PART C – Decision under Appeal The decision under appeal is the Ministry of Social Development and Social Innovation (the “ministry”) reconsideration decision of July 12, 2016, which found that the appellant did not meet three of five statutory requirements of section 2 of the Employment and Assistance for Persons With Disabilities Act (“EAPWDA”) for designation as a person with disabilities (“PWD”). The ministry found that the appellant met the age requirement and that in the opinion of a medical practitioner the appellant’s 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 daily living activities (“DLA”) are, in the opinion of a prescribed professional, directly and significantly restricted either continuously or periodically for extended periods; and that as a result of those restrictions, the appellant requires the significant help or supervision of another person, an assistive device, or the services of an assistance animal. PART D – Relevant Legislation EAPWDA, section 2 Employment and Assistance for Persons with Disabilities Regulation (“EAPWDR”), section 2
PART E – Summary of Facts The information before the ministry at the time of reconsideration included the following: The appellant’s PWD application form consisting of the appellant’s self-report form dated June 12, 2016 (“SR”), a physician’s report (“PR”) completed by the appellant’s general practitioner (the “physician”) dated February 4, 2016, and an assessor’s report (“AR”), completed by a nurse practitioner (the “NP”) dated January 18, 2016. The appellant’s Request for Reconsideration (“RFR”) form dated June 27, 2016. Diagnoses In the PR the physician diagnosed the appellant with learning disabilities (onset since childhood) and post concussion syndrome, onset February 2015. The physician indicates that the appellant sees the NP and he only saw her while the NP was on leave. The physician indicates that he has seen the appellant 2 to 10 times in the past 12 months. Under degree and course of impairment, the physician indicates that there is possible slow resolution of post concussion symptoms but the learning disability is life long. Physical Impairment In the Health History portion of the PR, the physician states that the appellant has had learning disabilities since childhood and was able to finish Grade 11 (adjusted level). He indicates that she has a hard time learning new tasks and requires being shown things multiple times. The physician indicates that her memory is less now since the concussion and she feels more anxious and irritable. She is still able to do her own finances and plan activities but she has difficulty in new situations and handling stress. In terms of physical functioning the physician reported in the PR that the appellant can walk 4+ steps unaided on a flat surface, can climb 5+ steps unaided, has no limitations with respect to lifting or being seated. In the AR the NP reports that the appellant is independent with all aspects of mobility and physical mobility including walking indoors, walking outdoors, climbing stairs, standing, lifting and carrying and holding. In the SR the appellant states that she slipped on ice in February 2015 and is in pain a lot of time. She also has migraine headaches and has dizzy spells. She states that she cannot be alone for a long time and that she can’t hold down a job without someone there. The appellant reports that she gets dizzy, blacks out, and passes out. In the RFR the appellant states that she suffers from severe migraines approximately three times a week following a concussion she received in 2015. When she has a migraine headache she has no energy, her whole body aches, she feels drained and experiences pressure and tightening in her head causing her to feel like she is spinning and very dizzy. During these times the appellant states that she has to stay at home and cannot do anything as she needs to stay quietly in the dark. The appellant states that the migraines are often triggered by a change in the weather, stress, or anxiety.. Mental Impairment
In the Functional Skills portion of the PR, the physician indicates that there are no difficulties with communication other than a lack of fluency in English. The physician indicates that the appellant has significant deficits with cognitive and emotional function in the areas of consciousness, memory, emotional disturbance, motivation, impulse control and attention or sustained concentration. In the AR, for cognitive and emotional functioning, the NP indicates that the appellant has minimal impact in the areas of attention/concentration, executive and motivation and no impact in the remaining areas of bodily functions, consciousness, impulse control, insight and judgments, memory, motor activity, language, psychotic symptoms, other neuropsychological problems and other emotional or mental problems. The NP comments that the appellant has difficulty concentrating and focusing especially with migraines. She has ongoing post concussion symptoms including headaches, poor balance, poor concentration, sadness, depression and irritability. In the RFR the appellant states that her physical impairments affect her emotionally as she becomes very frustrated, has trouble concentrating, and often gives up on activities. She also states that she has a very difficult time learning new tasks due to her learning disabilities. DLA In the PR, the physician indicates that the appellant has not been prescribed any medication and/or treatments that interfere with her ability perform DLA. In the PR the physician indicates that the appellant’s impairment directly restricts her ability to perform DLA in the area of social functioning, noting that she requires periodic assistance. The physician explains that when the appellant becomes fatigued or stressed she gets frustrated and irritable and has problems with social interactions. The physician indicates that the appellant is not restricted with the other listed DLA of personal self care, meal preparation, management of finances, basic housework, daily shopping, mobility inside the home, mobility outside the home, use of transportation, or management of finances. In the AR the NP indicates that the appellant is independent with all aspects of DLA, noting that use public transit or using transit schedules was not applicable. With respect to social function, the NP indicates that the appellant is independent with making appropriate social decisions, developing and maintaining relationships, interacting appropriately with others and securing assistance from others but she needs periodic support/supervision with dealing appropriately with unexpected demands. The NP indicates that the appellant has good functioning with respect to her immediate and extended social networks. In the RFR the appellant states that on her worst days she is unable to move around at all and can’t go out as she tires quickly walking, she can’t shop because her hands are so swollen she can’t hold on to anything, and that pain and swelling prevent her from cooking, doing housework, and having showers. The appellant states that she does not like being around a lot of people as her anxiety begins to escalate and she has gotten off buses, as she has felt crowded in and on the verge of a panic attack. She states that she is unable to work because of her anxiety, loss of sight and pain and swelling of hands and legs. In the RFR, the appellant indicates that she finds every day a challenge due to her headaches and learning difficulties. She gets extremely frustrated and angry, as she is no longer able to do many things she used to like working and multi-tasking. She uses her phone daily to assist her with reminders and when to go to appointments.
Help In the PR, the physician indicates that the appellant does not require any prosthesis or aids for her impairment. In the AR the NP indicates that the appellant receives help with DLA from family. The NP indicates that the appellant has a volunteer job at the library but requires supervision as she does get vertigo on occasion and therefore doesn’t want to walk independently. The NP indicates that the appellant does not require any equipment or devices to help compensate for her impairment and does not have an Assistance Animal. In the RFR the appellant states that she requires help from other people, particularly around reminding her to do things like take her pills, complete personal care such as showers, etc. She states that she does not like to ask others for help, but often she needs help with reminding. Additional information provided In her Notice of Appeal dated August 25, 2016 the appellant states that she feels she needs PWD due to her mental and physical impairments. At the hearing the appellant stated that she lives alone and needs PWD designation as she has migraines almost every day, cannot work full time or even do her volunteer job, has heart issues and lives day by day. She stated that she has a hard time learning tasks and gets easily frustrated and requires help. Admissibility of New Information The ministry did not object to the information in the Notice of Appeal or the appellant’s oral evidence. The panel has accepted the information in the Notice of Appeal and the appellant’s oral evidence, as they are information in support of information and records that were before the ministry at the time of reconsideration, in accordance with section 22(4) of the Employment and Assistance Act. In particular, the new information provides further explanation about the appellant’s medical condition and impacts on her DLA. At the hearing, the ministry relied on the reconsideration decision.
PART F – Reasons for Panel Decision The issue on this appeal is whether the ministry’s decision to deny the appellant designation as a PWD was reasonably supported by the evidence or was a reasonable application of the applicable enactment in the circumstances of the appellant. In particular, was the ministry reasonable in determining that the appellant does not have a severe physical or mental impairment, and that in the opinion of a prescribed professional the appellant’s impairments do not directly and significantly restrict her from performing DLA either continuously or periodically for extended periods, and that as a result of those restrictions the appellant does not require help to perform DLA? The relevant legislation is as follows: EAPWDA: 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 ability to perform daily living activities either (A) continuously, or (B) periodically for extended periods, and (ii) as a result of those restrictions, the person requires help to perform those activities. (3) For the purposes of subsection (2), (a) a person who has a severe mental impairment includes a person with a mental disorder, and (b) a person requires help in relation to a daily living activity if, in order to perform it, the person requires (i) an assistive device, (ii) the significant help or supervision of another person, or (iii) the services of an assistance animal.
EAPWDR section 2(1): 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. ******* Severe Physical Impairment The ministry’s position, as set out in its reconsideration decision, is that the information provided is not evidence of a severe physical impairment. The ministry notes that the information provided in the PR indicates that the appellant can walk 4+ blocks unaided, climb 5+ steps unaided, has no limitations with lifting and no limitations with remaining seated and does not require any prostheses or aids to manage her physical functioning. The AR indicates that the appellant is independently able to manage all areas, including walking indoors, walking outdoors, climbing stairs, standing, lifting, and carrying and holding. The minister is not satisfied that the information provided is evidence of a severe physical impairment. The appellant’s position is that she has a severe physical impairment resulting from severe migraines following a concussion. Her position is that the migraines result in her having no energy, vertigo, and pressure in her head, and she has to stay in a quiet dark place and do nothing. The appellant’s position is that she needs PWD designation due to her impairments. Panel Decision A diagnosis of a serious medical condition does not in itself determine PWD eligibility or establish a severe impairment. An impairment is a medical condition that results in restrictions to a person’s ability to function independently or effectively. Likewise the use of the word “severe” in and of itself does not establish a severe impairment. To assess the severity of an 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 performing 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 prescribed professional. The panel finds that while the appellant has some difficulties due to her learning disabilities, post-concussive symptoms, and migraine headaches, the ministry reasonably determined that the information provided in the PR which indicates that the appellant is able to walk 4+ blocks unaided on a flat surface, can climb 5+ steps unaided, and has no limitations with respect to lifting or being seated, is not indicative of a severe physical impairment. In addition the information provided by the NP in the AR which indicates that the appellant is able to independently manage all aspects of mobility and physical ability including walking indoors, walking outdoors, climbing stairs, standing, lifting and carrying holding is not indicative of a severe physical impairment. The panel notes that the NP indicates that the appellant gets vertigo on occasion and does not want to walk independently, but she does not provide further information to explain how often this occurs or the frequency or duration of assistance needed with walking during these times. The NP indicates that the appellant requires supervision with her volunteer job but again, she does not provide further information on the frequency or duration regarding the supervision required. While the appellant’s evidence is that she has severe migraines that result in her being able to do almost nothing at least three times each week as she has to stay quiet in a dark place, neither the physician nor the NP provide any information confirming the nature or severity of the appellant’s migraine headaches. Taking all of the foregoing into account the panel finds that the ministry was reasonable in determining that the physical limitations reported speak to a moderate rather than severe physical impairment. Severe Mental Impairment The ministry’s position is that although the physician has reported deficits to cognitive and emotional functioning in the areas of emotional disturbance, motivation, impulse control and attention or sustained concentration, the NP indicates that the appellant does not have any major or moderate impacts to cognitive and emotional functioning and only three areas with minimal impact. The ministry also notes that the physician indicates that the appellant has no difficulties with communication and the NP indicates that the appellant’s ability to communicate is good in all areas. The minister is not satisfied that the information provided is evidence of a severe mental impairment. The appellant’s position is that she has severe physical impairments, which affect her emotionally, as she becomes very frustrated and gives up on activities. The appellant’s position is that the information from the physician and the NP support a finding that she has a severe mental impairment. Panel Decision While the physician has reported significant deficits with cognitive and emotional functioning in the areas of emotional disturbance, motivation, impulse control and attention or sustained concentration, the NP indicates that the appellant does not have any major or moderate impacts to cognitive and
emotional functioning and only three areas with minimal impact. The physician also indicates that the appellant has no difficulties with communication and the NP indicates that the appellant’s ability to communicate is good in all areas. The panel accepts that the appellant’s physical impairment and pain does impact her emotionally and mentally, but the panel finds that the ministry reasonably determined that the information provided is not evidence of a severe mental impairment. Significant Restrictions to DLA The reconsideration decision states that the minister is not satisfied that the appellant has a severe impairment that, in the opinion of a prescribed professional, directly and significantly restricts her ability to perform DLA continuously or periodically for extended periods. The ministry’s position is that while the physician has indicated that the appellant is periodically restricted in her ability to manage social functioning, explaining that the appellant has more problems with social interactions when she becomes fatigued or stressed, the physician has not provided further information to explain the frequency and the duration in which the appellant is restricted, so the severity of the appellant’s restriction remains unclear. The reconsideration decision states that in all other DLA the physician indicates that the appellant is not restricted and that the NP indicates that the appellant is independently able to manage all DLA except social functioning for which she requires periodic support/supervision with dealing appropriately with unexpected demands. The ministry’s position is that as the majority of DLA are performed independently or require little help from others, so the information does not establish that the impairment significantly restricts DLA either continuously or periodically for extended periods. The appellant’s position is that she finds every day a challenge due to her headaches and learning disabilities. In the SR the appellant states that she cannot be alone for very long as she experiences dizzy spells and has blackouts. In the RFR she states that she gets extremely frustrated and angry, as she is no longer able to do many things that she used to do like working and multi-tasking. The appellant states that she requires help from other people, particularly with reminding her to do things such as taking pills, and completing personal care. In the RFR the appellant explained that on her worst days she is unable to move around at all and can’t go out as she tires quickly walking, she can’t shop because her hands are so swollen she can’t hold on to anything, and that pain and swelling prevent her from cooking, doing housework, and having showers. The appellant states that she does not like being around a lot of people as her anxiety begins to escalate and she has gotten off buses, as she has felt crowded in and on the verge of a panic attack. The appellant’s position is that she does have a severe impairment that restricts her DLA and that she should be found eligible for PWD designation. Panel Decision The legislation – s. 2(2)(b)(i) of the EAPWDA – requires that the minister be satisfied that in the opinion of a prescribed professional, a severe mental or physical impairment directly and significantly restricts the appellant’s ability to perform DLA either continuously or periodically for extended periods. The term “directly” means that there must be a causal link between the severe impairment and the restriction. The direct restriction must also be significant. Finally, there is a component related to time or duration. The direct and significant restriction may be either continuous or periodic. If it is
periodic it must be for extended periods. Inherently, any analysis of periodicity must also include consideration of the frequency. All other things being equal, a restriction that only arises once a year is less likely to be significant than one, which occurs several times a week. Accordingly, in circumstances where the evidence indicates that a restriction arises periodically, it is appropriate for the ministry to require evidence of the duration and frequency of the restriction in order to be “satisfied” that this legislative criterion is met. In the PR, the physician indicates that the appellant is not restricted with DLA of personal self care, meal preparation, management of medications, basic housework, daily shopping, mobility inside the home, mobility outside the home, use of transportation or management of medications. The physician indicates that the only DLA that is restricted is the appellant’s social functioning and he explains that she has a periodic restriction as she gets problems with social interactions when she becomes fatigued or stressed as she gets frustrated and irritable. In the AR, the NP indicates that the appellant is independently able to manage all DLA except social functioning for which she requires periodic support/supervision with dealing appropriately with unexpected demands. While the appellant states that she needs help with various aspects of DLA such as personal care, shopping, management of medications, and cannot be alone for very long, neither the physician nor the NP confirm the appellant’s information. In addition, neither the physician nor the NP provides further information on the frequency or duration of the periodic assistance needed. As the majority of the appellant’s DLA are performed independently or require little help from others, the panel finds that the ministry reasonable determined that the appellant’s impairment does not significantly restrict DLA either continuously or periodically for extended periods as required by EAPWDR section 2(2)(b). Help with DLA The ministry’s position is that, as it has not been established that DLA are significantly restricted; therefore, it cannot be determined that significant help is required from other persons. The appellant’s position is that she requires assistance with personal care, reminders to take her medication and that she cannot be alone for a long time as she experiences dizzy spells and blackouts. Panel Decision In the PR, the physician does not indicate that the appellant requires any assistance with DLA. In the AR, the NP indicates that the appellant receives help from family. The NP also indicates that the appellant has a volunteer job but requires supervision as she gets occasional vertigo and does not want to walk independently. The NP does not indicate that the appellant requires any assistive devices and she does not have an assistance animal. While the appellant may receive some help from her family and some supervision in her volunteer job, a finding that a severe impairment directly and significantly restricts a person’s ability to manage
her DLA either continuously or periodically for an extended period is a precondition to a person requiring "help“ as defined by section 2(3)(b) of the EAPWDA. As the panel finds that the ministry reasonably determined that the appellant does not have a severe impairment that directly and significantly restricts the appellant’s ability to manage her DLA either continuously or periodically for an extended period of time, the necessary precondition has not been satisfied in this case. The panel finds that the ministry’s decision that the appellant did not satisfy the legislative criteria of EAPWDA section 2(3)(b) was reasonable. Conclusion The panel acknowledges that the appellant has serious medical conditions that impact her functional ability. However, having reviewed and considered all of the evidence and the relevant legislation, the panel finds that the ministry’s decision finding the appellant ineligible for PWD designation is reasonable based on the evidence and is a reasonable application of the legislation in the circumstances of the appellant. The panel therefore confirms the ministry’s decision and the appellant is not successful in her appeal.
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.