Ministry of Social Development and Poverty Reduction

Decision Information

Decision Content

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 December 20, 2016, which held that the appellant did not meet 3 of the 5 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 and that a medical practitioner confirmed that the appellant has an impairment that is likely to continue for at least 2 years. However, the ministry was not satisfied that: the evidence establishes that the appellant has a severe physical or mental impairment; the appellants 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 those restrictions, in the opinion of a prescribed professional, the appellant requires an assistive device, the significant help or supervision of another person, 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 following documents were before the ministry at reconsideration. 1) PWD application comprised of the appellants Self-report (SR) dated May 19, 2015, a Physician Report (PR), and an Assessor Report (AR). Both the PR and AR were completed by the appellants general practitioner (GP) of 18 months and are dated July 8, 2016. 2) May 13, 2016, Brief Pain Inventory (Short Form) Modified,” completed by the appellant. 3) Mental health disorders Patient Health Questionnaire (PHQ-9), completed in May 2016. 4) GAD (general anxiety disorders) patient questionnaire, completed in May 2016. 5) Pain Disability Index questionnaire, completed in May 2016. 6) June 22, 2016, L Spine radiology report. 7) July 12, 2016, Left ankle radiology report. 8) August 6, 2016, L Spine CT scan results. 9) December 1, 2016, 3-page handwritten reconsideration submission. In her Notice of Appeal submission, the appellant confirms information she previously provided, adding that having had surgery on her left hand, and awaiting surgery on her rights hand, she is hopeful to have relief from the carpal tunnel, but has been informed that the arthritis cannot be reversed. I spend the majority of time in bed. When not in bed, I am in constant battle with pain maintenance.” The appellant also provided argument respecting the legislative criteria. On appeal, the appellant also submitted a January 18, 2017 letter from the GP who writes that the appellant has had improvement in her left hand since her carpal tunnel release and hopefully will also have the same when the right hand is done. Her biggest limitation is her significant back pain related to severe osteoarthritis of the spine. She feels at a maximum she could work six hours a day during which time she is taking Tylenol, changing positions to cope with her pain. She has defined the impact on her activities of daily living.” The GP encloses the following documents: July 28, 2016 report respecting a neurologic consultation. Over the past year she has had variable numbness and tingling over the lateral aspect of the right thigh. This seems to come and go and varies whether she is sitting or standing. She does not have any numbness below the knee. She does have episodic sensations of weakness of the right ankle while walking. Sometimes her ankle feels a bit a (sic) floppy but then it usually returns to normal. She really has not had much in the way of back pain.” Very significant carpal tunnel syndrome is confirmed. Weight loss would be helpful. She does not have any EMG evidence of a lumbar nerve root disturbance although I note that a CT scan of the lumbar spine is pending.” Operative report respecting left hand carpal tunnel surgery performed in November 2016. January 12, 2017 clinical outpatient report Respecting left carpal tunnel release 6 weeks prior, the appellant “…has done well from this, with only some mild residual pillar pain. She has full hand range of motion and complete resolution of her nighttime symptoms. She still has some occasional tingling and numbness in the median nerve distribution, but overall is very happy and has improved.” The appellant would like to proceed with surgery on her right hand (trigger release and excisional biopsy of a mass). Copies of radiology reports previously submitted.
The ministry did not raise an objection to the admissibility of the information provided by the appellant on appeal but provided a submission comprised of argument responding to the GPs letter and enclosed documents. The arguments of both parties are set in Part F of this decision. The panel determined that the information provided by the appellant on appeal substantiates the information at reconsideration respecting upcoming hand surgery and the appellants assertion that her condition has worsened since the PWD application was completed. Accordingly, in accordance with section 22(4) of the Employment and Assistance Act, the panel admitted the additional information as information is support of the information and records before the ministry at reconsideration. Summary of relevant evidence available at reconsideration Diagnoses In the PR, the GP diagnoses: Polycythemia - requires phlebotomies every 1 to 3 months; accompanied by fatigue, muscular and joint pain that has limited endurance and ability to sustain work, even doing phone messaging. Sciatica symptoms for 2 years progressive with recent right leg/foot weakness and findings of weakness and muscular wasting; underlying diagnosis likely secondary osteoarthritis of the lumbar spine x-ray confirmation pending; signs of significant osteoarthritis impacting abilities to function. Degenerative disc disease. Hypertension. Physical Impairment The GP provides the following information. No aids or prostheses required. The appellant is able to: o walk 2 to 4 blocks unaided; o climb 2 to 5 steps unaided; o lift 5 to 15 lbs; and o remain seated for 20 minutes. Walking indoors and outdoors, climbing stairs, and standing are managed independently. Lifting and carrying/holding require periodic assistance from another person. no assistance other than lifting and carrying of objects eg. groceries In addition to the previously noted diagnoses, the GP reports persisting left ankle swelling and limitation of right hand grip (unable to completely make a fist). Writing takes longer secondary to difficulty with hand grip.
The medical imaging reports include the following information. 1) June 22, 2016, L Spine radiology report disc spaces well maintained; multilevel degenerative change (moderate to severe facet arthrosis at L4-5 and L5-SI). 2) July 12, 2016, Left ankle radiology report - minimal findings in keeping with mild osteoarthritis of the ankle and bilateral hand findings concerning for osteoarthritis. 3) August 6, 2016, L Spine CT scan results Severe facet osteoarthritis at the lower 2 levels and mild degenerative disc disease at multiple levels. Mild lateral recess narrowing L4-5. No significant stenosis or suspected nerve root compression.” In her SR, the appellant reports that some days are not as severe as others but that each day is a struggle to get out of bed and function. Pain is now evident in her joints and muscles. As she approaches needing treatment for the polycythemia, she suffers from severe fatigue, dizziness, and muscle and joint pain and must decrease activity to get through the day. In the Pain Inventory, the appellant describes her average pain as 7, where 10 is the worst pain you can imagine and that in the past 24 hours the lowest level of pain was 5 and the highest was 10. On a scale where 10 is completely interferes and 0 is does not interfere”, the appellant reports that during the past 24 hours her ability for general activities and walking were 8. In the Pain Disability Index, the appellant indicated that the level of disability for recreation and social activity is at level 10 worst disability while the ability to perform household chores and self-care is at level 8 (0 is no disability”). In her reconsideration submission, the appellant states that since July 2016, when she applied for disability, her mobility, DLA, and ability to socially interact have decreased dramatically. Her days are continual pain. Walking 4 blocks is extremely painful due to left ankle and lower back, is slow and only attempted to attend medical appointments. In November 2016, she had carpal tunnel surgery on her left hand, which should alleviate numbness, but not the pain from arthritis. In January 2017, she will be assessed for the same surgery on her right hand. Mental Impairment The GP provides the following information. No difficulties with communication. Significant deficit in 1 of 14 listed areas of cognitive and emotional function emotional disturbance; depressive symptoms due to physical condition, pain, limitations and inability to work leading to financial strain. In the section of the AR listing 14 areas of cognitive and emotional functioning, a moderate impact on daily functioning is reported for emotion, attention/concentration, and executive. If in pain and fatigued, has difficulty with concentration and executive function. Unable to do previous employment in sustained way due to difficulty with focus and concentration, especially if back, hand and fist is bad. No impact is reported for the remaining areas. Social functioning is managed independently. Good functioning with both immediate and extended social networks. No support needed. In her SR, the appellant writes that she cannot begin to explain how her physical conditions have
affected her on a psychological basis. Some days she does not want to get out of bed. She fights to overcome periodic depression. Her concentration level is severely hampered by fatigue and pain. In her Pain Index questionnaire, the appellant reports that, on a scale of 0 to 10, with 10 being completely interferes”, pain interferes with her mood and relationships with others at level 7. In the PHQ-9, the appellant reports that over the last 2 weeks she has felt down, depressed or hopeless more than half the days. Trouble concentrating, poor appetite or overeating, and feeling tired or having little energy are reported as occurring nearly every day. In the GAD-7, the appellant reports problems with worrying and trouble relaxing more than half the days over the last 2 weeks; becoming easily annoyed or irritable, feeling afraid and other problems are identifies as having occurred several days. In her reconsideration submission, the appellant writes that her social functioning is extremely limited due to her pain level and fatigue and that her ability for social interactions has decreased dramatically since applying for disability in July 2016. DLA The GP reports that the appellant is continuously restricted in her ability to manage: Meal preparation (unable to cut up things secondary to incomplete hand grip); continuous assistance required with food preparation (others do some meal prep) and cooking while meal planning and safe storage of food are managed independently. Basic housework (secondary to osteoarthritis, family does heavy cleaning, eg. vacuuming, sweeping etc.) Laundry requires periodic assistance from another person while basic housekeeping requires continuous assistance (others do lifting and sweeping floors) Daily shopping (needs assistance with repetitive lifting, carrying). Always has help carrying purchases home. Going to and from stores, reading prices and labels, making appropriate choices and paying for purchases are managed independently. Mobility outside the home. The GP also reports that mobility outside the home is not restricted but references the limitation of being able to walk 2 to 4 blocks unaided. Management of medications and finances, transportation, and social functioning are managed independently. The appellant is reported to independently manage all listed tasks of the remaining DLA with no assistance from another person, assistive devices, and without taking significantly longer to perform the tasks: personal self-care, paying rent and bills, medications, transportation, and social functioning. The GP comments that the appellant is unable to sit long periods, and that pain in her spine and lack of hand grip limit all activities, especially her occupation (previously cleaning). The appellant has not been prescribed medication and/or treatments that interfere with her ability to perform DLA. In her SR, the appellant reports that due to pain even simple tasks such as bathing, doing dishes,
cleaning, taking the stairs, sweeping the floor can take far longer or not be done at all. At reconsideration, the appellant reports that activities of daily living have decreased dramatically since July 2016 and are severely limited due to constant pain and fatigue. Everything she does is done slowly and painfully. Need for Help The GP reports that family and friends help with shopping, food preparation and cooking, and house cleaning. No assistive devices are required. The appellant does not require an assistance animal.
PART F Reasons for Panel Decision Issue on Appeal The issue on appeal is whether the ministrys 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: a severe physical or mental impairment was not established; the appellants DLA are not, in the opinion of a prescribed professional, directly and significantly restricted either continuously or periodically for extended periods; and as a result of those restrictions, in the opinion of a prescribed professional, the appellant does not require an assistive device, the significant help or supervision of another person, or the services of an assistance animal to perform DLA? Relevant Legislation 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 is in a prescribed class of persons or 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). EAPWDR 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 authorized under an enactment to practice the profession of (a) medical practitioner, (b) registered psychologist, (c) registered nurse or registered psychiatric nurse, (d) occupational therapist, (e) physical therapist, (f) social worker, (g) chiropractor, or (h) nurse practitioner.
Severe Impairment The legislation provides that the determination of severity of impairment is at the discretion of the minister, taking into account all of the evidence including that of the appellant. However, the legislation is also clear that the fundamental basis for the analysis is the evidence from a prescribed professional respecting the nature of the impairment and its impact on daily functioning. While the legislation does not define impairment”, the PR and AR define impairment as a loss or abnormality of psychological, anatomical or physiological structure or functioning causing a restriction in the ability to function independently, effectively, appropriately or for a reasonable duration.” While this is not a legislative definition, and is therefore not binding on the panel, in the panels opinion, it reflects the legislative intent and provides an appropriate analytical framework for assessing the degree of impairment resulting from a medical condition. Physical Impairment The appellants position is that the information on paper does not come close to encompassing the severity of what her daily activities reflect. Constant pain makes every day a struggle to get out of bed. Walking 4 blocks and climbing stairs are only attempted when necessary and are done slowly and in extreme pain. Her condition has worsened since first applying for PWD designation and she does not know what else she can provide to establish qualification. The ministry argues that the information in the PWD application demonstrates that the appellant experiences limitations to physical functioning due to pain and fatigue indicating a moderate rather than severe physical impairment. The ministry points to the functional skills assessments, that no aids or prostheses are required. Additionally, although the appellants reconsideration submission reports a dramatic decrease in function since the PWD application was completed, the appellant has not indicated how much longer activities take, and her information is not confirmed by a medical practitioner or prescribed professional. The ministry also notes that employability or ability to work is not taken into consideration when determining PWD eligibility. The ministry also argues that the information provided on appeal does not establish a severe impairment. The ministry notes that the original assessment of the appellants ability to walk, climb stairs, and lift, which is not indicative of severe impairment, has not been amended in the physicians letter which, in fact, explains that the appellant is capable of working six hours per day with only Tylenol to sedate her pain. If the appellants condition were severe, it would be expected that she would require more effective medication and/or would benefit from the use of an assistive aid such as a walker with a seat to enable her to stop and rest and achieve further distances (or a cane or grab bars for the bathroom). The ministry also comments that there is no mention of a referral to a pain clinic, chiropractor, massage therapist, or other physical therapist that may benefit the appellant. Panel Decision The appellant has been diagnosed with polycythemia, sciatica - symptoms, degenerative disc disease, and hypertension. The GP also describes symptoms relating to bilateral carpal tunnel syndrome and the medical imaging reports confirm severe bilateral carpal tunnel syndrome. In July 2016, when the PWD application was completed, the GP noted signs of significant arthritis and the
July 28, 2016 nerve conduction study indicated that investigation respecting sciatica symptoms/nerve compression were pending. The subsequent August 6, 2016 CT scan of the lumbar spine confirmed severe osteoarthritis at the lower 2 levels and mild degenerative disc disease at multiple levels and that there was no significant stenosis or suspected root compression.” At reconsideration, in her December 1, 2016 submission, the appellant indicated that she had undergone surgery on her right hand, which should alleviate carpal tunnel symptoms but not osteoarthritis symptoms. As documented in the January 12, 2017 outpatient report, the appellant has done well with carpal tunnel symptoms in her left hand described as only some mild residual pillar pain and occasional tingling and numbness in the median nerve distribution.” Full hand range of motion and complete resolution of her nighttime symptoms is also reported. In her January 18, 2017 letter, the GP confirms improvement in the appellants left hand and is hopeful that the same improvement will occur in the right hand following surgery; the GP also reports that the appellants biggest limitation is significant back pain related to severe osteoarthritis of the spine. While the appellant is diagnosed with severe osteoarthritis at two levels, which results in her biggest limitation”, the panel finds that the ministry has reasonably viewed the information respecting the resulting impairment as not establishing a severe degree of physical impairment. In particular, the GP assesses the appellants physical functional skills and mobility as independent in all areas excepting lifting and carrying. As the ministry notes, while the appellant reports that her functioning has been further impaired since the PWD application was completed, in the January 18, 2017 letter, the GP does not revise or amend the physical functional assessments in the PR and AR, which include the ability to walk 2 to 4 blocks unaided, climb 2 to 5 steps unaided, and lift between 5 to 15 lbs. Furthermore, as the ministry also notes, in the January 18, 2017 letter, the GP states that the appellant believes she could work six hours a day, if using pain medication and changing positions, which the panel finds is not indicative of worsening functioning since the PWD application was completed. The panel also notes that while the ability to work is not a legislative criterion upon which PWD eligibility is assessed, the GPs comment does give some indication as to the appellants level of physical functioning. Additionally, as the ministry notes, at no time does the GP, or the appellant, identify the need for any assistive devices or aids. While the panel acknowledges that the appellant has been diagnosed with serious medical conditions, the panel finds that the ministry has reasonably determined that while the information establishes a moderate level of impairment, a severe physical impairment is not established. Mental Impairment The appellants position as expressed in her SR and mental health questionnaires is that her pain interferes with her emotional, cognitive and social functioning and that she cannot begin to explain the impact of her physical conditions on her psychologically. Her concentration is severely hampered and she fights to overcome periodic depression and at reconsideration she describes her social functioning as extremely limited. The ministry acknowledges that the appellant reports extremely limited social functioning due to her pain, but that she has not provided any information to indicate she requires support or supervision with any aspects of social functioning and this information has not been confirmed by a medical practitioner or prescribed professional. The ministry concludes that the information provided by the
GP respecting cognitive and emotional functioning, communication, and social functioning demonstrates that the appellant experiences depressive symptoms due to her physical condition but does not establish a severe mental impairment. Panel Decision The appellant is not diagnosed with a mental condition or brain injury, though the GP and the appellant both report depressive symptoms due to the pain and limitations caused by physical conditions. In describing the limitations, the GP reports that there is no major impact on daily functioning in any of the 14 identified areas of cognitive and emotional functioning. Additionally, the appellant has good communication abilities and manages all areas of social functioning independently with no need for support. The GP does not identify problems with the decision-making tasks of DLA. Based on this information, the panel concludes that the ministry reasonably determined that the information does not establish that the appellant has a severe mental impairment. Restrictions in the ability to perform DLA The appellant argues that all activities of daily living are severely limited due to constant pain and fatigue. Everything is done slowly and painfully, or not done at all. The ministrys position is that although the appellant argues that her activities of daily living have decreased dramatically, the GPs findings are that the appellant is independent in most categories with limits. Further, while the appellant reports that everything is done slowly and painfully, how much slower than typical is not described in order to determine if the limitations represent a significant restriction to the overall level of functioning, and additionally, this information has not been confirmed by the GP or a prescribed professional. The ministry concludes that the assessments provided by the GP do not establish that a severe impairment significantly restricts DLA continuously or periodically for extended periods. Panel Decision The legislative requirement respecting DLA set out in section 2(2)(b) of the EAPWDA is that the minister be satisfied that as a result of a severe physical or mental impairment a person is, in the opinion of a prescribed professional, directly and significantly restricted in the ability to perform DLA either continuously or periodically for extended periods. Consequently, while other evidence may be considered for clarification or support, the ministrys determination as to whether or not it is satisfied is dependent upon the evidence from prescribed professionals. DLA are defined in section 2(1) of the EAPWDR and are listed in both the PR and the AR sections of the PWD application with the opportunity for the prescribed professional to check marked boxes and provide additional narrative. The information from the appellants GP, a prescribed professional, is that the appellant is not restricted in her ability to manage the DLA of personal self-care, medications, finances, transportation, and social functioning. The GP also reports that the appellant independently manages the DLA of moving about indoors and outdoors, though independent walking outdoors is limited to 2 to 4 blocks.
Continuous restrictions in the ability to perform the DLA basic housework, meals, daily shopping are reported in the PR and the need for continuous assistance with some of the listed physical tasks within those DLA is reported in the AR. Periodic assistance is also indicated for one of two listed aspects of housekeeping, namely, laundry (help with carrying). The GP describes the need for assistance with meals, specifically the tasks of food preparation and cooking, as cutting up of vegetables and that others do some food prep.” Respecting basic housekeeping, the GP reports assistance is required for vacuuming, sweeping, and floor cleaning, noting that the appellants family does heavy cleaning, eg. vacuuming, sweeping etc.” Additionally, the GP comments that the appellant requires assistance with repetitive lifting, carrying laundry, and that she always needs help carrying purchases home the other physical task of the DLA shopping, going to and from stores, is managed independently. The panel finds that the accompanying narrative respecting the need for assistance with meals and housekeeping suggests that assistance is not required for all tasks but rather some specific food preparation and housekeeping tasks, which is in keeping with the GPs physical functional skills assessment of moderate limitations. The panel also notes that it is not entirely clear what impact the appellants recent surgery has had and her upcoming hand surgery will have on her ability to grip, the information establishes that she has full range of motion in her left hand and reduced pain, and that most recently, in her January 18, 2017 letter, the GP assesses the appellants back pain as her most significant issue. As the ministry notes, the appellant indicates that all activities are done slowly and with pain and that simple tasks such as bathing, doing dishes, cleaning, taking the stairs, sweeping the floor can take far longer or not be done at all, but that the appellant does not describe how much longer tasks take and the GP has reported that most DLA are managed independently. The panel notes that while given the opportunity in the AR to indicate that tasks are managed independently but take significantly longer to perform, the GP has not so indicated. Additionally, the GP reported that personal self-care is managed independently by the appellant with no noted limitation. In her January 18, 2017 letter, the GP comments She has defined the impact on her activities of daily living.” It is unclear if the GP is intending to endorse the appellants comments respecting DLA in the SR or is affirming the appellants statement on appeal that she spends most of her time in bed. If the former is the case, as noted above, the GPs assessment of DLA tasks did not indicate that those managed independently take longer to perform. If the latter is the case, it appears to conflict with the GPs immediately preceding comment that She feels at a maximum she could work six hours a day during which time she is taking Tylenol, changing positions to cope with her pain.” The panel finds that while the information from a prescribed professional establishes that the appellants medical conditions result in direct restrictions in her ability to perform some DLA tasks, the GP assesses the appellant as independently managing most DLA tasks with no described limitation, such as taking longer to perform a task. Additionally, for those DLA requiring continuous assistance, the GPs narrative identifies that this assistance is required only for some specific physical tasks within those DLA - cutting food, the heavier aspects of basic housekeeping, and carrying purchases home. Based on the above analysis, the panel finds that the ministry reasonably determined that a significant restriction to overall functioning has not been established. Accordingly, the panel finds that the ministry reasonably determined that a severe impairment that
significantly restricts the appellants ability to perform DLA continuously or periodically for extended periods as required by section 2(2)(b)(i) of the EAPWDA has not been established. Help to perform DLA The appellant does not expressly identify what assistance she requires but argues that all activities are done slowly and with extreme pain and that the assistance she receives from her family is negligible. The ministrys position is that because it has not been established that DLA are significantly restricted, it cannot be determined that 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. 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 DLA. The establishment of direct and significant restrictions with DLA is a precondition of the need for help criterion. As the panel found that the ministry reasonably determined that direct and significant restrictions in the appellants ability to perform DLA have not been established, the panel also finds that the ministry reasonably concluded that it cannot be determined that the appellant requires help to perform DLA as required by section 2(2)(b)(ii) of the EAPWDA. Conclusion The panel finds that the ministrys 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 not successful on appeal.
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