PART C – Decision under Appeal
The decision under appeal is the Ministry of Social Development and Social Innovation (the ministry)
reconsideration decision dated June 9, 2017 which found that the appellant did not meet three of the
five statutory requirements of Section 2 of the Employment and Assistance for Persons with
Disabilities Act for designation as a person with disabilities (PWD). The ministry found that the
appellant met the age requirement and that his impairment is likely to continue for at least 2 years.
However, the ministry was not satisfied the evidence establishes that:
the appellant has a severe physical or mental impairment;
the appellant's daily living activities (DLA) are, in the opinion of a prescribed professional,
directly and significantly restricted, either continuously or periodically for extended periods;
and,
as a result of these restrictions, the appellant requires the significant help or supervision of
another person, the use of an assistive device, or the services of an assistance animal to
perform DLA
PART D – Relevant Legislation
Employment and Assistance Act (EAA), Section 34
Employment and Assistance for Persons with Disabilities Act (EAPWDA), Section 2(2); Section 35
Employment and Assistance for Persons with Disabilities Regulation (EAPWDR), Section 2
PART E – Summary of Facts
Documents and Information Before the Minister at Reconsideration
The evidence before the ministry at the time of the reconsideration decision included
A. The Persons with Disabilities (PWD) application dated January 31, 2017
In the Applicant Information Section, the appellant
said his disability effects [sic] his life and ability to take care of himself, makes day-to-day living
complicated, and he requires help with many simple tasks he said he can do some tasks only
in certain areas and under certain conditions and can sometimes do them only if he does
nothing else
says he has most problems with making and cleaning up after meals so family members give
him assistance to complete these tasks. When he does them it makes the whole world spin
and he has to lie down to recover, taking several hours to days to recover from preparing
meals and cleaning up. The more he does these tasks the worse and more intense his
symptoms become, such that he will often not eat if someone does not prepare meals for him.
He has more difficulty doing dishes in the dishwasher than in the sink as bending and reaching
causes more problems
has problems with day-to-day shopping, because standing in line if there are more than three
people makes him unstable and want to fall over; thus he shops as quickly as possible. He
plans his grocery buying trips even before he enters the store so as to spend as little time as
possible in the store. He says being around many small objects is worse than being around
fewer large items on the shelf and worsens his condition so he avoids staying in such areas for
long.
says he has problems carrying purchases due to a pinched Molnar nerve in his elbows so he
often switches hands and carrying and moves quickly so as to carry things for a shorter period
of time, and pushing a shopping cart causes problems with his arms so he uses a basket but
in doing so he cannot use trekking poles, causing him to shop more quickly or have assistance
from someone else, which is what he often chooses to do
says walking and travel causes him problems and with the more movement that occurs around
him, the worse his symptoms become. He has problems walking in areas where the ocean can
be
seen because he
becomes
unstable
looking
at moving
water as
that
can trigger his
symptoms. He avoids stopping and speaking to people is much as possible and often has to
sit down or he will fall over. He uses trekking poles to aid in balance and they have prevented
him falling. It was recommended he use a cane but the pinched ulnar nerve makes the weight
of a cane too much and trekking poles are much lighter. It is very difficult for him to take ferries
as it takes him weeks to recover from a simple trip to physician off the island where he lives.
He has difficulties with things moving around him and being unable to lie down and recover so
he avoids the ferry as much is possible. If someone gives him a ride off-island the average
recovery time is 1 ½ weeks and if he travels by himself it is 2 or more weeks. He spends much
of his recovery lying down and resting.
says his chronic pain and injury symptoms are managed by frequent trips to the physiotherapy,
the chiropractor, and working with an athletic therapist, without which he is unable to do
anything at all
he has attempted to sign up for Medical Assistance in Dying (MAID), but as his condition is not
terminal he does not qualify; he would like to commit suicide but someone would have to find
his body, causing trauma to that person so it is not an option. If he had a choice he would pick
MAID over designation as a person with disabilities
his disability has prevented him from working in any capacity, left him financially destroyed as
he spends more money than he has on the treatments; he gets 48 physiotherapy treatments
every 3 weeks, athletic therapist treatments 57 times and chiropractic treatments 25 times
every three weeks and massage therapy once a month
B. The Persons with Disabilities Designation Denial Decision Summary dated April 12, 2017
The adjudicator reports that the appellant
is 18 years of age or more and that his impairment is likely to continue for 2 or more years,
has
been
diagnosed
with
post-concussion
myofascial pain syndrome
the
Summary
reviews
the
medical
consultations
assistance with mobility or physical ability from the medical viewpoint, whether or not the
appellant’s impairment directly and significantly restrict his daily living activities and concludes
that they do not, and that the appellant does not require help with DLA.
C.
A
Medical Report
(MR)
Completed
by
February 21, 2017, in which the GP reported he had seen the appellant for 3 visits in total over the 3
months the appellant has been his patient, and, despite the instruction in Section E Daily Living
Activities (DLA), that if the physician is completing the assessor report, he is not to complete this
Section E, he did complete it, and reported with respect to the Appellant’s DLA that
the
appellant
experiences
periodic
restrictions
Preparation, and Use of Transportation. The physician comments that the periodic restriction is
that the appellant is more affected when his surroundings are moving and in low light, but does
not
describe
the
periodicity
or
frequency.
cleaning and meal preparation, assistance is provided to by his parents.
the appellant experiences continuous restrictions in the 3 of the 9 physical DLA of Basic
Housework, Daily Shopping and Mobility Outside. The physician does not comment further
about the nature of the continuous restriction except to say that the degree of restriction is
significant in certain situations such as being in crowds, around the ocean, and in low light
the
appellant
is
not
restricted
in
the
4
Management of Medications, Mobility Inside the Home and Management of Finances, and that
in the 1 DLA having to do with Social Functioning, the appellant is continuously restricted, but
then says that the restrictions are only in certain situations such as in crowds.
The physician reported that the appellant could
walk
4
or
more
blocks
unaided,
but
this
surrounds the appellant
climb 5 or more steps unaided,
lift between 7 and 16 kilograms, and
remain seated for 1 to 2 hours,
communicate with no difficulties
live with no significant deficits with cognitive and emotional function
In answer to the query “Does the impairment directly restrict the person’s ability to perform Daily
Living Activities?” The physician answered “Yes”, but made no comment as to the severity of the
restrictions. The physician says to refer to the specialist consultations as they outline the appellant’s
history and medical well.
D. Otolaryngologist’s Report dated September 3, 2014
Following the first of two car crashes the appellant was investigated for vertigo, which began a week
after the crash, with each episode lasting seconds to minutes. The specialist noted that the appellant
had trigger points in various muscles, but no nystagmus. Various tests failed to evoke any problems
and
the
specialist
suspected
that
it
was
either
cervicogenic
vertigo
and
recommended
vestibular
vestibulopathy
and
chronic
musculoskeletal
/
whether
or
not
the
appellant
requires
the
Appellant’s
General
Practitioner
dated
in
the
2
of
the
9
physical
DLA
of
Meal
The
physician
says
that
for
doing
the
dishes,
of
the
9
physical
DLA
of
Personal
Self-care,
ability
deteriorates
when
movement
and
light
post-traumatic/concussive
vestibulopathy
or
rehabilitation
and
a
neurological
referral
for
parasthesia/neurological deficits and post-traumatic/concussive dizziness. The specialist said it was
difficult to ascertain the etiology of the dizziness.
E. Neurologist’s Report Dated March 16, 2015
The
neurologist
reported
that
when first
evaluated
the appellant
had
left
ulnar neuropathy
and
musculoskeletal/myofascial
symptoms,
which
the
appellant
told
the
neurologist
had
started
to
improve after the first motor vehicle crash up until the second one. The neurologist reported that the
appellant had a positive Tinel’s Sign bilaterally at the elbows and negative bilaterally at the wrists.
There were no objective sensory deficits, no scapular winging and the appellant’s rhomboids were
full-strength. The neurologist reviewed an earlier cervical spine CT scan and noted that it was
unremarkable
without
any
significant
degenerative
changes
or
neuroforaminal
stenosis.
The
neurologist said that given the normal examination and unremarkable CT cervical spine scan further
neuroimaging would not be of value and encouraged the appellant to enrolment a regular low-weight-
bearing exercise program.
F. Physiatrist’s Report Dated June 12, 2015
This is scientist reported the appellant’s symptoms and treatments as the appellant related them to
him, and stated that on examining the appellant, he found well-maintained cervical thoracic and
lumbar curves with well-maintained ranges of motion; the appellant’s gate was normal, had no
tenderness
over
the
spinous
processes
in
the
cervical
thoracic
and
lumbar
regions
with
no
tenderness or tightness in the muscles of the upper back and shoulder. The physiatrist did not find
musculoskeletal concerns needing treatment and told the appellant that further imaging of the neck
would
not
be
useful.
He
urged
the
appellant
to
continue
with
day-to-day
activities,
relaxation
techniques, breathing exercises, yoga and other enjoyable leisure activities.
G. Otolaryngologist’s Report Dated November 19, 2015
The otolaryngologist reported the appellant to be improving quite well with vestibular therapy, that
spinning vertigo is no longer present but there is still intermittent imbalance. The otolaryngologist told
the appellant that he likely has a vestibular dysfunction.
H. Neurologist’s Report Dated July 29, 2016
The neurologist reported that the appellant, following the two motor vehicle accidents, has:
no overt pain manifestations, a full range of motion of the spine, with tenderness over the
upper trapezius bilaterally and over the cervical neuroforaman, normal cranial nerves, normal
fundoscopic examination, normal cerebellar function and gate, no pronator drift, response of
tingling in the left fifth finger on pinprick, and normal reactions to other tests
very mild left ulnar nerve dysfunction leaving the appellant with no disability and not requiring
further investigation or treatment
chronic
musculoskeletal
pain
involving
the
base
of
the
skull,
upper
thoracic
area
and
lumbosacral area, with a poor prognosis for recovery, but which does not require further
investigation, and an MRI which showed minimal changes and no significant pathology to
explain the symptoms
post-traumatic headaches that do not fit the criteria for migraine, and for which no investigation
is warranted
an opinion that the appellant is fixated on his cervical spine, with little in the way of pathology
to explain all of the appellant’s symptoms,
that there is no evidence of spinal pathology to explain symptoms the appellant complains of
below his neck when he cannot move, and that these complaints are of unclear etiology, but
the neurologist doubts the appellant’s symptoms are due to cataplexy, epilepsy isohemin.
There is no evidence of any spinal pathology to explain the symptoms and the neurologist has
no further investigations to offer, advising the appellant should simply avoid activities that
trigger the symptoms
the
neurologist
recommends
reassurance,
states
there
is
no
indication
for
further
investigations of the musculoskeletal or nervous system due to the already comprehensive
investigation, that there is no indication for any specific pharmacologic therapy, and that the
appellant is not eligible for Health Authority Pain Clinics since the appellant has ongoing
litigation and pending ICBC claim.
I. An Assessor’s Report (AR) dated February 21, 2017 and completed by the same the
physician who completed the MR.
In Section A of the AR “Living Environment”
Section A(1) - The physician reported that the appellant lives with his parents
In Section B of the AR “Mental or Physical Impairment” the physician reported as follows:
Section B(1) - Mental or Physical Impairment Impacting DLA - the physician reported that his
mental
or
physical
impairments
that
impact
his
ability
to
manage
DLA
are
troubles
with
balance, holding things, general movement, dizziness, a proneness to falling and headaches
Section B (2) - Ability to Communicate - the appellant’s ability is “Good” in all 4 listed tasks
Section B(3) - Mobility and Physical Ability - the appellant is independent in it 1 of the 6 listed
tasks (walking indoors) that he uses an assistive device in the 2 of those tasks (walking
outdoors, climbing stairs) and that the assistive devices are trekking poles and hand railings,
and that in the remaining 3 tasks (standing, lifting, carrying and holding), the appellant takes
significantly longer than typical, commenting that the appellant has trouble with standing still,
lifting and holding,
Section B (4) - Cognitive and Emotional Functioning - the physician crossed this section out,
not making any report on difficulties with Cognitive and Emotional Functioning.
In Section C of the AR “Daily Living Activities” the physician assessor reports that with the DLA of
Personal Care, where there are 8 listed tasks, the appellant is independent in 6, and takes
significantly longer than typical in 2, having his meals prepared for “feeding self” and periodic
assistance for “that transfers in/out his bed”
Basic Housekeeping, where there are 2 listed tasks, the appellant requires periodic assistance
with both, provided by his parents, but does not describe the periodicity
Shopping, where there are 5 listed tasks, the appellant is independent in 3, requires periodic
assistance in 1, such assistance being described as his parents shopping for him but the
assessor does not describe the periodicity. The appellant takes significantly longer in 1 of the
tasks; the assessor explains the degree and duration of support required as “takes longer”
without describing how much longer or how often
Meals, where there are 4 listed tasks, the appellant is independent in 2, requires periodic
assistance in the 1 described as the appellant being unable to prepare his own meals at times
and needs assistance from his parents, and requires continuous assistance in the remaining 1
task, with an explanation that his mother prepares his meals as he is unable
Pay Rent and Bills, where there are 3 listed tasks, the appellant is independent in all 3
Medications, where there are 3 listed tasks, the appellant is independent in all 3
Transportation, where there are 3 listed tasks, the appellant is independent in 1, and takes
significantly longer in the 2, explained as sometimes taking longer getting in and out of a
vehicle and avoiding the use of public transit
Social Functioning, which is only to be completed if the appellant has an identified mental
impairment, at the physician, although stating in the MR that the appellant has no significant
deficits with cognitive and emotional function goes on to complete this section where there are
where there are 6 listed tasks, stating that the appellant is independent in 4, that he requires
periodic support/supervision in 1, with the explanation that the appellant avoids gatherings of
people due to vertigo, and does not score the 6
th
. The physician assessor says that the
appellant is independent with the task of “able to secure assistance from others” and explains
that the degree and duration of assistance is “when available”. The physician says that the
appellant’s mental impairment causes him to function marginally with his immediate social
network but allows him “good functioning” with his extended social network.
Dealing with the use of Assistive Devices, the physician says the appellant uses trekking poles
to compensate for his impairment, using them for balance, that no more equipment or devices
are needed, and that the appellant does not have the use of an assistance animal.
By way of additional information, the assessor says that the appellant is significantly affected
when his symptoms are bad and specifies this to be his vertigo balance problems and chronic
pain; the assessor says this affects him daily, with his living and activity and he is unable to
function independently and requires periodic assistance.
J. An Article from the Vestibular Disorders Association undated but received February 21,
2017.
K. A Letter from the Appellant’s Mother “To whom it may concern” undated but received
December 21, 2017, in which she advises that the appellant has difficulty with everyday things,
including cooking because of standing and reaching, although the appellant does cook some meals,
has difficulty unloading the dishwasher because having to stretch and then reach and has trouble
doing his laundry and vacuuming the floor because of pain. She says holding and carrying things for
more than a couple of minutes is difficult.
L. A Letter from the Appellant’s Family Physician Dated May 24, 2017
The family physician refers to the Disabilities Designation Denial Decision Summary and corrects
what the physician sees as misimpressions with that Summary. The panel points out that although
the Summary was before the reconsideration officer, it is not the Summary that is being appealed,
but rather the Reconsideration Decision.
Information Provided on Appeal
Appellant’s Additional Evidence
Written Evidence
The appellant submitted 3 documents as additional evidence; a 5 page printout from the ministry
entitled “Persons with Persistent Multiple Barriers” (PPMB), a 5 page Medical Services Plan (MSP) a
printout covering several years and a 5 page compilation of receipts for various services.
The appellant argued that the PPMB printout should be admissible because it advised individuals that
under certain circumstances they may also require assistance with Daily Living Activities and should
be informed of the option to apply for designation as a Persons With Disabilities. The appellant
agreed that this document and the various options were not before the Minister at reconsideration.
The appellant argued that the MSP printout should be admissible because it showed the cost of the
various treatments and examinations that the government has spent upon him in the period set out in
that MSP printout. The appellant agreed that this document and the discussion of expenses paid by
the government was not before the minister at reconsideration.
The appellant argued that the receipts, for things such as drugs, ferry travel, quasi-medical care and
psychological counselling should be admitted because they showed some of the expenses that the
appellant has paid personally and for what items or services. He said that he could ill-afford these
things. The appellant agreed that this document and the discussion of expense to him were not
before the minister at reconsideration.
Ministry Position on Additional Written Evidence
The ministry was not opposed to admission of the appellant’s additional written evidence.
Panel Finding on Additional Written Evidence
The panel finds that the Appellant’s additional written evidence, specifically the 3 written documents,
is
not
in
support
of
the
information
and
records
that
were
before
the
minister
when
the
reconsideration decision being appealed was made and therefore does not admit that additional
evidence pursuant to section 22(4) Employment and Assistance Act (EAA).
Ministry’s Additional Evidence
The ministry did not submit additional evidence.
PART F – Reasons for Panel Decision
Issue on Appeal
The issue on appeal is whether the Ministry of Social Development and Social Innovation’s (the
ministry) reconsideration decision dated June 9, 2017, to deny the Appellant designation as a PWD
was reasonably supported by the evidence or was a reasonable application of the applicable
enactment, namely section 2(2) EAPWDA and sections 2 EAPWDR), in the circumstances of the
appellant. The Ministry of Social Development and Social Innovation (the ministry) reconsideration
decision found that the appellant did not meet 3 of the 5 statutory requirements of Section 2 of the
Employment and Assistance for Persons with Disabilities Act for designation as a person with
disabilities (PWD). The ministry found that the appellant met the age requirement and that his
impairment is likely to continue for at least 2 years. However, the ministry was not satisfied the
evidence establishes that:
the appellant has a severe physical or mental impairment;
the appellant's daily living activities (DLA) are, in the opinion of a prescribed professional,
directly and significantly restricted, either continuously or periodically for extended periods;
and,
as a result of these restrictions, the appellant requires the significant help or supervision of
another person, the use of an assistive device, or the services of an assistance animal to
perform DLA
Relevant Legislation
Employment and Assistance Act
Delegation of minister's powers and duties
34 (1) Subject to the regulations, the minister may delegate to any person or category of persons any or all of the
minister's powers, duties or functions under this Act except
(a) the power to prescribe forms,
(b) the power to appoint members to the tribunal, and
(c) the power to enter into an agreement under section 30 (2) or (2.1), unless section 30 (2.2)
applies in relation to the agreement.
(2) A delegation of the powers, duties or functions of the minister must be in writing and may include any limits
or conditions the minister considers advisable.
Employment and Assistance for Persons with Disabilities Act (EAPWDA)
Delegation of minister's powers and duties
25 (1) Subject to the regulations, the minister may delegate to any person or category of persons any or all of the
minister's powers, duties or functions under this Act except
(a) the power to prescribe forms, and
(b) the power to enter into an agreement under section 21 (2) or (2.1), unless section 21 (2.2)
applies in relation to the agreement.
(2) A delegation of the powers, duties or functions of the minister must be in writing and may include any limits
or conditions the minister considers advisable.
Employment and Assistance for Persons with Disabilities Act (EAPWDA)
(2) The minister may designate a person who has reached 18 years of age as a person with disabilities for the purposes of this Act if
the minister is satisfied that the person is in a prescribed class of persons or that the person has a severe mental or physical impairment
that
(a) in the opinion of a medical practitioner or nurse practitioner is likely to continue for at least 2 years, and
(b) in the opinion of a prescribed professional
(i) directly and significantly restricts the person's ability to perform daily living activities either
(A) continuously, or
(B) periodically for extended periods, and
(ii) as a result of those restrictions, the person requires help to perform those activities.
(3) For the purposes of subsection (2),
(a) a person who has a severe mental impairment includes a person with a mental disorder, and
(b) a person requires help in relation to a daily living activity if, in order to perform it, the person requires
(i) an assistive device,
(ii) the significant help or supervision of another person, or
(iii) the services of an assistance animal.
Employment and Assistance for Persons with Disabilities Regulation (EAPWDR).
2 (1) For the purposes of the Act and this regulation, "daily living activities",
(a) in relation to a person who has a severe physical impairment or a severe mental impairment, means the
following activities:
(i) prepare own meals;
(ii) manage personal finances;
(iii) shop for personal needs;
(iv) use public or personal transportation facilities;
(v) perform housework to maintain the person's place of residence in acceptable sanitary condition;
(vi) move about indoors and outdoors;
(vii) perform personal hygiene and self care;
(viii) manage personal medication, and
(b) in relation to a person who has a severe mental impairment, includes the following activities:
(i) make decisions about personal activities, care or finances;
(ii) relate to, communicate or interact with others effectively.
(2) For the purposes of the Act, "prescribed professional" means a person who is
(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.
General Scheme of the Legislation
The general scheme of section 2 EAPWDA and section 2 EAPWDR is that in order to be designated
as a Person With Disabilities (PWD), an applicant must satisfy the Minister that he has a severe
mental or physical impairment which is likely to continue for at least 2 years, and that impairment, in
the opinion of one of the members of a prescribed class of professionals, directly and significantly
restricts his ability to perform Daily Living Activities either continuously or periodically for extended
periods, and as a result he requires help to perform them.
Parties’ Positions at Appeal
Jurisdiction – Delegation of Minister’s Powers, Duties or Functions
Appellant’s Position
The appellant argued that the reconsideration decision cannot stand because it was made by a
ministry employee, and neither an employee nor the ministry itself can make such decisions because
the legislation, the Employment and Assistance Act (EAA) and the Employment and Assistance for
Persons with Disabilities Act (EAPWDA), both require the Minister personally to make decisions. The
appellant argued that specifically under section 2 (2) of the EAPWDA it is only the Minister personally
who may designate a person as a Person with Disabilities. The appellant argued that this should also
apply to the original decision to deny him PWD designation.
Ministry Position
The ministry stated, in answer to a direct question, that the individuals making the decisions and in
particular the reconsideration officer who made the reconsideration decision under appeal, dated
June
9,
2017,
had
been
delegated
the
minister’s
powers,
duties
and
functions
to
make
such
decisions under both sections 34 EAA and 25 EAPWDA.
The ministry argued that the decisions made were thus properly made because the individuals
making the decisions had been delegated the Minister’s powers, duties and functions.
Panel Finding
The panel finds that an objection to a reconsideration decision based on a claimed lack of authority to
make
that
decision
may
be
considered
whether
or
not
it
was
specifically
addressed
in
the
reconsideration decision, because it does not involve a question of admissibility of evidence, but
rather because it is an objection to the foundation of the reconsideration decision itself.
The panel finds that the objection to the original decision, although it was part of the evidence before
the reconsideration officer, and hence was information and records before the minister when the
decision
being
appealed
was
made,
cannot
be
entertained
because
the
appeal
is
from
the
reconsideration decision, not the original decision.
The panel finds, based on the ministry’s assertion that the reconsideration officer was exercising
authority delegated under either section 34 EAA and/or section 25 EAPWDA, that the reconsideration
officer was properly exercising delegated powers, and had the authority to make the reconsideration
decision.
Analysis
Section 2(2) EAPDWA
Age and Duration and Severe Impairment Requirement
Section 2(2) EAPWDA requires that an applicant for PWD status must be 18 years of age of older,
have a severe mental or physical impairment, and that in the opinion of a prescribed professional, is
likely to continue for at least 2 years.
At reconsideration the ministry found that the Appellant met the age requirement, and that the
Appellant, in the opinion of a physician that while the appellant has limitations in physical functioning
that are likely to continue for at least 2 years, they are not severe, and that the appellant has no
severe mental impairment.
Thus the requirements of section 2(2) of the EAPWDA as to age and duration had been met.
Severe Physical Impairment
At reconsideration the ministry found that the appellant did not have a severe physical impairment.
The legislative requirement respecting DLA set out in section 2(2)(b) of the EAPWDA is that the
minister be satisfied that as a result of a severe physical or mental impairment a person is, in the
opinion of a prescribed professional, directly and significantly restricted in the ability to perform DLA
either continuously or periodically for extended periods. Consequently, while other evidence - such as
that of (a witness and of the) appellant - may be considered for clarification or support, but the
ministry’s determination as to whether or not it is satisfied is dependent upon the evidence from
prescribed professionals. DLA are defined in section 2(1) of the EAPWDR and are listed in both the
PR and the AR sections of the PWD application with the opportunity for the prescribed professional to
check marked boxes and provide additional narrative.
While there was evidence from the appellant and the neurologist in the report of July 29, 2016 to the
effect that while the appellant was working after his first motor vehicle accident, he did not continue
working and has not worked since, DLA, as defined in the legislation, do not include the ability to
work.
In this case, the prescribed professional who has provided information respecting the appellant’s
ability to perform DLA is the family physician for both the MR and the AR.
A diagnosis of a serious medical condition does not in itself determine PWD eligibility or establish a
“severe” impairment. An “impairment” is a medical condition that results in restrictions to a person’s
ability to function independently or effectively.
To assess the severity of an impairment, the ministry must consider both the nature of the impairment
and the extent of its impact on daily functioning as evidenced by functional skill limitations and the
degree to which the ability to perform DLA is restricted. In making its determination the ministry must
consider all the relevant evidence, including that of the appellant. However, the legislation is clear
that the fundamental basis for the analysis is the evidence from a prescribed professional – in this
case, the family physician.
Appellant’s Position
The appellant’s position was that he was severely physically impaired. He repeated that he avoids
public transport such as the skytrain, because he becomes dizzy and vertiginous, that he is unable to
prepare meals and that his mother prepares them for him, that when he returns home from the
appeal
hearing
it
will
take
him
a
week
to
a
week
and
a
half
to
recover.
He
argued
that
the
reconsideration decision cannot stand because it is for the doctor to decide severity of the physical
condition, not the ministry. He argued that there are further errors in the reconsideration decision
because it is not for the ministry to decide whether a DLA restriction is periodic or continuous, but
rather for the doctor to decide. He points out that in the original decision his GP is misquoted, and
that the doctor said that he would be very guarded about any long term “impairment” whereas the
original decision used the term “improvement”.
The appellant went on to point out various diagnoses or conditions referred to by his physicians and
argued that the supported a conclusion that he was severely physically impaired.
Ministry’s Position
The ministry relied on the reconsideration decision. In that decision it was stated that the appellant
did not require any aids or prosthesis. It was also stated that according to the family physician’s
opinion set out in the MR and the AR, the appellant was able to perform the functional skills set out ,
albeit taking longer to perform some. It was also stated that while the appellant has continuous or
periodic
restrictions
with
some
DLA.
Reading
the
MR
together
with
the
AR
indicates
that
the
assistance required is because the appellant takes significantly longer than typical to manage some
tasks, not that the appellant was unable to perform those DLA without assistance. The ministry
further stated that, quoting the family physician, the appellant’s inability to carry out many DLA is
subjectively significantly affected, and that the appellant experiences some limitations managing
physical functioning, but that no medical practitioner or nurse practitioner has given an opinion that
the appellant’s physical functioning is impaired to a severe degree. The reconsideration decision
pointed out that the appellant’s inability to prepare his own meals occurs, according to the family
physician, “at times” and at those times he was in need of parental assistance. The Reconsideration
officer pointed out that no additional information was provided to explain the degree, frequency or
duration during which the appellant required assistance, but rather in those at DLA where assistance
was needed, the difficulty was that it took the appellant “longer sometimes” but that the physician did
not indicate how much longer, or the periodicity when the assistance is required.
Panel Finding
The panel finds that the appellant’s functional skills, as set out in both the MR and the PR, are
indicative of an individual whose impairment, while it may directly restrict the appellant’s ability to
perform DLA and are more indicative of a moderate level of impairment causing the appellant to
perform
DLA
more
slowly,
than
they
are
of
a
severe
impairment
restricting
the
appellant from
performing one or other DLA entirely.
The panel finds that the ministry’s decision at reconsideration that the appellant does not have a
severe
physical
impairment
was
reasonably
supported
by
the
evidence
and
was
a
reasonable
application of the applicable enactment in the circumstances of the appellant.
Severe Mental Impairment
At reconsideration the ministry found that the appellant did not have a severe mental impairment.
Appellant’s Position
The appellant’s position was that he had anxiety and depression. He did not argue that he was
severely mentally impaired.
Ministry’s Position
The ministry relied on the reconsideration decision. The ministry argued that the GP reported that the
appellant not to have any significant deficits with cognitive and emotional functioning, strikes a line
through section B subsection 4 “Cognitive and Emotional Functioning”, that the appellant has no
difficulties with communication and that although the appellant says he tried to apply for Medical
Assistance in Dying, no information was provided by the GP as to the appellant’s mental status.
Therefore the ministry was not satisfied that the appellant has a severe mental impairment.
Panel Finding
The panel notes that in the MR the GP reported that the appellant’s diagnoses were post-concussion
vestibulopathy and chronic MSK (musculoskeletal) myofascial pain syndrome. The GP did not
diagnose any mental impairment and answered “No” to the query “Are there any significant deficits
with cognitive and emotional function?”. The GP crossed off the entire section B4 “Cognitive and
Emotional Functioning”. The GP also reported that the appellant had marginal functioning in his
immediate social network but good functioning with extended social networks.
The panel finds that the ministry’s decision at reconsideration that the appellant does not have a
severe
mental
impairment
was
reasonably
supported
by
the
evidence
and
was
a
reasonable
application of the applicable enactment in the circumstances of the appellant.
Section 2(2)(b)(i) & (ii) EAPWDA
Direct and Significant Restriction in the Ability to Perform Daily Living Activities
Section
2(2)(b)(i)
EAPWDA
requires
that
a
prescribed
professional
provide
an
opinion
that
the
Appellant’s mental or physical impairment directly and significantly restrict the person’s ability to
perform daily living activities either continuously or periodically for extended periods.
Section 2(2)(b)(ii) EAPWDA requires that a prescribed professional provide an opinion that as a result
of the direct and significant restrictions of the Appellant’s ability to perform Daily Living Activities, the
Appellant requires help to perform those activities.
Appellant’s Position
The appellant’s position was that he sometimes can and sometimes cannot carry purchases home
and cannot ride a bus because there is too much light and movement and it “overcomes the brain”.
He said that he can do the dishes, which consists of using the dishwasher, but it is difficult for him,
due to the bending required. He argued that his mother prepares his meals. He argued that when the
GP said that he was periodically restricted in meal preparation, the GP was incorrect and should have
marked “continuous”. He said that the GP had made a further mistake in marking that the restriction
on daily shopping is “continuous” when it should have been “periodic” and that the GP made a further
mistake in marking that he has a restriction with the use of transportation; he said that the restriction
on his use of transportation is “periodic” not continuous because he can take private transportation,
but not take public transportation.
Ministry’s Position
The ministry relied on the reconsideration decision.
The ministry argued that because the GP had indicated that the appellant could walk four or more
blocks unaided (but that disability deteriorated with light and movement in the appellant’s vicinity)
could climb five or more steps unaided, lift 7 to 16 kg and remain seated for one or two hours, and
only had to use his trekking poles went on uneven ground, and that the appellant took significantly
longer to perform the tasks of standing, lifting, carrying and holding, but provided no information as to
how much longer. The ministry was unable to determine if there was any significant restriction and
said simply because there are some limitations does not mean that these limitations are severely
restricting. The ministry also reviewed the neurologist’s, physiatrist’s and otolaryngologist’s reports
and took those into account when determining if the appellant was significantly restricted in any DLA.
The ministry argued that in assessing the appellant’s abilities, there is no medical evidence as to how
much longer it takes the appellant to perform various physical activities; just the doctor’s comment
“takes longer” and “takes longer sometimes”. How much longer and how often is meant by
“sometimes” is not explained by any physician, and therefore it cannot be determined that the
appellant requires help.
The ministry concluded that as no prescribed professional indicated any specific restrictions with DLA
due to any physical or mental impairment, except for it taking the appellant significantly longer to get
in and out of a vehicle or use public transit. No prescribed professional gave an opinion that it was
impossible or even that the appellant was significantly restricted in the use of transportation.
The ministry argued that the medical evidence was that the appellant was independently able to
manage all other DLA .
The ministry concluded that the appellant had not established any significant restriction in his ability
to perform DLA.
Panel Finding
The panel notes that the GP in fact marked the restriction on use of transportation as “periodic” in the
MR and that in the AR noted that it takes the appellant significantly longer getting in and out of a
vehicle and using public transit.
The panel notes that the determination of whether or not there is a direct and significant restriction of
the Appellant’s ability to perform Daily Living Activities is to be determined by the opinion of a medical
practitioner (or nurse practitioner) and that while the opinion of the appellant or of another person is of
assistance,
the
determination
is
that
of
a
medical
practitioner
or
nurse
practitioner.
While
the
appellant said that he could not take public transit the physician reported only that it took
the
appellant “longer sometimes” to get in and out of the vehicle and that he avoids public transit.
Avoidance is not indicative of impossibility or significant restriction.
The panel notes that the GP, in neither the MR nor the AR, indicated that there was any severe
restriction, that the various specialist reports found only minor changes in his spine, that his brain CT
scan was normal, that his ranges of movement were not restricted, that there were no objective
sensory deficits to confirm nerve damage, and that until he ceased his vestibular therapy he was
making good progress, and that no physician found that the appellant was severely restricted in the
performance of any DLA.
The panel finds that no prescribed professional determined that the appellant has a severe physical
or mental impairment which directly and significantly restricts the appellant’s ability to perform DLA
either continuously or periodically for extended periods was reasonably supported by the evidence
and was a reasonable application of the applicable enactment in the circumstances of the appellant.
Section 2(2)(b)(ii) EAPWDA
Requirement for Help to Perform DLA
Section 2 (2) (b) (ii) requires that if a person’s ability to perform DLA is restricted, continuously or
periodically for extended periods, then to qualify for PWD designation, the person must require help
to perform DLA as a result of those restrictions. The term “Help” is defined in subsection 3 as a
requirement for the use of an assistive device, the significant help or supervision of another person or
the services of an assistance animal.
Appellant’s Position
the appellant’s position was that he requires help of another person. The appellant said that he
needed help cooking meals and that his mother cooked all of his meals for him. The GP said in the
AR that he requires continuous assistance in preparing food and explained that his mother prepares
his meals as he is unable, and that he requires periodic assistance with cooking but did not explain
further. He said that he can’t get on a bus, and that although the AR indicates he needs periodic
assistance with the 2 tasks of the DLA “Basic Housekeeping”, and that his parents assist, he said he
can do these 2 tasks, but it is difficult because it causes him pain. Although the GP reports in the AR
that he requires periodic assistance with 1 task (going to and from stores) and that his parents will
shop for him, the appellant’s evidence was that he can go to and from stores and what he needs
assistance with is carrying his purchases. The appellant said that he can carry purchases but not
heavy ones.
Ministry Position
The ministry’s position is that because it has not been established that DLA are significantly
restricted, it cannot be determined that help is required.
Panel Decision
The establishment of direct and significant restrictions with DLA are a precondition of the need for
help criterion. As the panel found that the ministry reasonably determined that direct and significant
restrictions in the appellant’s ability to perform DLA have not been established, the panel also finds
that the ministry reasonably concluded that it cannot be determined that the appellant requires help to
perform DLA as required by section 2(2)(b)(ii) of the EAPWDA.
Conclusion
Having reviewed and considered all of the evidence and relevant legislation, the panel finds that the
ministry’s reconsideration decision, which determined that the appellant was not eligible for PWD
designation under section 2 of the EAPWDA, was reasonably supported by the evidence and was a
reasonable application of the applicable enactment in the appellant’s circumstances.
The appellant is not successful in his 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.