PART C – DECISION UNDER APPEAL
The issue on appeal is the Ministry of Social Development and Poverty Reduction (the “Ministry”) reconsideration
decision made May 7, 2018 which held that the appellant was not eligible for a Persons with Disabilities (“PWD”)
designation on the basis that she did not meet two of the five statutory requirements of section 2 of the Employment
and Assistance for Persons with Disabilities Act (“EAPWDA”). Specifically, the Ministry was satisfied that the
appellant met the age requirement and that a medical practitioner had confirmed that the appellant has a severe
mental impairment that is likely to continue for at least two years. However, the Ministry was not satisfied that:
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in the opinion of a prescribed professional, the appellant’s severe impairment directly and significantly
restricts her daily living activities (“DLA”) either continuously or for extended periods; and
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as a result of those restrictions, the appellant requires an assistive device or the significant help or
supervision of another person, or the services of a service animal to perform DLA.
PART D – RELEVANT LEGISLATION
Employment and Assistance Act Regulation (EAAR), section 85-86
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
On February 14, 2018 the Ministry received the appellant’s application for PWD which was comprised of a medical
report (MR) and an assessor report (AR) completed on January 22, 2018 by the same physician (the “Physician”).
The Physician has known the appellant since December 11, 2017 and has met with the appellant two-ten times
since that time. Also included with the appellant’s application was:
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An excerpt from a medical assessment from a second physician dated June 22, 2016 listing the appellant’s
medical conditions of depression, osteoarthritis, and concussion. The letter states that the appellant
requires a high protein and high fibre diet. The letter describes the appellant’s employment limitations.
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A prescription note from a third physician commenting that the appellant cannot work;
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A letter to a hospital dated May 11, 2016 requesting information related to Bursitis;
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An emergency outpatient record (date illegible) which describes the appellant’s medical condition and
treatment provided; and
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A self report dated January 18, 2018 (SR) describing the appellant’s personal history, medical condition,
and impacts to her physical and mental functioning
The Ministry denied the appellant’s application. The appellant requested reconsideration of the decision on March
27, 2018. The appellant included the following additional evidence with her request for reconsideration:
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A request for reconsideration dated April 24, 2018 stating the issue at reconsideration and citing the case
of Hudson v. Employment and Assistance Appeal Tribunal, 2009 BCSC1461. It is unclear who author of
the written argument is, however, an advocate appeared to assist the appellant with her request for
reconsideration so it appears that the author is likely an advocate;
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A second self report from the appellant dated April 19, 2018 (the “Second SR”) where the appellant
describes her personal history, medical conditions, impacts to cognitive and emotional functioning, and
impacts to social functioning. The appellant’s Physician notes on the Second SR that she considers the
appellant’s notes to be credible and that she recognizes that the appellant’s DLA are affected as the
appellant has described in her own statement and that she expects a person with the appellant’s medical
condition to experience the limitations in her life that she has described;
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A letter from a local resource centre dated April 4, 2018 stating that the appellant has been a resident since
November, 2017 and that she is engaging in counselling services;
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A letter from a Psychologist (the “Psychologist”) dated June 3, 2016 to the resource centre outlining the
clinical impression of the appellant;
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CT scan report dictated by a fourth physician and dated March 27, 2017 which describes the appellant’s
medical condition; and
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Emergency Outpatient Record (date illegible) describing the appellant’s medical condition and treatment
provided.
The Appellant’s Notice of Appeal dated May 11, 2018 (“NOA”) states that she feels her impairments do restrict her
ability to perform daily living activities and she does require significant help to perform daily living activities
restricted by her impairments. The NOA references a written submission to follow however no written submission
was included with the appellant’s submission.
The Appellant did not attend the hearing.
Summary of Relevant Evidence
Diagnosis
In the MR the Physician identifies the following diagnoses: depression/PTSD (onset unspecified), post-concussion
syndrome (onset unspecified), and chronic mild osteoarthritis/bursitis (onset unspecified). The letter from the
Second Physician confirms medical conditions of depression, osteoarthritis, and concussion.
In her SR the applicant states she has depression, post-traumatic stress disorder, and post-concussion syndrome,
osteoarthritis and bursitis in her letter dated April 19, 2018.
The Psychologist confirms that she suffers from mild to moderate depression with generalized anxiety-stress
symptoms similar to (illegible) person syndrome.
Physical Impairment
Section 2-B of the MR states the appellant has mild osteoarthritis in multiple joints with greater trochanteric bursitis
of her left hip and bilateral bursitis of both knees that affect her mobility. She uses a cane to mobilize over longer
distances and takes regular pain medications. The appellant has a history of 6 concussions the most recent of
March of 2017 was associated with a retinal detachment.
Section 2-D of the MR states the appellant can walk 1 to 2 blocks unaided, climb 5+ steps unaided, is limited in
lifting 2 to 7 kg (5 to 15 lbs), has no limitation with remaining seated.
Section 3-B of the AR states the appellant takes significantly longer than typical with walking outdoors (“twice slow
as an average person”), uses an assistive device with climbing stairs (“uses handrail, and sometime cane”),
requires periodic assistance from another person with lifting (“avoids this”) and carrying / holding (“weak grip,
osteoarthritis in wrist”), is independent with walking indoors and standing.
The appellant’s SR states that she has a broken bursa on her hip that causes pain to walk or stand for any length
of time. Her arthritis causes pain in her joints.
The appellant confirms in her Second SR that osteoarthritis and bursitis causes pain in her joints. She has pain all
the time every day. She has pain in her left hip, left wrist, and knees.
Mental Impairment
Section 2-B of the MR states that the appellant has a history of chronic depression and PTSD with a history of
previous abusive relationships. She takes medication currently to help with her conditions and receives regular
counselling. She is currently living in safe housing after escaping a more recent abusive relationship. She has
ongoing issues with anxiety that impair her ability to interact with others. Her Depression and PTSD affect her sleep
and motivation. She has a history of 6 concussions the most recent of which in March of 2017. She continues to
suffer with post-concussion syndrome, symptoms of headaches, difficulty with ability to recall and periodic
confusion, and difficult planning.
Section 2-D of the MR states that the appellant has ongoing issues with recall secondary to post-concussion
syndrome, depression and PTSD affect the appellant’s emotions and motivation. The appellant has significant
deficits with cognitive and emotional functioning in the areas of executive, memory, emotional disturbance, and
motivation.
Section 2B of the AR states that the appellant has a poor ability with reading (“Aggravates 6x of concussion, gets a
headache”) and good ability with speaking, writing, and hearing. The appellant has Depression, PTSD, Post-
concussion syndrome.” “Difficulty sleeping secondary to pain. Suffers from post-concussion syndrome - periods of
being very confused or disoriented, very poor memory. Had ADHD as a child and a learning disability.” There are
major impacts to cognitive and emotional functioning in the areas of consciousness, attention / concentration,
executive, and memory. The appellant has moderate impacts to cognitive and emotional functioning in the areas of
emotion and motivation. The appellant has minimal impacts to cognitive and emotional functioning in the areas of
bodily functions and other neuropsychological problems. The appellant has no impacts to the remaining six listed
areas of cognitive and emotional functioning.
Section 3-C of the AR states the following with regards to social functioning: The appellant requires continuous
support / supervision with being able to deal appropriately with unexpected demands (“Gets very stressed by this,
needs help from family or friends”). Is independent with making appropriate social decisions, being able to develop /
maintain relationships, interacting appropriately with others, and being able to secure assistance from others. Has
marginal functioning with her immediate and extended social networks (“More withdrawn since concussion” /
“Doesn’t know too many people in community”). In describing the support / supervision required to help her
maintain in the community, the Physician writes: “works with a psychologist on cognitive and social functioning
skills.” There is no indication of safety issues with regards to social functioning.
In her SR the appellant confirms that she has PTSD which causes her confusion and anxiety and she has trouble
dealing with people. She has suffered a concussion which caused some detaching of her retina for a while which
causes blurry vision once in a while also the concussion has caused her memory loss. She is on medication for
anxiety and PTSD and she suffers from non-stop questions and worries which cause her insomnia. She suffers
from memory loss
In her Second SR the appellant states that she “gets confused and anxious and has trouble dealing with people”.
“she is scared to be around people and is very scared of men”. She has panic attacks, flashbacks, nightmares, and
anxiety without warning due to abuse she suffered as a child and due to abusive relationships. The appellant
states that her depression affects her every day and that she hides from people and the world under her covers
three times a day to sleep. Her relationships are strained, and her emotions are all over the place. She is worried
all of the time and when she leaves her house she has to go back sometimes 2-3 times to check to ensure she has
turned off the stove and locked the door. She experiences memory loss, confusion, and headaches and she can’t
remember what she is saying during a conversation. She has headaches that are recurrent and severe. She
states that she does not trust people and her immediate network is very marginal and her extended network is
disrupted and leaves her socially isolated. She has thoughts of suicide 1-2 times per month.
DLA
Section 2-B MR states that the appellant is not prescribed any medications or treatments that interfere with her
ability to perform daily living activities.
Section 3-C of AR states: “no specific safety issues, difficulty walking longer distances, reliant on public
transportation (has no car).” Independent with all listed areas of personal care, independent with laundry and basic
housekeeping, requires periodic assistance from another person with going to / from stores (“If distance increased
needs assistance”) and carrying purchases home (“If heavy”), and independent with the remaining three listed
areas of shopping. Independent with all listed areas of meals. Independent with all listed areas of paying rent / bills.
Independent with all listed areas of medications. Requires periodic assistance from another person with using
public transit and using transit schedules / arranging transportation. “Needs help to work out transportation
schedules, unable to do consistently on her own.” You are independent with getting in / out of vehicles.
In her SR the appellant describes that she does not have a vehicle and that walking is difficult because of her hip,
back and knees. The medication that she takes bothers her stomach.
In her Second SR the appellant states she can walk a couple of blocks and go up a few stairs but the appellant is
limited in lifting up to 5 lbs. The Physician confirms in writing that she agrees that the appellant’s DLA’s are
affected in the way the appellant describes in her Second SR. The appellant state s that she is not able to take
care of herself and that is why she needs to remain in the transition house where staff can make sure she has what
she needs. She states she does not deal well when things come up unexpectedly.
The Psychologist states that the appellant’s presenting symptoms are sufficient to significantly interfere with her
quality of life, physical health, and positive participation in the daily routines of her personal life employment
Help
Section 2B of the MR states that the appellant requires prostheses or aids for her impairment: “uses a knee brace” /
“Walks with the aid of a cane for longer distances.”
Section 3-D of the AR states that the appellant is provided assistance by family, Health Authority Professionals, and
Community Service Agencies. The Physician further indicates appellant is provided assistance through the use of a
cane, braces, and shower stool: “She sometimes wears a knee brace and uses a cane for ambulating longer
distances. She uses a shower stool in the shower.”
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 in determining that:
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the appellant’s DLA are not, in the opinion of a prescribed professional, directly and significantly restricted
either continuously or periodically for extended periods; and
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as a result of those restrictions, in the opinion of a prescribed professional, the appellant does not require
an assistive device, the significant help or supervision of another person, or the services of an assistance
animal to perform DLA.
The Legislation Provides
EAR
Time period for scheduling and conducting hearing
85 (1)A hearing must be held within 15 business days after the appeal form is delivered under section 84,
unless the chair of the tribunal and the parties consent to a later date.
(2)The chair of the tribunal must notify the parties of the date, time and place of a hearing described in
subsection (1) at least 2 business days before the hearing is to commence.
Procedures
86 The practices and procedures of a panel include the following:
(a)a party to an appeal may be represented by an agent;
(b)the panel may hear an appeal in the absence of a party if the party was notified
of the hearing;
(c)the parties may call witnesses to give evidence before the panel;
(d)a witness may not be present at the hearing before giving evidence unless the
witness is
(i)an expert witness in the proceedings,
(ii)a party to the appeal, or
(iii)an agent representing a party to the appeal;
(e)the chair of the tribunal may
(i)consolidate 2 or more appeals involving the same parties, and
(ii)direct that 2 or more appeals involving different parties will be heard
together if the appeals involve substantially similar facts
only if
(iii)the appeals involve substantially similar facts, and
(iv)each of the parties to each of the appeals agrees to the appeals being
consolidated or heard together;
(f)the chair and the members of a panel must send to the chair of the tribunal all
documents submitted to the panel respecting an appeal within 5 business days
after that panel makes its determination under section 24 (1) of the Act respecting
the appeal.
EAPWDA
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).
EAPWDR
Definitions for Act
2 (1)For the purposes of the Act and this regulation, "daily living activities",
(a)in relation to a person who has a severe physical impairment or a severe
mental impairment, means the following activities:
(i)prepare own meals;
(ii)manage personal finances;
(iii)shop for personal needs;
(iv)use public or personal transportation facilities;
(v)perform housework to maintain the person's place of residence in
acceptable sanitary condition;
(vi)move about indoors and outdoors;
(vii)perform personal hygiene and self care;
(viii)manage personal medication, and
(b)in relation to a person who has a severe mental impairment, includes the
following activities:
(i)make decisions about personal activities, care or finances;
(ii)relate to, communicate or interact with others effectively.
(2)For the purposes of the Act, "prescribed professional" means a person who is
(a)authorized under an enactment to practise the profession of
(i)medical practitioner,
(ii)registered psychologist,
(iii)registered nurse or registered psychiatric nurse,
(iv)occupational therapist,
(v)physical therapist,
(vi)social worker,
(vii)chiropractor, or
(viii)nurse practitioner, or
(b)acting in the course of the person's employment as a school psychologist by
(i)an authority, as that term is defined in section 1 (1) of the Independent
School Act, or
(ii)a board or a francophone education authority, as those terms are
defined in section 1 (1) of the School Act,
if qualifications in psychology are a condition of such employment.
(3)The definition of "parent" in section 1 (1) applies for the purposes of the definition of
"dependent child" in section 1 (1) of the Act.
[am. B.C. Regs. 196/2007; 197/2012, Sch. 2, s. 2; 70/2013.]
Panel Decision
The appellant did not attend the hearing. The panel reviewed the Canada Post tracking information and
determined that the appellant was sent the notice of hearing on May 24, 2018 to the appellant’s address for service
and that on May 31, 2018 the notice of hearing was returned to the Tribunal. The panel finds that pursuant to
s.85(2) EAAR the appellant was notified of the hearing and the panel proceeded with the hearing pursuant to 86(b)
EAAR.
The appellant did not submit additional evidence after reconsideration. The NOA contained argument in support of
the appellant’s position. The NOA referenced a written submission that was never provided.
Severe Impairment
Section 2(2)(a) of the EAPWDA provides that when addressing the issue of a severe physical or mental
impairment in the context of a person applying for a PWD designation, that person must be found to have a
severe physical or mental impairment that, in the opinion of a medical practitioner, is likely to continue for at
least 2 years.
A diagnosis of a serious medical condition or conditions does not in itself determine PWD eligibility or establish
a severe impairment. An “impairment” is a medical condition that results in restrictions to a person’s ability to
function independently or effectively.
To assess the severity of an impairment one must consider the nature of the impairment and the extent of its
impact on daily functioning. In making its determination, the ministry must consider all the relevant evidence,
including that of the appellant. However, the legislation is clear that the fundamental basis for the analysis is
the evidence from prescribed professionals – in this case, the Physician and the Psychologist.
Severe Physical Impairment
Based on the available information, the panel finds that while the information from the appellant, and her Physician
indicate ongoing mobility limitations in her physical functioning due to her osteoarthritis and bursitis, the Physician
has not provided sufficient additional comments as to the significance of the appellant’s physical condition that
support a finding that the impairment is severe in nature. The panel finds that on review of the entire body of
evidence, the Ministry was reasonable in its determination that the evidence did not support a finding that she
suffers from a severe physical impairment as provided by section 2(2) of the EAPWDA.
Severe Mental Impairment
The AR, the Second SR (endorsed by the Physician), and the letter from the Psychologist all contain substantive
evidence that the appellant suffers a serious medical condition that impacts her daily. She suffers from suicidal
ideation, depression, battered-person syndrome, defensive avoidance strategies, anxiety, hyper-arousal,
hypervigilance, pain management issues. Many of the conditions that the appellant suffers are as a result of
serious traumas that the appellant has experienced in her life.
The appellant herself states she is affected in some way every day, all of the time. Her Physician endorses her
statement. The Psychologist also agrees in stating that her symptoms significantly interfere with her quality of life,
physical health and positive participation in life. The panel finds that it was reasonable for the Ministry to determine
that this appellant suffers from a severe mental impairment pursuant to section 2(2) EAPWDA.
DLA
The appellant describes her limits to social functioning in her SR and Second SR. She states that she seldom
leaves her home and describes marginal functioning with her immediate social network and disruptions to your
extended social network, causing social isolation.
In Section 3-C of the PWD application, the Physician states that the appellant is independent with four of five listed
areas of social functioning (i.e., making appropriate social decisions, being able to develop / maintain relationships,
interacting appropriately with others, and being able to secure assistance from others). Apart from general stated
limits to social functioning, the Physician nor the appellant describe the specific restrictions that she face with
respect to DLA.
The panel notes that there are two DLA specific to severe mental impairment found in s.2(1)(b) of EAPWDR: make
decisions about personal activities, care or finances; and relate to, communicate or interact with others effectively.
Neither the appellant, the Physician or Psychologist describe how the appellant manages these DLA either
continuously or periodically for extended periods. The appellant describes that she needs to be in the transition
house as she relies on persons there to assist her. The panel notes however, that the appellant is no longer living
there.
Considering the appellant’s ability to perform DLA as a whole, and the insufficient evidence to demonstrate that the
appellant requires continuous or periodic assistance in completing her DLA, the panel finds that the Ministry
reasonably concluded that the evidence is insufficient to demonstrate that the appellant’s DLA are significantly
restricted either continuously or periodically for extended periods pursuant to section 2(2)(b) of the
EAPWDA.
Help to perform DLA
The appellant reports that she needs daily assistance from the transition house to take care of herself. Her
Physician indicates she obtains assistance from family, health authority professionals, and community service
agencies. Her Physician states that the appellant requires prostheses or aids for impairment (a knee brace and a
cane for longer distances, shower stool).
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.
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 establishment of direct and significant restrictions with DLA is a
precondition of the need for help criterion. 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 a reasonable application of the applicable
enactment, and therefore confirms the decision. The appellant is not successful on appeal.
PART G – ORDER
THE PANEL DECISION IS: (Check one)
UNANIMOUS
BY MAJORITY
THE PANEL
CONFIRMS THE MINISTRY DECISION
RESCINDS THE MINISTRY DECISION
If the ministry decision is rescinded, is the panel decision referred back to the Minister
for a decision as to amount?
Yes
No
LEGISLATIVE AUTHORITY FOR THE DECISION:
Employment and Assistance Act
Section 24(1)(a)
or Section 24(1)(b)
and
Section 24(2)(a)
or Section 24(2)(b)
PART H – SIGNATURES
PRINT NAME
MEGHAN WALLACE
SIGNATURE OF CHAIR
DATE (YEAR/MONTH/DAY)
2018-06-07
PRINT NAME
CHRIS MCEWAN
SIGNATURE OF MEMBER
DATE (YEAR/MONTH/DAY)
2018-06-07
PRINT NAME
DAVID KENDRICK
SIGNATURE OF MEMBER
DATE (YEAR/MONTH/DAY)
2018-06-07
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