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 24 October 2017 that denied the appellant
designation as a person with disabilities (PWD). The ministry determined that the appellant did
not meet all of the required criteria for PWD designation set out in section 2 of 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 has a severe mental or physical
impairment that in the opinion of a prescribed professional
(i) directly and significantly restricts his ability to perform daily living activities (DLA) either
continuously or periodically for extended periods; and,
(ii) as a result of those restrictions, he requires help to perform those activities.
The ministry determined that the appellant satisfied the other 2 criteria: he has reached 18 years
of age and his impairment in the opinion of a medical practitioner is likely to continue for at least
2 years.
The ministry also found that it has not been demonstrated that the appellant is in one of the
prescribed classes of persons who may be eligible for PWD designation on the alternative
grounds set out in section 2.1 of the Employment and Assistance for Persons with Disabilities
Regulation. As there was no information or argument provided by the appellant regarding
alternative grounds for designation, the panel considers this matter not to be at issue in this
appeal.
PART D – RELEVANT LEGISLATION
Employment and Assistance for Persons with Disabilities Act (EAPWDA) – section 2
Employment and Assistance for Persons with Disabilities Regulation (EAPWDR) – sections 2
and 2.1.
PART E – SUMMARY OF FACTS
The evidence before the ministry at reconsideration consisted of the following:
1.
The appellant’s PWD Designation Application dated 21 June 2017. The Application
contained:
A Self Report (SR).
A Medical Report (MR) dated 11 July 2017, completed by a general practitioner (GP)
who has known the appellant since May 2017 and seen him 3 times during that
period.
An Assessor Report (AR) dated 11July 2017, completed by the same GP.
2.
The appellant’s Request for Reconsideration dated 04 October 2017, to which is
attached an advocate prepared questionnaire completed by the GP, a medical imaging
report, and a letter from the appellant (see below).
In the MR, the GP provides the following diagnoses related to the appellant’s impairment:
degenerative disc disease (onset July 2016) and sciatica-like pain down right leg.
The panel will first summarize the evidence from the MR and the AR as it relates to the PWD
criteria at issue in this appeal.
Severity/health history
Physical impairment
MR:
Under Health History, the GP writes that the appellant joined his office in May 2017. The GP
does not have any medical records of the appellant. The appellant had a CT of the lumbar spine
on 19 August 2017 and the film is being obtained. The GP reports that the appellant has full
flexion of the lumbar spine – can touch toes; normal lumbar lateral and extension of the lumbar
spine; SLR [slight leg raise] 80° left and right leg; and full ROM [range of motion] hips and
knees.
Regarding functional skills, the GP reports that the appellant can 1 to 2 blocks unaided on a flat
surface, can climb 2 to 5 steps unaided, his limitations in lifting are “no lifting” and there are no
limitations to remaining seated.
The GP indicates that the appellant has not been prescribed any medication and/or treatments
that interfere with his ability to perform DLA. He also indicates that the appellant does not
require any prostheses or aids to compensate for his impairment.
AR:
Respecting mobility and physical ability, the GP assesses the appellant as independent for
walking indoors, standing, lifting and carrying and holding; and taking significantly longer than
typical for walking outdoors (commenting, “If walking for more than 10 min. reports has to stop
due to pain.”) and for climbing stairs, indicating the use of an assistive device (commenting,
“Has to use handrail.”)
Mental impairment
MR:
The GP indicates that the appellant has no difficulties with communication.
The GP indicates that the appellant has no significant deficits with cognitive and emotional
function, and none are indicated in any of the listed areas.
AR:
The GP assesses the appellant's ability to communicate as good for speaking, writing, and
hearing, and poor for reading, commenting, “Left school in grade 10.”
The GP marks as “N/A” the section on impacts of mental impairment on daily functioning.
Ability to perform DLA
MR:
The GP assesses the appellant as independent for all listed activities requiring physical effort
except mobility outside the home, for which the GP indicates the restriction is periodic,
commenting, “Has to have periods of rest to relieve the pain down the right leg.” The GP
provides no assessment for social functioning
AR:
The GP provides the following assessments of the assistance the appellant requires in
performing DLA (the GP’s comments in parentheses):
Personal care – independent for grooming, bathing (short showers [due to] pain),
toileting, feeding self, regulating diet, transfers in/out of bed, and transfers on/off chair;
uses an assistive device for dressing (sits to dress).
Basic housekeeping – independent for laundry and basic housekeeping.
Shopping – uses assistive device and takes significantly longer than typical for going to
and from stores (shops with cart for support; takes about twice as long).
Meals – independent for all tasks: meal planning, food preparation, cooking, and safe
storage of food.
Pay rent and bills – continuous assistance from another person required for banking,
budgeting, and paying rent and bills (no bank account; has to use [payday loan
company]; in financial difficulty).
Medications – independent for all tasks: filling/refilling prescriptions, taking as directed,
and safe handling and storage.
Transportation – independent for getting in and out of a vehicle; N/A for using public
transit, and using transit schedules and arranging transportation.
With respect to social functioning, the GP gives as N/A the support/supervision required in all
listed areas. Similarly, the GP provides no assessment of the impact of the appellant's
impairment on his immediate and extended social networks.
Help provided/required
MR:
The GP indicates that the appellant does not require any prostheses or aids to compensate for
his impairment.
AR:
The GP indicates that assistance is provided by friends (“Support’).
Regarding assistive devices, the GP indicates that the appellant routinely uses hand rails,
commenting, “Handrails and sitting when able”).
Self Report
In his SR, dated 21 June, completed with the assistance of an advocate, the appellant
describes his disability by writing that he started a new job and injured his back within the first
hour on the job nine months ago. He now suffers from sciatica with numbness down his right
side
The appellant describes how his disability affects his daily life as follows
Ability to communicate – he has difficulty reading as he quit school at a young age and
has a low-level of reading.
Mobility and physical ability – he is unable to walk over one block at a time, taking him 2
times longer than typical to complete. It takes him 2 times longer than typical to climb
stairs, and he is only able to climb 3 stairs before having to use a handrail.
Personal care – he has to sit to get dressed, and is only able to have short showers as
standing in the shower causes pain in his right ankle.
Shopping – he has to use a shopping cart for support when shopping. It takes him at
least 2 times longer than typical to complete.
Paying rent and bills – he does not have a bank account and has to rely on a payday the
loan company to cash his cheques. He is currently in financial difficulties and behind on his
bills, including MSP.
Request for Reconsideration
Attached to the appellant’s Request for Reconsideration are the following:
1.
Advocate-prepared questionnaire completed by the GP, dated 05 October 2017.
The GP agrees with the statement that the appellant is able to walk only up to one
block before he has to stop and take a break. The GP comments, “I have not seen
him walk outside the office.”
The GP neither agrees nor disagrees with the statement that the appellant is in
need of continuous assistance or is unable to do the following DLA due to his
medical conditions: banking, budgeting, and paying rent and bills. The GP
comments, “Can not comment.”
GP agrees with the comment that when grocery shopping the appellant needs to
use a shopping cart for support, commenting, “Suspect that this is the case.”
2.
Medical Imaging Report of a CT of the lumbar spine taken on 11 August 2016.
Findings:
Moderate to marked disk space reduction at L4, L5 and L5-S1 with vacuum
phenomena, consistent with degenerative disease. No invasive focal bony lesions
are seen. Paraspinal soft tissues are within normal limits.
At L3-4 there is generalized annular bulge causing mild central canal stenosis.
Minimal bilateral facet hypertrophy is seen. No foraminal stenosis is noted.
At L4-5 there is a broad central disc protrusion and osteophytic lipping causing
mild central canal stenosis. Disc material is making contact with the traversing
bilateral L5 nerve roots. No significant displacement or compression of the nerve
roots is noted. There is mild bilateral facet hypertrophy. No foraminal stenosis is
noted.
At L5-S1 there is generalized annular bulge and minimal osteophytic lipping. There
is mild to moderate bilateral hypertrophy. No significant central canal stenosis is
seen. There is mild bilateral foraminal stenosis due to far lateral disc osteophyte
complex making contact with the existing L5 nerve roots without any significant
compression.
3.
Letter from the appellant, undated. The appellant writes that he is a carpenter,
describing the range of tasks he performs and the 23 lbs. of tools that he must carry in
a pouch. This can become 55 to 60 lbs. of weight to carry doing certain jobs. Now he
cannot walk for 40 feet with this weight because the back of his calf and ankle are on
fire. He has to sit for 10 minutes with his right leg hanging with no pressure on it. The
situation is even worse when working on a roof due to the pitch, and he can only last
five minutes and therefore it is not safe for him being on a roof. Similarly, he is unable to
do other jobs because his right leg starts burning and his ankle feels like someone is
twisting it. The appellant concludes by writing that is been at this work for 43 years – it
requires “hustle,” and because of the injury to his back, he can't do it anymore.
Notice of Appeal
In his Notice of Appeal, dated 31 October 2017, the appellant writes:
“I am a carpenter. I can’t carry materials to do my job, can’t even dig a fence posthole, can’t
walk too far before right leg goes numb and burning feeling. Plus doctor’s report.”
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 (EAA).
The appellant did not provide a submission for the hearing.
In an email to the Tribunal dated 17 November 2017, the ministry stated that its submission is
the reconsideration summary provided in the Record of Ministry Decision.
PART F – REASONS FOR PANEL DECISION
The issue in this appeal is whether the ministry decision that determined that the appellant did
not meet three 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 has a severe
physical or mental impairment that, in the opinion of a prescribed professional,
(i) directly and significantly restricts his ability to perform daily living activities (DLA) either
continuously or periodically for extended periods; and,
(ii) as a result of those restrictions, he requires help to perform those activities.
The ministry determined that the appellant satisfied the other 2 criteria: he has reached 18
years of age; and his impairment in the opinion of a medical practitioner is likely to continue for
at least 2 years.
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.
Analysis
Severity of physical impairment
In the reconsideration decision, the ministry found that the assessments provided by the GP are
reflective of a mild to moderate, rather than a severe, impairment of the appellant’s physical
functioning. In reaching this determination, the ministry reviewed the information provided by
the appellant and the GP.
The ministry noted that in his reconsideration letter the appellant describes how his medical
condition impacts the work that he does as a carpenter. The ministry noted that employability or
vocational ability is not a criterion used in determining eligibility for PWD designation. As the
focus of the legislation in section 2(b) of the EAPWDA is on whether an impairment “directly and
significantly restricts the person's ability to perform daily living activities …”, and as
employability or ability to work is not listed in section 2(1) of the EAPWDR as a DLA, the panel
finds that ministry was reasonable in not taking into account any reported employability
restrictions.
As the ministry noted, those who are unable to work because of restrictions caused by a
medical condition that has existed for one year and may continue for two or more years have
the option of applying for the persons with persistent multiple barriers (PPMB) category. Those
eligible for this category receive a higher rate of assistance as well as access to health
supplements.
The legislation is clear that the determination of severity of impairment is at the discretion of the
minister, taking into account all of the evidence. The legislation requires that for PWD
designation, the minister must be “satisfied” that the person has a severe mental or physical
impairment. For the minister to be “satisfied” that the person’s impairment is severe, the panel
considers it reasonable for the ministry to expect that the information provided by the
independent and professional medical practitioner and prescribed professional (in this case the
GP) completing the application provides the minister with a comprehensive overview of the
nature and extent of the impacts of the person's medical conditions on daily functioning. It is
therefore reasonable for the minister to expect that the MR and the AR include explanations,
descriptions or examples in the spaces provided.
The diagnosis of a serious medical condition does not in itself determine PWD eligibility or
establish a severe impairment. To assess the severity of impairment, the ministry must consider
the nature of the impairment and the extent of its impact on daily functioning as evidenced by
limitations/restrictions of physical functioning, mental functioning, ability to perform DLA, and
help required with DLA.
Consistent with this approach, the ministry reviewed the information provided in the MR by the
GP regarding the appellant's basic physical functioning. The ministry noted that the GP
assessed the appellant as able to walk 1 to 2 blocks unaided and climb 2 to 5 steps, with no
limitation as to how long he can remain seated. The ministry noted the “no lifting” indicated in
the MR and stated that the information provided in the AR does not correlate with the indication
of “no lifting” in the MR. The ministry stated that this assessment may therefore be construed as
“no limitation to lifting.” The panel has reservations as to the reasonableness of the ministry
replacing the “no lifting” assessment with its opposite “no limitations.” However, considering that
in the AR the GP assessed the appellant as independent for lifting and carrying and holding,
and independent for such DLA tasks requiring some lifting as food preparation, laundry and
basic housekeeping, and carrying purchases home, and taking into account the inconsistency
with the “no lifting” assessment in the MR, the panel concludes that there is insufficient
evidence to establish whether, and to what degree, the appellant's ability to lift (and carry and
hold) is restricted by his impairment.
Under section 2(1) of the EAPWDA, an assistive device is “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.” In the reconsideration decision, the ministry noted that in the
AR the GP indicated that the appellant requires the use of an assistive device for climbing stairs
(“has to use hand rail”). The ministry found that a handrail is not an assistive device as defined
in the legislation, as it is not specifically designed to assist a person with an impairment perform
a daily living activity. As a handrail is usually mandated by a building code for the safety of all
persons using stairs, it cannot be said to be designed specifically for a person with a physical
impairment for use when climbing stairs. The panel therefore finds that the ministry was
reasonable in not considering a handrail as an assistive device. Similarly, the ministry found the
use of the shopping cart while shopping or sitting while dressing is not considered as use of an
assistive device. Since shopping carts are available to the shopping public, and a bed or chair
to sit on while dressing are everyday items, the panel also finds that the ministry was
reasonable in not considering these articles to be assistive devices under the legislation.
The ministry also reviewed the assessments provided by the GP in the AR of the appellant's
ability to manage activities requiring mobility and physical ability. The GP reported that the
appellant takes significantly longer than typical with walking outdoors (“If walks for more than 10
minutes reports has to stop due to pain”) and climbing stairs. The ministry noted that, although
prompted in the application form, the GP does not describe how much longer it takes. The
ministry stated, reasonably in the panel’s view, that without this information, it is difficult to
determine whether the extra time taken constitutes a significant restriction to his ability to
manage these activities.
The ministry also noted that the GP indicated that the appellant is independently able to
manage all other activities requiring mobility and physical ability including walking indoors,
standing, lifting, and carrying and holding. While the GP has indicated that the appellant takes
significantly longer with walking outdoors and climbing stairs, as noted above, the extra time
taken is not described. In addition there is no indication that the appellant requires assistance
from another person with any of these mobility and physical ability activities. The ministry further
noted that the additional information provided by the GP at reconsideration regarding the
appellant's physical functioning does not differ substantially from that which was provided in the
application.
Based on the foregoing analysis respecting the level of independent physical functioning
reported by the GP, the panel finds that the ministry was reasonable in determining that the
functional abilities assessed in the PWD application demonstrate limitations to physical
functioning due degenerative disc disease and sciatica-like pain down the right leg that speak
to a mild to moderate, rather than a severe, impairment of physical functioning.
Severity of mental impairment
The appellant did not expressly advance an argument with respect to a severe mental
impairment. The ministry’s position is that the information provided by the GP does not establish
a severe mental impairment. As the ministry noted, the GP has not diagnosed a medical
condition consistent with a mental disorder and indicated that the appellant does not have any
significant cognitive and emotional deficits. Additionally, the GP marks as “N/A” the sections in
the AR on impacts of mental impairment on daily functioning, and the support/supervision
required for social functioning, and provides no information on the impact of the appellant's
impairment on his immediate and extended social networks.
For the foregoing reasons, the panel finds that the ministry was reasonable in its determination
that the evidence has not established a severe mental impairment.
Direct and significant restrictions in the ability to perform DLA
In the reconsideration decision, the ministry held that it is not satisfied that the appellant has a
severe impairment that, in the opinion of the prescribed professional, directly and significantly
restricts his ability to perform the DLA set out in the legislation. The ministry noted that while the
legislation does not specifically require the frequency and duration of restrictions to be
explained, the ministry finds such information valuable in determining the significance of the
restrictions.
The panel notes that, according to the legislation, the direct and significant restriction in the
ability to perform DLA must be the result of a severe impairment, a criterion not established in
this appeal. The legislation – section 2(2)(b)(i) of the EAPWDA – requires the minister to assess
direct and significant restrictions to DLA in consideration of the opinion of a prescribed
professional, in this case the GP. This does not mean that other evidence should not be
factored in as required to provide explanation of the professional evidence, but the legislative
language is clear that a prescribed professional’s evidence is fundamental to the ministry’s
determination whether it is “satisfied.” And for the minister to be “satisfied,” it is reasonable for
the ministry to expect that a prescribed professional provides a clear picture of the extent to
which the ability to perform DLA is restricted, as assessed in terms of the nature and duration of
help required, in order for the ministry to determine whether the restrictions are “significant.”
In reaching its conclusion regarding this criterion, the ministry reviewed the information provided
by the GP in the MR and AR (see Part E above under Ability to perform DLA). In particular, the
ministry referred to the GP assessing the appellant as requiring continuous assistance with all
activities associated with the DLA of management of finances (banking, budgeting, paying rent
and bills), stating that the appellant has no bank account, needs to use a payday loan company,
and is in financial difficulties. The ministry found that the need for assistance with DLA must
result from an impairment that is directly related to a medical condition. The fact that the
appellant does not have a bank account and relies on a payday loan company to cash his
cheques does not appear to have any relation to his medical condition. The ministry explained
that the fact that the appellant is encountering financial difficulties may be indirectly related to
his medical condition in that he is no longer able to work. However, as previously discussed in
the decision, employability or vocational ability is not a criterion used in assessing eligibility for
PWD designation. While increased financial assistance may be an outcome of PWD
designation, the need for such assistance is not a criterion for eligibility and given the ministry's
explanation, the panel finds that the ministry was reasonable in not considering the need for
continuous assistance for this DLA to be a factor regarding the section 2(2)(b)(i) criterion.
The ministry also noted that the GP had indicated that the appellant needed to use an assistive
device for dressing (“sits to dress”) and going to and from stores (“shops with cart for support”).
The ministry found that neither sitting to dress nor using a shopping cart reflect the use of an
assistive device as defined in section 2(1) of the EAPWDA. Considering the discussion above
under “Severity of physical impairment,” the panel finds that the ministry was reasonable in
concluding that these tasks did not involve the use of an assistive device as defined in the
legislation.
The ministry further noted that the GP indicated that the appellant takes significantly longer for
going to and from stores (“takes about twice as long”). The ministry took the position that it does
not consider taking twice as long to complete an activity as indicative of a severe restriction to
one's ability to manage it. The panel finds the ministry’s position reasonable, considering that
the legislation requires any restriction to be significant, and there is no information provided as
to the total amount of time involved that would enable the ministry to determine how significantly
it factored into the appellant’s daily routine.
The ministry then noted that the GP assessed the appellant as independently able to complete
all other daily living activities, including: all those associated with personal care, except dressing
as noted; basic housekeeping; all those associated with shopping for personal needs, except
taking twice as long going to and from stores; and all those associated with meal preparation,
managing medications and getting into and out of a vehicle.
Given that a severe impairment has not been established, and considering the above analysis
and the overall level of independence reported by the GP, the panel finds that the ministry was
reasonable in determining that the information provided did not confirm that the appellant has a
severe impairment that significantly restricts his ability to perform DLA continuously or
periodically for extended periods, and that this legislative criterion has therefore not been met.
Help required
In the reconsideration decision, the ministry held that, as it has not been established that DLA
are significantly restricted, it cannot be determined that significant help is required.
Section 2(2)(b)(ii) of the EAPWDA requires that, as a result of being directly and significantly
restricted in the ability to perform DLA either continuously or periodically for extended periods, a
person must also require help to perform those activities. That is, the establishment of direct
and significant restrictions under section 2(2)(b)(i) is a precondition of meeting the need for help
criterion. Help is defined in subsection (3) as the requirement for an assistive device, the
significant help or supervision of another person, or the services of an assistance animal in
order to perform a DLA.
While the GP reports that the appellant benefits from the assistance of friends, though without
any further explanation, since the ministry reasonably determined that direct and significant
restrictions in the appellant’s ability to perform DLA have not been established, the panel finds
that the ministry reasonably concluded that under section 2(2)(b)(ii) of the EAPWDA it cannot
be determined that the appellant requires help to perform DLA.
Conclusion
The panel finds that the ministry’s reconsideration decision, which determined that the appellant
was not eligible for PWD designation, was reasonably supported by the evidence. The panel
therefore confirms the ministry’s decision. The appellant is thus not successful.
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