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 December 6, 2017, which held that the appellant did not meet
3 of the 5 statutory requirements of section 2 of the Employment and Assistance for Persons with
Disabilities Act for designation as a person with disabilities (PWD). The ministry found that the
appellant met the age and duration requirements, but was not satisfied that:
the evidence establishes that the appellant has a severe physical or mental impairment;
the appellant’s daily living activities (DLA) are, in the opinion of a prescribed professional,
directly and significantly restricted either continuously or periodically for extended periods; and
as a result of those restrictions, the appellant requires an assistive device, the significant help
or supervision of another person, or the services of an assistance animal to perform DLA.
PART D – Relevant Legislation
Employment and Assistance for Persons with Disabilities Act (EAPWDA), section 2
Employment and Assistance for Persons with Disabilities Regulation (EAPWDR), section 2
PART E – Summary of Facts
The information before the ministry at the time of reconsideration included the appellant’s PWD
application comprised of a Medical Report (MR) and an Assessor Report (AR) both completed by the
appellant’s general practitioner (the “Physician”) dated June 21, 2017, and the appellant’s Self-Report
(SR) dated August 1, 2017.
The appellant’s request for PWD designation was denied on October 23, 2017. On November 27,
2017 the ministry received the appellant’s request for reconsideration (the “RFR”) dated November
22, 2017.
On December 12, 2017, the tribunal received the appellant’s Notice of Appeal dated December 10,
2017.
Summary of relevant evidence
Diagnoses
In the MR, the Physician indicates that the appellant has been diagnosed with lumbar disc herniation
and depression.
The Physician indicates that the appellant has been his patient for three years and that he has seen
him 11 or more times in the past 12 months.
Physical Impairment
In the MR for Functional Skills, the Physician indicates that the appellant is able to walk less than 1
block unaided on a flat surface, can climb 2 to 5 steps unaided, can lift 2 to 7 kg and can remain
seated less than 1 hour. In the Health History portion of the MR, the Physician indicates that the
appellant has severe back pain that radiates to his leg, that he is not a surgical candidate, and he is
unable to lift more than 20 pounds.
In the AR, the Physician indicates that the appellant is independent with standing but requires
continuous assistance from another person with lifting and carrying and holding, explaining that the
appellant is unable to lift/carry more than 15 pounds. With respect to walking indoors, walking
outdoors, and climbing stairs, the Physician indicates that the appellant takes significantly longer than
typical (2-3x longer) and uses an assistive device with climbing stairs.
In the SR the appellant states that his back pain does not allow him to sleep well because the pain is
constant. The appellant states that he cannot work because of his back pain and that he cannot
stand up for long or drive for long because he cannot sit for more than 20 minutes. The appellant
states that he cannot lift more than 15 pounds and bending is impossible. The appellant states that
even though he was diagnosed with diabetes 7 years ago, he continued working in construction as a
carpenter but three years ago his life changed totally and he is unable to work.
Mental Impairment
In the MR, the Physician indicates that the appellant has significant deficits with cognitive and
emotional function in the areas of memory, emotional disturbance, motivation, impulse control, and
attention or sustained concentration. In the Health History portion of the MR the Physician indicates
that the appellant’s mood is labile and that he has anger outbursts and poor concentration.
In the AR, the Physician indicates that the appellant’s ability to communicate with speaking, reading,
writing and hearing is satisfactory. For Cognitive and Emotional Functioning the Physician indicates
that the appellant has major impact to emotion and attention/concentration, moderate impact to bodily
functions (sleep disturbance), impulse control, insight and judgment, memory, motivation, and other
emotional or mental problems (hostility), and no impact in the areas of consciousness, executive,
motor activity, language, psychotic symptoms, or other neuropsychological problems.
In the SR, the appellant states that he takes medication for his depression.
DLA
In the MR the Physician indicates that the appellant has not been prescribed medications that
interfere with his ability to perform DLA. In the Health History portion of the MR, the Physician
indicates that the appellant cannot repetitively bend as it interferes with his DLA.
In the AR, the Physician indicates that with respect to personal care the appellant is independent with
feeding self and regulating diet but takes significantly longer than typical with dressing, grooming,
bathing and toileting (2-3x longer as he has to sit to perform tasks) and he takes significantly longer
than typical with transfers (in/out of bed) and transfers (on/off chair), explaining that he takes longer.
The Physician indicates that the appellant requires continuous assistance with laundry and basic
housekeeping explaining that he “needs help”. With respect to shopping, the Physician indicates that
the appellant is independent with reading prices and labels, making appropriate choices and paying
for purchases but requires continuous assistance from another person with going to and from stores
(takes significantly longer than typical and needs a ride) and carrying purchases home (needs help).
With respect to meals, the Physician indicates that the appellant is independent with meal planning
and safe storage of food but that he requires periodic assistance from another person with food
preparation and cooking, explaining that he cannot stand for long periods and has decreased
motivation.
The Physician indicates that the appellant is independent with all aspects of paying rent and bills and
medications.
With respect to transportation, the Physician indicates that the appellant is independent with using
public transit and using transit schedules and arranging transportation but takes significantly longer
than typical with getting in and out of a vehicle (takes 2x longer).
For social functioning, the Physician indicates that the appellant is independent with making
appropriate social decisions and interacting appropriately with others, but requires periodic
support/supervision with developing and maintaining relationships, dealing appropriately with
unexpected social demands and securing assistance from others, commenting “Depression Sx”. The
Physician indicates that the appellant has marginal functioning in his immediate and extended social
networks.
In the SR, the appellant states that he has constant back pain, poor sleep, and depression that make
it difficult for him to perform small tasks.
Need for Help
In the MR, the Physician indicates that the appellant does not require any prosthesis or aids for his
impairment.
In the AR, the Physician indicates that the help required for DLA is provided by the appellant’s family.
The Physician indicates that the appellant uses a bath bar and toilet aid. The Physician indicates that
the appellant does not have an Assistance Animal.
Additional information provided
In his Notice of Appeal dated December 10, 2017 the appellant states that he disagrees with the
reconsideration decision because he has severe depression, chronic back pain, and cannot work due
to his back pain and diabetes related illness. The appellant states that he will be going through back
surgery next year (2018). The appellant states that he would like to request that his medical
prescriptions be paid for, because what he receives now isn’t enough to pay for them.
At the hearing the appellant stated, through an interpreter, that he does not have enough income to
cover his monthly bills and pay for his prescriptions. The appellant stated that after he pays his rent,
car insurance, phone bill, and blood glucose monitoring strips he does not have enough money for
food or prescriptions. He is asking that the ministry pay for his prescriptions, as he cannot afford
them. The appellant states that he has severe back pain, cannot work, severe depression, and his
back pain has worsened in the last 1-2 months, particularly after he had a back injection. The
appellant stated that he used to be able to lift up to 15 pounds but now, because his condition has
worsened, he cannot lift more than 5 pounds. The appellant states that he is seeing a specialist later
this month to find out the date for his back surgery.
At the hearing the appellant stated that the Physician completed the MR and the AR and gave him
the forms but that he did not have an interpreter to translate the information for him. The appellant
stated that while the reconsideration decision had not been translated to him he understood that the
ministry relied heavily on the information in the MR and the AR in denying his application for PWD
designation.
The ministry did not attend the hearing. Having confirmed that the ministry was notified of the hearing
the panel proceeded in the ministry’s absence, in accordance with section 86(b) of the Employment
and Assistance Regulation.
Admissibility of New Information
The panel has admitted the information in the appellant’s Notice of Appeal and oral testimony
regarding his back pain, inability to work, financial circumstances, depression, and diabetes as it is
evidence that is in support of information and records that were before the ministry at the time of
reconsideration, in accordance with section 22(4) of the Employment and Assistance Act.
However the panel has not admitted the information in the Notice of Appeal or the appellant’s oral
testimony indicating that he is now unable to lift more than 5 pounds or that he is going for back
surgery in 2018 as that is new information that was not before the ministry at the time of
reconsideration.
PART F – Reasons for Panel Decision
Issue on Appeal
The issue on appeal is whether the ministry’s decision to deny the appellant designation as a PWD
was reasonably supported by the evidence or was a reasonable application of the applicable
enactment in the circumstances of the appellant. In particular, was the ministry reasonable when
concluding it was not satisfied that
a severe physical or mental impairment was established;
the appellant’s daily living activities (DLA) are, in the opinion of a prescribed professional,
directly and significantly restricted either continuously or periodically for extended periods; and
as a result of those restrictions, in the opinion of a prescribed professional, the appellant
requires help, as it is defined in the legislation, to perform DLA?
Relevant Legislation
EAPWDA
2 (1) In this section:
"assistive device" means a device designed to enable a person to perform a daily living activity that, because of a severe
mental or physical impairment, the person is unable to perform;
"daily living activity" has the prescribed meaning;
"prescribed professional" has the prescribed meaning.
(2) The minister may designate a person who has reached 18 years of age as a person with disabilities for the purposes
of this Act if the minister is satisfied that the person has a severe mental or physical impairment that
(a) in the opinion of a medical practitioner or nurse practitioner is likely to continue for at least 2 years, and
(b) in the opinion of a prescribed professional
(i) directly and significantly restricts the person's ability to perform daily living activities either
(A) continuously, or
(B) periodically for extended periods, and
(ii) as a result of those restrictions, the person requires help to perform those activities.
(3) For the purposes of subsection (2),
(a) a person who has a severe mental impairment includes a person with a mental disorder, and
(b) a person requires help in relation to a daily living activity if, in order to perform it, the person requires
(i) an assistive device,
(ii) the significant help or supervision of another person, or
(iii) the services of an assistance animal.
(4) The minister may rescind a designation under subsection (2).
EAPWDR
Definitions for Act
2 (1) For the purposes of the Act and this regulation, "daily living activities",
(a) in relation to a person who has a severe physical impairment or a severe mental impairment, means the following
activities:
(i) prepare own meals;
(ii) manage personal finances;
(iii) shop for personal needs;
(iv) use public or personal transportation facilities;
(v) perform housework to maintain the person's place of residence in acceptable sanitary condition;
(vi) move about indoors and outdoors;
(vii) perform personal hygiene and self care;
(viii) manage personal medication, and
(b) in relation to a person who has a severe mental impairment, includes the following activities:
(i) make decisions about personal activities, care or finances;
(ii) relate to, communicate or interact with others effectively.
(2) For the purposes of the Act, "prescribed professional" means a person who is
(a) authorized under an enactment to practise the profession of
(i) medical practitioner,
(ii) registered psychologist,
(iii) registered nurse or registered psychiatric nurse,
(iv) occupational therapist,
(v) physical therapist,
(vi) social worker,
(vii) chiropractor, or
(viii) nurse practitioner, or
(b) acting in the course of the person's employment as a school psychologist by
(i) an authority, as that term is defined in section 1 (1) of the Independent School Act, or
(ii) a board or a francophone education authority, as those terms are defined in section 1 (1) of the School Act,
if qualifications in psychology are a condition of such employment.
(3) The definition of "parent" in section 1 (1) applies for the purposes of the definition of "dependent child" in section 1
(1) of the Act.
Alternative grounds for designation under section 2 of Act
2.1 The following classes of persons are prescribed for the purposes of section 2 (2) [persons with disabilities] of the
Act:
(a) a person who is enrolled in Plan P (Palliative Care) under the Drug Plans Regulation, B.C. Reg. 73/2015;
(b) a person who has at any time been determined to be eligible to be the subject of payments made through the
Ministry of Children and Family Development's At Home Program;
(c) a person who has at any time been determined by Community Living British Columbia to be eligible to receive
community living support under the Community Living Authority Act;
(d) a person whose family has at any time been determined by Community Living British Columbia to be eligible to
receive community living support under the Community Living Authority Act to assist that family in caring for the person;
(e) a person who is considered to be disabled under section 42 (2) of the Canada Pension Plan (Canada).
Panel Decision
The legislation provides that the determination of severity of an impairment is at the discretion of the
minister, taking into account all of the evidence including that of the appellant. However, the
legislation is also clear that the fundamental basis for the analysis is the evidence from a prescribed
professional respecting the nature of the impairment and its impact on daily functioning. While the
legislation does not define “impairment”, the 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.
Severe Physical Impairment
The appellant argues that he has a severe physical impairment as he has chronic back pain and
diabetes that prevent him from working. He stated that he has to use a railing when climbing stairs,
that he cannot bend over as it causes severe back pain, and that he cannot drive more than 15
minutes at a time. He stated that he wants the ministry to pay for his prescriptions, as he cannot
afford them.
The ministry’s position is that the information provided does not establish a severe physical
impairment. The reconsideration decision indicates that the assessments provided by the Physician
are problematic in that they are contradictory in nature. In particular, the reconsideration decision
notes that the Physician states that the appellant requires continuous assistance or is unable to lift
carry and hold, but he also indicates that the appellant is able to lift, carry and hold items that are less
than 15 pounds. As such, the ministry is not satisfied that the appellant requires continuous
assistance to lift, carry, and hold.
The reconsideration decision indicates that in the MR, the Physician indicates that the appellant can
climb 2-5 stairs unaided, but in the AR, the Physician indicates that the appellant requires an
assistive device to climb stairs. The ministry’s position is that this discrepancy makes it difficult to
determine the appellant’s ability to climb stairs. The reconsideration decision also indicates that
although the Physician indicates that it takes the appellant 2-3 times longer to walk indoors, walk
outdoors and climb stairs, the minister does not consider taking 2-3 times longer to be reflective of a
severe physical impairment.
The ministry acknowledges that the appellant has limitations to his physical functioning due to his
chronic back pain but finds that the information provided by the Physician does not establish the
presence of a severe physical impairment.
The panel finds that the ministry reasonably determined that the functional skills reported by the
Physician in the MR and the AR, when considered with the appellant’s evidence, are not indicative of
a severe physical impairment and that some information is contradictory in nature. For example,
while the Physician indicates in the AR that the appellant requires continuous assistance or is unable
to lift carry and hold, he indicates in the PR that the appellant is able to lift, carry and hold items that
are less than 15 pounds. The panel finds that the ministry was reasonable in determining that based
on the information provided, the appellant does not require continuous assistance to lift, carry, and
hold. In addition, the Physician indicates that the appellant is able to lift 2 to 7 kg, which is sufficient
ability to lift a variety of household and shopping items.
Although the Physician indicates that it takes the appellant 2-3 times longer to walk indoors, walk
outdoors and climb stairs, the panel finds that the ministry reasonably determined that taking 2-3
times longer is not reflective of a severe physical impairment, particularly taking into account that the
majority of the appellant’s functioning is independent.
The appellant’s evidence is that he has chronic back pain that is constant and that prevents him from
being able to sit or stand for lengthy periods of time. In the SR, the appellant indicates that his pain
prevents him from getting a good sleep and he has difficulty performing even small tasks. In the SR,
the appellant states that he cannot spend too much time standing up and he cannot sit for more than
20 minutes. He states that he cannot lift more than 15 pounds and bending is impossible.
At the hearing, the appellant’s oral argument focused more on the fact that he is unable to work and
that he does not have enough income to pay his monthly expenses and purchase his medications.
Although the appellant stated that he understood that the ministry relied heavily oh the Physician’s
assessments in the MR and the AR, the appellant’s arguments indicated a lack of understanding of
the legislation and the criteria required to meet the eligibility for PWD designation. In particular, the
panel notes that employability is not a criterion for designation as PWD.
Based on the foregoing, the panel therefore finds that the ministry reasonably determined that a
severe physical impairment has not been established.
Severe Mental Impairment
In the SR, the appellant states that he is depressed. At the hearing, the appellant stated that his
depression is bad. He also stated that he cannot afford to purchase the medications required to treat
his depression.
The ministry’s position is that while the Physician indicates that the appellant has significant deficits
with cognitive and emotional functioning in the areas of memory, emotional disturbance, motivation,
impulse control and attention or sustained concentration, in the AR the Physician describes emotion
and attention/concentration as having a major impact and all other areas to have a moderate impact
or no impact on the appellant’s daily functioning.
The ministry’s position is that although the appellant has some deficits to his cognitive and emotional
functioning, he is assessed as being able to independently perform activities, which are typically
difficult for someone with a severe mental impairment. In particular, the ministry notes that the
Physician confirms that the appellant does not need assistance to pay rent and bills, manage
medication or use public transportation. The ministry’s position is that the assessments of the
appellant’s cognitive and emotional functioning are more reflective of a moderate impairment of his
mental functioning.
The reconsideration decision notes that for social functioning, the Physician indicates that the
appellant requires periodic support or supervision to develop and maintain relationships, deal
appropriately with unexpected demands, and to secure assistance from others. The Physician also
indicates that the appellant has marginal functioning with respect to his immediate and extended
social networks. However, the ministry notes that the Physician does not describe the support or
supervision that the appellant requires to be maintained in the community and he does not indicate
there are any safety issues. The ministry’s position is that the assessments provided make it difficult
to determine the appellant’s overall level of social functioning and therefore, the minister is unable to
establish the presence of a severe mental impairment.
The panel finds that although the appellant has been diagnosed with depression, the ministry
reasonably concluded that the cumulative impact to cognitive and emotional functioning is not
considered indicative of a severe impairment of mental functioning. While the MR indicates that the
appellant has significant deficits with cognitive and emotional functioning in the areas of memory,
emotional disturbance, motivation, impulse control and attention or sustained concentration, the AR
indicates that there is major impact to emotional disturbance and attention or sustained concentration
and moderate impact to the areas of memory, motivation and impulse control. The Physician
indicates that there is no impact to the other listed areas of consciousness, executive, motor activity,
language, psychotic symptoms or other neuropsychological problems. In addition, for DLA where
one might expect memory and attention or sustained concentration to be an issue, such as paying
rent and bills and medications, the Physician indicates that the appellant is independent.
The panel also notes that while the Physician indicates that the appellant has moderate impact to the
area of impulse control, the Physician indicates that the appellant is independent with making
appropriate social decisions and interacting appropriately with others so the level of impact does not
indicate a severe level of impairment.
The panel notes that for social functioning, the Physician indicates that the appellant requires periodic
support or supervision to develop and maintain relationships, deal appropriately with unexpected
demands, and to secure assistance from others and that the Physician indicates that the appellant
has marginal functioning with respect to his immediate and extended social networks. However, the
Physician does not describe the support or supervision that the appellant requires to be maintained in
the community, just noting “Depression Sx” so the panel finds that the ministry reasonably concluded
that it is difficult to determine the appellant’s overall level of social functioning and the presence of a
severe mental impairment.
While the evidence must be considered in a broad way, given the lack of description of the
appellant’s periodic support/supervision needed and his relatively high level of functioning and high
level of independence the panel finds that the ministry reasonably determined that the information
provided is not evidence of a severe mental impairment.
Restrictions in the ability to perform DLA
Section 2(2)(b)(i) of the EAPWDA requires that the minister be satisfied that in the opinion of a
prescribed professional, a severe mental or physical impairment directly and significantly restricts the
appellant’s ability to perform DLA either continuously or periodically for extended periods. While other
evidence may be considered for clarification or support, the ministry’s determination as to whether or
not it is satisfied that the legislative criteria are met, is dependent upon the evidence from prescribed
professionals. The term “directly” means that there must be a causal link between the severe
impairment and the restriction. The direct restriction must also be significant. Finally, there is a
component related to time or duration – the direct and significant restriction may be either continuous
or periodic. If periodic, it must be for extended periods. Inherently, any analysis of periodicity must
also include consideration of how frequently the activity is restricted. All other things being equal, a
restriction that only arises once a year is less likely to be significant than one that occurs several
times a week. Accordingly, in circumstances where the evidence indicates that a restriction arises
periodically, it is appropriate for the ministry to require evidence of the duration and frequency of the
restriction in order to be “satisfied” that this legislative criterion is met.
DLA are defined in section 2(1) of the EAPWDR and are listed in both the MR and the AR sections of
the PWD application with the opportunity for the prescribed professional to check marked boxes and
provide additional narrative. DLA, as defined in the legislation, do not include the ability to work.
The appellant’s position is that the ministry should find that he qualifies for PWD designation as he
has constant back pain and depression, cannot work and needs financial assistance to pay for the
cost of his medications. The appellant’s evidence is that he can shop but purchases items “little by
little”. He can prepare his meals although he often buys items that are easy to cook or microwave
and that he cannot clean the bathroom as it is very difficult to bend over due to his back pain.
The ministry’s position is that based on the information provided, there is not enough evidence to
confirm that the appellant has a severe impairment that significantly restricts his ability to perform
DLA continuously or periodically for extended periods. The reconsideration decision notes that while
the Physician indicates that the appellant has not been prescribed medications and/or treatments that
interfere with his ability to perform DLA.
The reconsideration decision states that although the Physician indicates continuous restrictions to
laundry, basic housework, going to and from stores and carrying purchases home, noting that the
appellant needs help. However the ministry finds the level of assistance is not supported by the
assessments of the appellant’s basic physical functioning and activities that require mobility and
physical ability. For example, the ministry notes that the Physician indicates that the appellant is not
restricted with standing and can walk indoors without assistance, although more slowly; and as the
appellant is able to lift, carry and hold up to 15 pounds, the minister determined that the appellant
would be able to perform these activities at some level and therefore ”requiring continuous assistance
or is unable” is not an accurate description of the appellant’s ability to manage these activities.
The reconsideration decision indicates that while the Physician indicates that the appellant takes
significantly longer than typical with dressing, grooming, bathing toileting, transfers in and out of bed,
transfers on and off chair (takes 2-3 times longer, has to sit to perform tasks), going to and from
stores (needs help) and getting in and out of a vehicle (takes 2 times longer), the ministry’s position is
that taking 2-3 times longer is not reflective of a significant restriction.
The reconsideration decision also notes that the Physician indicates that the appellant does not
require assistance to feed self and regulate diet, read prices and labels, make appropriate choices
and pay for purchases, plan meals, safely store food, bank, budget and pay rent and bills, fill/refill
prescriptions, take medications or safely handle and store medication.
The ministry’s position is that there is not enough evidence to establish that the appellant’s ability to
manage DLA is significantly restricted either continuously or periodically for extended periods of time
and that as a result, he requires significant assistance from others to complete them.
The panel finds that the ministry reasonably determined that there is not enough evidence to
establish that the appellant’s ability to manage DLA is significantly restricted either continuously or
periodically for extended periods of time and that as a result, he requires significant assistance from
others to complete them.
While the panel finds that the appellant has some restrictions to DLA, the information provided makes
it difficult to determine whether the appellant has significant restrictions to DLA. In particular, while
the Physician indicates continuous restrictions to laundry, basic housework, the Physician’s
assessments of the appellant’s basic physical functioning and activities that require mobility and
physical ability appears to contradict that information. For example, the Physician indicates that the
appellant is not restricted with standing and can walk indoors without assistance, although more
slowly; and as the appellant is able to lift, carry and hold up to 15 pounds, the assessments provided
do not provide a clear picture of the appellant’s ability to perform DLA. The panel finds that the
ministry reasonably determined that based on the information provided, the appellant would be able
to perform these activities at some level and therefore ”requiring continuous assistance or is unable”
is not an accurate description of the appellant’s ability to manage these activities.
The panel also finds that the ministry reasonably determined that while the Physician indicates that
the appellant takes significantly longer than typical with dressing, grooming, bathing toileting,
transfers in and out of bed, transfers on and off chair (takes 2-3 times longer, has to sit to perform
tasks), going to and from stores (needs help) and getting in and out of a vehicle (takes 2 times
longer), taking 2-3 times longer is not reflective of a significant restriction.
In addition, although the Physician indicates that the appellant requires periodic assistance with food
preparation and cooking, he did not provide any further information as to the nature of frequency of
assistance needed and the appellant’s evidence was that he is able to cook his meals.
With respect to social functioning, the Physician indicates that the appellant requires periodic
support/supervision with developing and maintaining relationships, dealing appropriately with
unexpected demands and securing assistance form others, noting “Depressive Sx”, but he does not
provide any further information to describe the degree and duration of support/supervision required.
It may be that the appellant’s DLA are more restricted than the information provided in the MR and
the AR but based on the above, given the inconsistencies in the information provided and the lack of
descriptions regarding the frequency and duration of his periodic restrictions, the panel finds that the
ministry reasonably determined that the information provided does not demonstrate that the appellant
has a severe impairment that significantly restricts his ability to perform DLA continuously or
periodically for extended periods.
Help to perform DLA
Section 2(2)(b)(ii) of the EAPWDA requires that, as a result of direct and significant restrictions in the
ability to perform DLA, a person requires help to perform those activities. Help is defined in
subsection (3) as the requirement for an assistive device, the significant help or supervision of
another person, or the services of an assistance animal in order to perform DLA.
The appellant’s position is that he requires help with DLA because he has back pain, depression,
diabetes, and he cannot work. The appellant states that he requires financial assistance to purchase
his medications.
The ministry argues that because it has not been established that DLA are significantly restricted, it
cannot be determined that help is required. The reconsideration decision also notes that in the MR
the Physician confirms that the appellant does not require any prostheses or aids as a result of his
impairment but in the AR the Physician indicates that the appellant uses bathing and toileting aids.
The ministry’s position is that this discrepancy makes it difficult to assess the level of assistance that
the appellant requires.
The panel notes that in the MR, the Physician indicates that the appellant does not require any
prosthesis or aids for his impairment but in the AR, the Physician indicates that the appellant uses a
bath bar and toileting aids. The panel finds that the ministry reasonably determined that this
discrepancy makes it difficult to assess the level of assistance that the appellant requires.
In addition however, given that confirmation of direct and significant restrictions with DLA is a
precondition of the need for help criterion and as the panel found that the ministry reasonably
determined that direct and significant restrictions in the appellant’s ability to perform DLA have not
been established, the panel also finds that the ministry reasonably concluded that it cannot be
determined that the appellant requires help to perform DLA as required by section 2(2)(b)(ii) of the
EAPWDA.
Conclusion
The panel finds that the ministry’s reconsideration decision, which determined that the appellant was
not eligible for PWD designation, was reasonably supported by the evidence and is a reasonable
application of the applicable enactment, and therefore confirms the decision. The appellant is not
successful on appeal.
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