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 9 May 2017, which 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 as 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 severe physical impairment; a severe mental or physical impairment, in the
opinion of a prescribed professional, directly and significantly restricts her ability to perform daily
living activities (DLA) either continuously or periodically for extended periods; and as a result of those
restrictions, she requires help to perform those activities.
The ministry found that the information provided did establish that the appellant has reached 18 years
of age and her impairment, in the opinion of a medical practitioner, is likely to continue for at least 2
years.
PART D – Relevant Legislation
Employment and Assistance for Persons with Disabilities Act (EAPWDA) – section 2
Employment and Assistance for Persons with Disabilities Regulation (EAPWDR) – section 2
PART E – Summary of Facts
The appellant was not in attendance at the hearing. After confirming that the appellant was
notified, the hearing proceeded under Section 86(b) of the Employment and Assistance
Regulation.
The evidence before the ministry at reconsideration consisted of the following:
1.
The appellant’s PWD Application. The Application contained:
A Medical Report (MR) dated 2 February 2017, completed by the appellant’s general
practitioner (GP) who has seen the appellant 2-10 or more times in the past 12 months.
An Assessor Report (AR) dated 2 February 2017, completed by the appellant’s GP.
A Self Report (SR) dated 6 February 2017 completed by the appellant.
2.
Medical Reports included with the appellant’s PWD application:
X-ray report (lumbar spine) - November 30, 2016.
Bone Scan Report – October 22, 2013.
X-ray report (chest and knees) – October 2, 2013.
3.
A Request for Reconsideration dated 20 April 2017, in which the appellant describes her
medical history and current medical conditions, as well as her employment history and the
difficulty she experienced in her prior employment.
4.
A letter from the appellant’s advocate to her GP requesting a letter of support for the
appellant’s reconsideration application.
5.
A letter prepared by the appellant’s advocate and signed by her GP dated April 20, 2017.
6.
A 7-page reconsideration submission prepared by the appellant’s advocate.
The panel will first summarize the evidence from the PWD Application as it relates to the PWD
criteria at issue in this appeal.
Diagnoses
In the MR, the GP diagnoses the medical conditions related to the appellant’s impairment as:
Chronic back pain
Osteoarthritis
In the AR, the GP describes the appellant’s mental or physical impairments as “the patient is
limited in her ability to walk, lift, carry.”
Severity of mental impairment
MR:
The GP does not provide a mental health diagnosis on the “Diagnoses” section of the PWD
application.
The GP indicates that the appellant has no difficulties with communication.
The GP indicates that the appellant had significant deficits with cognitive and emotional
functioning in the areas of executive, emotional disturbance and attention with the comment: The
pain has resulted in secondary depression.
AR:
The GP assesses the appellant’s ability to communicate as good in all areas (speaking, reading,
writing, and hearing).
The GP assess the appellant’s cognitive and emotional functioning as having no impact in the
areas of bodily functions, consciousness, impulse control, insight and judgement, memory, motor
activity, language, psychotic symptoms and other neuropsychological problems. The GP
assesses minimal impacts on daily functioning in the areas of emotion, executive, and motivation.
Moderate impacts on daily functioning are assessed in attention/concentration. The GP writes:
Her chronic daily pain affects her mood and ability to concentrate and plan.
The GP indicates that the appellant requires periodic assistance/support in all social functioning
DLA and provides the comment: The patient has socially isolated herself as a result of her chronic
daily pain. The GP indicates that the appellant has marginal functioning in her immediate and
extended social networks and writes that the support/supervision required which would help
maintain the appellant in the community is: daily encouragement to participate in community
activities including transportation.
SR:
The appellant does not indicate that she suffers from a severe mental impairment or mental
health condition. She describes chronic arthritis in her back and knees and a compressed
vertebra in her upper back (see below).
Severity of physical impairment
MR:
Under Health History, the GP writes: The patient suffers from moderate to severe back and joint
(knee) pain, which limits her ability to do any physical activity.
For functional skills, the GP indicates that the appellant can walk 1-2 blocks unaided, climb 5+
steps unaided, lift 2 to 7 kg. (5 to 15 lbs.), and remain seated less than 1 hour.
The GP indicates that the appellant does not require any aids or prostheses.
AR:
The GP indicates the appellant’s mobility and physical ability as independent for standing. The
GP indicates that the appellant requires periodic assistance from another person for walking
indoors, walking outdoors, climbing stairs, lifting and carrying and holding, with the comment:
Pain limits her ability to walk, lift and carry.
SR:
The appellant writes: I have chronic arthritis in my back and knees. It gets so bad that it makes it
hard to walk for a long period or even to stand sometimes it hurts to do so. Also, I’ve had and still
have a compressed vertebra in my upper back. With the chronic pain from the arthritis it affects
me worse in the cold and makes it very difficult to walk for a long period of time or for long
distance and I can’t even sit for long before my back will start to hurt.
Ability to perform DLA
General
MR:
The GP indicates that the appellant has not been prescribed medication that interferes with her
ability to perform DLA.
The GP indicates that the appellant has no difficulties with communication.
AR:
The GP indicates that the appellant has no difficulties with communications and in the AR,
assesses her ability to communicate as good for speaking, reading, writing, and hearing.
The GP indicates that the appellant is independent in: the personal care DLA of dressing
grooming, bathing, toileting, feeding self, and regulating diet; the shopping DLA of reading prices
and labels, making appropriate choices, and paying for purchases; all meals DLA; the pay rent
and bills DLA of banking and pay rent and bills; all medications DLA; and the transportation DLA
of using transit schedules and arranging transportation.
The GP indicates that the appellant requires periodic assistance for: the personal care DLA of
transfers in/out of bed and on/off chair (pain will limit her mobility); basic housekeeping DLA of
laundry and basic housekeeping (pain limits her ability to do any physical activity); the shopping
DLA of going to and from stores and carrying purchases home; the pay rent and bills DLA of
budgeting; and the transportation DLA of getting in and out of a vehicle.
The GP comments: the patient requires daily assistance for housework, carrying groceries,
laundry – anything that requires physical activity. The GP further comments: the patient’s pain
make it difficult getting in and out of a vehicle and walking to/from public transit. Help with private
transportation is required.
Section 2(1)(a) DLA
Prepare own meals
AR:
The GP indicates that the appellant is independent in all meals activities.
Manage personal finances
AR:
The GP indicates that the appellant is independent in the personal finances activities of banking,
and paying rent and bills. The GP indicates that the appellant requires periodic assistance with
budgeting.
Shop for personal needs
AR:
The GP indicates that the appellant is independent in the shopping DLA of reading prices and
labels, making appropriate choices and requires periodic assistance with the shopping DLA of
going to and from stores and carrying purchases home.
Use public or personal transportation facilities
AR:
The GP indicates that the appellant is independent in the transportation DLA of using transit
schedules and arranging transportation and requires periodic assistance using transit and getting
in and out of a vehicle.
Perform housework to maintain the person's place of residence
AR:
The GP indicates that the appellant requires periodic assistance with laundry and basic
housework; with the comment: Pain limits her ability to do any physical activity.
Move about indoors and outdoors
MR:
The GP indicates that the appellant can walk 1-2 blocks unaided on a flat surface and can climb
5+ steps unaided.
AR:
The GP indicates that the appellant is independent with standing and requires periodic assistance
with walking indoors and outdoors, climbing stairs, lifting, and carrying and holding. The GP
comments: Pain limits her ability to walk, lift and carry.
Perform personal hygiene and self-care
AR:
The GP indicates that the appellant is independent with the personal care DLA of dressing
grooming, bathing, toileting, feeding self, and regulating diet and requires periodic assistance with
transfers in/out of bed and on/off chair. The GP comments: pain will limit her mobility.
Manage personal medication
AR:
The GP indicates that the appellant is independent in all medications DLA.
Section 2(1)(b) DLA
The following DLA are applicable to a person who has a severe mental impairment:
Make decisions about personal activities, care or finances
AR:
The GP indicates that the appellant is independent with shopping DLA of readings labels, making
appropriate choices, and paying for purchases; the all meals DLA, including meal planning and
safe storage; the pay rent and bills DLA of banking and pay rent and bills; all medications DLA;
and the transportation DLA of using transit schedules and arranging transportation.
The GP indicates that the appellant requires periodic assistance with the pay rent and bills DLA of
budgeting.
Relate to, communicate or interact with others effectively
MR:
The GP indicates that the appellant has no difficulties with communication.
AR:
The GP assesses the appellant’s ability to communicate as good in all areas (speaking, reading,
writing, and hearing).
The GP indicates that the appellant requires periodic assistance in all social functioning DLA
(appropriate social decisions, able to develop and maintain relationships, interacts appropriately
with others, able to deal appropriately with unexpected demands, and able to secure assistance
from others) and has marginal functioning in her immediate and extended social networks. The
GP comments: The patient has socially isolated herself as a result of her chronic daily pain.
The GP writes that the support/supervision required which would help maintain the appellant in
the community is: daily encouragement to participate in community activities including
transportation.
Help required
MR:
The GP indicates that the appellant does not require an aid or prosthesis for her impairment.
AR:
The GP writes: The patient’s pain makes it difficult getting in/out of a vehicle and walking to/from
public transit. Help with private transport is required.
The GP indicates that the appellant receives assistance from family for DLA. In response to the
prompt to specify what help is required but there is none available, the GP writes: help with
household chores, shopping and transportation to medical appointments/grocery.
The GP indicates that the appellant does not receive assistance from assistive devices or
assistance animals.
Notice of Appeal
In her Notice of Appeal dated 18 May 2017, the appellant gives as Reasons for Appeal: I disagree
because I cannot work regularly anymore and I cannot get anything that’s easier on my body. I
cannot lift more than 5 lbs.
The hearing
The appellant did not attend the hearing.
The ministry relied on its reconsideration decision.
Admissibility of new information
The panel finds that the information provided by the appellant in her Notice of Appeal is in support
of the information and records before the ministry at reconsideration. The panel therefore admits
this information in accordance with section 22(4) of the Employment and Assistance Act.
PART F – Reasons for Panel Decision
The issue in this appeal is whether the ministry decision that determined that the appellant did not
meet three of the five statutory requirements of Section 2 of the EAPWDA for designation as a person
with disabilities (PWD) is reasonably supported by the evidence or is a reasonable application of the
legislation in the circumstances of the appellant. Specifically, the ministry determined that the
information provided did not establish that:
the appellant has a severe mental or severe physical impairment;
that the appellant’s severe mental or physical impairment, in the opinion of a prescribed
professional, directly and significantly restricts her ability to perform daily living activities (DLA)
either continuously or periodically for extended periods; and
as a result of those restrictions, she requires help to perform those activities.
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
The legislation requires that for PWD designation, the minister must be “satisfied” that the person has
a severe mental or physical impairment. The legislation makes it clear that the determination of
severity is at the discretion of the minister, considering all the evidence, including that of the
appellant. Diagnosis of a serious medical condition or the identification of mental or physical deficits
does not in itself determine severity of impairment. An impairment is a medical condition that results
in restrictions to a person’s ability to function independently, appropriately, effectively or for a
reasonable duration. To assess the severity of impairment one must consider the nature of the
impairment and the degree of impact on daily functioning.
Severity of mental impairment
In the reconsideration decision, the ministry found that the information provided did not establish that
the appellant has a severe mental impairment of her mental functioning. The ministry noted that the
GP provided a diagnosis of depression in the letter provided at reconsideration and had indicated in
the MR that pain had resulted in secondary depression. In its analysis of the evidence, the ministry
noted that, in the assessment of significant deficits with cognitive and emotional function, the GP
noted deficits in the areas of emotional disturbance, attention or sustained concentration and
executive. The ministry noted that the appellant’s ability to communicate was assessed as good in all
areas. The ministry considered that there were no major impact areas noted, moderate impact in
attention concentration, and minor or no impacts for all other areas of cognitive and emotional
functioning in the AR. The ministry found that this assessment did not establish a severe mental
impairment.
The ministry went on to consider that the GP had indicated the appellant’s need for periodic
assistance with all areas of social functioning. The ministry considered the comment provided by the
GP (the patient has socially isolated herself as a result of her chronic daily pain) in response to the
request for information about the degree and duration of support required. The ministry also
considered the GP’s assessment of marginal functioning in social networks and the accompanying
comment (daily encouragement to participate in community activities including transportation). The
ministry found that the assessments of the level of assistance required were not supported by the
GP’s assessment of the impacts the appellant’s cognitive and emotional functioning have on her daily
functioning. The ministry also noted that information describing the nature of the support or
supervision as well as how often it was required had not been provided.
The panel considers it appropriate that in the reconsideration decision the ministry acknowledged that
the appellant experiences challenges due to depression and anxiety but finds that the information
provided does not establish a severe impairment of mental functioning. The panel concludes that the
ministry reasonably determined that the assessment of impacts to the appellant’s cognitive and
emotional functioning did not establish a severe impairment. The panel notes that despite the GP’s
indication that periodic assistance is required for social functioning, other than indicating that the
appellant requires encouragement to participate in community activities, there is an absence of
information in relation to the degree and duration of support the appellant requires. The panel further
notes that the appellant’s communication abilities are assessed as good and there are no safety
concerns noted by the GP in the MR or AR. The panel finds that the ministry reasonably concluded
that the information provided did not establish a severe mental impairment. The panel finds that the
ministry’s determination that this criterion has not been met is reasonable.
Severity of physical impairment
In the reconsideration decision, the ministry found that it was not satisfied that the information
provided established the presence of a severe physical impairment. The ministry noted that that the
GP had assessed the appellant as being able to walk 1-2 blocks unaided, climb 5+ steps unaided, lift
5-15 lbs. and remain seated for less than an hour. The panel notes that, in her notice of appeal, the
appellant specifies that she is limited to lifting 5 lbs. The ministry considered the GP’s report that the
appellant requires periodic assistance from another person for walking indoors and outdoors,
climbing stairs, standing, lifting and carrying and holding, and independent with standing, and noted
that the comment: Pain limits her ability to walk, lift and carry. The ministry found that the
discrepancies in these assessments were problematic because the basic physical functioning
assessment found in the MR did not correlate with the ability and physical mobility assessments
provided by the GP in the AR. The ministry went on to consider the GP’s letter provided at
reconsideration but determined that it did not provide additional information about basic physical
ability or mobility and physical ability activities.
The panel considers that, in the reconsideration decision, the ministry acknowledged that there are
some limitations and restrictions in the appellant’s physical functioning due to chronic back pain and
osteoarthritis but ultimately concluded that the information provided in the assessments of physical
functioning and the appellant’s ability to manage activities requiring mobility and physical ability did
not establish a severe physical impairment. The panel notes that in the SR the appellant described
pain and difficulty she experiences with walking for long distances or for a long time, as well as
difficulty with sitting for long. The panel further notes that in her request for reconsideration the
appellant described difficulties she experienced in meeting her deadlines when working and
recovering from work. As well, the appellant argued in her notice of appeal that she cannot return to
work at her previous job, cannot get anything that is easier on her body. The panel finds that
employability is not a consideration for eligibility for PWD designation because employability is not a
criterion in section 2(2) of the EAPWDA, nor is it listed among the prescribed daily living activities in
section 2 of the EAPWDR.
The panel notes that the GP indicated that the appellant experiences some restrictions but finds that
the ministry reasonably concluded that the information provided in relation to functional skills, and
mobility and physical ability does not correlate and the GP’s letter provided at reconsideration did not
provide clarification. The panel further notes that the GP has not provided information in the mobility
and physical ability assessment to describe the assistance the appellant requires. The panel finds
that the ministry reasonably concluded that the information provided did not establish a severe
physical impairment. The panel finds that the ministry’s determination that this criterion has not been
met is reasonable.
Direct and significant restrictions in the ability to perform DLA
The legislation – section 2(2)(b)(i) of the EAPWDA – requires the minister to assess direct and
significant restrictions of DLA in consideration of the opinion of a prescribed professional, in this case
the appellant’s GP. This does not mean that other evidence should not be considered, but the
legislative language makes it clear that a prescribed professional’s evidence is fundamental to the
ministry’s determination as to whether it is “satisfied.” At issue is the degree of restriction in the
appellant's ability to perform the DLA listed in section 2(1)(a) and (b) of the EAPWDR applicable to a
person with a severe mental or physical impairment. The panel notes that, according to the
legislation, the direct and significant restriction in the ability to perform DLA must be a result of a
severe impairment, a criterion not established in this appeal.
In the reconsideration decision, the ministry found that the information provided did not establish that
the appellant’s ability to manage DLA is significantly restricted either continuously or periodically for
extended periods of time and that as a result she requires significant assistance from others to
complete them. The ministry noted that, in relation to DLA assessed as requiring periodic assistance
in the AR, there was no information provided about the type and frequency of assistance required.
The panel notes the necessity of information specifying the type and frequency and/or nature and
extent of any assistance needed to determine whether DLA are significantly restricted periodically for
extended periods. The ministry went on to consider the GP’s letter provided at reconsideration and
noted that there were some changes in the GP’s assessment of some DLA. The ministry found that,
in light of the physical functioning assessments in the MR, it was unclear why basic housework and
daily shopping would require continuous assistance. The ministry determined that periodic assistance
was more reflective of the appellant’s ability to manage in those areas. However, the ministry went on
to note that information about the nature and frequency of assistance was not provided. As well, the
ministry found that there was no information provided to explain the difference in assessment of DLA
between the AR and the GP’s letter. The ministry explained that it was uncertain which of the
assessments more accurately reflected the appellant’s abilities and stated that it was unclear if the
assessments in the letter were a medical re-assessment or a self-report. The ministry determined that
it would rely more heavily on the information in the PWD application.
The panel finds that the GP has indicated in the PWD application that the appellant requires periodic
assistance with some DLA. However, the panel notes that the GP has not provided sufficient
information in relation to the degree and duration of this assistance to establish that there are
significant restrictions for extended periods in the appellant’s ability to perform these DLA. The panel
notes that the GP’s letter provided at reconsideration does not include any information or evidence to
explain the differences in DLA assessment between the letter and the PWD application. The panel
finds the ministry’s conclusion that it is difficult to determine which more accurately reflects the
appellant’s abilities to be reasonable. The panel finds that the ministry was reasonable in concluding
that there is not enough evidence to establish that DLA were restricted continuously or periodically for
extended periods. As such, the panel concludes that the ministry’s determination that this criterion
was not met is reasonable
Help 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. 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, significant help or supervision of
another person, or the services of an assistance animal in order to perform a DLA.
In the reconsideration decision, the ministry found that, as it has not been established that DLA are
significantly restricted, it cannot be determined that significant help is required. While the AR
indicates that the appellant benefits from help from friends, the ministry reasonably determined that
direct and significant restrictions in the appellant’s ability to perform DLA have not been established.
As such, 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 a reasonable application of the legislation in the appellant’s
circumstances and was reasonably supported by the evidence. The panel therefore confirms the
ministry’s decision. The appellant is not successful on appeal.
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