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 November 13, 2019, 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 the appellant had a
severe physical impairment, but was not satisfied that:
•
The appellant’s impairment is likely to continue for two years or more;
•
the appellant’s daily living activities (DLA) are, in the opinion of a prescribed
professional, directly and significantly restricted either continuously or periodically for
extended periods; and
•
as a result of those restrictions, the appellant requires an assistive device, the significant
help or supervision of another person or the services of an assistance animal to perform
DLA.
PART D – RELEVANT LEGISLATION
EAPWDA, section 2
Employment and Assistance for Persons with Disabilities Regulation (EAPWDR), section 2
APPEAL NUMBER
PART E – SUMMARY OF FACTS
On August 8, 2019 the ministry received the appellant’s PWD application comprised of a
Medical Report (MR) and an Assessor Report (AR) completed by the appellant’s nurse
practitioner (the “Nurse Practitioner”) on July 25, 2019, and the appellant’s self-report (SR)
dated June 17, 2019.
The appellant’s request for PWD designation was denied on September 10, 2019. On October
15, 2019 the ministry received the appellant’s request for reconsideration form (RFR) along with
a letter from the Nurse Practitioner dated November 12, 2019 (the “November Letter”).
On November 13, 2019 the ministry completed its review.
On N
ovember 22, 2019 the tribunal received the appellant’s Notice of Appeal dated the same
day.
Summary of relevant evidence
Diagnoses
In th
e MR, the Nurse Practitioner indicates that the appellant was diagnosed with left hip
osteoarthritis in January 2014 and right subtalar (foot/ankle) osteoarthritis in October 2017. The
Nurse Practitioner indicates that the appellant has been a patient since May 2013 and the Nurse
Practitioner has seen the appellant two to 10 times in the past 12 months.
In the health history portion of the MR, the Nurse Practitioner indicates that the appellant has
marked disability related to left hip and right ankle/foot osteoarthritis. The Nurse Practitioner
indicates that the appellant is using a cane and has pain 7-8/10 all the time, and is very much
home bound at present. The Nurse Practitioner indicates that the appellant is unable to stand
for prolonged periods and that the intra-articular steroid injections are not effective. The Nurse
Practitioner indicates that the appellant is awaiting total hip replacement and is unable to hold
any job.
The CT abdomen contrast report dated May 24, 2019 indicates a moderate hiatus hernia and
severe hepatic steatosis in the liver.
The left hip x-ray July 17, 2019 indicates severe narrowing of the left hip joint with features
suggestive of avascular necrosis with severe secondary degeneration. Moderate degenerative
changes are seen in the right hip too.
The hospital outpatient clinic note of an orthopaedic surgeon dated July 17, 2019 (the “Clinic
Note”) indicates that the appellant was seen after a period of 10 months with worsening left hip
pain, noting that the appellant was limping badly and unable to walk without a cane. The Clinic
Note indicates that the appellant is essentially housebound because of a painful and arthritic left
hip, and has to use a cane at all times. The Clinic Note also indicates that the appellant has
significant problems related to right foot subtalar arthritis.
APPEAL NUMBER
The Clinic Note indicates that the appellant’s partner passed away earlier in the year, which was
devastating to the appellant. The Clinic Note indicates that the appellant has some degree of
obesity, hypertension, and likely has type 2 diabetes. The Clinic Note indicates that the
appellant has to lose weight but that the appellant is not morbidly obese, with a BMI of 34
kg/m2. The Clinic Note indicates that the appellant can continue with intra-articular cortisone
injections or have a hip replacement but concerns that the replacement would not last beyond
15 to 20 years given the appellant’s age and weight. The Clinic Note indicates that risks of hip
replacement surgery were discussed and that the appellant would be booked for a total left hip
replacement.
In the November Letter, the Nurse Practitioner indicates that the appellant has severe
osteoarthritis left hip, is walking with a cane, and requires left hip surgery.
Degree and Course of Impairment
In the MR, the Nurse Practitioner indicates that the duration of the appellant’s impairment is
unknown and that the date for surgery is “..not given yet”. The Nurse Practitioner indicates that
hopefully the appellant’s left hip will improve post surgery. The Nurse Practitioner also indicates
that the appellant is waiting to see another specialist in regards to the appellant’s right foot.
Physical Impairment
In the MR for Functional Skills, the Nurse Practitioner indicates that the appellant is not able to
walk at all unaided on a flat surface, can climb two to five steps unaided (avoids them, uses
cane), can lift 5 to 15 pounds, and can remain seated one to two hours.
In the AR, the Nurse Practitioner indicates that the appellant requires continuous assistance
with lifting and carrying, uses assistive devices for all aspects of mobility and physical ability,
and takes significantly longer than typical with climbing stairs. The Nurse Practitioner notes that
the appellant uses a cane at all times, limps, and needs to use handrails for stairs.
In the November Letter, the Nurse Practitioner indicates that the appellant’s pain is causing
significant disability.
The SR indicates that the appellant suffers from bone on bone pain in the left hip and is
currently awaiting a hip replacement. The appellant also reports a prior dislocation in the right
foot that is in need of surgery. The appellant reports suffering from chronic pain.
Mental Impairment
In the MR, the Nurse Practitioner indicates that the appellant has significant deficits with
cognitive and emotional function in the area of emotional disturbance (on medication) and
motivation.
In the AR, the Nurse Practitioner indicates that the appellant’s ability to communicate with
speaking, reading, and writing is good and hearing is poor (has hearing aids). The Nurse
APPEAL NUMBER
Practitioner indicates that the appellant has moderate to major impact with bodily functions and
motivation, minimal impact to attention/concentration and no impact to consciousness, impulse
control, insight and judgment, executive, memory, motor activity, language, psychotic
symptoms, other neuropsychological problems, or other emotional or mental problems.
I
n the SR the appellant reports suffering from depression and anxiety.
DLA
In the AR, the Nurse Practitioner indicates that for personal care, the appellant is independent
with feeding self, requires periodic assistance from another person with regulating diet, uses an
assistive device for toileting, transfers (in/out of bed) and transfers (on/off chair) and takes
significantly longer than typical with dressing, grooming, and bathing. The Nurse Practitioner
explains that the appellant uses a cane, is unable to stand for any length of time and has lack of
motivation and anxiety, which leads to increased or decreased eating.
For basic housekeeping, the Nurse Practitioner indicates that the appellant needs continuous
assistance from another person with laundry and basic housekeeping, and explains that the
appellant has to get help from family on occasion.
For shopping, the Nurse Practitioner indicates that the appellant is independent with reading
prices and labels, making appropriate choices and paying for purchases but uses an assistive
device and takes significantly longer than typical with going to and from stores and carrying
purchases home.
F
or meals, the Nurse Practitioner indicates that the appellant is independent with meal planning
and safe storage of food, but requires continuous assistance from another person or is unable
with food preparation and cooking, explaining that the appellant is unable to stand.
T
he Nurse Practitioner indicates that the appellant is independent with all aspects of paying rent
and bills and medications. For transportation the Nurse Practitioner indicates that the appellant
uses an assistive device for getting in and out of a vehicle. The Nurse Practitioner did not
provide any information regarding the appellant’s abilities to use public transit or to use transit
schedules and arranging transportation.
The Nurse Practitioner indicates that the appellant is independent with all aspects of social
functioning. The Nurse Practitioner indicates that the appellant has marginal functioning with
immediate social network and very disrupted functioning (major social isolation) with extended
social networks, noting that the appellant is homebound mostly due to mobility issues and
resultant depression.
In the November Letter, the Nurse Practitioner indicates that the appellant is able to manage
DLA but takes significantly longer to finish tasks. The Nurse Practitioner indicates that the
appellant reports avoiding stairs at all cost, and takes 2-3 times longer in finishing tasks on hand
and sometimes more depending on the task. The Nurse Practitioner indicates that for grocery
shopping, the appellant reports only being able to pick up one gallon of milk at a time, makes
several trips back and forth taking items that cannot be left in the trunk and then coming back
APPEAL NUMBER
later in the day or the next day to get the remaining items. The Nurse Practitioner indicates that
the appellant reports putting laundry in a small bag and dragging it across the floor due to
inability to carry bags. The Nurse Practitioner also indicates that the appellant has great trouble
bending over so cleaning a bathroom of an apartment less than 1000 square feet can take half
an hour to an hour.
The SR indicates that the appellant:
•
has bilateral hearing loss requiring bilateral hearing aids;
•
uses a cane at all times when mobilizing and that it takes three times longer than typical
when walking;
•
can only stand for up to 15 minutes at a time and then the appellant’s right foot will go
numb; and
•
can lift up to 15 pounds, as long as no bending is required.
T
he SR indicates that the appellant suffers from eating problems due to depression (only eating
very small portions at a time). The appellant reports poor hygiene (will go up to a week without
bathing or showering) and sleep disturbance (only 2 hours sleep at a time) due to depression,
anxiety, and a lack of motivation.
T
he SR indicates that the appellant has to sit to get dressed, is unable to get dressed, groom or
bathe 3-4 days per week due to depression and lack of motivation. The appellant reports being
unable to carry a laundry basket and will avoid laundry until the appellant has nothing clean and
has no choice but to do laundry. The appellant reports doing small shopping trips and relying
on easy, prepared foods. The appellant reports that transportation takes at least two times
longer than typical.
Need for Help
In the AR, the Nurse Practitioner indicates that the appellant receives help with DLA from family.
The Nurse Practitioner indicates that the appellant routinely uses a cane. The appellant does
not have an Assistance Animal.
Additional information provided
In the Notice of Appeal the appellant states: “My doctors and I feel that I qualify for PWD
benefits”.
Prior to the hearing the appellant provided a letter from the Nurse Practitioner dated December
4, 2019 (the “ December Letter”) indicating that the appellant suffers from osteoarthritis of the
left hip and right foot secondary to post traumatic post subtalar dislocation that was treated
surgically in 2009. The Nurse Practitioner indicates that both conditions have “…worsened
significant (sic) as mentioned previously”. The Nurse Practitioner indicates that for duration,
the appellant’s impairment is likely going to last longer than two years especially for the
appellant’s foot.
The Nurse Practitioner indicates that the appellant had prior surgical intervention for the right
APPEAL NUMBER
foot and is waiting to see an orthopaedic surgeon for further foot assessment. The Nurse
Practitioner indicates that the impairments and financial crunch are taking a toll on the
appellant’s already compromised mental health/depression. The Nurse Practitioner indicates
that the appellant is being treated for depression and is waiting to see a psychiatrist.
A
dmissibility of New Information
The ministry did not object to the information in the appellant’s Notice of Appeal or the Letter.
The panel has admitted the information in the Letter, as it is evidence in support of information
and records that were before the ministry at the time of reconsideration, in accordance with
section 22(4) of the Employment and Assistance Act. In particular, the new information
supports the information regarding the appellant’s impairment and provides further information
regarding the likely duration of the physical impairment.
T
he panel has admitted the information in the Notice of Appeal as argument.
APPEAL NUMBER
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. In particular, was the ministry
reasonable when concluding it was not satisfied that
•
the appellant’s impairment is unlikely to continue for two or more years;
•
the appellant’s daily living activities (DLA) are, in the opinion of a prescribed
professional, directly and significantly restricted either continuously or periodically for
extended periods; and
•
as a result of those restrictions, in the opinion of a prescribed professional, the appellant
requires help, as it is defined in the legislation, to perform DLA?
Relevant Legislation
EAPWDA
2 (1) In this section:
"assistive device" means a device designed to enable a person to perform a daily living activity that,
because of a severe mental or physical impairment, the person is unable to perform;
"daily living activity" has the prescribed meaning;
"prescribed professional" has the prescribed meaning.
(2)The minister may designate a person who has reached 18 years of age as a person with disabilities
for the purposes of this Act if the minister is satisfied that the person has a severe mental or physical
impairment that
(a)in the opinion of a medical practitioner or nurse practitioner is likely to continue for at least 2 years,
and
(b)in the opinion of a prescribed professional
(i)
directly and significantly restricts the person's ability to perform daily living activities either
(A)
continuously, or
(B)
periodically for extended periods, and
(ii)
as a result of those restrictions, the person requires help to perform those activities.
(3)For the purposes of subsection (2),
(a)a person who has a severe mental impairment includes a person with a mental disorder, and
(b)a person requires help in relation to a daily living activity if, in order to perform it, the person
requires
(i)
an assistive device,
(ii)
the significant help or supervision of another person, or
APPEAL NUMBER
(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)
p
repare own meals;
(ii)
m
anage personal finances;
(iii)shop for personal needs;
(iv)
u
se public or personal transportation facilities;
(v)
p
erform housework to maintain the person's place of residence in acceptable sanitary condition;
(vi)move about indoors and outdoors;
(vii)p
erform personal hygiene and self care;
(viii)m
anage 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)
F
or the purposes of the Act, "prescribed professional" means a person who is
(a)a
uthorized under an enactment to practise the profession of
(i)
m
edical practitioner,
(ii)registered psychologist,
(iii)registered nurse or registered psychiatric nurse,
(iv)occupational therapist,
(v)
physical therapist,
(vi)
social worker,
(vii)
c
hiropractor, or
(viii)
n
urse practitioner, or
(b)
a
cting 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
APPEAL NUMBER
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
Duration
T
he ministry’s position is that the evidence provided does not demonstrate that the appellant’s
impairment is likely to continue for two years or more as required by section 2(2)(a) of the
EAPWDA. In particular, the reconsideration decision notes that the information provided by the
Nurse Practitioner in the MR indicates that the duration of impairment is unknown and the date
of surgery is not given yet. The ministry also notes that the Nurse Practitioner indicates that
hopefully the appellant will see improvement in the left hip post surgery and that the appellant is
waiting to see another specialist for right foot.
The appellant’s position is that the left hip and right foot impairments have worsened, there is no
indication as to when the appellant will have a total left hip replacement and that after surgery
there will be a significant recovery period of at least three months. The appellant confirms that
the appellant has to lose some weight before surgery and is waiting for further follow up with an
internal medicine specialist in regards to liver issues. The appellant reports that the appellant is
still waiting to see a specialist for the right foot. The appellant’s position is that the information
provided in the December Letter confirms that the impairment is likely to last longer than two
years.
The appellant also reports “pretty severe depression”, particularly since the appellant’s spouse
passed away unexpectedly several months ago and reports being “…unsure of how that will be
over the next few years”.
The panel notes that in the MR the Nurse Practitioner indicates that the duration of impairment
is unknown and the date of surgery is “not given yet”. The panel also notes that the Nurse
APPEAL NUMBER
Practitioner does not provide any information about duration of the appellant’s depression or
anxiety. In the November Letter, the Nurse Practitioner does not provide any further information
regarding duration.
In the December Letter, the Nurse Practitioner indicates that the appellant is suffering from
osteoarthritis of left hip and right foot secondary to post traumatic post subtalar dislocation that
was treated surgically in 2009. The Nurse Practitioner indicates that the osteoarthritis in the
appellant’s left hip and right foot has worsened significantly and as far as duration of the
impairment is concerned, it is likely going to last longer than two years especially for the
appellant’s foot.
I
t has been over four months since the MR was completed and the appellant’s condition has
worsened and there is no indication of a surgery date anytime in the near future. In particular,
the appellant is still waiting to be place on the surgical wait list, as there are other investigations
needed regarding the appellant’s liver and the orthopaedic surgeon’s recommendation that the
appellant lose some weight before surgery. While the ministry indicates that the orthopaedic
surgeon’s estimation of time of surgery and recovery is not likely to continue for 2 years, that is
not accurate. In the Clinic Note, the orthopaedic surgeon indicates that he saw the appellant
after a period of 10 months and the appellant’s condition has worsened. The orthopedic
surgeon indicates that the appellant is limping badly and that even with surgery there is a risk of
injury to the nerves around the hip, risk of a permanent Trendelenburg gait, Trendelenburg lurch
and risk of suffering recurrent dislocations requiring revision surgery.
While the orthopaedic surgeon indicates that the appellant is looking at a recovery of 3 months
the panel finds that the ministry was not reasonable in determining that the orthopaedic
surgeon’s statement in that regard means that the appellant’s impairment is not likely to last 2
years. The appellant is waiting for surgery, the surgery date remains unknown, other
investigations and steps need to happen before any surgery takes place and the recovery time
is 3 months presuming no other complicating factors.
H
owever, the panel finds that even if the initial recovery time from the left hip is 3 months after
surgery, the evidence provided by the Nurse Practitioner indicates that the appellant’s right foot
impairment is also likely to last longer than 2 years. This information is also supported by the
Clinic Note as the orthopaedic surgeon indicates that the appellant is likely to require surgery to
the right foot at some point in the future and this is an ongoing issue that needs to be
addressed.
As the Nurse Practitioner confirms that the appellant’s left hip and right foot osteoarthritis is
likely to last longer than two years, the panel finds that, based on all of the evidence admitted on
this appeal, the ministry’s determination that the information provided did not meet the
legislative criteria of EAPWDA section 2(2)(a) is no longer reasonable.
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
APPEAL NUMBER
periods. While other evidence may be considered for clarification or support, the ministry’s
determination as to whether or not it is satisfied that the legislative criteria are met, is dependent
upon the evidence from prescribed professionals. The term “directly” means that there must be
a causal link between the severe impairment and the restriction. The direct restriction must also
be significant. Finally, there is a component related to time or duration – the direct and
significant restriction may be either continuous or periodic. If periodic, it must be for extended
periods. Inherently, any analysis of periodicity must also include consideration of how frequently
the activity is restricted.
All other things being equal, a restriction that only arises once a year is less likely to be
significant than one that occurs several times a week. Accordingly, in circumstances where the
evidence indicates that a restriction arises periodically, it is appropriate for the ministry to
require evidence of the duration and frequency of the restriction in order to be “satisfied” that
this legislative criterion is met.
DLA are defined in section 2(1) of the EAPWDR and are listed in both the MR and the AR
sections of the PWD application with the opportunity for the prescribed professional to check
marked boxes and provide additional narrative. DLA, as defined in the legislation, do not include
the ability to work.
The ministry’s position is that while the information confirms that the appellant has a severe
physical impairment, the information provided by the Nurse Practitioner is not sufficient to
confirm that the severe impairment significantly restricts the appellant’s ability to perform DLA
continuously or periodically for extended periods.
T
he appellant’s position is that as a result of a severe impairment, the appellant is in constant
pain, is unable to stand, requires an assistive device at all times and has significant restrictions
with DLA of dressing, grooming, toileting, cooking, shopping, laundry, housekeeping, and
transportation. The appellant also reports significant disruption to cognitive and emotional
function due to depression, anxiety and low motivation impacting the appellant’s motivation to
eat and to shower/bathe regularly.
The panel finds that the ministry was not reasonable in determining that the assessments
provided by the Nurse Practitioner were not sufficient to meet the legislative criteria of EAPWDA
section 2(2)(b)(i).
T
he reconsideration decision indicates that while it is reasonable to expect that the appellant
would encounter some restrictions to the appellant’s ability to perform DLA and requires
assistance as a result, the ministry finds that there is not enough evidence to confirm that the
appellant’s impairment significantly restrict the appellant’s ability to perform DLA continuously or
periodically for extended periods.
The ministry notes that the Nurse Practitioner indicates that the appellant takes significantly
longer than typical and uses a cane to manage going to and from stores, carrying purchases
home, and getting in and out of a vehicle. The Nurse Practitioner indicates that the appellant
uses a cane to manage toileting, transfers (in/out of bed) and transfers (on/off a chair). The
Nurse Practitioner indicates that the appellant takes significantly longer than typical to manage
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dressing, grooming, and bathing (uses cane, unable to stand any length of time).
The ministry also notes that in the November Letter the Nurse Practitioner indicates that the
appellant is able to manage DLA but takes significantly longer to finish some tasks (2-3 times
longer and sometimes more depending on the task, carrying one gallon of milk at a time, taking
several trips to bring groceries in from the car, and using a small bag to drag laundry rather than
carrying it).
T
he panel notes that the Nurse Practitioner confirms that the appellant uses a cane at all times,
limps, and avoids stairs at all costs. The Nurse Practitioner confirms that the appellant is unable
to stand for any length of time and requires continuous assistance from another person with
laundry, basic housekeeping, food preparation, and cooking, noting that the appellant is unable
to stand. The ministry does not provide any further explanation to indicate why the continuous
assistance required is only indicative of a moderate level of impairment when the evidence
indicates that the appellant requires continuous assistance with these aspects of DLA.
A
s the prescribed professional confirms that the appellant requires continuous assistance with
four aspects of DLA, the ministry’s position that the assessments do not establish that a severe
impairment significantly restricts DLA continuously or periodically for extended periods as
required by EAPWDA section 2(2)(b)(i) is not reasonable.
I
n addition, in the AR the Nurse Practitioner indicates that it takes the appellant significantly
longer than typical with dressing, grooming, bathing, going to and from stores, carrying
purchases home and getting in and out of a vehicle. In the November Letter the Nurse
Practitioner indicates that it takes the appellant two to three times longer in finishing some tasks
on hand “…and sometimes more depending on the task”. Given the appellant’s continuous
assistance needed with four aspects of DLA and numerous tasks taking at least two to three
times longer than typical if not more, the panel finds that the reconsideration decision was not
reasonable as the information provided reflects a significant rather than moderate level of
restriction.
In addition, the panel finds that the ministry did not adequately consider the information provided
by the Orthopedic Surgeon in conjunction with the information provided by the Nurse
Practitioner. While the orthopaedic surgeon does not provide specific assessments of DLA, the
Clinic Note indicates that the appellant is limping badly, is unable to walk without a cane, and is
essentially housebound because of the pain. This information further supports the Nurse
Practitioner’s information that the appellant is homebound due to mobility issues resulting in
major social isolation and very disrupted functioning to extended social networks.
Furthermore, while the reconsideration decision notes that the Nurse Practitioner indicates that
the appellant has not been prescribed medication/treatment that interferes with the appellant’s
ability to perform DLA, the Nurse Practitioner confirms that the appellant suffers from resultant
depression and low motivation and anxiety which also impact the appellant’s ability to perform
DLA.
Help to perform DLA
APPEAL NUMBER
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 appellant’s position is that the information provided should be sufficient to find that the
appellant meets the criteria for designation as PWD.
The ministry’s position is that because it has not been established that DLA are significantly
restricted, it cannot be determined that help is required.
As the panel finds that the ministry was not reasonable in determining that confirmation of direct
and significant restrictions with DLA was not met, the panel finds that the ministry was not
reasonable in determining that the precondition of the need for the help criterion was not met.
The information provided confirms that the appellant uses an Assistive Device of a cane at all
times. In the AR, the Nurse Practitioner indicates that the appellant has to get help from family
with DLA of basic housekeeping and in section D – Assistance Provided for Applicant, the
Nurse Practitioner indicates that the help required for DLA is provided by friends. At the hearing,
the appellant indicated that help is needed but that there is little to no help available. The
appellant confirmed that DLA of laundry does not get done until there is nothing left to wear and
the appellant does not really cook due to inability to stand. The appellant further indicated that
help is needed with basic housekeeping and that household tasks do not get done as the
appellant is not able to complete some tasks due to pain and mobility issues.
The information provided from the Nurse Practitioner and the appellant confirms that the
appellant requires help to perform tasks of DLA particularly laundry, basic housekeeping, food
preparation, and cooking and would benefit from help with other DLA including regulating diet
and transportation.
The panel finds that the ministry was not reasonable in determining that the appellant did not
meet the legislative criteria of EAPWDA section 2(2)(b)(ii).
Conclusion
The panel finds that, based on all of the evidence admitted on the appeal, the ministry’s
reconsideration decision which determined that the appellant was not eligible for PWD
designation, is not reasonably supported by the evidence and is not a reasonable application of
the applicable enactment, and therefore rescinds the decision. The appellant is 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)
PART
H – SIGNATURES
PRINT NAME
Helene Walford
SIGNATURE OF CHAIR
DATE (YEAR/MONTH/DAY)
2019/12/18
PRINT NAME
Wendy Marten
SIGNATURE OF MEMBER
DATE (YEAR/MONTH/DAY)
2019/12/18
PRINT NAME
Melvin Donhauser
SIGNATURE OF MEMBER
DATE (YEAR/MONTH/DAY)
2019/12/18
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