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 August 8, 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 requirement and that a medical practitioner has confirmed that the appellant’s
impairment is likely to continue for at least 2 years.
However, the ministry was not satisfied 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, in the opinion of a prescribed professional, 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 April 13, 2017, the ministry received the appellant’s PWD application comprised of a Medical
Report (MR) and an Assessor Report (AR), both completed by the appellant’s general practitioner
and dated April 4, 2017, and the appellant’s Self-report (SR), dated February 22, 2017. The appellant
also submitted the results of an April 3, 2017 CT Scan of the Lumbar spine.
The appellant’s request for PWD designation was denied on May 19, 2017. On July 24, 2017, the
ministry received the appellant’s Request for Reconsideration which was supported by an undated 2-
page handwritten submission from the appellant and a 1-page letter dated June 13, 2017, from the
GP. On August 8, 2017, the ministry issued its reconsideration decision, which again denied the
appellant’s request for PWD designation.
On August 11, 2017, the tribunal received the appellant’s Notice of Appeal (NOA), in which the
appellant writes that she is not satisfied that the minister made the appropriate choice.
No additional evidence was provided on appeal.
The arguments of both parties are set out in Part F of this decision.
Summary of relevant evidence
Diagnoses
The GP diagnoses:
generalized anxiety disorder (GAD)
chronic pain syndrome
major depressive disorder
lumbar spine pars defect and lumbar disc disease
Physical Impairment
The GP provides the following information in the PWD application.
No prostheses or aids are required.
The appellant is able to walk 4+ blocks unaided on a flat surface on a good day, 1 block on a
bad day.
The appellant is able to climb 5+ steps unaided on a good day.
It is unknown how much weight the appellant can lift as it varies due to pain fluctuations. The
time the appellant can remain seated is also unknown.
Walking indoors is managed independently.
Walking outdoors, climbing stairs, standing, and lifting/carrying/holding take significantly longer
than typical to perform. “She reports that a recent 10 block walk took 2 hours due to pain.” “Her
symptoms fluctuate when her pain levels are BAD. She takes much longer to walk, climb
stairs.”
Chronic pain and “a lot of pain” from lumbar disc disease confirmed by CT scan which shows
prominent degenerative changes.
The GP thinks the appellant has severe chronic back pain that interferes with her activities of
daily living.
The dictating physician reports that the CT scan identified “Bilateral pars defect at L5 with evidence of
prominent slightly asymmetric degenerative change affecting the pars defect more prevalent on the
left side. There is evidence of significant generalized bulging of the disc at L5-S1 and marked
encroachment of the intervertebral foramen bilaterally at this L5-S1 level. There is likely compromise
of this exiting L5 nerve roots bilaterally as they course through their respective foramen. No evidence
of spinal stenosis.”
In her SR, the appellant writes that every day is a coin flip as to whether she will wake up in pain too
bad to carry on with her day. Some days she can do quite a bit but more and more often she is
unable to stand or walk for more than a few minutes and sitting is worse. She spends most of her day
stretching to keep her muscles from being restless. She can only do so much in a day and on a bad
day can’t even cook for herself.
In her reconsideration submission, the appellant writes that she has a trade ticket which she cannot
use. She has daily pain from her back, can’t stand or sit for long times. She cannot twist, bend or lift
repeatedly.
Mental Impairment
The GP provides the following information in the PWD application:
Generalized anxiety with social anxiety.
Pain medication may interfere with thinking. Antidepressant may cause moderate side effects.
Significant deficit with cognitive and emotional function in 1 of 11 specified areas – emotional
disturbance. “Severe anxiety and panic attacks.”
No cognitive, motor, sensory, or other difficulties with communication are identified in the MR.
In the AR, good ability with speaking, reading, writing, and hearing is reported.
Respecting the impact on daily functioning for 14 listed areas of cognitive and emotional
function a major impact is reported in 1 area – emotion (“often severe”). Moderate impacts are
reported for bodily functions (sleep disturbance) “chronic poor sleep”; consciousness (“asso.
with anxiety”); impulse control, attention/concentration, and other “some anger management
issues.”
Four listed areas of social functioning require periodic support/supervision: develop and
maintain relationships (“Anxiety impairs relationships”); interacts appropriately with others
(“Social anxiety interferes”); deal appropriately with unexpected demands (“Anxiety”); and,
ability to secure assistance from others. The fifth areas, appropriate social decisions, is
managed independently.
Marginal functioning with immediate (Anxiety +++”) and extended social networks.
The GP feels that the appellant suffers from severe anxiety and depression.
In his subsequent letter, the GP writes “I feel this patient remains unfit for work due to chronic
anxiety.”
In her SR, the appellant reports that her depression can be crippling when it gets bad and can be
triggered by her pain easily. She will have no energy to get up and do anything and doesn’t want to
see anyone. Anxiety makes leaving the house hard, especially alone. She has panic attacks at
random, hyperventilates, is dizzy, scared and sometimes faints.
In her reconsideration submission, the appellant reports that her biggest issue is anxiety and
depression. She is working with the GP, but success has been limited due to agoraphobia and
constant struggle to survive. She cannot go out alone to shop or even go for a walk. She has panic
attacks and suffers from select mutism (can’t talk even if you try as hard as you can).
DLA
The GP reports:
Pain medication may interfere with thinking. Antidepressant may cause moderate side effects.
Social anxiety prevents many normal social relationships.
Back pain is sometimes severe and she can’t go to store or shop.
Information respecting each prescribed DLA is as follows.
Move about indoors and outdoors;
As described under Physical Impairment
Personal Care
Transfers in/out of bed and on/off chair take significantly longer than typical “when pain levels
are BAD” All other listed tasks are managed independently.
Basic Housekeeping
Both tasks - laundry and basic housekeeping - take significantly longer to perform “when pain
is severe”
Shopping
Going to and from stores (“takes longer when she has pain”) and carrying purchases home
take significantly longer than typical.
Reading prices and labels, making appropriate choices, and paying for purchases are
managed independently.
Avoids stores and errands due to anxiety – agoraphobia.
Meals
Food preparation and cooking take significantly longer than typical (“when BACK BAD”)
Meal planning and safe storage of food are managed independently.
Management of finances
All listed tasks are managed independently.
Medications
All listed tasks are managed independently.
Transportation
Using transit schedules and arranging transportation is managed independently.
Getting in and out of a vehicle requires periodic assistance (“Back Pain”).
Anxiety prevents use of public transit.
Social Functioning
As described under Mental Impairment.
In her SR, the appellant writes that when her depression is bad she will have no energy to get up or
do anything and does not want to see anyone. Anxiety makes leaving the house hard, especially
alone. She fears people, getting lost, being seen, crowds, and humiliation. She is most comfortable at
home.
In her reconsideration submission, the appellant writes that she can’t go out alone, to shop or even
take a walk due to her mental health conditions.
Need for Help
The GP reports that assistance is provided by family and friends, and that she frequently uses a stool
or chair to help support her when back is bad.
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 in
determining that the requirements of section 2(2) of the EAPWDA were not met because:
a severe physical or mental impairment was not established;
the appellant’s DLA are not, 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 does
not require an assistive device, the significant help or supervision of another person, or the
services of an assistance animal 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
Severe Physical or Mental Impairment
The legislation provides that the determination of severity of impairment is at the discretion of the
minister, taking into account all of the evidence including that of the appellant. However, the
legislation is also clear that the fundamental basis for the analysis is the evidence from a prescribed
professional respecting the nature of the impairment and its impact on daily functioning. While the
legislation does not define “impairment”, the MR and AR define “impairment” as a “loss or abnormality
of psychological, anatomical or physiological structure or functioning causing a restriction in the ability
to function independently, effectively, appropriately or for a reasonable duration.” While this is not a
legislative definition, and is therefore not binding on the panel, in the panel’s opinion, it reflects the
legislative intent and provides an appropriate analytical framework for assessing the degree of
impairment resulting from a medical condition.
When considering the evidence provided respecting the severity of impairment, the ministry must
exercise its decision-making discretion reasonably by weighing and assessing all of the relevant
evidence and cannot simply defer to the opinion of a prescribed professional as that would be an
improper fettering of its decision-making authority.
Physical Impairment
The appellant is diagnosed with lumbar spine pars defect and lumbar disc disease. Both the appellant
and her GP describe fluctuating pain levels and the GP writes that the appellant has “bad days” when
her back pain is severe. The GP also writes that he thinks the appellant has severe chronic pain that
interferes with “her activity of daily living” but, as the ministry notes, the GP does not explain how
often the appellant has “good days” versus “bad days.” The panel finds that the ministry was not
unreasonable to presume that because the GP chose to indicate the level of functioning reported on
good days, that the appellant experiences more good days than bad. This conclusion is further
supported by the fact that no assistive devices, such as a cane or grab bars in the bathroom, are
required which, as the ministry argues, would be an indication of the severity of impairment. The
ministry recognizes the GP’s comment that the appellant experiences “a lot of pain” due to her back
condition but is not satisfied that this, in and of itself, confirms a severe physical impairment, which
the panel finds to be a reasonable conclusion given the absence of any indication as to how often the
appellant’s physical functioning is impaired by severe back pain. The appellant herself describes her
physical functioning in terms of being a “coin flip” as to whether her pain will be too bad for her to
carry on with her day. As the ministry also notes, there is no mention of a referral to a specialist or
pain clinic, which would be expected if a condition was considered severe. Additionally, while the
appellant describes the inability to use her employment qualifications due to her conditions, as the
ministry argues, the PWD application is not intended to assess employability and that the ability to
engage in paid employment is not a legislated criterion for severity.
Given the absence of information respecting the frequency and duration of the periods when the
appellant’s back pain is bad, the panel concludes that the ministry reasonably determined that the
information establishes that the appellant experiences some degree of restriction due to her
impairment but that the combination of the functional skills and mobility and physical ability are not
evidence of a severe physical impairment.
Mental Impairment
The appellant is diagnosed with GAD and major depressive disorder. The appellant argues that
anxiety and depression are her biggest issue and that due to agoraphobia and panic attacks she
cannot go out alone. She argues that a severe mental impairment is confirmed by her GP who re
stated his medical opinion following the original denial of disability. The ministry argues that simply
providing a diagnosis does not establish a severe impairment, noting that when asked to describe the
severity of the appellant’s impairments, the GP mainly writes about physical impairments.
The GP identifies a significant deficit in 1 area of cognitive and emotional functioning, emotional
disturbance, which is reported to have a major impact on daily functioning. No other areas are
reported to have a major impact on daily functioning, though moderate impacts on daily functioning
are reported in areas for which a significant deficit was not identified, including consciousness,
impulse control and attention/concentration. The panel finds that the only restrictions with DLA
relating to mental impairment are those relating to social functioning, as the appellant is reported to
have good ability with all areas of communication and to independently manage, with no noted
restriction, all listed decision-making of all DLA tasks (personal care, shopping, meal preparation,
finances, management of medications, transportation, and social functioning). The restrictions with
social functioning are that the appellant avoids stores and crowds and is unable to use public transit
due to anxiety/agoraphobia, and that she requires periodic support/supervision with 4 of 5 listed
areas of the DLA social functioning. The GP does not describe the frequency and duration of the
periodic support/supervision and assesses marginal functioning rather than very disrupted functioning
with both immediate and extended social networks. Additionally, the GP did not provide a response
when asked what assistance is required to help maintain the appellant is the community, and there is
no mention of or referral to a mental health specialist, which would be expected if the appellant’s
mental health conditions were considered severe. Based on this information, the panel finds the
ministry reasonable to conclude that the information establishes that the appellant is capable of basic
interaction and that a severe mental impairment is not established.
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, 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 the
frequency. 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 this case, the appellant’s GP is the prescribed professional who assessed the appellant’s ability to
perform DLA. As previously discussed under Physical Impairment, the GP attributes limitations in the
appellant’s ability to function physically to fluctuations in the level of her back pain, but does not
indicate how often, or for what duration, the appellant’s back pain is bad, or how much longer those
DLA tasks affected take to perform during periods of increased pain. Also, while the appellant reports
that she cannot twist, bend or lift repetitively, the GP reports that the appellant independently
manages many DLA tasks that require these actions, including dressing, grooming, bathing and
toileting. Similarly, laundry and basic housekeeping, which also require those actions, take
significantly longer “when pain is severe” but do not require either periodic or continuous assistance,
which would be expected if the appellant experiences significant restrictions.
Respecting the two DLA that are specific to mental impairment, “make decisions about personal
activities, care or finances” and “relate to, communicate or interact with others effectively,” significant
restrictions were not established, as previously discussed under Mental Impairment, the panel found
that all decision-making DLA tasks were assessed by the GP as being managed independently.
Additionally, the GP assessed the appellant as having good ability with communication, and did not
describe the duration of the periodic support/supervision required for social functioning, information
that relates to both the significance of the restriction and whether or not it is for extended periods.
Based on the above analysis, the panel concludes that the ministry was reasonable in determining
that the information establishes certain limitations as a result of the appellant’s medical conditions but
that it did not establish that an impairment significantly restricts DLA continuously or periodically for
extended periods.
Help to perform DLA
The appellant reports that she is unable to leave her home alone due to her mental conditions and
that some days her pain is so bad she cannot cook for herself. 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.
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 establishment of direct and significant restrictions with DLA is a precondition of the need for help
criterion. 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 a reasonable
application of the applicable enactment, and therefore confirms the decision. The appellant is not
successful on appeal.
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