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 02 August 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 evidence before the ministry at reconsideration consisted of the following:
1.
The appellant’s PWD Designation Application dated 20 January 2016. The Application contained:
A Self Report (SR) completed by the appellant as part of her Request for Reconsideration.
A Physician Report (PR) dated 05 March 2015, completed by medical practitioner
specializing in psychiatry (the psychiatrist), who had seen the appellant once.
An Assessor Report (AR) dated 20 January 2016, completed by the appellant’s general
practitioner (GP), who has known the appellant for 8 months and seen her 2-10 times in that
period.
2.
The appellant’s signed Request for Reconsideration dated 18 July 2016, to which was attached
the results of a CT scan ordered by the GP of the spine lumbar dated 27 June 2016.
In the PR, the psychologist lists the following diagnoses related to the appellant’s impairment, all with
onset 2005: major depression, duration recurrent; generalized anxiety with agoraphobia; and multiple
injuries from accident 2005.
The panel will first summarize the evidence from the PR, the AR and the CT scan relating to the
appellant’s impairments as it relates to the PWD criteria at issue in this appeal.
Severity/health history
Physical impairment
PR:
Under Health History, the psychiatrist writes:
“[The appellant] has struggled with acute or chronic mood & anxiety difficulties since her motor
vehicle accident in 2005 when she was hit by an impaired driver and had significant physical
injury. She has impaired mobility & discomfort evident in walking.”
Under Degree and Course of Impairment the psychiatrist indicates that the impairment is likely to
continue for two or more years, commenting: “Lifelong vulnerability to worsening on baseline,
heightened anxiety & physical discomfort. Medication and therapy have helped somewhat but not
completely.”
As to functional skills, the psychiatrist indicates “unknown” for how far the appellant can walk
unaided, how many steps she can climb unaided, and how much she can lift. The psychiatrist reports
that there are no limitations for how long the appellant can remain seated.
The psychologist indicates that the appellant has not been prescribed any medication that interferes
with her ability to perform DLA.
The psychiatrist indicates that the appellant requires a prosthesis or device to compensate for her
impairment, commenting: “Unclear at present with physical impairment. Please see report in assessor
section.”
AR:
The GP in the space provided does not describe the appellant’s impairment.
The GP assesses the appellant as independent for all aspects of mobility and physical ability –
walking indoors, walking outdoors, climbing stairs, standing, lifting and carrying and holding –
commenting: “Back pain, chronic but admits can walk as far as she needs to, takes over counter
analgesics.”
CT scan:
Conclusion: “Marked rotoscoliosis of upper intermediate lumbar spine convex to left. Very severe OA
at left L5-S1 apophyseal joint and severe OA at right L1-2 apophyseal joint. Moderate OA at several
other apophyseal joints. Narrowing of all cervical discs. No fractures.”
Mental impairment
PR:
Under Health History, the psychiatrist writes:
“Her mood is subject to depression when her tendencies towards anxiety even leaving her
place of residence are significant. Her appetite, sleep, motivation & energy level are all affected
& she isolates rather than going out if it all possible. She is a proud lady that has difficulty
accepting help & does her best to be self-sufficient even to our own detriment but has allowed
herself to accept some support in light of a worsening of recent difficulties and inability to cope
with any consistent physical and mental demands of work.”
The psychiatrist assesses the appellant as having no difficulties with communications.
The psychiatrist indicates that the appellant has significant deficits with cognitive and emotional
function in the areas of emotional disturbance, motivation, motor activity, attention or sustained
concentration, and memory.
AR:
The GP assesses the appellant's ability to communicate as good for speaking, reading, writing and
hearing.
Regarding cognitive and emotional functioning, the GP indicates that the appellant's mental
impairment restricts or impacts her functioning as follows:
Major impact – emotion and motivation.
Moderate impact – attention/concentration, executive, memory and motor activity.
Minimal impact – none.
No impact – impulse control, insight and judgement, language, psychotic symptoms and
other neuropsychological problems.
In providing additional comments, the GP writes: “Chronic anxiety/depression, chronic mechanical
low back pain, persistent financial stress are all contributing to her isolation and her ability to
rehabilitate herself with counselling and physio[therapy] and physical activity.
Ability to perform DLA
PR:
The psychiatrist indicates that the appellant's impairment directly restricts her ability to perform DLA.
The psychiatrist indicates that the appellant’s activity is restricted on a continuous basis for the
following DLA: basic housework, daily shopping, mobility inside the home, mobility outside the home
and social functioning. The psychiatrist indicates that the appellant is restricted for the following DLA
on a periodic basis: personal self care and meal preparation (commenting: “with worsening of mood”),
The psychiatrist assesses the appellant as independent for management of medications, use of
transportation and management of finances.
In commenting on how social functioning is impacted, the psychiatrist states: “Anxiety socially has
acute or chronic impact on her ability to leave home & be in public.”
AR:
The GP reports that the appellant lives with family or friends.
The GP assesses the assistance required for managing DLA as follows (the SW’s comments in
parentheses):
Personal care – periodic assistance from another person required for dressing and grooming;
independent for bathing, toileting, feeding self, regulating diet, transfers in/out of bed and
transfers on/off chair.
Basic housekeeping – periodic assistance from another person required for laundry and basic
housekeeping.
Shopping – periodic assistance from another person for going to and from stores and making
appropriate choices; independent for reading prices and labels, paying for purchases, and
carrying purchases home.
Meals – independent in all aspects (unknown).
Pay rent and bills – independent in all aspects.
Medications – independent in all aspects.
Transportation – independent for getting/out of a vehicle; periodic assistance from another
person required for using public transit and using transit schedules and arranging
transportation.
The GP provides additional comments: “Periodic means when her depression/anxiety is severe she
is unable to perform most tasks” and “If she finds her depression accelerating, unable to leave the
house. Back pain when severe preludes her from accessing public transit.”
With respect to social functioning, the GP assesses the appellant as requiring periodic
support/supervision for making appropriate social decisions, ability to develop and maintain
relationships, interacting appropriately with others, ability to deal appropriately with unexpected
demands, and ability to secure assistance from others. The GP comments: “Please see psychiatric
report, physician report.”
The GP assesses the impact of the appellant's impairment on her immediate social networks and on
her extended social network as marginal functioning.
In providing additional comments under social functioning, the GP writes: “Financial constraints are
causing more stress and anxiety.”
Help provided/required
PR:
With regard to assistance needed with DLA, the psychiatrist states: “See assessor section for any
recommendation for physical compromise.”
AR:
Respecting assistance required for social functioning, the GP states: “Regular contact with
psychiatrist. Regular medications.’
The GP states that with regard to assistance provided by other people “really has no one helping @
this point.” He goes on to comment: “Financial viability would relieve a lot of stress and controlling
depression/anxiety all would allow her to participate in community activity and counselling.”
In terms of assistance provided through the use of assistive devices, the GP states: “None that I am
aware of.”
Self report
In her SR, completed as part of her reconsideration submission, the appellant writes:
“Constant pain all the time, unable to sit any longer than 15 to 20 mins. I have to lay down
most of the time. Walking is hard for me, but I force myself to walk even if it is a block. When I
sit my lower spine is in my waist which causes a lot of pain. I cannot stand still as it puts
pressure on my spine. I become depressed over the fact I cannot accomplish anything. It
takes a long time to clean house that I manage where some things like vacuuming can take a
few days due to pain.”
Notice of Appeal
The appellant's Notice of Appeal is dated 12 August 2016. Under Reasons, she writes: “Incapable of
working.”
The hearing
At the hearing, the appellant’s advocate presented argument in support of the appellant’s application,
disputing the ministry’s decision (see Part F, Reasons for Panel Decision, below).
In answer to questions, the appellant stated that:
She lives in a 32-foot trailer. She sleeps on her couch, as the coils in her bed’s mattress
aggravate the pain in her back.
She doesn’t sleep well at night – usually just 3-4 hours, then she has to get up and may not
get back to sleep for the rest of the night.
She is in pain all the time. When she sits, her lower spine puts pressure on her waist, causing
pain. She tends to seize up if she sits too long.
She can only walk a quarter of a block before she has to stop and take a rest. At the most, she
can barely walk a block. She used to enjoy walking, but does not go for walks anymore.
She rarely leaves her house, sometimes maybe only once a month.
She never uses public transit, because she cannot walk as far as the bus stop.
She never uses a broom to sweep her floor, as she finds the sweeping motion painful. She can
handle a vacuum cleaner for a couple of minutes to clean her small carpet.
Food preparation and cooking are difficult, as she cannot stand for very long, so it takes her a
long time to make a meal.
She can drive her car to the store, but carrying groceries to her car is difficult.
Since her accident in 2005, she worked for a couple of years working looking after children for
a charitable organization. Since then, she has tried construction jobs, but these did not last
long. The last time she worked was over a year ago, but that didn’t work out. She feels that
because of her medical conditions, no one will hire her.
She has attended a mental health clinic in the past, but now cannot afford the gas to drive
there.
She has no one to help her on a regular basis. A couple of weeks ago, a friend came to visit
and was kind enough to clean her trailer for her.
The ministry stood by its position at reconsideration.
Admissibility of new information
The panel finds that the information provided by the appellant in her testimony at the hearing is in
support of the information and records before the ministry at reconsideration, as it tends to
corroborate and clarify the information in the appellant’s SR. The panel therefore admits the
appellant’s testimony as evidence pursuant to section 22(4) 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 appellant’s position
The position of the appellant was explained by her advocate at the hearing. The advocate noted that
the psychiatrist focuses her assessment on the appellant's mental faculties and not as much on the
physical, but supports there are both mental and physical impairments. While the psychiatrist at the
time of the application had only met the appellant one time, her initial assessment does not
undermine her professional ability to assess an applicant for the purposes of the PWD legislation.
The advocate submitted that the legislation does not speak to a requirement of a history of contact by
the medical practitioner with the applicant.
The psychiatrist confirms that the appellant has mental and physical impairments: major depressive
disorder – recurrent, generalized anxiety disorder, agoraphobia, and multiple injuries due to a motor
vehicle accident in 2005. The advocate noted that the appellant's description of her disabilities mirrors
that of the psychiatrist's assessment. In confirming the degree and course of the appellant's
impairment as continuing for two or more years, the psychiatrist wrote: “Lifelong vulnerability to
worsening on baseline, heightened anxiety and physical discomfort. Medication and therapy have
helped somewhat but not completely.” The psychiatrist also reported that social functioning requires
continuous assistance due to “Socially her acute or chronic impact on her ability to leave home and
be in public.” The advocate explained that the term “chronic” means impairments are long-lasting or
recurrent – persistent and lasting medical conditions, while the term “acute” means that the
impairments are short duration and of a recent onset. The advocate interpreted this to mean that the
depression and anxiety are chronic and the agoraphobia in acute. The advocate argued that the
psychiatrist supports that the mental health impairments primarily impact the appellant's ability to
perform DLA but the physical pain stemming from an MVA in 2005 also impacts her ability to perform
DLA. The psychiatrist also wrote: “Impaired mobility and discomfort is evident in walking.”
Turning to the GPs evidence in the AR, the advocate noted that the GP focused her attention more
on the physical disabilities of her patient, but does support that the appellant has impacts to daily
functioning due to mental impairment as she supports a major impact of emotion and motivation. The
GP also advised the ministry to read the psychiatrist's report – this appears to show support for the
psychiatrist’s assessments.
The advocate pointed out that both the psychiatrist and the GP support that the appellant's mental
health is impacted by memory issues, chronic depression, chronic anxiety, motivation, motor activity
and attention or sustained concentration. The only area of mental health issues on which the the
doctors disagree is that the GP supports that the appellant's executive thinking is impaired as well.
The advocate argued that the assessments of both doctors when read together support one another
in regard to a severe mental impairment.
The advocate stated that it is correct that the GP did fill in the PR with an assessment that appears to
be unsupportive of the appellant requiring assistance with DLA, but the GP does write the following:
“Periodic means when her depression/anxiety is severe she is unable to perform most tasks.” The
advocate submitted that as the GP is not treating the appellant primarily for mental health issues, as
this is being performed by mental health professionals, the GP may not have an idea of the times
each month that agoraphobia, anxiety and depression are severe to the point that she is unable to
perform most tasks. Additionally, the appellant may not have disclosed to the GP what she disclosed
to the psychiatrist, as the nature of her relationships with the two doctors are different, so the
application may be read as uneven.
The advocate noted that the appellant, in her SR, supplies several pieces of information of her
restrictions in regard to DLA, including being in pain all the time, unable to sit longer than 15-20
minutes, having to lie down most the time, walking is hard for her, she forces herself to walk even one
block and she becomes depressed over this.
The advocate noted that in the PR the psychiatrist supports that the appellant's impairments restrict
her ability to perform 7 DLA, with 2 being periodic and 5 being continuous need for assistance. The
GP in turn confirms that the appellant's impairments restrict her ability to perform most DLA
periodically, writing: “Low back pain… back pain when severe precludes accessing public transit…”
Thus both the psychiatrist and the GP support that the appellant requires assistance with DLA.
The advocate argued that the evidence of the physician and assessor must be read in their entirety
and in a broad way. In Hudson [2009 BCSC 1461], the court found that an application for PWD was
sufficient if either of the medical practitioner or the assessor confirms that the person’s severe
impairment directly and significantly restricts their ability to perform DLA. There is no statutory
requirement for confirmation from both. The advocate submitted that both prescribed professionals
have determined an impairment directly restricting most if not all DLA and the resulting need for help,
as required by the legislation.
The ministry’s position
In the reconsideration decision, the ministry found that the appellant's PWD application was
“somewhat problematic” as the PR was completed by the psychiatrist with whom she had just met.
While the ministry recognized that the legislation does not require the applicant to have a long-
standing history with the professionals who complete the application, it does require the minister be
satisfied that a severe impairment exists. While the psychiatrist's assessment has been taken into
account, the ministry's questions the accuracy of her information given the limited understanding she
would no doubt have after only one visit. The ministry has considered the likelihood that the
information she provided is more so a reiteration of the impairments the appellant reported to her
rather than a direct reflection of her medical opinion.
Regarding the severity of physical impairment, the ministry notes that the psychiatrist, in describing
the severity of her impairments, writes that she experiences “impaired mobility and discomfort evident
in walking.” The ministry also noted that results of the CT scan of the lumbar spine and the
appellant's self-report submitted at reconsideration. While the ministry recognized the significance of
this information, the ministry also considered the information provided by the GP in the AR. In
particular, the ministry noted that the GP indicated that the appellant is independent in all categories
of mobility and physical ability, with the comment that her back pain is chronic but she admits that she
can walk as far as she needs to and that she takes over-the-counter analgesics. The ministry also
noted that, when asked if the appellant required any assistive aids for her impairment, the GP wrote
“None that I am aware of.” The ministry commented that if the appellant's physical impairments were
considered severe, it would be expected that the GP would recommend at least a basic aide such as
a grab bar for the bathroom or a walker and that he would have indicated that she takes significantly
longer to perform some of her physical functioning such as climbing stairs or walking.
The ministry also referred to the assessments by the GP of the appellant's ability to perform DLA,
with no assessments that she requires continuous assistance in any categories of DLA and while the
GP indicates that the appellant requires periodic assistance in a few areas DLA, the GP has
commented that “Periodic means when her depression/anxiety is severe she is unable to perform
most tasks.” The ministry remarked that it would be expected that if her physical impairments were
severe, the GP would relate her limitations with basic housekeeping, for example, to her physical
issues rather than her mental health issues. The ministry also noted that when asked if the appellant
requires help and none is available what assistance would be necessary, the GP writes that financial
security would relieve a lot of stress. The ministry explained that it would be expected that if her
physical impairment was severe, the GPA would recommend some basic help, such as someone to
grocery shop with to help her carry groceries/push the buggy etc.
While the minister acknowledges that the appellant experiences some degree of restriction due to her
impairment, the ministry is not satisfied that the combination of her functional skills, mobility and
physical abilities exhibits a severe impairment.
As to the severity of the appellant's mental impairment, the ministry noted that the appellant had been
diagnosed with major depressive disorder and generalized anxiety with agoraphobia. The ministry
noted discrepancies when comparing the information provided by the psychiatrist and the GP. For
example, the psychiatrist indicates that she requires continuous assistance with social functioning,
explaining that her social anxiety impacts her ability to leave her home and be in public; however, the
GP indicates that she is periodically restricted in social functioning and her functioning with both her
immediate and extended social networks is marginal – not “very disrupted.” The ministry also noted
other inconsistencies between the assessments provided in PR by the psychiatrist and those in the
AR by the GP. The ministry noted that the GP indicates that she used the psychiatrist's information as
an information source when completing the AR. Given that the GP completed the AR over a month
before the psychiatrist completed the PR, it is expected that the GP had other information provided by
the psychiatrist when completing the assessor section. [At the hearing, the ministry representative
acknowledged that the ministry had misread the date of when the psychiatrist completed the PR
(March 2015 instead 2016 as stated in the reconsideration decision) and that therefore that the PR
had been completed before the AR.]
The ministry also noted that the GP identified only two major impacted areas (emotion and
motivation) of the appellant's cognitive and emotional functioning on daily functioning.
Considering that the GP has known the appellant for eight months and the psychiatrist had only one
visit with her, the ministry gave more weight to the information provided by the GP. Although the
psychiatrist has expertise in the mental health field, it is also noted that GP indicates she used
information provided by the psychiatrist to complete the application. The ministry acknowledges that
the appellant experiences a degree of depression and anxiety secondary to her physical impairments
and that they impact her. However, based collectively on the information provided, the ministry is not
satisfied that the appellant has a severe mental impairment.
Regarding restrictions in the appellant's ability to perform DLA, as explained at the outset of the
decision the ministry placed more weight on the GP’s assessments, given that the GP has known the
appellant for eight months while the psychiatrist had met her only once. The GP indicates that the
appellant is independent in a large majority of her DLA and is not continuously restricted in any of the
DLA categories. Although the GP indicates that the appellant is periodically restricted with a few
areas of her DLA, the GP writes “Periodic means when her depression/anxiety is severe she is
unable to perform most tasks.” However, the GP does not explain how often this occurs. The ministry
explained that legislation requires that to be eligible for PWD designation the restrictions must be
both significant and either continuous or periodic for extended periods. in order . While the ministry
acknowledges that legislation does not specifically require the frequency and duration of her
restrictions to be explained, the ministry finds such information valuable in determining the
significance of the restrictions.
Therefore, while acknowledging that the appellant has certain limitations as a result of her medical
conditions, the ministry finds of the information provided does not establish that an impairment
significantly restricts DLA continuously or periodically for extended periods.
With respect to the help required criterion, the position of the ministry is 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 psychiatrist and GP.
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 psychiatrist diagnosed the appellant with multiple injuries from an accident in 2005,
without describing the nature of these injuries or their current status. Under Health History, the
psychiatrist describes the appellant’s physical condition as: “She has impaired mobility & discomfort
evident in walking.” Giver the opportunity to assess in more detail her functional skills, the psychiatrist
indicates “unknown” for how far the appellant can walk unaided, how many steps she can climb
unaided, and how much she can lift, and contradicts the appellant statement in her SR and at the
hearing that she can only sit for 15-20 minutes, reporting instead that there are no limitations for how
long the appellant can remain seated.
In the AR, the GP did not provide a description of the appellant’s impairments, and assessed the
appellant as independent in all aspects of mobility and physical ability (walking, standing, lifting, etc.)
commenting only that “Back pain, chronic but admits can walk as far as she needs to, takes over
counter analgesics.”
In terms of the impact of the appellant’s physical condition on her ability to perform DLA requiring
physical effort, the GP assessed the need for period assistance from another person for a number of
aspects of some DLA (dressing grooming, laundry and basic housekeeping, going to and from stores
and making appropriate choices and using public transit). It is unclear, however, whether these
assessment reflect the appellant’s physical condition as opposed to her mental health situation, as
the GP commented: “Periodic means when her depression/anxiety is severe she is unable to perform
most tasks.”
The CT scan, ordered by the GP, found: “Marked rotoscoliosis of upper intermediate lumbar spine
convex to left. Very severe OA at left L5-S1 apophyseal joint and severe OA at right L1-2 apophyseal
joint. Moderate OA at several other apophyseal joints. Narrowing of all cervical discs. No fractures.”
However, the GP has not provided any narrative that would explain how these abnormalities would
be expected to restrict the appellant’s ability to function effectively or independently.
In terms of the need for assistive devices, the psychiatrist wrote: “Unclear at present with physical
impairment. Please see report in assessor section.” However, in the AR, In terms of the assistance
required by using assistive devices, the GP wrote: “None that I am aware of.” As argued by the
ministry, it would be expected that if the appellant’s physical impairment were considered severe, the
GP would recommend some basic aid, such as a cane or walker.
While the appellant in her SR and in her testimony at the hearing has described how she has pain all
the time, is unable to sit longer than 15-20 minutes, has to lie down most the time, and that walking
even 1 block is hard for her, none of this information has been confirmed by either of her medical
practitioners/prescribed professionals.
Giver the lack of detail reported by the psychiatrist and GP regarding restrictions to the appellant’s
physical functioning (and in the case of remaining seated, an assessment that conflicts with the
appellant’s testimony), the panel finds the ministry was reasonable in determining that a severe
physical impairment had not been established.
Mental impairment
In the PR, the psychiatrist diagnosis the appellant with major depression, duration recurrent and
generalized anxiety with agoraphobia. Under Health History, the psychiatrist explains: “Her mood is
subject to depression when her tendencies towards anxiety even leaving her place of residence are
significant. Her appetite, sleep, motivation & energy level are all affected & she isolates rather than
going out if it all possible.” The psychiatrist indicates that the appellant has significant cognitive and
emotional deficits in 5 areas: emotion, motivation, motor activity, attention or sustained concentration
and memory.
In terms of the impact of the appellant’s mental health condition on daily functioning, neither the
psychiatrist nor the GP indicates that the appellant has any difficulty with communication. The
psychiatrist indicates that the appellant is continuously restricted with social functioning, commenting:
“Anxiety socially has acute or chronic impact on her ability to leave home & be in public,” but does not
explain which impacts are acute and which are ongoing/chronic or describe how often and for how
long the appellant is acutely impacted. The GP indicates that the appellant’s mental impairment has a
major impact on daily functioning in 2 areas — emotion and motivation — and a moderate impact in 4
areas — attention/concentration, executive, memory and motor activity. However, again the GP
provides no commentary with any details or examples that would enable the ministry to assess the
significance of these impacts by describing how, how often, to what extent or under what
circumstances these impacts restrict the appellant’s daily functioning.
As to the extent to which the appellant’s mental health condition restricts her ability to perform the 2
DLA applicable to a mental impairment — make decisions about personal activities, care or finances
and relate to, communicate or interact with others effectively — the GP assesses the appellant as
requiring periodic support/supervision for the listed social decision-making abilities (making social
decisions, etc.), but does not explain the nature of the support or its frequency or duration, except to
mention the need for “Regular contact with psychologist” (something not mentioned by the
psychiatrist herself). In terms of other decision-making, the panel notes that GP assesses the
appellant as independent in several other decision-making aspects of DLA, such as personal care,
meals, paying rent and bills, medications, while requiring requiring periodic assistance from another
person for making appropriate choices while shopping and using transit schedules. The GP assesses
the appellant’s relationship with her immediate and extended social networks as “marginal”
functioning — as the ministry notes, not “disrupted functioning” — without any commentary.
While the GP assesses the appellant as requiring periodic assistance from another person with some
aspects of 4 of the DLA applicable to a person with either or both a mental or physical impairment,
explaining: “Periodic means when her depression/anxiety is severe she is unable to perform most
tasks,” As noted by the ministry, the GP does not provide any information of the frequency or duration
of these episodes.
Considering the lack of information provided by the prescribed professional on the impact of the
appellant’s mental health condition on her daily functioning, 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 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 psychiatrist and GP. 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.”
In the reconsideration decision, the ministry found that the PR was “somewhat problematic” and gave
little weight to the psychiatrist’s assessments of restrictions in appellant's ability to perform DLA. The
ministry based this decision on the psychiatrist having met the appellant only once at the time of
completing the form. The panel finds the ministry was reasonable in giving little weight to these
assessments, not so much because the psychiatrist had met the appellant only once, because that
could depend on the length of the meeting, but due to lack of knowledge of the appellant's physical
impairment demonstrated by the psychiatrist in the PR. For instance, the psychiatrist did not describe
the nature of the injuries suffered by the appellant in the 2005 accident and their current status,
indicated as “unknown” her abilities to walk, climb stairs and lift, while giving an assessment of her
ability to remain seated that was in direct conflict with that given by the appellant in her SR and in her
testimony at the hearing. In her SR, the appellant focused on her physical limitations, stating that: “I
become depressed over the fact I cannot accomplish anything.” The panel understands this to mean
that her physical limitations are a major factor contributing to her depression. Given the above, it is
therefore difficult to place much weight on the psychiatriat’s assessments of the appellant's ability to
perform any of the DLA requiring physical effort.
The panel also notes that the section in the PR relating to ability to perform DLA asks only whether
the activity is restricted, either continuously or periodically, but does not seek any information as to
the degree of restriction – i.e. whether the impairment “significantly” restricts the ability to perform a
particular DLA. Instead, the PR asks the physician to provide additional comments regarding the
degree of restriction. In this case, the GP did not provide a response. By comparison, the section in
the AR goes into more detail, giving two or more sub-activities for each DLA and seeking information
as to the degree of restriction for every sub-activity, either in terms of periodic or continuous help
required, the use of assistive devices or whether the task takes significantly long than typical.
As discussed above in considering the impact on the appellant's physical and mental impairments on
daily functioning, the GP has assessed her as independent in all aspects of mobility and physical
ability (the DLA of moving about indoors and outdoors). Additionally, the GP did not assess the
appellant as requiring continuous assistance from another person for all other DLA applicable to a
person with a physical or mental impairment. The appellant is reported as requiring periodic
assistance for the 2 aspects of basic housekeeping and a few of the aspects of personal care,
shopping and transportation. In terms of the decision-making and relating to others DLA applicable to
a person with a mental impairment, the GP assesses the appellant as requiring periodic
support/supervision for all the listed aspects of social decision-making and having marginal
functioning with her immediate social networks. However, as noted above, the GP has not provided
any information on the nature, frequency or duration of such periodic assistance or support
supervision, and the GP also reports the appellant as independently managing the decision-making
aspects of the DLA personal care, meals, paying rent and bills, and medications. As the ministry
points out, this lack of detail makes it difficult to determine whether the degree of restriction in
performing DLA is “significant.”
Considering that a severe physical or mental impairment has not been established and the extent to
which the appellant has been assessed as independent or requiring only unspecified periodic
assistance, the panel finds that the ministry was reasonable in determining that it had not been
established that in the opinion of the prescribed professionals the appellant's impairments directly and
significantly restricted 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 must also 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.
The GP noted the appellant’s need for more financial security; while increased benefits are an
outcome of PWD designation, financial considerations are not a criterion for designation. The GP also
noted that the appellant might benefit from regular contact with the psychiatrist or from regular
counseling. 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
The panel finds that the ministry’s reconsideration decision, which determined that the appellant was
not eligible for PWD designation, was reasonably supported by the evidence, and therefore confirms
the decision. The appellant is thus not successful on appeal.
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