PART C – DECISION UNDER APPEAL
The decision under appeal is the Ministry of Social Development and Poverty Reduction (ministry) reconsideration
decision dated 6 November 2017, which determined that the appellant was not eligible for persons with disabilities
designation (PWD) because he had not met all of the legislated criteria under section 2 the Employment and
Assistance for Persons with Disabilities Act. The ministry determined that the appellant had demonstrated that 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 further determined that the appellant had not demonstrated that he has a severe mental
or 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 direct and significant restrictions, he requires help to perform
those activities.
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
Evidence before the ministry at reconsideration consisted of the following:
1.
The appellant’s PWD Application
The Application contained:
A Medical Report (MR) dated 9 August 2017, completed by the appellant’s general practitioner (GP)
who has seen the appellant 2-10 or more times in the past 12 months and has known the appellant for
1 year.
An Assessor Report (AR) dated 9 August 2017, completed by the appellant’s GP.
A Self Report (SR) dated 5 August 2017, completed by the appellant.
The panel will first summarize the evidence from the PWD Application as it relates to the PWD criteria at issue in
this appeal.
Diagnoses
In the MR, the GP specifies the following diagnoses as related to the appellant’s impairment:
Paranoid schizophrenia
Anxiety disorder with agoraphobia
In the Health History section of the MR, the GP provides the following commentary: he has been hospitalized in
[another province] and also here. Frank psychotic behaviour in [another province]. Dx (diagnosis) paranoid
schizophrenia. Anxiety state with agoraphobia.
In the AR, the GP has responded to the question “What are the applicant’s mental or physical impairments that
impact his/her ability to manage Daily Living Activities?” with the comments: psychologic illness which makes
functioning in society difficult.
Severity of mental impairment
MR:
The GP indicates that the appellant suffers from paranoid schizophrenia and anxiety disorder with agoraphobia.
The GP indicates that the appellant has difficulties with communication and provides the commentary: he has some
difficulty conceptually – concrete thinker.
The GP indicates that the appellant has significant deficits with cognitive and emotional functioning in the areas of
executive, memory, psychotic symptoms, emotional disturbance and attention. The GP comments: these
accompany the psychiatric disorder.
AR:
The GP assesses the appellant’s ability to communicate as satisfactory in all areas (speaking, reading, writing and
hearing).
The GP assess the appellant’s cognitive and emotional functioning as having minimal impacts on daily functioning
in the area of bodily function, consciousness, motor activity, language, and other emotional or mental problems.
Moderate impacts on daily functioning are assessed in the areas of emotion, impulse control, insight and
judgement, attention/concentration, executive, memory, motivation, psychotic symptoms and other
neuropsychological problems.
SR:
The appellant reports that he has really bad anxiety and depression that get in the way of life. He has also been
told he may have PTSD. He reports being nervous and uncomfortable around people, which affects him going out
and working. He reports having panic attacks all the time and would not be able to cope without his medication. He
states that he has tried to work but his anxiety causes him to miss work and he gets fired; he has lost 4 jobs in the
past 10 months and has lost his home. The appellant also reports bad sleeping conditions, not wanting to be in
public, low/minimal self esteem, loss of focus and concentration, bad communication and other things.
Severity of physical impairment
MR:
For functional skills, the GP indicates that the appellant can walk 4+ blocks unaided, climb 5+ steps unaided, has
no lifting limitations, and remain seated without limitation.
The GP indicates that the appellant does not require any prostheses or aids for his impairment.
AR:
The GP assesses the appellant as independent with walking indoors and outdoors, climbing stairs, standing, lifting
and carrying and holding.
SR:
The appellant does not provide any information relating to a physical impairment.
Ability to perform DLA
MR:
The GP indicates that the appellant has not been prescribed medication that interferes with his ability to perform
DLA.
The GP indicates that the appellant requires continuous assistance with mobility outside of the home and use of
transportation and periodic assistance with personal self-care, management of medications, and management of
finances. The GP indicates that it is unknown whether the appellant’s ability to perform basic housework and daily
shopping are restricted. The GP indicates that the appellant’s social functioning is restricted but does not indicate
whether the restriction is periodic or continuous. The GP indicates that the appellant’s ability to perform mobility
inside the home is not restricted.
AR:
The GP indicates that the appellant is independent with all activities in the following listed areas: personal care;
basic housekeeping; shopping; and transportation.
The GP assesses the appellant as independent with some meals activities (meal planning and safe storage of food)
and requires periodic assistance with others (food preparation and cooking). The GP indicates that the appellant
requires periodic assistance with all pay rent and bills activities (banking, budgeting and pay rent and bills). The GP
assess the appellant as independent with the medications activity of filling/refilling prescriptions and indicates that
he requires periodic assistance with taking as directed and safe handling and storage.
SR:
The appellant does not provide any information relating to the DLA listed in the PWD application.
Section 2(1)(b) DLA
The following DLA are applicable to a person who has a severe mental impairment:
Make decisions about personal activities, care or finances
MR:
The GP indicates that it is unknown whether the appellant’s ability to perform daily shopping is restricted.
The GP indicates that continuous assistance is required with transportation.
The GP indicates that the appellant’s ability to perform self-care, management of medication and management of
finances is periodically restricted.
AR:
The GP indicates that the appellant is independent with all personal care, the shopping activities of readings labels,
making appropriate choices, and paying for purchases; the meals activities of meal planning and safe storage; the
medication activity of filling/refilling prescriptions; and the transportation activity of using transit schedules and
arranging transportation.
The GP indicates that the appellant is periodically restricted with food preparation and cooking; all pay rent and bills
activities; and the medications activities of taking as directed and safe handling and storage.
Relate to, communicate or interact with others effectively**
MR:
The GP indicates that the appellant has difficulties with communication.
The GP indicates that the appellant’s social functioning is restricted.
The GP has provide the Additional Functional Skills comments:
he is anxious in public;
he shies away from confrontation;
would avoid going to work;
has difficulty with interpersonal relations and communication;
poor self-esteem.
AR:
The GP assesses the appellant’s ability to communicate as satisfactory in all areas. In assessing social functioning
DLA, the GP indicates that the appellant is independent with appropriate social decisions and requires periodic
support/supervision to develop and maintain relationships; interact appropriately with others (has difficulties talking
with others); deal appropriately with unexpected demands (does not deal well with changes); and secure
assistance from others. The GP indicates that the appellant has marginal functioning in both immediate social
networks and extended social networks and comments: has few.
SR:
The appellant states that he has bad communication.
Help required
MR:
The GP indicates that the appellant does not require any prostheses or aids for his impairment.
The GP comments that the appellant needs assistance to arrange his life, find a suitable job and accommodation.
AR:
The GP does not describe the type and amount of assistance required for any DLA.
The GP indicates that health authority professionals provide help required for daily living activities.
In response to the prompt to specify what help is required but there is none available, the GP answers: community
service for advice/decision making.
The GP indicates ”N/A” in relation to assistive devices required by appellant.
The GP has not responded to whether or not the appellant has an assistance animal.
2.
Request for Reconsideration
In the Request for Reconsideration, dated 23 October 2017, the appellant wrote that his panic/anxiety attacks are
very severe and not under his control, causing him to lose several jobs. This has put him in a position where he
cannot keep a job and has lost several in the past few months. He is on medication and this is a serious problem
for him. He has tried alternatives with no success. His anxiety has put him on the street; as a result of losing work,
he has lost his home. This is an example of how serious this problem is for him. He hopes the reconsideration is
passed. He plans to volunteer while on disability to test his anxiety and panic attacks and get back into the work
force.
3.
Reconsideration Documents
A letter dated 23 October 2017, from the appellant’s GP, which stated: [Appellant] suffers from an anxiety disorder which
causes him to avoid situations where he feels uncomfortable. This will include his not going to work if he feels challenged. He
has lost 4 jobs in he past few months because of this anxiety reaction. He is in need of support and hopefully this situation will
become less of a factor in his life in the future.
Additional information before the panel on appeal consisted of the following:
Notice of Appeal
In the Notice of Appeal dated 21 November 2017, the appellant wrote as reasons for appeal: They claim that me
being not fit to work does not interfere with my daily living. Unfortunately I strongly disagree.
Hearing Submissions
Appellant
The appellant explained that he disagrees with the ministry about work not being a part of daily living; he argued
that a job is a major part of daily living. He stated that he told the ministry he has had trouble finding work and
holding a job and he has been on the street for 5 months. The appellant explained that he cannot control his
anxiety and panic attacks and this affects his life, his relationships, employment and his living situation. He
explained that he is frustrated and upset because he has a serious condition and is on a lot of medication; he has
his doctor’s support and thought this would help. He is in a really bad spot. He explained that he has a hard time
being around people and talking about his conditions; he needs help to get his life back together.
Ministry
The ministry relied on the reconsideration decision.
Admissibility
The panel finds that there is no information before it that would require an admissibility determination in accordance
with section 22 (4)(b) of the Employment and Assistance Act.
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 PWD designation 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 mental or severe physical impairment;
that 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:
Persons with disabilities
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 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).
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.
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 the evidence, including that of the appellant. Diagnosis of a serious medical condition
or the identification of mental or physical deficits does not in itself determine severity of impairment.
Severity of physical impairment
In the reconsideration decision, the ministry determined that it was not satisfied that this criterion had been met. In
making this determination, the ministry considered the functional skills assessment by the GP noting that the
appellant is able to walk 4+ blocks unaided, climb 5+ unaided, has no limitations with lifting and can remain seated
without limitation.
The panel finds that the ministry’s determination was reasonable. The panel notes that the appellant has not
argued that he suffers from a severe physical impairment in the request for reconsideration submission, notice of
appeal or at the hearing. The panel notes that the information provided by the GP in the MR and AR does not
speak to a physical impairment or provide a diagnosis relating to a physical impairment. The panel notes that the
GP’s assessments of the appellant’s functional capacity and mobility and physical ability reflect a physically
independent individual who has some difficulty with mental functioning. The panel finds that the evidence
reasonably supports the ministry’s determination that a severe physical impairment has not been established.
Severity of mental impairment
In the reconsideration decision, the ministry found that the appellant does not a severe mental impairment. The
ministry noted that the GP’s assessment in the MR indicates that the appellant has difficulties with communication
and in the AR indicates that the appellant’s commination skills are satisfactory. The ministry considered that in the
MR the GP indicates significant deficits with cognitive and emotional functioning in the areas of executive, memory,
psychotic symptoms, emotional disturbance and attention/sustained concentration and in the AR the GP assesses
moderate impacts in the areas of emotion, impulse control, insight and judgement, attention/concentration,
executive, memory, motivation, psychotic symptoms and other neuropsychological problems and minimal impacts
in the areas of bodily functions, consciousness, motor activity, language, and other emotional or mental problems.
The ministry noted that no major impacts were indicated. The ministry also considered the GP’s assessment of the
appellant’s ability to mange DLA and concluded that the assessment in the AR of the appellant’s ability to make
decisions about personal activities care and finances did not indicate that his abilities were severely restricted. As
well, the ministry considered the GP’s assessment of the appellant’s social functioning abilities. In this
reconsideration, the ministry noted that the GP has indicated that the appellant requires periodic
assistance/supervision with some areas of social functioning but did not indicate the nature frequency or duration of
support/supervision the appellant receives. The ministry noted that the GP has indicated that the appellant has
marginal functioning in his immediate and extended social networks. The ministry also considered that the GP did
not provide information in relation to the presence of any safety issues or support/supervision required to maintain
the appellant in the community. The ministry concluded that the information provided did not establish a severe
impairment in mental functioning.
The panel notes that the appellant has argued at reconsideration and on appeal that he suffers from severe anxiety
and panic attacks that are beyond his control and have impacted his life and his ability to maintain employment and
housing. He argued that he has his doctor’s support and is taking several medications; he has tried to cope and
cannot. The panel finds that the ministry’s determination that a severe mental impairment has not been established
was reasonable. The panel finds that while the information provided in the PWD application, SR, Request for
Reconsideration and at the hearing with respect to the appellant’s mental impairment reflect an individual with
serious mental health diagnoses the information provided does not sufficiently or coherently reflect a severe
impairment resulting from these diagnoses. The appellant’s evidence at the hearing is consistent with this
conclusion. The panel notes that the information provided by the appellant and the GP emphasize the appellant’s
inability to work and, as noted by the ministry in the reconsideration decision, work or employability is not a
consideration for eligibility for PWD designation because employability is not a criterion in section 2(2) of the
EAPWDA, nor is it listed among the prescribed daily living activities in section 2 of the EAPWDR. The panel also
notes the absence of safety concerns or a need for support or supervision to maintain the appellant in his
community. The panel finds that the evidence reasonably supported the ministry’s conclusion that the information
provided does not establish a severe mental impairment.
Direct and significant restrictions in the ability to perform DLA
The legislation specifies that the minister assess direct and significant restrictions in the ability to perform DLA in
consideration of the opinion of a prescribed professional, in this case the appellant’s GP. This does not mean that
other evidence should not be considered, but it is clear that a prescribed professional’s evidence is fundamental. At
issue in this assessment 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 applicable to a person with a severe mental or physical impairment.
The ministry was not satisfied that the appellant has a severe impairment that, in the opinion of a prescribed
professional, directly and significantly restricts his ability to perform DLA. In reaching this conclusion, the ministry
noted that the appellant has not been prescribed medication or treatment that impacts his ability to perform DLA.
The ministry noted that the GP had completed section E of the MR as well as the AR and that the assessments
were not entirely consistent with one another. The ministry noted that in the MR the GP indicated that the appellant
requires continuous assistance with mobility outside of the home and use of transportation but in the AR the GP
indicated that the appellant is independently able to manage shopping and use of public and private transportation.
The ministry considered the GP’s assessment in the MR that the appellant requires periodic assistance with
personal self care, medications and finances and in the AR indicates that the appellant requires periodic assistance
with finances and two aspects of medications but is independent with all aspects of self care. The ministry
considered that the GP indicates in the AR that the appellant requires periodic assistance in several activities (food
preparation, cooking, banking, budgeting, paying rent and bills, taking medications as directed and safe handling
and storage of medications). However, the ministry noted that the GP did not provide information about the nature
frequency or duration of assistance required and concluded that this makes it difficult to determine if the assistance
required is for prolonged periods of time and may be considered significant. The ministry noted that the appellant is
assessed as independent in all other activities of daily living, and noted the absence of additional information about
DLA at reconsideration.
The panel finds that the ministry’s determination that the assessments provided by the GP do not establish that a
severe impairment significantly restricts the appellant’s ability to perform DLA continuously or periodically for
extended periods was reasonable. The panel notes that the GP has provided incomplete, and in some cases
inconsistent, assessments of restrictions to the appellant’s ability to perform DLA in the MR and AR. The panel
notes that the legislation requires that where restrictions are assessed as periodic they must be restricted for
extended periods. As such, the panel finds it 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. The panel notes that this
information has not been provided in the assessments completed by the GP. The panel also notes that the
appellant did not argue at the hearing or at reconsideration that his ability to perform any of the listed DLA is
restricted. Rather, the appellant stated that he disagrees that working is not an aspect of daily living. As such, the
panel concludes that the evidence reasonably supported the ministry’s determination on this criterion.
Help Required
The legislation 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.
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, significant help or
supervision of another person, or the services of an assistance animal in order to perform a DLA.
In the reconsideration decision, the ministry determined that because it had not been established that appellant’s
ability to perform DLA were significantly restricted, it cannot be determined that significant help is required. The
information provided by the GP is that the appellant needs assistance to arrange his life, find a suitable job and
accommodation. The GP also stated that the appellant requires, but does not receive, assistance from community
services for advice/decision making. The appellant did not argue that he requires assistance to perform any listed
DLA. As noted above, the panel finds that the ministry reasonably determined that direct and significant restrictions
in the appellant’s ability to perform DLA have not been established. As such, 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, determining that the appellant had not met all of the
legislated criteria for PWD designation, was a reasonable application of the legislation in the circumstances of the
appellant and reasonably supported by the evidence. The panel confirms the ministry’s reconsideration decision.
The appellant is not successful on appeal.
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