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 13 June 2017, which denied the appellant designation as a
person with disabilities (PWD). The ministry determined that the appellant is not one of the prescribed
classes of persons who may be eligible for PWD designation on alternative grounds. The ministry
further 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; that a severe mental or physical impairment, in
the opinion of a prescribed professional, directly and significantly restricts the appellant’s ability to
perform daily living activities (DLA) either continuously or periodically for extended periods; or that as
a result of those restrictions, the appellant 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 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) – section 2
PART E – Summary of Facts
The evidence before the ministry at reconsideration consisted of the following:
The appellant’s PWD Application. The Application contained:
A Physician Report (PR) dated 20 January 2017, completed by the appellant’s general
practitioner (GP) who has known the appellant since January 2014 months years and seen
the appellant 2-10 times in the past 12 months.
An Assessor Report (AR) dated 20 January 2017, completed by the appellant’s GP.
A Self Report (SR) dated 20 April 2016, completed by the appellant.
A Request for Reconsideration (RFR) dated 28 April 2017, in which the appellant states
that he has recently had ultrasound and MRI scans and new information is available
through his doctor in relation to the to his left shoulder and lower back. He explains that he
has been in contact with his doctor’s office and they are prepared to provide information to
the ministry. The appellant describes the difficulties that result from his medical conditions
and explains that he is in too much pain to do work at a job and is trying to survive on $658
per month. The appellant describes being unable to have crucial dental surgery, not having
been able to access physiotherapy for years and being unable to afford anti-inflammatory
medication. He states that he has discussed the issue with his doctor on several occasions
and they have both determined that he should go onto full disability.
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 PR, the GP diagnoses the medical conditions related to the appellant’s impairment as:
degenerative disc disease lumbar – onset 1994
arthritis back/sacroiliitis – onset 1994
In the AR, the GP describes the appellant’s mental or physical impairments as:
back pain
anxiety/depression
Severity of mental impairment
PR:
The GP has not provided a mental health diagnoses
Under Health History, the GP writes:
sleep is severely disrupted by pain
lack of interaction due to social isolation due to pain
The GP indicates that the appellant has no difficulties with communication.
The GP indicates that the appellant has significant deficits with cognitive and emotional
functioning in the areas of emotional disturbance with the comment: due to chronic disorder has
depression and anxiety.
AR:
The GP assesses the appellant’s ability to communicate as good in the areas of speaking,
reading, writing and hearing.
The GP assess the appellant’s cognitive and emotional functioning as having major impacts in the
areas of bodily functions, emotion, and attention/concentration; moderate impacts in the areas of
consciousness, executive and memory. The GP assesses no impacts in the remaining areas of
cognitive and emotional functioning. The GP provides the comment: severe sleep impairment due
to pain and medication; decreases memory, orientation, concentration and planning ability; he is
obviously depressed and anxious due to his chronic disorder.
The GP indicates that the appellant is independent in all social functioning DLA and has marginal
functioning in immediate and extended social networks.
SR:
The appellant does not indicate that he suffers from a severe mental impairment or mental health
condition. He describes a number of physical conditions and the associated difficulties he
experiences (see below).
Severity of physical impairment
PR:
The GP has degenerative disc disease lumbar and arthritis back/sacroiliitis.
Under Health History, the GP writes:
Patient is unable to lift, bend, sit/stand well for any period
Unable to try and exercise
All conservative therapies and injectable therapies have failed
Chronic condition from falling off roof in 1994
Sudden onset muscle spasms, unable to control
For functional skills, the GP indicates that the appellant can walk 1-2 blocks unaided on a flat
surface, climb 2-5 stairs unaided and can remain seated for less than one hour. The GP has
indicated no lifting.
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 walking indoors,
walking outdoors, climbing stairs, standing, lifting and carrying and holding. The GP indicates that
the appellant takes significantly longer with all of these activities and provides the comment: he is
in pain constantly and is sometimes unable to walk or lift anything or bend/squat.
SR:
The appellant describes severe damage to his back. He explains injuries to his left shoulder as
well as loss of strength and twitching in that arm. He states that he has been diagnosed with
damage to both hips and sacrum as well as degenerative osteoarthritis and a ruptured disc. He
describes having a serious skin condition that causes severe itching and rough skin and leaves
small “paper cuts” on his hands and feet.
Ability to perform DLA
General
PR:
The GP indicates that the appellant has been prescribed medication that affects cognitive function
as well as sleep. The anticipated duration of this medication is likely permanent.
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 all pay rent and bills activities.
Shop for personal needs
AR:
The GP indicates that the appellant is independent in the following shopping activities: going to
and from stores (takes significantly longer), reading prices and labels, making appropriate choices
and paying for purchases. The GP has not indicated whether or not the appellant is independent
with carrying purchases home but has indicated that he takes significantly longer than typical. The
GP has provided the comment: the pain sometimes makes him unable to lift anything or even
leave the house.
Use public or personal transportation facilities
AR:
The GP indicates that the appellant is independent in all transportation DLA and takes
significantly longer with the comment: depending on level of pain that day patient may be unable
to drive or get on a bus.
Perform housework to maintain the person's place of residence
AR:
The GP indicates that the appellant requires periodic assistance with laundry and basic
housekeeping and provides the comment: due to pain needs help with household work.
Move about indoors and outdoors
AR:
The GP indicates that the appellant is independent with walking indoors and outdoors, climbing
stairs and standing.
Perform personal hygiene and self-care
AR:
The GP indicates that the appellant is independent with all personal care DLA, including:
dressing, grooming, bathing, toileting, feeding self, and regulating diet and transfers in/out of bed
and on/off chair. The GP indicates that the appellant takes significantly longer with dressing,
bathing and transfers in/out of bed and on/off chair. The GP provides the comment: due to pain is
intermittently unable to or takes longer with self-care.
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 the shopping DLA of readings labels,
making appropriate choices, and paying for purchases; all meals DLA, including meal planning
and safe storage; all pay rent and bills DLA; all medications DLA; the transportation DLA of using
transit schedules and arranging transportation; and all social functioning DLA.
Relate to, communicate or interact with others effectively
PR:
The GP indicates that the appellant has no difficulties with communication.
AR:
The GP assesses the appellant’s ability to communicate as good for all areas, including speaking,
reading, and hearing and writing.
The GP indicates that the appellant is independent in all social functioning DLA (appropriate
social decisions, able to develop and maintain relationships (no support but difficult due to pain
and isolation), interacts appropriately with others, able to deal appropriately with unexpected
demands, and able to secure assistance from others) and has marginal functioning in his
immediate and extended social networks.
Help required
PR:
The GP indicates that the appellant does not require an aid or prosthesis for his impairment.
AR:
The GP indicates in the section of the AR dealing with help required for daily living activities that
help is provided by health authority professionals and community service agencies with the
comment: help from other doctors/practitioners. In response to a prompt for help that is needed
but t not available the GP writes: help with groceries and household work. The GP indicates that
the appellant does not receive assistance from assistive devices or assistance animals.
Notice of Appeal
In his Notice of Appeal (NOA) dated 14 June 2017, the appellant gives as Reasons for Appeal: I
disagree with this decision as it states the ministry does not have enough information on the
amount of time that I am unable to move about. I have made this information available to my
doctor, and requested that you contact her to get any information that you might require.
I have been at all times prepared to help the doctor’s office and the government get any medical
data or whatever is required by the ministry. I have little use of both my hands now and 3 limbs
are seriously impaired. I cannot hope to fend for myself very well in future years.
The hearing
The appellant stated that he and his doctor agree that he cannot work and he has spent a lot of
time getting this information together. He stated that both hips and his left arm are damaged and
he cannot carry things and cannot shop. He doesn’t know what to do as he is behind with
emergency dental work and it isn’t possible to meet all of his expenses on $658 per month. It has
been years since he was able to afford physiotherapy. He explained that he fell off a roof a long
time ago and has injuries from that fall. He described a normal day as needing to lay flat on his
back until about 3pm, he is able to sit up for a while but gets spasms that force him to lay flat. He
explained that since an injection about 10 days ago, he is able to perform most daily tasks slowly.
He described being unable to do shopping, as it leaves him very sore the next day. He stated that
a friend used to help him but now he does not receive any help. The appellant also described a
skin condition that causes his hands to be very sore. The appellant explained that he is trying to
be fair and honest, completing everything to the best of his ability providing the most information
possible.
The ministry relied on the reconsideration decision.
Admissibility of new information
The panel finds that the information provided by the appellant in the Notice of Appeal and at the
hearing is consistent with and, therefore, 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 four 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;
the appellant’s severe mental or physical impairment, in the opinion or a medical practitioner,
is likely to continue for at least 2 years;
the appellant’s severe mental or physical impairment, in the opinion of a prescribed
professional, directly and significantly restricts his ability to perform daily living activities (DLA)
either continuously or periodically for extended periods; and
as a result of those restrictions, he 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 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 loss or abnormality of psychological, anatomical or physiological
functioning causing restriction in the ability to function independently, appropriately, effectively or for a
reasonable duration.
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. The ministry first noted that the GP had not provided a
mental health diagnosis, arguing that if the appellant had a severe mental health condition it would be
expected that the GP would provide a diagnosis. The ministry considered the GP’s indication that
pain severely disturbs the appellant’s sleep and has a major impact on his daily functioning. The
ministry noted that the GP described a lack of interaction with others and social isolation due to pain.
In the reconsideration decision, the ministry noted that the GP describes depression and anxiety due
to the appellant’s chronic disorder, and argues that if these conditions were considered severe they
should be included on the list of diagnoses. The ministry noted that the GP assessed major impacts
on emotional functioning and experiences decreased memory, orientation, concentration, and
planning ability. The ministry noted that the GP has not indicated that support is needed to maintain
the appellant in his community. As well the ministry took note of the lack of information from the GP
about referral to a mental health specialist, which the ministry argues would be expected if the
appellant’s mental health conditions were severe. The ministry concluded that, while the appellant
does experience some degree of mental impairment secondary to his physical conditions, it was not
satisfied that a severe mental impairment had been established.
The panel finds that the ministry’s determination that a severe mental impairment has not been
established was reasonable. In addition to the considerations discussed by the ministry, the panel
notes the absence of safety concerns noted by the GP and, while the GP provides comments about
social isolation, she assesses the appellant as independent with all aspects of social functioning and
all DLA applicable to a person with a severe mental impairment. The panel further notes that the
appellant’s communication abilities have been assessed as good in all areas. Finally, the panel notes
the absence of any mention of a mental impairment in any of the documents prepared by the
appellant himself or in the appellant’s arguments at the hearing. The panel finds that the ministry
reasonably concluded that the information provided does not establish a severe mental impairment
and that this criterion was not met.
Severity of physical impairment
The ministry determined that it was not satisfied that the information provided is evidence of a severe
physical impairment. In making this determination, the ministry considered the functional skills
assessed by the GP, noting that the appellant can walk 1-2 blocks unaided, climb 2-5 steps unaided,
cannot do any lifting and can remain seated for less than 1 hour. The ministry considered the GP’s
description of the appellant as being unable to lift, bend, sit/stand well for any period and his severely
disturbed sleep due to pain. The ministry noted that while the GP indicated no lifting, she had also
assessed the appellant as independent in several DLA that would require at least minimal lifting. The
ministry also noted that while the GP has described the appellant as sometimes unable to walk, lift,
bend/squat, she has not provided how often ‘sometimes’ means. As well, the ministry noted that the
GP has not provided a description of the efficacy of the appellant’s medications and to what extent it
enables him to perform DLA. The ministry noted that the GP has indicated that the appellant doesn’t
require any aids or prostheses and argued that, if the appellant’s physical condition were considered
severe, it would be expected that he would benefit from basic aids such as a cane, walker or grab
bars for his bathroom. The ministry further noted that the GP has indicated that the appellant
requires periodic assistance with laundry and basic housekeeping but has not indicated how often
this assistance is required and to what degree. The ministry further noted that the GP has not
specified how often the appellant is in too much pain to access transportation. The ministry concluded
that the appellant experiences some degree of restriction due to his impairment, but was not satisfied
that the information provided is evidence of a severe physical impairment.
The panel notes that the appellant has stated that he suffers from a severe skin condition; however, a
medical practitioner has not confirmed this diagnosis.
The panel finds that the ministry’s determination that a severe physical impairment has not been
established was reasonable. In addition to the considerations discussed above, the panel notes that
the GP has assessed the appellant as independent with all areas of mobility and physical ability and
takes significantly longer. The panel also notes that the appellant stated at the hearing that he is
independently able to perform his daily activities albeit slowly. The panel notes that the appellant did
state that shopping is a problem for him, causing pain the day after he does this task. The panel
notes that the information provided by the appellant in his SR, and Request for Reconsideration
discusses the appellant’s inability to work. The appellant also argued at the hearing that he and his
doctor agree that he is not able to work. The panel notes 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
finds that the ministry’s determination that a severe physical impairment has not been established 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 GP is the prescribed professional. 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 from the appellant’s prescribed
professional did not establish that the appellant’s impairment significantly restricts his ability to
perform DLA continuously or periodically for extended periods. The ministry noted that the GP had
assessed the appellant as generally independently able to perform all DLA but his ability to perform
them varies depending on the appellant’s pain levels. The ministry noted that the GP had not
provided information about the how often the appellant can perform DLA compared to when he is
unable. The ministry argued that, despite not being required by the legislation, information regarding
the frequency and degree of restrictions experienced by the appellant is valuable to determine the
significance of restrictions. The ministry noted that the GP has indicated no lifting and has also
indicated that the appellant is independent with tasks that involve at least some lifting. The ministry
also noted that the GP has indicated that the appellant requires periodic assistance with laundry and
basic housekeeping, but has not explained how often the appellant requires assistance and to what
degree.
The panel finds that the ministry’s determination that the assessments provided by the medical
practitioner do not establish that a severe impairment significantly restricts the appellant’s ability to
perform DLA continuously or periodically for extended periods was reasonable. The panel notes that
the GP has indicated a need for periodic assistance in relation to basic housekeeping and laundry.
However, the panel finds that the GP has not provided sufficient information in relation to the nature,
degree and duration of the assistance required by the appellant to establish that there are significant
restrictions for extended periods in the appellant’s ability to perform DLA. As well, the panel notes
that the appellant has stated that he is independently able to perform these tasks. The panel also
notes that the GP reported that the appellant is independently able to manage all areas of social
functioning. 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 GP has
indicated in the AR that the appellant would benefit from help with groceries and household work, the
appellant has stated that he is independently able to manage housekeeping and laundry albeit slowly.
The panel notes that the appellant also stated that he does not receive assistance with shopping but
would benefit from assistance in this area. As the panel has 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 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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