APPEAL NUMBER
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 14 June 2019 that denied the appellant designation
as a person with disabilities (PWD). The ministry determined that the appellant did not meet all
of the required criteria for PWD designation set out in section 2 of the Employment and
Assistance for Persons with Disabilities Act, section 2. Specifically, the ministry determined that
the information provided did not establish that the appellant has a severe mental or physical
impairment that in the opinion of a medical practitioner or nurse practitioner is likely to continue
for at least 2 years and that in the opinion of a prescribed professional
(i)directly and significantly restricts her ability to perform daily living activities (DLA) either
continuously or periodically for extended periods; and,
(ii)as a result of those restrictions, she requires help to perform those activities.
The ministry determined that the appellant satisfied the other criterion: she has reached 18
years of age.
The ministry also found that it has not been demonstrated that the appellant is in one of the
prescribed classes of persons who may be eligible for PWD designation on the alternative
grounds set out in section 2.1 of the Employment and Assistance for Persons with Disabilities
Regulation. As there was no information or argument provided by the appellant regarding
alternative grounds for designation, the panel considers this matter not to be at issue in this
appeal.
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.
APPEAL NUMBER
PART E – SUMMARY OF FACTS
The evidence before the ministry at reconsideration consisted of the following:
1.
The appellant’s PWD Designation Application dated 12 March 2019. The Application
contained:
•
A Self Report (SR).
•
A Medical Report (MR) dated 11 March 2019, completed by a specialist in urology
(“the specialist”) who has known the appellant since July 2018 and has seen her 2-
10 times in the past year.
•
An Assessor Report (AR) dated 11 March 2019, completed by the same specialist.
•
Other information:
a)legal documents regarding a violent incident, its background and aftermath;
b)medical imaging report dated 15 February 2019, noting gallbladder polyps, cyst
on right kidney, fibroids on uterus, and cyst on right ovary;
c)consult report from a specialist in rheumatology and internal medicine da
ted 05
February 2019, with findings of chronic soft tissue pain syndrome, intermittent
tingling in her hands, feet and face, worsening tinnitus in the left ear, dry mouth,
and pain in throat, dry mouth, upper neck and mid-torso and lower-right abdomen
(pain level is 5-6/10).
2.
T
he appellant’s Request for Reconsideration, dated 16 May 2019, requesting an
extension, followed by a letter from the appellant dated 14 June 2019, attached to which
is a letter from the specialist to the appellant’s general practitioner (GP) dated 10 May
2019 and a Medical Report - Employability (MR-E) completed by the GP dated 10 June
2019.
In the MR, the specialist provides the following diagnoses related to the appellant’s impairment:
Renal cell carcinoma of left kidney (onset July 2018).
I
n the AR, the specialist describes the appellant’s impairment as “musculoskeletal pain and
fatigue, are likely unrelated to urological procedure or kidney cancer.”
In the MR-E the GP describes the appellant’s medical condition as “pulmonary nodules, under
investigation; abdominal pain, origin not yet determined and anxiety.”
In the MR-E, the GP describes the appellant’s restrictions as: “no tolerance at maintaining the
same position (sitting, standing), fatigue, reduced energy, reduced concentration.”
The panel will first summarize the evidence from the MR, the AR and MR-E as it relates to the
PWD criteria at issue in this appeal.
Duration
MR
The specialist indicates that the appellant’s impairment is not likely to continue for two years or
more, commenting, “Estimated duration of impairment from surgical procedure is six weeks.”
MR-E
The GP indicates the expected duration of the medical condition is 9-12 months
APPEAL NUMBER
Severity/health history
Physical impairment
MR:
Under Health History, the specialist reports that the appellant was incidentally found to have a
left renal mass when she sustained injuries and had CT imaging of the abdomen and pelvis.
She had laparoscopic surgery to remove her left kidney on 05 October 2018. She required six
weeks for recovery. The final pathology clearly showed renal cell carcinoma. Follow-up
abdominal ultrasonic imaging incidentally found a gallbladder polyp and right ovarian cyst. As a
result, she has been referred to General Surgery and Gynecology for an opinion.
Under Additional Comments, the specialist writes that the appellant was hospitalized for a total
of four days for her operation.
Re
garding functional skills, the specialist indicates that it is unknown how far the appellant can
walk unaided on a flat surface or how many steps she can climb unaided; he indicates that there
are no limitations regarding lifting or remaining seated.
T
he specialist indicates that the appellant has not been prescribed medication and/or treatments
that interfere with her ability to perform DLA.
AR:
Respecting mobility and physical ability, the specialist assesses the appellant as Independent
for all listed areas of mobility and physical ability: walking indoors, walking outdoors, climbing
stairs, standing, lifting, and carrying and holding.
Mental impairment
MR:
The specialist indicates that the appellant has no difficulties with communication.
The specialist indicates that the appellant has no significant deficits with cognitive and emotional
function. He comments, “No cognitive deficits or emotional function from renal cell carcinoma or
laparoscopic surgery.”
AR:
The specialist assesses the appellant's ability to communicate as good for speaking, reading,
writing, and hearing.
The specialist assesses the degree to which the appellant’s mental impairment impacts her
daily functioning as follows:
Major impact: none.
Moderate impact: none.
No impact: Bodily functions, consciousness, emotion, impulse control, insight and judgment,
attention/concentration, executive, memory, motivation, motor activity, and language.
APPEAL NUMBER
Unable to assess psychotic symptoms, other neuropsychological problems, and other
emotional or mental problems.
The specialist comments, “This is from a urologic perspective as such from a laparoscopic
operation should not anticipate effects to bodily function.”
Ability to perform DLA
MR:
The specialist reports that appellant’s ability to perform DLA is restricted as follows:
Not restricted: meal preparation, management of medications, daily shop, uses
transportation, management of finances, and social functioning.
Restricted on a periodic basis: Personal self-care, basic housework, mobility inside the
home and mobility outside the home.
The specialist explains “periodic” as “Only in the immediate post-operative period.”
AR:
The specialist provides the following assessments of the assistance the appellant requires in
performing DLA (the specialist provides no explanatory comment in the spaces provided).
•
Personal care – independent for all tasks.
•
Basic housekeeping – independent for all tasks.
•
Shopping – independent for all tasks.
•
Meals – independent for all tasks.
•
Pay rent and bills – unable to assess
•
Medications – independent for all tasks.
•
Transportation – independent for all tasks.
Social functioning
The GP assesses the appellant as follows for the listed areas where support/supervision may
be required to compensate for a mental impairment:
•
Independent for making appropriate social decisions, interacting appropriately with
others, and securing assistance from others.
•
Unable to assess – the ability to develop and maintain relationships and the ability to deal
appropriately with unexpected demands.
T
he specialist indicates “unable to assess” the appellant's relationship with both her immediate
and extended social networks.
Help provided/required
MR:
The specialist indicates that the appellant does not require any prostheses or aids to
compensate for her impairment.
AR:
APPEAL NUMBER
The specialist does not indicate that the appellant requires the use of an assistive device.
The specialist indicates that the appellant does not have an assistance animal.
T
he specialist indicates that assistance is provided by family and friends (daughter). Regarding
the help required when none is available, the specialist comments, “Unable to assess from a
urology perspective.” As to safety issues, he writes, “None that I am aware of.”
S
elf Report
In her SR, the appellant describes her disability as follows:
•
Kidney cancer, kidney disease.
•
Rib/torso/throat damage due to being a victim of a violent assault, which led to CT scan
which revealed kidney problems.
•
Weak, tired, sore, unable to sit for long enough to work or for comfort.
•
High blood pressure – erratic.
•
New symptoms of polyps and cysts, surgery may be required to remove the gallbladder.
In describing her disability, she writes that she has gone from being healthy to unable to do
much at all without getting very tired and sore. She is not the same person she was before she
was attacked.
I
n an attached memo, the appellant explains how she was the victim of a violent incident in
another country in July 2018, lasting over several days, its background and aftermath. She
describes her difficulties securing treatment for her injuries, both abroad and on her return to
BC, being seen in several hospitals and by different physicians, being diagnosed with
gallbladder polyps and a cyst on her remaining kidney. She recounts several episodes of acute
sickness. The only physician she has seen on a consistent basis recently has been the urologist
who removed her left kidney, but whose report excluded her main symptoms of her torso being
in constant discomfort and her inability to sit for more than 15 minutes without discomfort and
failed to mention the new cyst on her remaining kidney or adverse blood readings of her kidney
function.
She writes that bloodwork and ultrasounds show that she is still in bad shape, and a long list of
doctors she is waiting to see will not tell her anything for a few months at least. Her main
problems are her constant torso pain in ribs, sides, front right side. Her throat hurts and it is hard
to swallow at times. She has dry mouth and dry eyes, lacks strength, and is generally being
bedridden. She states that she is barely able to take care of herself, walking her dog and light
housekeeping being her only activity. She remains foggy, weak, unable to sit for more than 15
minutes without great discomfort.
R
equest for Reconsideration
In requesting an extension, the appellant notes that the GP has accepted her as a patient. The
GP knows of her problems sitting and lifting. The appellant states that there is a new problem
with one of her ribs – an ultrasound shown either a crack or something worse. Her GP has
ordered a CT scan for 24 May 2019 and a PET scan for 31 May 2019. The GP wishes to review
APPEAL NUMBER
the scan results before she concludes that her recovery will take two years. The appellant also
notes that asthma-type symptoms have developed, and she awaits an appointment for a test for
this.
Letter from the specialist to the GP
The specialist writes that the appellant continues to have a right-sided abdominal pain as well
as fatigue, weight loss. She is having symptoms all over her body including a tingling and
swelling in her hands. She is having feelings of constriction around her neck. She feels she is
having “sluggish” memory as of late. She attributes these symptoms to when she was attacked
in another country. The specialist writes that the appellant cannot recall the events. (Next to this,
the appellant adds in handwriting what she believes occurred.)
T
he specialist concludes by writing, “as for her disability, I expressed to her that as I do not feel
that her symptoms are related to the surgery and as such if she wishes to re-apply for disability
she should be assessed by her GP.”
Not
ice of Appeal
T
he appellant’s Notice of Appeal is dated 25 June 2019. Under Reasons, she writes that no
doctor has properly diagnosed serious physical injuries that have left her practically bedridden
since July 2018. Now she is being diagnosed for lung cancer. Her former general practitioner
refused to treat her, allowing her to get this sick. The specialist refused to provide the ministry
all information. Her new doctor will provide full information after final diagnosis of lung cancer
comes in – a 04 July 2019 biopsy is pending. She adds that she is unable to work or do
anything more than walk a few blocks and do light housework. She cannot lift and is in constant
pain.
The
hearing
With the consent of both parties, the hearing was conducted in writing pursuant to section
22(3)(b) of the Employment and Assistance Act.
Appellant submission
Under cover of a letter dated 01 August 2019, the appellant submitted what she termed an
“Amended” application for PWD designation, consisting of Self Report (SR-A) signed,
witnessed, and dated 04 May 2019, and a Medical Report (MR-A) completed by the appellant’s
GP who indicates that she has known the appellant for six months and has seen her 11 more
times. (The date of the MR-A is not shown due to photocopying only part of the page.) The
Amended Application does not contain an Assessor Report.
In the SR-A, the appellant covers much the same ground in the original SR, adding that she
cannot sit for more than a few minutes without being in pain from ribs and torso, and that she
has developed asthma and has coughing fits when she sits or in the evenings. She also states
that she cannot lift more than about 10 pounds. Other issues include gallbladder polyps and
cysts on her ovaries.
APPEAL NUMBER
In the MR-A, the GP diagnoses the appellant’s impairments as “ongoing investigation for
probably/suspicious chronic pain (no etiology yet determined); renal cell carcinoma & possible
lung cancer.” Under Health History, the GP writes that she has been following the appellant
since January 2019 when she originally came to her with a multitude of symptoms including
pain, fatigue, weight loss, fogginess, and reduced concentration. GP writes that the appellant
cannot tolerate sitting, standing position for more than 15 minutes. With her fatigue, sustained
focus/concentration is impossible. The recently found lung module that raises the possibility of
a second cancer also is a major source of stress.
Under Duration and Course of Impairment, the GP indicates that the appellant’s impairment is
likely to continue for two years or more, commenting that the appellant’s symptoms (mainly
chronic pain) have worsened in the past 12 months and the pain is likely to persist. As to
functional skills, the GP assesses the appellant as being able to walk 4+ blocks unaided on a
flat surface, climb 5+ steps unaided, lift 5-15 lbs and remain seated for less than 1 hour. The
GP assesses the appellant as having no difficulties with communications. The GP assesses the
appellant as having significant deficits with cognitive and emotional functioning in the areas of
executive, memory, emotional disturbance, and attention or sustained concentration.
W
ith regard to DLA, the GP indicates that the appellant is not restricted for all DLA except for
daily shopping on a continuous basis and for mobility outside the home on a periodic basis. The
GP notes that the appellant gets her groceries delivered – she can’t carry the bags herself due
to pain.
Ministry submission
The ministry did not provide a submission for the hearing.
Admissibility of additional information
Section 22(4) of the Employment and Assistance Act (EAA) provides that panels may admit as
evidence the information and records that were before the minister when the decision being
appealed was made and “oral and written testimony in support of the information and records”
before the minister when the decision being appealed was made. These limitations reflect the
jurisdiction of the panel established under section 24 of the EAA - to determine whether the
ministry’s reconsideration decision is reasonably supported by the evidence or is a reasonable
application of the enactment in the circumstances of an appellant. That is, panels are limited to
determining if the ministry’s decision is reasonable and are not to assume the role of decision
makers of the first instance. Accordingly, panels cannot admit information that would place them
in that role.
I
n her Notice of Appeal, the appellant states that her injuries have left her practically bedridden,
she is unable or do anything more than walk a few blocks and do light housework, that she
cannot lift and is being diagnosed for lung cancer. The panel finds that this information was not
before the ministry at reconsideration and therefore cannot be said to be in support of what the
ministry had before it.
The appellant submitted SR-A and MR-A as an amended application for PWD designation.
Accordingly, the panel will consider the admissibility of the information provided in the
submission as a “package.” The panel notes that much of the information in SR-A is similar to
that originally provided in the SR, but will consider the admissibility of the SR-A information in
the context of the total package, including MR-A.
The panel notes the following major differences between the information provided in MR-A and
that provided by the medical practitioners in the information before the ministry at
reconsideration:
Subject
MR-A
Diagnosed impairment
Chronic pain, renal cell
carcinoma and possible
lung cancer
Duration
2 years or more
Functional skills
4+ blocks walking
5+ steps climbing stairs
5 to 15 lbs lifting
Remain seated less than 1
hour
Significant deficits in
Executive, memory,
cognitive and emotional
emotional disturbance,
function
attention or sustained
concentration
DLA
Daily shopping
continuously restricted
Mobility outside the home
periodically restricted
All others unrestricted
On review, the panel finds that MR-A provides information that is in addition to, or significantly
different from, the information from the medical practitioners before the ministry at
reconsideration. This is particularly the case with regard to duration, functional skills, cognitive
and emotional deficits, and ability to perform DLA.
To some extent, the information in the MR-A corroborates information provided by the appellant
in her SR and in her statement in her Request for Reconsideration, such as regarding a
APPEAL NUMBER
MR, MR-E, Specialist-GP letter
and Rheumatologist consult (RC)
MR: Recovery from radical
nephrectomy due to renal cell
carcinoma
MR-E: pulmonary nodules and
abdominal pain under investigation,
anxiety
RC:
chronic soft tissue pain
syndrome, abdominal/torso pain
MR: 6 weeks recovery from surgery
MR-E: 9-12 months recovery from
injuries
MR: unknown or no limitations
MR-E: no tolerance for remaining
seated/standing
MR: none
MR-E: notes anxiety as part of
medical condition: notes fatigue and
reduced energy/concentration
Specialist/GP letter: “sluggish
memory”
MR: Periodic restrictions in 4 areas
- only in the immediate post-
operative period
APPEAL NUMBER
description of her diagnosed impairment, her inability to sit for any length of time, foggy
thinking/memory, and the onset of asthma-like symptoms. However, there was insufficient
information provided by the appellant in her SR and Request for Reconsideration before the
ministry at reconsideration that could be considered as being corroborated by the MR-A
regarding duration, all of the functional skills assessed by the GP, the full range of significant
deficits in cognitive and emotional functioning identified by the GP or the assessments regarding
ability to perform DLA.
Accordingly, the panel finds that the information provided in the MR-A, taken as a whole, does
not corroborate or substantiate the information and records before the ministry at
reconsideration and therefore cannot be said to be in support of this information.
The panel, pursuant to section 22(4) of the Employment Assistance Act, therefore does not
admit as evidence the information referred to above in the Notice of Appeal and the SR-A and
MR-A package submitted by the appellant on appeal.
APPEAL NUMBER
PART F – REASONS FOR PANEL DECISION
The issue in this appeal is whether the ministry decision that determined that the appellant did
not meet three of the five statutory requirements of Section 2 of the EAPWDA for designation as
a person with disabilities (PWD) is reasonably supported by the evidence or is a reasonable
application of the legislation in the circumstances of the appellant. Specifically, the ministry
determined that the information provided did not establish that the appellant has a severe
physical or mental impairment that
in the opinion of a medical practitioner or nurse practitioner is
likely to continue for at least 2 years and in the opinion of a prescribed professional,
(i)directly and significantly restricts her ability to perform daily living activities (DLA) either
continuously or periodically for extended periods; and,
(ii)as a result of those restrictions, she requires help to perform those activities.
The ministry determined that the appellant satisfied the other criterion: she has reached 18
years of age.
The following section of the EAPWDA applies to this appeal:
2 (1) In this section:
"assistive device" means a device designed to enable a person to perform a daily living activity that, because
of a severe mental or physical impairment, the person is unable to perform;
"daily living activity" has the prescribed meaning;
"prescribed professional" has the prescribed meaning.
(2)
The minister may designate a person who has reached 18 years of age as a person with disabilities for the
purposes of this Act if the minister is satisfied that the person is in a prescribed class of persons or that the person
has
a severe mental or physical impairment that
(a)
i
n the opinion of a medical practitioner or nurse practitioner is likely to continue for at least 2 years, and
(b)
i
n the opinion of a prescribed professional
(i)
d
irectly and significantly restricts the person's ability to perform daily living activities either
(A)continuously, or
(B)per
iodically for extended periods, and
(ii)as a result of those restrictions, the person requires help to perform those activities.
(3)
F
or 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)
t
he services of an assistance animal.
The following sections of the EAPWDR applies to this appeal:
2 (1) For the purposes of the Act and this regulation, "daily living activities",
(a)in relation to a person who has a severe physical impairment or a severe mental impairment,
means the following activities:
(i)prepare own meals;
(ii)
m
anage 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;
APPEAL NUMBER
(vi)move about indoors and outdoors;
(vii)perform personal hygiene and self care;
(viii)
m
anage personal medication, and
(b)
i
n relation to a person who has a severe mental impairment, includes the following activities:
(i)make decisions about personal activities, care or finances;
(ii)r
elate to, communicate or interact with others effectively.
(2)For the purposes of the Act, "prescribed professional" means a person who is
(a)
aut
horized under an enactment to practise the profession of
(i)
medical practitioner,
(ii)
registered psychologist,
(iii)
registered nurse or registered psychiatric nurse,
(iv)
oc
cupational therapist,
(v)
physical therapist,
(vi
)
s
ocial worker,
(vii)
chiropractor, or
(viii)
nurse practitioner, or
(b)
acting in the course of the person's employment as a school psychologist by
(i
)
an
authority, as that term is defined in section 1 (1) of the Independent School Act, or
(ii)
a board or a francophone education authority, as those terms are defined in section 1 (1)
of the School Act,
if qualifications in psychology are a condition of such employment.
Alternative grounds for designation under section 2 of Act
2.1 The following classes of persons are prescribed for the purposes of section 2 (2) [persons with disabilities] of
the Act:
(a)a person who is enrolled in Plan P (Palliative Care) under the Drug Plans Regulation,
(b)a person who has at any time been determined to be eligible to be the subject of payments m
ade
t
hrough 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 e
ligible 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 Pensi
on
Plan (Canada).
Analysis
Duration
It appears to the panel, on reviewing the Record, that the appellant is convinced that the
impairment resulting from her injuries sustained in the violent incident of July 2018, and from the
medical conditions that have arisen since then, will continue for at least two years. However, it
seems that she understands that she must await the results of ongoing medical investigations
before her GP will be willing to confirm that this will be the case.
The position of the ministry, as set out in the reconsideration decision, is that, based on the
information provided, it cannot be established that, in the opinion of a medical practitioner or
APPEAL NUMBER
nurse practitioner, the appellant’s impairment is likely to continue for at least two years.
Panel finding
As noted by the ministry, in the MR the specialist indicates that the appellant’s impairment is not
likely to continue for two years or more, writing, “Estimated duration of impairment from surgical
procedure is six weeks.” As also noted by the ministry, in the MR-E the GP indicates the
expected duration of the appellant’s medical condition is 9 to 12 months. None of the
supplementary medical documents included with the PWD application speak to the expected
duration of impairment. Considering this evidence, the panel finds that the ministry was
reasonable in determining that the 2-year duration criterion has not been met.
Severity of impairment
Pre
liminary Considerations
As the ministry noted in its decision, the diagnosis of a serious medical condition or conditions
does not in itself determine PWD eligibility or establish a severe impairment. An impairment, as
defined by the ministry in the MR and AR, is a loss or abnormality of psychological, anatomical
or physiological structure or function causing a restriction in the ability to function independently,
effectively, appropriately or for a reasonable duration. To assess the severity of impairment, the
ministry must consider the nature of the impairment and the extent of its impact on daily
functioning.
For
the minister to be “satisfied” that the person’s impairment is severe, the panel considers it
reasonable for the ministry to expect that the information submitted by the independent and
professional medical practitioner and prescribed professional (in this case the specialist)
completing the application provides the minister with sufficient information on the nature and
extent of the impacts of the person's medical conditions on daily functioning. As the legislation
requires the minister to make determinations regarding the degree of impairment, the degree of
restrictions in the ability to perform DLA and the resulting degree of help required, it is therefore
important that the MR and the AR include explanations, descriptions or examples in the spaces
provided so that the minister has the information needed to make these determinations.
Significant weight must also be placed on the evidence of the applicant, unless there is a
legitimate reason not to do so. Such information provided by the applicant, while optional in the
Application form, may be helpful in fleshing out the general picture provided by the medical
practitioner/prescribed professional. The reconsideration process provides the opportunity for
the prescribed professionals and applicant to clarify or add to the information provided on
application, and the panel hearing an appeal must consider any information provided on appeal,
as long as the panel finds it admissible.
Phy
sical impairment
From the Record, the panel understands the appellant’s position to be that the information
provided regarding the nature of her injuries sustained in the violent incident in July 2018,
together with her subsequent medical conditions, and how these restrict her daily physical
functioning, clearly demonstrate that she has a severe physical impairment.
APPEAL NUMBER
The ministry’s position, as explained in the reconsideration decision, is that the information
provided by the specialist in the MR and AR and in his letter to the GP, by the GP in the MR-E,
and by the appellant in her SR and in another documents submitted with her application, does
not establish that the appellant has severe physical impairment.
Panel finding
EAPWDA section 2, subsection (2) begins with “The minister may designate a person … as a
person with disabilities … 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 …” This wording means that not only must a medical
practitioner or nurse practitioner confirm that the person’s impairment continue for at least two
years (as discussed above), but that a medical practitioner or nurse practitioner must identify
the impairment that results in the restrictions to be assessed under the provisions of paragraph
(2)(b). In this case, the specialist in the MR has identified the impairment as the appellant’s
recovery from laparoscopic left radical nephrectomy for renal cell carcinoma. The MR then
goes on to assess the restrictions that the GP expects will continue for a few weeks while the
appellant recovers from surgery. The assessments he provides are not very helpful – in the
MR, “unknown” or “no limitations” for functional skills, and in the AR, independent for all aspects
of mobility and physical ability.
In
the MR-E, the GP provides a more complete description of the appellant’s medical condition,
more along the lines described by the appellant in her SR: “pulmonary nodules, under
investigation; abdominal pain, origin not yet determined and anxiety.” The GP describes the
appellant’s restrictions as “no tolerance at maintaining the same position (sitting, standing),
fatigue, reduced energy, reduced concentration.” As noted by the ministry in its decision, the
GP does not describe how long the appellant can remain seated or standing, while in the AR
the specialist has indicated that the appellant has no limitations with remaining seated and is
independent with standing. The ministry also noted that the GP does not describe the nature of
further impacts resulting from fatigue and decreased energy.
Given how the specialist and the GP identified the appellant’s impairment differently, and the
lack of information regarding the degree to which the appellant’s physical functioning is
restricted, the panel finds that the ministry was reasonable in determining that a severe physical
impairment has not been established.
Mental impairment
T
he appellant does not expressly argue that she has a severe mental impairment, primarily
describing impacts on her physical functioning.
The position of the ministry is that, based on the assessments and information before the
ministry at reconsideration, a severe impairment of the appellant’s mental functioning has not
been established. In reaching this decision, the ministry reviewed the following information:
•
In the MR and AR, with the appellant assessed as having no difficulty with
communication,
•
In the MR, with the specialist indicating that the appellant has no significant deficits with
APPEAL NUMBER
cognitive and emotional functioning,
•
In the MR, with the appellant assessed as independent for social functioning,
•
In the AR, where the specialist indicates that there are minimal impacts in 11 areas of
cognitive and emotional functioning, and writes “unable to assess” in the remaining 3
areas,
•
In the AR, where the specialist indicates that the appellant is independent in three areas
of social functioning and “unable to assess” in the other two areas,
•
In the AR, the specialist is unable to assess the appellant’s functioning with her
immediate and extended social networks or supports/supervision required to help
maintain in the community, and with no indication of safety issues with regard to social
functioning.
•
In the MR-E, with the GP noting anxiety is one aspect of the appellant’s medical condition
and fatigue, decreased energy and decreased concentration as restriction factors
Panel finding
A
s noted by the ministry, the specialist in completing the MR did not diagnose the appellant with
a mental health condition or brain injury. He also did not identify any significant deficits with
cognitive and emotional function. While in the AR he indicated that her mental health condition
during recovery from the laparoscopic surgery might result in minimal impacts in several areas,
no moderate or major impacts were assessed. Further, the specialist did not assess the
appellant with any difficulties with communication or as requiring any support/supervision with
social functioning.
The GP in the MR-E noted anxiety as one aspect of the appellant’s medical conditions.
However, it is unclear whether she was describing the appellant’s state of mind or diagnosing a
mental health disorder. As the ministry pointed out, the GP did not describe the severity of the
impact of the appellant’s decreased concentration on daily functioning.
In the SR, the appellant mentions that she remains “foggy,” but provides no further description
of how or to what extent this mental condition restricts her daily functioning.
Considering the lack of information available to the ministry at reconsideration that would
demonstrate a high degree of deficiency in the appellant’s mental functioning, the panel finds
that the ministry reasonably determined that a severe mental impairment has not been
established
Direct and significant restrictions in the ability to perform DLA
On reading her SR, the position of the appellant appears to be that the specialist was remiss in
not fully reporting the extent of her restrictions in her ability to perform DLA resulting from her
chronic pain and other medical conditions.
The ministry’s position, as explained in the reconsideration decision, is that based on the
assessments provided, there is not enough evidence to confirm that the appellant has a severe
impairment that significantly restricts her ability to perform her DLA continuously or periodically
for extended periods.
APPEAL NUMBER
Panel finding
The panel notes that, according to the legislation, the direct and significant restriction in the
ability to perform DLA must be the result of a severe impairment, a criterion not established in
this appeal. The legislation – section 2(2)(b)(i) of the EAPWDA – requires the minister to assess
direct and significant restrictions to DLA in consideration of the opinion of a prescribed
professional, in this case the specialist or the GP. This does not mean that other evidence
should not be factored in as required to provide explanation of the professional evidence, but
the legislative language is clear that a prescribed professional’s evidence is fundamental to the
ministry’s determination whether it is “satisfied.” And for the minister to be “satisfied,” it is
reasonable for the ministry to expect that a prescribed professional provides a clear picture of
the extent to which the ability to perform DLA is restricted, as assessed in terms of the nature
and duration of help required or the time it takes to perform a task, in order for the ministry to
determine whether the restrictions are “significant.” Any information submitted by the applicant
or others could be useful in adding context and detail to the picture provided by the prescribed
professional(s).
As noted by the ministry in the reconsideration decision, in assessing restrictions in the
appellant’s ability to perform DLA, the specialist states that the restrictions reported are limited
to the appellant’s six week post-operative period, a timeframe which the ministry noted had long
since passed at the time of reconsideration. In the AR, the specialist assesses the appellant as
independent in all aspects of mobility and physical ability (the DLA of moving about indoors and
outdoors) and independent for all listed tasks of six of the seven DLA requiring physical effort,
with that of paying rent and bills (the DLA of managing personal finances) indicated as “unable
to assess.”
T
he ministry also noted that in the MR and AR, the specialist does not indicate any restrictions
to social functioning. The ministry further noted that in the MR-E provided at reconsideration,
the GP does not speak to restrictions of DLA.
Given the lack of information provided by the prescribed professionals that would point to any
difficulties with the appellant’s ability to manage her DLA, the panel finds that the ministry was
reasonable in determining this criterion has not been met.
Help required
In her SR or Notice of Appeal, the appellant provided no information regarding the help that she
may require to manage her 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 significant help is required.
Panel finding
Section 2(2)(b)(ii) of the EAPWDA requires that, as a result of being directly and significantly
restricted in the ability to perform DLA either continuously or periodically for extended periods, a
person must also require help to perform those activities. That is, the establishment of direct
APPEAL NUMBER
and significant restrictions under section 2(2)(b)(i) is a precondition of meeting the need for help
criterion. Help is defined in subsection (3) as the requirement for an assistive device, the
significant help or supervision of another person, or the services of an assistance animal in
order to perform a DLA.
A
lthough the specialist has indicated that the appellant benefits from the assistance of family
and friends (daughter), given that the specialist did not report any detailed information on the
nature, type, frequency or duration of assistance required from another person, the use of an
assistive device or the services of an assistance animal, and since the ministry reasonably
determined that direct and significant restrictions in the appellant’s ability to perform DLA have
not been established, the panel finds that the ministry reasonably concluded that under section
2(2)(b)(ii) of the EAPWDA it cannot be determined that the appellant requires help to perform
DLA.
C
onclusion
The panel finds that the ministry’s reconsideration decision that determined that the appellant
was not eligible for PWD designation was reasonably supported by the evidence. The panel
therefore confirms the ministry’s decision. The appellant is thus not successful on appeal.
APPEAL NUMBER
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)
PAR
T H – SIGNATURES
PRINT NAME
Richard Roberts
SIGNATURE OF CHAIR
DATE (YEAR/MONTH/DAY)
2019 August 26
PRINT NAME
Joan Cotie
SIGNATURE OF MEMBER
DATE (YEAR/MONTH/DAY)
2019 August 26
PRINT NAME
Linda Pierre
SIGNATURE OF MEMBER
DATE (YEAR/MONTH/DAY)
2019 August 26
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