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 July 13, 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 (EAPWDA) for
designation as a person with disabilities (PWD). The ministry found that the appellant met the age requirement
and that a medical practitioner has confirmed that the appellant’s impairment is likely to continue for at least 2
years.
However, the ministry was not satisfied that:
•
the appellant has a severe physical or mental impairment;
•
the appellant’s daily living activities (DLA) are, in the opinion of a prescribed professional, directly and
significantly restricted either continuously or periodically for extended periods; and
•
as a result of those restrictions, in the opinion of a prescribed professional, the appellant requires an
assistive device, the significant help or supervision of another person, or the services of an assistance
animal to perform DLA.
The ministry also determined that the appellant is not in any of the classes of persons set out in section 2.1 of the
Employment and Assistance for Persons with Disabilities Regulation who may be eligible for PWD designation on
alternative grounds.
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
Information before the ministry at reconsideration
1)
The appellant’s PWD application comprised of:
•
A Medical Report (MR) dated March 28, 2017, signed by a general practitioner (GP) who has
known the appellant for between 2 weeks and 1 month, has seen the appellant 3 times and will
continue to follow the appellant;
•
An Assessor Report (AR) dated March 29, 2017, completed by the same GP; and
•
The appellant’s self-report (SR) section of the PWD application, dated April 3, 2017.
2)
The appellant’s Request for Reconsideration, with the following attachments:
i)
A July 3, 2018 letter from the appellant completed with the assistance of his support worker
without whom, the appellant notes, he could not have articulated his impairments.
ii)
A July 4, 2018 letter from the support worker, who is Director of Client Services for a brain injury
organization.
Documents provided on appeal
1)
The appellant’s Notice of Appeal (NOA) dated July 24, 2018 in which the appellant states that the GP
hurriedly completed the PWD application without knowing the appellant and that the GP provided some
misinformation. He has now been able to get a personal doctor and will take a new form to this doctor.
2)
By email on August 14, 2018, the ministry indicated that its submission is the reconsideration summary
provided in its reconsideration decision.
The panel accepts the information on appeal from the appellant and ministry as argument. The arguments of both
parties are set out in Part F of this decision.
Summary of relevant evidence
Diagnoses and Health History
In the MR, the GP indicates that the appellant had a stroke in 2007 resulting in:
•
Partial blindness both eyes. The GP includes a diagram showing half of both eyes blackened out.
•
Right leg and arm residual deficits. Unable to use right arm, cannot use pen/paper or lift over 70 degrees,
and is not able to use manual tools. Can barely carry grocery bags with it. Right leg requires brace for
ambulation.
•
Cognitive impairment/memory loss. Poor memory.
The GP describes the medical conditions as “Fairly severe.”
The support worker writes that the appellant has very significant physical and mental impairments as a result of
his brain injury. The appellant requires support from his mother and the brain injury organization on a daily basis.
The support worker also notes that the physician who completed the PWD application was not known to the
appellant and was unaware of the severity of the appellant’s disability.
Physical Impairment
The GP reports:
•
Able to walk less than 1 block unaided on a flat surface. Right leg brace required for walking. Walking
indoors and standing are managed independently.
•
Able to climb 5+ stairs unaided. “Can probably do stairs if there is rail.”
•
Able to lift 15 - 35 lbs.
•
No limitations for remaining seated.
•
Right leg brace is required for (illegible – could be “long” as the ministry indicates or could be “any”)
walking. Leg brace/orthosis is used for walking outdoors, climbing stairs, standing, and lifting and
carrying/holding. Also right arm ROM.
•
Reading ability is poor due to visual deficit/cognitive (illegible) and writing is satisfactory (“slow right hand
0 (illegible).”
In his SR, the appellant reports that he has partial paralysis on the right side – very limited use of his right arm,
loss of muscle function in right ankle and foot. Total loss of vision in the right half of both eyes.
In his July 3, 2018 letter, the appellant notes that he was involved in an ATV accident, while the GP reported that
the appellant had a stroke. The appellant writes that there were a lot of inaccuracies in his PWD application and
that he cannot manage without significant daily supports. He describes his right leg as “not very useful”, adding
that he can weight bear but often twists his ankle, trips or falls. He walks very slowly and is unsteady. Due to
having 50% of his vision, he often walks into objects or people, knocks things over, trips or falls.
The support worker writes that the appellant has very significant physical and mental impairments as a result of
his brain injury and that he requires support from his mother and the brain injury organization on a daily basis.
Mental Impairment
In the MR, the GP reports:
•
Significant deficits with 2 of 11 listed areas of cognitive and emotional function - executive (planning) and
memory (recall information).
•
Cognitive difficulties with communication – poor memory.
•
Social functioning is not restricted.
In the AR, the GP reports:
•
Good ability to communicate in the areas of speaking and writing; above noted limitations with reading
due to visual and cognitive problems.
•
Where asked to assess the impact on daily functioning for listed aspects of cognitive and emotional
functioning, the GP assesses a major impact on motor activity (leg and arm) and moderate impacts for
attention/concentration, executive, and memory.
•
Good functioning with immediate and extended social networks.
In the SR, the appellant writes that perhaps the most damaging result of his accident is his mental ability being
sharply slashed. He can no longer think quickly; it takes him a bit of time.
In his reconsideration letter, the appellant writes that, in terms of mental impairment, there are an additional 6
areas of cognitive and emotional functioning that are moderately impacted. He describes problems with sleep
disturbance, confusion/ comprehension and communication, poor judgment, loss of interest in activities, and
short term memory.
DLA
The GP reports the following:
•
The appellant has not been prescribed any medication and/or treatments that interfere with the ability to
perform DLA.
•
The ability to perform personal self-care is continuously restricted. Dressing, grooming and bathing take 3
times longer due to right arm and leg disability. Other listed tasks are managed independently.
•
Basic housework is continuously restricted and requires periodic assistance from another person.
•
Daily shopping is continuously restricted. Going to and from stores, paying for purchases and carrying
purchases home are managed independently. Reading prices and labels and making appropriate choices
require periodic assistance from another person.
•
Mobility inside and outside the home are continuously restricted. Functioning also as described above
under physical impairment.
•
Meal preparation is continuously restricted. Meal planning, food preparation and safe storage of food are
managed independently. Cooking takes significantly longer. “Arm (illegible).”
•
The GP describes the assistance needed as “other people required for meal prep, house work, otherwise
takes > 3 times more to complete.”
•
Management of medications, use of transportation, management of finances, and social functioning are
not restricted (though periodic support/supervision is required for 1 of 5 listed aspects of social
functioning – deal appropriately with unexpected demands).
Additional commentary by the GP is “Cognitive – memory impairment. Needed to ask for (illegible) concentration
issues.” Right arm and leg and visual problems as previously described.
In the SR, the appellant explains that it takes an excessive amount of time, about 3 times as long, for personal
care, to prepare simple meals and to eat. The appellant does everything with his left hand, and has struggled with
tendonitis in that arm for nearly 2 years. With slowed thought processes, half blindness, and only one arm to do
minimal work, his job opportunities are very few, and near minimum wage.
In his reconsideration letter, the appellant writes that he cannot assist his mother with cooking or cook for himself
because he cut his fingers and has very poor coordination with his left hand. Everything he does takes significantly
longer than typical to perform. His mother does all the meal prep, cooking, basic housework and provides
transportation. She assists him with laundry and grocery shopping. He would not be able to manage
independently without this assistance.
Information from the support worker is as described under physical impairment.
Need for Help
The GP indicates that the appellant routinely used a right leg brace and orthosis. Assistance is provided by family
and friends.
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. That is, was the ministry reasonable when determining that the appellant is not a person described
in section 2.1 of the EAPWDR and that the requirements of section 2(2) of the EAPWDA were not met because:
•
a severe physical or mental impairment was not established;
•
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
•
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?
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 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.
Alternative grounds for designation under section 2 of Act
2.1 The following classes of persons are prescribed for the purposes of section 2 (2) [persons with disabilities] of
the Act:
(a) a person who is enrolled in Plan P (Palliative Care) under the Drug Plans Regulation, B.C. Reg. 73/2015;
(b) a person who has at any time been determined to be eligible to be the subject of payments made through the
Ministry of Children and Family Development's At Home Program;
(c) a person who has at any time been determined by Community Living British Columbia to be eligible to receive
community living support under the Community Living Authority Act
;
(d) a person whose family has at any time been determined by Community Living British Columbia to be eligible to
receive community living support under the Community Living Authority Act
to assist that family in caring for the
person;
(e) a person who is considered to be disabled under section 42 (2) of the Canada Pension Plan (Canada).
Panel Decision
In the absence of any evidence or argument respecting eligibility for PWD designation under section 2.1 of the
EAPWDR, the panel finds that the ministry reasonably determined that it has not been established that the
appellant falls within the prescribed classes of persons under that section. The panel’s discussion below is limited
to eligibility for PWD designation under section 2 of the EAPWDA and section 2 of the EAPWDR.
Physical Impairment
The appellant is diagnosed by a medical practitioner, the GP, with partial blindness in both eyes and residual
deficits with his right arm and leg as a result of a stroke.
Noting that his impairment is the result of an accident, the appellant argues that the resulting partial paralysis of
his right side leaves him with very limited use of his right arm and that because he was right handed, he now does
everything with his left hand and takes significantly longer than typical. The appellant describes problems with his
mobility because his right leg “is not very useful” and because his vision loss causes him to bump into things and
to fall.
The ministry’s position is that to assess severity of physical impairment, it must consider the nature of the
impairment and the extent of its impact on daily functioning as evidenced by limitations and restrictions in
mobility, physical ability and functional skills. The ministry states that while all evidence, including that of the
applicant is taken into account, the legislation is clear that the fundamental basis for the analysis is the evidence
from a prescribed professional. Accordingly, while the information from the appellant’s support worker is helpful
to gain insight into the appellant’s medical condition, as there is no indication that the support worker is qualified
as a prescribed professional as defined in the EAPWDR, the ministry must rely on the assessments provided by the
GP in the PWD application.
In considering the GP’s assessments, the ministry notes that the appellant independently manages standing and
walking indoors, that he can walk less than 1 block unaided and requires a “right leg brace for long walking.” The
ministry does not consider this use of a leg brace in itself to be indicative of a severe level of impairment and
considers the other physical functional skills and abilities assessed by the GP. In terms of lifting, the ministry
considers that although periodic assistance from another person with carrying and holding items is required,
being able to lift between 15 and 35 lbs., presumably with the left arm, indicates a reasonable level of functioning
in this area. The ministry finds the information respecting the appellant’s ability to climb stairs contradictory as
the appellant is assessed as “probably” able to climb 5+ steps unaided if there is a rail and also as requiring a leg
brace/orthosis to climb stairs. The ministry also considers that the GP’s narrative in the MR suggests that the
assessments are not based on an actual medical assessment of the appellant’s ability but the GP’s estimation. The
ministry concludes that, as a result, it is unable to determine the appellant’s ability to climb stairs. The ministry
determines that while the appellant has limitations to his physical functioning, the functional skills assessment
and the ability to manage activities requiring mobility and physical ability do not establish a severe impairment of
physical functioning.
The panel concludes that the ministry was reasonable when determining that the information does not establish a
severe physical impairment. In reaching this conclusion, the panel acknowledges the appellant’s concern that he
was unknown to the GP and that the GP provided some misinformation, but notes that no additional information
from a prescribed professional was provided. Accordingly, the ministry was reasonable to rely on the information
from the GP when determining if it is satisfied that there is a severe impairment. The appellant reports that he
walks slowly and unsteadily due to partial paralysis of his right side and that his mobility is also impacted by his
vision loss and the GP reports that a right leg brace/orthosis is required for walking outdoors. While this
information clearly establishes limitations to the appellant’s physical functioning, the overall level of physical
functioning assessed by the GP was reasonably viewed by the ministry as not establishing severe physical
impairment. In particular, the panel notes that the appellant is reported as independently managing walking
indoors and as being able to lift between 15 -35 lbs., (reasonably presumed as reflecting functioning of the
appellant’s left arm), and as requiring only periodic assistance with carrying and holding. The appellant does not
address his lifting ability. As the ministry notes, the appellant’s ability to climb stairs is unclear, with the GP
reporting that the appellant is probably able to manage 5+ steps if there is a stair rail. The appellant does not
dispute this information and the panel notes that stair railings are routinely used by people to safely manage
climbing and descending stairs and are therefore not assistive devices as defined in the legislation – “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.”
Based on the available information, the ministry was reasonable when concluding that the appellant’s functional
skills and mobility and physical abilities do not establish a severe physical impairment.
Mental Impairment
The appellant is diagnosed with cognitive impairment/memory loss resulting from a stroke.
The appellant’s position is that the impact on his mental ability is perhaps the most damaging result of his
accident. Arguing that the GP has not adequately reflected the impact of his injury, the appellant states that there
are an additional six areas of cognitive function that are moderately impacted.
Acknowledging that difficulty with reading and writing would be challenging in many situations, the ministry
concludes that it does not establish the presence of a severe impairment of physical (sic) function. Noting that the
additional 6 areas of moderate impact on cognitive function reported by the appellant have not been confirmed
by a prescribed professional, the ministry relies more heavily on the GP’s assessments and concludes that the
information provided does not establish a severe impairment of mental functioning. Respecting social functioning,
the ministry notes that while the appellant periodically requires assistance to deal with unexpected demands, all
other areas of social functioning are not restricted.
The panel concludes that the ministry is reasonable in determining that a severe mental impairment has not been
established. While the appellant feels that the impact on his cognitive functioning may be the most significant
impact of his accident, the assessment by the GP does not reflect a severe impairment of mental function. In
particular, out of 14 listed areas of cognitive and emotional function, only one major impact on daily functioning
was reported and it appears to relate to the physical functioning of the appellant’s leg and arm, rather than the
cognitive related examples of motor activity problems described in the AR. Moderate impacts on daily functioning
are reported for three areas - attention/concentration, executive and memory – with no impact on daily
functioning assessed for the remaining 10 areas. Additionally, with the exception of making appropriate shopping
choices, all other listed decision making tasks are managed independently by the appellant. In terms of social
functioning, the appellant is assessed as having good functioning with both immediate and extended social
networks and as independently managing all but one aspect of social functioning, with only periodic assistance
required for dealing with unexpected demands. In terms of communication, the GP identifies that the appellant’s
reading ability is poor due to both visual and cognitive problems and that there are cognitive difficulties,
described as poor memory, but in the absence of further description, and again noting the absence of major
impacts on daily cognitive and emotional functioning, these limitations do not establish severe mental
impairment.
Accordingly, the panel finds that the ministry was reasonable in concluding that a severe mental impairment was
not established.
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, is dependent upon the
evidence from prescribed professionals. The term “directly” means that there must be a causal link between the
severe impairment and the restriction. The direct restriction must also be significant. Finally, there is a component
related to time or duration – the direct and significant restriction may be either continuous or periodic. If periodic,
it must be for extended periods. Inherently, any analysis of periodicity must also include consideration of the
frequency. 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’s position is that he needs daily assistance from his mother and support worker.
The ministry’s argues that the GP’s assessments are lacking information in some respects as there is no
description of the periodic assistance required with some activities in order to determine if the restrictions are
significant and for extended periods. The ministry also considers the GP’s information to be contradictory in some
respects, noting that the GP comments that meal preparation and house work require other people but also
reports that the appellant is independent with food preparation and only periodic assistance is required for basic
housekeeping. Similarly, mobility indoors is reported as continuously restricted in the MR but in the AR the
appellant is reported as independent with walking indoors. The ministry also does not consider taking three times
longer to complete three activities of personal care represents a significant restriction in the appellant’s ability to
perform those activities. The ministry also argues that there is a discrepancy between the level of assistance the
appellant describes that he receives from his mother and the assistance the GP reports is needed which makes it
difficult to determine whether the level of assistance provided by the appellant’s mother is because the appellant
is unable to do these activities or if it is related to familial roles within the home.
The legislation expressly requires the opinion of a prescribed professional when assessing an applicant’s ability to
perform DLA. Accordingly, the ministry has reasonably given greater weight to the GP’s assessment of DLA where
the information from the appellant conflicts with that of the GP. The GP indicates that assistive devices
(brace/orthosis) are used to mobilize outdoors (part of the DLA move about indoors and outdoors), that the
appellant takes three times longer with some listed tasks of the DLA personal care and significantly longer with
one listed task of the DLA meals, and that the DLA basic housekeeping, two tasks of the DLA shopping and one
aspect of social functioning require periodic assistance or support from another person. With these exceptions,
the appellant is assessed as independently managing all other listed tasks of DLA. Additionally, as noted by the
ministry, there is no description of the periodic assistance required so that the significance of the restriction can
be assessed. As the appellant is reported as independently managing most DLA tasks and there is insufficient
information to establish that the need for periodic assistance with some DLA tasks reflects a significant restriction
that is for extended periods, the ministry is reasonable in concluding that there is not enough evidence to
establish that in the opinion of a prescribed professional the appellant’s impairment significantly restricts his
ability to perform DLA either continuously or periodically for extended periods.
Help to perform DLA
Section 2(2)(b)(ii) of the EAPWDA requires that, as a result of direct and significant restrictions in the ability to
perform DLA, a person requires help to perform those activities. Help is defined in subsection (3) as the
requirement for an assistive device, the significant help or supervision of another person, or the services of an
assistance animal in order to perform DLA.
The 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 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
Jane Nielsen
SIGNATURE OF CHAIR
DATE (YEAR/MONTH/DAY)
2018/08/30
PRINT NAME
Chris McEwan
SIGNATURE OF MEMBER
DATE (YEAR/MONTH/DAY)
2018/08/30
PRINT NAME
David Roberts
SIGNATURE OF MEMBER
DATE (YEAR/MONTH/DAY)
2018/08/30
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