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 June 15, 2017, which held 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 and duration requirements, but was not satisfied that:
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 those restrictions, the appellant requires an assistive device, the significant help
or supervision of another person or the services of an assistance animal to perform DLA.
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
On March 24, 2017 the ministry received the appellant’s PWD application comprised of a Medical
Report (MR) and an Assessor Report (AR) completed by the appellant’s General Practitioner (the
“Physician”) on March 13, 2017, and the appellant’s Self-report (SR) dated March 13, 2017. The
appellant also provided the following:
-
Consult report from a psychiatrist (the “Psychiatrist”) dated July 7, 1998
-
Letter from another general practitioner (the “Doctor”) dated January 14, 1999
-
Consult report from the Psychiatrist dated December 29, 1999
The appellant’s request for PWD designation was denied on May 3, 2017. On June 2, 2017the
appellant submitted her completed Request for Reconsideration (RFR) dated June 2, 2017. The
appellant also provided the following:
-
Letter from another psychiatrist (“Psychiatrist 2”) dated April 11, 2017
-
Letter from the Physician dated May 31, 2017
-
Letter from the appellant’s social worker dated June 1, 2017
On June 30, 2017, the tribunal received the appellant’s Notice of Appeal.
Summary of relevant evidence
Diagnoses
The Psychiatrist indicates that the appellant has a dependent personality disorder and a history of
recurrent depressions.
In the MR, the Physician diagnoses the appellant with generalized anxiety disorder, PTSD,
complicated bereavement and recurrent depression, onset in 1997.
In his letter dated April 11, 2017 Psychiatrist 2 states that the appellant has a history of mixed anxiety
and depressive disorder since her teen years.
In his letter dated May 31, 2017 the Physician indicates that the appellant has a diagnosis of
generalized anxiety disorder and major depressive disorder.
Physical Impairment
In the Health History portion of the MR, the Physician indicates that the appellant has poor appetite,
weight loss (50 pounds in 4 months), and poor sleep.
In the MR for Functional Skills, the Physician indicates that the appellant is able to walk 4+ blocks
unaided on a flat surface, can climb 5+ steps unaided, can lift between 15 to 35 pounds, and has no
limitation with remaining seated.
In the AR the Physician indicates that the appellant is independent with all mobility and physical
ability tasks.
Mental Impairment
In the MR, the Physician indicates that the appellant has significant deficits with cognitive and
emotional function in the areas of memory, emotional disturbance, motivation and attention or
sustained concentration. The Physician comments that the symptoms are coming from her
depression and anxiety of moderate to severe severity.
In the AR, the Physician indicates that the appellant’s ability to communicate with speaking and
hearing are good and that her reading and writing are satisfactory, explaining that she has difficulty
with concentrating on reading and writing. The Physician indicates that the appellant has major
impacts to the areas of bodily functions, emotion, and motivation and moderate impacts in the areas
of attention/concentration, executive, and memory. The appellant has no impact in the areas of
consciousness, impulse control, insight and judgment, motor activity, language, psychotic symptoms,
other neuropsychological problems and other emotional or mental problems. The Physician
comments that the appellant has poor appetite, has lost 50 pounds in 4 months, and has poor
motivation, excessive anxiety and depression as a result of her depression, anxiety and PTSD.
In the July 7, 1998 letter, the Psychiatrist indicates that the appellant has a history of recurrent
depression, chronic anxiety, and was experiencing grief-related phenomena mainly manifested as
inappropriate shame and guilt. The Psychiatrist states that her thought processes and cognition were
intact and she demonstrated reasonable insight and judgment.
In his letter dated January 14, 1999, the Doctor states that the appellant was suffering from abnormal
grief reaction related directly to the death of her common law spouse in 1997.
In his letter dated December 29, 1999 the Psychiatrist indicates that the appellant had become
anxious and demoralized in response to the progression of her dysfunctional and co-dependent
common law relationship.
In his letter dated April 11, 2017, Psychiatrist 2 indicates that the appellant had no history of alcohol
or illicit drug use and that she declined to take antidepressant medications but agreed to attend an
anxiety management program. Psychiatrist 2 states that in his opinion the appellant has a long-term
disability and she is a suitable candidate for PWD allowance. He states that she is quite a vulnerable
individual and ongoing financial stressors may predispose her and may also precipitate anxiety and
depression.
In his letter dated May 31, 2017 the Physician indicates that the appellant has been seen by
psychiatry more recently and started on medications and referred for counseling. He indicates that
she has moderate to severe symptoms including low mood, poor concentration, poor focus and
attention, and poor motivation. He indicates that these symptoms make her unable to manage in a
work environment, as she is not able to focus on her work task or perform the cognitive tasks
required.
In the RFR the appellant states that after years of suffering from anxiety she is finally getting some
help with her anxiety. She states that she had previously tried coping with her feelings and unhealthy
thinking and choices with alcohol and being very codependent with others. She states that she
needs a home, food, transportation and time in order to accomplish her goal of improving her mental
health.
DLA
In the MR the Physician indicates that the appellant has not been prescribed any medications that
interfere with her ability to perform DLA.
In the AR, the Physician indicates that the appellant is independent with all aspects of personal care
except regulating diet with which she requires continuous assistance from another person and it
takes her significantly longer than typical explaining that part of depression is not eating to the point
of losing 50 pounds in the past 4 months. The Physician indicates that the appellant is independent
with all aspects of basic housekeeping, shopping, rent and bills, medications and transportation. With
respect to meals, the appellant is independent with safe storage of food but requires continuous
assistance from another person with meal planning, food preparation and cooking, indicating that part
of her depression is that she is unable to find the motivation to cook for herself, resulting in major
weight loss.
With respect to social functioning the Physician indicates that the appellant requires continuous
support/supervision with making appropriate social decisions, developing and maintaining
relationships, interacting appropriately with others, dealing appropriately with unexpected demands
and securing assistance from others. The Physician indicates that the appellant has very disrupted
functioning with her immediate and extended social networks commenting that she is unable to
secure long term accommodation, lives in marginalized living conditions, and is basically isolated
from other people.
In his letter dated May 31, 2017 the Physician indicates that the appellant has traumatic events in her
life going back 20 years so her symptoms are long standing. He indicates that treatment with
medications and counselling is expected to be prolonged.
Need for Help
In the MR, the Physician does not indicate what assistance the appellant needs with DLA. In the AR,
the Physician does not describe the support/supervision required which would help to maintain the
appellant in the community. The Physician indicates that nobody is helping the appellant at this point
although he indicates that the appellant has recently reconnected with counselling and psychiatry for
March-April 2017. The appellant does not have an Assistance Animal.
In the letter dated April 11, 2017 Psychiatrist 2 indicates that the appellant declined to take
antidepressant medication but has agreed to attend anxiety management program. He also indicated
that he referred the appellant to a program for sheltered environment.
In the letter dated June 1, 2017, the social worker indicates that the appellant is willing to access
supports and to follow through with treatment recommendations and has been accepted into a
community mental health program as a participant.
Additional information provided
In her Notice of Appeal dated June 30, 2017, the appellant states that she feels that her anxiety and
depression are too severe for her to be working and now she needs to seek help about her newly
diagnosed alcoholism. She states that she is not functioning at home.
At the hearing the appellant provided a letter from the Physician dated June 30, 2017 indicating that
the appellant has a history of major depressive disorder and generalized anxiety disorder. He also
indicates that she meets criteria for alcohol addiction.
At the hearing the appellant stated that she has suffered since she was a teenager and despite some
success in her early life, began using alcohol to cope with her mental health issues. When her
spouse was murdered in 1997 she suffered significant grief and began using alcohol to cope and
could not hold a job. She subsequently had a 16-year relationship and had periods where she did
somewhat better but the relationship ended last year and lost her home and she has been drinking all
the time. The appellant attended a support program in another city and found some benefit from that
but has not found that benefit in the current city in which she resides.
The appellant states that she has spent a considerable portion of the last year either living in isolation
or in dysfunctional living situations, as she does not have the income or ability to live on her own.
The appellant states that she has struggled with having motivation to cook and eat, that her sleeping
has been very poor and that she does not make very good choices. She feels very frustrated as she
does not feel capable of explaining how she feels, only able to say that she just can’t cope.
The appellant states that she has recently been prescribed a medication that helps her anxiety, and
she is eating more and sleeping better, but she has increased depressive symptoms. She states that
even though she is eating again she has lost 10 pounds in the past 2 weeks and six weeks ago she
started losing hair. Her TSH (thyroid tests) are up and down, she was on thyroid medication and is
being weaned off that. She thinks her hair loss is due to the thyroid medication but that needs to be
investigated further. The appellant stated that she is currently living with a woman and is performing a
variety of tasks such as taking down wallpaper, cleaning, gardening, cooking meals, and grocery
shopping in exchange for room and board. She states that she cannot cook freely for herself given
the current living situation so she is not sure whether her motivation to cook is better now or not but
she is eating with her landlady and eating more meals than before. The appellant states that she
does not have any family support.
The appellant stated that although the AR indicates that there is no impact to her impulse control or
insight and judgment, she has struggles with confusion, and she did not tell the Physician about the
extent of her alcohol problems. The appellant also stated that she did not think depression was a
major problem and that it was her anxiety that was the most troublesome but she now understands
that her depression is a significant problem too.
The social worker stated that she began working with the appellant in May and the appellant is
lacking in terms of natural support. She stated that the appellant is often very anxious or distressed
but she is doing great at keeping her appointments. The social worker stated that the appellant
needs support several times per week. The social worker indicated that while the Physician in the AR
indicated that the appellant has no impact in the areas of impulse control and insight and judgment
that is likely a reflection of the fact that the appellant had not provided him with all the information
about her alcohol problems.
Admissibility of New Information
The ministry did not object to the new evidence.
The panel has admitted the information in the Notice of Appeal, the letter from the Physician, the
appellant’s oral testimony, and the social worker’s oral testimony with respect to the information
provided regarding her diagnoses of generalized anxiety disorder, PTSD, complicated bereavement
and recurrent depression as it tends to corroborate the information before the ministry at the time of
reconsideration, in accordance with section 22(4) of the Employment and Assistance Act. In
particular, the information relates to the Physician’s reports in the MR and AR, and information at
reconsideration respecting the self-reported severity of the appellant’s impairment.
However, the panel has not admitted the information in the Notice of Appeal, the letter from the
Physician, the appellant’s oral testimony or the social worker’s oral testimony regarding the
appellant’s newly diagnosed alcoholism and consequent impacts to her DLA. As this new information
does not corroborate the information before the ministry at the time of reconsideration and includes a
completely new diagnosis, the ministry did not have the opportunity to review this information or
consider the new diagnosis and impacts to the appellant’s DLA, it takes the panel away from
reviewing the reasonableness of the ministry’s reconsideration decision. As the ministry did not have
the opportunity to review this new information, the appellant may wish to put this information before
the ministry in the future.
PART F – Reasons for Panel Decision
Issue on Appeal
The issue on appeal is whether the ministry’s decision to deny the appellant designation as a PWD
was reasonably supported by the evidence or was a reasonable application of the applicable
enactment in the circumstances of the appellant. In particular, was the ministry reasonable when
concluding it was not satisfied that
a severe physical or mental impairment was established;
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 those restrictions, in the opinion of a prescribed professional, the appellant
requires help, as it is defined in the legislation, to perform DLA?
Relevant Legislation
EAPWDA
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 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.
(4) The minister may rescind a designation under subsection (2).
EAPWDR
Definitions for Act
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.
(3) The definition of "parent" in section 1 (1) applies for the purposes of the definition of "dependent child" in section 1
(1) of the Act.
Alternative grounds for designation under section 2 of Act
2.1 The following classes of persons are prescribed for the purposes of section 2 (2) [persons with disabilities] of the
Act:
(a) a person who is enrolled in Plan P (Palliative Care) under the Drug Plans Regulation, B.C. Reg. 73/2015;
(b) a person who has at any time been determined to be eligible to be the subject of payments made through the
Ministry of Children and Family Development's At Home Program;
(c) a person who has at any time been determined by Community Living British Columbia to be eligible to receive
community living support under the Community Living Authority Act;
(d) a person whose family has at any time been determined by Community Living British Columbia to be eligible to
receive community living support under the Community Living Authority Act to assist that family in caring for the person;
(e) a person who is considered to be disabled under section 42 (2) of the Canada Pension Plan (Canada).
Panel Decision
The legislation provides that the determination of severity of an impairment is at the discretion of the
minister, taking into account all of the evidence including that of the appellant. However, the
legislation is also clear that the fundamental basis for the analysis is the evidence from a prescribed
professional respecting the nature of the impairment and its impact on daily functioning. While the
legislation does not define “impairment”, the MR and AR define “impairment” as a “loss or abnormality
of psychological, anatomical or physiological structure or functioning causing a restriction in the ability
to function independently, effectively, appropriately or for a reasonable duration.” While this is not a
legislative definition, and is therefore not binding on the panel, in the panel’s opinion, it reflects the
legislative intent and provides an appropriate analytical framework for assessing the degree of
impairment resulting from a medical condition.
When considering the evidence provided respecting the severity of impairment, the ministry must
exercise its decision-making discretion reasonably by weighing and assessing all of the relevant
evidence and cannot simply defer to the opinion of a prescribed professional as that would be an
improper fettering of its decision-making authority.
Severe Physical Impairment
The appellant states that she is experiencing severe hair loss, weight loss, and her TSH levels are
not right, but she did not argue that she had a severe physical impairment.
The ministry’s position is that the MR, AR and other medical documentation do not establish a severe
physical impairment. In particular, the ministry notes that the Physician’s assessment of the
appellant’s functional skills in the MR is not indicative of a severe physical impairment.
Although the Health History portion of the MR indicates that the appellant has lost 50 pounds in 4
months, the MR does not indicate a diagnosis of a physical impairment. The MR indicates that the
appellant does not require any prosthesis or aids for her impairment. For functional skills, the
Physician indicates that the appellant can walk 4+ blocks unaided on a flat surface, can climb 5+
steps unaided, can lift 15 to 35 pounds and has no limitation with respect to being seated. In the AR,
the Physician indicates that the appellant is independent with all aspects of mobility and physical
ability.
The other medical documentation, while providing information regarding the appellant back ground
and mental impairment, does not provide further information about the appellant’s level of functioning
with mobility or physical ability.
As there is no diagnosis of a physical impairment and as the information in the MR and AR indicates
that the appellant’s level of functioning with mobility and physical ability is independent, the panel
therefore finds that the ministry reasonably determined that a severe physical impairment has not
been established.
Severe Mental Impairment
The appellant states that the medical evidence demonstrates that she has a severe mental
impairment as she suffers from anxiety, depression and alcoholism that impact her ability to function
and care for herself.
The ministry’s position is that although the appellant has been diagnosed with generalized anxiety
disorder, PTSD, complicated bereavement and recurrent depression, the information provided by the
Physician in the MR indicates that the appellant has moderate to severe anxiety and depression
symptoms. The ministry notes that although the Physician in the MR indicates that the appellant has
poor attention and concentration, he does not indicate whether the severity of impacts to attention
and concentration is moderate or severe. The reconsideration decision also indicates that in the AR,
the Physician indicates that the appellant has significant deficits to cognitive and emotional
functioning in the areas of memory and attention/sustained concentration, in the AR, the Physician
indicates moderate impacts to these areas.
The ministry notes that in the AR the Physician indicates major impacts to three areas of cognitive
and emotional functioning, moderate impacts to three areas and no impacts to eight areas of
cognitive and emotional functioning.
The ministry also notes that while the Physician indicates that the appellant has very disrupted
functioning with both her immediate and extended social networks and requires continuous
support/supervision with all listed areas of social functioning, the Physician has not described the
support/supervision required to help the appellant maintain in the community.
The reconsideration decision indicates that in the Physician’s recent letter dated May 31, 2017 the
Physician states that the appellant has moderate to severe symptoms including low mood, poor
concentration, poor focus and attention, and poor motivation but that he does not describe the
frequency of moderate versus severe symptoms of the appellant’s cognitive functioning. The
ministry’s position is that the cumulative impact of the information provided is that the appellant has a
moderate as opposed to severe impairment of her mental functioning.
The panel notes that in the MR, the Physician has been diagnosed with generalized anxiety disorder,
PTSD, complicated bereavement, and recurrent depression.
The MR indicates that the appellant has significant deficits with cognitive and emotional function in
the areas of memory, emotional disturbance, motivation and attention or sustained concentration and
the Physician comments that the symptoms are from her depression and anxiety of moderate to
severe severity. In the AR, the Physician indicates major impact to three areas of cognitive and
emotional functioning being bodily functions, emotion and motivation, moderate impact to three
areas, being attention/concentration, executive and memory and no impact to the remaining eight
areas. The Physician indicates that the appellant has poor appetite, has lost 50 pounds in 4 months,
has poor motivation, and has excessive anxiety, as a result of her depression, anxiety and PTSD.
However, the Physician does not provide any explanation of the frequency of moderate versus
severe symptoms. In addition, the appellant’s evidence is that the new medication she is now taking
has helped decrease her anxiety symptom and has increased her appetite.
While the appellant indicates in her RFR that she made unhealthy choices in the past regarding
alcohol there is no information from the Physician regarding this information or the impacts to the
appellant’s functioning. The appellant admitted that she at the time the MR and AR were completed,
she had not informed the Physician of the full extent of her difficulties with alcohol.
While Psychiatrist 2 states that the appellant has a long-term disability and she is a suitable
candidate for PWD allowance and that she is quite a vulnerable individual and ongoing financial
stressors may predispose her and may also precipitate anxiety and depression, this statement is not
sufficient without further information regarding the severity of the appellant’s mental impairment
including the impacts of her mental impairment on her cognitive and emotional functioning.
The Physician’s letter of May 31, 2017 restates the appellant’s diagnosis but the Physician again
indicates that she has moderate to severe symptoms and he does not provide further information on
the frequency of the moderate versus severe symptoms. While the Physician indicates that the
appellant is unable to manage a work environment, employability is not a criterion for PWD
designation. In his letter dated June 30, 2017 the Physician indicates that the appellant has a history
of major depressive disorder and generalized anxiety disorder and that his letter is to help her
application for PWD. However, the statements about her diagnosis, without additional information
regarding the severity of her symptoms and impact to her cognitive and emotional functioning and
ability to perform DLA, is not sufficient.
The letters from the Psychiatrist from 1998 and 1999 also indicate that the appellant was diagnosed
with a dependent personality disorder and has had a difficult past with tumultuous relationships,
dysfunctional living environments, and suffered feelings of guilt and shame and amplified grief after
her spouse was murdered in 1997. However, these letters are very dated and they do not provide
any information on the appellant’s current level of functioning.
It appears that the Physician may not have had all the information regarding the appellant’s condition
and impacts to her cognitive and emotional functioning. However, the ministry can only assess the
PWD application based on the information in the application.
The panel finds that based on all the information the ministry reasonably concluded that the
cumulative impact to cognitive and emotional functioning is not indicative of a severe impairment of
mental functioning.
Restrictions in the ability to perform DLA
Section 2(2)(b)(i) of the EAPWDA requires that the minister be satisfied that in the opinion of a
prescribed professional, a severe mental or physical impairment directly and significantly restricts the
appellant’s ability to perform DLA either continuously or periodically for extended periods. While other
evidence may be considered for clarification or support, the ministry’s determination as to whether or
not it is satisfied that the legislative criteria are met, is dependent upon the evidence from prescribed
professionals. The term “directly” means that there must be a causal link between the severe
impairment and the restriction. The direct restriction must also be significant. Finally, there is a
component related to time or duration – the direct and significant restriction may be either continuous
or periodic. If periodic, it must be for extended periods. Inherently, any analysis of periodicity must
also include consideration of how frequently the activity is restricted. All other things being equal, a
restriction that only arises once a year is less likely to be significant than one that occurs several
times a week. Accordingly, in circumstances where the evidence indicates that a restriction arises
periodically, it is appropriate for the ministry to require evidence of the duration and frequency of the
restriction in order to be “satisfied” that this legislative criterion is met.
DLA are defined in section 2(1) of the EAPWDR and are listed in both the MR and the AR sections of
the PWD application with the opportunity for the prescribed professional to check marked boxes and
provide additional narrative. DLA, as defined in the legislation, do not include the ability to work.
The appellant states that she has a severe mental impairment of anxiety and depression and that she
makes unhealthy choices and uses alcohol to cope with her feelings and that the combination of
these conditions make it difficult for her to perform DLA. The appellant states that she cannot cope
with her feelings, has poor motivation that makes it difficult for her to care for herself with hygiene and
eating, and difficulty with attention/concentration. The appellant states that her anxiety in particular
makes it difficult to socialize and express her thoughts and feelings, and that she has spent much of
the last year in isolation. The appellant’s position is that the information provided demonstrates that
she meets the criteria for designation for PWD.
The ministry’s position is that the information provided by the Physician is not sufficient to establish
significant restrictions to DLA. The ministry notes that in the AR, the Physician indicates that the
appellant requires continuous assistance from another person and takes significantly longer than
typical with regulating diet, and requires continuous assistance from another person with meal
planning, food preparation and cooking but is independent with all other listed areas of personal care,
and meals, and is independent with laundry and basic housekeeping, shopping, paying rent/bills,
medications and transportation. However the ministry notes that the Physician does not describe
how much longer than typical the appellant takes with regulating diet.
The ministry’s position is that based on the assessments provided it is difficult to establish significant
restriction to DLA.
The panel notes that in the MR the Physician indicates that the appellant has not been prescribed
any medications that interfere with her ability to perform DLA.
In the AR, the Physician indicates that the appellant is independent with all aspects of personal care
except regulating diet with which she requires continuous assistance from another person and it
takes her significantly longer than typical explaining that part of depression is not eating to the point o
flossing 50 pounds in the past 4 months. The Physician indicates that the appellant is independent
with all aspects of basic housekeeping, shopping, rent and bills, medications and transportation. With
respect to meals, the appellant is independent with safe storage of food but requires continuous
assistance from another person with meal planning, food preparation and cooking, indicating that part
of her depression is that she is unable to find the motivation to cook for herself, resulting in major
weight loss.
With respect to social functioning the Physician indicates that the appellant requires continuous
support/supervision with making appropriate social decisions, developing and maintaining
relationships, interacting appropriately with others, dealing appropriately with unexpected demands
and securing assistance from others. The Physician indicates that the appellant has very disrupted
functioning with her immediate and extended social networks commenting that she is unable to
secure long term accommodation, lives in marginalized living conditions, and is basically isolated
from other people.
In his letter dated May 31, 2017 the Physician indicates that the appellant has traumatic events in her
life going back 20 years so her symptoms are long standing. He indicates that treatment with
medications and counselling is expected to be prolonged. The appellant stated that the medication
she is taking has increased her depression and causes fatigue, but the Physician does not indicate
whether the medications impact the appellant’s ability to perform DLA.
While the information provided indicates that the appellant has some impacts to DLA in the areas of
regulating diet, some aspects of meals and social functioning, the majority of the appellant’s DLA are
reported to be independent and the Physician has not provided any description of the
support/supervision which would help the appellant to maintain in the community.
The lack of further information about how much longer than typical it takes the appellant with
regulating diet, and lack of information about the support/supervision needed make it difficult to obtain
a clear picture of the impact to the appellant’s DLA. In addition, while the Physician indicates that the
appellant is unable to secure long term accommodation and lives in marginalized conditions, the
Physician indicates that she is independent with all aspects of paying rent and bills. While the
Physician indicates that the appellant needs continuous assistance regulating diet, as part of her
depression is not eating to the point of losing 50 pounds in 4 months, he indicates that she is
independent with all aspects of shopping. However, if she needs continuous assistance regulating
diet it is not clear how she is able to be independent with making appropriate choices with respect to
DLA of shopping.
Based on the above analysis, the panel finds that the ministry has reasonably determined that the
independence with which the prescribed professionals report that the appellant manages her DLA
does not confirm that the appellant has a severe impairment that significantly restricts her ability to
perform DLA continuously or periodically for extended periods.
Help to perform DLA
Section 2(2)(b)(ii) of the EAPWDA requires that, as a result of direct and significant restrictions in the
ability to perform DLA, a person requires help to perform those activities. 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 DLA.
The appellant’s position is that she requires help with DLA because of her severe and mental
impairment. She and the social worker state that she requires community supports to address her
mental health and to find housing.
The ministry argues that because it has not been established that DLA are significantly restricted, it
cannot be determined that help is required.
In the MR, the Physician does not indicate what assistance the appellant needs with DLA. In the AR,
the Physician does not describe the support/supervision required which would help to maintain the
appellant in the community. The Physician indicates that nobody is helping the appellant at this point
although he indicates that the appellant has recently reconnected with counselling and psychiatry for
March-April 2017. The Physician indicates that the appellant does not require any prosthesis or aids
for her impairment and that she does not have an Assistance Animal.
In the letter dated April 11, 2017 Psychiatrist 2 indicates that the appellant declined to take
antidepressant medication but has agreed to attend anxiety management program. He also indicated
that he referred the appellant to a program for sheltered environment.
In the letter dated June 1, 2017, the social worker indicates that the appellant is willing to access
supports and to follow through with treatment recommendations and has been accepted into a
community mental health program as a participant.
Given that confirmation of direct and significant restrictions with DLA is a precondition of the need for
help criterion and 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
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 and is a reasonable
application of the applicable enactment, and therefore confirms the decision. The appellant is not
successful on appeal. As noted above, the appellant may wish to put the new information not
admitted as evidence at this appeal before the ministry in the future.
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.