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 October 24, 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 for designation as a person with disabilities (PWD). The ministry found that the appellant met the age
and duration requirements, but was not satisfied that:
•
t
he appellant has a severe physical and/or mental impairment;
•
the appellant’s daily living activities (DLA) are, in the opinion of a prescribed professional, directly
and significantly restricted either continuously or periodically for extended periods; and
•
as
a result of those restrictions, the appellant requires an assistive device, the significant help or
supervision of another person, or the services of an assistance animal to perform DLA.
I
n addition, the ministry found that it had not been demonstrated that the appellant is one of the
prescribed classes of persons who may be eligible for PWD designation on alternative grounds, which
includes: a person who is enrolled in palliative care; a person who has at any time been determined
eligible for At Home Program payments through the Ministry of Children and Family Development; a
person who has at any time been determined eligible by Community Living BC for community living
support; and a person who is considered disabled under section 42(2) of the Canadian Pension Plan Act.
PART D – RELEVANT LEGISLATION
Employment and Assistance for Persons with Disabilities Act (EAPWDA), section 2
E
mployment and Assistance for Persons with Disabilities Regulation (EAPWDR), section 2
APPEAL NUMBER
PART E – SUMMARY OF FACTS
The evidence before the ministry at the time of the Reconsideration Decision included:
1.
The information before the ministry at the time of reconsideration included the appellant’s PWD
application comprised of a Medical Report (MR) [undated] and an Assessor Report (AR)
[undated], which was completed by the appellant’s General Practitioner (the ‘GP’), who had
known the appellant for 2 years and seen him 11 or more times in the past 12 months. The
approaches and sources used to conduct the MR and AR was an office interview. The PWD
application also included the appellant’s Self-Report (SR) dated August 12, 2019.
2.
Request for Reconsideration (RFR), signed and dated October 10, 2019, in which the appellant
stated, in part, “I daily live with pain and I have to take the painkillers on daily basis for my back”.
Diagnoses
I
n the MR, the GP diagnosed the appellant with mechanical lower back pain and S. radial pain (onset
July 2017).
Physical Impairment
In the MR, the GP indicated the following about the appellant:
•
“Patient complains of having consistent low back pain, the right leg pain radiating from the
buttock, into the posterolateral aspect of the thigh into the shin and into the top of the foot which
is associated with paresthesia and numbness is slightly better. His pain is worse with prolonged
sitting or standing, bending, lifting and walking.
•
He can walk 4+ blocks unaided, climb 2-5 steps unaided, lift under 5 lbs (with the comment “my
specialist counselled me not to lift any weight”) and remain seated for less than 1 hour.
In the AR, the GP indicated the following about the appellant:
•
“Can’t stand for more than ½ an hour and can’t lift any weight, also can’t sit for more than ½ an
hour. Can’t go upstairs (illegible 5 steps at a time)”.
•
Walking indoors/outdoors are performed independently
•
Standing, lifting and carrying/holding is performed independently, with a comment “was
recommended by his specialist not to do these activities”.
•
Climbing stairs takes significantly longer.
In the SR, the appellant indicated:
•
That he has chronic pain in his back.
•
Unable to stand longer than ½ an hour or sit longer than ½ an hour.
•
Takes painkillers daily.
•
Cannot carry any weight more than 5lbs. Cannot lift his
year old child.
•
Cannot go upstairs (maximum 5 steps at a time).
Mental Impairment
I
n the MR, the GP indicated the following about the appellant:
•
There are no difficulties with communication.
•
There are not significant deficits with cognitive and emotional function.
•
There are no restrictions to social functioning.
In the AR, the GP indicated the following about the appellant:
•
Speaking, reading, writing and hearing are all good, with the comment “difficulty communicating
in English”.
•
Under cognitive and emotional functioning the GP wrote “N/A”
APPEAL NUMBER
•
In the DLA section under social functioning, the GP indicated “N/A”.
•
In the DLA section under ‘pay rent/bills’ and ‘medication’, the GP indicated that all listed tasks are
performed independently.
I
n the SR, the appellant made no mention of a mental impairment or that he is impacted mentally in
anyway due to his physical impairment.
D
aily Living Activities
In the MR, the GP indicated the following about the appellant:
•
Medications that interfere with the ability to perform DLA have been prescribed.
•
To the question “does the impairment directly restrict the person’s ability to perform DLA?, the GP
indicated ‘yes’ and then indicated ‘no restriction’ to all listed areas of DLA.
I
n the AR, the GP indicated the following about the appellant:
•
All listed areas and tasks of DLA are indicated as performed independently except ‘carrying
purchases home’ which requires periodic assistance (with the comment: “his kids will help with
c
arrying the bags” and “sometimes he needs his wife or kids to carry groceries” and ‘using public
transit’ and ‘using transit schedules’ which were left blank (with the comment: “he can but he has
his own car”).
I
n the SR, the appellant did not indicate that he is restricted in performing his DLA.
He
lp
In the MR, the GP indicated the following about the appellant:
•
Requires no prostheses or aids for his impairment.
•
In response to ‘What assistance does your patient need with DLA?’, the GP indicated “N/A”.
I
n the AR, the GP indicated the following about the appellant:
•
Help is required by ‘Health Authority Professionals’ without indication of what help is required for
or by whom.
•
The section ‘assistance provided through the use of Assistive Devices’ is left blank and th
e
s
ection ‘Assistance Animals’ is indicated as “N/A”.
•
Help with DLA comes from family with the comment: ”carrying stuff”.
•
Under ‘assistance provided through the use of assistive devices’ and ‘assistance provided by
assistance animals’ the GP commented “N/A” and “none needed”.
Evidence on Appeal
Notice of Appeal (NOA), signed and dated November 19, 2019, which stated “As I’m taking painkillers
almost daily to function properly”.
T
he panel found that the information in the NOA consists of the appellant’s argument and does not
require an admissibility determination.
E
vidence at the Hearing
The appellant elected to be heard via teleconference. The appellant called into the teleconference 18
minutes after the designated time of 9:30am. At 10:35am the appellant exited the teleconference. After
consulting with the Tribunal office, the hearing resumed without the appellant at 10:49am and the
ministry presented its side. At 10:55am the appellant returned to the teleconference and the hearing
APPEAL NUMBER
resumed with the ministry presenting its side again.
The panel
notes that throughout the PWD application, the handwriting which provides the narrative and
describes appellant’s conditions differs from the writing which describes the GP’s diagnosis and the GP’s
designation. At the hearing, the appellant confirmed that the PWD application was completed by up to 3
different doctors. The panel concludes that since the GP signed PWD application, he agrees with the
analysis provided by up to 2 other doctors and finds that the PWD application carries the weight of up to
3 ‘doctors’; the GP, the appellant’s neurologist and a third doctor from the local hospital.
At the hearing, the appellant reiterated the information found in the RFR and NOA, and stated, in part,
the following:
•
He lives on medication and cannot go without his medication. His condition is indefinite and the
pain is increasing.
•
He has stairs at home that lead to his bedroom and he must crawl up them as he cannot walk up
the stairs.
•
He cannot sit for more than 30 minutes or so and he must stand up from time to time.
•
More recently, his bladder leaks without control.
•
When driving long distances he must stop and get out of the car to relieve his back pain.
In response to questions, the appellant stated the following:
•
His condition is worsening.
•
His medications were prescribed by the GP who signed the PWD application.
•
He does not know how the condition of the bladder leaking is related to the diagnosed conditions
of mechanical lower back pain and S. radial pain.
•
The narrative in the PWD application was written by doctors other than his GP who signed the
application. A doctor from the local hospital and/or the appellant’s neurologist completed the
application.
•
He has had pain for 4-5 years and last year he participated in physical therapy which included
time spent in pools. However the therapy did not include stretches or muscle strengthening and
he received only short term pain relief.
•
He attends school 4 days per week but misses days due to back pain.
•
He can prepare meals (get them out of the refrigerator and eat them) and take his medication
independently.
•
He has
kids, which is expensive, and PWD designation will help him pay for treatment.
•
He was told that surgery is an option but he is fearful of surgery and the success rate is unknown.
At the hearing, the ministry relied on its reconsideration decision.
Admissibility of Additional Information
At the hearing the appellant made reference to the following information which was not before the
ministry at the time of reconsideration:
•
The appellant must crawl up stairs as he cannot walk up the stairs.
•
His bladder leaks uncontrollably.
•
He cannot drive long distances without standing to relieve his back pain.
•
He participated in physical therapy last year.
•
A doctor has offered back surgery as a solution to the pain but the appellant is fearful of surgery
and the success rate is unknown.
A panel may consider evidence that is not part of the record as the panel considers is reasonably
APPEAL NUMBER
required for a full and fair disclosure of all matters related to the decision under appeal.
I
n this case, the panel determined that the information referenced at the hearing (and is referenced
above) is admissible and keeping within the legal test stated above.
T
he panel finds that the information referenced at the hearing did not confirm a physical medical
condition that results in restrictions to the appellant’s ability to function independently or effectively, or
confirms a causal link between the severe physical or mental impairment and significant restrictions in
daily functioning. The panel also finds that the information referenced at the hearing was primarily a self
–report and not confirmed by the GP. For these reasons, the panel places little weight on this
information.
APPEAL NUMBER
PART F – REASONS FOR PANEL DECISION
The issue on appeal is whether the ministry's reconsideration decision, which found that the appellant is
not eligible for 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. The ministry found that
the evidence does not establish that the appellant has a severe mental or physical impairment and that
his DLA are, in the opinion of a prescribed professional, directly and significantly restricted either
continuously or periodically for extended periods. Also, as a result of those restrictions, it could not be
determined that the appellant requires the significant help or supervision of another person.
T
he criteria for being designated as a PWD are set out in Section 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 wit
h
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)in the opinion of a prescribed professional
(i)directly and significantly restricts the person's ability to perform daily living activities either
(A)
c
ontinuously, or
(B)
pe
riodically 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)
t
he 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).
The EAPWDR provides as follows:
Definitions for Act
2 (1) For the purposes of the Act and this regulation, "daily living
APPEAL NUMBER
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;
(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)
Fo
r 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)
r
egistered nurse or registered psychiatric nurse,
(iv)
oc
cupational therapist,
(v)
physical therapist,
(vi)
social worker,
(vii)
chiropractor, or
(viii)
nu
rse practitioner, or
(b)
ac
ting 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.C. Reg.
73/2015;
APPEAL NUMBER
(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
Panel Decision
Severe Impairment
In the reconsideration decision, the ministry was not satisfied that the information provided establishes a
severe physical or mental impairment. Determining a severe physical or mental impairment requires
weighing the evidence provided against the nature of the impairment and its reported functional skill
limitations. A diagnosis of a serious medical condition does not in itself determine PWD eligibility or
establish a severe impairment. An “impairment” is a medical condition that results in restrictions to a
person’s ability to function independently or effectively. To assess the severity of an impairment, the
ministry must consider the nature of the impairment and the extent of its impact on daily functioning.
T
he panel finds that employability is not a consideration for eligibility for PWD designation because
employability is not a criterion in section 2(2) of the EAPWDA nor is it listed among the prescribed daily
living activities in section 2 of the EAPWDR.
Physical Impairment
The appellant argued that he has lower back pain for which he takes medication on a daily basis in order
to function.
T
he ministry argued that based on the information provided in the PWD application, a severe impairment
of the appellant’s physical functioning has not been established.
In its reconsideration decision, the ministry noted that the GP indicated that the appellant did not require
any prostheses or aids for his impairment; he can walk 4+ blocks unaided on flat surfaces, climb 2-5
steps unaided, can lift under 5lbs and can remain seated for less than 1 hour. The ministry also noted
that the GP indicated that the appellant takes significantly longer to climb stairs and that he is
independent with walking indoors/outdoors, standing, lifting and carrying/holding. However it was not
indicated how much longer it takes to climb stairs which makes it difficult to determine the overall level of
functioning in this area. The ministry noted that the GP indicated that the appellant is independent in
performing tasks that would typically be difficult for a person with a severe physical impairment. The
ministry concluded that the information provided in the PWD application and SR indicated a moderate
level of impairment and does not establish the presence of a severe physical impairment.
The panel concurs with the ministry’s conclusions and notes that the GP indicated that the appellant’s
APPEAL NUMBER
physical functioning and mobility is restricted in the area of lifting and limited in the areas of climbing
stairs unaided and remaining seated. However, the GP clearly indicated that this restriction and
limitation does not translate to the appellant’s ability to function with his DLA. The panel considered the
SR in which the appellant stated that he can climb 5 steps and his testimony at the hearing that he must
crawl up the stairs against the PWD application which indicated that the appellant can climb up to 5
steps and that it takes significantly longer than typical. There is no indication as how much longer the
appellant takes to climb stairs. With this inconsistency in the information it is difficult to determine the
nature of the appellant’s impairment regarding the ability to climb stairs or the severity of his restriction.
Similarly, in the MR the GP indicated that the appellant can lift under 5 lbs. and wrote that pain is worse
with prolonged lifting. In section B of the AR, the narrative from the GP indicated that the appellant
cannot lift any weight. Yet in the AR it was indicated that lifting was performed independently, without a
weight restriction indicated, and that it has only been recommended that the appellant not engage in this
activity. No additional information was provided to bring clarity to the issue of lifting.
G
iven the overall assessments of the appellant’s functional ability, and mobility and physical ability in the
PWD application and the lack of any additional information provided at appeal, the panel finds that the
ministry was reasonable in its determination that the evidence does not support a finding that the
appellant suffers from a severe physical impairment and that the legislative criteria outlined in Section
2(2) of the EAPWDA have not been met.
Mental Impairment
T
he appellant did not argue that he suffers from a mental impairment. Therefore the panel will not
provide an analysis.
Restrictions in the ability to perform DLA
Section 2(2)(b)(i) of the EAPWDA requires that the minister be satisfied that in the opinion of a
prescribed professional, a severe mental or physical impairment directly and significantly restricts the
appellant’s ability to perform DLA either continuously or periodically for extended periods. While other
evidence may be considered for clarification or support, the ministry’s determination as to whether or not
it is satisfied that the legislative criteria are met, is dependent upon the evidence from prescribed
professionals. The term “directly” means that there must be a causal link between the severe impairment
and the restriction. The direct restriction must also be significant. Finally, there is a component related to
time or duration – the direct and significant restriction may be either continuous or periodic. If periodic, it
must be for extended periods. Any analysis of periodicity must also include, but shall not be limited to,
the 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, as a part of the overall evidence, verification 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.
T
he appellant argued that due to his medical condition he is restricted in performing his DLA.
T
he ministry concluded that the information provided does not establish that an impairment directly and
significantly restrict DLA continuously or periodically for extended periods.
In the reconsideration decision, the ministry noted the GP’s narrative and that he indicated that the
APPEAL NUMBER
appellant independently performs all of the listed DLA except lifting which requires periodic assistance.
The narrative provided by the GP stated “his kids will help with carrying the bags” and “sometimes he
needs his wife or kids to carry groceries”. The ministry also noted that in the MR the GP indicated that
the appellant is not restricted with any of the listed DLA. The ministry determined that needing
occasional help to lift heavy groceries is not indicative of a significant restriction to the appellant’s ability
to carry purchases home. The ministry concluded that not enough evidence is provided to establish that
the appellant’s ability to manage his DLA is significantly restricted either continuously or periodically for
extended periods.
The panel finds that the ministry reasonably concluded that the evidence does not confirm that the
appellant has a severe impairment that significantly restricts his ability to perform his DLA continuously
or periodically for extended periods. The panel notes that the information provided established that the
appellant is able to perform most of his DLA independently. Of that DLA that requires periodic
assistance, the GP did not indicate the duration and frequency of the assistance required and therefore it
is difficult to determine if the assistance that is required is significant and that it is required periodically for
extended periods as prescribed by the legislation. The panel notes that the GP indicated that assistance
from the appellant’s wife and kids is required “sometimes”, which would not be indicative of ‘requiring
assistance periodically for extended periods’. The panel finds that it was reasonable for the ministry to
determine that to simply indicate that periodic assistance is required, without providing the details of the
assistance required, is insufficient to meet the legislative requirements.
The panel considered the assessment by the GP in the PWD application of independence with almost all
of the DLA, the lack of information regarding the frequency and duration of the periodic assistance
required and that insufficient additional or supporting information was provided from a prescribed
professional at appeal to support the appellant’s position. The panel finds that the evidence provided by
the GP does not describe or indicate that a severe impairment restricts the appellant’s ability to perform
his DLA either continuously or periodically for extended periods. Given the evidence as a whole, the
panel finds that the ministry reasonably concluded that the evidence does not establish that an
impairment significantly restricts DLA continuously or periodically for extended periods, pursuant to
Section 2(2)(b)(i) of the EAPWDA.
Help to perform DLA
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 indicated that he requires assistance with his DLA which comes from his family.
The ministry argued that because it has not been established that DLA are significantly restricted, it
cannot be determined that help is required.
The panel notes that, in the AR, the GP did indicate that assistance is required from family with carrying
stuff. However, given that confirmation of direct and significant restrictions with DLA is a precondition of
the need for help criterion and because the panel found that the ministry reasonably determined that
direct and significant restrictions in the appellant’s ability to perform DLA have not been established, the
panel also finds that the ministry reasonably concluded that it cannot be determined that the appellant
requires help to perform DLA as required by section 2(2)(b)(ii) of the EAPWDA.
Conclusion
APPEAL NUMBER
The panel finds that the ministry’s reconsideration decision, which determined that the appellant was not
eligible for PWD designation, was reasonably supported by the evidence and is a reasonable application
of the applicable enactment, and therefore confirms the decision. The appellant is not successful on
appeal.
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)
P
ART H – SIGNATURES
PRINT NAME
Neena Keram
SIGNATURE OF CHAIR
DATE (YEAR/MONTH/DAY)
2020/01/10
PRINT NAME
Shirley Heafey
SIGNATURE OF MEMBER
DATE (YEAR/MONTH/DAY)
2020/01/10
PRINT NAME
Roy Wares
SIGNATURE OF MEMBER
DATE (YEAR/MONTH/DAY)
2020/01/10
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