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 21 March 21 2017 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.
The ministry also found that it has not been demonstrated that the appellant is of one of the
prescribed classes of persons who may be eligible for PWD designation on the alternative grounds
set out in section 2.1 of the Employment and Assistance for Persons with Disabilities Regulation. As
there was no information or argument provided by the appellant regarding alternative grounds for
designation, the panel considers that this matter not to be at issue in this appeal.
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 and 2.1
PART E – Summary of Facts
The evidence before the ministry at reconsideration consisted of the following:
1.
The appellant’s PWD Designation Application dated 14 October 2016. The Application
contained:
A Self Report (SR) completed by the appellant.
A Physician Report (PR) dated 28 October 2016, completed by the appellant’s general
practitioner (GP), who has known the appellant since 1995 and seen her 2-10 times over
the past year, based on an office interview and chart review (20 years).
An Assessor Report (AR) dated 31 October 2016, completed by the same GP.
2. The appellant’s Request for Reconsideration submitted on 22 March 2016, attached to
which are the following:
A submission from the appellant’s advocate dated16 March 2017.
A second Self Report (SR2), undated.
Revised PR and AR, with changes and additions made by a locum for the GP (the locum)
based on an office visit/assessment, each entry initialed and dated 02 March 2017 by
the locum.
The panel will first summarize the evidence from the PR and the AR, with the locum’s changes
and additions shown in italics, as it relates to the PWD criteria at issue in this appeal.
Diagnoses
The GP diagnoses the appellant with chronic anxiety and chronic back pain – mechanical. No
date of onset given. The locum adds a diagnosis of mood disorder – depression, with no date of
onset given.
Severity/health history
Physical impairment
PR:
Under Health History, the GP writes
“She is very overweight at 160 cm tall & 133 kg she is not motivated/willing to make lifestyle
changes that would improve her knees & back. She reports chronic back pain & x-rays
showed mild degenerative changes in the lumbar spine.”
The locum adds:
“Also, her chronic mechanical back pain, aggravated by her high BMI, severely affects her
physical abilities continuously on a daily basis. She is only able to stand for about 10
minutes or sit for 20 minutes. Any bending, lifting/carrying aggravates her back. She gets
daily assistance from family for cooking, and housework. Anything she does must be done
in small portions & take an inordinate amount of time.”
Under additional comments, the GP writes, “She is very deconditioned and ideally should lose
weight and enroll in exercise classes but she won't do this.”
As this to the Degree and Course of Impairment, the GP indicates that the appellant’s impairment
will likely continue for 2 years or more. The GP comments, “Likely knee/back pain will worsen with
time.”
Under Functional Skills, the GP/locum provide the following assessments:
The appellant is able to walk 2 to 4 blocks (1 to 2 blocks) unaided on a flat surface; can climb 2 to
5 steps; is limited to lifting 15 to 35 lbs. (under 5 lbs.); with no limitations as to how long she can
remain seated.
AR:
Regarding mobility and physical ability, the GP/locum assesses the appellant as follows:
Walking indoors – independent
Walking outdoors – independent
Climbing stairs – this takes significantly longer than typical.
Standing – independent.
Lifting – independent (periodic assistance from another person required).
Carrying and holding – independent.
The locum comments, “Daily assistance with lifting, i.e. unloading dishwasher, as causes too
much back pain.”
Mental impairment
PR:
Under Health History, the GP writes, “Patient has chronic anxiety and chronic sleep problems.
She avoids people and has difficulty with social interactions.”
The locum adds:
“Chronic mood disorder with both anxiety & depression symptoms affect her ability, on a
daily basis, to interact with people/focus/concentrate, and get motivated to do any tasks.
This has been resistant to medical interventions & severely affects her on a daily basis.”
Under additional comments, the GP writes, “She has chronic anxiety which affects her daily
functioning especially around others.”
The GP and locum indicate the appellant has significant deficits in cognitive and emotional
function in the following areas: executive, memory, emotional disturbance, motivation and
attention or sustained concentration.
As to communications, the GP indicates that the appellant has no difficulties, while the locum
indicates she does, caused by extreme social anxiety.
AR:
The GP assesses the appellant's ability to communicate as good for speaking and hearing and
satisfactory for reading and writing.
Regarding cognitive and emotional functioning, the GP indicates that the appellant's mental
impairment has the following impacts in the listed areas:
Major impact: none.
Moderate impact: emotion, impulse control, insight and judgment, executive, motivation, and
other emotional or mental problems (avoids people).
Minimal impact: bodily functions, attention/concentration, memory, and other
neuropsychological problems.
No impact: consciousness, motor activity, language, and psychotic symptoms.
The GP comments, “Avoids people.”
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
periodic basis: basic housework, daily shopping, mobility outside the home, and social
functioning.
The locum adds personal self care on a periodic basis.
The GP explains “periodic” as “Has episodic difficulties.” The locum adds “– on a regular basis.”
The GP explains the impact on social functioning as “Avoids people where possible.”
The GP describes assistance that the appellant needs with DLA as “Gets help from children.”
AR:
The GP/locum assess the assistance required for managing DLA as follows (the locum’s
comments in parentheses):
Personal care – GP: independent in all aspects; locum: independent in all aspects, except
periodic assistance from another person required for bathing (Needs help getting out of the
tub. Only showers once per week), and for regulating diet (needs continuous support for
regulating her dietary intake. Would benefit from counseling for this.)
Basic housekeeping – independent in all aspects.
Shopping: independent for reading braces and labels, making appropriate choices and
paying for purchases; periodic assistance from another person required for going to and
from stores and carrying purchases home
Meals – GP: independent in all aspects; locum: adds periodic assistance from another
person required for meal planning (difficulty meal planning to have budget get her through
until next paycheque)”
Pay rent and bills – independent in all aspects.
Medications – independent in all aspects.
Transportation – independent in all aspects.
With respect to social functioning, the GP assesses the appellant as independent for making
appropriate social decisions, interacting appropriately with others, dealing appropriately with
unexpected demands and able to secure assistance from others. The GP assesses the appellant
as requiring periodic support/supervision for developing and maintaining relationships.
The locum assesses the appellant as requiring continuous support/supervision for interacting
appropriately with others commenting, “Very anxious around people on a continuous basis,
making it difficult for her to make appropriate social decisions. Therefore mostly avoids people
when on her own.”
The GP 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, “Gets help from children.”
AR:
The GP indicates that help is provided to the appellant by family.
The GP does not indicate that the appellant requires any of the listed equipment or devices to
compensate for her impairment.
With regard to if help is required but there is none available, the locum writes:
“Psychiatric care & regular counseling by a clinical psychologist patient manage her chronic
mental health issues & help provide motivation [for] her to better self-manage her disability.”
When asked to provide additional comments regarding support/supervision for social functioning
that would help maintain the appellant in the community, including the identification of any safety
issues, neither the GP nor the locum provided any further information.
Self Report
In her SR, the appellant describes her disability as chronic anxiety and degenerative disc disease.
In describing how her disability affects her life and her ability to take care of herself, the appellant
writes:
“I do not sleep well at all. I have to take sleeping pills, which allows me to sleep a few hours
a night. I am constantly worried about things, even little things. It causes me not to go out I
was very much. When I am around others, they notice it, and tell me I am uptight about
things. I don't have any friends and spent a lot of time alone. I'm so anxious that I gave up
driving as I was too anxious to drive. I feel like my memory has really become a problem,
maybe because of the medication [prescription sleeping aid] I am taking. Like when I am
watching TV, if I change the channel, all forget what I had just been watching. I'm forgetting
phone numbers that were once very familiar to me. Even reading has become difficult.
My [son in early 20’s] lives with me and he does the things for me that I'm not able to do, like
vacuuming and emptying the dishwasher. My daughter comes over to help with changing
bedding and she helps me go shopping. I have to hold onto the cart while shopping and I
have to go sit down by the time I get to the cashier. My daughter has to back the groceries
into the bags and also lists them into the cart and car for me, as I'm not able to do it due to
my back pain. I can walk a block, but any more than that causes too much pain.”
Request for Reconsideration
In addition to the changes/additions made in the PR and AR by the locum, the Request for
Reconsideration also included:
SR2:
In SR2, the appellant writes that she feels that she was unjustly denied PWD designation
because her doctor did not sit down with her to fill out her form. He does not know what she does
through day today. Her doctor thinks that her back issues are due to her being overweight, but
she started experiencing pain in her back way before she got the bulk of her weight.
She suffers greatly from depression and it severely interferes with her everyday life issues. She
has a lot of family help, as she requires help around the house with everyday duties. Her doctor
was absent when she had to fill out her papers, so she got a replacement doctor who sat down
with her and asked her how she suffers from day to day.
She adds a P.S. that she is been prescribed antidepressants but they do not seem to help
Advocate’s submission
The advocate’s submission went to argument, drawing on the changes and additions provided by
the locum.
Notice of Appeal
In her Notice of Appeal, dated 28 March 2017, the appellant writes: “I am very depressed, and I
attempted suicide on March 22. I was in the hospital. My depression is debilitating, and so is my
anxiety. My depression interferes with my every day life.
Information submitted before the hearing
On 13 April 2017, the appellant’s advocate submitted an Emergency Department Physician
Assessment and Treatment Record, recording a visit to the ER at a local hospital on 22 March
2017 due to an overdose of a prescription medication. The advocate states that this Record was
produced by the ER physician after the appellant’s depression became so severe that she
overdosed on prescription medication.
In the Record, the ER physician noted: “per EMS – [prescription drug] OD when bailiffs came to
evict from home” and “unable to elicit any other info/hx from patient.
The hearing
At the hearing, the appellant's advocate took issue with the ministry’s approach in the
reconsideration decision of giving more weight to the GPs assessments than to the changes and
additions provided by the locum in the PR and AR (see Part F, Reasons for Panel Decision,
below). In support of her argument, the appellant stated that the locum is a retired physician who
practiced for many years in the community and who now fills in for other physicians in the
community in their absence. He is thus a fully qualified physician.
The appellant explained that, when she visits him, her GP does not spend much time with her and
tells her that all her problems are mental ones. She feels that her GP does not listen to her or
know about her day-to-day struggles. She has tried to find another physician in her community,
but none of them are taking on new patients if it is known that one already has a physician. When
she went to the GP to have her PWD Application filled out, there was no discussion and the GP
told her that he would fill it out and to come back later to pick it up.
When she went to try to obtain additional information to submit with her reconsideration package,
the GP was away and she was seen by the locum. He assessed her using a computer-based
diagnostic questionnaire to come up with the diagnosis of depression. He also sat down with her,
going through the information requirements of the PR and AR.
In answer to other questions, the appellant stated that she now lives in a hotel where visitors are
not allowed, so she misses the almost daily support/supervision of her son, which she finds
important for her mental health. She is also attending a health authority mental health program.
She described how her anxiety causes a dry mouth, making her reluctant to go out and be with
other people, including going shopping.
She stated that she can walk or stand for only 10 minutes at a time, before her back pain gets so
bad that she has to sit and rest. Her GP will not prescribe her any prescription pain medications,
so she is only on an over-the-counter analgesic that she takes, but this does not provide much
relief. Only sitting down when the pain gets bad seems to help.
The appellant also explained that she has often tried losing weight but nothing works. Even when
she was in withdrawal from a prescription medication and hardly ate anything, she did not lose
any weight. Besides, on her limited budget, it is hard to eat healthy foods that might help with
weight loss.
The appellant stated that she had been prescribed antidepressant medications in the past, and
could not understand why her GP had not diagnosed her with depression.
The ministry stood by its position at reconsideration (see also Part F, Reasons for Panel Decision,
below).
Admissibility of additional information
The ministry did not object to the admissibility of the additional information submitted by the
appellant before and at the hearing.
Section 22(4) of the Employment and Assistance Act (EAA) provides that panels may admit as
evidence the information and records that were before the minister when the decision being
appealed was made and “oral or written testimony in support of the information and records”
before the minister when the decision being appealed was made.” These limitations reflect the
jurisdiction of the panel established under section 24 of the EAA – that is, panels are limited to
determining if the ministry’s decision is reasonably supported by the evidence or a reasonable
application of the legislation in the circumstances of the appellant. Thus panels are not to assume
the role of decision-makers of the first instance by considering information that presents a new or
different picture of the impairment or restrictions than that which was before the ministry when it
made its reconsideration decision.
The panel finds that the appellant's reference in the Notice of Appeal to a suicide attempt and the
ER physician’s report on her overdose of prescription medication are not in support of the
information and records before the ministry and reconsideration. There is nothing in the
information before the ministry at reconsideration referring to suicidal ideation or abuse of
prescription medication and no indication of any safety issues. The appellant's advocate has
sought to draw on the ER physician's report as substantiating the severity of the appellant's
depression. However, the ER physician’s report does not refer to any diagnosis about the
appellant’s mental condition at the time or in her history, referring only to the circumstances that
brought her to the hospital – “[prescription drug] OD when bailiffs came to evict from home.” The
panel cannot be expected to make a finding of causality between a diagnosis and a subsequent
event. The panel therefore does not admit the above information as evidence.
The panel finds that the information provided in the balance of the appellant's testimony at the
hearing tends to corroborate the information provided in the PR, AR and SR2 and therefore
admits this information as evidence pursuant to section 22(4) of the EAA.
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 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 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
General considerations
The ministry began its analysis of the information provided regarding severity of impairment by noting
that the diagnosis of a serious medical condition does not in itself determine PWD eligibility or
establish a severe impairment. The ministry defined an “impairment” as a medical condition that
results in restrictions to a person's ability to function independently or effectively. The ministry must
consider the nature of the impairment and the extent of its impact on daily functioning based on the
functional skill limitations and restrictions. The panel notes that the PR form also provides a definition
along similar lines, while expanding on the restrictions to a person's ability to function to include
“appropriately or for a reasonable duration.” While the definition as framed by the ministry in its
decision is not set out in the legislation, the panel finds that it is consistent with the overall intent of
the legislation, with its focus on restrictions and help required.
In reviewing the information provided by the GP and the changes/additions by the locum in the PR
and AR, the ministry stated that it gives greater weight to the report completed by the GP, given that
he had been the appellant's physician for over 20 years, as compared to the additional information
the appellant provided to the locum. At the hearing, the appellant’s advocate argued that this
approach to discounting the information provided by the locum was unreasonable, given that the
locum had actually sat down with the appellant in reviewing the forms and taken her through a
computer-based diagnostic questionnaire to arrive at a diagnosis of depression. By comparison, as
the appellant stated at the hearing, the GP did not go through the forms with the appellant, only telling
her that he would fill them out and for her to come back later to pick them up.
The ministry's position, as elaborated at the hearing, is that the appellant has been the GP’s patient
for over 20 years and he could be expected to know her better than the locum who had met with her
once. The ministry argued that it cannot be expected to take into account the setting in which the PR
and AR is completed. The ministry also argued it would be inappropriate for the ministry to give
weight to documents in which one physician amended, by crossing out and replacing with something
else, a medical opinion submitted by another physician without explanation for the changes. The
panel considers the ministry's arguments compelling, particularly as the locum did not provide any
explanation for the changed assessments
In its consideration of the weight to be given to the respective assessments of the GP and the locum,
the ministry did not address the relevance of a new diagnosis by the locum of “mood disorder –
depression,” or later, “chronic mood disorder with both anxiety and depression symptoms.” In the PR,
the GP diagnosed the appellant with chronic anxiety and chronic back pain – mechanical. The GP
indicated that the appellant's impairment, arising from these diagnosed medical conditions, will likely
continue for 2 years or more. The legislation states that the minister must be satisfied that a medical
practitioner or nurse practitioner has provided an opinion that the impairment is likely to continue for
at least 2 years. It is only an impairment that meets this duration criterion that can be considered in
applying the three other “impairment” criteria at issue in this appeal. In introducing the diagnosis of
depression, the locum did not provide an opinion on its duration.
Accordingly, as the locum had not provided an explanation for the changed assessments or
confirmed that the appellant’s diagnosed depression will continue for at least 2 years, the panel finds
the ministry was reasonable in giving more weight to the GP’s assessments.
Physical impairment
In the reconsideration decision, the ministry referred to the GP’s diagnosis relating to physical
impairment as chronic mechanical back pain and quoted the narratives provided by the GP and the
locum as reported under Health History in the PR (see Part E above). The ministry also noted that the
GP has indicated that the appellant has not been prescribed any medication or treatment that
interferes with her ability to perform DLA and does not require any prostheses or aids for her
impairment. The ministry further noted that the appellant had submitted a self-report with her
application, stating that it is important to note that this information is considered in conjunction with
the assessments provided by her medical practitioner. The ministry also summarized SR2 submitted
at reconsideration (see Part E above).
Before turning to the more detailed assessments in the PR and AR, the ministry stated that in its
opinion the appellant does not have a severe physical impairment
The ministry then reviewed the GP's assessments as to mobility and physical ability (can walk 2 to 4
blocks unaided, etc.) and noted however that the locum reported more limited abilities (can walk 1 to
2 blocks unaided, etc.).
The ministry also noted that in the AR the GP assessed the appellant as independent with walking
indoors, outdoors, standing, lifting, and carrying and holding, while taking longer climbing stairs. The
ministry also noted that the GP assessed the appellate as independent with all of her DLA, requiring
only periodic assistance with going to/from stores, carrying purchases home, and with mobility
outside the home.
The ministry went on to note that the locum now reports that the appellant also has periodic
restrictions with personal self-care. He also reports episodes of difficulty on a regular basis, and also
reports that the appellant requires daily assistance with lifting as it causes too much back pain. He
further reports periodic assistance required with bathing, meal planning/budgeting, and continuous
support regulating dietary intake (would benefit from counseling in this area).
At this point, the ministry stated that it gives greater weight to the reports completed by the GP as
compared to the additional information provided by the locum. As discussed above under general
considerations, the panel finds this approach reasonable.
On this basis, the ministry concludes that the appellant functions independently with most of her
physical requirements for DLA and it is unclear why there was such a significant change reported by
the locum with respect to her limits with walking and lifting, given that the x-rays only report mild
degenerative changes, which the ministry views as not indicative of a severe physical impairment.
The ministry also noted that the nature and extent of the periodic assistance the appellant requires
has also not been described in enough detail to determine the extent of the help that is required
and/or provided, nor was it clarified how many activities take significantly longer to manage.
At the hearing, in addition to the issue of the weight to be given to the GP/locum information, the
appellant’s advocate took exception to the above analysis as this related to periodic assistance. The
advocate objected to the ministry’s being dismissive and minimizing the assistance required by
referring to it as “only periodic assistance,” and argued that the legislation does not require a
description of the periodic assistance. The panel notes that in the AR, there is a footnote that states,
“Periodic assistance – refers to the need for significant help for an activity some of the time as would
be the case where a person required help due to the episodic nature of the impairment.” While in the
PR the GP reported that the appellant “has episodic difficulties” and the locum adds “– on a regular
basis,” there is no other information provided by the GP in the PR or AR about the episodic nature of
her impairments – i.e. how they are present for a length of time (days or weeks), then subside, and
then reoccur and the periodic assistance required during these episodes. The panel finds it
reasonable for the ministry to expect some description of the nature of any periodic assistance and its
frequency and duration, to determine if the activity requiring periodic assistance is significantly
restricted and to assess whether the appellant’s ability to perform the activity is restricted periodically
for extended periods.
The ministry concluded its analysis by stating that being very overweight with knee and back pain and
mild degenerative changes is not representative of a severe impairment to overall physical
functioning.
Considering:
the ministry reasonably gave more weight to the assessments provided by the GP,
the GP’s assessments of her mobility and physical abilities (can walk 2 to 4 blocks unaided
and lift 15 to 35 lbs.),
the degree of independence in performing DLA as assessed by the GP, with the need for
periodic assistance reported in the AR limited to 2 aspects of the DLA of shopping, and
the lack of information provided regarding the nature and extent of any periodic help required
and whether it is required periodically for extended periods,
the panel finds that the ministry was reasonable in finding that it has not been demonstrated that the
appellant has a medical condition that severely restricts her ability to physically function
independently or effectively, and therefore it has not been established that she has a severe physical
impairment.
Mental impairment
In the reconsideration decision, the ministry had given as background the narratives under Health
History provided by the GP and the locum (see Part E above). In addressing the severity of mental
impairment the ministry turned to the impacts of the appellant’s mental impairment on daily
functioning in the AR and noted that the GP had reported that the appellant's chronic anxiety affects
her daily functioning, especially around others (“avoids people”). The ministry noted that while the GP
reported no major impacts, he does however identify moderate impacts in the following areas:
emotion, impulse control, insight and judgment, executive, and motivation.
The ministry also noted that the GP reported her “social functioning to be independent but marginal.”
The panel considers this latter statement to be unclear and somewhat inaccurate. The panel
understands the statement means that the GP has assessed the appellant as being independent with
respect to the 5 listed social functioning abilities (ability to make appropriate social decisions, etc.). In
fact, the GP had assessed the appellant as requiring periodic support/supervision for being able to
develop and maintain relationships, while being assessed as independent for all others. The GP had
also assessed how the appellant's mental impairment impacts her relationship with her immediate
and extended social networks as marginal functioning.
The ministry also noted that the locum reported that the appellant's extreme social anxiety affects her
on a continuous basis, making it difficult for her to make appropriate social decisions. The panel finds
this sentence inaccurate – in fact the locum assessed the appellant as requiring continuous
supports/supervision for the ability to interact appropriately with others, not the ability to make
appropriate social decisions.
The ministry did not address the evidence provided in the PR and AR with regard to the appellant's
ability to communicate, an area that may be restricted by mental impairment. In the PR, the GP had
indicated that the appellant has no difficulties with communications, while the locum had indicated
that she did, with the cause being given as “extreme social anxiety.” In the AR, the GP assessed the
appellant's ability for speaking and hearing as good, and for reading and writing as satisfactory.
The ministry concluded by stating that while both physicians report that the appellant's anxiety makes
her avoid people on her own and moderately impacts many areas of her life, no major impacts have
been identified, and therefore a severe mental impairment has not been demonstrated. At the
hearing, the appellant’s advocate argued that given the many moderate impacts assessed by the GP
of mental impairment on daily functioning, it would be reasonable to conclude that these moderate
impacts would combine or accumulate into major impacts on her daily functioning. In the panel’s
view, the ministry cannot be expected to deduce to what extent and in what areas of daily functioning
moderate impacts might combine or accumulate into major impacts. The panel notes that the GP has
not, in the space provided, given any description or explanation of such cumulative impacts, except to
note, “Avoids people.”
Despite the inaccuracies noted above, taking into account placing greater weight on the assessments
provided by the GP, and considering that the GP had reported no major impacts of the appellant's
mental impairment on daily functioning and had provided no information describing the periodic
support/supervision in one of 5 of her social functioning abilities, the panel finds the ministry was
reasonable in determining that a severe mental impairment had not been established.
Direct and significant restrictions in the ability to perform DLA
According to the legislation, the direct and significant restriction in the ability to perform DLA must be
a result of a severe impairment. The legislation – section 2(2)(b)(i) of the EAPWDA – requires the
minister to assess direct and significant restrictions of DLA, either continuously or periodically for
extended periods, in consideration of the opinion of a prescribed professional. As discussed above,
this involves giving more weight in this case to the information provided by the appellant’s GP. 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 reconsideration decision, the ministry found that it was not satisfied that the appellant has a
severe impairment that, in the opinion of a prescribed professional, directly and significantly restricts
DLA continuously or periodically for extended periods. In analyzing the assessments provided in
reaching this conclusion, the ministry noted that the degree to which the GP assessed her as
independent in performing most of the DLA requiring physical effort, and the limited extent that
periodic assistance is required, with no information describing such periodic assistance. As to social
functioning, the ministry noted that while as a result of her anxiety she requires periodic support/
supervision in social settings and maintaining relationships, it is unclear how often such help is
required.
In terms of specific assessments, in the PR the GP assessed the appellant as restricted on a periodic
basis with basic housework, daily shopping, mobility outside the home and social functioning, and not
restricted for all other DLA. These assessments provide no information regarding the degree of
restriction. With regard to the DLA of moving about indoors and outdoors, in the PR the GP assessed
the appellant as being able to walk 2 to 4 blocks unaided and climb 2 to 5 steps. In the AR he
indicated that she is independent for walking indoors and outdoors and taking significantly longer
than typical for climbing stairs. With regard to the 7 other DLA applicable to a person with a severe
mental or physical impairment, in the AR the GP assessed the appellant as being independent for all,
except for requiring periodic assistance from another person (no detail given) for going to and from
stores and carrying purchases home for the DLA of shopping.
Regarding the two social functioning DLA listed in section 2(1)(b) of the EAPWDR applicable to a
person with a severe mental impairment (make decisions about personal activities, care or finances
and relate to, communicate or interact with others effectively), the GP has provided no information
that there is any difficulty with the “decision-making” DLA in such areas as meal planning, making
appropriate choices while shopping, budgeting, and taking medications as directed, while assessing
her as independent for making appropriate social decisions. The GP has indicated that the appellant
requires periodic support/supervision in one area of the “relate to effectively” DLA, (ability to develop
and maintain relationships) but again the nature and degree of such support/supervision has not
been explained.
Giving greater weight to the assessments provided by the GP, and taking into account the level of
independence reported by the GP in the appellant’s ability to perform DLA and the lack of information
as to the nature and extent of any periodic assistance/support/supervision required, the panel finds
that the ministry reasonably determined that it has not been established that this criterion has been
met.
Help with DLA
In the reconsideration decision, the ministry held that, as it has not been established that DLA are
significantly restricted, it cannot be determined that significant help is required.
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.
While the appellant benefits from help from her son and from a mental health program, since 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. The panel therefore
confirms the ministry’s decision. The appellant is thus not successful on appeal.
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