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 31 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 [no day] March 2016. The Application
contained:
A Self Report (SR) completed by the appellant.
A Physician Report (PR) dated 01 April 2016, completed by the appellant’s general
practitioner (GP), who has known the appellant for 5 years and seen her 2-10 times over
the past year.
An Assessor Report (AR) dated 08 April 2016, completed by a social worker (SW) who has
known the appellant for 2 weeks and seen her once.
2.
The appellant’s Request for Reconsideration submitted on 30 August 2016, attached to
which are the following:
A second Self Report (SR2), undated.
A letter from the appellant’s GP dated 19 August 2016.
A submission by the appellant’s advocate, undated (reconsideration submission).
A letter of support from the appellant’s roommate dated 25 August 2016.
In the PR, the GP diagnoses the medical condition related to the appellant’s impairment as
Raynaud’s Disease (onset approx. 2005).
The panel will first summarize the evidence from the PR, the AR and GP’s letter as it relates to
the PWD criteria at issue in this appeal.
Severity/health history
Physical impairment
PR:
Under Health History, the GP writes: “Daily living chores causes severe pain. Coming into contact
with any cold objects exacerbates an already painful condition, which causes [illegible] pains.”
Under Degree and Course of Impairment the GP indicates that the impairment is likely to continue
for two or more years, commenting, “Chronic pain and discomfort affecting quality of life as well
as daily living.”
As to functional skills, the GP reports that the appellant can walk 2 - 4 blocks unaided, can climb
5+ steps unaided, is limited to lifting 5 to 15 lbs., and there is no limitation to remaining seated.
The GP indicates that the appellant has not been prescribed medication and/or treatments that
interfere with her ability to perform DLA, commenting, “Awaiting further investigation. Stress test
negative.”
GP’s Letter:
In the letter, the GP writes:
“[The appellant] has severe Raynaud disease. [She] can walk 4 blocks in ideal weather
conditions, but is limited in cold conditions and thus hampering her and doing housework
and shopping.
Frequent affection of her condition during summer resulting in hot clammy hands and in
winter she experiences cold fingers multiple times a day.”
AR:
Regarding mobility and physical ability, the SW assesses the appellant as follows (comments in
parenthesis):
Walking indoors – periodic assistance from another person required (cannot walk on bare
feet at all).
Walking outdoors – continuous assistance from another person or unable (from Sept – April
can only stay outdoors for 10-15 min).
Climbing stairs – Independent.
Standing – periodic assistance from another person required (faints frequently, 10-15 min.
standing only).
Lifting – independent.
Carrying and holding – periodic assistance from another person (poor circulation makes this
very difficult).
The SW comments: “When the weather is cold or wet (Sept – April ) hands & feet become white,
cold and more difficult to manipulate. This can take 10 – 45 minutes to recover from.”
In providing additional comments, the SW writes: “Raynaud’s Syndrome is very limiting for this
woman. She cannot do activities she enjoys such as walking outdoors in cool weather or taking
her grandchildren to the park. It makes many activities of daily living very challenging.”
Mental impairment
PR:
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.
AR:
The SW assesses the appellant's ability to communicate as good for speaking, reading, and
hearing, and poor for writing, explaining: “Hands get very cold & white when trying to use a pen or
keyboard. This happens multiple times/day. Can take 10 – 45 min to recover to be able to write
again.”
Regarding cognitive and emotional functioning, the SW indicates that the appellant's mental
impairment has the following impacts:
Major impact: none.
Moderate impact: bodily functions.
Minimal impact: emotion (anxiety) and impulse control.
No impact: consciousness, insight and judgment, attention/concentration, executive,
memory, motivation, motor activity, language, psychotic symptoms, other
neuropsychological problems, and other emotional or mental problems.
The SW comments: “Bodily functions – Difficult to hold or prepare cold foods. Cannot touch cold
water. Difficult to sleep if hands or feet get cold.”
Ability to perform DLA
PR:
The GP indicates that the appellant’s impairment directly restricts her ability to perform DLA.
The GP assesses the appellant as restricted in her ability to perform the following DLA on a
continuous basis: personal self care, meal preparation, management of medications, basic
housework, daily shopping, mobility inside the home, and mobility outside the home.
The GP assesses the appellant as independent for use of transportation, management of
finances, and social functioning.
The GP comments: Can manage but severely limited.
AR:
The SW assesses the assistance required for managing DLA as follows (the SW’s comments in
parentheses):
Personal care – independent for dressing, toileting, transfers in/out of bed, and transfers
on/off of chair; periodic assistance from another person required for grooming (must use
warm water), bathing (cannot walk on cold ground, or stand in cold shower stall), feeding
self/regulating diet (cannot touch cold food for long – when hands cold cannot prepare
foods, difficulty opening jars).
Basic housekeeping – periodic assistance from another person required for laundry (difficult
to touch wet clothing), and basic housekeeping (can only use warm H2O).
Shopping – continuous assistance from another person for unable for going to and from
stores, reading prices and labels, paying for purchases and carry purchases home (Avoids
if weather is too cold or wet. Cannot carry any cold items. If store is too cold it causes
problems. Only shops for 20 min. at the time. Very difficult to hold bags of groceries.);
independent for making appropriate choices.
Meals – continuous assistance from another person or unable for meal planning, food
preparation and cooking (Eats simple, easy to prepare foods. Cannot hold cold items, will
have difficulty holding utensils if hands are cold. Cannot open jars when hands are cold);
independent for safe storage of food.
Pay rent and bills – independent in all aspects.
Medications – independent in all aspects.
Transportation – independent for getting in and out of the vehicle and using transit
schedules and arranging transportation; continuous assistance from another person or
unable for using public transit (Cannot wait for transit outdoors).
The SW adds: “Due to poor circulation, fainting is an issue. Standing for 10 – 15 min. can be a
problem. Fall risk due to fainting.”
With respect to social functioning, the SW assesses the appellant as independent for making
appropriate social decisions, interacting appropriately with others and securing assistance from
others; requiring periodic support/supervision for developing and maintaining relationships and
dealing appropriately with unexpected demands (Avoids social situations that might cause hands
or feet to get cold, such as walking outdoors or going to the swimming pool).
The SW assesses the impact of the appellant's mental impairment on her immediate social and
extended social networks as good functioning.
Help provided/required
PR:
The GP indicates that the appellant does not require any prostheses or aids to compensate for
her impairment.
In commenting on help required for DLA, the GP writes, “Can manage but severely limited.”
AR:
The SW indicates that help is provided to the appellant by community service agencies.
The SW does not indicate that the appellant requires any of the listed aids to compensate for her
impairment.
GP’s letter:
The GP lists the current aids for the appellant’s condition: thermal socks, thicksoled shoes,
bathtub rubber mat, gloves – latex for housekeeping, woolen for outdoors, foot and hand warmers
in winter, sockettes in summer.
Self report
In describing how her Raynaud’s Syndrome/phenomena affects her life, she writes that:
On any given day, her hands are always extremely cold, making it very uncomfortable to
touch her own skin, put on underwear and socks. She always runs tap water until water is
warm, as cold water makes her fingers icy cold and the cold shivers run through her body.
Cleaning with a damp cloth turns her fingers white and painful. Clenching hands, such as
with vacuuming or sweeping, has the same affect.
She cannot walk barefoot at home, as toes and soles of feet hurt instantly. Even in socks
and slippers her feet hurt multiple times a day. She must step from bathmat directly onto a
pre-warmed shower stall floor.
When chilblains are active, it is painful to wear slippers or shoes and therefore she cannot
go out.
Food preparation is painful – handling cold food, such as cheese, vegetables, refrigerated
jars, turns her fingers white before meal is even eaten. She must wear gloves to handle
food in the freezer.
If car door handle is wet her hands whiten and cause pain. With gloves on, scraping the
windshield causes agony. She must also wear gloves to drive 8 months of the year.
She has to wear gloves in supermarkets to push her cart and to handle vegetables, cold and
frozen meats, and beverages.
Many times after being outside for 15 minutes plus, her hands and feet are so cold and
frozen she cannot trust her ability to drive and must wait till she is “defrosted” – this can
take to 30 minutes of pins and needles.
When outdoors, either running errands or for pleasure, she cannot keep her hands from
freezing and going white. Gloves help only superficially, maximum 10 minutes, then she
has difficulty handling car keys, holding bags, blowing her nose, etc.
Carrying supermarket bags cuts off circulation to fingers.
She adds that her Raynaud’s Syndrome has affected her quality of life because she can no longer
take long walks 8 - 9 months/year and she cannot use public swimming pools for exercise as her
hands and feet turn white in the cold change rooms and the water is now too cold, exacerbating
and speeding the freezing process.
She refers to an attached sheet, not found in the Appeal Record.
Request for Reconsideration
SR2:
In SR2, a 3-page typewritten letter, the appellant writes that she is diagnosed with a severe
condition of Raynaud’s syndrome – a severe intolerance for cold. It is a circulation problem that
mainly affects the hands and feet. She writes that in her GP’s letter [not found in the Appeal
Record] her physician specifically wrote that there are no treatments or aids that are successful
with people that have this condition. She follows her physician’s recommendations about ways to
prevent flare-ups and how to manage her pain, including wearing gloves when outside the house,
covering metal objects with cloth in the house before she touches them and using a padded
bathmat to avoid the cold floor. There are no medical devices available to help with her condition,
and she does all she can to attempt to provide extra insulation from the cold.
In her letter, the appellant provides argument relating to the original decision. In this context, she
describes how her condition affects her daily functioning, summarized by the panel as follows:
While she can walk 4 blocks in heated mall, this distance outside, especially in a humid
environment, would result in immediate and acute discomfort. If she goes out and becomes
cold her feet go numb and she is unable to drive herself home and she does not know how
much pressure to apply to the gas pedal. This is not just from September to April, as in the
warmer months her hands and feet sweat excessively from an overabundance of blood
pushed her fingertips and feet, making them extremely sweaty and clammy, making wheel
holding and using her feet almost impossible in the summer months.
When indoors, even in the summer, her feet and hands are always cold. She wears slippers
indoors all year round. Carrying and holding are very difficult most of the time as the use of
her fingers is severely limited. Meal prep is mostly done by her roommate. Even making a
sandwich is very difficult and pain lasts for over an hour. The difficulty is that the cutlery is
metal and is cold and the plates feel cold, the vegetables are wet and freeze her hands.
She has difficulty opening jars as her muscles do not work when cold.
In terms of housework, holding a vacuum or wet cloth, doing dishes, and yard work are very
difficult. The only reason she is able to “semi-function” is because when she is warm enough
she will attempt to do chores or activities that will make life easier when she does have an
outbreak. She relies heavily on others to help her function.
Because of her financial limitations, she cannot afford someone to come in and do her
laundry, make meals or wash her floors. The fact that she cannot afford it does not mean
that she does not need it.
In addition to the pain she experiences when completing any tasks she also is not able to
clench or move her hands and feet. When she has an attack, it is much more than just pain.
Not only are her hands and feet in pain, but they are numb, she cannot clench her hands.
Her entire body breaks out in shivers and she often has to go to bed under the covers to
warm up. The after-effects of an attack are the most painful, as when her body starts to
warm up the blood returns to her extremities.
Her disability has had a huge impact on her emotional well-being. She cannot go swimming
anymore, something she once enjoyed. She is no longer able to enjoy gardening, going for
walks with her family or attending a movie. As a result she needs to stay inside and is more
isolated. This affects her emotionally. Even touching her grandchild for a hug makes her
flinch. She does have help from her roommate, but that is all. Because of her lack of ability
to be out and socializing, she does not maintain friendships. She cannot drive to see her
friends, go on the ferry to visit her family, go to local events or go to places in nature. Even
when she has friends visit her house, if her disability is bad that day, just conversing with
them is difficult because she is distracted by the pain. Interacting with people on the
computer is difficult because the computer itself is cold.
Letter from roommate:
In her letter, her roommate writes that the appellant has constant problems with regular
household chores, as well as day-to-day functions, not only in winter but throughout the year.
There have been many instances where she has had to drive the appellant when she has been in
pain. In winter she cannot hold the wheel or even open the door of the car because of the intense
and immediate pain. In the warm months, her hands are flooded with blood, making driving very
difficult, as her hands are clammy and very sweaty, so it is difficult for her to properly hold the
steering wheel.
There have been many instances where the appellant could not attend the local food bank due to
her disability, so the roommate would go in her place. The lineup is located outside and requires
standing for over an hour on the concrete floor, something that the appellant cannot tolerate. In
the past, when she attempted this, she came back with chilblains on her feet from standing in the
cold, resulting in a doctor visit pain for days afterwards.
The roommate also witnessed the appellant’s difficulty in making food, especially preparing
refrigerated or frozen foods. She also has problems with handling wet laundry, and washing
dishes and even showering gives her very significant negative reactions. They have attempted to
adapt their home to better suit the appellant's disability, despite limited means, by heating their
home more than average, placing rugs in bathrooms and kitchen and also having towels and
gloves easily accessible so that the appellant can use them to open the drawers and handle
cutlery.
Advocate’s submission:
The advocate’s submission went to argument regarding the original decision (see Part F,
Reasons for Panel Decision, below).
Notice of Appeal
In her Notice of Appeal, dated 02 September 2016, the appellant writes: “My doctor & I believe I
meet all the criteria necessary for Disability designation.”
The hearing
At the hearing, the appellant submitted 2 information articles from the Internet on Raynaud’s
disease/syndrome. The roommate also showed the panel and the ministry colour photos on her
smart phone of the appellant’s hands when normal and when cold and hot. She explained that it
was too costly for her to have them printed in colour.
The appellant read from a prepared statement arguing that the reconsideration decision did not
take into account the information provided by the appellant, her roommate or her advocate
submitted at reconsideration and did not give sufficient weight to the GP’s letter submitted at the
same time. The appellant noted that she submitted the reconsideration material on 30 August
2016, and the reconsideration decision was dated the next day. She suggested that, given the
fast turn-around, this material was not given the consideration it merited. The appellant’s
roommate also argued along the same lines (see Part F, Reasons for Panel Decision, below).
During the course of their presentations, the appellant and her roommate provided the following
additional information on how her condition affects daily living:
The appellant provided further details regarding her fainting episodes: when she goes
from a hot location to a very cold location she has on occasion fainted; this has happened
15-20 times, and now occurs about once a year.
Her roommate usually does all food preparation.
Piles of towels are left near the fridge to use when taking items out.
In ideal conditions she will leave the house on her own, but for no more than 10-20
minutes. Her roommate will go with her 90% of the time.
Details on clammy hands – wet, sweating, dripping, super-sensitive, very uncomfortable,
texture irritates; at the same time her feet sweat badly and act like ‘suction cups’ when she
walks
Details on cold hands – when blood drains out of her hands she feels pain – when they
warm up the pain is worse, so she controls the warming of her hands at home by putting
her hands in warm water until the blood circulation returns. Unable to do this in public
places, so her hands hurt and she is unable to alleviate the pain when she goes from cold
to warm locations.
The appellant cannot manage her finances because she cannot go out in the cold to drop
off her rent cheque.
The appellant volunteered that the SW completed the AR on the basis of a conversation by
phone.
The ministry stood by its position at reconsideration. The ministry representative explained that
consideration of the appellant’s Request for Reconsideration was prioritized because her deadline
had been extended. As a result the reconsideration decision was completed the day after the
request was received.
Admissibility of additional information
The ministry did not object to the admissibility of the testimony of the appellant and her
roommate. The panel finds that the information provided by the appellant and her
roommate/advocate in their testimony at the hearing is in support of the information and records
before the ministry at reconsideration, as it tends to corroborate the information provided by the
appellant in her SR and at reconsideration. The panel therefore admits this 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.
Severity of impairment
Physical impairment
The appellant’s position
The position of the appellant, as explained in her written statement read at the hearing, is that the
information submitted at reconsideration should be paramount, as she was asked to provide more in-
depth information and to go into more detail about how her disability affects her life. Throughout the
reconsideration decision, it is only the original application that is being cited and used, instead of any
information that was subsequently provided by the assessor and advocate, as well as by her
physician.
In the reconsideration decision, the advocate's submission was not taken into consideration. The
ministry only cites the original application and wording. The ministry has cited the original application
eight times in the reconsideration decision and only once was a physician's letter mentioned, with no
word of the roommate’s letter or the advocate’s second letter being used. The SW met her on only
one occasion, yet she is had at least four meetings with the advocate, who she believes gave a
broader picture of her overall disability.
Not only was the material submitted at reconsideration not looked at as in-depth as the original
application, but the original AR completed by the SW was filled out on a worksheet provided by the
Ministry. This worksheet has limited space, and only asked very limited questions, so the assessor
could only write as much as the space dictated, with only enough room to answer the questions in the
small space provided. The second Assessor Report was written out after a long interview with her
advocate, and is five pages long. This report goes on to detail all the problems she faces on a daily
basis. The ministry kept citing the original AR in the reconsideration decision and she believes the
second, more detailed report was looked over without the same validity as the original AR.
[Panel note: there is no second Assessor Report in the Appeal Record. The appellant may have been
referring to the 5-page advocate’s submission prepared by a law student, who in any event is not a
prescribed professional.]
In her submission at reconsideration, the advocate submits that in assessing what is severe, the
ministry ought to take into account the context in which the applicant is able to perform various
functions. The appellant points out that cold air, wind, and moisture are included in the cold objects
that cause exacerbated pain. As such, the appellant does not leave her house often to walk or climb
stairs due to environmental factors. While she is able to walk without limitation within the strictly
controlled environment of her own house, she reports that she is unable to walk the distance from the
storefront to the vehicle without experiencing pain due to outside temperatures. These contextual
factors ought to be considered when the ministry assesses the extent of the appellant's limitations.
Taking these into account, the advocate submits that the appellant is severely restricted by her
environment.
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 by the appellant's medical practitioner and assessor, 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 assistance required as a result.
The ministry finds the application is problematic as the AR was completed by a SW who had known
the appellant for 2 weeks and had seen her once when completing 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, referring to the AR instruction page, is to be based on
knowledge of the applicant, observations, clinical data and experience. By comparison, the PR was
completed by the appellant's GP, who has known her for 5 years and has seen her 2 to 10 times in
the past 12 months. As a result, the ministry is inclined to place more emphasis on the assessments
provided by the GP.
The ministry refers to the GP’s statement under Health History (“Daily living chores causes severe
pain. Coming into contact with any cold objects exacerbates an already painful condition, which
causes [illegible] pains”) and to the GPs assessments of functional skills (can walk 2 - 4 blocks
unaided, etc.) and notes that these assessments are not considered indicative of a severe
impairment of physical functioning.
The ministry also noted the information provided by the SW in the AR regarding mobility and physical
ability, including “When the weather is cold or wet (Sept – April ) hands & feet become white, cold
and more difficult to manipulate. This can take 10 – 45 minutes to recover from,” and the
assessments that she requires continuous assistance from another person when walking outdoors
and periodic assistance from another person for walking indoors, standing, and carrying/holding. The
ministry noted the discrepancy between GP's assessment that she can walk 2 – 4 blocks unaided
(i.e. means without the assistance of another person, assistive device, or assistance animal) and the
SW's assessment that the appellant requires continuous assistance from another person. The
ministry noted that while the SW assessed the appellant as being able to stand only for 10 to 15
minutes and faints frequently, the GP in the PR did not describe any issues with fainting or prolonged
standing. As the ministry is inclined to place more emphasis on the assessments provided by the GP,
it is difficult to establish a severe impairment of physical functioning based on the SW’s assessments.
The ministry also reviewed the statement in the GP’s letter at reconsideration that stated, “[The
appellant] has severe Raynaud disease. [She] can walk 4 blocks in ideal weather conditions, but is
limited in cold conditions and thus hampering her and doing housework and shopping. Frequent
affection of her condition during summer resulting in hot clammy hands and in winter she experiences
cold fingers multiple times a day.” The ministry noted that in the letter the GP does not describe how
far she can walk in cold conditions and that “hot clammy hands” and “cold fingers” are not considered
indicative of a severe impairment of physical functioning.
Based on the assessments provided by the GP in the PR and at reconsideration and by the SW in
the AR, and the information provided by the appellant, her roommate and legal advocate at
reconsideration, the ministry acknowledges that although her physical functioning is affected by cold
weather, severe impairment of her physical functioning has not been established.
Panel decision
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 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 by the medical practitioner and
prescribed professional presents a comprehensive overview of the nature and extent of the impacts
of the person's medical conditions on daily functioning.
The GP diagnosed the appellant with Raynaud’s disease. In his letter at reconsideration, he added
the adjective “severe,” without explaining why he considered her condition severe.
In the PR, under health history, in the space provided to explain the severity of the appellant's
condition, the GP wrote: “Daily living chores causes severe pain. Coming into contact with any cold
objects exacerbates an already painful condition, which causes [illegible] pains.” And under Degree
and Course of Impairment the GP the GP, commented, “Chronic pain and discomfort affecting quality
of life as well as daily living.” In his letter and reconsideration, he stated:“[The appellant] can walk 4
blocks in ideal weather conditions, but is limited in cold conditions and thus hampering her and doing
housework and shopping. Frequent affection of her condition during summer resulting in hot clammy
hands and in winter she experiences cold fingers multiple times a day.” He goes on to the list clothing
and household items as her current aids. In the PR, when asked to provide additional comments
regarding the degree of restriction in the appellant's ability to perform DLA and to provide any
additional information relevant to an understanding of the nature and extent of the appellant's
impairment and its impact on daily functioning, the GP referred to his Health History statement.
In reviewing the GP’s statements above, the panel considers the narrative to be more of a description
of the appellant's medical condition, without much explanation on the extent to which this condition
restricts her daily functioning. For instance, “Daily living chores causes severe pain” does not
describe what chores she is unable to perform. “Coming into contact with any cold objects
exacerbates an already painful condition” does not explain the nature of the already painful condition
and the extent to which she is restricted if she avoids contact with a cold object. And as the ministry
noted, the GP does not describe how far she can walk in cold conditions and that “hot clammy hands”
and “cold fingers” are, without further explanation, not considered indicative of a severe impairment of
physical functioning.
As to functional skills, the GP reports that the appellant can walk 2 - 4 blocks unaided, can climb 5+
steps unaided, is limited to lifting 5 to 15 lbs., and there is no limitation to remaining seated. As these
assessments are in the moderate range, as the ministry noted, by themselves they are not indicative
of a severe impairment of physical functioning.
In the AR, the SW reported that the appellant requires periodic assistance from another person for
walking indoors, standing and carrying and holding, noting that she cannot walk on bare feet at all,
faints frequently and can stand for only 10-15 minutes, and that poor circulation makes carrying very
difficult. The SW assesses the appellant as requiring continuous assistance from another person or
unable for walking outdoors, commenting that from September to April she can only stay outdoors for
10-15 minutes. As the ministry noted, there are several discrepancies between these assessments
and those provided by GP. In particular, in the PR the GP assesses the appellant as being able to
walk 2 - 4 blocks unaided (i.e. without the assistance of another person or an assistive device) and in
his letter stated that she can walk 4 blocks in ideal conditions. Further the GP makes no reference to
frequent fainting and in her testimony at the hearing the appellant stated that recently this happens
about once a year. Considering these discrepancies and taking into account that the GP has known
the appellant for five years and the appellant had met the SW only once (and as the appellant
volunteered at the hearing, this was through a telephone interview), the panel finds the ministry was
reasonable in placing more emphasis on the assessments of the GP.
In her submission at reconsideration, the appellant's advocate submitted that in assessing what is
severe, the ministry ought to take into account the context in which the appellant is able to perform
various tasks. The appellant has pointed out that cold air, wind, and moisture are included in the cold
objects that cause exacerbated pain. The advocate submits that contextual factors ought to be
considered when the ministry assesses the extent of the appellant's limitations. The panel
acknowledges that the information submitted by the appellant and her roommate, including in the SR,
at reconsideration and at the hearing, does provide contextual information. This includes descriptions
of the measures that the appellant takes using the items listed by the GP in his letter to avoid skin
contact with cold objects or surfaces, how she avoids going outside in cold/rainy/windy weather, and
how clammy hands and sweaty feet in hot/humid weather make it difficult for her to drive her vehicle.
However, in the panel’s view, this contextual information adds little to the narrative and assessments
of the prescribed professionals, particularly that of the GP, that would point to a severe physical
impairment. In particular, while the appellant is subject to flare-ups when in contact with cold surfaces
or cold weather, there remains no explanation, taking into account the preventative measures she
takes to avoid direct contact with cold objects/surfaces/weather, of how and to what extent she is
otherwise restricted in her physical functioning. As the panel noted above, this facet of the appellant’s
impairment was also not addressed by the GP or SW.
On balance, and based on the above discussion, the panel finds that the ministry was reasonable in
determining that a severe physical impairment had not been established.
Mental impairment
The appellant’s position
The appellant's position is that her disability has taken a heavy toll on her emotional well being, and
this clearly establishes a severe mental impairment. In her statement at the hearing, the appellant
noted that the ministry in the reconsideration decision had stated that she had been assessed with
good functioning with both her immediate and extended social networks. However, as she stated in
her reconsideration letter [SR2], the only support she has is from her roommate. She does help with
her daily activities, such as meal prep and some transportation, but this does not qualify as an
extended social network. In her reconsideration letter, she stated that things she used to enjoy doing
for her emotional well being, she cannot do anymore. Going to the pool, meeting friends for coffee,
visiting family, or even conversing on the computer is virtually impossible for her. All of this was
explained in the reconsideration letter, showing the effect of her disability on her emotional state and
her ability to interact with social networks.
The ministry’s position
In the reconsideration decision, the ministry noted that the GP had not diagnosed nor described a
mental disorder/brain injury in the PR or in his reconsideration letter. In the PR the GP indicated that
the appellant has no difficulties with communication and has no significant deficits with cognitive and
emotional functioning. He also indicated that the appellant is not restricted with social functioning.
The ministry also reviewed the assessments provided by the SW in the AR relating to cognitive and
emotional functioning and social functioning, noting that these sections are to be ignored by the
assessor when a mental disorder/brain injury has not been diagnosed, though the assessor is at
liberty to complete these sections without said diagnoses, as long as they can be reviewed as
supporting information in the PR regarding significant deficits to cognitive and emotional function.
The ministry noted that while the SW indicated that the appellant has poor ability with writing, the GP
indicated that she has no difficulties with communication. In addition, although the SW indicated
impacts to significant deficits with cognitive and emotional functioning, the GP reported no significant
deficits with cognitive and emotional functioning. Further, while the SW indicated no major impacts to
cognitive and emotional functioning and one moderate impact on bodily functions (with minimal
impacts in 2 areas and no impacts in the remaining 11 areas), the ministry noted the SW’s comment:
“difficult to hold or prepare cold foods. Cannot touch cold water….” and found that this suggests the
impacts to her bodily functions are related to physical functioning as opposed to mental functioning.
Based on all the evidence provided in the original application and at reconsideration, the position of
the ministry was that a severe impairment of mental functioning has not been established.
Panel decision
As the ministry noted in the reconsideration decision, the GP has not diagnosed the appellant with
any mental disorder or brain injury and has not identified any significant deficits in cognitive and
emotional functioning. The GP also assessed the appellant as having no difficulties with
communication and no restrictions with social functioning. While the SW has indicated that in terms of
communications the appellant's ability to write is poor, the explanation that her hands get cold when
using a pen or keyboard is more indicative of the appellant's physical impairment rather than a
restriction due to mental functioning. Similarly, the SW assessed no major impacts of cognitive and
emotional functioning and one moderate impact relating to bodily functions, but again, as the ministry
noted, her comments suggest that the impacts are related to physical functioning as opposed to
mental functioning.
While the appellant argues that her Raynaud’s disease condition causes her much emotional distress
that would constitute a severe mental impairment, this has not been confirmed by her GP. Section 2
of the EAPWDA states in part that “The minister may designate a person … as a person with
disabilities … if the minister is satisfied that the person has a severe mental or physical impairment
that in the opinion of a medical practitioner is likely to continue for at least 2 years…” As the
appellant’s medical practitioner – her GP – has not identified a mental disorder or brain injury as an
impairment that will continue for at least 2 years, then the minister cannot be satisfied that she has a
mental impairment that is severe.
Based on the foregoing, the panel finds that the ministry was reasonable in determining that the
information provided does not establish a severe mental impairment.
Direct and significant restrictions in the ability to perform DLA
The appellant’s position
The appellant's position, as explained in her advocate’s submission at reconsideration, is that
according to Hudson (2009 BCSC 1461), to meet the requirements set out in section 2(2)(b)9I0 and
(ii), the applicant needs the opinion of a prescribed professional that indicates that there are
limitations and assistance is needed in at least two of the legislative categories. The advocate
submitted that this requirement is met, as the GP found that the appellant is continuously restricted in
6 of 8 categories and the SW found that she is restricted 3 of the 8 categories, with periodic
restriction in other categories as well.
The ministry’s position
In the reconsideration decision, the ministry reviewed the information provided by the GP in the PR
and noted that although the GP indicates that the appellant is continuously restricted with the majority
of listed daily living activities, he also states “Can manage but severely limited.” The ministry also
noted that the GP does not describe the nature of the limitations in the appellant's ability to perform
the restricted DLA.
The ministry also reviewed the assessments provided by the SW in the AR (see Part E above) and
noted the need to use warm water for grooming/showering/housekeeping and the inability to stand on
cold services are not considered indicative of significant restrictions to DLA. The ministry also noted
that in her assessments the SW does not describe the frequency or duration of the periodic
assistance from another person required for grooming, bathing, feeding self, regulating diet, laundry
and basic housekeeping.
Relying on the medical opinions and expertise from the appellant's medical practitioner and
prescribed professional, and considering that a severe mental or physical impairment has not been
established, the position of the ministry is that there is not enough evidence to confirm that the
appellant has a severe impairment that significantly restricts her ability to perform DLA continuously
or periodically for extended periods and therefore this legislative criterion has not been met.
Panel decision
The panel notes that, according to the legislation, the direct and significant restriction in the ability to
perform DLA must be a result of a severe impairment, a criterion that has not been established in this
appeal. The legislation – section 2(2)(b)(i) of the EAPWDA – requires the minister to assess direct
and significant restrictions of DLA in consideration of the opinion of a prescribed professional, in this
case the appellant’s GP or 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.” And for the minister to be “satisfied,” it is reasonable for the ministry to expect
that a prescribed professional provides a clear picture of the degree to which the ability to perform
DLA is restricted in order for the ministry to determine whether the restrictions are “significant.”
In the PR, the GP indicated that the appellant was restricted on a continuous basis for all but 2 of the
listed DLA requiring physical effort, noting: “Can manage but severely limited.” However, as the
ministry noted in the reconsideration decision, the GP has not described the nature of the limitations
– i.e. he did not provide any information as to the degree to which the appellant’s ability to perform
DLA is restricted, information that would have been helpful in determining whether the restrictions are
“significant.”
In the AR, for the DLA of moving about indoors and outdoors, the SW assesses the appellant as
requiring periodic assistance from another person for walking indoors, stating that she cannot walk in
bare feet at all, but does not describe the nature or frequency or duration of the assistance from
another person required, The SW assessed the appellant as requiring continuous assistance from
another person or unable for walking outdoors, but does not explain the nature of this assistance.
While the appellant at the hearing testified that she was accompanied by her roommate 90% of the
time when going outdoors, this assessment has not been confirmed by the GP, who in the PR
assessed the appellant as being able to walk 2 – 4 blocks unaided and in his letter at reconsideration
did not mention she needed to be accompanied when walking outdoors.
Regarding the DLA of personal care, the SW assesses the appellant as requiring periodic assistance
from another person for grooming, bathing, and feeding self/regulating diet. The SW explains why the
appellant is restricted in these tasks (e.g. must use warm water for bathing), but again does not
explain the nature, frequency or duration of periodic help from another person required.
Similarly with the DLA of basic housekeeping, the SW assesses the appellant as requiring periodic
assistance from another person for laundry and basic housekeeping, explaining why she is restricted
in these tasks (e.g. “difficult to touch wet clothing”) but again does not explain the nature, frequency
or duration of periodic help from another person required.
For the DLA of shopping, the SW assesses the appellant as requiring continuous assistance from
another person or unable for the tasks of going to and from stores, reading prices and labels, paying
for purchases and carrying purchases home. Again, the SW explains why the appellant is thus
restricted (e.g. “avoids if weather is cold or wet” for going to and from stores), but does not explain
the nature or extent of the continuous assistance required.
Likewise for the DLA of meals, the SW assesses the appellant as requiring continuous assistance
from another person for the tasks of meal planning, food preparation and cooking, explaining why
(e.g. eats simple, easy to prepare foods, cannot hold cold items or open jars when cold) but does not
describe the nature or extent of the continuous assistance required.
The SW assesses the appellant as independent in all aspects of the DLA of managing personal
finances and managing medications. For the DLA of transportation, the SW assesses the appellant
as requiring the continuous assistance of another person for using public transit, explaining, “Cannot
wait for transit outdoors.”
The panel notes that the SW assessed the appellant as requiring the periodic support/supervision for
two aspects of social functioning – ability to develop and maintain relationships and ability to deal
appropriately with unexpected demands. As the ministry noted in the reconsideration decision, the
SW did not provide an explanation as to the nature and degree of the support/supervision required.
Further, these abilities relate to the 2 DLA applicable only to a person with an identified mental
impairment – make decisions about personal activities, care or finances and relate to, communicate
or interact with others effectively. As explained above, the GP has not diagnosed a mental
disorder/brain injury or identified any significant deficits in cognitive or emotional function as a mental
impairment; therefore these DLA do not apply in this case.
Considering that a severe impairment has not been established, and taking into account the
assessments reviewed above, the panel finds that the ministry was reasonable in determining that
the information provided does not establish that in the opinion of a prescribed professional the
appellant's ability to perform DLA are directly and significantly restricted either continuously or
periodically for extended periods.
Help with DLA
The appellant’s position
The appellant's position, as explained in her advocate’s submission at reconsideration, is that the AR
shows that the appellant receives assistance in categories where there are noted restrictions. This
assistance ranges from the assistance of another person doing the task for her when temperature
factors do not allow the appellant to do it herself, or the assistance of a device such as specified
gloves, socks or shoes.
The ministry’s position
The ministry noted the aids listed by the GP in his letter at reconsideration. 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
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 ministry did not address whether the items listed as aids (socks, gloves, hand-warmers, etc.) as
set out in the GP’s letter can be considered “assistive devices.” The legislation defines “assistive
device” as “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.” To the panel, this means that
the device must be designed for the specific purpose of assisting a person whose ability to perform a
DLA is impaired. The everyday items listed were not designed with for that purpose, and so cannot
be considered “assistive devices.”
While the appellant benefits from the assistance of her roommate, 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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