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 February 2, 2018, 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 August 21, 2017, and the appellant’s Self-Report (SR) dated June 22, 2017.
The appellant’s request for PWD designation was denied on December 5, 2017. On January 5, 2018 the ministry
received the appellant’s Request for Reconsideration (the “RFR”) dated January 5, 2018 in which he stated that he
had not had a chance to obtain an appointment with his doctors but has appointments set for January 10 and 17,
2018.
Summary of relevant evidence
Diagnoses
In the MR, the Physician indicates that the appellant has anxiety, substance abuse (in remission), trigger finger,
right hand, date of onset not indicated and Tourette’s syndrome, date of onset 1993. degenerative disc disease,
date of onset not known, and chronic pain, date of onset December 2015. The Physician indicates that the
appellant has been her patient for seven years. The Physician indicates that the appellant is 175 cm and weighs
88.1 kg.
In the AR, the Physician indicates that the appellant’s impairments that impact his ability to manage DLA are severe
anxiety, depression, past substance abuse (in remission), Tourette’s syndrome, difficulty in executive functioning, in
memory, focus/concentration and in social interaction. The Physician indicates that she has seen the appellant 2-
10 times in the last year.
Physical Impairment
In the MR for Functional Skills, the Physician indicates that the appellant is able to walk 4+ blocks unaided on a flat
surface, can climb 5+ steps unaided, has no limitations with lifting or remaining seated.
In the AR, the Physician indicates that the appellant is independent with walking indoors, walking outdoors,
climbing stairs, standing, lifting and carrying and holding.
Mental Impairment
The MR indicates that the appellant has significant deficits with cognitive and emotional function in the areas of
executive, calculations, memory, emotional disturbance, motivation, and motor activity. The Physician indicates
that the appellant does not have any difficulties with communication.
In the Health History portion of the MR, the Physician indicates that the appellant has longstanding, significant
anxiety and depression and he has struggled with drug use in the past, in an attempt to manage his anxiety
symptoms. The Physician indicates that the symptoms include low mood, sadness, poor energy, poor motivation,
poor concentration and poor focus. The physician indicates that the appellant’s sleep is disrupted and that he has
a hard time leaving the house when his anxiety is high. The Physician indicates that the appellant has panic
attacks once a week, or occasionally more often with accompanying shortness of breath, palpitations, anxiety and a
sense of doom. The Physician indicates that the appellant’s anxiety worsens his Tourette’s (presents as constant
throat clearing), which is embarrassing to him, which then heightens his anxiety. The Physician indicates that the
appellant’s symptoms are occurring every day and that his symptoms make it very hard to communicate with others
and to leave the house.
In the AR, the Physician indicates that the appellant’s ability to communicate with speaking is satisfactory
explaining that it can be interrupted by tics, which can be severe at times. The Physician indicates that the
appellant’s ability to communicate with reading, writing and hearing is good. The Physician indicates that the
appellant has major impact to emotion, attention/concentration, executive, memory and motivation, moderate
impact to impulse control, insight and judgment, motor activity and language, minimal impact to consciousness and
no impact to bodily functions, psychotic symptoms, other neuropsychological problems or other emotional or mental
problems.
In the SR, the appellant states that his disability is anxiety, panic attacks and Tourette’s syndrome, which have
made him feel different emotions (frustration, angry) and impacts his ability to eat, speak or breathe. The appellant
states that he has daily panic attacks that make it hard for him to concentrate on himself and his children.
DLA
In the MR, the Physician indicates that it is unknown if the appellant’s impairment directly restricts the appellant’s
ability to perform DLA. The Physician indicates that the appellant has restrictions to DLA in the area of meal
preparation, no restrictions to mobility inside or outside the home, and it is unknown if there are restrictions in the
areas of personal self care, management of medications, basic housework, daily shopping, use of transportation or
management of finances. The Physician indicates that the appellant’s social functioning is continuously restricted
due to severe anxiety, depression and Tourette’s. The Physician indicates that the appellant has been prescribed
medications that can cause drowsiness, but at the current doses the appellant does not complain of significant
drowsiness.
In the AR, the Physician indicates that the appellant is independent with all aspects of personal care, shopping, and
transportation. For basic housekeeping, meals, paying rent and bills, the Physician indicates “unknown”. For
medications, the Physician indicates that the appellant requires periodic assistance from another person with
filling/refilling prescriptions and that he is independent with taking medications as directed and safe storage and
handling of medications.
For social functioning, the Physician indicates that the appellant requires periodic support/supervision with making
appropriate social decisions (history of substance misuse, supportive environment needed to prevent relapses),
developing and maintaining relationships (needs support-wife (“partner), interacting appropriately with others,
(needs support-partner) and dealing appropriately with unexpected demands (needs support–partner, MD, has
been referred for counselling). The Physician indicates that the appellant is independent with securing assistance
from others. The Physician indicates that the appellant has marginal functioning with his immediate social
network.
In the SR, the appellant states that his impairments impact him on a daily basis and he goes through
embarrassment of feeling someone is watching him or hearing him when he is out in public. He wants to be alone
until his symptoms pass. He states that his disability has affected his life a lot as it is hard in his home for himself
as he has little energy to do things. He states that if it weren’t for his partner who helps him with his medications,
doctors’ appointments and his children, he would be lost.
Need for Help
In the AR, the Physician indicates that the appellant needs support and assistance from his partner and he has
been referred to counselling but it has not yet been initiated.
In the SR, the appellant states that he requires assistance from his partner.
Additional information provided
In his Notice of Appeal dated February 15, 2018, the appellant states that he felt that he did not have enough time
when he applied and that because it was before Christmas, he did not have his appointment with a mental health
provider until after Christmas. The appellant also states that his anxiety is getting worse in being around people.
The appellant also submitted a letter from a concurrent disorder clinician (the “Clinician”) dated February 13, 2018
indicating that the appellant has been attending their clinic for health and addiction services. The Clinician indicates
that their team includes, but is not limited to psychiatrists, counsellors, nurses, case managers and support
workers.
By email dated March 7, 2018 the ministry advised that the ministry’s submission would be the reconsideration
summary provided in the Record of Ministry Decision.
With the consent of both parties, the hearing was conducted as a written hearing pursuant to section 22(3)(b) of
the Employment and Assistance Act.
Admissibility of New Information
The panel has admitted the information in the appellant’s Notice of Appeal and the letter from the Clinician as it is
evidence 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. In particular, the information in the Notice
of Appeal corroborates the information regarding the appellant’s counselling appointments and anxiety and the
letter from the Clinician corroborates the Physician’s statement about the appellant being referred for
counselling.
ATTACH EXTRA PAGES IF NECESSARY
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 practice 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
Severity of Impairment
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 ministry’s position is that the information provided does not establish a severe physical impairment. The
reconsideration decision indicates that a diagnosis of a serious medical condition does not in itself determine PWD
eligibility or establish a severe impairment.
The appellant did not argue that he has a severe physical impairment.
The panel finds that the ministry reasonably determined that the information provided does not establish that the
appellant has a severe physical impairment. In particular, the functional skills reported in the MR and the AR
indicate that the appellant has a high level of functional mobility and ability, is independent with walking indoors,
walking outdoors, climbing stairs, standing, and carrying and holding, and requires periodic assistance with lifting
as he cannot lift heavy objects usually.
While the Physician indicates that the appellant has trigger finger, right hand, the MR indicates that the appellant
can walk 4+ blocks unaided on a flat surface, can climb 5+ steps unaided, and has no limitations with lifting or
remaining seated and the AR indicates that the appellant is independent with all aspects of mobility and physical
ability.
The information provided focuses mainly on the appellant’s mental impairment and as there are no physical
limitations indicated, the panel finds that the ministry reasonably determined that the information provided does not
establish that the appellant has a severe physical impairment.
Severe Mental Impairment
The ministry’s position is that the information provided does not establish a severe mental impairment. The
reconsideration decision indicates that the Physician indicates that the appellant has longstanding, significant
anxiety and depression with symptoms of low mood, sadness, poor energy, poor motivation, poor concentration,
poor focus and sleep disruption. The reconsideration decision also notes that the Physician had indicated that it’s
difficult for the appellant to leave the house “…when his anxiety is night”. (The panel notes that the reference to
“night” is presumably a typographical error and that the reconsideration decision was meant to say “high” as is
noted in the Health History portion of the MR). The reconsideration decision also indicates that it considered the
Physician’s information that the appellant experiences panic attacks once a week or more which includes
symptoms of shortness of breath, palpitations, and a sense of doom and that the appellant’s anxiety worsens his
Tourette’s (which presents a constant throat clearing), which causes him embarrassment and heightens his anxiety.
The reconsideration decision indicates that while the Physician’s information is compelling in considering the
severity of the appellant’s impairments, the Physician indicates that the appellant is independent in many DLA,
particularly tasks which require the appellant to leave the home and interact with others (i.e. shopping, using public
transport).
The ministry also notes that the Physician indicates that the appellant’s ability to communicate is good in reading,
writing, and hearing and satisfactory (not poor or unable) with speaking, explaining that the appellant’s speech can
be interrupted by tics, which can be severe at times, but the Physician does not explain how often this occurs. The
ministry’s position is that if this occurred often, then it would be expected that the Physician would have indicated
‘poor’ to reflect the difficulty the appellant experiences when speaking.
The reconsideration decision also states that although the Physician indicates several areas of cognitive and
emotional functioning which have a major impact on the appellant’s daily functioning (emotion,
attention/concentration, executive, memory, motivation), the Physician provides no comments in the large space
provided, making it difficult to understand these impacts.
The reconsideration decision also indicates that while the Physician indicates that the appellant requires periodic
support/supervision with most aspects of social functioning, and support from his wife, the Physician does not
indicate that the appellant requires continuous assistance with any aspects of social functioning, but that it is
difficult to determine to what extent the appellant requires help from his partner as it is generally in the nature of the
duty of family members to help each other when in need, so it does not necessarily establish that such help is
required as a result of the appellant’s impairment. The reconsideration decision also indicates that while the
Physician reports that the appellant has marginal functioning with his immediate social network it is not ‘very
disrupted functioning’ and no assessment is provided with respect to the appellant’s extended social networks.
The reconsideration decision also states that given the Physician’s comments that the appellant has longstanding,
significant anxiety and depression, it would be expected that the appellant would have required counselling in the
past, but there is no mention of visits with a counsellor or mental health assessment performed by a mental health
expert such as a psychiatrist, or visits with a specialist in Tourette’s such as a neurologist. The ministry’s position is
that if the Tourette’s symptoms were considered severe, it would be expected that the appellant would benefit from
visits with a medical professional that specializes with this condition. The ministry’s position is that the Physician’s
comment that the appellant has been referred to counselling but that this has ‘not yet initiated’ does not suggest
longstanding, severe anxiety and depression.
The reconsideration decision indicates that while the minister recognizes that the appellant experiences medical
conditions, which impact his life and ability to perform tasks, the evidence provided does not sufficiently describe or
portray a severe impairment.
The appellant’s position is that he has severe anxiety, depression, panic attacks, Tourette’s syndrome and that his
mental impairment affects him on a daily basis. The appellant’s position is that the information provided establishes
that he has a severe mental impairment.
The panel finds that the ministry reasonably determined that the information provided does not establish that the
appellant has a severe mental impairment.
The Physician in the MR indicates that the appellant has significant deficits with cognitive and emotional function in
the areas of executive, calculation, memory, emotional disturbance, motivation and motor activity, and the AR
indicates major impact to impulse control, attention/concentration, executive, memory and motivation, the AR
indicates moderate impact to motor activity, impulse control and language. In the reconsideration decision the
ministry indicates that the Physician had not provided any comments in the space provided, making it difficult to
understand these impact. The panel finds that the ministry’s statement in this regard is not accurate, as the
Physician comments “[a]s described in page 2. Tics can also interfere with communication – when they are severe
has near constant throat clearing”. When reviewing page 2, which is the Health History portion of the MR, the
Physician indicates that the appellant’s symptoms include low mood, sadness, poor energy, poor motivation, poor
concentration, poor focus, sleep disruption, and that the appellant has difficulty leaving the house when his anxiety
is high. The Physician also indicates that the appellant has panic attacks once a week or occasionally more often
with accompanying shortness of breath, palpitations, anxiety, and a sense of doom. The Physician also indicates
that the appellant’s anxiety worsens his Tourette’s (presents as constant throat clearing), which is an
embarrassment to him, which then heightens his anxiety. The Physician also indicates that the appellant’s
symptoms are occurring every day and that his symptoms make it hard to communicate with others, and to leave
the house.
While the panel finds that the ministry’s statement that the Physician did not provide further comments is not
accurate the panel finds that the ministry was still reasonable in determining that the information provided makes it
difficult to understand the impacts of the deficits. For example, the Physician does not indicate how often the
appellant has panic attacks more than once a week or the frequency of the term “occasionally”. While the
Physician indicates that the appellant’s symptoms occur daily, she does not indicate whether the symptoms are
present all day or for a short time each day. While the Physician indicates that the appellant’s symptoms low mood,
sadness, poor energy, poor motivation, poor concentration, poor focus and sleep disruption, the Physician
describes the appellant’s depression as significant not severe and does not provide further information on how long
the symptoms last each day. While the Physician indicates that the appellant has longstanding, significant anxiety
and depression, and has been prescribed medications including an anti-anxiety and anti-psychotic medication, the
Physician does not indicate that the appellant has been prescribed any anti-depressant medications or explain why
counselling was not tried previously. In addition, if the restrictions were severe, it would be reasonable to expect
that there would be more impacts to DLA.
The panel notes that the Physician indicates that the appellant was referred for counselling and the letter from the
Clinician indicates that the appellant is now attending for counselling. However the letter from the Clinician does not
provide further information regarding the appellant’s impairment or impacts to his daily functioning.
While the Physician indicates that the has difficulties with communication as the tics can interfere with his
communication and when they are severe, the appellant has near constant throat clearing, the Physician does not
describe how frequently the symptoms are severe and in the AR, indicates that the appellant’s ability to
communicate with speaking is satisfactory. The panel finds that the ministry’s decision was reasonable in
determining that if the appellant’s symptoms were severe that the Physician would have indicated that the
appellant’s ability to speak is ‘poor’ rather than satisfactory.
While the information provided indicates that the appellant’s anxiety, depression, and Tourette’s syndrome impact
the appellant’s life and ability to perform some tasks, the panel finds that the ministry reasonably determined that
the information does not establish that the appellant has a severe mental impairment as required by EAPWDA
section 2(2).
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, does not include the ability to work.
The ministry’s position is that the information provided is not sufficient to establish that the appellant has a severe
impairment that, in the opinion of a prescribed professional, directly and significantly restricts the appellant’s ability
to perform DLA. The reconsideration decision indicates that as the Physician indicates that the appellant is
independent in a large majority of DLA’s, or writes ‘unknown’, this does not suggest that the appellant is
significantly restricted.
The reconsideration decision indicates that the Physician indicates that the appellant requires periodic assistance
with filling/refilling prescriptions explaining that the appellant often forgets to pick up his medications so his partner
does it for him. The ministry’s position is that while the appellant’s partner may help him with filling/refilling
prescriptions and other aspects of social functioning it is in the nature of the duty of family members to help each
other when in need but this does not necessarily establish that such help is required as a result of the impairment.
The reconsideration decision questions whether the appellant would be capable of using other tools to remember to
pick up his prescriptions if his wife were not available, such as writing it down, or would he require a care aid worker
to perform this tasks for him.
The ministry’s position is that while it acknowledges that the appellant has certain limitations as a result of his
medical conditions, the information provided does not establish that an impairment significantly restricts DLA
continuously or periodically for extended periods.
The appellant’s position is that his severe impairment impacts him daily, that without his partner he would be lost,
and that there are times when he just wants to be alone until his symptoms pass. The appellant states that he is
embarrassed when he is out in public and he feels that people are watching him or hearing him and that his panic
attacks make it hard for him to concentrate on himself or his children. The appellant states that his impairment has
“cost me a lot in working like I would”.
The panel finds that the ministry reasonably determined that the assessments provided are not indicative of a
severe level of impairment requiring more indicative of a moderate rather than severe level of impairment that
directly and significantly restricts the appellant’s DLA either continuously or periodically for extended periods as
required by EAPWDA section 2(2)(b).
In the MR, the Physician indicates that it is unknown if the appellant’s impairment directly restricts the appellant’s
ability to perform DLA. However the Physician then indicates that the appellant has restrictions to DLA in the area
of meal preparation, no restrictions to mobility inside and outside the home, and it is unknown if there are
restrictions in the areas of personal self care, management of medications, basic housework, daily shopping, use of
transportation or management of finances. The Physician indicates that the appellant’s social functioning is
continuously restricted due to severe anxiety, depression and Tourette’s.
In the AR, the Physician indicates that the appellant is independent with all aspects of personal care, shopping, and
transportation. For basic housekeeping, meals, paying rent and bills, the Physician indicates “unknown”. For
medications, the Physician indicates that the appellant requires periodic assistance from another person with
filling/refilling prescriptions and that he is independent with taking medications as directed and safe storage and
handling of medications.
The information in the MR and the AR indicates a high level of independent functioning and minimal impact to DLA.
In addition, some of the information is not consistent. For example, in the MR the Physician indicates that the
appellant is restricted with meal preparation but in the AR the Physician indicates that the appellant’s ability to
perform all aspects of the DLA of meals is unknown. In addition, the Physician does not provide any information to
describe the frequency of any periodic assistance needed with filling/refilling medications and the Physician does
not indicate that any periodic supervision/support is required for any other aspects of DLA.
In the MR, for social functioning, the Physician indicates that the appellant is continuously restricted, due to severe
anxiety, depression and Tourette’s, but in the Health History portion of the MR, the Physician describes the
appellant’s anxiety and depression as significant, not severe. In addition, in the AR, the Physician indicates that
the appellant requires periodic, not continuous support/supervision with making appropriate social decisions,
developing and maintaining relationships, interacting appropriately with others and dealing appropriately with
unexpected demands, but does not provide any explanation of the nature or frequency of the periodic
support/supervision required. The Physician indicates that the appellant has a history of substance misuse, and
that a supportive environment is needed to prevent relapses but no further information is provided to explain what
type of supportive environment is needed or the type or frequency of the supports. The Physician indicates that the
appellant needs support from his wife, doctor, has been referred for counselling, but does not provide a description
of the degree and duration of the support/supervision required. The inconsistencies between the information in the
MR and the AR and the lack of further explanation regarding the degree and duration of support/supervision
required makes it difficult to obtain a clear understanding of the impacts to the appellant’s DLA of social functioning.
In addition, in the AR, the Physician indicates that the appellant has marginal functioning with respect to his
immediate social networks, but does not provide any information regarding the appellant’s functioning with respect
to his extended social networks.
The letter from the Clinician indicates that the appellant is attending for services, but does not provide any
information regarding the specific treatment provided, the frequency of treatment, or the impacts to the appellant’s
DLA.
In addition, while the appellant states that his impairment has impacted his ability to work, employability is not a
criterion for designation for PWD.
The panel notes that the appellant states that he is embarrassed in public and that he wants to be alone until his
symptoms pass and that he requires some periodic support from his partner. Considering all the information
together, the panel finds that the ministry was reasonable in determining that the appellant’s impairment does not,
in the opinion of a prescribed professional, directly and significantly restrict the appellant’s ability to perform DLA as
required by the legislation.
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 ministry’s position is that because it has not been established that DLA are significantly restricted, it cannot be
determined that help is required.
The appellant’s position is that he requires help, is now attending for counselling, and that without his partner he
would be lost.
In the MR, the Physician indicates that the appellant does not require any prostheses or aids for his impairment. In
the AR, the Assessor indicates that the appellant needs support and assistance from his partner and has been
referred to counselling but not yet initiated. The Physician indicates that family and friends provide the help
required for DLA. The Physician does not indicate that the appellant requires any assistive devices or has an
Assistance Animal.
The panel finds that the information provided indicates that the appellant requires some help with some aspects of
DLA and the letter from the Clinician indicates that the appellant has now initiated counselling but that the
information in the MR and the AR indicates a very high level of independence with most DLA.
In addition, as 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.
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.