PART C – Decision under Appeal The decision under appeal is the Ministry of Social Development and Poverty Reduction (the ministry) reconsideration decision dated August 3, 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 her impairment is likely to continue for at least two 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 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 ministry did not attend the hearing. After confirming that the ministry was notified, the hearing proceeded under Section 86(b) of the Employment and Assistance Regulation. The evidence before the ministry at the time of the reconsideration decision included the Persons With Disabilities (PWD) Application comprised of the appellant’s information dated May 16, 2017 but the appellant did not complete the self-report, a medical report (MR) dated May 16, 2017, completed by a general practitioner (GP) who has known the appellant since June 2010 and has seen her 11 or more times in the last year, and an assessor report (AR) completed by a social worker (SW) who has known the appellant since April 2017 and has not previously seen her. The evidence also included the following documents: 1) Angiographic Report dated May 1, 2017; and, 2) Request for Reconsideration dated July 17, 2017. Diagnoses In the MR, the GP diagnosed the appellant with IHD [Ischemic Heart Disease] and MI [Myocardial Infarction] with an onset in April 2017 and COPD [Chronic Obstructive Pulmonary Disease] with an onset in November 2011. Asked to describe the mental or physical impairments that impact the appellant’s ability to manage daily living activities (DLA), the SW wrote: “there are three main areas of concern: lungs (COPD), heart (currently has a stent and depending on a test may need other procedures), and scoliosis (back).” Physical Impairment In the MR, the GP reported: With respect to the health history, “severe IHD- 100% occlusion” and “increased tiredness with her COPD not optimally treated and decreased mobility. Increased fatigue. Weak. No energy.” The appellant does not require any prostheses or aids for her impairment. In terms of functional skills, the appellant can walk 1 to 2 blocks unaided on a flat surface, climb 5 or more steps unaided, lift 7 to 16 kg (15 to 35 lbs.), and remain seated 1 to 2 hours. The appellant is continuously restricted with her mobility inside and outside the home. The GP commented regarding the degree of restriction that the appellant “can’t lift over 5 lbs.” For additional comments to the MR, the GP wrote that the appellant “must take elevator/ can’t take stairs.” In the AR, the SW indicated: The appellant is assessed as taking significantly longer than typical with all aspects of her mobility and physical ability, specifically with walking indoors (note: “not supposed to be walking too much”), walking outdoors (note: “not supposed to walk too much”), climbing stairs (note: “can’t exert self”), standing (note: “only about ten minutes”), lifting (note: “not to lift anything over 5 lbs.”) and carrying and holding (note: “not to be carrying and holding too much”). The SW commented that the appellant is limited by COPD, CHF [Congestive Heart Failure] and osteoarthritis (back). In the section of the AR relating to assistance provided, the SW identified a cane as an assistive devices being used by the appellant to help her compensate for her impairment. The appellant does not have an assistance animal. In the Angiographic Report dated May 1, 2017, there are areas on a diagram of a heart indicating 40, 90, and 100% blockage.
In her Request for Reconsideration, the appellant wrote: She has many disabilities that cause her great pain. She has scoliosis in her lower back, which sends shooting pains down to her knees. She has arthritis in her upper back and neck, which is also very painful. She cannot sit long, about 10 minutes at a time, and she has to stretch. She cannot stand longer than 10 minutes without being in a lot of pain. Walking is very painful. She had a heart attack in April 2017so now she is unable to lift more than 5 lbs. Her doctor is only in town 2 days a week and only deals with one issue per appointment. It is very hard to get everything looked at. She needs a heart healthy diet and extra money for medications. Mental Impairment In the MR, the GP reported: The appellant has no difficulties with communication. The appellant has no significant deficits with cognitive and emotional function. There is no assessment of restrictions to the appellant’s social function and the GP indicated that this is “N/A,” or not applicable to the appellant. In the AR, the SW reported: The appellant has a good ability to communicate in speaking, writing, and hearing, and a satisfactory ability with reading. With respect to the section relating to daily impacts to the appellant’s cognitive and emotional functioning, the SW assessed major impacts to attention/concentration, memory, motivation, and motor activity. There are moderate impacts in the areas of bodily functions, emotion, executive, and other emotional or mental problems. Minimal impacts are assessed for impulse control, language, and psychotic symptoms. For comments, the SW added: “has a tendency to be ‘paranoid’ about people outside of her circle of friends and comfort. I [name] have difficulty sleeping, being up through the night. Sleep apnea was not assessed to date. Have trouble with memory (short term) as become distracted from what she is doing often. Become tired easily and feeling weak because of strain on heart. Cannot exert one’s self too much. Cannot stand in one position for too long. Generally found she has a lack of interest and motivation. Previously would do things and now has difficulty.” Regarding the appellant’s social functioning, the appellant is independent in all aspects, specifically with making appropriate social decisions, developing and maintaining relationships, interacting appropriately with others, dealing appropriately with unexpected demands, and securing assistance from others. There was no explanation or description provided by the GP. The appellant has good functioning with her immediate social network and marginal functioning with her extended social network, with no explanation provided. In her Request for Reconsideration, the appellant wrote that: She has many disabilities that cause her great pain and stress and anxiety. Her daughter is going through turmoil that causes stress to the appellant. Daily Living Activities (DLA) In the MR, the GP reported: The appellant has not been prescribed any medication and/or treatments that interfere with her ability to perform DLA.
The appellant is continuously restricted with the personal self care DLA, the meal preparation DLA, the management of medications DLA, the basic housework DLA, the daily shopping DLA, the mobility inside and outside the home DLA, the use of transportation DLA, and the management of finances DLA. Regarding the degree of restriction, the GP wrote: “can’t lift over 5 lbs.” In the AR, the SW reported: In the AR, the appellant is assessed as taking significantly longer than typical with walking indoors and with walking outdoors, with the comment “not supposed to walk too much” and not requiring the assistance of another person or the use of an assistive device. The appellant is independent and does not require assistance with all of the tasks for several DLA, specifically: the personal care DLA, the meals DLA, the pay rent and bills DLA, and the transportation DLA. For the basic housekeeping DLA, the appellant takes significantly longer than typical with laundry and basic housekeeping, with notes by the SW that the appellant “cannot carry more than 5 lbs.” and “not too to do.” Regarding the shopping DLA, the appellant is independent with the tasks of reading prices and labels, making appropriate choices, and paying for purchases, and takes significantly longer with going to and from stores and carrying purchases home. The comment provided is that the appellant does not drive, and she cannot carry more than 5 lbs Additional comments are that the appellant “requires daughter to help with laundry; would require help with grocery shopping.” For the medications DLA, the appellant takes significantly longer with filling/refilling prescriptions, with the comment “bubble pack and delivered” and is independent with taking as directed and safe handling and storage. In her Request for Reconsideration, the appellant wrote that: Walking is very painful and she has no funds for rides so it is difficult for her to get to appointments or shopping. Her daughter can no longer help her with chores or shopping or to get her to appointments as she is going through turmoil in her life. It takes her 8 to 10 times longer to do any of her DLA. She needs help with her DLA. Need for Help The SW reported in the AR that help required for DLA is provided by family and, with no further comments provided. The SW identified a cane as an assistive devices being used by the appellant. She does not have an assistance animal. Additional information In her Notice of Appeal dated August 10, 2017, the appellant expressed her disagreement with the ministry’s reconsideration decision and she wrote that she feels she is eligible for many reasons. She cannot get to appointments, etc. She cannot get over-the-counter medications that she needs for the side effects of the medications. Some medications are not covered. She needs a heart healthy diet. She is eating from the food bank (not heart healthy). At the hearing, the appellant stated: She had wanted to get additional information but her doctor charges for all the forms to be completed and will only deal with one issue at a time. He is only available 2 days per week and she often cannot get to an appointment because her back is too sore.
She was recently diagnosed with IBS [Irritable Bowel Syndrome] but it costs $35 for the doctor to write a letter. She used to get help from her daughter with vacuuming and doing the laundry but her daughter is having some difficulties and does not help anymore. Her life is filled with stress. She feels like she is 20 years older than her actual age. She is trying to live a normal life, but it is very hard for her. Her life is a mess, but she does the best that she can. She is sick from anxiety. She gets headaches, constipation or diarrhea as side effects from her medications. She gets her medications delivered because it is hard for her to get out to pick them up. She cannot afford over-the-counter medications. She has hip pain that goes down her leg, past her knees. Her doctor says there is nothing wrong with her hip, but she knows that there is. She has osteoarthritis in her upper back, which gives her neck pain and headaches. She has not complained to her doctor about her back because there are so many other things wrong, like her lungs and her heart. She can only stand for a few minutes to do the dishes. She cannot stand or sit in one position for too long. She needs to move around so that her back does not “seize up” on her. She had a heart attack and she is out of breath all the time. She is afraid to go up stairs or do anything. It is hard for her to do the floors or vacuuming, etc. and it takes her a long time. She has also been told she has ADHD [Attention Deficit Hyperactivity Disorder] because it is hard for her to keep focused on anything. She gets anxiety because when she had a heart attack she thought she was just having heart burn. So now, when she gets heart burn, she thinks she is having another heart attack. She is living off the food bank or soup kitchens and she is supposed to be on a heart healthy diet. She is also supposed to be doing exercises for her heart but she cannot get to the other community where these classes are offered. She has no money for a cab or the bus. She is afraid to do things, or it hurts too much. She has coronary artery disease and she has been told she still has one artery that is 100% blocked and two that are 40% blocked. There is no further surgery currently planned. She has to take medication for the rest of her life. The blood thinners cause her to bruise very easily. She uses a cane sometimes but not all the time. Her difficulty walking is due to the problems with her back. The ministry did not attend the hearing and relied on the reconsideration decision. Admissibility of Additional Information The panel considered the information in the appellant’s oral testimony, for the most part, as being in support of, and tending to corroborate, the impact from medical conditions referred to in the PWD application and the Request for Reconsideration, which were before the ministry at reconsideration. Therefore, the panel admitted this additional information in accordance with Section 22(4)(b) of the Employment and Assistance Act. The panel did not admit the appellant’s information about being recently diagnosed with IBS or ADHD as this was not included in the PWD application or the Request for Reconsideration and was not before the ministry at reconsideration.
PART F – Reasons for Panel Decision The issue on appeal is whether the ministry's reconsideration decision, which found that the appellant is not eligible for PWD designation, was reasonably supported by the evidence or was a reasonable application of the applicable enactment in the circumstances of the appellant. The ministry found that the evidence does not establish that the appellant has a severe mental or physical impairment and that her DLA are, in the opinion of a prescribed professional, directly and significantly restricted either continuously or periodically for extended periods. Also, it could not be determined that, as a result of those restrictions, the appellant requires the significant help or supervision of another person, the use of an assistive device, or the services of an assistance animal to perform DLA. The criteria for being designated as a PWD are set out in Section 2 of the EAPWDA as follows: Persons with disabilities 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 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). The EAPWDR provides as follows: 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. Part 1.1 — Persons with Disabilities 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). Severe Physical Impairment In the reconsideration decision, the ministry was not satisfied that the information provided establishes a severe physical impairment. The ministry acknowledged that the appellant was diagnosed by the GP with severe IHD with 100% occlusion and an artery stent, and MI in April 2017, as well as COPD with an onset in November 2011 that causes increased tiredness as it is “not optimally treated,” and she has decreased mobility with increased fatigue, weakness and lack of energy. Asked to describe the mental or physical impairments that impact the appellant’s ability to
manage DLA, the SW wrote: “there are three main areas of concern: lungs (COPD), heart (currently has a stent and depending on a test may need other procedures), and scoliosis (back).” In discussing the appellant’s mobility and physical ability, the SW commented that the appellant is limited by COPD, CHF and osteoarthritis (back). In her Request for Reconsideration, the appellant wrote that she has many disabilities that cause her great pain, including scoliosis in her lower back, which sends shooting pains down to her knees, and arthritis in her upper back and neck, which is also very painful. The GP did not diagnose problems with the appellant’s back, either scoliosis or osteoarthritis, and the appellant stated at the hearing that she is only able to deal with one issue at a time during an appointment with the GP and her appointments are very infrequent. A diagnosis of a serious medical condition or conditions does not in itself determine PWD eligibility or establish a severe impairment. An “impairment” is 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. To assess the severity of an impairment, the ministry must consider the nature of the impairment and the extent of its impact on daily functioning. The ministry considered the impacts of the appellant’s diagnosed medical conditions on her daily functioning, beginning with the assessments provided in the MR and the AR. The ministry wrote that the GP reported in the MR that the appellant is able to walk 1 to 2 blocks unaided on a flat surface, climb 5 or more steps unaided, lift 15 to 35 lbs., and remain seated 1 to 2 hours. The GP reported that the appellant is continuously restricted with her mobility inside and outside the home, and the ministry considered that the GP reported, regarding the degree of restriction, that the appellant “can’t lift over 5 lbs.” The information from the GP regarding lifting ability is inconsistent, as is the comment by the GP that the appellant “must take elevator/ can’t take stairs” when she is assessed as being able to climb 5 or more steps unaided. The ministry considered that the SW commented in the AR that the appellant is “not to lift anything over 5 lbs.” The ministry also considered that the GP reported that the appellant does not require an aid for her impairment, while the SW indicated that the appellant uses a cane. The SW assessed the appellant as taking significantly longer than typical with all aspects of mobility and physical ability, without indicating how much longer than typical it takes the appellant, and with no indication of the need for assistance by another person or the use of an assistive device. The panel finds that the ministry reasonably placed less weight on the information from the SW as the SW assessment was done during one visit when the appellant was in the hospital for her MI and her functioning would be expected to improve with recuperation. For the ministry to be “satisfied” that an impairment is severe, the panel considers it reasonable for the ministry to expect that the information provided by the medical practitioner and prescribed professional presents a comprehensive overview of the nature and extent of the impacts of the medical conditions on daily functioning, including by providing the explanations, descriptions or examples in the spaces provided in the MR and in the AR forms. In her Request for Reconsideration, the appellant wrote that she cannot sit long, about 10 minutes at a time, and she cannot stand longer than 10 minutes without being in a lot of pain. The appellant wrote that she finds that walking is very painful and she clarified at the hearing that the pain is caused by problems with her back. The appellant also stated at the hearing that she has osteoarthritis in her upper back, which gives her neck pain and headaches, but she has not complained to her doctor about her back because there are so many other things wrong, like her lungs and her heart. The appellant explained that her doctor is only in town 2 days a week and only deals with one issue per appointment, so it is very hard to get everything looked at. The appellant stated that she wanted to provide additional information from the GP to address these other issues but there was no additional information provided on the appeal.
Given the assessment by the GP in the MR of physical functioning in the moderate range of functional skills limitations, with some inconsistencies regarding lifting ability and climbing stairs, and the assessment by the SW of no need for assistance or the use of an assistive device, and no further information from the GP provided on the appeal, the panel finds that the ministry reasonably determined that there is not sufficient evidence to establish that the appellant has a severe physical impairment under Section 2(2) of the EAPWDA. Severe Mental Impairment In the reconsideration decision, the ministry was not satisfied that the information provided was sufficient evidence of a severe mental impairment. The ministry considered that the GP did not diagnose a medical condition giving rise to a mental impairment and the GP reported that the appellant has no significant deficits in cognitive and emotional functioning. While the SW reported impacts to daily cognitive and emotional functioning, including major impacts in the areas of attention/concentration, memory, motivation, and motor activity, the ministry reasonably placed less weight on the assessments of the SW when a discrepancy was found, as previously discussed under the severity of the physical impairment. The appellant wrote in her Request for Reconsideration that she has many disabilities that cause her great pain and stress and anxiety. At the hearing, the appellant stated that she is trying to live a normal life, but it is very hard for her. She is sick from anxiety. She feels that “her life is a mess,” but she does the best that she can. The ministry wrote that the GP reported the appellant has no difficulties with communication and the SW indicated that her ability to communicate is good or satisfactory in all areas. In the MR, the GP assessed no restrictions to the appellant’s social functioning and, in the AR, the SW reported that the appellant is independent in all aspects, with good functioning in her immediate social network and marginal functioning in her extended social network. The ministry considered that the SW did not indicate that the appellant requires help to maintain her in the community. Given the absence of a definitive diagnosis of a mental health condition and the lack of evidence of significant impacts to the appellant’s cognitive and emotional and social functioning, the panel finds that the ministry reasonably determined that a severe mental impairment was not established under Section 2(2) of the EAPWDA. Restrictions in the ability to perform DLA In the reconsideration decision, the ministry was not satisfied that the appellant has a severe physical or mental impairment that, in the opinion of the prescribed professional, directly and significantly restricts DLA either continuously or periodically for extended periods of time. Section 2(2)(b) of the EAPWDA requires that a prescribed professional provide an opinion that an applicant’s severe impairment directly and significantly restricts her ability to perform DLA, either continuously or periodically for extended periods. In this case, the GP and the SW are the prescribed professionals. DLA are defined in Section 2(1) of the EAPWDR and are also listed in the MR and, with additional details, in the AR. Therefore, a prescribed professional completing these forms has the opportunity to indicate which, if any, DLA are significantly restricted by the appellant’s impairment continuously or periodically for extended periods. In the reconsideration decision, the ministry reviewed the information provided in the MR and wrote that the GP indicated that the appellant has not been prescribed medication/treatment that interferes with her ability to perform DLA. The ministry considered that the GP is restricted continuously with all
listed DLA with the exception of social functioning; however, when asked to describe the degree of restriction, the GP wrote that the appellant is unable to lift over 5 lbs. The GP had also reported physical functional skill limitations in the moderate range, including the ability to lift 15 to 35 lbs., walk 1 to 2 blocks unaided, and climb 5 or more steps unaided. The ministry reviewed the comment by the GP that the appellant needs “assistance from [her daughter] for DLA” and wrote that there is insufficient information to establish that the assistance is required for all aspects of the appellant’s DLA. The ministry considered that the SW reported in the AR that the appellant takes significantly longer than typical with some tasks of DLA (walking indoors/outdoors, laundry, basic housekeeping, going to and from stores, carrying purchases home, and filling/refilling prescriptions), but does not provide information in the AR about how much longer it takes the appellant. The appellant wrote in her Request for Reconsideration that it takes her 8 to 10 times longer to do any of her DLA and she needs help with her DLA; however, there was no further information provided from a prescribed professional regarding how much longer it takes the appellant. The SW also did not assess the appellant as requiring the assistance of another person or the use of an assistive device with any tasks of the listed DLA. The SW commented that the appellant “requires daughter to help with laundry; would require help with grocery shopping,” with no further explanation or description of the degree of assistance required, whether continuous or periodic for extended periods of time. In her Request for Reconsideration, the appellant wrote that walking is very painful and she has no funds for rides so it is difficult for her to get to appointments or shopping. She wrote that her daughter can no longer help her with chores or shopping or to get her to appointments. At the hearing, the appellant stated that she can only stand for a few minutes to do the dishes, she needs to move around so that her back does not “seize up” on her, and it is hard for her to do the floors or vacuuming, etc. and it takes her a long time. Given the inconsistencies between the GP’s report of continuous restrictions with all but one DLA but only moderate limitations to the appellant’s functional skills, and the SW’s report of independence with DLA, with some tasks taking the appellant longer without a description by the prescribed professional of how much longer it takes her, the panel finds that the ministry reasonably determined that the evidence is insufficient to show that the appellant’s overall ability to perform her DLA is significantly restricted either continuously or periodically for extended periods, pursuant to Section 2(2)(b)(i) of the EAPWDA. Help to perform DLA In the reconsideration decision, the ministry held that, as it has not been established that DLA are significantly restricted, it cannot be determined that significant help is required. Section 2(2)(b)(ii) of the EAPWDA requires that, as a result of being directly and significantly restricted in the ability to perform DLA either continuously or periodically for extended periods, a person must also require help to perform those activities. That is, the establishment of direct and significant restrictions under section 2(2)(b)(i) is a precondition of meeting the need for help criterion. Help is defined in subsection (3) as the requirement for an assistive device, the significant help or supervision of another person, or the services of an assistance animal in order to perform a DLA. While the SW reported that the appellant receives help from family and uses a cane, as the ministry reasonably determined that direct and significant restrictions in the appellant’s ability to perform DLA have not been established, the panel finds that the ministry also 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 pursuant to Section 2(2) of the EAPWDA, was reasonably supported by the evidence. The panel therefore confirms the ministry’s decision. The appellant’s appeal, therefore, is not successful.
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