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 August 9, 2018, which held that the appellant did not meet 3 of
the 5 statutory requirements of section 2 of the Employment and Assistance for Persons with Disabilities
Act for designation as a person with disabilities (PWD). The ministry found that the appellant met the age
and duration requirements, but was not satisfied that:
•
the appel
lant has a severe physical and/or mental impairment;
•
the appellant’s daily living activities (DLA) are, in the opinion of a prescribed professional, directly
and significantly restricted either continuously or periodically for extended periods; and
•
as a
result of those restrictions, the appellant requires an assistive device, the significant help or
supervision of another person, or the services of an assistance animal to perform DLA.
PART D – RELEVANT LEGISLATION
Employment and Assistance for Persons with Disabilities Act (EAPWDA), section 2
Em
ployment and Assistance for Persons with Disabilities Regulation (EAPWDR), section 2
PART E – SUMMARY OF FACTS
The information before the ministry at the time of reconsideration included the appellant’s PWD
application comprised of a Medical Report (MR) and an Assessor Report (AR) both completed by the
appellant’s general practitioner (the “GP”) and dated May 25, 2018. The GP has known the appellant for
2 months and saw the appellant 2-10 times in the past 12 months prior to completing the PWD
application. The PWD application was completed by conducting an interview with the appellant. The
PWD application also included the appellant’s Self-Report (SR) dated May 11, 2018.
The evidence included the appellant’s Request for Reconsideration (RFR) dated July 31, 2018. In the
RFR the appellant, in part, stated the following:
•
He had a car accident in June 2017 in which he suffered an injury to his right wrist.
•
On July 17, 2018 he was finally able to get a surgery date for a scaphoid 4 corner fusion for his
right wrist.
•
He has been in a cast for 6 weeks.
•
Since the surgery, his everyday life has changed drastically – he cannot tie his shoes, put on
socks, prepare food without help, drive, write with a pen, lift anything with his right hand or hold a
welding gun. He experiences difficulty with going to the bathroom and taking a shower.
The evidence also included:
•
3 pictures of his right wrist (2 showing incisions and 1 showing the wrist in a cast),
•
A letter from the GP (signed and dated May 25, 2018) which stated that the appellant is unable to
work at his current job and retraining into a profession that will not require hard physical work on
the wrist is recommended.
•
A letter from another physician (signed and dated June 15, 2018) which suggests
retraining/vocational change.
Di
agnoses
In the MR, the GP diagnosed the appellant with right scapholunate separation (onset 2018), essential
hypertension (onset 2018), subdural bleeding (onset 2018), polycystic kidneys (onset birth) and
methamphetamine addiction (onset 2016).
Physi
cal Impairment
In the MR and the AR, the GP indicated the following about the appellant:
•
“Suffered a subdural bleeding likely due to a traumatic event” – “he had it drained in March 2018”.
•
Right wrist injury and “he cannot do physical work like his welding anymore due to pain in the
wrist with grasping and holding”.
•
“He suffers from polycystic kidneys and is waiting for nephrology to see him. He has mild renal
failure”.
•
The appellant can walk 4+ blocks unaided, climb 5 + steps unaided, lift up to 15lbs and remain
seated without limitation.
•
Independently performs walking indoors, walking outdoors, climbing stairs and standing.
•
Takes significantly longer than typical to perform lifting and carrying/holding – with the comment:
“pain [in the] right wrist with grasping” and “can’t do job as welder”.
In the SR, the appellant stated “I am waiting for surgery on my right wrist which is also my dominating
(sic) hand so I am unable to work in my industry which is welding.
Ment
al Impairment
In the MR and AR, the GP indicated the following about the appellant:
•
He has been in rehabilitation for 3 months for addictions to methamphetamine.
•
Significant deficits with cognitive and emotional function in the area of ‘other’ – methamphetamine
addiction – “has completed 3 months of rehabilitation already”.
•
All aspects of communication (speaking, reading, writing and hearing) are good.
•
In terms of cognitive and emotional functioning there are moderate impacts to impulse control
and ‘other’ (methamphetamine addiction), no impacts to all other listed items in this category.
•
All listed items under social functioning are performed independently.
•
Good functioning with immediate and extended social networks with the comment: “functioning
has improved since attendance of rehab unit”.
In
the SR, the appellant made no mention of a mental impairment.
Dai
ly Living Activities
In the MR and AR, the GP indicated the following:
•
The appellant is not prescribed medications/treatments that interfere with his ability to perform
DLA.
•
“Patient cannot return to job as a welder. He is waiting for surgical repair of his [right] wrist
scapholunate separation. He is still in rehab for his methamphetamine addiction”.
•
“Painful wrist bone – scapholunate dissociation – awaiting surgical repair”.
•
All listed tasks in the category of ‘personal care’ are performed independently (namely: dressing,
grooming, bathing, toileting, feeding self, regulating diet, transfers in/out of bed and transfers
on/off chair).
•
All listed tasks in the category of ‘basic housekeeping’ are performed independently (namely:
laundry and basic housekeeping).
•
In the category of ‘shopping’, the tasks of ‘going to/from stores, reading prices/labels, making
appropriate choices and paying for purchases’ are performed independently. The task of
‘carrying purchases’ home requires periodic assistance and the GP commented: “painful wrist,
can’t lift/grasp”.
•
In the category of ‘meals’ the task of meal planning is performed independently. The tasks of
‘food preparation, cooking, safe storage of food’ require periodic assistance and the GP
commented: “can’t lift or grasp with [right] hand”.
•
All listed tasks in the category of ‘pay rent/bills’ are performed independently (namely: banking,
budgeting and pay rent/bills).
•
All listed tasks in the category of ‘medications’ are performed independently (namely:
filling/refilling prescriptions, taking as directed and safe handling/storage).
•
All listed tasks in the category of ‘transportation’ are performed independently (namely: getting
in/out of a vehicle, using public transit and using transit schedules/arranging transportation).
In
the SR, the appellant left blank the section pertaining to his ability to care for himself.
Hel
p
In the AR, the GP indicated the following about the appellant:
•
Requires prostheses or aids for his impairment – with the comment: “he needs surgical repair to
his wrist. He is waiting to see [a] hand surgeon”.
•
The GP left blank the section regarding equipment or devices used by the appellant for
assistance.
•
The GP left blank the section regarding assistance provided by an assistance animal.
•
The GP left blank the section regarding assistance provided by other people
In
the SR, the appellant did not indicate that he requires assistance with daily functioning.
Evidence on Appeal
Not
ice of Appeal (NOA), signed and dated June 26, 2018, which stated, in part, that he needs a kidney
transplant, brain surgery and had surgery on his wrist with the doctor indicating that he needs to retrain
in regards to his career. This should allow him to qualify for PWD and if it does not then there may be a
problem with the system.
Evidence Submitted Prior to the Hearing
•
Letter from the appellant, which in part stated the following:
o
“I’ve been in a car accident in which I suffered a bad wrist injury in June 2017 ending up in
surgery 1 year after accident with 2 different doctors 1 surgeon telling me that it’s best to
retrain my career”.
o
“After surgery I will require at least 2 years of recovery with hopefully but probably not
even 80% use from my wrist ever again”.
o
“I barely survived a brain aneurysm and emergency brain surgery in March 2018 and am
recovering from that mentally disturbing my thoughts”.
o
“I have polycystic kidneys with exploding cysts inside of me that cause me to pee blood
eventually leading me to a transplant”.
•
Letter from the appellant’s GP, signed and dated August 24, 2018, which in part stated that the
appellant suffers from a “severe [right] scapholunate dislocation with ORIF July 2018 and repair
with a prolonged rehabilitation process, can only lift 5 lbs for 6-12 months. Will take prolonged
recovery and expect 80% recovery hopefully. He suffered a subdural bleed and drainage March
2018, fully recovered but depression ongoing. He also has polycystic kidneys with mild renal
failure, awaiting nephrologist treatment”.
Admissibility of Additional Information
Section 22(4) of the Employment and Assistance Act (EAA) provides that panels may admit as evidence
(i.e. take into account in making its decision) 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 – i.e.
information that substantiates or corroborates the information that was before the minister at
reconsideration. 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 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.
In this case, the panel found that the appellant’s NOA, the letter from the appellant and the letter from the
GP dated August 24, 2018 provided additional detail or disclosed information that was in support of the
information addressed in the reconsideration decision. Accordingly, the panel has admitted this new
information as being in support of information and records that were before the ministry at the time of
reconsideration, in accordance with s. 22(4) of the Employment and Assistance Act.
PART F – REASONS FOR PANEL DECISION
The issue on appeal is whether the ministry’s decision to deny the appellant designation as a PWD was
reasonably supported by the evidence or was a reasonable application of the applicable enactment in
the circumstances of the appellant. In particular, was the ministry reasonable when concluding it was not
satisfied that
•
the appellant has a severe physical and/or mental impairment;
•
the appellant’s daily living activities (DLA) are, in the opinion of a prescribed professional, directly
and significantly restricted either continuously or periodically for extended periods; and
•
as a result of those restrictions, in the opinion of a prescribed professional, the appellant requires
help, as it is defined in the legislation, to perform DLA?
Relevant Legislation
EAPWDA
2 (1) In this section:
"assistive device" means a device designed to enable a person to perform a daily living activity that,
because of a severe mental or physical impairment, the person is unable to perform;
"daily living activity" has the prescribed meaning;
"prescribed professional" has the prescribed meaning.
(2) The minister may designate a person who has reached 18 years of age as a person with disabilities
for the purposes of this Act if the minister is satisfied that the person has a severe mental or physical
impairment that
(a) in the opinion of a medical practitioner or nurse practitioner is likely to continue for at least 2 years,
and
(b) in the opinion of a prescribed professional
(i) directly and significantly restricts the person's ability to perform daily living activities either
(A) continuously, or
(B) periodically for extended periods, and
(ii) as a result of those restrictions, the person requires help to perform those activities.
(3) For the purposes of subsection (2),
(a) a person who has a severe mental impairment includes a person with a mental disorder, and
(b) a person requires help in relation to a daily living activity if, in order to perform it, the person
requires
(i) an assistive device,
(ii) the significant help or supervision of another person, or
(iii) the services of an assistance animal.
(4) The minister may rescind a designation under subsection (2).
EAPWDR
Definitions for Act
2 (1) For the purposes of the Act and this regulation, "daily living activities",
(a)in relation to a person who has a severe physical impairment or a severe mental impairment, means
the following activities:
(i)prepare own meals;
(ii)manage personal finances;
(iii)shop for personal needs;
(iv)use public or personal transportation facilities;
(v)perform housework to maintain the person's place of residence in acceptable sanitary condition;
(vi)move about indoors and outdoors;
(vii)perform personal hygiene and self care;
(viii)manage personal medication, and
(b)in relation to a person who has a severe mental impairment, includes the following activities:
(i)make decisions about personal activities, care or finances;
(ii)relate to, communicate or interact with others effectively.
(2)For the purposes of the Act, "prescribed professional" means a person who is
(a)authorized under an enactment to practice the profession of
(i)medical practitioner,
(ii)registered psychologist,
(iii)registered nurse or registered psychiatric nurse,
(iv)occupational therapist,
(v)physical therapist,
(vi)social worker,
(vii)chiropractor, or
(viii)nurse practitioner, or
(b)acting in the course of the person's employment as a school psychologist by
(i)an authority, as that term is defined in section 1 (1) of the Independent School Act, or
(ii)a board or a francophone education authority, as those terms are defined in section 1 (1) of the
School Act,
if qualifications in psychology are a condition of such employment.
(3)The definition of "parent" in section 1 (1) applies for the purposes of the definition of "dependent
child" in section 1 (1) of the Act.
Panel Decision
Severe Impairment
In the reconsideration decision, the ministry was not satisfied that the information provided establishes a
severe physical or mental impairment. Determining a severe physical or mental impairment requires
weighing the evidence provided against the nature of the impairment and its reported functional skill
limitations. A diagnosis of a serious medical condition 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, the
ministry must consider the nature of the impairment and the extent of its impact on daily functioning.
The
panel finds that employability is not a consideration for eligibility for PWD designation because
employability is not a criterion in section 2(2) of the EAPWDA nor is it listed among the prescribed daily
living activities in section 2 of the EAPWDR.
Physical Impairment
The
appellant’s position is that he qualifies for PWD because he has several physical impairments;
namely the injury to his hand, post-surgery recovery, brain aneurysm which led to emergency brain
surgery and polycystic kidneys with exploding cysts which will eventually lead to a kidney transplant.
The
ministry’s position is that based on the assessments provided by the GP in the PWD application and
the SR, a severe impairment of physical functioning has not been established and therefore the
legislated criteria has not been met.
In addition to the GP’s narrative as stated previously, the ministry noted that the GP indicated that the
appellant is able to walk 4+ blocks unaided, climb 5+ stairs, can lift up to 15lbs and there are no
limitations with remaining seated. The ministry noted that in terms of mobility and physical ability as
outlined in the AR, the GP indicated that the appellant independently managed walking indoors and
outdoors, climbing stairs, standing, and takes significantly longer with lifting, and carrying/holding. The
ministry noted the GP did not indicate how much longer the appellant takes with lifting and
carrying/holding. The ministry also noted that, at the time of reconsideration, information regarding the
appellant’s surgery, recovery, and prognosis and functioning post-surgery was not provided. The
ministry found that it is not satisfied that the information provided is evidence of a severe impairment.
The panel notes that, in the RFR and additional information, the appellant stated that his post-surgery
recovery would last 2 years and he may regain 80% function of his wrist. In the letter of the GP dated
August 24, 2018, the GP echoed that the appellant may regain 80% function of his wrist, he will only be
able to lift 5 lbs for 6-12 months and that recovery will be “prolonged”. The panel notes that the ministry
was not privy to this information. The panel finds that the GP’s letter dated August 24, 2018 does not
specify how long post-surgery recovery is expected and clearly stated that the limitation to lifting is
restricted to up to a 12 month period. Furthermore, the panel notes that in the PWD application, the GP
repeatedly indicted that function was currently limited in the right hand only due to pain when lifting and
grasping but that 80% return of function is expected hopefully. The panel also notes that in the AR (a
pre-surgery assessment), the GP indicated that the appellant has ‘good’ ability to communicate, which
included the ability to write; a task that requires the ability to grasp. The appellant has indicated that his
right hand is his dominate hand and therefore it is likely that the appellant uses his right hand to write.
The GP has not provided information on the appellant’s post-surgery ability to write.
The panel also notes that the GP indicated that the PWD application was completed in an office
interview. Therefore it is reasonable to conclude that the appellant had at least some input regarding the
information provided by the GP. The assessments provided by the GP describe good physical
functioning and good mobility and physical ability, and do not describe a severe physical impairment.
Given the assessments of the appellant’s functional ability, and mobility and physical ability in the PWD
application and the additional or supporting information that was provide at appeal, the panel finds that
the ministry was reasonable in its determination that the evidence does not support a finding that the
appellant suffers from a severe physical impairment and the legislative criteria outlined in Section 2(2) of
the EAPWDA have not been met.
Mental Impairment
The appellant argued that due to the limitations of his hand (wrist) and the prognosis of his kidneys he
feels depressed and his brain surgery has led to disturbing thoughts.
Th
e ministry’s position is that based on the assessments provided by the GP in the PWD application and
the SR, a severe impairment of mental functioning has not been established and therefore the legislated
criteria has not been met.
In addition to the GP’s narrative as indicated previously, the ministry noted that, in the MR, the GP
indicated that the appellant has significant deficits in the area of ‘other’ – methamphetamine addiction. In
the AR, the GP indicated only a moderate impact due to the methamphetamine addiction and a
moderate impact in the area of impulse control and no impact in all other listed items under cognitive and
emotional functioning. The ministry noted that the GP indicated that the appellant has good ability with
all listed areas of communication (speaking, reading, hearing and writing). In addition the ministry noted
that the appellant is independent in all listed areas of social functioning, has good functioning with
immediate and extended social networks, the need for support/supervision with social functioning is not
described and there is no indication of safety issue with social functioning. The GP further commented
that since rehabilitation, the appellant’s functioning in this area has improved.
The panel notes that the appellant stated that he feels depressed due to his situation and has disturbing
thoughts; however he has not been diagnosed with depression or another mental impairment other than
addiction. The GP has not provided information on how the appellant’s methamphetamine addiction has
impacted the appellant’s overall mental state or functioning. The panel also notes that the appellant is in
rehabilitation and the GP has not provided information on how sobriety may impact the appellant’s
mental state or functioning. The panel further notes, that in his May 25, 2018 and August 24, 2018
letters, the GP did not speak to the appellant’s mental state or functioning.
Gi
ven the assessment of the appellant’s mental functional ability provided by the GP does not indicate a
severe mental impairment and the fact that no additional or supportive information from the GP was
provided at appeal, the panel finds that the ministry was reasonable in its determination that the
evidence does not support a finding that the appellant suffers from a severe mental impairment and the
legislative criteria outlined in Section 2(2) of the EAPWDA have not been met.
Restrictions in the ability to perform DLA
Section 2(2)(b)(i) of the EAPWDA requires that the minister be satisfied that in the opinion of a
prescribed professional, a severe mental or physical impairment directly and significantly restricts the
appellant’s ability to perform DLA either continuously or periodically for extended periods. While other
evidence may be considered for clarification or support, the ministry’s determination as to whether or not
it is satisfied that the legislative criteria are met, is dependent upon the evidence from prescribed
professionals. The term “directly” means that there must be a causal link between the severe impairment
and the restriction. The direct restriction must also be significant. Finally, there is a component related to
time or duration – the direct and significant restriction may be either continuous or periodic. If periodic, it
must be for extended periods. Any analysis of periodicity must also include consideration of how
frequently the activity is restricted. All other things being equal, a restriction that only arises once a year
is less likely to be significant than one that occurs several times a week. Accordingly, in circumstances
where the evidence indicates that a restriction arises periodically, it is appropriate for the ministry to
require evidence of the duration and frequency of the restriction in order to be “satisfied” that this
legislative criterion is met.
DLA are defined in section 2(1) of the EAPWDR and are listed in both the MR and the AR sections of the
PWD application with the opportunity for the prescribed professional to check marked boxes and provide
additional narrative. DLA, as defined in the legislation, do not include the ability to work.
The appellant argued that since his surgery his life has changed drastically and he is unable to do many
normal functions of life (tie shoes, put on socks, prepare food, drive, lift anything with his right hand,
write, and showering and toileting are difficult).
The
ministry argued that the appellant is independent in almost all listed DLA and therefore it is not
satisfied that he has an impairment that, in the opinion of a prescribed professional, directly and
significantly restricts his ability to perform the DLA set out in the legislation.
The
ministry noted that the GP indicated that the appellant is not prescribed any medications or
treatments that interfere with the appellant’s ability to perform DLA. The ministry noted that the GP
indicated that all listed tasks are performed independently except, food preparation, cooking, safe
storage of food’, and ‘carrying purchases’ home requires periodic assistance. However, the GP has not
indicated the frequency, duration and degree of assistance required and therefore it is difficult to
determine if periodic assistance is required for extended periods.
The
panel considered the assessment by the GP in the PWD application of independence with almost all
of the DLA and that no additional or supporting information was provided from a prescribed professional
at appeal to support the appellant’s position. The panel finds that the evidence provided by the GP does
not describe or indicate that a severe impairment restricts the appellant’s ability to perform his DLA either
continuously or periodically for extended periods. Given the evidence as a whole, the panel finds that
the ministry reasonably concluded that the evidence does not establish that an impairment significantly
restricts DLA continuously or periodically for extended periods, pursuant to Section 2(2)(b)(i) of the
EAPWDA.
Help to perform DLA
Sec
tion 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 appel
lant’s position is that he requires the help from his wife.
The ministry argues that because it has not been established that DLA are significantly restricted, it
cannot be determined that help is required.
Given that confirmation of direct and significant restrictions with DLA is a precondition of the need for
help criterion and because the panel found that the ministry reasonably determined that direct and
significant restrictions in the appellant’s ability to perform DLA have not been established, the panel also
finds that the ministry reasonably concluded that it cannot be determined that the appellant requires help
to perform DLA as required by section 2(2)(b)(ii) of the EAPWDA.
Conclusion
The panel finds that the ministry’s reconsideration decision, which determined that the appellant was not
eligible for PWD designation, was reasonably supported by the evidence and is a reasonable application
of the applicable enactment, and therefore confirms the decision. The appellant is not successful on
appeal.
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
Neena Keram
SIGNATURE OF CHAIR
DATE (YEAR/MONTH/DAY)
2018/09/24
PRINT NAME
Susan Johnston
SIGNATURE OF MEMBER
DATE (YEAR/MONTH/DAY)
2018/09/24
PRINT NAME
Robert Kelly
SIGNATURE OF MEMBER
DATE (YEAR/MONTH/DAY)
2018/09/24
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