PART C -DECISION UNDER APPEAL The decision under appeal is the Ministry of Social Development and Poverty Reduction (the ministry) reconsideration decision dated December 4, 2018 whicn found that the appellant did not meet three of the five 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 requirement and that her impairment is likely to continue for at least two years. However, the ministry was not s�tisfied the evidence establishes that: • the appellant has a severe physical or mental impairment; • the appellant's daily living activities (DLA) are, in the opiniqn of a prescribed professional, directly and significantly restricted either continuously or periodically for extended periods; and, • as a result of these restrictions, the appellant requires the significant help or supervision · of another person, the use of an assistive device, 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 Employment and Assistance for Persons with Disabilities Regulation (EAPWDR), Sections 2 and 2.1
I PART E -SUMMARY OF FACTS With the oral consent of the Appellant, a Ministry observer attended but did not participate in the hearing. The evidence before the ministry at the time of the reconsideration decision included the Persons With Disabilities (PWD) Application comprised of the appellant's information dated May 20, 2018, with no self-report completed, a medical report (MR) dated May 12, 2018 and an assessor report (AR) dated May 3, 2018, both completed by a general practitioner (GP) who has known the appellant since 2016 and has met with her 2 to 1 Q: times in the past 12 months. The evidence also included the following documents: 1) Letter with fax dated September 14, 2016 from a physician who is a specialist in obstetrics and gynaecology; 2) Surgical Operation Note dated July 21, 2017; 3) Medical Imaging Report dated May 1, 2018 for an X-Ray of the lumbar spine; and, 4) Request for Reconsideration dated November 20, 2018. Diagnoses In the MR, the GP diagnosed the appellant with Type 2 Diabetes Mellitus, chronic neck, shoulder, back pain, fibromyalgia syndrome, chronic fatigue syndrome, depression, and anxiety disorder. Asked to describe the appellant's mental or physical impairments that impact her ability to manage her daily living activities (DLA), the GP left this section of the AR incomplete. Physical Impairment In the MR and the AR, the GP reported: • In terms of the appellant's health history, the appellant "has multiple health problems" with "chronic lower back pain aggravated by prolonged walking and standing and any lifting." She has "severe menorrhagia and dysmenorrhea due to internal fibroids, underwent hysterectomy" and "subsequently has frequent lower abdominal discomfort aggravated by prolonged walking, standing or any lifting." ;She also has "fatigue, general malaise, polymyalgia" and "has developed symptoms of fibromyalgia." • The appellant does not require any prostheses or aids for her impairment. • In terms of functional skills, the GP reported that the appellant can walk 1 to 2 blocks unaided on a flat surface, climb 5 or more steps unaided, cannot sit more than ·30 minutes (less than 1 hour), and cannot do any lifting. • The appellant is not restricted with her mobility inside and outside the.home. • In the AR, the appellant is assessed as being independent!with walking indoors, walking outdoors, climbing stairs, and standing. The appellant requires continuous assistance from another person for lifting and periodic assistance from another person for carrying and holding. The GP did not add any comments. • In the section of the AR relating to assistance provided, the GP indicated that the appellant does not require an assistive device as this section is "not applicable."
The Medical Imaging Report dated May 1, 2018 for an X-Ray of the lumbar spine indicated: • "There is mild rotation. A 1 cm curvilinear opacity overlying the left lower quadrant is likely postoperative. There is minimal multilevel degenerative osteophytosis. The bones are intact, and the alignment and disc spaces otherwise m' aintained." In her Request for Reconsideration, the appellant wrote: • She cannot sit or stand for longer periods of time. • She has seen many doctors including acupuncturist but n�thing works. • After her surgery, she has noticed her legs and hands are 'numb. Her hands have no sensation from time to time and her shoulders hurt. Mental Impairment In the MR and the AR, the GP reported: • In terms of the appellant's health history, the appellant has "dep�essive illness, chronic. anxiety." The appellant "experiences family conflict which :has resulted in severe depressive illness." • The appellant has no difficulties with communication. • The appellant has significant deficits with her cognitive and emotional functioning in the areas of memory, emotional disturbance, motivation, and �ttention or sustained concentration." The GP commented "depressive symptorr;is, chronic anxiety and depression affecting cognitive functions at times." • The appellant is periodically restricted in her social functioning, and the GP wrote that she "has symptoms of depression which can affect self cor,fidence and social functioning." • In the AR, the GP indicated that the appellant has a good ability to communicate in all areas, specifically: speaking, reading, writing and hearing.: • With respect to the section of the AR relating to daily impads to the appellant's cognitive and emotional functioning, the GP assessed no major imp�cts in any area. The appellant is assessed with moderate impacts in the areas of emotion, attention/concentration and motivation. There are minimal or no impacts to the remaining 11 listed areas of functioning. The GP did not provide any comments. • For social functioning, the appellant is assessed as independent in all areas, specifically with making appropriate social decisions, developing and maintaining relationships, interacting appropriatel y with others, dealing appropriatelfwith unexpected demands, and securing assistance from others. The GP did not pro'f:ide further comments. • The appellant has good functioning in both her immediate and her extended social networks. • Asked to describe the support/supervision required to maintain the appellant in the community, the GP left this section incomplete. Daily Living Activities (DLA) In the MR and the AR, the GP reported: • The appellant has not been prescribed medication and/or treatment that interfere with her
I ability to perform DLA. • The appellant is not restricted with several DLA, specifically the personal care DLA, the meal preparation DLA, the management of medications DLA, the mobility inside and outside the home DLA, the use of transportation DLA and)he management of finances DLA. The appellant is periodically restricted with the basic housework DLA, the daily shopping DLA, and her social functioning. Regarding theidegree of restriction, the GP wrote that "at times her chronic fatigue, general malaise can affect her ability to perform ,, basic housework and shopping for food." • In the AR, the appellant is assessed as independent with all of the tasks of the personal care DLA, specifically dressing, grooming, bathing, toileting, feeding self, regulating diet, transfers in/out of bed, and transfers on/off chair. • Regarding the DLA of basic housekeeping, the appellant requires periodic assistance with doing laundry and basic housekeeping, with no comment provided by the GP. • For the shopping DLA, the appellant is independent with all of the tasks. Specifically, she is independent with the tasks of going to and from stores, r,eading prices and labels, making appropriate choices, paying for purchases, and carrying purchases home. • Regarding the meals DLA, the appellant is independent with all of the listed tasks, specifically, meal planning, food preparation, cooking and safe storage of food. . · • For the pay rent and bills DLA, the appellant is independent with all tasks, including banking and budgeting. • Regarding the medications DLA, the appellant is independent with all of the tasks, specifically: filling/refilling prescriptions, taking as directed,'with safe handling and storage. • · For the transportation DLA, the appellant is independent W;ith the task of getting in and out of a vehicle and requires periodic assistance from anoth_ er person with the tasks of using public transit and using transit schedules and arranging transportation. Need for Help The GP reported in the AR that the appellant receives help from fp_mily and wrote that the appellant "requires help from family members for help with transp0rtation, basic housekeeping and shopping for food." The appellant does not require an assistive device. Additional information In her Notice of Appeal dated December 13, 2018, the appellant �xpressed her disagreement • · 11 with the ministry's reconsideration decision and wrote that she believes that she is eligible for Persons With Disability designation since [her disability] has restribted and prevented her from completing· her daily routine, chores, ability to prepare food at occasional times and prevents her from being mobile. She cannot stand for long periods of time and! has been taking excessive amounts of m�dication and chiropractor sessions to treat her condition. Prior to the hearing, the appellant provided the following additional documents: 1) Letter dated November 1, 2018 regarding trigger point inje6tion therapy for flare of lower back pain; 2) Letter dated November 21, 2018 in which a physician who is a specialist in otolaryngology, head and neck surgery referred to "intermittent discomfort" in the appellant's left ear "where she has undergone previous tympanoplasty"; and,
I 3) A second PWD Application comprised of the appellant's information and a self-report dated December 17, 2018, a MR and an AR dated December 16, 2018 and both completed by the GP who completed the original PWD application in May 2018. While the diagnoses are the same, there are many amendments, to the GP's assessment, including: • Whereas the GP changed his response from 'no' to\'yes,' and indicated that the appellant has been prescribed medications that int�rfere with her DLA. The GP noted the prescribed medications "may cause dizzi�ess or daytime drowsiness." • · Although the GP originally indicated that the appell�nt could not perform any lifting and that she could not sit more than 30 minutes, the GP assessed the appellant as able to lift 2 to 7 kg (5 to 15 lbs.) and to remain ��ated 1 to 2 hours. No · comments are added by the GP. • While the GP originally indicated that the appellant t,as no difficulties with communication, the GP changed his assessment toi report that the appellant has cognitive difficulties with communication and the GJr noted "mild dementia." • The GP added an assessment that the appellant also has a significant deficit in cognitive and emotional functioning in the area of p$ychotic symptoms and the GP wrote: "unable to focus on job at times." ! • Whereas the GP originally indicated that the appellant has a good ability to communicate in all areas, the GP changed his assd.�sment to report that the appellant has a poor ability to communicate in all ai,eas, specifically speaking, reading, writing and hearing. The GP did not provitje comments to explain or describe. I • For the task of carrying and holding, the GP originally reported that the appellant requires periodic assistance from another person, t�e GP changed the assessment to a requirement for continuous assistapce from another person. The GP wrote: "has difficulty performing these functions !because of chronic fatigue and polymyalgia." • With respect to the appellant's cognitive and emotio;nal functioning, the assessment of the impact in the area of bodily functions changed from no impact to moderate impact. For consciousness, the asses�ment changed f r om no impact . to moderate impact. The assessment for the area qf impulse control changed from no impact to minimal impact. For insight and j8dgment, the assessment changed from no impact to minimal impact. The as�essment for the area of attention and concentration changed from moderate' impact to major impact. For the executive area, the assessment changed from rilinimal impact to major impact, The assessment for memory changed from minima11:impact to major impact. The assessment for the area of motivation changed from moderate impact to major I impact. For motor activity, the assessment changeq from no impact to major impact. The assessment in the area of language changed from no impact to moderate impact. The assessments in the areas oflpsychotic symptoms, other neuropsychological problems and other emotional dr mental problems changed r I f om no impact to minimal impacts. The GP did not!provide comments to explain these amendments. • For the shopping DLA, the assessment changed from independent with all tasks to requiring periodic assistance from another person with the tasks of reading prices
I · and labels and paying for purchases, and continuoilis assistance from another person with making appropriate choices and carryi�g purchases home. The GP . I wrote that the appellant "has difficulty performing al,I the activities of daily living because of her fibromyalgia, depression and chronip fatigue. Requires help from family members with some of her activities of daily living." • With respect to the pay rent and bills DLA, the ass�ssment changed from independence with all tasks to taking significantly l9nger than typical with all tasks. • For the medications DLA, the assessment changed! from independence with all tasks to requiring continuous assistance from another person with all tasks. • The GP provided additional comments that the app�llant "consults her family or friends for most of her daily activities. She appears j to be mentally confused and depressed." ; · • For social functioning, the GP originally assessed the appellant as independent in all 5 areas and as having good functioning in both her imm�diate and extended social networks. The GP' assessment changed to the need for continuous support/supervision in all 5 areas and as having ve o/ disrupted functioning in her immediate social networks (aggression or abuse; major withdrawn; often rejected by others) and very disrupted functioning in her extJnded social networks (overly disruptive behavior; major social isolation). I ' i At the hearing, the appellant stated: • Every time she receives a letter from the ministry, she take I s it to a settlement counselor who helps her u.nderstand the information and decide what to do next. They suggested that she have another application prepared for the minist�. She does not understand English and this makes the process difficult. • When she wakes up in the morning, sometimes she canno I t get up because her hands 1 are numb. Her left hand is not working very well. Her left thumb is stiff and if it bends at I the digit it will not get better. Her other hand is working a little. • The pain starts in her lower back and then goes all the wa� up to the bottom of her neck at the back. There is a bone in her neck and it gets swolleh there. There is also pain in her leg and she believes that the nerve has been pinched �ince she had surgery. • The side of her leg is sore. She goes to the hot tub and th� steam room to warm up her body. She does not know how to swim but she does exerdises in the water because she can move her legs and arms in the water. Although she d�es these things, it is very hard on her. She has no help. · • When she was healthy, she was never tired of working. But now, she does not know if she is going to live or not. • For her daily living activities, she cannot wear tight clothes, she cannot dress herself. She only does her hair after 2 to 3 days and is hard for her. • She goes to the gym and sits in the hot tub and takes a bath and her body warms up. She does not take a bath at home. She takes a shower at I ,h ome when she wakes up because her body goes numb. • She can feed herself. • She takes time getting out of bed and she does this slowly. I • Sitting is not a problem, but it is difficult when she needs to get out of a chair. • The children do the laundry. Everyone does their own laundry. She does not have many
I clothes. • Her home is small. The children live upstairs and her space is very small. She does not have to do much housekeeping. • When she is suffering more, on bad days, she does not go to the stores. Since they moved, she only goes to a couple of stores and she only buys what is cheap. . She does not carry things. She pays for her purchase. I I , • She usually makes soup and the children bring food from butside. Although she used to work as a cook, she has to prepare food with one hand, w�ich is hard. She usually makes small portions. • She only goes to the bank about every 2 weeks, when she gets bills. • I She gets her prescriptions refilled and takes the medication as directed by her doctor. She gets them in a bubble pack. • She has no proble_m getting in and out of a vehicle but is a l little slow. • She uses public transit but does not know the schedules. phe does not know how to use a smart phone so if she sees someone at the stop checkin' g their phone for the schedule, she will sometimes ask when the bus is scheduled to arrive. • When the pain increases, she gets upset and starts thinking about who will take care of her. Sometimes she will take a nap. If nobody is at home! she weeps and cries loudly and that makes her feel better. • At night, she has to put a heating pad on to help her get toisleep because the pain in her back and neck bother her so much. • She has gone through 9 different surgeries and it seems li�e there is no strength left in her body. Her whole back hurts and she would like to work but she cannot do it anymore. She cannot sit or stand too long. • For the trigger point injection therapy, there are needles giv I en in different places, in her lower back and her right shoulder. She told the therapist tfuat it was not working. He treated her for 6 ½ months and only made her condition wchrse. • I She went to another therapist who does acupuncture, and . he applied cups and this therapy allowed her to move a little bit. • The GP is her family doctor. He took the application form and completed the reports later when he had time. The GP speaks her language and has bomeone else in his office that can also help with language translation. The ministry relied on the reconsideration decision as summarize� at the hearing. At the hearing, the ministry clarified that if the appellant is not successfu with her appeal, she is able to apply to the ministry again for PWD designation. Admissibility of Additional Information The ministry objected to the admissibility of the second PWD application completed in December 2018 on the basis that the ministry did not have an opportunity to consider this new application. The ministry did not object to the admissibility of the 1btters dated November 1 and November 21, 2018. The panel considered the letter dated Nove$,ber 1, 2018, which referred to therapy for the flare-of lower back pain, as being in support of, and tending to corroborate, the impact from medical conditions referred to in the PWD application' which was before the ministry at reconsideration. Therefore, the panel admitted this additional information in accordance with
Section 22(4)(b) of the Employment and Assistance Act. The panel considered the new self report, MR and AR as a pack�ge composing a second PWD application that was not before the ministry at reconsideration an� which the ministry had not yet had an opportunity to consider. The panel did not admit the �econd PWD application of December 2018 as the GP's assessment of the appellant's ment�I and physical functioning had changed in many respects since May 2018, as detailed above, td the extent that the reports do not tend to corroborate but, rather, contradict the information and l records before the ministry at reconsideration. As well, the letter dated November 21, 2018 referred to investigation of discomfort in the appellant's left ear, which was not a condition r�ised at reconsideration and, therefore, was not in support of information before the ministry at l reconsideration. Therefore, the second PWD application and the letter dated November 21, 2018 do not meet the requirements of Section 22(4)(b) of the Employment and Assistahce Act.
I PART F -REASONS FOR PANEL DECISION The issue on appeal is whether the ministry's reconsideration de6ision, which found that the appellant is not eligible for PWD designation, was reasonably su�ported by the evidence or was a reasonable application of the applicable enactment in the circu r stances of the appellant. The ministry found that the evidence does not establish that the appellant has a severe mental or physical impairment and that her DLA are, in the opinion of a prekcribed professional, directly and significantly restricted either continuously or periodically for Jxtended periods. Also, it could I not be determined that, as a result of those restrictions, the appellant requires the significant I help or supervision of another person, the use of an assistive de�ice, or the services of an assistance animal to perform DLA. I . I The criteria for being designated as a PWD are set out in SectioH 2 of the EAPWDA as follows: Persons with disabilities 2 (1) In this section: "assistive device" means a device designed to enable a person to perform a daily living activity that, because of a severe mental or physical impairment, the person is unable to perform; "daily living activity" has the prescribed meaning; "prescribed professional" has the prescribed meaning. (2) The minister may designate a person who has reached 18 years of age as a person with disabilities for the purposes of this Act if the minister is satisfied that the person is in a prescribed class of persons or that the person has a severe mental or physical impairment that (a)in the opinion of a medical practitioner or nurse practitioner is likely to continue for at least 2 years, and (b)in the opinion of a prescribed professional I (i) directly and significantly restricts the person's ability to perform daily livi I g activities either (A)continuously, or 1 (B)periodically for extended periods, and I (ii) as a result of those restrictions, the person requires help to perform thos'. e activities. (3)For the purposes of subsection (2), [ (a)a person who has a severe mental impairment includes a person with a me 1 tal disorder, and (b) a person requires help in relation to a daily living activity if, in order to perform it, the person requires I (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).
I I The EAPWDR provides as follows: Definitions for Act z (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 mer tal 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 accepta Jle 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 b Yi I (i) an authority, as that term is defined in section 1 (1) of the Independent �chool Act, or (ii) a board or a francophone education authority, as those terms are definJd in section 1 (1) of the School � . I . if qualifications in psychology are a condition of such employment.
Part 1.1 -Persons with Disabilities 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: . . I (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 subjeJ 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 tb assist that family in caring for the person; I (e) a person who is considered to be disabled under section 42 (2) of the Canada Pension Plan (Canada). Severe Physical Impairment ll In the reconsideration decision, the ministry was not satisfied tha, the information provided establishes a severe physical impairment. The ministry acknowl�dged that the appellant was diagnosed by the GP with Type 2 Diabetes Mellitus, chronic nee�, shoulder, and back pain, as I well as fibromyalgia syndrome and chronic fatigue syndrome. Tm e GP wrote in the MR that the appellant "has multiple health problems" with "chronic lower back p ain aggravated by prolonged walking and standing and any lifting." The ministry considered tha l t, according to the Medical Imaging Report dated May 1, 2018, an X-Ray of the appellant's 1Jmbar spine showed "mild rotation" and "minimal" multilevel degenerative osteophytosis and ! that "the bones are intact, and the alignment and disc spaces otherwise maintained." The GP wrote in the MR that the appellant has "severe menorrhagia and dysmenorrhea due to f internal fibroids, underwent hysterectomy" and "subsequently has 1 requent lower abdominal discomfort aggravated by prolonged walking, standing or any lifti�g." The GP commented that the appellant also has "fatigue, general malaise, polymyalgia" anq "has developed symptoms of fibromyalgia" and that her several health problems "have prevent�d from any gainful employment." At the hearing, the appellant stated that she has g6ne through 9 different surgeries and it seems like there is no strength left in her body. 1 he appellant stated that her whole back hurts and she would like to work but she cannot do it anymore as she cannot sit or stand for too long. The panel finds that the ministry reasonably d�termined that employability, or the appellant's ability to work, is not a criterion in section 2(2) tjf the EAPWDA nor is it listed among the prescribed DLA in section 2 of the EAPWDR. A diagnosis of a serious medical condition or conditions does not I J n itself determine PWD eligibility or establish a severe impairment. An "impairment" involves a loss or abnormality of psychological, anatomical, or physiological structure or functioning.causing a restriction in the
ability to function independently, effectively, appropriately, or for a reasonable duration. 2(2) of the EAPWDA requires that the ministry be satisfied that tne impairment is severe before the ministry may designate an applicant as a PWD. the ministry must consider the nature of the impairment and the Jxtent of its impact on daily functioning. The ministry considered the impacts of the appellant's diagnose daily functioning, reviewing the assessments provided in the MR !and the AR. considered that the GP reported in the MR that the appellant is able to walk 1 to 2 blocks unaided on a flat surface, she can climb 5 or more steps unaided, cannot remain seated longer than 30 minutes, and cannot perform any lifting. "sitting is not a problem," but it _is difficult for her when she needs\to get out of a chair. also reported in the MR that the appellant is not restricted with her mobility inside and outside the home. In the AR, the appellant is assessed by the GP as bei indoors, walking outdoors, climbing stairs, and standing. The GP assessed the appellant as requiring continuous assistance from another person for lifting and periodic assistance from another person for carrying a reasonably considered that the GP also reported that the appellant is capable of performing tasks of DLA that require the appellant to lift at least small amourlts of weight, especially for cooking and food preparation. In the AR, the GP assessed the abpellant as independent with the tasks of carrying purchases home when shopping and with fo�d preparation and cooking. At the hearing, the appellant stated that she does not carry things when shopping, but that she does make soup and has to prepare food with one hand, which small portions. The appellant clarified that her left hand is not wonking very well, that her left thumb is stiff and if it bends at the digit it will not get better and hJr other hand is working "a little." In her Request for Reconsideration, the appellant wrote th�t after her surgery, she has noticed her legs and hands are numb. Her hands have no sensation from time to time and her shoulders hurt. Although the GP did not provide any comments tb specify the periodic nature of the appellant's restrictions to carrying and holding, the ministry reksonably considered that the appellant can carry and hold small amounts 'at times' as required I for performing some tasks of DLA. For the ministry to be "satisfied" that an impairment is severe, the panel considers it reasonable for the ministry to expect that the information provided by the me prescribed professional presents a comprehensive overview of th impacts of the medical conditions on daily functioning, including explanations, descriptions or examples in the spaces provided in the MR and in the AR forms. j Given the GP's assessment of physical functioning in the moderate range of functional skills limitations, with the exception of lifting, and with evidence that the appellant is capable of lifting small amounts to perform tasks of DLA, the panel finds that the ministry reasonably determined I Section I To assess t�e severity of the impairment, j . medical conditions on her The ministry I At the hearing, ihe appellant clarified that The GP 1 g independent with walking r f d holding. The ministry i� hard, so she usually makes J ical practitioner and I f nature and extent of the I
I that the evidence is not sufficient to:_ establish that the appellant has a severe physical impairment under Section 2(2) of the EAPWDA. Severe Mental Impairment In the reconsideration decision, the ministry was not satisfied tha sufficient evidence of a severe mental impairment. the MR that the appellant has been diagnosed with depression ahd anxiety disorder and the GP commented that the appellant has "depressive illness, chronic an family conflict which has resulted in severe depressive illness." the appellant has significant deficits with her cognitive and emotional functioning in the areas of memory, emotional disturbance, motivation, and attention or sust�ined concentration. commented "depressive symptoms, chronic anxiety and depressi at times." The ministry reasonably considered that, in assessing cognitive and emotional functioning, the GP reported no major impacts. moderate impacts in the areas of memory, emotion, and attentiori/concentration, and a minimal impact in the area of memory. In her Request for Reconsideratioh the appellant did not discuss impacts from her mental impairment. At the hearing, she stated that when the physical pain increases, she gets upset and starts thinking about who will take bare of her. will take a nap, but if nobody is at home, she weeps and cries loubly and that makes her feel better. Considering the two "social functioning" DLA, as set out in Section 2(1)(b) of the EAPWDR, that are specific to mental impairment -make decisions about person�! activities, care or finances (decision making), and relate to, communicate or interact with oth: effectively), the panel finds that the ministry reasonably concludedf that there is insufficient evidence to establish that the appellant is significantly restricted i� either. 'decision making' DLA, the GP reported in the AR t most of the decision-making components of DLA, specifically: pe shopping (making appropriate choices and paying for purchases)) meals (meal planning and safe storage of food), pay rent and bills (including budgeting), and medications (taking as directed and safe handling and storage). While the GP indicated that the appellant requires periodic assistance from another person with decision making corhponent of the transportation DLA (using transit schedules and arranging transportation), the Gf provided no comments to indicate how often this assistance is required. The appellant stated at the hearing that she uses public transit but does not know the schedules and she does not �now how to use a smart phone. The appellant clarified that if she sees someone at the bu� stop checking their phone for the schedule, she will sometimes ask when the bus is schedul�d to arrive. assessed the appellant as independent with making appropriate sbcial decisions. Regarding the .DLA of 'relating effectively', the GP reported in the kR, that the appellant is independent with developing and maintaining relationships and with interacting appropriately ! the information provided was The ministry '1vrote that the GP reported .in 1 xiety" and she "experiences � he GP reported in the MR that The GP f n affecting cognitive functions � aily impacts to the appellant's The GP indicated I Sometimes she ers effectively (relate Regarding the � at the appell nt independently manages 1 rsonal care (regulating diet), In the AR, the GP " .
with others. When asked to describe the support/supervision re in the community, the GP left this section incomplete. GP indicated that the appellant is periodically restricted in her sobial functioning and wrote that the appellant "has symptoms of depression which can affect self functioning," the GP also assessed the appellant with good functi and her extended social networks. At the hearing, the appellant stated that she does not understand English and this makes everything difficult for her. appellant as having no difficulties with communication and, in the communicate in all areas, specifically: speaking, ·reading, writing a Given the absence of evidence of significant impacts to the appe lant's cognitive and emotional functioning, as well as the insufficient evidence of significant impacts to the two social functioning DLA that are specific to a mental impairment, the pan�I finds that the ministry reasonably determined that _a severe mental impairment was not �stablished under Section 2(2) of the EAPWDA. Restrictions in the ability to perform DLA Section 2(2) of the EAPWDA requires that a severe impairment d restricts the appellant's ability to perform the DLA either continuously or periodically for extended periods. The direct and significant restriction may be either continuous or periodic. the restriction is periodic, it must be for an extended time. must also include consideration of the frequency. evidence indicates that a restriction arises periodically, it is appro require evidence from the prescribed professional of the duration restriction in order to be "satisfied" that this legislative criterion is DLA are defined in Section 2(1) of the EAPWDR and are also listed in the MR and, with additional details, in the AR. Therefore, a prescribed professiona completing these forms has the opportunity to indicate which, if any, DLA are significantly rest icted by the appellant's impairment continuously or periodically for extended periods. prescribed professional. In the reconsideration decision, the ministry was not satisfied that the appellant has a severe physical or mental impairment that, in the opinion of the prescribetl professional, directly and significantly restricts DLA either continuously or periodically for e ministry considered that the GP reported in the MR that the appellant is not restricted with most of her DLA, specifically the personal care DLA, the meal preparati medications DLA, the mobility inside and outside the home DLA, the use of transportation DLA and the management of finances· DLA. In her Notice of Appeal ddted December 13, 2018, the appellant wrote that she believes that she is eligible for PWD desi has prevented her from completing her daily routine, chores, ability to prepare food at I 9 uired to maintain the appellant The ministry considered that while the : confidence and social i° ning in both her immediate ln l the MR, the GP assessed the AR, as having a good ability to l nd hearing. t ectly and significantly I If lnhere tly, any analysis of periodicity Accordingly, in � circumstances where the riate for the ministry to l and frequency of the et. r In this case, the GP is the 1 ended periods of time. The o : n DLA, the management of � nation since her disability
I occasional times and prevents her from being mobile. indicated that the appellant is periodically restricted with the basi shopping DLA, the GP's comments regarding the degree of restr fatigue, general malaise can affect her ability to perform basic ho food" is not sufficient to allow the ministry to determine that the re extended periods of time. At the hearing, the appellant stated thkt when she is suffering more, on" bad days," she does not go to the stores but when she does bo, it is only to a couple of stores. The ministry also considered that the GP indicated in the independent in performing all of the tasks of the shopping DLA, i purchases home, and this is not consistent with his assessment in the MR of periodic restrictions with the shopping DLA. The GP consistently reported that the appellant is not restricted with her mobility and is independent with moving about indoors and outdoors. The ministry reviewed the information in the AR and wrote that tne GP's assessment indicated that the appellant is independent in almost all of he([tasks of] DUA., with the exception of the tasks of the basic housekeeping DLA (including laundry) and tasts of the transportation DLA (using public transit and using transit schedules and arranging transportation), for which she requires periodic assistance from another person. it difficult for the ministry to determine that the periodic assistancJ is required for extended periods of time. The ministry wrote that the evidence does not nJcessarily establish that assistance is required as a result of the impairment and, rather, s: of the duty of family members/friends to help each other when in heed. appellant stated that the children do the laundry, that everyone d6es their own laundry, and she does not have many clothes. The appellant stated that her hom does not have to do much housekeeping. Given the GP's assessment of independence with all but three of the tasks of DLA and the lack of sufficient information regarding the frequency of flares to the awpellant's condition in order to establish that periodic assistance is required for extended periodJ, as well as insufficient evidence of significant impacts to the two social functioning DLA that are specific to a mental impairment, the panel finds that the ministry reasonably concludetl that the evidence is insufficient to show that the appellant's overall ability to perform h restricted either continuously or periodically for extended periods, pursuant to Section 2(2)(b)(i) of the EAPWDA. Help to perform DLA In the reconsideration decision, the ministry held that, as it has not been established that DLA are significantly restricted, it cannot be determined that significan� help is required. 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 est�blishment of direct and The minis � ry w � ote that although the GP p housework DLA and the daily i ction that "at times her chronic usework and shopping for 1 striction occurs periodically for \ AR that the appellant is f eluding the task of carrying The absence bf comments by the GP makes uggests that it is in the. nature At the hearing, the 1 is small and, therefore, she � 1 er DLA is ·significantly Section
I I 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 o 1 f an assistance animal in order to perform a DLA. The GP reported in the AR that the appellant receives help from family and wrote that the appellant "requires help from family members for help with transdortation, basic housekeeping and shopping for food." The GP also reported that the appellant �oes not require an assistive device. As the ministry reasonably determined that direct and sidnificant restrictions in the appellant's ability to perform DLA have not been established, thelpanel finds that the ministry also reasonably concluded that, under section 2(2)(b )(ii) of the E.4\PWDA, it cannot be determined that the appellant requires help to perform DLA. Conclusion The panel finds that the ministry's reconsideration decision, whic � determined that the appellant was not eligible for PWD designation pursuant to Section 2(2) of the EAPWDA, was reasonably supported by the evidence. The panel confirms the ministry's dedision. The appellant's appeal, therefore, is not successful.
1· PART G-ORDER I THE PANEL DECISION IS: (Check on�) [g!UNANIMOUS .□BY AJORITY t THE.PANEL IZ]CONFIRMS THE MINISTRY PECISIQN □REsclNos THE M . INI . STRY DEcIs1bN If the ministry decision is rescinded, is the panel decision referred back to the Mi�ister . for a decision as to amount? □Yes □No J LEGISLATIVE AUTHORITY FOR THE DECIS_ION: Emp/oyment and Assistance Act Section 24(1)(a) � or Section 24(1)(b) □· and Section 24(2)(a) Ill or Section 24(2)(b) D PART H -SIGNATURES PRINT NAME S. VV.;ilters .,...-A I I SIGNATUR " � ✓ DATE(YEARIMONTH/DAY) 2019-01-15 \ i/ I\ "-./ V PRll)ITNAME Kim Read SIGN MBER -DATE(YEAR/MONTH/DAY) cre 2019-01-15 \�.A P.RINTNAME � Roy Wares ' I SiGNAjURE OF MEMBER DATE(YEAR/MONTHIDAY ) 201.9-01-15 I
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