(does not use buses – conscious of lack of bus-stop benches).
With respect to social functioning, the SW assesses the appellant as requiring continuous
support/supervision for making appropriate social decisions (appellant was homeless for period of
years), developing and maintaining relationships (2 friends; close with landlady and recognizes
relationships can be strained by dependency), interacting appropriately with others, dealing
appropriately with unexpected demands (leaves her feeling vulnerable) and securing assistance
from others (has only landlady to ask for help on a regular basis).
The SW assesses the impact of the appellant's impairment on her immediate social networks as
very disruptive functioning with her immediate social network (withdrawn, doesn’t socialize, only
social connection is her landlady) and with her extended social network (major social isolation, no
outside activities or groups).
Help required
PR:
The GP indicates that the appellant does not require any prosthesis or device to compensate for
her impairment.
The GP comments: “Walking cane. Needs support at home, currently has friend who cooks,
cleaning, combing hair.”
AR:
The SW states that the appellant “ has the support of her friend/landlady where she stays. It is
doubtful that she would [could] manage life on her own without support yet this remains her
personal goal.”
The SW indicates that the appellant routinely uses a cane (for walking outdoors), a scooter (in
large stores), and a splint for her wrists as (bilateral).
Self report
In describing her disability, the appellant writes that in 1981 she was diagnosed with rheumatoid
arthritis and treated with various medications. In 2004 she was diagnosed with rheumatoid
arthritis with overlap Sjorgren’s syndrome. Given her antibody profile, she has inflammatory
polyarthritis and secondary degenerative arthritis, and rheumatoid arthritis overlapping with SLE
(Systemic lupus erythematosus).
In describing how her disability affects her life, the appellant writes that her inflammatory
polyarthritis results in swelling and aching joints, often accompanied by muscle stiffness. Her right
side is much more troublesome than the left side. Persistent fatigue requires her to slow down –
she has learned that she can work with the computer only for less than 30 minutes. She needs to
stay active to keep her joints and muscles flexible.
As part of living with arthritis, she is aware of the complexities of the health issues for weight,
hypertension and depression. She keeps good, healthy life choices, staying active to maintain a
healthy weight and lower the burden on her aching joints. Regular exercise helps her recover
from flare-ups. She copes with signs and symptoms with her experiences. She knows over
loading activities and changing weather patterns will trigger flares. She minimizes the impact to
help her recover as quickly as possible. Rest and increased medications help to decrease the
inflammation. She uses splints to immobilize her wrists. She tries to keep her healthy spirit. She
tries to manage her fatigue through alternating her activities with periods of rest through the day,
planning things ahead and preparing meals in advance. She is aware that she can stand 20
minutes at most.
Her chronic sinuous inflammation triggers her face and goes into her head, causing headaches.
Joint problems in her neck involve chronic muscle strain and cause sensitivity in skull and so-
called referred pain, with constant tinnitus.
She maintains a good, healthy diet and balances sugar level and exercise to maintain her well
being.
Request for Reconsideration
In his letter at reconsideration, the SW states that:
When the appellant recently visited his office, she was using a cane for ambulation.
She presented with extended soft tissue injuries to her legs as a result of a fall a week
before.
The appellant made it clear that she uses a cane all the time and that excessive
walking (2 blocks) results in her being incapacitated for three days following. Walking 1
block results in tolerable discomfort but two blocks is what she reports to be beyond
her capability
The appellant had recently moved to a building, a residence not under government
regulation, and occupies a bedroom and shares the other rooms with other residents,
all of whom have a disability or infirmity of some nature. The environment is supportive
from a daily living perspective
The appellant reinforced that she can only lift and carry 4 lbs. in her free hand, the
other hand holding the cane.
She seldom showers, and it appears that her falls risk is escalated to the point where
she is fearful of sustaining her stance in the shower. This issue has reached serious
proportions and could result in social isolation. The appellant indicated that she does
not have the strength in her right arm to raise it to her head to wash her hair – she lifts
her the right elbow with her left hand and pushes up so that she can scrub her scalp.
Regarding her overall mood, the appellant stated that it is only recently that she has
become aware of her marked sadness that she described as having been pervasive all
her life, as a result of abuse as a child and feeling that she had no choice but to
suppress the incidents.
The appellant has support for DLA such as cooking and cleaning where she lives, as
there are a number of residents that can trade efforts by doing tasks they are capable
of. Assistance now ranges from cooking and cleaning and to changing linens. She
takes more responsibility with cooking (taking her time) and allows the other more
physically challenging activities such as washing floors, bathrooms and linen changes
to be done by others. Social functioning has therefore improved but only because of
circumstances.
Notice of Appeal
The appellant’s Notice of Appeal is dated 17 May 2016. Under Reasons for Appeal, the appellant
writes “Clarification and documentation.”
Information submitted before the hearing
1.
Blood test results dated 11 June 2016.
2.
Letter from the appellant’s [former] landlady dated 29 May 2016. She writes:
“[The appellant] shares the main floor with me. I do all the floor cleaning, bathroom
cleaning, compost and garbage removal. [The appellant] has trouble with these
movements. She does her own cooking and light housekeeping duties like
dishwashing…. She uses a cane to help her walk. I help her shop with my car at times.”
3.
Letter from the appellant’s friend, who writes that she has taken the appellant shopping for
groceries, etc., as she has problems with her mobility. She has problems getting in and out
of the vehicle and carrying her items to her domicile.
4.
Bone Mineral Density Scan dated 21 September 2015: Absolute fracture risk category:
High. The 10-year fracture risk is 20%.
5.
Clarification of the PR (“GP’s clarification”), dated 01 June 2016. Before completing this
report, he had met the appellant 22 times, with an average duration of 10 minutes. The GP
states that the appellant's diagnoses of rheumatoid arthritis and osteoporosis restrict her
mobility, physical ability and mental functioning in the following ways:
Unable to walk more than one block without discomfort and need for rest.
Unable to safely lift more than approximately 2 lbs. on a regular basis.
Must use a cane when outside the home to support walking and standing
Due to weak joints, sometimes uses wrist supports to avoid putting weight on wrists
when leaving on cane.
Suffers ongoing depression that requires counselling and psychotherapy.
Requires regular daily assistance with shopping, and cleaning and daily mobility from
friends and companions since she cannot healthfully perform these activities herself.
Sjorgen’s syndrome 1998 + SLE - relapsing recurring.
6.
Pain chart [undated], showing pain levels on a scale of 0 to 10. Pain in feet/ankles 8-10; in
knee 7 (left) and 10 (right); wrist 9; upper body 6-9.
7.
Consultation report dated 09 June 2016 prepared by a rheumatology specialist. The report
was headed
“THIS CONSULT WAS NOT PREPARED FOR USE IN A MEDICAL LEGAL OR
DISABILITY PROCEEDING.”
8.
Medical imaging report dated 10 June 2016 of x-rays of bilateral feet, bilateral hands and
cervical spine.
9.
Submission by the appellant’s advocate received by the Tribunal on 28 June 2016. The
submission reviews the evidence and goes to argument (see Part F, Reasons for Panel
Decision, below).
The hearing
At the hearing, the appellant's advocate submitted a letter from another occupant of the
appellant's residence. He writes:
“We both share the sitting room and kitchen area. [The appellant] sometimes has difficulty
with doing certain tasks and so I help or others assist when available.
I assist her with carrying heavy items as well as taking items out of the cabinet due to her
inability to get these things done herself.”
The appellant's advocate spoke to her submission. In particular the advocate addressed the
differences between the assessments provided in the PR and in the AR. When the PR was
completed by the GP, he had met the appellant six times, for a period of 10 minutes on each visit.
By contrast, the SW had spent over two hours meeting with the appellant in completing the AR.
The differences can also be explained taking into account the appellant's language and cultural
tendencies when self-reporting, with the appellant answering questions according to her particular
understanding of the question. For example, when the GP asked her how far she could walk, the
appellant responded that she could walk 2 to 4 blocks but did not volunteer the information that
between every block she needs to rest or that this exercise would cause her body to seize up for
days – she answered optimistically and did not share with the GP that she did not actually
remember walking that far in the recent past.
The balance of the advocate’s presentation went to argument as she reviewed the restrictions in
the appellant’s ability to perform DLA and the resulting help required (see Part F, Reasons for
Panel Decision, below).
The appellant described how her overall health had deteriorated in the recent past and how she
was now receiving proper attention, testing and treatment for her various conditions. She was
optimistic that with this attention her health would improve.
Admissibility of additional information
At the hearing, the appellants advocate stated that she was not seeking to have admitted as
evidence documents #1, #7 and #8 above. The appellant had requested an adjournment of a
previously scheduled hearing pending a visit to the doctor and referral to a specialist, and the
advocate had submitted these documents to demonstrate that the appellant had followed through
with these appointments.
The panel accepts the advocate’s submission as argument.
The panel does not admit as evidence the appellant’s pain chart (completed by the appellant at
the advocate’s suggestion), as there was no information before the ministry at reconsideration
regarding the intensity of the appellant’s pain.
The panel finds the information contained the remaining documents submitted before the hearing,
the letter from the other occupant of the appellant's residence submitted at the hearing, and the
testimony of the appellant at the hearing is in support of the information and records before the
ministry at reconsideration. In particular, the information provided in the GP’s clarification tends to
substantiate information provided by the SW in the AR and his letter at reconsideration. The panel
therefore admits this information as evidence pursuant to section 22(4)(b) of the Employment and
Assistance Act.
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 ministry’s position
The position of the ministry, as set out in the reconsideration decision, is that due to inconsistencies
between the information provided in the PR and the AR, it is difficult to develop a clear and coherent
picture of the degree of the appellant's impairment, impacts on her ability to perform DLA, and the
assistance required as a result. The ministry finds the PWD application to be problematic as the AR
was completed by the SW who had met the appellant for the first time when completing the AR.
Referring to the instructions page of the AR, the ministry states that the AR is intended to be
completed by a prescribed professional having a history of contact and recent experience with the
applicant and is to be based on knowledge of the applicant, observations, clinical data and
experience. The PR was completed by the GP, who states that he has known the appellant for six
months and has seen her 2 to 10 times in that period. As a result the ministry is inclined to place
more emphasis on the assessments provided by the GP.
With regard to the severity of physical impairment, the ministry reviewed the information provided by
both the GP and the SW regarding functional skills and mobility and physical ability, and related
narratives, and noted several discrepancies between the assessments reported by the GP in the PR
and by the SW in the AR and in his letter at reconsideration– e.g. that the GP reports that the
appellant can walk 2 to 4 blocks unaided while SW reports that the appellant can walk 1 block with
discomfort, and uses a cane; and that the GP assesses the appellant able to lift 5 to 15 pounds while
the SW reports that she can lift 4 pounds with one hand. Based on the assessments provided, and
giving more emphasis on the information provided by the GP, the ministry acknowledged that
although the appellant is limited with regard to her physical functioning, a severe impairment of
physical functioning has not been established.
As to the severity of mental impairment, the ministry noted that under health history the GP had
written that the appellant currently has an improving reactive depression secondary to her husband's
death, suggesting to the Ministry that the appellant's depression is situational in nature and may
lessen in the future. The ministry also noted that the GP had reported no difficulties with
communication and no significant deficits with cognitive and emotional functioning. The ministry also
reviewed the assessments provided by the SW in the AR including major impacts to cognitive and
emotional functioning in 4 areas, moderate to major impacts in 2 areas and moderate impacts in
three areas. The SW also assessed the appellant as requiring continuous support/supervision in all
listed areas of social functioning and very disruptive functioning with both her immediate and
extended social networks. However, for the reasons described above, the ministry placed greater
emphasis on the assessments provided by the GP in the PR and determined that a severe
impairment of mental functioning has not been established.
Respecting the appellant’s ability to perform DLA, the ministry noted several discrepancies between
the assessments provided by the GP in the PR and by the SW in the AR. In particular the SW
indicates restrictions in the areas of shopping, meals, paying rent/bills, medications and use of
transportation while in the PR the GP indicated that the appellant is not restricted for those DLA.
Further, while the SW has assessed the appellant as taking significantly longer than typical for
several tasks, he has not provided any information as to how much longer it takes to perform these
tasks. In addition, while the SW has described the need for assistive devices such as a shower chair,
toilet grab bar, and scooter in large stores, the need for such devices was not described in the PR.
The ministry also noted that in his letter at reconsideration, the SW's description of the appellant's
new residence suggests the residents help one another without the provision of assistance from
professional care aides. Placing greater emphasis on the assessments provided by the GP in the PR,
the ministry found that there was not enough evidence to establish that the appellant's impairment
significantly restricts her ability to perform DLA either continuously or periodically for extended
periods.
Regarding the help required criterion, as it is not been established that DLA are significantly
restricted, the ministry found that it cannot be determined that significant help is required
The appellant’s position
In her submission, and at the hearing, the appellant's advocate disputed the emphasis placed by the
ministry on the information provided by the GP in the PR over the information provided by the SW in
the AR. The advocate cited Hudson (2009 BCSC 1461) and argued that that decision held that:
I. Either the medical practitioner or the assessor confirms that a person severe impairment
directly and significantly restricts their ability to perform daily living activities; or
II.
The medical practitioner and the assessor's evidence when read together, confirm that the
person has a severe impairment that directly and significantly restrict their ability to perform
daily living activities.
The advocate also referred to section 2(2)(a) of the EAPWDR where the different eligible categories
of prescribed professionals are listed, noting that both a medical practitioner and a social worker were
included on the list, with none given precedence over another. The advocate argued that there is no
statutory matrix for reading the PR and AR discreetly and there is no statutory requirement for
confirmation from both the doctor and the assessor.
Regarding the severity of physical impairment, the advocate noted that the SW in his letter at
reconsideration reported that the appellant can walk 1 block, and that distance only with the use of a
cane. This assessment was confirmed by the GP in his clarification on appeal. The advocate also
noted that the appellant can lift only 2 - 4 lbs., again as reported by the SW in his letter and confirmed
by the GP in his clarification. Further, the evidence shows that the appellant cannot independently lift
her right arm above her head and needs to support the elbow with her left hand to do anything above
her shoulder height with her right hand. Given these restrictions, the advocate submits that the
evidence clearly demonstrates that the appellant has a severe physical impairment.
At the hearing, the appellant's advocate stated that, while the appellant suffers from depression, this
is secondary to her physical condition and the loss of her husband. Accordingly, the appellant is not
arguing that she has a severe mental impairment.
With regard to the appellant's ability to perform DLA, the advocate reviewed the assessments
provided by the SW in the AR, as updated by his letter at reconsideration, and the assessments
provided by the GP in his clarification on appeal, and argued that the evidence clearly demonstrates
that the appellant's ability to perform DLA is significantly restricted on a continuous basis.
As to help required, the appellant submits that the GP’s clarification on appeal that ”Requires regular
daily assistance with shopping, and cleaning and daily mobility from friends and companions since
she cannot healthfully perform these activities herself.” as well as his confirmation that the appellant
requires the use of a cane when walking outdoors, demonstrates that as a result of her severe
physical impairment she requires significant help to perform DLA.
Panel decision
Weight of evidence
In considering the issue raised by the ministry regarding the emphasis to placed on the information
provided by the GP relative to that of the SW, the panel notes the following:
There is no provision in the legislation requiring the prescribed professional to have had a
history of contact with the PWD designation applicant before completing the AR.
The SW completed the AR in great detail, with much narrative and commentary.
The ministry had before it at reconsideration a letter from the SW setting out his observations
at the second visit from the appellant and providing an update of the her changed
circumstances.
In the GP’s clarification on appeal, the GP essentially confirmed the thrust of assessments
provided by the SW in the AR and in his letter on appeal.
Taking all this into account, the panel finds the ministry was not reasonable in placing greater
emphasis on the GP’s assessments relative to those provided by the SW.
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 SW.
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
In the PR, the GP diagnosed the appellant with rheumatoid arthritis and osteoporosis, commenting:
“She has varying pain in her joints – especially her knee, wrists and elbow.” In terms of the impact of
these medical conditions on physical functioning, while the GP in the PR assessed the appellant as
being able to walk 2 to 4 blocks unaided and lift 5 to 15lbs, he also noted that the appellant uses a
walking cane and commented that “mobility is restricted due to slow speed, stiffness and pain.” In his
letter at reconsideration SW reported that the appellant is able to walk one block, and only with the
use of a cane. This latter assessment was confirmed by the GP in his statement on appeal. In the
AR, the SW reported that the appellant could lift 4 lbs. maximum, and the GP in his clarification on
appeal the maximum weight at 2 lbs. in the AR the SW noted “to abduct right arm must lift right elbow
with left hand.” In the PR, the GP comments: “fall risk – trips easily.” The panel understands this to
mean both that the appellant is prone to falling and there is a high risk of bone fracture if she does fall
due to her osteoporosis.
Regarding other impacts of the appellant’s medical conditions on daily functioning, see below under
Direct and significant restrictions in the ability to perform DLA.
Taking into account the above restrictions and their reported impact on physical functioning, including
the evidence admitted on appeal, the panel finds that the ministry was unreasonable in determining
that a severe physical impairment had not been established.
Mental impairment
In the PR, while the GP comments under health history that the appellant “currently has an improving
reactive depression secondary to her husband's death,” the GP did not provide a diagnosis of
depression or any other mental health condition, nor did he identify any significant deficits in cognitive
and emotional function, as a medical condition related to an impairment that would be expected to
continue for at least two years. While the SW provides assessments regarding the impact of the
appellant's depression on daily functioning and social functioning, considering the GP’s description of
the depression and the appellant’ position that she is not arguing that she has a severe mental
impairment, the panel finds that the ministry was reasonable in determining that a severe mental
impairment had not been established.
Direct and significant restrictions in the ability to perform DLA
The 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 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 and SW. This does not mean that other evidence should not 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.”
The GP has provided general assessments regarding the appellant's need for assistance in
performing DLA:
From the PR: Walking cane. Needs support at home, currently has friend who cooks, cleaning,
combing hair.” and
From his clarification on appeal: “Requires regular daily assistance with shopping, and cleaning
and daily mobility from friends and companions since she cannot healthfully perform these
activities herself.”
In his letter at reconsideration, the SW stated that the appellant has support for DLA such as cooking
and cleaning where she lives, as there are a number of residents that can trade efforts by doing tasks
they are capable of. Assistance now ranges from cooking and cleaning to changing linens. She takes
more responsibility with cooking (taking her time) and allows the other more physically challenging
activities such as washing floors, bathrooms and linen changes to be done by others.
With regard to more detailed assessments for ability to manage specific DLA, the panel notes the
following:
Moving about indoors and outdoors: as discussed above under severity of the physical
impairment, the appellant is restricted to walking 1 block, and that distance only with the use of
a cane; further, the risk of falling is a safety issue.
Shopping for personal needs: the SW assesses the appellant as requiring continuous
assistance from another person or unable for going to and from stores, reading prices and
labels and carrying purchases home. From the evidence, someone always drives her, goes
with her and helps in store.
Basic housekeeping: the SW assesses the appellant as requiring continuous assistance from
another person or unable for laundry and basic housekeeping. From the evidence, while she
may help with light housework such as putting dishes in the sink, she relies on others for
heavy-duty tasks such as vacuuming, cleaning floors and changing bed linen.
Personal self-care: the SW assesses the appellant as requiring continuous assistance from
another person or unable for grooming (hair and nails) and using an assistive device and
taking significantly longer than typical for bathing and toiling. The evidence is that she had
grab bars near the toilet and in the shower at her former residence but these are not available
in her current home. The SW described in his letter at reconsideration her reluctance to
shower and her difficulties washing her hair.
The SW also assessed restrictions relating to key aspects of other DLA: for the DLA of meals, the
SW assessed the appellant as requiring continuous assistance from another person or unable for
food preparation, and she requires assistance opening jars and cutting hard vegetables. For the DLA
of managing personal finances and managing personal medications, the appellant requires
continuous assistance by getting a ride to the bank or pharmacy.
Considering the degree and extent of the restrictions of the appellant's ability to perform DLA, the
panel finds that the ministry was unreasonable in determining that, in the opinion of her prescribed
professionals, her ability to perform DLA was not directly significantly restricted on a continuous
basis.
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 must also require 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.
The panel has found that ministry was not reasonable in determining that the appellant's ability to
perform DLA was not directly and significantly restricted in a continuous basis. The evidence is that
the appellant requires the use of a cane for mobility outside the home and the use of grab bars in the
shower and by the toilet. In addition, she relies on the help of others in her new residence for helping
with meal preparation and cooking and heavier duty aspects of cleaning. She also relies on a friend
to drive her to stores and accompany her with shopping. Taking all this into account, the panel finds
that the ministry was not reasonable in its determination that, as it had not been established that DLA
are significantly restricted, it cannot be determined at significant help is required
Conclusion
Having reviewed and considered all of the evidence and relevant legislation, the panel finds that the
ministry’s reconsideration decision that determined that the appellant was not eligible for PWD
designation was not reasonably supported by the evidence. The panel therefore rescinds the
ministry’s decision in favour of the appellant. The appellant’s appeal is thus successful.
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