PART C – Decision under Appeal The decision under appeal is the Ministry of Social Development and Social Innovation (the ministry) Reconsideration Decision dated January 9, 2017 which found that the appellant did not meet all of the statutory requirements of section 2 of the Employment and Assistance for Persons with Disabilities Act for designation as a Person With Disabilities (PWD). The ministry found that the appellant met the age requirement, that she has an impairment that is likely to continue for at least two years and she has a severe mental impairment. However, the ministry was not satisfied that the evidence established that: 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 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. 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 the time of the Reconsideration Decision included: 1.The appellant’s Persons With Disabilities (“PWD”) Application comprised of: The Applicant Information and Self-report (“SR”) completed by the appellant and dated March 14, 2016; and The Physician Report (“PR”) dated June 27, 2016 and the Assessor Report (“AR”) dated June 27, 2016, both prepared by the appellant’s general practitioner (“GP”) of 4 years, who treated the appellant 2-10 times in the 12 months prior to completing the PR and AR, and indicated that the source of the information used to complete the PWD application was “office interview with applicant, other assessments, other professionals and file/chart information”. 2. May 5, 2016 mental health assessment conducted by the appellant’s psychiatrist and it speaks to the appellant’s mental state. 3. February 6, 2014 mental state examination conducted by the appellant’s psychiatrist and it speaks to the appellant’s mental state and provides recommendations. 4. August 12, 2013 mental state examination conducted by the appellant psychiatrist and it speaks to the appellant’s mental state and provides recommendations. 5. August 15, 2012 psychiatric assessment which speaks to the appellant’s mental state. 6. Request for reconsideration (RFR), signed and dated December 20, 2016 and in part the appellant states: Anxiety, depression and short term memory (STM) have gotten worse since the 2014 assessment by her psychiatrist. Medication helps regulate emotional breakdowns. Mind gets scattered and feels overwhelmed. There has been abstinence from alcohol use but this does not change poor STM or emotion issues. Due to feeling overwhelmed combined with feelings of hopelessness has left her unable to keep up with house work or chores. Diagnoses In the PR, the GP notes that the appellant has been diagnosed with anxiety disorder, alcohol abuse and subdural hematoma- left frontal lobe (onset 2013 for each condition). Physical Impairment SR: Appellant did not comment on any conditions or symptoms related to a physical impairment in the RFR or the SR other than a loss of smell and words sound mumbled. PR: Diagnosis indicated as subdural hematoma.
Physical functioning is indicated as follows: can walk 4+ blocks and climb 5+ steps unaided, can lift 5-15lbs, and remain seated with no limitation. AR: Mobility and physical ability is indicated as follows: independent with walking indoors and outdoors, climbing stairs, standing, lifting (with the comment “currently struggles to lift weight over 2-7kg [illegible]). Mental Impairment SR: Appellant describes her mental impairment as: memory issues, extreme depression, uncontrollable emotions. Experiences emotional break-downs over trivial matters or for no apparent reason. Experiences confusion and inability to comprehend written or verbal instructions. Self-esteem has diminished. PR: Diagnosed with anxiety and alcohol abuse with an onset of 2013. Anxiety score of 19 (severe) with the Generalized Anxiety-7 (GAD7) test. Depression score of 24 (severe) with the Personal Health Questionnaire-9 (PHQ-9) test. There are no difficulties with communication. AR: Speaking (with the comment “very upset at times and tearful”), reading, writing and hearing are indicated as good. Cognitive and emotional functioning: major impact indicated for bodily functions, emotion, attention/concentration, executive, memory, and motivation. No impact indicated the remaining listed items in this category. DLA: Social functioning: all listed items are indicated as independent except ‘able to develop and maintain relationships’ which is indicated as requiring periodic assistance. Immediate social network is indicated as ‘very disrupted functioning’ and extended social network is indicated ‘marginally functioning’. Daily Living Activities PR: GP did not address DLA in the PR. GP indicated that the appellant has not been prescribed any medication and/or treatment that interfere with his ability to perform DLA. AR: All listed areas of DLA are indicated as independent functioning with the exception of that which is indicated as requiring periodic assistance as listed above, and ‘basic housekeeping’ which is indicated as ‘takes significantly longer’ without indication of how much longer.
Need for Help SR: Appellant did not indicate that assistance is required from another person, assistive device or assistive animal. PR: GP noted that the appellant does not require any prostheses or aids for her impairment. AR: GP noted that the appellant receives assistance from her son and neighbour. GP did not indicate if the appellant uses assistive devices and stated ‘no’ to the use of assistance animals. Evidence on Appeal Notice of Appeal (NOA), signed and dated January 18, 2017, which in part states that the appellant has been diagnosed with cancer. With the NOA the appellant submitted the following additional information: April 12, 2013 history and physical report. January 18, 2017 letter from a physician with the BC Cancer Agency confirming the appellant’s diagnosis of cancer. Evidence at the Hearing At the hearing the appellant stated, in part, that she: Cannot handle her finances or communicate without assistance. Is very emotional and cannot talk without crying or breaking down. Cannot work in her profession due to memory problems. Does not have control of her emotions since her head injury. Is facing a financial burden and currently living off of credit cards and lines of credit. Has not worked in over a month as she cannot get out of bed. Does not have new information from her GP because he left the community. Tries to live independently but is often overwhelmed. Receives help from her sister for shopping. Agrees with her GP’s assessment of her physical abilities. At the hearing the ministry relied on its reconsideration decision. Admissibility of Additional Evidence The ministry did not object to admitting the information submitted prior to the hearing. On review of the evidence, the panel notes that the April 12, 2013 history and physical report is in support of or corroborates the information and records that were before the ministry at the time of reconsideration. The panel therefore finds that this information is admissible as it is in support of the
information and records that were before the minister when the decision being appealed was made, pursuant to section 22(4)(b) of the Employment and Assistance Act. On review of the evidence, the panel notes that the January 18, 2017 letter from the BC Cancer Agency is not in support of or corroborates the information and records that were before the ministry at the time of reconsideration. The panel therefore finds that this information and any reference to it is not admissible as it is not in support of the information and records that were before the minister when the decision being appealed was made, pursuant to section 22(4)(b) of the Employment and Assistance Act.
PART F – Reasons for Panel Decision The issue on the appeal is whether the ministry's Reconsideration Decision, which found that the appellant is not eligible for designation as a PWD under section 2 of the EAPWDA, was reasonably supported by the evidence or was a reasonable application of the applicable enactment in the circumstances of the appellant. The ministry found that the appellant met the age requirement, that she has an impairment that is likely to continue for at least two years and that she has a severe mental impairment. However, the ministry was not satisfied that the evidence establishes that: 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 criteria for being designated as a PWD are set out in Section 2 of the EAPWDA as follows: Persons with disabilities 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 or nurse 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. (4) The minister may rescind a designation under subsection (2). Section 2(1)(a) of the EAPWDR defines DLA for a person who has a severe physical or mental impairment as follows: Definitions for Act 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. Severity of impairment Section 2(2)(a) of the EAPWDA provides that when addressing the issue of a severe physical or mental impairment in the context of a person applying for a PWD designation, that person must be found to have a severe physical or mental impairment that, in the opinion of a medical practitioner or nurse practitioner, is likely to continue for at least 2 years. A diagnosis of a serious medical condition or conditions 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. To assess the severity of an impairment one must consider the nature of the impairment and the extent of its impact on daily functioning. In making its determination, the ministry must consider all the relevant evidence, including that of the appellant. However, the legislation is clear that the fundamental basis for the analysis is the evidence from prescribed professionals – in this case, the GP. Severity of physical impairment The appellant did not argue that she suffers from a specific physical impairment or condition. The ministry’s position as set out in the Reconsideration Decision is that the evidence as a whole, including the appellant’s functional skill limitations, does not support a finding that the appellant has a severe physical impairment. Panel Decision As mentioned above, diagnoses of serious medical conditions do not by themselves determine that the physical impairment is severe. The appellant faces challenges but the panel is of the view that the challenges she experiences are the result of her mental impairment and not due to a physical impairment. In the PR, the GP has diagnosed the appellant with a subdural hematoma – left frontal
lobe but indicates that the appellant has good functional skills because she can walk 4+ blocks and climb 5+ stairs unaided, can lift 5-15lbs and remain seated without limitation. In the AR the GP indicates that the appellant is independent in all areas of mobility and physical functioning. Section 2(2) of the EAPWDA requires that the minister must be satisfied that a person has a severe mental or physical impairment that results in restrictions to a person’s ability to function independently or effectively. The evidence given by the GP indicates that the appellant’s functional ability is good and there is no indication that she requires significant help. Therefore the panel finds that the ministry was reasonable in its determination that the evidence does not support a finding that the appellant suffers from a severe physical impairment. Restrictions in the ability to perform DLA The appellant argued that she is restricted in her ability to perform tasks of DLA due to her mental health. She argued that her inability to control her emotions causes her to be overwhelmed. She also argued that her DLA have been impacted in the following ways: laundry is put off indefinitely, her sister helps her once per week with shopping and all related activities, she finds it too overwhelming to plans meals so she eats sandwiches, since she forgets to shut off the stove she no longer cooks, she finds budgeting too confusing, the pharmacist assists her with her medications, and she avoids using public transit because she cannot figure out the routes. The ministry’s position as set out in the Reconsideration Decision is that it has not been established by the evidence of a prescribed professional that the appellant’s ability to perform DLA has been directly and significantly restricted by her physical or mental impairments either continuously or periodically for extended periods as required by section 2(2) of the EAPWDA. Panel Decision Section 2(2)(b) of the EAPWDA requires that a prescribed professional provide an opinion that an applicant’s severe impairment directly and significantly restricts his or her DLA, continuously or periodically for extended periods. In the present case, while the appellant has provided evidence of the challenges that she faces with DLA, the legislation is clear that to satisfy the criteria the evidence must come from a prescribed professional. In the present case, this evidence has been provided by two prescribed professionals - the GP and the doctor who conducted the psychological assessment. DLA are defined in section 2(1) of the EAPWDR and are also listed in the PR and, with additional details, in the AR. Therefore, a prescribed professional completing these forms has the opportunity to indicate which DLA, if any, are significantly restricted by the appellant’s impairments, either continuously or periodically for extended periods. Employability is not a listed criterion in the legislation and as such is not a consideration in the determination of whether an applicant’s DLA are restricted by a severe impairment. The additional information provided, namely the mental health assessments and examinations, does not speak to the appellant’s ability to perform her DLA. The evidence provided in the assessments and examinations only speaks to the severity of the appellant’s medical condition. The only information which assesses the appellant’s ability to perform her DLA is that of the GP in the PWD application.
The GP addresses DLA in the AR. The GP has indicated that the appellant is independent in all listed DLA, except 1 aspect of social functioning; namely, ‘able to develop and maintain relationships’ which is indicated as requiring periodic support/supervision. The GP does not indicate what support/supervision is required or the frequency and duration of the support/supervision that is required. The panel finds that the information provided by the GP is insufficient to establish that the appellant’s severe mental impairment significantly and directly restricts her ability to perform her DLA. Though the appellant provided further detail regarding her restrictions to perform her DLA, this information is not confirmed by her GP or other medical practitioner. As stated above, the legislation requires that significant restrictions to perform DLA as a result of a severe mental or physical impairment must be confirmed by a medical practitioner. In making its decision in this matter the ministry must consider the evidence and therefore, considering the evidence of the GP as set out in the AR, and the additional information provided in the mental health examinations and the assessments, the panel finds that the ministry reasonably concluded that the evidence was insufficient to establish that the appellant’s impairment significantly restricts her ability to perform tasks of DLA either continuously or periodically for extended periods. Help with DLA The appellant argues that she requires help with various tasks of DLA with that help coming from family and friends. The ministry’s position as set out in the Reconsideration Decision is that because it has not been established that the appellant’s 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 direct and significant restrictions in the ability to perform DLA, a person requires help to perform those activities. Section 2(3) of the EAPWDA provides that a person requires help in relation to a DLA if, in order to perform it, the person requires an assistive device, the significant help or supervision of another person, or the services of an assistance animal. In other words, it is a pre-condition to a person requiring help that there be a finding that a severe impairment directly and significantly restricts a person’s ability to manage his or her DLA either continuously or periodically for an extended period. Given the panel’s finding that the ministry reasonably determined that direct and significant restrictions in the appellant’s ability to perform DLA have not been established, the panel further finds that the ministry’s conclusion that it cannot be determined that the appellant requires help to perform DLA as a result of those restrictions, as defined by section 2(3)(b) of the EAPWDA, was reasonable. Conclusion Having reviewed and considered all of the evidence at the time of the ministry’s reconsideration decision and relevant legislation, the panel finds that the ministry’s Reconsideration Decision which determined that the appellant was not eligible for PWD designation under section 2 of the EAPWDA was reasonably supported by the evidence and a reasonable application of the applicable enactment
in the circumstances of the appellant, and therefore confirms the decision. The appellant is not successful in her appeal.
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