PART C – DECISION UNDER APPEAL
The decision under appeal is the Ministry of Social Development and Poverty Reduction (ministry) reconsideration
decision dated 28 February 2018, which determined that the appellant was not eligible for persons with disabilities
designation (PWD). The ministry’s reason for that determination was that the appellant had not met all five of the
legislated criteria under section 2 of the Employment and Assistance for Persons with Disabilities Act. The ministry
determined that the appellant had met some of the criteria, specifically that he demonstrated that he has reached
18 years of age and that his impairment, in the opinion of a medical practitioner, is likely to continue for at least 2
years. However, the ministry determined that the appellant had not demonstrated that he has a severe mental or
physical impairment; specifically the appellant had not demonstrated that he has a severe mental or physical
impairment that, 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 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
Evidence before the ministry at reconsideration consisted of the following:
1.
The appellant’s PWD Application
The Application contained:
A Medical Report (MR) dated 17 August 2017, completed by the appellant’s general practitioner (GP)
who has seen the appellant 11+ times in the past 12 months and known the appellant for 7 years.
An Assessor Report (AR) dated 17 August 2017, completed by the appellant’s GP.
A Self Report (SR) dated 19 July 2017, signed by the appellant.
The following documents were Included with the application:
X-Ray Report (Lumbar Spine) - 15 March 2016
CT Report (Cervical Spine) - 28 September 2015
Bone Scan Report - 28 September 2015
X-Ray Report (Cervical Spine) - 7 August 2012
Clinic Notes, Pain Specialist – 13 April 2017
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:
Anxiety
Depression
Chronic Pain
No information has been provided regarding the date of onset for these diagnoses.
Severity of mental impairment
MR:
The GP indicates that the appellant suffers from anxiety and depression.
The GP has responded “no’ to whether there are difficulties with communication other than lack of fluency in
English.
Under Health History, the GP writes that the appellant’s pain has contributed to his severe anxiety and depression.
The GP indicates that the appellant had significant deficits with cognitive and emotional functioning in the areas of
executive, memory, emotional disturbance, motivation and attention or sustained concentration. The GP writes:
Due to anxiety/depression and he is unable to focus, concentrate, etc. when the pain is overwhelming.
AR:
The GP assesses the appellant’s ability to communicate as good in the areas of speaking, reading, writing and
hearing.
The GP assesses the appellant’s cognitive and emotional functioning as having no impact in the areas of bodily
functions, impulse control, motor activity, language, psychotic symptoms and other emotional or mental problems.
The GP assesses minimal impacts on daily functioning in the areas of consciousness, insight and judgment, and
executive. Moderate impacts on daily functioning are assessed in the areas of memory and other
neuropsychological problems. Major impacts are assessed in the areas of emotion, attention/concentration, and
motivation. The GP has commented: Anxiety and depression have been quite debilitating. He ends up being alone
and not doing anything. Minimal socializing. This causes him not to be able to focus and concentrate…
The appellant reports emotional consequences of his pain. He states that he isolates himself at home and, at times,
has difficulty with concentration and doing some basic tasks. He reports that he will be seeing a psychologist. He
reports that the financial consequences of his pain contribute to feelings of inadequacy and avoiding social
situations. He writes that he is frustrated, exhausted, sad and sore. Anxiety and stress are problematic.
Severity of physical impairment
MR:
Under Health History, the GP writes: this patient has episodes of severe pain that are quite debilitating and leave
him bedridden for a number of days at a time. He requires narcotics due to the severe nature of his pain. He was
no longer able to do his job because this… He is quite motivated to work but is unable to consistently attend due to
his episodic pain. He does also have chronic pain, but it is these ‘flares’ that are quite problematic.
For functional skills, the GP indicates that the appellant cannot walk at all (when in severe pain), his ability to climb
stairs is unknown, no lifting and can remain seated less than 1 hour.
The GP indicates that the appellant uses a cane.
AR:
The GP indicates the appellant’s mobility and physical ability as independent, uses assistive device and takes
significantly longer for walking indoors (cane) and outdoors and climbing stairs. His is independent with standing
(shorter duration) and requires continuous assistance with lifting and carrying and holding (no more than 15 lbs.)
SR:
The appellant states that he has suffered from severe pain in his leg, hip and lower back, which cause difficulty
walking and moving around. He has made efforts to treat this pain and has improved but is still uncomfortable. He
also suffers from almost constant lower back/upper torso aches and pains. His physical difficulties have affected his
life and work. He needs to shift positions approximately every 10 minutes. His sleep, focus, food prep and cleaning
have been impacted. As well, his finances have been impacted and he is struggling with ‘basics’. He also indicates
that he may have had a heart attack and is waiting on tests.
Ability to perform DLA
MR:
The GP indicates that the appellant has not been prescribed medication that interferes with his ability to perform
DLA.
AR:
The AR indicates that the appellant is independent in all listed personal care activities and takes significantly longer
with dressing grooming, bathing, and transfers in/out of bed and on/off chair.
The AR indicates that the appellant is independent in all listed all basic housekeeping activities, takes significantly
longer with all listed activities and requires periodic assistance with basic housekeeping.
The AR indicates that the appellant is independent in all listed shopping activities, takes significantly longer going to
and from stores and carrying purchases home, and requires periodic assistance carrying purchases home (has to
do in stages, less than 15 lbs.)
The AR indicates that the appellant is independent in all listed meals activities and takes significantly longer with
food preparation. The GP comments: if too much pain only eats cereal. Unable to make, etc. twice weekly this
month.
The AR indicates that the appellant is independent in all pay rent/bills activities.
The AR indicates that the appellant is independent in all listed medications activities.
The AR indicates that the appellant is independent in all listed transportation activities and uses an assistive device
and takes significantly longer getting in and out of a vehicle. The GP comments: uses cane for support.
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
AR:
The AR indicates that the appellant is independent with shopping activities of readings labels, making appropriate
choices, and paying for purchases; the meals activities of meal planning and safe storage; all pay rent/bills
activities; and all medications activities and the transportation activities of using transit schedules and arranging
transportation.
Relate to, communicate or interact with others effectively
MR:
The GP indicates that the appellant has no difficulties with communication.
AR:
The GP assesses the appellant’s ability to communicate as good in the areas speaking, reading and writing and
satisfactory in the area of hearing.
In assessing social functioning activities, the AR indicates that the appellant is independent with appropriate social
decisions, developing and maintain relationships (avoid relationships), interacting appropriately with others, dealing
appropriately with unexpected demands, and securing assistance from others.
The AR indicates that the appellant has marginal functioning in his immediate social network (has isolated himself –
no longer socializing) and good functioning in his extended social network.
Help required
MR:
The GP indicates that the appellant uses a cane.
AR:
The AR indicates that the appellant receives assistance from family with transport, meals and cleaning.
The AR indicates that the appellant receives assistance from assistive devices: cane, toileting aids and bathing
aids. The GP provides the comment: for 1-2 weeks three times in last year he would require toileting aids/bathing
aids.
The AR indicates that the appellant does not receive assistance from assistance animals.
2.
Request for Reconsideration
The appellant’s Request for Reconsideration, dated 14 February 2018, included several documents:
A 6-page typed document, dated 8 February 2018 and entitled “PWD Appeal”, from the appellant
A 3-page typed document, undated and untitled, from the appellant
A 2-page typed document, dated November 2017 and entitled “Overview of ‘limitations’ and over-all
situation”
Additional information before the panel on appeal consisted of the following:
Notice of Appeal
In the Notice of Appeal dated 13 March 2018, the appellant wrote as reasons for appeal: I feel that we’ve
established a severe impairment, my daily activities are restricted by this. That I don’t need assistance for this is
due to my hard work, feel being penalized for this. Wish to explain in person. Thank you.
Appeal Submissions
Prior to the hearing the appellant submitted the following:
3 typed pages dated 28 March 2018, entitled “Additional notes for PWD tribunal meet”
1 typed page dated 28 March 2018, entitled “Additional notes (2) for PWD tribunal meet”
At the hearing, the appellant argued that his past should have bearing on the PWD decision. He stated that he is a
hard-working individual who began having issues about 2.5 years ago. His employer worked with him for as long as
possible to accommodate his issues; however, he became an unreliable worker and there was an ‘amicable’
parting of ways in 2016. Following this he went on EI. He has had 2 episodes of debilitating back pain that have
lasted 6-8 weeks, where he cannot sleep or function. Following each episode, he has slowly recovered. He has
been working with a disability support organization and has seen a psychologist. He stated that he does not get
help daily, but relies on hot baths, cane and massager unit to get through the day. He argues that these are
assistive devices. He reported that he may be able to work for a few hours at a time in the morning but his ability to
do so is unpredictable and he needs a safety net. He stated that he wants and loves to work. He stated that he
does everything he can in the mornings because that is when he can do the most and by early to mid-afternoon he
is exhausted. He argued that before making its decision the ministry should have spoken directly to his doctor,
disability support organization, etc. He feels that there is a disconnect. He has also stated that he recently had eye
surgery for glaucoma.
The ministry relied on the reconsideration decision.
Admissibility
The panel finds that the information provided by the appellant in the appeal submission entitled “Additional notes
(2) for PWD tribunal meet” as well as the appellant’s oral submissions regarding glaucoma are not admissible in
accordance with section 22 (4)(b) of the Employment and Assistance Act because this information is new
information that is not in support of information and records that were before the ministry at reconsideration. The
balance of the information provided by the appellant at the hearing and the information in the appeal submission
entitled “Additional notes for PWD tribunal meet” consist of reiteration/explanation of facts that were either before
the ministry at reconsideration or in support of information that was before the ministry at reconsideration, as well
as some argument. The panel finds that this information is admissible in accordance with section 22 (4)(b) of the
Employment and Assistance Act. The panel finds that the information provided in the appellant’s Notice of Appeal
consists of argument and will be considered as such. The panel notes that the ministry objected to the admission of
the glaucoma information on the basis that it was new information that the ministry did not have the opportunity to
consider at reconsideration.
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 the information established
severe impairment. In making this determination, the ministry considered the functional skills assessment by the
GP and the physical ability and mobility assessment in the AR. The ministry argued that while the GP has identified
some limitations, he has not provided any information as to how much longer the appellant requires to manage
those activities. The ministry noted that a cane is used. The ministry noted that the GP has indicated that the
appellant experiences significant difficulties during flare-ups 3-4 weeks per year. The ministry concluded that while
the information provided reflects a moderate rather than severe impairment.
At the hearing the appellant argued that his impairment is severe. He argued that while his pain may be at a 10 out
of 10 for only 3 weeks at a time during episodes, his level of pain is above a 6-7 out of 10 more than 1/3 of each
year. He stated that when his pain is at a 6-7, he is OK about half of the day each day and does his best to get
things done during that time. He reported currently being at a 2 out of 10. He argued that the ministry should be
connecting with his health care professionals to get a better idea of his limitations.
The panel finds that the ministry’s determination was reasonable based on the evidence before it. The panel notes
that the GP’s assessments in the MR and AR reflect an individual who has an episodic impairment but can manage
independently most of the time, while taking significantly longer with some activities. As well, the panel notes that
the appellant stated at the hearing that he is able to function independently most of the time but requires assistance
during episodes. The panel notes that the appellant reports that he is able to manage his daily life and emphasized
his inability to work consistently. The panel also notes that the appellant’s written and oral submissions also
emphasize the appellant’s working history and ability to work. However, the panel notes that employability or
vocational ability is not a criterion for PWD designation nor is it a DLA set out in the regulation. The panel finds that
the information provided reflects an individual suffering from chronic pain who experiences flare-up episodes.
However, the panel finds the information as to the frequency and duration of these flare-up episodes is somewhat
unclear. The GP indicates that this occurs 3-4 weeks per year but does not indicate whether these weeks are
consecutive. Meanwhile, the appellant’s information is that he has had two episodes in 12 months and that it has
taken him several months to recover each time. The panel finds that the ministry’s determination, that a severe
physical impairment has not been established, is reasonably supported by the evidence.
Severity of mental impairment
In the reconsideration decision, the ministry found that the information provided did not establish that the appellant
has a severe mental impairment. The ministry noted that the GP’s assessment in the MR did not indicate that the
appellant has difficulties with communication. The ministry considered that in the MR the GP indicates deficits in the
areas of executive, emotional disturbance, memory, motivation and attention or concentration. The ministry also
considered that major impacts to cognitive and emotional functioning were assessed in the areas of emotion,
attention/concentration and motivation; moderate impacts to memory and other neurophysiological problems;
minimal impacts to consciousness, executive and insight and judgment. The ministry noted that there were no
impacts assessed in the remaining areas of the assessment. The ministry also noted the assessed independence
in all aspects of social functioning and the lack of information regarding a need for support/supervision to maintain
the appellant in his community. The ministry concluded that while there are some deficits to the appellant’s
cognitive and emotional functioning as a result of his condition, most areas are not severely impacted.
The panel finds that the ministry’s determination that a severe mental impairment has not been established was
reasonable. The panel notes the absence of communication difficulties, safety concerns and a need for support or
supervision to maintain the appellant in his community. The panel notes that the GP’s assessments relating to
decision-making indicate that the appellant is independent in these areas. Alongside the assessments of
independence in all decision making and social functioning activities, the panel also notes that both the appellant
and his GP have emphasized that back pain is the primary source of the appellant’s difficulties. Overall, the panel
finds that the ministry’s conclusion that the information provided does not establish a severe mental impairment and
that this criterion was not met is reasonably supported by the evidence.
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. 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 continuously or periodically for extended
periods. In reaching this conclusion, the ministry noted that the GP has indicated that the appellant has not been
prescribed medication that restricts his ability to perform DLA. The ministry considered that the GP indicated that
the appellant takes significantly longer with some activities but noted that there is no explanation as to how much
longer. As well the ministry considered that the GP has indicated that the appellant requires periodic assistance
with basic housekeeping and carrying purchases home but has not indicated how often this assistance is required.
The ministry noted that the GP indicates that the appellant uses a cane and take significantly longer to get in/out of
a vehicle. The ministry found that the absence of information regarding how much longer than typical the appellant
requires to manage activities made it difficult to determine whether a significant restriction in overall functioning was
made out. The ministry concluded that the information was indicative of a moderate restriction; therefore, this
criterion was not met.
The panel finds that it was reasonable for the ministry to determine that the information provided does not establish
that a severe impairment significantly restricts the appellant’s ability to perform DLA continuously or periodically for
extended periods. The panel notes that all DLA have been assessed as independent; however, some DLA have
also been assessed as taking significantly longer and/or requiring periodic assistance. The panel finds that, in
relation to the areas where some periodic assistance is assessed, the GP has not provided sufficient information in
relation to the nature, degree and duration of the assistance required by the appellant to establish that there are
significant restrictions for extended periods in the appellant’s ability to perform DLA. The panel finds that, in relation
to the areas where the appellant is independent and takes significantly longer, the GP has not provided sufficient
information in relation the time required to complete these activities. The panel notes that the appellant has
expressed his agreement with the GP’s assessment of his abilities in relation to DLA. The panel finds that the
assessments provided indicate that the appellant is primarily independent in performing DLA with some activities
taking longer. However, the information provided regarding these restrictions is not sufficient to establish direct and
significant restrictions to DLA as required by the legislation. Given the limitations in the information before the
ministry, the panel concludes that the ministry’s determination that this criterion has not been met is reasonably
supported by the evidence.
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 as 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 ministry also
stated that a simple assistive device such as a cane does not establish the existence of a severe impairment.
The panel notes that the appellant has argued that while he does not require daily assistance from other people,
taking hot baths, using his massager and his cane are assistive devices. While the information provided
demonstrates that the appellant does receive some assistance from other people during episodes, as well as his
cane and massager, the panel has concluded 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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