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 05 June 2018 that denied the appellant designation
as a person with disabilities (PWD). The ministry determined that the appellant did not meet all
of the required criteria for PWD designation set out in section 2 of the Employment and
Assistance for Persons with Disabilities Act, section 2. Specifically, the ministry determined that
the information provided did not establish that the appellant has a severe mental or physical
impairment that in the opinion of a prescribed professional
(i)directly and significantly restricts his ability to perform daily living activities (DLA) either
continuously or periodically for extended periods; and,
(ii)as a result of those restrictions, he requires help to perform those activities.
The ministry determined that the appellant satisfied the other 2 criteria: he has reached 18 years
of age and his impairment in the opinion of a medical practitioner is likely to continue for at least
2 years.
PART D – RELEVANT LEGISLATION
Employment and Assistance for Persons with Disabilities Act (EAPWDA) – section 2
Employment and Assistance for Persons with Disabilities Regulation (EAPWDR) – sections 2
and 2.1.
PART E – SUMMARY OF FACTS
The evidence before the ministry at reconsideration consisted of the following:
1.
The appellant’s PWD Designation Application dated 26 February 2018. The Application
contained:
•
A Self Report (SR).
•
A Medical Report (MR) dated 22 February 2018, completed by a general practitioner
(GP) who has known the appellant for 3 years and seen him 2-10 times over the past
year.
•
An Assessor Report (AR) dated 22 February 2018, completed by the same GP.
2.
The a
ppellant’s Request for Reconsideration submission dated 29 May 2018, providing a
number of advocate-prepared statements based on information provided by the appellant
with which the GP has indicated by her initials her agreement with each statement (the
reconsideration statements or RS). The GP also signs this document with this statement:
“I, [GP’s name], have confirmed the above information by my initials.”
In the MR, the physician provides the following diagnosis related to the appellant’s impairment:
osteoarthritis of right ankle (onset 2017).
The
panel will first summarize the evidence from the MR, the AR and the RS as it relates to the
PWD criteria at issue in this appeal.
Severity of impairment
Physical impairment
MR:
Under
Health History, the GP writes that the appellant has a history of a fracture in the right
ankle, and as a result has developed severe osteoarthritis in that ankle. He has been suffering
severe pain and swelling for about one year and became disabled from work in October 2017 –
he had a very physical job and he became unable to keep up at that time. The GP states that
the appellant has severe pain with walking, standing, and going up stairs. He has been seen by
an orthopaedic surgeon and had a steroid injection in December 2017, but this did not provide
any relief.
RS:
[Entries here should be understood to be prefaced by “With her initials, the GP indicated
agreement with the statement that the appellant…”(summarized for brevity)].
•
Has developed severe osteoarthritis in his right ankle, following a fracture and
subsequent surgery 14 years ago. Chronic ankle pain and swelling has become
increasingly severe over the past year. Pain and swelling made worse by physical
activity.
MR:
Regarding Functional Skills, the GP reports that the appellant can walk 2 to 4 blocks unaided on
a flat surface, can climb 5+ steps unaided, is limited to lifting 15 to 35 lbs., and there are no
limitations to remaining seated.
The GP indicates that the appellant’s height and weight are relevant: 5 ft. 11 in, and 160 lbs.
The GP indi
cates that the appellant has not been prescribed any medication and/or treatments
that interfere with his ability to perform DLA. She also indicates that the appellant requires an
aid to compensate for his impairment: he uses a cane to steady himself when walking.
AR:
Respec
ting Mobility and Physical Ability, the GP assesses the appellant as taking significantly
longer than typical for walking indoors, walking outdoors, climbing stairs, and standing; the GP
assesses the appellant as independent for lifting and for carrying and holding.
RS:
•
Walking: Requires a cane for all mobility outside the home. This is needed to steady him
and to redistribute pressure from his ankle. Even with a cane, maximum distance is 2
blocks before requiring a break to rest his ankle. His gait has also significantly slowed,
taking him at least 3 times longer to walk any distance.
•
Stairs: Has been advised to avoid all stairs due to the risk of falling because of ankle
weakness. When unavoidable, takes 3 – 4 times longer to climb safely with resulting
severe pain. The cane does not provide enough support for stairs and he relies on a
person or multiple walls/banisters and cannot climb without.
•
Lifting/carrying: While physically capable of lifting up to 15 lbs., unable to carry weight of
more than 4 – 5 lbs. for any distance due to ankle weakness and increased pain.
•
Standing: Experiences constant pain while standing. If required to stand for a couple of
minutes or more, requires a cane to reduced pressure on ankle. Even with a cane,
cannot stand for more than 5 to 10 minutes before needing to rest.
Mental impairment
MR:
The physician indicates that the appellant has no difficulties with communication.
The GP indicates that the appellant has no significant deficits with cognitive and emotional
function.
AR:
The GP assesses the appellant's ability to communicate as good in all listed areas: speaking,
reading, writing, and hearing.
In the section relating to Cognitive and Emotional Functioning as a result of a mental impairment
or brain injury, the GP indicates no impact on daily functioning in any of the listed cognitive or
emotional areas.
RS:
•
Cognitive/emotional restrictions: Had a difficult time adjusting to chronic pain and his
physical limitations. Largely confined to his house and no longer able to participate in any
of the activities he previously enjoyed. This has taken a toll on his mental health and
social function. Experiences symptoms of depression and is largely isolated from his
peers.
•
Pain also disrupts sleeping patterns, waking up at least 5 to 6 times a night due to pain
and is often slow to fall back asleep, leading to chronic fatigue.
Ability to perform DLA
AR:
The GP provides the following assessments of the assistance the appellant requires in
performing DLA (the GP’s comments in parentheses):
•
Personal care – independent for dressing, bathing, toileting, feeding self, and regulating
diet; takes significantly longer than typical for transfers in/out of bed and transfers on/off
chair (takes about twice the amount of time that others would for both);
•
Basic housekeeping – independent for all aspects: laundry and basic housekeeping;
•
Shopping – independent for reading prices of labels, making appropriate choices, paying
for purchases, and carrying purchases home; takes significantly longer than typical for
going to and from stores (takes much longer as he has to walk slowly & rest);
•
Meals – independent for meal planning, food preparation, and safe storage of food;
takes significantly longer than typical for cooking (unable to stand for prolonged periods);
•
Pay rent and bills – Independent for all aspects: banking, budgeting, and paying rent and
bills;
•
Medications – independent for all aspects: filling/refilling prescriptions, taking as
directed, and safe handling and storage;
•
Transportation – independent for using transit schedules and arranging transportation;
takes significantly longer than typical for getting in and out of the vehicle and using
public transit.
RS:
•
Personal care: activities take twice as long to carry out because of physical limitations –
e.g. because of ankle weakness, can only dress while sitting. Shower is quite small
therefore he can currently use the walls to balance himself in the shower and in and out.
Any other shower would require grab bars. Transferring in/out of bed also takes at least
twice as long.
•
Basic housekeeping: relies on continual assistance from his mother [with whom he lives]
for all basic housekeeping, as these activities severely aggravate his ankle pain and
swelling. Unable to carry the weight of a full laundry basket or vacuum, or stand long
enough with his cane to wash dishes or sweep.
•
Shopping: as symptoms have become increasingly severe, has been unable to
independently shop for necessities. Can no longer get to and from stores without help,
has difficulties getting around the store, and is unable to carry purchases home. He relies
on continual help from friends or delivery services.
•
Meal preparation/cooking: because of physical restrictions, meal preparation and cooking
are difficult and he relies on the continual help from his mother.
•
Transportation: unable to take public transportation because of difficulties getting to and
from bus stops as well as the fall risk if unable to find a seat. Relies on continual help
from friends driving to and from appointments. Takes twice as long to get in and out of
vehicles.
•
Banking/medications: relies on ongoing help from friends to get to and from the bank and
pharmacy. Also requires his cane if he has to stand in line for any length of time.
Social functioning
AR:
The GP assesses the appellant as independent for all listed areas where support/supervision
may be required to compensate for a mental impairment: making appropriate social decisions,
developing and maintaining relationships, interacting appropriately with others, dealing
appropriately with unexpected demands, and securing assistance from others.
The GP assesses the appellant's relationship with his immediate and extended social networks
as good functioning.
Help provided/required
MR:
The GP indicates that the appellant uses a uses a cane to steady himself when walking.
AR:
The GP indicates that the appellant routinely uses a cane – a standard cane for walking to
provide support.
The GP indicates that assistance is provided by family.
Self Report
In describing his disability, the appellant writes that he broke his ankle, which now has multiple
pins and plates. Arthritis and constant pain/swelling make him unable to walk without the use of
a cane. Doctors have tried pain relievers and he has seen a specialist who gave him injections,
but none of these have helped. He is scheduled for surgery to fuse the bones in his foot, but this
will leave him with a clubfoot and the only advantage will be to reduce pain and swelling.
However, his doctor says he will still need a cane to walk and mobility will still be a hardship.
He explains that he worked for a construction company for many years and one weekend at
home he fell and broke his ankle. He spent a week in hospital and after surgery was told his
ankle would never be the same and things like arthritis will affect him in time. He did a year of
rehab and he couldn’t walk properly and his employer said he would not be able to work for
them with his injuries and limitations. He has worked since then with a relative, but could help
only for short periods and limited duties because his ankle was always swelling and he was in
constant pain.
The appel
lant writes that he is now not able to work at all because he is very limited in the time
he can stand or walk and always needs to use a cane.
He states that he has moved in with his elderly mother since he now needs help with money
and daily living, and he now feels that he has become a burden to her.
He now needs help with stairs, cooking meals and all aspects of daily living, since he cannot
walk without help from others and the use of a cane.
Notice of Appeal
The appellant's notice of appeal is dated 18 June 2018. Under Reasons for Appeal, he writes,
“The decision is not a reasonable application of the legislation & is not reasonably supported by
the evidence.”
The hearing
The ministry did not attend the hearing. After confirming that the ministry was notified of the
hearing, the hearing proceeded in accordance with section 86(b) of the Employment and
Assistance Regulation.
At t
he hearing, the appellant's advocate spoke to a 9-page submission that went to argument
(see Part E, Reasons for Panel Decision, below).
In presenting her submission, the advocate submitted an exchange of correspondence between
her and the GP. In a letter dated 20 June 2018, the advocate refers to the reasons for the
ministry’s denial at reconsideration being the unexplained difference in the information provided
in the original application and subsequently in the reconsideration statements [“checklist”]. The
advocate asks the GP to provide a brief letter that addresses this difference and confirm that the
information provided in the reconsideration statements is consistent with the GP's medical
opinion of the appellant's current level of impairment.
In resp
onse, in a letter dated 02 July 2018, the GP wrote:
“[The appellant] is a patient in my family practice. I recently completed a PWD application
for [him] as well as a checklist after this. It has come to my attention that there were some
inconsistencies between the two sources of information. I wanted to clarify the information
provided, as I feel that since the original application [the appellant's] condition has further
deteriorated. As a result, the information provided in the checklist is more accurate.”
In answer to a question, the appellant stated that he had not seen the GP between when she
completed the application and when she checked the reconsideration statements. However, the
GP had arranged for him to have x-rays and see an orthopaedic surgeon. In response to
another question, the appellant stated that in addition to his osteoarthritis in his right ankle, he
also had osteoarthritis in his neck, as a result of falling down stairs about a year ago.
Admis
sibility of additional information
Section 22(4) of the Employment and Assistance Act (EAA) provides that panels may admit as
evidence the information and records that were before the minister when the decision being
appealed was made and “oral and written testimony in support of the information and records”
before the minister when the decision being appealed was made. These limitations reflect the
jurisdiction of the panel established under section 24 of the EAA - to determine whether the
ministry’s reconsideration decision is reasonably supported by the evidence or is a reasonable
application of the enactment in the circumstances of an appellant. That is, panels are limited to
determining if the ministry’s decision is reasonable and are not to assume the role of decision
makers of the first instance. Accordingly, panels cannot admit information that would place them
in that role.
At issue is the admissibility of the 02 July 2018 letter from the GP and in particular the
statement, “…I feel that since the original application [the appellant's] condition has further
deteriorated. As a result, the information provided in the checklist is more accurate.” The
appellant's advocate argues that the letter is in support of the information and records before the
ministry at reconsideration as the letter corroborates evidence before the minister, with the
reconsideration statements containing references to the increasing severity of the appellant's
condition. She cites 2 examples:
•
“…chronic ankle pain and swelling has become increasingly severe over the past year.”
•
“As [his] symptoms have become increasingly severe, he has been unable to
independently shop for necessities.”
The panel finds that this letter is not in support of the information before the ministry at
reconsideration: the letter specifically addresses the deterioration of the appellant's condition
since the GP completed the MR and AR, information that was not before the ministry at
reconsideration, while the examples cited by the advocate refer to either “changes over the past
year” or over some indefinite period. Thus this statement in the letter cannot be said to
corroborate anything before the ministry at reconsideration. Pursuant to section 22(4) of the
EAA, the panel does not admit this letter as evidence.
Simi
larly, the panel does not admit as evidence the appellant’s testimony that he also suffers
from osteoarthritis in the neck, as no information to this effect was before the ministry at
reconsideration.
The panel accepts the advocate’s written submission as argument.
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 designation as
a person with disabilities (PWD) 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
physical or mental impairment that, in the opinion of a prescribed professional,
(i)directly and significantly restricts his ability to perform daily living activities (DLA)
either
continuously or periodically for extended periods; and,
(ii)as a result of those restrictions, he requires help to perform those activities.
The ministry determined that the appellant satisfied the other 2 criteria: he has reached 18 years
of age; and his impairment in the opinion of a medical practitioner is likely to continue for at
least
2 years.
The following section of the EAPWDA applies to this appeal:
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 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.
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 followi
ng 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.
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)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).
Analysis
Weight of evidence
In her s
ubmission, the appellant's advocate argued that the ministry’s decision is not reasonably
supported by the evidence because the ministry failed to give sufficient weight to information
supplied at reconsideration and as a result also failed to engage with relevant information
supplied at reconsideration. In making this argument, the advocate provided several examples.
On reading the reconsideration decision (see detailed analysis below under each criterion at
issue), the advocate has a point: it is clear that, while the ministry did not expressly state it was
doing so, and while acknowledging the reconsideration statement evidence, it gave greater
weight to the assessments provided in the MR and AR than to those in the reconsideration
statements.
Consideri
ng that:
•
As the advocate argues, reconsideration provides the applicant with the opportunity to
submit new information and obtain a “new” decision from the ministry. However, the
starting point for reconsideration is the original application, so the ministry would examine
any new information in the context of that provided with the original application. In the
panel’s view, it is reasonable for the ministry to expect that any changes in assessments
be explained, so as to provide a rationale for the ministry to weigh the new evidence.
•
Both “packages” cover the same ground – detailed assessments and explanations
regarding the full range of issues in dispute in this appeal: the severity of the appellant's
physical impairment and assessments of his ability to perform DLA and the resulting help
required.
•
On review, each package provides a substantially different picture of the degree of the
appellant’s impairment and the impact on his ability to perform DLA. Example: In the AR,
the GP assesses the appellant as independent for laundry and housekeeping, while in
the reconsideration statements, the GP has agreed to the statement that the appellant
“relies on continual assistance from his mother for all basic housekeeping, […] Unable to
carry the weight of a full laundry basket or vacuum, or stand long enough with his cane to
wash dishes or sweep.”
•
With such conflicting information across the whole range of assessments, the most
reasonable approach is to consider each package separately.
•
The advocate argues that the legislation does not prevent the ministry giving equal
weight to evidence from a medical practitioner that is not in the prescribed PWD form and
submits that the information confirmed by the GP in the reconsideration statements ought
to be considered equally with the information provided by the GP in the MR and PR.
While all the evidence needs to be given consideration, the panel finds, given the
conflicting information, that the ministry would be reasonable in determining that one set
of evidence be given more weight than another.
•
With the two sets of assessments considered as separate packages, it would be
unreasonable to expect the ministry to “pick and choose” a specific assessment from the
reconsideration statements and use it in conjunction with, or replace it by, an assessment
in the PR/AR. For example, it would be unreasonable for the ministry to replace the
assessment in the PR that the appellant is limited to lifting 15 to 35 lbs. and in the AR
that he is independent for lifting and carrying and holding, with the reconsideration
statement that “while physically capable of lifting up to 15 lbs., unable to carry weight of
more than 4 – 5 lbs. for any distance due to ankle weakness and increased pain.” Put
another way, giving weight to an assessment from one package requires giving weight to
all assessments from that package.
•
There was insufficient information before the ministry at reconsideration that would
explain the differences between the two packages of assessments (see also above under
Admissibility of additional information).
•
In panel’s view, it is reasonable for the ministry to expect that the opinions of a medical
practitioner or prescribed professional, as contemplated in the legislation, be based on
examinations and observations of, references to previous medical reports concerning, or
at least direct discussion with, the applicant. In the case of the reconsideration
statements, the information was based on the appellant’s self-reporting, conveyed
through a third-party (the advocate), and agreed to by the GP without her direct
involvement and with no explanation before the ministry of the reasons for the differences
between the assessments made in the MR/AR and those appearing in the
reconsideration statements.
For these reasons, the panel finds that the ministry reasonably gave more weight to the
assessments provided in the MR and AR and, while acknowledging the information provided in
the reconsideration statements, reasonably gave that information little weight.
Severity of impairment
Physical impairment
The posi
tion of the appellant, as explained in the advocate’s submission, is that the ministry's
determination that a severe physical impairment has not been established is not reasonably
supported by the evidence.
The subm
ission refers to information provided in the reconsideration statements that the
advocate argues demonstrate a severe physical impairment, such as:
•
The appellant requires a cane for all mobility outside the home; and even with a cane the
maximum distance he can walk is 2 blocks before he needs to take a rest; and it takes
him 3 times longer to walk any distance.
•
Avoids stairs due to the risk of falling; when unavoidable, takes 3 – 4 times longer to
climb safely.
•
While physically capable of lifting up to 15 lbs., unable to carry weight of more than 4 – 5
lbs. for any distance due to ankle weakness and increased pain.
•
Experiences constant pain while standing; if required to stand, requires a cane to reduce
pain on ankle; even with a cane cannot stand for more than 5 to 10 minutes.
In the reconsideration decision, the ministry noted the assessments provided by the GP in the
MR (i.e. the appellant is able to walk unaided 2 to 4 blocks, climb 5+ steps unaided, lift 15 – 35
lbs., and has no limitations sitting.) and in the AR (independent with lifting, carrying and holding,
and independence with DLA, although it takes about twice as long with transfers in/out of bed
and on/off chairs, takes significantly longer than typical for getting in/out of a vehicle and using
public transit, and unable to stand for prolonged periods).
The mi
nistry acknowledged the information provided in the reconsideration statements –
referring to it as “self reported by you and acknowledged by your physician.” The ministry noted
that the GP’s assessment of the appellant's basic functional skills, as indicated in the PWD
application, is not considered indicative of a severe impairment of physical functioning. Although
the ministry acknowledges his additional self-report, which reports him to be more impaired than
originally reported by his GP, the ministry found that his overall impairment is not indicative of a
severe physical functional impairment. The ministry stated that it is unclear why the appellant
reports the level of impairment in so many areas of functioning, given the original assessment
by his GP and the fact that there are no other reported medical conditions beyond the arthritis in
the ankle. The ministry concluded that it acknowledges that the appellant is required to use a
cane for walking and climbing stairs, but he can lift 15 lbs., can stand 5 to 10 minutes, and has
no limitations sitting.
Considering the panel's discussion above regarding weight of evidence, and the level of
physical functionality reported by the GP in the MR and the AR, the panel finds that the ministry
was reasonable in determining that a severe physical impairment has not been established.
Mental impairment
In her submission, the appellant’s advocate stated that the appellant accepts the ministry's
conclusion that he does not have a severe mental impairment. Considering that the GP has not
diagnosed the appellant with a mental health condition or brain injury, has not identified any
significant deficit in cognitive and emotional functioning, and has not indicated any impacts of a
mental health condition on daily functioning, the panel finds that the ministry was reasonable in
determining that a severe mental impairment has not been established.
Direct and significant restrictions in the ability to perform DLA
The appellant's position, as explained in the advocate’s submission, is that the ministry’s finding
that the information provided does not establish that the appellant’s impairment directly and
significantly restricts daily living activities either continuously or periodically for extended periods
is not reasonably supported by the evidence or a reasonable application of the legislation.
The submission refers to the information provided in the reconsideration statements, including:
•
The appellant suffers from chronic ankle pain, weakness, and swelling made worse by
physical activity,
•
Uses a cane for all mobility outside the home,
•
Basic housekeeping severely aggravates the ankle pain and swelling; unable to carry the
weight of a full laundry basket or vacuum; cannot stand long enough without cane to
wash dishes,
•
As symptoms have become increasingly severe, he can no longer get to and from stores
without help, has difficulty getting around store, and is unable to carry purchases home.
•
Needs cane if standing more than a couple minutes, suggesting restrictions to food
preparation and cooking.
•
Has difficulties getting to and from the bus stop; fall risk if unable to find a seat on the
bus.
•
Needs cane to stand in line for any length of time at bank or pharmacy.
In the r
econsideration decision, the ministry stated that the prescribed professional’s opinion is
fundamental to the determination of whether the ministry is satisfied that impairment directly and
significantly restricts the ability to perform DLA. Considering the wording of section (2)(b) of the
EAPWDA (“in the opinion of a prescribed professional…”), the panel finds that it is reasonable
for the ministry to base its determination for this criterion on what the ministry is satisfied most
appropriately represents the considered opinion of the prescribed professional.
The ministry noted that in the AR the GP reported that the appellant is independent with all his
DLA, including personal care, basic housekeeping, shopping, meals, bills, medications,
transportation, and social functioning. She did not report periodic or continuous assistance is
required with any of his DLA, nor did she report that he used assistive devices with any of these
activities, though she did note that he uses a cane routinely for support with walking. She did
not report or check if any other assistive devices were being used.
The ministry then summarized the information provided in the reconsideration statements,
including that the appellant relies on his mother continuously for all basic housekeeping, meal
preparation and cooking.
The ministry acknowledged that the GP reports in the MR that the appellant has had severe
pain and swelling in the right ankle over the past year and had to stop working in December as
a result. However, the ministry found that there is not enough new information provided from the
GP to support that his medical condition directly and significantly affects his ability to manage
his DLA. The ministry stated that it is unclear why the appellant was initially assessed in
February as fully independent with all his DLA, by a physician who has known him for three
years, to then reporting to his physician in May that he relies on his mother and friends to
manage so many of his DLA. It is also unclear how much assistance is provided on a daily basis
because of his medical condition, and why he would not be able to manage more of household
activities given that he can manage his personal care with no assistance, can lift 15 pounds, can
walk 2 blocks without resting, and uses no other assistive devices with the exception of
standard cane for walking.
As the ministry argued in the reconsideration decision, the panel notes that there is not enough
new information provided by the GP to explain the differences in her assessments of the
appellant’s ability to perform DLA between those reported in the AR and those included in the
reconsideration statements: from independent for most DLA in the AR to requiring the
continuous assistance from his mother and friends in the reconsideration statements. Similarly,
there is little new information provided by the GP that would describe, given his medical
condition and functional abilities, why and to what extent the appellant’s ability to manage DLA
is as restricted as he reports in the reconsideration statements. Considering the level of
independence in the appellant's ability to perform DLA reported by the GP in the AR, the panel
finds that the ministry was reasonable in determining that the information provided did not
confirm that the appellant has a severe impairment that, in the opinion of a prescribed
professional, significantly restricts his ability to perform DLA continuously or periodically for
extended periods, and that this legislative criterion has therefore not been met.
Help required
In the reconsideration decision, the ministry held that, as it has not been established that DLA
are significantly restricted, it cannot be determined that significant help is required.
Section 2(2)(b)(ii) of the EAPWDA 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. That is, 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, the
significant help or supervision of another person, or the services of an assistance animal in
order to perform a DLA.
While the appellant benefits from the use of a cane and the help of his mother and friends, since
the ministry reasonably determined that direct and significant restrictions in the appellant’s
ability to perform DLA have not been established, 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.
Conclusi
on
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. The panel
therefore confirms the ministry’s decision. The appellant is thus 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
Richard Roberts
SIGNATURE OF CHAIR
DATE (YEAR/MONTH/DAY)
2018 August 09
PRINT NAME
Donald McLeod
SIGNATURE OF MEMBER
DATE (YEAR/MONTH/DAY)
2018 August 09
PRINT NAME
Don Storch
SIGNATURE OF MEMBER
DATE (YEAR/MONTH/DAY)
2018 August 09
EAAT003 (17/08/17)
Signature Page
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