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 26 April 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 section 2 of 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 his ability to perform daily living activities (DLA) either
continuously or periodically for extended periods; and,
(ii) as a result of those restrictions, he requires help to perform those activities.
The ministry determined that the appellant satisfied the other 2 criteria: he has reached 18 years of
age and his 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) – sections 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 28 December 2016. The Application
contained:
A Self Report (SR).
A Medical Report Report (MR) dated 28 December 2016, completed by a general
practitioner (GP). The appellant has been the GP’s patient for one month, and the GP has
seen him once in that period, but writes that he has known the appellant for 40 years.
An Assessor Report (AR) dated 28 December 2016, completed by the same GP.
2.
The appellant’s Request for Reconsideration dated 30 March 2017, to which is attached a
letter from the GP dated 10 April 2017.
In the MR, the GP diagnoses the appellant with chronic obstructive lung disease (onset 2010),
anxiety problems (onset 1976), requires glasses (onset 1992), degenerative arthritis (onset 2008),
and deafness onset 2003).
The panel will first summarize the evidence from the MR and the AR as it relates to the PWD
criteria at issue in this appeal.
Severity/health history
Physical impairment
MR:
Under Health History, the GP writes:
“COPD – requires a rest after one block walk or one flight of stairs, worse with cold air or
wind. [Secondary] to smoking & 2ndhand smoke plus pollution from steel plant next to his
home growing up.
Arthritis secondary to old injuries – especially shoulders.
Deafness – high tone hearing loss up to 55dB.”
Under additional comments, the GP writes, “Many activities he cannot do as it takes him an
excessive amount of time to complete.”
Regarding functional skills, the GP reports that the appellant can walk less than 1 block unaided,
can climb 5+ steps unaided, is limited to lifting 15 to 35 lbs. and there are no limitations to
remaining seated.
The GP indicates that the appellant has not been prescribed any medication and/or treatments
that interfere with his ability to perform DLA. He also indicates that the appellant does not require
any prostheses or aids for his impairment, noting that the appellant may need supplemental
oxygen – awaiting results of testing.
AR:
Asked to describe the appellant’s impairment that impacts his ability to manage DLA, the GP
writes, “Extremely short of breath with minimal activity.”
As to mobility and physical ability, the GP assesses the appellant as taking significantly longer
than typical for walking indoors, walking outdoors, and climbing stairs (“stops after one block or
flight of stairs to catch his breath”), independent for standing, and taking significantly longer than
typical for lifting and carrying and holding (“restricts amount as SOB”).
The GP comments, “even bending over to remove his boots causes him to be short of breath.”
Mental impairment
MR:
Under Health History, the GP writes:
“Anxiety – couple events per month which may last more than one day. Especially related to
interactions with [the ministry].”
The GP indicates that the appellant has no difficulties with communication.
The GP does not indicate whether the appellant has significant deficits with cognitive and
emotional function. He does indicate that the appellant has significant deficits in the areas of
emotional disturbance and motivation, commenting, “Anxiety issues couple times per month.
Motivation reduced because he knows he will run out of air.”
AR:
The GP assesses the appellant's ability to communicate as good for all listed aspects: speaking,
reading, writing, and hearing.
Regarding cognitive and emotional functioning, the GP indicates that the appellant's mental
impairment has the following impacts in the specified areas:
Major impact: none.
Moderate impact: emotion (excessive or inappropriate anxiety), and motivation.
Minimal impact: bodily functions (sleep disturbance) and memory.
No impact: consciousness, impulse control, insight and judgment,
attention/concentration, executive, motor activity, language, psychotic symptoms, other
neuropsychological problems, and other emotional or mental problems.
The GP comments, “Couple bouts of anxiety per month. Self medicates with THC. Motivation
reduction due to short of breath.”
Ability to perform DLA
AR:
The GP assesses the assistance required for managing DLA as follows (the GP’s comments in
parenthesis):
Personal care – takes significantly longer than typical for all listed tasks: dressing,
grooming, bathing, toileting, feeding self, regulating diet, transfers in/out of bed, and
transfers on/off chair (Has to pace activities to minimize the shortness of breath.)
Basic housekeeping – takes significantly longer than typical for laundry and basic
housekeeping (As above).
Shopping – independent for going to and from stores (usually drives), reading prices and
labels, making appropriate choices, and paying for purchases; takes significantly longer
than typical for carrying purchases home (restricts amount carried).
Meals – independent for meal planning; independent for food preparation, and cooking
(does pace the rate at which he works); independent for safe storage of food.
Pay rent and bills – independent for all tasks.
Medications – independent for all tasks.
Transportation – independent for getting in and out of a vehicle and using transit schedules
and arranging transportation. Using public transit -- not available.
The GP comments: “Recently got firewood in for home heating. Took over 4 hours for something
he previously did in 45 minutes.” And:
“No safety issues with respect to meals, meds or finances. All activities are restricted by his
breathing.”
With respect to social functioning, the GP assesses the appellant as independent for making
appropriate social decisions, developing and maintaining relationships, interacting appropriately
with others, and securing assistance from others. The GP assesses the appellant is requiring
periodic support/supervision for dealing appropriately with unexpected demands (“Develops
anxiety with unexpected demands. Even worse if it involves physical activity”).
The GP assesses the impact of the appellant's mental impairment on his 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 his
impairment.
AR:
The GP indicates that help is provided to the appellant by family and friends. The GP comments: “
He is dependent upon others for transportation to get food, meds, firewood, etc.”
Regarding assistive devices, the GP does not indicate that the appellant routinely any of the listed
devices to compensate for his impairment. The GP notes. “May require supplemental oxygen in
the future.”
Self report
In the SR, the appellant writes:
“I have trouble with my breathing. I cannot walk a block without having to stop to catch
my breath. It gets worse if there is a wind blowing in my face or the air is cold. During a
flight of stairs I have to stop to catch my breath.
To take my boots off I need to sit down because I get short of breath. I take a friend with
me when I am out looking for firewood.”
Request for Reconsideration
In his letter, the GP writes:
“… While he can climb 5 stairs, lifting 35 pounds and sit for an indeterminate length of
time this does not define a lack of a disability. Recently I observed him shoveling some
light snow off the deck. What would've taken an average person 10 minutes took this man
well over an hour.
With respect to getting his groceries he has to wait till someone can give him a ride to
town. He will rarely get more than one bag because he can't carry two. If he can't get help
things are usually not done.
He will periodically get an emotional outburst or breakdown due to the frustration of not
being able to do the activities he could formally [sic] do.
In addition his pulmonary function will continue to deteriorate as this is a progressive
disease. He will eventually reach the point where he requires supplemental oxygen.”
Notice of Appeal
The appellant’s Notice of Appeal is dated 05 May 2017. Under Reasons, the appellant writes:
“The ministry did not originally receive a complete medical assessment of my full
condition(s). This will be provided during the appeal hearing.”
The Hearing
At the hearing, the appellant explained how his breathing makes it impossible to do a good day's
work. After doing anything for 15 minutes, he has to take 15 minutes off to regain his breath. He
stated that he had recently seen a physician at a walk-in clinic who told him that he was close to
needing supplemental oxygen. The physician also told him that his breathing difficulties are such
that he should no longer have a driver's license (though he has not driven for a couple of years
because he can't afford it).
The appellant stated that even bending over to tie up his boots takes a long time, as doing one
leaves him short of breath so he has to wait a few minutes before doing the other. Similarly, with
bending over to lift anything, this also makes him breathless. He has to sit when preparing meals.
Fortunately, his home is on one level, so that he doesn't have to climb any stairs. If he does have
to climb stairs, three or four steps are about all that he can manage, and then he is finished.
The appellant stated that he is now using three different puffers, but he feels what he really needs
is supplemental oxygen. Apart from getting rides from friends to town (a distance of 25 km.) for
shopping and appointments, the supplemental oxygen would be all the help he needs. He
explained that he does not have a family physician and it would be very difficult to find a doctor in
town who would spend the time necessary to prescribe supplemental oxygen. The GP who
completed the PWD application for him is in another city 600 km away and arranging to see him
for this purpose would be difficult.
The ministry stood by its position at reconsideration. The ministry representative stated that,
according to information she had been given, supplemental oxygen would be considered a
breathing aid and, as such, an assistive device.
Admissibility of additional information
The panel finds that the information provided by the appellant in his testimony at the hearing is in
support of the information before the ministry at reconsideration, as it tends to corroborate the
appellant’s medical condition and limitations as assessed in the appellant’s PWD Designation
Application. The panel therefore admits this information as evidence pursuant to section 22(4) of
the Employment and Assistance Act.
PART F – Reasons for Panel Decision
The issue in this appeal is whether the ministry decision that determined that the appellant did not
meet three of the five statutory requirements of Section 2 of the EAPWDA for designation as a person
with disabilities (PWD) is reasonably supported by the evidence or is a reasonable application of the
legislation in the circumstances of the appellant. The ministry found that the appellant met the age
requirement and that, in the opinion of a medical practitioner, his 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 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 sections 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 legislation is clear that the determination of severity of impairment is at the discretion of the
minister, taking into account all of the evidence. The legislation requires that for PWD designation,
the minister must be “satisfied” that the person has a severe mental or physical impairment.
For the minister to be “satisfied” that the person’s impairment is severe, the panel considers it
reasonable for the ministry to expect that the information provided by the independent and
professional medical practitioner and prescribed professional (in this case the GP) permits the
ministry to form a comprehensive overview of the nature and extent of the impacts of the person's
medical conditions on daily functioning. It is therefore reasonable for the ministry to expect that the
MR and the AR include explanations, descriptions or examples in the spaces provided.
Physical impairment
In the reconsideration decision, the ministry determined that the appellant does not have a severe
physical impairment. In reaching this conclusion, the ministry noted that the diagnosis of a serious
medical condition does not in itself determine PWD eligibility or establish a severe impairment. To
assess the severity of the physical impairment the ministry must consider the nature of the
impairment and the extent of its impact on daily functioning, as evidenced by limitations/restrictions in
mobility, physical ability, and functional skills. Considering the focus of the legislation on restrictions
and help required, the panel considers this a reasonable approach for the ministry to take when
analyzing the information provided regarding severity of physical impairment.
Consistent with this approach, the ministry considered the assessments and narratives in the MR, the
AR and the GP’s letter as these related to physical impairment. In reviewing these
assessments/narratives, as summarized by the panel in Part E above and as listed below, the
ministry noted the following:
PR:
Health history: The GP does not describe the duration of rest required after the appellant walks one
block or climbs one flight of stairs. Although the GP states that the appellant has the medical
condition of deafness, he does not describe impacts/restrictions caused by the hearing impairment.
Functional skills [able to walk less than 1 block unaided, etc.]: The GP's assessments of the
appellant's abilities with climbing steps unaided, lifting, and remaining seated are not indicative of a
severe impairment of physical functioning.
AR:
Mobility and physical ability [walking indoors, outdoors, climbing stairs, lifting, carrying and holding]:
The GP does not describe how much longer than typical the appellant takes with the assessed areas
of mobility and physical ability. Furthermore, the GP does not describe the duration of rest required
after walking 1 block or climbing 1 flight of stairs. Although the GP indicates restrictions with lifting
and carrying/holding, stating “restricts amount as SOB,” under functional skills the GP indicates that
the appellant can lift 15 to 35 lbs. it is noted that the ability to lift 15 to 35 lbs. is not considered
indicative of an impairment of physical functioning.
GP’s letter: It is difficult to establish the combined weight of “light snow” and a snow shovel.
Furthermore, it is difficult to establish the amount of physical exertion required to shovel snow from a
deck, which may or may not involve dumping snow over a railing of an undetermined height.
Therefore it is difficult to establish an impairment of physical functioning based on the GP statement
regarding shoveling some light snow off a deck.
The ministry concluded by stating that, based on the assessments provided by the GP in the
appellant's PWD application/reconsideration and his self-report, the ministry acknowledges that
although the appellant is limited with regard to his ability to walk long distances unaided, a severe
impairment of his physical functioning has not been established.
The panel finds reasonable the ministry’s analysis that it is difficult to assess the degree to which the
appellant's physical functioning is restricted by his COPD, given the lack of detailed information
provided by the GP regarding the length of time the appellant can exert himself for any given day-to-
day task and how much time he requires to rest before resuming any exertion.
The panel also notes that the information provided, including that with regard to his ability to perform
DLA, suggests that the appellant’s impairment is not so severe that he is restricted in his physical
functioning to the point that help is required, either from another person or using an assistive device.
(The one exception is his reliance on friends to drive him the 25 km. to and from town; at the hearing
he stated that a physician had recently advised him that due to his breathing difficulties he should not
be driving, but that in any event he has not driven for a couple of years, because he cannot afford to
drive.)
At the hearing, the appellant asked that consideration be given to the difficulties he faces, with the
shortage of physicians locally and the logistics of seeing the GP some 600 km distant, that constrain
him from obtaining approval for, and being able to use, supplemental oxygen. However, given that
the GP stated in his letter at reconsideration only that “[The appellant] will eventually reach the point
where he requires supplemental oxygen,” the ministry did not have before it a definitive statement
from a prescribed professional that the appellant requires the use of an assistive device in the form of
a supplemental oxygen apparatus.
Based on the foregoing, the panel finds that the ministry was reasonable in determining that the
information provided did not establish that the appellant has a severe physical impairment.
Mental impairment
In its decision, the ministry determined that the appellant does not have a severe mental impairment.
In reaching this decision, the ministry reviewed the information provided by the GP in the MR and AR
regarding mental impairment and social functioning, (see Part E above) noting the following:
The GP’s statement under health history: “Anxiety – couple events per month which may last
more than one day. Especially related to interactions [with the ministry].” This does not
describe the nature of impacts to cognitive and emotional functioning caused by anxiety.
Although the GP indicates in the MR deficits with cognitive and emotional functioning in the
areas of emotional disturbances and motivation, in the AR the GP indicates moderate impacts
to cognitive and emotional functioning in these areas.
In the AR, under impacts of mental impairment, the GP indicates no major impacts to cognitive
and emotional functioning, moderate impacts in two areas, and minimal impacts in two areas,
with no impacts in 10 areas. The cumulative impact of cognitive and emotional functioning, as
indicated by the GP, is not considered indicative of a severe impairment of mental functioning.
Regarding support/supervision required for social functioning, the GP does not describe the
frequency or duration of periodic support/supervision required with being able to deal
appropriately with unexpected demands. The GP indicates that the appellant is independent
with the other listed areas of social functioning. Further, the GP indicates good functioning with
both the appellant's immediate and extended social networks and makes no indication of
safety issues with regard to social functioning. While the GP states “periodic problems [with]
cost of shelter [and] keeping food on the table,” this is not indicative of restrictions with social
functioning.
The ministry also noted the GPs statement in his letter and reconsideration that “He will
periodically get an emotional outburst or breakdown due to the frustration of not being able to
do the activities he could formally [sic] do.”
As noted by the ministry, given that the appellant's reported bouts of anxiety are limited to a couple of
times a month, that the GP has not reported any major impacts of the appellant's mental impairment
on cognitive and emotional functioning, that the appellant is assessed as independent in all but one
area of social functioning and that he is reported to have good functioning with his immediate and
extended social networks, the panel finds that the ministry was reasonable in determining that the
information provided did not establish a severe mental impairment.
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, in this case 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 making this determination, the ministry
noted the GP had indicated in the MR that the appellant has not been prescribed any medications or
treatments that interfere with his ability to perform DLA. The ministry also referred to the GP’s
statement under Health history that “Many activities he cannot do or it takes him an excessive
amount of time to complete,” noting that the GP did not describe the type of activities he cannot do or
how much longer than typical he takes to complete them.
In reviewing the assessments provided by the GP in the AR (see Part E above for the panel’s
summary), the ministry noted that the GP does not describe how much longer than typical the
appellant takes with those tasks of DLA assessed as taking significantly longer than typical. The
ministry also noted that although the GP indicated restrictions with carrying purchases home, stating
“restricts amount carried,” the GP had assessed the appellant as being able to lift 15 to 35 lbs. The
ministry also noted that it is difficult to establish restrictions to DLA based on taking longer to
complete tasks of heavy physical labour, such as manually transporting firewood. The ministry
concluded that it is difficult to establish significant restrictions to DLA based on the GPs assessments
in the AR.
The ministry also reviewed the information provided in the GPs letter at reconsideration, noting again
that the GP had assessed the appellant as being able to lift 15 to 35 lbs. with regard to the GP’s
statement that “He will rarely get more than one bag [of groceries] because he can't carry two.”
The panel notes that the GP has not assessed the appellant with requiring the assistance of another
person or the use of assistive device for any of the DLA requiring physical effort. Further, as the
ministry pointed out, the GP has not provided detail to explain what “takes significantly longer than
typical” means in terms of how much more time it takes for the appellant to complete a task, including
rest periods. The panel therefore considers it reasonable that the ministry finds it difficult to establish
whether the appellant's impairment significantly restricts his ability to perform DLA either continuously
or periodically for extended periods. The panel therefore 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 friends in driving him to and from town, 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.
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.