PART C – Decision under Appeal
The decision under appeal is the reconsideration decision of the Ministry of Social Development and
Poverty Reduction (the ministry) dated 22 June 2017, which denied the appellant designation as a
person with disabilities (PWD). The ministry determined that the appellant did not meet all of the
criteria for PWD designation set out in the Employment and Assistance for Persons with Disabilities
Act, section 2.
Specifically, the ministry determined that the information provided did not establish that the
appellant’s impairment, in the opinion of a medical practitioner, is likely to continue for at least 2
years; that the appellant has a severe mental or severe physical impairment; that a severe mental or
physical impairment, in the opinion of a prescribed professional, directly and significantly restricts her
ability to perform daily living activities (DLA) either continuously or periodically for extended periods;
and that as a result of those restrictions, she requires help to perform those activities.
The ministry found that the information provided did establish that the appellant has reached 18 years
of age.
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 information and records before the ministry at reconsideration consisted of the following:
1.
The appellant’s PWD Designation Application comprised of:
A Medical Report (MR) dated 22 February 2017, completed by the appellant’s physician
(MD) who has known the appellant for 4 months and has seen him 2-10 times in the past
12 months.
An Assessor Report (AR) dated 22 February 2017, completed by the appellant’s MD.
A Self Report (SR) dated 28 February 2017 completed by the appellant.
2.
Request for Reconsideration dated 27 April 2017, signed by the appellant, requesting an
extension.
3.
Reconsideration Submission dated 7June 2017, which included the following:
1-page cover letter dated 7 June 2017, from the appellant’s advocate;
1-page letter from the appellant’s MD dated 11 May 2017 (“May letter”). In this letter, the MD
states that the appellant is very lucky to be alive given the nature of his medical condition. The
appellant is 14 months post-surgery and is not recovered. The MD hopes the appellant’s
recovery will be 3-6 months, but “it may potentially take much longer and as many as 2 years
(or more). This is an estimate and truly unknown. Much will depend on his response to medical
therapy.”;
2-page letter from a Registered Nurse (RN) dated 7 June 2017 (“RN letter”). In this letter, the
RN explains that she is providing a re-assessment at the appellant’s request. She provides the
opinion that the appellant suffers from depression and anxiety as well as his physical
symptoms. The RN describes the appellant’s primary difficulty as shortness of breath, which
impacts his ability to communicate, most physical activities, concentration and executive
function. She states that he takes 4-5 times longer for physical activities. She explains that the
appellant’s condition affects his eating and sleeping, requiring that he eat small meals and
sleep on an incline. Lack of sleep, she says, compounds the appellant’s fatigue and
concentration problems. The RN says that the appellant requires rest periods of up to 45
minutes to regain his energy. The appellant is described as barely maintaining independence
as personal care and housekeeping activities take 3-4 times longer. She explained that the
appellant requires periodic assistance going to and from stores and continuous assistance
carrying purchases home. As well, the RN states that the appellant would benefit from a
scooter, walker, bedside urinal, and an adjustable bed so he can sleep at an angle. The RN
states that the appellant takes significantly longer with food preparation, banking, budgeting,
and refilling prescriptions and attributes this to deficits in concentration and attention. As well,
the RN states that the location of the appellant’s home prevents him from walking to the
nearest bus stop. The RN states that it takes the appellant 6 minutes to walk 50 feet and he is
a 3-4 on the New York Heart Failure Classification most days. The RN indicates that the
appellant’s condition has caused him to be socially isolated and he requires continuous
support developing and maintaining relationships as well as dealing with unexpected
demands. As well, she states that the appellant requires periodic support to interact
appropriately with others and secure assistance from others.; and
“Sample” Assessor Report form (“AR2”), unsigned and undated, completed by the RN (the
content of which is discussed below).
The panel will first summarize the evidence from the PWD Application and AR2 as it relates to the
legislative criteria at issue in this appeal.
Note: MD comments are indicated with italics and RN comments are indicated with “quotation marks”.
Diagnoses
In the MR, the MD diagnoses the medical conditions related to the appellant’s impairment as:
Type A aortic dissection; aortic vale replacement – onset March 2016
Hypertension – onset 2014
Duration
In the MR, the MD indicates that the appellant’s impairment is not likely to continue for two or more
years and comments: 6 months – he requires participation in
Severity of mental impairment
MR:
The MD does not provide a mental health diagnosis, reports that there are no difficulties with
communication and indicates that there are no significant deficits with cognitive and emotional
function.
AR:
The MD has completed the assessment of cognitive and emotional functioning assessment in the AR
and assesses moderate impacts in the areas of emotion and motivation. He assesses no impacts in
the remaining areas. The MD includes the comments: [appellant] is very anxious about his heart,
surgery, BP and symptoms. It will take time for that to improve.
The MD has assessed the appellant as independent for all social functioning areas (making
appropriate social decisions, etc.) in the AR. The MD indicates that the appellant has good function in
his immediate social networks and does not assess his functioning in extended networks,
commenting: I am not aware of this. The MD assesses the appellant’s ability to communicate as good
in all areas, including: speaking, reading, writing and hearing.
SR:
The appellant does not indicate that he has a mental impairment.
AR2:
The RN indicates that the appellant’s mental or physical impairments include depression and “anxiety
endorsed.”
The RN has completed the assessment of cognitive and emotional functioning assessment in AR2
and assesses a major impact in the area of bodily functions; moderate impacts in the areas of
consciousness, emotion, attention/concentration, executive, motivation and motor activity; minimal
impacts in the areas of insight and judgment, memory, language and other neuropsychological
problems. She assesses no impacts in the areas of impulse control, psychotic symptoms and other
emotional or mental problems. The RN includes the comments: “Eating [increases] SOB. Small meals
is best. May prepare rest period 45 mins. Visual issues on occasion.”
The RN has assessed the appellant as: independent in the social functioning area of appropriate
social decisions; requiring periodic support/supervision for interacting appropriately with others and
ability to secure assistance from others; and requiring continuous support/supervision for ability to
develop and maintain relationships (“socially isolation”) and ability to deal appropriately with
unexpected demands. The RN indicates that the appellant has very disrupted functioning in his
immediate social networks (“withdraws”). The RN’s assessment of the appellant’s functioning in
extended networks is illegible (“becomes too short of breath”).
The RN assesses the appellant’s ability to communicate as good in relation to hearing and poor for
speaking (“[illegible] worse day dyspnea daily”), reading (“2x longer needs to read”) and writing (“3x
longer”) and provides the comments: “needs to [illegible]”.
Severity of physical impairment
MR:
Under Health History, the MD indicates that the appellant has a 2 year history of hypertension that is
ongoing. As well, the MD indicates that the appellant was taken to hospital in March 2016 with chest
pain and hypertension. He underwent major emergency surgery for aortic valve replacement, with
aortic root repair and replacement of aortic arch and ascending aorta.
For functional skills, the MD indicates that the appellant is able to walk 2-4 blocks unaided, climb 5+
steps unaided, lift 7-16 kg unaided and remain seated without limitation.
The MD indicates that the appellant does not require aids or prostheses for his impairment.
AR:
In relation to mobility and physical ability, the MD assesses the appellant as independent with
walking indoors (he lacks stamina) and walking outdoors, climbing stairs, standing, and carrying and
holding. The MD indicates that the appellant takes significantly longer than typical with lifting (this will
improve with strength).
SR:
The appellant describes his disability as an uncomfortable feeling/pounding in his chest with every
heartbeat, which increases to pain as his heart rate increases. The appellant explains that his
disability affects his life and ability to take care of himself as follows: I can not exert myself without
feeling pain in my chest. I have to rest/lay down frequent throughout the day. Going out is difficulty
most days and impossible others. If my chest starts to hurt in public, I have had to go to the hospital
on many occasions. Only laying down ‘til my heart rate slows relieves the pain.
Ability to perform DLA
General
MR:
The MD indicates that the appellant has not been prescribed medications that interfere with his ability
to perform DLA.
AR:
The MD provides the following general comments in relation to DLA: this should be temporary until he
recovers from surgery. I anticipate 6 months.
AR2:
The RN provides the following general comments in relation to DLA: “some days stays in pajamas,
avoids shower. Needs to pace. Surgery March 2016.” and “Family often prepares food and brings.”
Daily Living Activities
Prepare own meals
AR:
The MD indicates that the appellant is independent with the meals activities of meal planning, food
preparation, cooking and safe storage of food.
AR2:
The RN indicates that the appellant is independent with the meals activities of meal planning and safe
storage of food. She indicates that the appellant requires periodic assistance and takes significantly
longer with food preparation (comments illegible) and needs periodic assistance with cooking.
Manage personal finances
AR:
The MD has not assessed the pay rent and bills activities, including banking, budgeting, and paying
rent and bills. He provides the comment: the major issue is lack of funds.
AR2:
The RN has assessed appellant as independent with all pay rent and bills activities, including banking
(“2x longer (online))”, budgeting (“3x longer”), and paying rent and bills.
Shop for personal needs
AR:
The MD indicates that the appellant is independent with the shopping activities of reading prices and
labels and making appropriate choices and requires periodic assistance with going to and from stores
(Lacks stamina), paying for purchases (he’s not working) and carrying purchases home (lacks
stamina/strength).
AR2:
The RN indicates that the appellant is independent with the shopping activities of reading prices and
labels and making appropriate choices and requires continuous assistance carrying purchases home
(“lacks stamina – 3-5x longer”). The RN’s assessment of the appellant’s abilities in relation to going to
and from stores (“lacks stamina”) and paying for purchases are not legible.
Use public or personal transportation facilities
AR:
The MD indicates that the appellant is independent getting in and out of a vehicle, using public transit
and using transit schedules and arranging transportation.
AR2:
The RN indicates that the appellant is independent getting in and out of a vehicle and using transit
schedules and arranging transportation and requires continuous assistance with using public
transportation (“does not have ability to walk to the bus”).
Perform housework to maintain the person's place of residence
AR:
The MD indicates that the appellant is independent with laundry and basic housekeeping.
AR2:
The RN indicates that the appellant is independent and takes significantly longer with laundry (“3x
longer”) and takes significantly longer with basic housekeeping (“3x longer”).
Move about indoors and outdoors
MR:
The MD indicates that the appellant is able to walk 2-4 blocks unaided on a flat surface and can climb
5+ to climb stairs unaided.
AR:
The MD indicates that the appellant is independent walking indoors and outdoors, climbing stairs and
standing.
AR2:
The RN indicates that the appellant takes significantly longer walking indoors (“4x longer at least”)
and outdoors (“5x longer”), climbing stairs (“avoids 2x weekly”) and standing (“5x longer/can get
dizzy”).
Perform personal hygiene and self-care
AR:
The MD indicates that the appellant is independent with dressing, grooming, bathing, toileting,
feeding self, regulating diet and transfers in/out of bed and on/off chair.
AR2:
The RN indicates that the appellant is independent and takes significantly longer (legible areas
indicate 2-3 times longer) with dressing, grooming, bathing, toileting, feeding self, regulating diet and
transfers in/out of bed and on/off chair.
Manage personal medication
AR:
The MD indicates that the appellant is independent in all aspects of this DLA.
AR2:
The RN indicates that the appellant is independent with taking medications as prescribed and safe
handling and storage and takes 3x longer filling prescriptions.
Social Functioning
AR:
The MD indicated that the appellant is independent for all social functioning areas and has good
functioning in his immediate social networks.
AR2:
The RN has assessed the appellant as: independent in making appropriate social decisions; requiring
periodic support/supervision for interacting appropriately with others and ability to secure assistance
from others; and requiring continuous support/supervision for ability to develop and maintain
relationships (“socially isolation”) and ability to deal appropriately with unexpected demands. The RN
indicates that the appellant has very disrupted functioning in his immediate social networks
(“withdraws”). The RN’s assessment of the appellant’s functioning in extended networks is illegible
(“becomes too short of breath”).
Help required
MR:
The MD indicates that the appellant does not require any aids or prostheses.
AR:
The MD indicates that the appellant receives assistance from family.
The MD indicates that the appellant does not receive assistance from assistance animals.
AR2:
The RN indicates that the appellant receives assistance from family, health authority professionals,
the MD and food bank.
The RN indicates that the appellant does not receive assistance from assistive devices or assistance
animals and would benefit from a scooter.
Notice of Appeal
In his Notice of Appeal dated 30 June 2017, the appellant gives as Reasons for Appeal: The ministry
gave insufficient weight to Reconsideration evidence. Further evidence/clarification will be provided
by my doctor.
The Hearing
With the consent of both parties, the hearing was conducted in writing pursuant to section 22(3)(b) of
the Employment and Assistance Act.
Submissions on Appeal
The appellant’s appeal submission included the following documents:
1-page cover letter dated 21 August 2017 from the appellant’s advocate;
3-page Appeal Argument brief prepared by the appellant’s advocate. The brief consists of
argument; specifically, it argues that the ministry did not allocate appropriate weight to the
“new evidence” provided at reconsideration and asks that the tribunal re-evaluate the evidence
and assign the appropriate weight and deference to the evidence and arguments provided at
reconsideration. The brief argues that the information provided demonstrates that appellant
does meet the eligibility criteria for PWD designation and asks that the tribunal find that the
appellant does fulfill the requirements for PWD designation; and
1-page letter dated 16 August 2017 from the appellant’s MD (“August letter”). The letter
indicates that:
The MD agrees with the appellant’s advocate that the “new evidence” was not
adequately or fairly considered;
The MD has read the RN’s letter and AR 2 and agrees with her reasons and findings.
The MD believes that this information does more likely than not represent the
appellant’s current medical and living situation;
Estimating recovery time is challenging and is subject to revision based on new
information; and
Given the rate of the appellant’s recovery to date, the MD is of the view that it is more
likely than not that his conditions or symptoms will persists for at least 2 more years.
The ministry’s appeal submission dated 25 August 2017 provided the following:
The ministry had reviewed the information provided in the August 16 letter from the
appellant’s MD; and
The ministry may have found that the appellant met the criteria for PWD designation if the
information had been available at reconsideration.
Admissibility
Section 22(4) of the Employment and Assistance Act (EAA) provides that panels may admit as
evidence the information and records that were before the minister when the decision being
appealed was made and “oral or written testimony in support of the information and records”
before the minister when the decision being appealed was made.
These limitations reflect the jurisdiction of the panel established under section 24 of the EAA.
Panels are limited to determining if the ministry’s decision is reasonably supported by the
evidence or a reasonable application of the legislation in the circumstances of the appellant.
Thus, panels are not to assume the role of decision-makers of the first instance by considering
information that presents a new or different picture of the impairment or restrictions than that
which was before the ministry when it made its reconsideration decision.
In light of these legislative boundaries, the panel finds that the August letter from the appellant’s
MD is not admissible. In reaching its conclusions on admissibility, the panel notes that neither the
appellant nor the ministry has articulated a position in relation to admissibility of the August letter
in their appeal submissions. The ministry has indicated that the reconsideration decision may
have been different had this information been available at that time. The appellant’s appeal
submissions argue that the MD has now taken the time to review the new evidence and make
requisite retractions, the result of which is to collapse the arguments of the reconsideration
adjudicator.
Specifically, the panel finds the August letter to be inadmissible in two areas. First, the panel finds
that the MD’s revised assessment as to the expected duration of the appellant’s impairment
provides a different picture, based on the appellant’s rate of recovery to date (i.e. after
reconsideration), and therefore cannot be said to corroborate or substantiate the information and
records before the ministry at reconsideration; it is therefore not admissible in accordance with
section 22(4) of the EAA. Second, the panel finds that the MD’s expression of support for the
RN’s assessment constitutes a revision in the MD’s assessment that presents a new or different
picture of the MD’s assessments of the impairment or restrictions than that which was before the
ministry when it made its reconsideration decision. The reconsideration officer was presented
information set out in two different sets of assessments, the AR from the MD, and the AR2 from
the RN, and had to weigh these assessments as appropriate under the circumstances. The
information in the MD’s August letter is new information that was not before the ministry at
reconsideration. As such, the panel finds that this information is not in support of information and
records before the ministry at reconsideration and is not admissible in accordance with section
22(4) of the EAA.
PART F – Reasons for Panel Decision
The issue in this appeal is whether the ministry’s reconsideration decision that determined that the
appellant did not meet four of the five statutory requirements of Section 2 of the EAPWDA for
designation as a person with disabilities (PWD) is reasonably supported by the evidence or is a
reasonable application of the legislation in the circumstances of the appellant.
Specifically, the ministry determined that the information provided did not establish that:
the appellant’s impairment, in the opinion of a medical practitioner, is likely to continue for at
least 2 years;
the appellant has a severe mental or severe physical impairment;
the appellant’s severe mental or physical impairment, in the opinion of a prescribed
professional, directly and significantly restricts his ability to perform daily living activities (DLA)
either continuously or periodically for extended periods; and
as a result of those restrictions, he requires help to perform those activities.
The following section of the EAPWDA applies to this appeal:
2 (1) In this section:
"assistive device" means a device designed to enable a person to perform a daily living activity that,
because of a severe mental or physical impairment, the person is unable to perform;
"daily living activity" has the prescribed meaning;
"prescribed professional" has the prescribed meaning.
(2) The minister may designate a person who has reached 18 years of age as a person with disabilities for the
purposes of this Act if the minister is satisfied that the person is in a prescribed class of persons or that the
person has a severe mental or physical impairment that
(a) in the opinion of a medical practitioner or nurse practitioner is likely to continue for at least 2 years, and
(b) in the opinion of a prescribed professional
(i) directly and significantly restricts the person's to perform daily living activities either
(A) continuously, or
(B) periodically for extended periods, and
(ii) as a result of those restrictions, the person requires help to perform those activities.
(3) For the purposes of subsection (2),
(a) a person who has a severe mental impairment includes a person with a mental disorder,
and
(b) a person requires help in relation to a daily living activity if, in order to perform it, the person
requires
(i) an assistive device,
(ii) the significant help or supervision of another person, or
(iii) the services of an assistance animal.
The following section of the EAPWDR applies to this appeal:
2 (1) For the purposes of the Act and this regulation, "daily living activities",
(a) in relation to a person who has a severe physical impairment or a severe mental impairment,
means the following activities:
(i) prepare own meals;
(ii) manage personal finances;
(iii) shop for personal needs;
(iv) use public or personal transportation facilities;
(v) perform housework to maintain the person's place of residence in acceptable sanitary
condition;
(vi) move about indoors and outdoors;
(vii) perform personal hygiene and self care;
(viii) manage personal medication, and
(b) in relation to a person who has a severe mental impairment, includes the following activities:
(i) make decisions about personal activities, care or finances;
(ii) relate to, communicate or interact with others effectively.
(2) For the purposes of the Act, "prescribed professional" means a person who is
(a) authorized under an enactment to practise the profession of
(i) medical practitioner,
(ii) registered psychologist,
(iii) registered nurse or registered psychiatric nurse,
(iv) occupational therapist,
(v) physical therapist,
(vi) social worker,
(vii) chiropractor, or
(viii) nurse practitioner, or
(b) acting in the course of the person's employment as a school psychologist by
(i) an authority, as that term is defined in section 1 (1) of the Independent School Act, or
(ii) a board or a francophone education authority, as those terms are defined in section 1
(1) of the School Act,
if qualifications in psychology are a condition of such employment.
Duration
The legislation requires the minister to assess the likely duration of a person’s impairment in
consideration of the opinion of a medical practitioner or nurse practitioner. The legislation is clear that
the medical practitioner or nurse practitioner’s opinion is fundamental to the analysis of likely
duration. Regarding the likely duration of impairment, section 2(2)(a) of the EAPWDA requires that
the impairment be likely to continue for at least 2 years.
In the reconsideration decision, the ministry concluded that it was not able to establish that in the
opinion of a medical practitioner or nurse practitioner the appellant’s impairment was likely to
continue for at least 2 years. In reaching this conclusion, the ministry considered the MD’s
assessment in the PWD application, which indicated that the appellant’s impairment is not likely to
continue for two years or more. The ministry also considered the May letter, which indicated that
while the MD hoped for 3-6 month recovery it could potentially take much longer and as many as 2
years or more. The ministry found that the comments provided in the May letter did not constitute
confirmation of a likelihood that the appellant’s impairment would continue for 2 years or more.
The panel notes that the appellant has argued in his appeal submission that the ministry’s
interpretation is too limiting and restrictive. The panel finds that the potential or possibility of duration
of 2 years or more does not amount to an opinion as to likely duration of 2 years or more, as required
by the legislation, particularly when considered in conjunction with the MD’s other comments in the
May letter, including his hope for 3-6 month recovery and his comment that it is truly unknown. The
appellant has also argued that the August letter clarifies the MD’s position on duration. However, the
panel has determined that this letter is not admissible. As such, the panel finds the ministry’s
conclusion that this legislative criterion was not met to be reasonable.
Severity of impairment
The legislation requires that for PWD designation, the minister must be “satisfied” that the person has
a severe mental or physical impairment. The legislation makes it clear that the determination of
severity is at the discretion of the minister, considering all of the evidence, including that of the
appellant. The diagnosis of a serious medical condition or the identification of mental or physical
deficits does not in itself determine the severity of an impairment. Impairment is defined in the PWD
application as a loss or abnormality of psychological, anatomical or physiological functioning causing
restriction in the ability to function independently, appropriately, effectively or for a reasonable
duration. 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.
Severity of mental impairment
In the reconsideration decision, the ministry found that the information provided did not establish that
the appellant has a severe mental impairment. The ministry observed that there were no significant
deficits with cognitive and emotional functioning noted in the MR or major impacts to cognitive and
emotional functioning noted in the AR. As well, the ministry noted that there were 2 moderate impacts
indicated by the MD in the AR. The ministry concluded that these impacts were not indicative of a
severe impairment of mental functioning. The ministry further observed the MD’s assessment of
independence in all areas of social functioning, good functioning with immediate social networks and
the absence of safety issues or support/supervision required to maintain the appellant in his
community. The ministry considered the May letter and noted that it did not speak to impacts on
mental functioning. The ministry then went on to consider the RN letter and AR2, noting that this
information speaks to the presence of depression and anxiety with major, moderate and minimal
impacts assessed in relation to cognitive and emotional functioning. The ministry noted that the
impacts reported by the RN were not supported by the MD’s assessments. The ministry further noted
that while the RN indicates that the appellant suffers from depression and anxiety, the MD has not
provided a diagnosis for these conditions. The ministry considered that the RN had assessed impacts
in several areas, while the MD had indicated that there were no significant deficits, two moderate
impacts and independence in all areas of social functioning. The ministry, with reference to the
absence of additional information in the May letter, concluded that the MD’s assessments remained
accurate.
The panel notes the conflicting information provided by the RN and MD in relation to the presence of
a mental impairment and impacts on the appellant’s functioning. The panel notes that the MD has not
provided a mental health diagnosis in the PWD application or the May letter, has indicated that there
are no significant deficits with cognitive and emotional functioning and has assessed the appellant as
independent in all social functioning DLA. The panel notes, as did the ministry, that the MD mentions
in his comments that the appellant is anxious about his physical health and indicates that this will
improve with time. As well, the panel notes that the appellant has not mentioned a mental impairment
in the SR nor described impacts to his life or his ability to care for himself arising from a mental
impairment. The panel also notes that some of the difficulties the RN describes in relation to the
appellant’s difficulties with communication, social isolation and cognitive and emotional functioning
are linked to his physical impairment rather than a mental impairment. For instance, requiring small
meals and sleeping on an incline, which are described by the RN as due to his heart condition, have
been reported in AR2 as an impact or restriction due to the appellant’s mental impairment or brain
injury. The panel notes, but is unable to accept, the appellant’s argument that because of the August
letter, the RN’s “work should supersede the previous PWD form in all aspects that it conflicts with it”.
As noted previously, the panel has determined that this letter is not admissible. As well, the panel
notes that only a physician or nurse practitioner may complete the MR portion of a PWD application;
thus, it is impossible to accept the RN’s work in place of the PWD application on all aspects of
conflict. The panel finds that the ministry’s determination that a severe mental impairment has not
been established was reasonable.
Severity of physical impairment
In the reconsideration decision, the ministry was not satisfied that a severe impairment of the
appellant’s physical functioning had been established. In reaching this conclusion, the ministry first
considered the MD’s assessments of functional skills and argued that these assessments did not
reflect a severe physical impairment. The ministry also considered the MD’s mobility and physical
ability assessment, noting that the MD had assessed the appellant as independent in all but one
listed area. The ministry considered the May letter and argued that the MD had not provided
assessment of the appellant’s functional skills or impacts to his mobility/physical ability. The ministry
then considered the assessments provided in the RN letter and AR2, noting that the RN has not
provided information about how long she has known the appellant, how many times she has seen the
appellant or the sources she has used in her assessment. The ministry also noted that the RN has
suggested that the MD did not take sufficient time to complete the PWD application, but found that
there was no evidence to suggest that the assessments were incomplete or inaccurate. The ministry
found that some of the information provided by the RN was not supported by the MD’s assessments
in the PWD application. The ministry found that it had no reason to question the accuracy of the MD’s
assessments, noting that the May 2017 letter was an opportunity for the MD to provide additional
information but he did not do so.
The panel notes presence of one MR prepared by the MD and conflicting AR assessments from the
MD and RN before the ministry at reconsideration. The panel also notes that the appellant’s advocate
argues in the appeal submission that the ministry’s approach to resolving the conflict was to accord
more weight to the MD’s information and this was unreasonable. The panel disagrees and finds that
the ministry’s reasons for concluding that the MD’s assessments remained accurate were
reasonable. The panel finds that the MD had provided a letter at reconsideration and did have an
opportunity to provide additional information, as argued by the ministry, and that the RN has not
provided background information as to her knowledge of the appellant or the sources of the
assessment as noted by the ministry. As such, it was reasonable for the ministry to conclude that the
MD’s assessments remained accurate. As well, the panel notes that the appellant’s advocate has
argued that the RN found that the MD had not take sufficient time given the impacts of the appellant’s
symptoms on his life. However, the panel notes that the RN letter states that she is re-evaluating the
appellant at his request, “[h]e believes that his doctor was too rushed to fill out the PWD application
reports with the required detail. This is a common issue I have seen often.” Furthermore, the panel
notes that the MD’s assessment of the appellant’s functional skills in the MR is on the higher end and
he is assessed as independent with most areas of mobility and physical ability and most DLA in the
AR. And while the information in the RN’s letter and AR2 does, to some extent conflict with some of
this information, the PWD application form is clear that the MR is to be completed by a physician or
nurse practitioner only. Therefore, the argument presented by the appellant’s advocate, that the new
evidence (RN’s assessments) is of superior quality to the old evidence (MD’s assessments), does not
provide an adequate solution to the conflict. Accordingly, the panel finds that the ministry reasonably
concluded that the information provided does not establish a severe physical impairment and that this
criterion was not met.
Direct and significant restrictions in the ability to perform DLA
The legislation – section 2(2)(b)(i) of the EAPWDA – requires the minister to assess direct and
significant restrictions of DLA in consideration of the opinion of a prescribed professional, in this case
the appellant’s MD and the RN. The legislation is clear that a prescribed professional’s opinion is
fundamental to the analysis of restrictions with DLA. At issue is the degree of restriction in the
appellant's ability to perform the DLA listed in section 2(1)(a) and (b) of the EAPWDR. Regarding the
degree of the restriction, section 2(2)(b)(i) of the EAPWDA requires activities to be directly and
significantly restricted either continuously or periodically for extended periods. The panel notes that,
according to the legislation, the direct and significant restriction in the ability to perform DLA must be
a result of a severe impairment, a criterion not established in this appeal.
In the reconsideration decision, the ministry noted the MD’s assessment that the appellant is
independent with most DLA and requires periodic assistance with some aspects of the shopping
DLA. The ministry noted, however, that the MD has not described the frequency or duration of
assistance required. The ministry noted that the May letter does not speak to DLA restrictions or
provide additional information in this area. The ministry considered the assessments in the RN letter
and AR2, noting that the RN indicated that the appellant takes significantly longer with some activities
and requires assistance from another person with meals. The ministry noted that the MD did not
indicate that the appellant took significantly longer with any DLA. As well, the ministry considered that
the RN stated that the appellant would benefit from a hospital bed, bedside urinal and a scooter,
while the MD indicated that no aids or prostheses were required. The ministry concluded that there is
not enough evidence to confirm that an impairment significantly restricts the appellant’s ability to
perform DLA continuously or periodically for extended periods.
The panel finds that the ministry’s determination that the information provided does not establish that
a severe impairment significantly restricts the appellant’s ability to perform DLA continuously or
periodically for extended periods was reasonable. The MD has, in the AR, assessed the appellant as
independent with most DLA. The panel notes that the MD has indicated that some shopping activities
require periodic assistance but has not indicated how often this assistance is required. In contrast,
the RN letter and AR2 provide a somewhat different picture of the appellant’s abilities. The panel
notes that the RN and MD both assess the appellant as independent with most DLA; however, the
RN’s assessment is that the appellant takes significantly longer with several DLA. Both RN and MD
assessments indicate that the appellant requires some assistance with shopping, but disagree on the
extent (periodic or continuous) of assistance required. The RN indicates that assistance is required
with meals, whereas the MD indicates that the appellant can manage these tasks independently. The
appellant’s advocate argues that doctors do not have sufficient time and the new evidence was given
too little weight. The panel finds, in the face of this conflicting information, that the ministry’s rationale
(as discussed previously) for finding that the MD’s assessments remained accurate was reasonable.
The panel finds that the ministry reasonably determined that this legislative criterion was not met.
Help required
Section 2(2)(b)(ii) of the EAPWDA requires that, as a result of direct and significant restrictions in the
ability to perform DLA either continuously or periodically for extended periods, a person must also
require help to perform those activities. The confirmation by a prescribed professional of direct and
significant restrictions with DLA under section 2(2)(b)(i), is a precondition to meeting the need for help
criterion. Help is defined in subsection (3) as the requirement for an assistive device, significant help
or supervision of another person, or the services of an assistance animal in order to perform DLA.
In the reconsideration decision, the ministry concluded that, as it has not been established that DLA
are significantly restricted, it cannot be determined that significant help from other persons is required
and no assistive devices are required. The panel has concluded (above) that the ministry reasonably
determined that direct and significant restrictions in the appellant’s ability to perform DLA have not
been established. As a result, the panel also finds that the ministry reasonably concluded that under
section 2(2)(b)(ii) of the EAPWDA that it cannot be determined that the appellant requires help to
perform DLA.
CONCLUSION
The appellant’s advocate has requested in the appeal submission that the panel review the totality of
the evidence, allot the reconsideration evidence the weight it deserves and find that the appellant
does fulfill the requirements for PWD designation. As discussed under “Admissibility”, in Part E
above, the panel does not have jurisdiction to address or consider this request as the EAA at section
24(1) clearly states that a panel must determine whether the decision being appealed is reasonably
supported by the evidence, or a reasonable application of the applicable enactment in the
circumstances of the person appealing the decision. As explained above, the panel has found that
the ministry was reasonable in determining that the information provided does not establish that the
appellant met the PWD designation criteria at issue in this appeal.
Accordingly, the panel finds that the ministry’s reconsideration decision, which determined that the
appellant was not eligible for PWD designation, was a reasonable application of the legislation in the
appellant’s circumstances and was reasonably supported by the evidence. The panel therefore
confirms the ministry’s decision. The appellant is not successful on appeal
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