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 May 11, 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 August 22, 2016 the ministry received the appellant’s PWD application comprised of a Physician
Report (PR) and an Assessor Report (AR) completed by the appellant’s General Practitioner (the
“Physician”) on August 15, and the appellant’s Self-report (SR) dated July 25, 2016.
The appellant’s request for PWD designation was denied on December 8, 2016. On January 10,
2017 the appellant requested a reconsideration, and on May 2, 2017 the appellant submitted her
signed request for reconsideration form. The appellant also provided the following:
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Statement setting out the appellant’s reconsideration information (RFR)
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Hospital assessment information October 13, 2015 (the “2015 Assessment”)
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Mental Health Assessment completed by a RPN dated March 20, 2017 (the “Mental Health
Assessment”) with a progress note from October 13, 2015 (the “2015 Progress Note”)
On May 18, 2017, the tribunal received the appellant’s Notice of Appeal.
Summary of relevant evidence
Diagnoses
In the PR, the Physician diagnoses the appellant with epilepsy (onset July 2012).
Physical Impairment
The 2015 Progress Note indicates that the appellant reported the onset of seizure activity about three
years earlier. It also notes that the appellant had not had a “full” seizure for some time, but had
residual spasms in her right hand/arm and “twitches” in the right side of her face. It indicates that the
appellant completed her paperwork using her left hand but placed the pen in her right hand to sign
the documents.
In the Health History portion of the PR, the Physician indicates that the appellant has right arm
weakness, has had no seizures since New Year’s. The Physician also indicates that the appellant
has no other disability but that her right arm is not working and she had to learn to use her left hand.
In the PR 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, has no limitations with respect to lifting, and no
limitation with remaining seated.
In the AR the Physician indicates that the appellant is independent with walking indoors, walking
outdoors, climbing stairs and standing, but requires continuous assistance from another person with
lifting and carrying and holding, indicating that these tasks takes significantly longer because she has
to use just her left hand and she is right-handed. He states that she has to use her left hand even to
write.
In the SR, the appellant states that she has severe spasms in her dominant (right) hand/arm and
suffers from limited strength, stamina, and severely limited motor function in her right hand. The
appellant states that her seizures can occur as frequently as every half hour.
In the RFR, the appellant states that she has constant fatigue, shortness of breath, heart racing and
palpitations, hypertension interspersed with dizzy spells and weakened immune system that causes
frequent bouts of cold/flu outbreaks that in turn result in asthma attacks and wheezing.
Mental Impairment
In the 2015 Progress Note, the appellant reported that she had always “swallowed” her emotions
rather than dealing with them. She was recommended to seek supportive counselling to explore past
issues.
In the PR, the Physician indicates that the appellant does not have any significant deficits with
cognitive and emotional function.
In the AR, the Physician indicates that the appellant’s ability to communicate with speaking, reading,
and hearing are good, but that her writing is poor as she has to use her left hand. The Physician
indicates that the appellant has moderate impact in the area of bodily functions and no impact in the
other listed areas of cognitive and emotional functioning. The Physician comments that the appellant
has to use her non-dominant hand for all DLA, which is very difficult.
In the RFR, the appellant states that she has had chronic depression since childhood, which
escalated to suicidal tendencies as diagnosed by the Physician in February 2017 and referrals to
community mental health programs. The appellant states that it is difficult to obtain psychiatric
treatment as she lives in a small community and has no transportation. The appellant states that she
suffers from insomnia and interrupted sleep, restlessness, constant fatigue, severe depression,
anxiety and stress, which also cause increased isolation and feeling alone and unimportant.
The Mental Health Assessment indicates that the Physician referred the appellant for assessment of
her depression. The appellant reported depressive symptoms on and off since her teenage years.
The appellant stated that she was not anxious, just tired and bland, with her sleep averaging 6-10
hours per night. The 2017 Assessment indicates that the appellant was experiencing an increase in
depressive symptoms, and was waitlisted for an appointment with a psychiatrist.
DLA
In the PR the Physician indicates that the appellant has not been prescribed any medications that
interfere with her ability to perform DLA. In the PR the Physician indicates that the appellant has
continuous restrictions with DLA of personal self-care, meal preparation, basic housework and daily
shopping but is not restricted with management of medications, mobility inside the home, mobility
outside the home, use of transportation, management of finances or social functioning. The
Physician comments that the appellant has to use her left hand, which takes more time to do things.
In the AR, the Physician indicates that the appellant is independent with all aspects of DLA but that
she takes significantly longer than typical with dressing, grooming, bathing, toileting, feeding self,
laundry, basic housekeeping, carrying purchases home, meal planning, food preparation, cooking,
and safe storage of food. The Physician comments that the appellant is using her non-dominant
hand, which takes time.
With respect to social functioning, the Physician indicates that the appellant has good functioning with
respect to her immediate and extended social networks.
In the SR, the appellant states that she cannot use her right hand at all, which makes most of her
living activities take much longer. She states that she cannot really chop food or peel fruit or
vegetables with one hand. She states that she has difficulty lifting food from the cupboard to counters
because she can only use her left hand. She states that she cannot afford healthy food and is not
motivated to eat. She states that shopping and putting groceries is very difficult with one hand. Due
to her seizures, her driver’s license was taken away. She states that housekeeping, personal
hygiene, and self-care tasks are very difficult because she can only do tasks one-handed. The
appellant also states that her mental and emotional skills are not so good because she is coping with
anxiety, agitation, and depression. She states that she has low motivation for interacting with friends,
family, strangers, or the public and asking for help is difficult for her to do.
In the RFR, the appellant states that her lack of energy, combined with the loss of use of her
dominant arm and hand make DLA including dressing, personal hygiene, cooking and cleaning
difficult if not impossible.
Need for Help
In the PR, the Physician indicates that the appellant’s friend occasionally helps with DLA if they visit.
In the AR, the Physician indicates that the appellant has help from friends. The appellant does not
have an Assistance Animal.
The Mental Health Assessment indicates that the appellant has been placed on a wait list for
consultation with a psychiatrist.
Additional information provided
In her Notice of Appeal dated May 18, 2017, the appellant states that her case manager has set up a
specialized assessment, which is needed for a proper appeal.
The day before the hearing, the appellant provided the following:
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Written submission with her argument as to why the reconsideration decision was not
reasonable (the “Submission”)
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Letter from the Physician dated August 31, 2017 providing additional information regarding the
impacts of the appellant’s impairment (the “Physician Letter”). The Physician states that the
appellant has a severe physical impairment due to right hand weakness and impact to her
psychological function due to depression. The Physician indicates that the appellant is
significantly restricted from performing DLA on a daily basis due to her right hand weakness
that is constant and never gets better. The Physician indicates that the appellant’s DLA of
washing, getting dressed, and feeding are restricted
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Copy of the Mental Health Assessment
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Employability Assessment completed by a Vocational Rehabilitation Specialist dated June 20,
2017 (the “ Employability Assessment”)
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The Employability Assessment indicates that the appellant receives periodic assistance from
her roommates but they are often not home or gone most of the day. The Employability
Assessment indicates that the appellant requires weekly, long term counseling to assist her
with symptoms of depression and anxiety, as well as accommodations and ongoing support for
symptoms of depression, anxiety and mobility issues. The Vocational Rehabilitation Specialist
recommends that the appellant share the Employability Assessment with the Physician and re
apply for PWD designation, that she attend long-term counseling, have an assessment with an
Occupational Therapist for exercises that may help improve the functionality of her right upper
extremity, access employment services/supports.
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Mayo Clinic internet printout about depression
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Appellant’s statement dated August 30, 2017 indicating that her day to day life has become
increasingly restrictive, that dressing is a painfully slow process, that she snacks rather than
cooks as her roommates are not always home to help her open bottles, cans and/or packages.
She states that shopping is a grave and exhaustive chore as it involves getting out of the
house, to the store, focusing on what she needs, and getting it back home. The appellant
states that having always been very outgoing and independent, she now feels isolated and
useless as she cannot accomplish simple tasks such as peeling a potato, or enjoy hobbies
such as writing or crocheting. The appellant states that she rarely sees friends, has no family
or partner, and hates to constantly impose on her roommates (the “Tribunal Statement”)
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Copy of the RFR
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Interpretation Act [RSBC 1996] CHAPTER 238, sections 8 and 9
At the hearing, the appellant provided the following additional documentation:
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Letter from the owner of the townhouse in which the appellant resides, undated (the “Owner”),
indicating that the appellant has been a roommate there for one year and he has seen her
struggle with her right arm and hand on a daily basis. The Owner states that the appellant
“…has no use of her right, dominant hand, the simple task of opening a tin, can or packet of
any kind, is such a struggle for her, that I feel frustrated for her”. The Owner states that even
opening the front door is a dilemma for her, learning to write with her left hand is a challenge
and she struggles with her keys, unlocking the door, and has to bring in items one at a time,
before being able to close the door.
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Typed letter from the advocate providing his interpretation of the Physician’s letter dated
August 31, 2017
At the hearing, the appellant’s advocate stated that the appellant has had a sharp decline in the use
of her dominant hand and increased depressive symptoms. The advocate explained that they tried to
obtain the new information provided earlier but were unable to do so.
At the hearing, the appellant stated that her right hand is getting worse and although she has
sensation in her hand, she cannot move it or grip anything. The appellant stated that her depression
and fatigue cause her to sleep 9-12 hours per day and she rarely gets up before lunch. It is hard to
dress and do anything with just one hand and learning to write with her left hand was a huge effort.
The appellant states that she has to bring items into her home one at a time and that some tasks just
do not get done because all of her tasks take so much longer than typical. She stated that on a bad
day she sometimes does not even get out of bed. She states that her depression was not initially
reported to the Physician because she was dealing with her right hand issues but that the Physician
is now aware of her psychological issues and referred her for the Mental Health Assessment.
Admissibility of New Information
The ministry objected to the new evidence as the minister did not have an opportunity to review the
new information prior to arriving at the reconsideration decision.
The panel has admitted the new information in accordance with section 22(4) of the Employment and
Assistance Act as it is oral and written testimony in support of the information and records that were
before the minister when the reconsideration decision was made. In particular, the new information
tends to support information regarding the appellant’s diagnosed impairments of epilepsy, loss of right
hand mobility and depression and the impacts of those impairments on her DLA,
The panel has accepted the Submission as argument.
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 PR 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’s position is that she has a severe physical impairment due to the loss of mobility and
use of her right hand. The appellant’s advocate argues that the ministry has not correctly interpreted
the Physician’s information, as the minister has not considered the combination of the appellant’s
non-functioning dominant hand and her depression.
In the Submission, the advocate indicates that in the PR, the Physician indicates that the appellant
has right arm weakness and she has had to learn to use her left hand and that in the Physician’s
Letter he indicates that she has a severe physical impairment due to weakness in her right arm. The
advocate notes hat the Vocational Rehabilitation Specialist states that the appellant reports right arm
spasms that are sporadic, typically 2-3 every 3 days, and are sometimes triggered by stress, and that
in the Tribunal Statement, the appellant reports that the immobility of her right, dominant arm has
become permanent, even without the spasms occurring. The appellant’s position is that the
information provided demonstrates that she has a severe physical impairment and applying the
Interpretation Act in a broad and liberal manner would result in a finding that she qualifies for PWD
designation.
The appellant argues that throughout the reconsideration decision, the ministry repeatedly relies on
the term “physical functioning” rather than “physical impairment” in assessing the severity of the
appellant’s disabilities. The appellant argues that the legislative language of the EAPWDA requires
that a severe physical or mental impairment be established and that the term “physical functioning is
not a defined term in the legislation. The appellant’s position is that the ministry’s reliance on
“physical functioning” overemphasizes the significance of functional restrictions such as walking,
climbing stairs, and lifting rather than considering the severity of the appellant’s physical impairment
in its entire context. The appellant argues that the ministry overemphasizes that the appellant has a
functional left hand and places inadequate weight on the combination of the appellant’s non-
functioning right hand and her serious depression, the totality of which results in the appellant
suffering a severe impairment, which she copes with as best she can by using her non-dominant left
hand.
The ministry’s position is that the PR, AR and other medical documentation do not establish a severe
physical impairment. The ministry notes that the Physician’s assessment of the appellant’s functional
skills in the PR is not indicative of a severe physical impairment. In particular, the ministry notes that
the Physician does not describe restrictions to the functionality of the appellant’s left arm/hand and
determined that the appellant has some ability to lift and carry with her left arm/hand. The
reconsideration decision indicates that as the appellant has functionality with the use of her left
arm/hand, it is difficult to establish that she requires continuous assistance from another person with
lifting and carrying/holding. The ministry also notes that the Physician does not describe how much
longer than typical the appellant takes with lifting and carrying/holding and that he indicates that she
is independent with the majority of listed areas of mobility and physical ability.
The PR indicates that the appellant can walk 4+ blocks unaided, can climb 5+ steps unaided, has no
limitations with lifting and no limitation with remaining seated. While the Physician confirms that the
appellant has right arm/hand weakness and has to use her left hand, he does not indicate, in the PR
that she has limitations with respect to lifting. In the AR, the Physician indicates that the appellant
requires continuous assistance with lifting and carrying and holding and that she takes significantly
longer than typical, as she has to use her left hand. However, the Physician does not describe how
much longer than typical it takes her with lifting and carrying and holding. In addition, the information
in the PR and the AR is not consistent with respect to the appellant’s restrictions with lifting and
carrying and holding and the Physician has not provided any information to explain the inconsistency.
The panel notes that employability is not a criterion for designation as PWD but that the Employability
Assessment does provide additional information regarding the appellant’s mobility and physical
ability. In the Employability Assessment, the Vocational Rehabilitation Specialist indicates that the
appellant demonstrated reduced grip and was functionally limited in her ability to handle and
manipulate objects with her right hand using medium manual dexterity. However, the Employability
Assessment also indicates that the appellant demonstrated the ability to bilaterally and unilaterally lift
between floor to waist, waist to shoulder and floor to shoulder level on an occasional basis within the
Sedentary Strength category as defined by the National Occupational Classification. The
Employability Assessment indicates that the appellant was not limited in her ability to sit, stand or
walk throughout the assessment. The Employability Assessment also indicates that the appellant
demonstrated the ability to kneel on a sustained and intermittent basis and to squat on a repetitive
basis with progressive loads.
The Vocational Rehabilitation Specialist recommended that the appellant share the Employability
Assessment with the Physician and complete a new PWD application taking all of the information into
account.
The appellant did not complete a new PWD application but instead provided the Physician Letter, in
which the Physician provides further information stating that the appellant has a severe physical
impairment due to right hand weakness, that the weakness is constant, never gets better, and that
she takes a long time due to inability to use her right hand. However, the Physician does not provide
additional information describing how long the appellant takes with various tasks and he does not
provide further information regarding her functional limitations.
While the appellant clearly has limited use of her right hand, she has the use of her left hand and the
information regarding her ability with respect to lifting and carrying and holding is inconsistent. The
panel does not accept that the ministry placed undue emphasis on the appellant’s functional left hand
as the reconsideration decision indicates that the ministry considered all of the information before it at
the time of reconsideration. The additional information provided in the Physician Letter does not
provide any significantly different information than that in the PR or the AR and the Employability
Assessment indicates a significant level of independence and functional ability.
Based on the information provided, the panel 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 the Mental Health Assessment confirms that she is experiencing an increase in
depressive symptoms and as the Physician, in the Physician Letter, now confirms that she has
impairment in her psychological function due to depression. The appellant states that her self-reports
of impact from her depression are supported by the Vocational Rehabilitation Specialist, who notes
that she has severe symptoms of anxiety and depression with major impact on her functioning. The
appellant’s advocate argues that the ministry has not correctly interpreted the Physician’s information,
as the minister has not considered the combination of the appellant’s non-functioning dominant hand
and her depression.
The ministry’s position is that the information provided is not evidence of a severe mental impairment.
In particular, the reconsideration indicates that the Physician, in the PR, indicated that the appellant
did not have any difficulties with communication and no significant deficits with cognitive and
emotional functioning. The ministry notes that in the AR, the Physician indicates that the appellant
has moderate impacts to cognitive and emotional functioning in the area of bodily functions, but no
impacts to the remaining 13 listed areas of cognitive and emotional functioning. The ministry’s
position is that restrictions to the functionality of the appellant’s right hand are not indicative of
impairment of mental functioning. The reconsideration decision also notes that the Physician
indicates that the appellant is independent with all listed areas of social functioning, and has good
functioning with both her immediate and extended social networks.
The reconsideration decision also indicates that the ministry considered the Mental Health
Assessment, which indicates that the appellant was experiencing increased depressive symptoms,
but that her level of suicide risk was mild. The ministry notes that the RPN does not describe the
severity of impacts to emotion, fatigue, interest, concentration, or appetite in the Mental Health
Assessment. The ministry’s position is that the Mental Health Assessment may represent a
temporary exacerbation to symptoms of depression and that when considered with the information in
the PR and the AR, it is difficult to establish a severe impairment of mental functioning.
In the PR, the Physician does not make a diagnosis of depression and the information provided
indicates no impacts to significant deficits with cognitive and emotional function. The AR indicates
moderate impact in the area of bodily functions only and no impact to the remaining 13 areas of
cognitive and emotional function. In the AR the Physician indicates that the appellant has good
functioning with respect to her immediate and extended social networks. While the Mental Health
Assessment indicates that the Physician referred the appellant for assessment of increasing
depressive symptoms, the Mental Health Assessment indicates that the appellant reported that she is
not anxious, but just tired and bland. The appellant reported sleeping an average of 6-10 hours per
night with occasional daytime naps, that her interest varies, that her appetite was reduced and that
she was writing a column for a local paper and finds it difficult to meet deadlines.
The information in the Employability Assessment is somewhat inconsistent. On the one hand, it
indicates that the appellant has major depression with major impact to motivation. However, she was
assessed with mild impact to her functioning of attention/concentration and executive function and
moderate impact to her memory. The Employability Assessment indicates that the appellant reported
poor relationships with respect to her immediate and extended social networks.
The new information in the Physician Letter indicates that the appellant has impairment in her
psychological function due to depression, but the Physician has not provided any further information
regarding the severity of impairment. The Physician has also not provided any further information
regarding the impact to the appellant’s relationships and the information in the AR and the
Employability Assessment is completely different in this regard.
The PR indicates that the appellant has not been prescribed any medication that interferes with her
ability to perform DLA. The Employability Assessment indicates that the appellant was prescribed
medication for depression but stopped taking it and that depression can be greatly improved with
medication. The appellant states that she stopped taking the medication because it bothered her
stomach and that the medication issue has yet to be worked out.
While the appellant’s depressive symptoms may have increased since the time the PR and AR were
completed, the additional information provided in the Physician Letter does not indicate a severe
mental impairment. The inconsistencies between the Employability Assessment and the information
from the Physician, even considered in a broad and liberal manner as required by the Interpretation
Act, make it difficult to determine the severity of the appellant’s mental impairment.
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.
In the Submission, the advocate states that the appellant should not suffer due to the under-reporting,
which led to a negative result of the original application. The advocate states that there was a
misunderstanding of the process whereby the appellant wasn’t thinking about her “worst day”. The
appellant has since provided her RFR and Tribunal Statement. The appellant’s position is that the
information provided, when considered in a broad and liberal manner, demonstrates that she has
restrictions with DLA. In particular, the appellant points out that in the PR, the Physician indicates that
she has restrictions with personal self-care, meal preparation, basic housework, and daily shopping.
The appellant also relies on the Physician Letter, in which he states that the appellant is restricted in
washing, getting dressed, and feeding, that her right hand weakness is constant and never gets
better. The appellant also points out that the Vocational Rehabilitation Specialist states that the
appellant is limited on a daily basis by her inability to use her right arm, which prevents her from
performing many DLA.
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 PR, the Physician indicates that the
appellant is continuously restricted with personal self-care, meal preparation, basic housework, and
daily shopping as she has to use her left arm/hand which takes more time to do things. However the
ministry states that the Physician has not described how much longer than typical the appellant takes
in performing the DLA that are restricted and the information suggests that the appellant is capable of
completing those DLA with her left hand. The ministry notes that in the AR, the Physician indicates
that the appellant is independent with all aspects of DLA but takes significantly longer than typical
with dressing, grooming, bathing, toileting, feeding self/regulating diet, laundry, basic housekeeping,
all aspects of meals and carrying purchases home. However, the ministry states that the Physician
does not describe how much longer than typical the appellant takes with her DLA. The ministry finds
that although the appellant is slower than typical with some areas of DLA, she is able to perform all
listed activities by using her left arm/hand. The ministry’s position is that it is difficult to establish
significant restrictions to DLA.
The panel notes that the information provided in the PR and the AR makes it difficult to obtain a clear
picture of the appellant’s restrictions with DLA. While the Physician indicates in the PR that the
appellant is continuously restricted with DLA of personal self-care, meal preparation, basic
housework and daily shopping, in the AR the Physician indicates that the appellant is independent
with all listed aspects of DLA. While the Physician indicates in the AR that the appellant takes
significantly longer than typical with dressing, grooming, bathing, toileting, feeding self/regulating diet,
laundry, basic housekeeping and carrying purchases home, he does not provide any information on
how much longer than typical the appellant takes and does not indicate that she requires either
periodic or continuous assistance from another person with DLA, only commenting that she is using
her non-dominant hand and it takes time.
The appellant’s reports of her restrictions and difficulties performing DLA are much more significant
than indicated by the Physician and while the advocate argues that the appellant should not suffer
because of under reporting her symptoms, the ministry can only assess the PWD application based
on the information in the application.
The Employability Assessment indicates that it takes the appellant significantly longer, up to 10 times
as long each day with dressing, grooming, bathing, toileting, feeding self, transfers (in/out of bed) and
transfers (on/off chair), secondary to loss of mobility with right arm. However, the Vocational
Rehabilitation specialist does not provide further information to indicate whether the tasks take twice
as long, five times as long, or 10 times as long and/or how often the tasks take that much longer than
typical.
The Employability Assessment indicates that the appellant is unable to complete laundry most days
of the month and that with respect to basic housekeeping, she is only able to wipe and lightly wash
dishes, and takes up to 3 times longer each day of the month. The Vocational Rehabilitation
Specialist states that the appellant is unable to perform tasks that require two hands and that periodic
support is required and provided by the Owner. The Employability Assessment indicates that the
appellant is independent with driving short distances but is unable to travel longer distances
secondary to loss of mobility in her right arm and is unable to go to and from any stores at least 12
days out of each month secondary to symptoms of depression and fatigue. Periodic support is
required but not available. Carrying purchases home takes significantly longer and she requires
periodic support with carrying her groceries. While the information from the Vocational Rehabilitation
Specialist is more consistent with the appellant’s statements about her restrictions than the
information in the PR and the AR, the Vocational Rehabilitation Specialist does not indicate how the
assessment of restrictions to DLA was completed. The Vocational Rehabilitation Specialist specifies
results of functional capacity testing for the purposes of functional abilities but does not indicate
whether she tested and/or observed the appellant completing her DLA or whether the information
was based on self-reports from the appellant.
The additional information from the Physician in the Physician Letter states that the appellant is
restricted with washing, getting dressed and feeding but he does not provide any further information
to clarify the information provided in the PR or the AR and no information with respect to how much
longer it takes the appellant to perform the DLA with which she is restricted and he does not provide
any further information on assistance needed. The Physician does not provide any information or
comment on the information provided in the Employability Assessment and as the information
between the Physician and the Employability Assessment is quite different, it is difficult to get a clear
picture of the appellant’s restrictions with DLA.
In addition, in the SR, the appellant states that her driver’s license was taken away from her due to
her seizures, yet in the Employability Assessment, the Vocational Rehabilitation Specialist indicates
that the appellant is independent to drive short distances but is unable to travel longer distances.
This information is also inconsistent which makes it difficult to determine the appellant’s restrictions
with respect to the aspect of DLA relating to use of transportation.
The information provided by the Physician indicates that the appellant has good functioning with
respect to her immediate and extended social networks whereas the Employability Assessment
indicates that the appellant has poor relationships and that she requires periodic support developing
and maintaining relationships and securing assistance from others and requires continuous support
with interacting appropriately with others and dealing appropriately with unexpected demands. The
information provided by the Vocational Rehabilitation Specialist is not consistent with the information
provided by the Physician, who has been the appellant’s general practitioner since approximately
November 2015, and the Physician did not provide any additional information to clarify these
inconsistencies or changes in the level of the appellant’s restrictions to her social functioning.
Section 2(2) of the EAPWDA specifies that for the purposes of the legislation a “prescribed
professional” is one of the following: medical practitioner, registered psychologist, registered nurse or
registered psychiatric nurse, occupational therapist, physical therapist, social worker, chiropractor or
nurse practitioner. While the Vocational Rehabilitation specialist provides more information regarding
the time that it takes the appellant to perform DLA, the Vocational Rehabilitation Specialist does not
meet the definition of a prescribed professional, so the panel finds that the ministry has reasonably
determined that the independence with which the prescribed professional reports 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 the loss of use of her right hand
makes all tasks much harder, and it takes her longer to perform them. The appellant’s position is that
she also requires assistance and counseling due to her depression. She requires additional funds
and community supports to address her mental health. In the Submission, the advocate states that
depression is very complicated with varying symptoms and episodes and that at times the appellant
is barely functioning and unable to leave the house to attend to errands, so she needs significant
help, which is not often available.
The reconsideration decision indicates that the Physician has not indicated that the appellant requires
any prostheses or aids for her impairment, and is provided assistance by friends. The ministry’s
position is that because it has not been established that DLA are significantly restricted, it cannot be
determined that help is required.
In the PR, the Physician states that friends occasionally help with DLA if they visit. In the AR, the
Physician indicates that the appellant gets help from friends but does not provide any description of
help needed or requirements for any assistive devices. 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 from the Owner, he describes his observations of the appellant and how she struggles to
complete some tasks but he does not provide information regarding any help that he provides, or the
frequency or duration of help.
While the appellant clearly takes longer with some tasks due to the loss of use of her right hand,
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.
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