Appeal Number 2022-0082 Part C – Decision Under Appeal The decision under appeal is the Ministry of Social Development and Poverty Reduction’s (“ministry”) reconsideration decision dated April 12, 2022, in which the ministry found the appellant was not eligible for designation as a Person with Disabilities (“PWD”) under section 2 of the Employment and Assistance for Persons with Disabilities Act (“EAPWDA”). The ministry found that the appellant met the age requirement and the requirement for the impairment to continue for at least 2 years but was not satisfied that:
• the appellant has a severe mental or physical impairment; • the impairment, in the opinion of a prescribed professional, directly and significantly restricts the ability to perform daily living activities (“DLA”) either continuously or periodically for extended periods; and
• as a result of restrictions caused by the impairment, the appellant requires an assistive device, the significant help or supervision of another person, or the services of an assistance animal to perform DLA.
The ministry also found that the appellant was not 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 (“EAPWDR”). As there was no information or argument provided for PWD designation on alternative grounds, the panel considers that matter not to be at issue in this appeal.
Part D – Relevant Legislation The ministry based the reconsideration decision on the following legislation:
Employment and Assistance for Persons with Disabilities Act - EAPWDA - section 2 Employment and Assistance for Persons with Disabilities Regulation - EAPWDR - section 2 The full text is available in the Schedule after the decision.
EAAT003 (17/08/21) 2
Appeal Number 2022-0082 Part E – Summary of Facts The evidence and documentation before the minister at the reconsideration consisted of:
1. Information from the ministry’s record of decision indicating that the PWD application was submitted on December 22, 2021, and denied on March 2, 2022 with a Decision denial summary explaining the criteria that were not met. On March 28, 2022, the appellant submitted a Request for Reconsideration (“RFR”). On April 12, 2022, the ministry completed the review of the RFR.
2. An RFR signed by the appellant on March 26, 2022, with the following documents attached: A 6-page hand-written submission from the appellant describing her diagnoses, medications, functional limitations, and restrictions to DLA. The appellant reports that: -Degenerative disk disease, lumbar spine arthritis, depression, and severe sleep apnea are getting progressively worse. - she suffers from insomnia, mood swings, confusion, and problems with memory, motivation, and concentration. Her pain medication was increased to 900 mg, and she will need to take the antidepressant medication permanently. -sleep test results show that her oxygen levels drop so low that her whole body including all of her organs are impacted by severe sleep apnea which affects her daily functioning. -since her doctor’s report in November 2021 and after speaking with a long-term friend, she has come to realize that her quality of life has decreased to the point where she is unable to walk more than 1 block before she experiences back pain. She uses a walking stick when going for a walk. -she experiences confusion when doing things; cannot follow through on plans (“makes notes of things I need/should do, no desire to complete list”); finds it hard to concentrate, and has difficulty communicating because she can’t recall a word to complete a sentence and she has “a hard time understanding simple things people say, and remembering names and information.” She also has a hard time comprehending and remembering what she has read. -due to back pain it takes 3 times longer to do anything indoors, or things just don’t get done; -when moving around, she has to take breaks, sit or stand, to try and ease the pain. Her doctor said she could sit or stand for 30 minutes at a time, but now she has to change position approximately every 10 minutes due to pain. -she gets assistance from store clerks for items over 10 pounds; then the items sit in her vehicle until she gets help with unloading. It typically takes several days to unload shopping items because she can only remove a little at a time. -she has no motivation; is overly drowsy; sleeps a lot due to depression; she doesn’t change her clothes or shower for days. She has a “lack of drive/energy/focus or motivation to do housework. Days before it gets done.” -dressing and showering take significantly longer to complete and she cannot get out of the bathtub. Also, getting out of bed takes 3 to 4 times longer because she has to grab the edge of the mattress to roll over and sit up. Then she has to stand up slowly, brace herself, and “stand there for a bit and then walk hunched over due to back and hip pain.” -laundry and housekeeping take 3 times longer because she is limited to lifting under 10 pounds and she cannot stand for long periods. She has to sit down repeatedly when she tries to do housework. -when shopping, she always uses a cart for support and stability and it takes her 3 times longer to shop. Also, the pain in her back and hips makes her think she needs things so she ends up purchasing things she doesn’t need. -she loses focus on what to eat and it takes her 2 to 3 times longer to get organized to plan a meal. Food preparation and cooking take 3 times longer because she has to alternate between sitting and standing due to back pain. She uses the counter for support. Doing dishes takes 4 times longer because she has to lean on the counter due to back pain. -finances and budgeting take 2-3 times longer because she can’t make up her mind or stay focused. She experiences a lack of concentration and irritability when paying bills. -getting out of a car takes significantly longer due to back pain. It is hard to swing her legs out to the door. She has to slowly stand up and brace herself against the car to try and straighten up. Then she stays hunched over for awhile and braces herself against the car while walking. -she forgets to take her medications on time.
EAAT003 (17/08/21) 3
Appeal Number 2022-0082 -there is no public transit in her area but when she has seen bus schedules she could not figure them out. -when she is outside trying to do yard work, she has to use the building, car, or fence to support and steady herself while walking or to get up. She uses objects to brace herself both indoors and outdoors. -she is unable to maintain relationships because she withdraws and loses trust, or just doesn’t care. She becomes upset with unexpected demands and is unable to secure help from others due to not having anyone to help her. Her family member lives some distance away and she may only see them twice a year. -she has very disrupted functioning with her social networks because she is withdrawn from the world and doesn’t text or call anyone regularly or reply to messages. She can go for weeks without contact with family or friends because she gets in the state of “I don’t care, doesn’t concern me, poor me.” She has only met one of her neighbours once and that wasn’t by choice. She keeps to herself, does not ask for help, and is very much an introvert.
A letter from a sleep clinic dated February 28, 2022, addressed to the appellant’s family doctor and prescribing CPAP therapy.
A prescription from the sleep clinic doctor for a CPAP machine for ‘diagnosed severe obstructive sleep apnea.”
A home sleep study report from the sleep clinic (undated); An interpretation report for a home sleep test, dated February 2, 2022, and dictated by the sleep clinic doctor. The appellant requires urgent treatment with CPAP. Lifestyle optimization including regular appropriate exercise was also recommended.
Copies of prescription receipts for the appellant’s pain and anti-depressant medications; A note from the appellant’s doctor dated October 4, 2021, stating that the appellant should limit standing and sitting to 30 minutes at a time due to a medical condition involving her back. The appellant should also limit twisting, and lifting should not exceed 10 pounds.
A note from the appellant’s doctor dated May 14, 2021, stating that the appellant should limit her work to no more than 4 hours at a time for the next month.
American Family Physician journal: letter to the editor from a medical doctor dated June 2012. The letter is titled A Walking Stick Can Be a Good Alternative to a Cane.
3. The PWD application comprised of: the Applicant Information (self-report - “SR”) signed by the appellant on November 18, 2021. a Medical Report (“MR”) dated November 29, 2021, signed by the appellant’s doctor, a General practitioner (“Dr. A”) who has known the appellant for 1 year and has seen her 11 or more times in the past 12 months.
an Assessor Report (“AR”) dated November 30, 2021, also completed by Dr. A who based the assessment on an office interview with the appellant and by reviewing the patient’s medical chart..
EAAT003 (17/08/21) 4
Appeal Number 2022-0082 Summary of relevant evidence from the application and RFR: Diagnoses In the MR, the appellant is diagnosed with Arthritis – lumbar spine, and Degenerative disc disease (date of onset for both conditions, 2002); Sleep apnea (date of onset 2011), and Mood disorder – depression (date of onset 2008). In Section B - Health History, Dr. A explains that the appellant has had chronic back pain for 19 years that is getting progressively worse. The appellant requires pain medication, and her Mood disorder is made worse by back pain.
Functional skills Self-report The appellant describes waking up in the morning with her back aching. She has to grab the mattress to help her turn over in bed. Her right leg throbs all the time from the thigh to the top of the foot. When driving over a bump, she flinches due to the pain in her lower back. After being on her feet for approximately half an hour, her “back and hips and right leg are on fire.” If she sits for approximately half an hour, her back hurts so bad that she is hunched over when she stands up. She has to steady herself on nearby objects.
The appellant reports that her hips also ache which causes her to limp and sway side to side when walking. She can only walk slowly. Her sleep is also impacted because she can’t fall asleep for a long time and tosses and turns due to back pain and aching in her leg. She doesn’t get a lot of sleep during the night and ends up sleeping too much in the daytime. She has to brace herself on the car if she drives for too long because she is hunched over when she gets out of the vehicle. She also reports a pinched nerve due to her back problem.
The appellant said she gets confused when people are talking to her or she doesn’t understand what is being said. When given directions or instructions, she has to write them down right away so that she doesn’t get mixed up and forget something. The appellant said she has difficulty with concentration, memory, and understanding things. It is painful to get up from a chair, and sometimes the pain is so intense that it causes her face to grimace.
The appellant said that she avoids stairs but when she has to use them “it is a 2-footer for each step and I have to use wall or railing to steady myself.” She can’t carry a jug of milk or a bag of groceries for very long, and “it sends shooting pains across back and hips if I have to reach for something on a shelf.”
Medical Report In Section B - Health History, Dr. A reports that the appellant had to reduce her work hours due to a limited ability to stand for longer than 30 minutes at a time. The appellant is limited to lifting “no more than 10 pounds at a time” and sitting “is limited to 30 minutes at a time.” Walking is affected because the appellant cannot walk more than 2 blocks before getting pain that “refers to her hips and legs.” Sleep is affected by back pain and the appellant wakes up at night with pain. “Concentration is at times affected by the sleep and mood disorders. No safety concerns.”
In section D - Functional Skills, Dr. A indicates the appellant can walk 1-2 blocks unaided on a flat surface and climb 2-5 steps unaided (comment, “requires support”). The appellant is able to lift 5-15 pounds, and she can remain seated for less than 1 hour.
Regarding mental functions (questions D-5 and D-6), Dr. A indicates no difficulties with communication. Dr. A checked that the appellant has significant deficits with cognitive and emotional function in 3 of the 12 areas listed: Memory, Emotional disturbance and Motivation (comment, “chronic depression affecting short term memory, mood and motivation”).
Under Additional Comments (section F), Dr. A says that the appellant “has tried different approaches to work by reducing hours, taking on different responsibilities but this continues to cause pain and limit her ability to function.”
EAAT003 (17/08/21) 5
Appeal Number 2022-0082 Assessor Report Under Section B-2, Ability to Communicate, Dr. A indicates a good ability for 3 of the 4 areas listed: Speaking, Reading, and Writing. Hearing was marked as satisfactory.
Under section B-3, Mobility and Physical Ability, Dr. A indicates the appellant is independent with all functions, with the following comments:
Walking indoors: (no comment provided) Walking outdoors: “depending on outdoor conditions” Climbing stairs: “goes up single stair at a time with use of railing” Standing: “limited to 30 minutes due to pain” Lifting: “limited to 10 pounds” Carrying and holding: “limited due to pain.”
In section B-4, Cognitive and Emotional Functioning, the assessor is asked to indicate what impacts the appellant’s impairments have on various cognitive and emotional functions. For the 14 areas listed, Dr. A indicates impacts in 7 areas:
Minimal impact for Consciousness Moderate impact for: -Emotion -Motivation/concentration -Memory -Motor activity Major impact for Bodily functions (including sleep disturbance), and Motivation
No impact is reported for the following areas: Impulse control Insight and judgment Executive Language Psychotic symptoms Other neuropsychological problems Other emotional or mental problems.
In Part E – Additional Information, Dr. A wrote, “mental functioning is affected on a regular basis due to Mood disorder and chronic pain. Daily functioning is limited due to pain with standing, walking, and lifting.”
Daily Living Activities Self-report The appellant said it is difficult to get things done because she can’t sit or stand for long periods of time. She struggles to put on socks and shoes and she can’t get up off the floor without using a stool which is difficult and painful. If she has to pick something up off the floor, she has to kick it to a counter or chair so that she can brace herself. Sweeping or mopping the floor causes her back to ache even more, and she can’t lift more than 4 pans or trays without pain shooting across her back and hips.
Medical Report In Section B - Health History, Dr. A reports that “activities such as mopping and sweeping and getting dressed are limited by pain.”
EAAT003 (17/08/21) 6
Appeal Number 2022-0082 In Section B-3, Dr. A checked no, the appellant has not been prescribed medications or treatments that interfere with the ability to perform DLA
In Section E of the MR - Daily Living Activities, Dr. A indicates that 3 DLA are continuously restricted by the appellant’s impairment:
Basic housework (comment, “housework takes longer where there is no one to help her”) Mobility outside the home (comment, “mobility is limited to 30 minutes of walking or standing”) Social functioning (comment, “has to write things down to remember them”).
The remaining 7 activities listed on the form are not restricted: Personal self care Meal preparation Management of medications Daily shopping Mobility inside the home Use of transportation Management of finances
Assessor Report In Section B1 - Mental or Physical Impairment, Dr. A explains that the impairments that impact the appellant’s ability to manage DLA are “chronic back pain that impairs ability to sit, stand, walk, and carry”, and “depression that affects social functioning.”
In Section C - Daily Living Activities, Dr. A indicates that the appellant is independent with all areas of all DLA, with the exception of one area of Basic Housekeeping:
Housekeeping (comment, “takes one and half times as long”), and 2 areas of Meals: Food preparation, and Cooking (comment, “one and a half times longer”). Under Additional comments, Dr. A wrote, “extended time due to pain when standing.”
In addition, limitations were reported for 3 activities that were assessed as independent: Personal Care: Transfers – bed, and Transfers - chair (comment, “difficult and painful”) Shopping: Carrying purchases home (comment, “limited to less than 10 pounds”)
All areas of Social Functioning were assessed as independent including able to develop and maintain relationships, able to deal appropriately with unexpected demands, and able to secure assistance from others. Dr. A checked marginal functioning when asked to describe how a mental impairment affects the appellant’s relationship with her immediate and extended social networks. No support/supervision was indicated to maintain the appellant in the community and no safety issues were reported.
EAAT003 (17/08/21) 7
Appeal Number 2022-0082 Need for help Information from the MR and AR In the MR under Health History (Section B-4), Dr. A marked no, the appellant does not need any prostheses or aids for the impairment.
In the AR, Dr. A said the appellant gets help with DLA from a family member when they are in town. Dr. A indicates the appellant lives alone.
In Section D - Assistance provided through the use of Assistive Devices, Dr. A checked Breathing device, comment, “CPAP.” Dr. A. explained that the device is currently not being used because “CPAP is currently recalled.”
The doctor checked no, the appellant does not have an assistance animal. Additional submissions With the consent of both parties, the appeal proceeded as a written hearing pursuant to section 22(3)(b) of the Employment and Assistance Act (“EAA”). Subsequent to the reconsideration decision the appellant filed a Notice of Appeal with a 3-page hand-written submission and a copy of a completed Patient Pain Questionnaire.
In an email to the Tribunal, the ministry states that the reconsideration summary is the ministry’s submission on appeal.
Appellant’s evidence 1. The appellant’s submission, dated April 22, 2022, sets out her argument and gives a detailed self-report describing the worsening of her condition. The appellant reports that most activities take her 3-4 times longer to complete including:
taking medications as directed getting in and out of a vehicle bathing regulating diet laundry going to and from stores choices [while shopping] carrying purchases walking outdoors climbing stairs standing lifting carrying and holding items dressing basic housekeeping transferring [bed and chair] food preparation and cooking sitting (comment, “poor posture”).
EAAT003 (17/08/21) 8
Appeal Number 2022-0082 The appellant reports that her condition has worsened since Dr. A filled out the PWD medical forms. The appellant said that “the following limits/restrictions have changed from independent to takes significantly longer (3-4 times longer)”:
walking: she can now walk less than a block before she is in pain. Her left knee is now painful with walking; her family member is no longer able to help out due to their lack of transportation; she suffers from periods of isolation and withdrawal; “Thinking, remembering, judgment, walking, and vestibular are affected;” Planning, and organizing, motor activity, and attention/sustained concentration are also impacted. Restricted activities include personal care, meal preparation, daily shopping, and mobility inside the home.
The appellant reports being on the maximum dose of her pain medication (900 mg) but taking more really has no effect. The appellant says she needs another route to help with the pain and is on the wait list for a pain clinic.
2. The pain questionnaire is dated December 7, 2021. The instructions indicate that the information is intended to be shared with the local Health Authority/hospital. The appellant reports that her worst pain is “lower back” and she also has pain in her right forearm, entire right leg and her left hip as well. When asked to describe the pain, the appellant checked burning, sharp, stabbing, and other (shooting). The appellant indicated weakness in her right leg, “gives out from time to time.”
When asked when the pain is at its worst, the appellant checked night (comment, “worsens as the day goes on”). When asked what makes the pain worse, the appellant wrote, “movement.” When asked what makes the pain better, the appellant answered with a question mark. The appellant checked yes, the pain wakes her from sleep. When asked if the pain is getting worse, better, or staying the same the appellant checked same.
When asked if she had any medical imaging of her spine, done in the past 24 months the appellant wrote, “CT or MRI or X-ray, sorry, can’t remember.” The appellant indicates the imaging was done in 2021.
Admissibility The ministry did not raise any objections to the appellant’s written submission or the pain questionnaire. The panel admits these under section 22(4) of the Employment and Assistance Act as evidence that is reasonably required for a full and fair disclosure of all matters related to the decision under appeal. The panel finds that the documents are relevant to the appeal because they provide additional self-report on the appellant’s symptoms and daily functioning,
EAAT003 (17/08/21) 9
Appeal Number 2022-0082 Part F – Reasons for Panel Decision The issue on appeal is whether the ministry’s decision that found the appellant ineligible for PWD designation was reasonably supported by the evidence or was a reasonable application of the legislation in the circumstances of the appellant. The panel’s role is to determine whether the ministry was reasonable in finding that the following eligibility criteria in section 2 of the EAPWDA were not met:
• the appellant has a severe mental or physical impairment; • the impairment, in the opinion of a prescribed professional, directly and significantly restricts the ability to perform daily living activities (“DLA”) either continuously or periodically for extended periods; and
• as a result of restrictions caused by the impairment, the appellant requires an assistive device, the significant help or supervision of another person, or the services of an assistance animal to perform DLA.
Analysis Severe mental or physical impairment Arguments Appellant In her appeal submissions the appellant argues that her conditions are getting progressively worse and while she learned to “adapt and get by” she has finally come to realize how her impairment is affecting her body “all day every day. I am in pain from the time I get up until I go to bed.” The appellant acknowledges that “the ministry uses the Medical Report to help make the decision” but she feels that the ministry should also consider her self-report. The appellant submits that the ministry “kept referring back to the Medical Report, not what I had to say about how it is affecting myself.”
The appellant wrote that she is “more than willing to get another medical report done” as she did not fully understand some of the questions in the PWD forms and she also has a tendency “to minimize my ailments and the degree of my pain and limits.” The appellant disagrees with Dr. A’s assessments of her functional skills and abilities because she says that her condition has worsened since the forms were completed. The appellant argues that all physical functions now take her 3-4 times longer and even walking less than 1 block causes her pain despite taking the maximum dose of medication.
The appellant further argues that her cognitive and social functions are impacted to a greater extent than what Dr. A indicated because she suffers from periods of isolation and withdrawal, has very disrupted functioning with her social networks, and has a great deal of difficulty with memory, judgement, planning and organizing as well as other functions that were marked moderate or no impact in the AR.
Ministry The ministry argues that the information from Dr. A does not establish a severe impairment of physical or mental functioning. The ministry said that it has considered the information from the appellant in conjunction with Dr. A’s assessments.
The ministry argues that the functional assessments by Dr. A do not demonstrate a severe physical impairment because the appellant remains independent in all areas of physical functioning despite facing some difficulties and limitations due to pain. The ministry argues the assessments indicate that the appellant “retains the ability to lift, walk, climb stairs, sit, and stand in a range that allows you to meet daily living requirements.”
EAAT003 (17/08/21) 10
Appeal Number 2022-0082 The ministry acknowledges that the appellant’s life is impacted by depression but argues the appellant does not have a severe mental impairment because Dr. A reports no impact for the majority of cognitive and emotional functions or notes that the impact of the impairment is moderate or minimal. In addition, the ministry notes that no communication difficulties were reported.
Legislative requirement To be eligible for PWD designation, the legislation (EAPWDA section 2) requires several criteria to be met including the minister being satisfied that the applicant has a severe mental or physical impairment. The ministry found the appellant was not eligible for PWD because not all five criteria were met. “Severe” is not defined in the legislation but in the ministry’s view, the diagnosis of a serious medical condition does not in itself establish a severe impairment of mental or physical functioning. The PWD medical reports ask for information on functional skills and abilities and the panel finds that the ministry’s assessment of severity based on daily function is a reasonable interpretation of the legislation.
Mental and physical impairment - specific considerations To assess the severity of a mental impairment, the ministry considers the extent of any impact on daily functioning as evidenced by limitations/restrictions with mental functions and emotion. The ministry does not only look at the diagnosis or a medical practitioner’s comment that the condition is “severe” but considers functional abilities and whether there are restrictions to DLA requiring mental/social functioning including any safety issues. The panel finds that an assessment of severity based on cognitive, emotional, and social functioning is a reasonable interpretation of the legislation.
To assess whether the applicant has a severe physical impairment, the ministry considers information on the degree of restrictions to physical functioning and whether the applicant requires significant help or any assistive devices to manage physical tasks. The panel finds that the assessment of severity based on daily physical functioning is a reasonable interpretation of the legislation.
Panel’s decision - mental impairment The panel has considered the evidence in its entirety and finds that the ministry was reasonable to conclude the appellant does not have a severe mental impairment. In the SR, the appellant reports problems with communication (“I get confused in what is being said or don’t understand”) and she described many interpersonal difficulties in the RFR submission. However, Dr. A. did not report any problems with communication in the MR and AR and the impairment had no impact on Language.
The appellant’s depression was assessed in the AR as having a moderate impact on emotion and memory and concentration was only impacted “at times” despite mental functioning being “affected on a regular basis due to mood disorder and chronic pain.” Furthermore, the social difficulties reported by the appellant were not endorsed by Dr. A who indicates that all areas of social functioning are independent despite the appellant’s struggles with depression and a lack of motivation due to pain. Based on the information in the PWD application, the panel finds that the ministry was reasonable to conclude that a severe mental impairment was not established on the evidence.
Panel’s decision - physical impairment The panel has considered the evidence in its entirety and finds that the ministry was reasonable to conclude the appellant does not have a severe physical impairment. Despite chronic back pain that “impairs ability to sit, stand, walk, and carry” (MR), Dr. A assessed the appellant as independent with all physical functions. In the MR, most physical functions including the appellant’s ability to walk, climb stairs, and lift, are rated in the middle range (able to walk 1-2 blocks unaided, climb 2-5 steps unaided, and lift 5 to 15 pounds). Only remain seated was assessed with the highest degree of restriction::less than hour, “limited to 30 minutes at a time.”
The doctor explains that the appellant cannot walk more than 2 blocks before feeling pain. The appellant navigates stairs one step at a time and “requires support”, described as “use of railing.” Lifting is limited to no more than 10 pounds at a time and carrying is also “limited due to pain.” In the SR, the appellant describes pain that is so severe that it makes her flinch, grimace, or limp when walking but she does not disagree with Dr. A’s assessments of the
EAAT003 (17/08/21) 11
Appeal Number 2022-0082 amount of activity she can do. Based on the information in the PWD application including the SR, the panel finds that the ministry was reasonable to conclude that the appellant retains a sufficient degree of physical ability “to meet daily functioning requirements.”
The appellant presents a more restricted picture of her physical abilities in her submissions for the reconsideration and appeal. The appellant maintains that Dr. A’s assessment of the ability to walk is no longer accurate because her condition has worsened to the point where she feels pain upon walking less than one block. The appellant indicates using a walking stick for walking and she describes many instances where she supports herself with objects (mattress, counter, stair railing, car door, etc.) in order to execute various movements. The appellant said that when she tries to do yard work, she has to use the building, trees, or fence to support herself in both walking and getting up, and she also uses objects to brace herself at home.
While the appellant reported many more impacts which she says are due to her worsening condition, the additional restrictions that she describes are not corroborated by a medical opinion. There was no additional information from Dr. A prescribing any assistive devices or describing any physical findings that would explain why the appellant’s back pain has become markedly worse in the past few months. The appellant indicates in the pain questionnaire that she had a recent imaging test done on her spine (either an MRI or CT scan or X-ray in 2021) but she has not included the results/or interpretation report and she does not say what the findings were.
Both the doctor and the appellant agree that the condition is longstanding and has gotten progressively worse over the years (a 19-year period as stated to the MR) but the appellant maintains that her physical functions have worsened significantly since Dr. A filled out the forms in November 2021. The appellant said she is “more than willing to get another medical report done” but none was submitted for the reconsideration or appeal. In the panel’s view, it would have been reasonable for the appellant to obtain a new assessment from Dr. A. given that she perceives her condition to be so much worse than when the PWD forms were completed. Instead, the appellant indicates that she came to realize the severity of her impairment through speaking with her friend rather than her doctor.
The panel therefore finds that the additional information from the appellant falls short of establishing a severe physical impairment. The appellant continues to carry out various physical tasks independently including navigating stairs one step at a time, unloading groceries very slowly (as she can only carry a little at a time), and picking things up off the floor by kicking the item to a wall or counter and extending her leg out to help her bend over. As well, the appellant is pursuing some yard work at home.
The panel acknowledges the appellant’s struggles in managing her pain but despite pain, the record indicates that the appellant continues to perform her physical functions in order to manage on her own with most assistance coming from furniture, railings, or other objects rather than an assistive device as defined in the legislation. The panel finds that the reconsideration decision was reasonable and a severe impairment of either physical or mental functioning has not been established on the evidence as required under section 2(2) of the EAPWDA.
Restrictions to daily living activities Arguments Appellant The appellant acknowledges that Dr. A “did check independent for a lot of the boxes” but she notes that some restrictions were reported and she argues that the ministry should have given these restrictions more weight. In addition, the appellant submits that many activities should not have been marked as independent because they take her 3 to 4 times longer to do.
The appellant argues that she is restricted in activities such as budgeting, taking medications as directed, getting in and out of a vehicle, doing laundry, regulating diet, making appropriate food choices, going to and from stores, food preparation and cooking, bathing and dressing, and other activities that Dr. A marked as independent. The appellant argues that she is more restricted than when Dr. A filled out the assessments because her condition has “progressively worsened.”
EAAT003 (17/08/21) 12
Appeal Number 2022-0082
Ministry The ministry acknowledges that Dr. A indicates that some DLA take longer and are difficult for the appellant due to pain. However, the ministry did not view taking one and a half times longer to do housework, food preparation, and cooking as a significant restriction given that the appellant is independent with the majority of activities, even those that are “difficult and painful” such as transfers (bed and chair). The ministry notes that activities are independent despite the appellant’s limitations with lifting, walking and standing.The ministry acknowledges that the appellant said that most DLA take her 2-4 times longer (SR) but states that the ministry must rely on the assessments of medical professionals to determine whether the impairment directly and significantly restricts DLA.
Legislative requirement Subsection 2(2)(b)(i) of the EAPWDA requires the ministry to be satisfied that, in the opinion of a prescribed professional, a severe impairment directly and significantly restricts a person’s ability to perform DLA either continuously, or periodically for extended periods. This means that restrictions to DLA must be confirmed by the appellant’s doctor or one of the practitioners named in the legislation such as a psychologist or occupational therapist.
The term “directly” means that the severe impairment must cause or result in restrictions to activities. The direct restriction must also be significant. This means that not being able to do DLA without a lot of help, or support from an assistive device will have a large impact on the person’s life.
Finally, there is a time or duration factor: the restriction may be either continuous or periodic under the legislation. Continuous means that the activity must generally be restricted all the time. The ministry views a periodic restriction as significant when it occurs frequently or for longer periods of time; for example, the activity is restricted most days of the week, or for the whole day on the days that the person cannot do the activity without help or support.
The panel views the ministry’s interpretation of the legislation as reasonable. Accordingly, where the evidence indicates that an activity takes significantly longer to perform as was indicated in the AR for several DLA, it is appropriate for the ministry to require information on how much longer the activity takes as well as details about the help or support that is needed. With that information, the ministry can assess whether the legislative requirement is met.
DLA are defined in section 2(1) of the EAPWDR and are also listed in the MR, with additional details in the AR. Therefore, the doctor or other practitioner completing these forms has the opportunity to indicate which, if any, DLA are significantly restricted by the applicant’s impairments either continuously or periodically for extended periods and to provide additional details. It is important to note that the ability to work is not consideration a DLA under the legislation.
Regarding how many DLA need to be impacted for the legislative requirements to be met, the BC Supreme Court decision Hudson v. Employment and Assistance Appeal Tribunal [2009 BCSC 1461] stated that there must be evidence from a prescribed professional indicating a direct and significant restriction on at least two DLA. Not all DLA need to be affected by the severe impairment.
Panel’s decision - restrictions to DLA The panel finds that the ministry was reasonable to find that DLA are not significantly restricted in the opinion of the prescribed professional (Dr. A) as required by the legislation. As the appellant notes, Dr. A. does indicate some restrictions with DLA but for the reasons that follow the panel finds that the ministry was reasonable to conclude that the restrictions reported by Dr. A. are not significant restrictions.
In the MR, Dr. A. reports that Basic housework is continuously restricted because activities such as sweeping and mopping “are limited by pain” and housework takes longer when there is no one to help the appellant. In the AR,
Dr. A. indicated that Basic housekeeping takes the appellant one and half times longer than typical, as do Food preparation and Cooking. While the appellant says that these and most other DLA actually take up to 4 times longer, she has not provided any information from Dr. A to confirm that degree of restriction. The panel finds that
EAAT003 (17/08/21) 13
Appeal Number 2022-0082 the ministry was reasonable to conclude that the taking one and half times longer is not a significant restriction when at the same time, the majority of DLA are independent in the opinion of Dr. A.
In the MR, Mobility outside the home is continuously restricted but in both the MR and AR, Shopping, including Going to and from stores is not restricted. The appellant provides additional detail in the RFR submission about her difficulties with shopping including being very hunched over on getting out of her vehicle, needing “several days” to unload items, and making unnecessary purchases because her judgment is clouded by pain. However, these restrictions are not endorsed by Dr. A. and therefore do not meet the legislative requirement for significant restrictions to be in the opinion of a prescribed professional.
Similarly, the appellant describes many issues with social functioning including communication problems, not reciprocating contact with friends or family (“very disrupted functioning”), and being very isolated much of the time. While Dr. A. indicates that Social Functioning is continuously restricted due to chronic depression which affects the appellant’s motivation (MR), in the AR the appellant is independent with all areas of social functioning; she has marginal functioning with her social networks, and no safety concerns were indicated.
The appellant indicates that she may have minimized her daily struggles in the original PWD forms and it was not until she talked with her friend that she realized the full impact of her disability on her daily life. It would therefore have been reasonable to obtain a new medical assessment but none was submitted. The appellant is on the wait list for a pain clinic but there is no indication that she could not have seen Dr. A. for an updated assessment given that she is a regular patient who has seen Dr. A. 11 or more times in the past years according to the information in the MR and AR. Without any new medical information, the panel finds that the ministry’s decision was reasonably supported by the evidence and significant restrictions to DLA were not established under subsection 2(2)(b)(i) of the EAPWDA.
Help with daily living activities Arguments Appellant The appellant maintains that she doesn’t have any help from other people as her family member lives out of town and she only met one of her neighbours on a single occasion. The appellant said she gets store clerks to help her with heavier grocery items while shopping; she uses a walking stick for walking, and she braces herself with a wide variety of objects including furniture, railings, and the car door.
Ministry In the reconsideration decision, the ministry acknowledges Dr. A’s information that the appellant gets help with DLA from family when they are in town, and the appellant was prescribed an assistive device (CPAP) for sleep apnea. The ministry argues that the criteria for help was not met because DLA are not significantly restricted, and it could therefore not be determined that significant help from other persons, or from an assistive device, is required.
Legislative requirement Subsection 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 to perform DLA. An “assistive device” is defined in section 2(1) of the EAPWDA as a device specifically 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.
EAAT003 (17/08/21) 14
Appeal Number 2022-0082 Panel’s decision - help with daily living activities The panel finds that the ministry reasonably determined that the help criteria were not met. Other than CPAP for sleep apnea, Dr. A. does not indicate the need for any assistive devices despite the appellant’s mobility limitations due to pain.
In the RFR submission, the appellant reports using a walking stick for walking but there is no indication that it was prescribed by a doctor. While the appellant reports hanging onto many different objects to assist her with stairs, shopping, picking things up, and other physical tasks, objects such as stair railings, counters, and outdoor fences do not meet the definition of assistive device under the EAPWDA.
While it is reasonable to expect that the appellant would need help with DLA as her conditions continue to progress, the legislation requires confirmation of direct and significant restrictions to DLA as a precondition for needing help to perform DLA. The panel found that the ministry’s determination that significant restrictions to DLA were not established on the evidence was reasonable because most DLA were assessed as independent or taking less than 2 times longer, and the appellant’s additional submissions did not include any new medical information. The panel therefore finds that the ministry’s conclusion that the criteria for help under subsection 2(2)(b)(ii) of the EAPWDA were not met, was a reasonable application of the legislation.
Conclusion The panel considered the information in its entirety and finds that the ministry’s reconsideration decision is reasonably supported by the evidence. To be eligible for PWD designation, the legislation requires all the criteria to be met. The ministry was reasonable in finding that only the age and duration requirements were met because there was insufficient medical evidence to confirm the appellant has a severe impairment that significantly restricts DLA continuously or for extended periods, and that the appellant therefore needs help with DLA.
The panel acknowledges that appellant’s detailed self-reports but finds that the ministry was reasonable to require medical information to complement the appellant’s assessments of her condition. The panel finds that the ministry reasonably applied the legislative requirements to the information provided. The panel confirms the reconsideration decision. The appellant is not successful in her appeal.
EAPWDA
Schedule – Relevant Legislation
2 (1) In this section: "assistive device" means a device designed to enable a person to perform a daily living activity that, because of a severe mental or physical impairment, the person is unable to perform;
"daily living activity" has the prescribed meaning; "prescribed professional" has the prescribed meaning. (2) The minister may designate a person who has reached 18 years of age as a person with disabilities for the purposes of this Act if the minister is satisfied that the person is in a prescribed class of persons or that the person has a severe mental or physical impairment that
(a) in the opinion of a medical practitioner or nurse practitioner is likely to continue for at least 2 years, and (b) in the opinion of a prescribed professional
EAAT003 (17/08/21) 15
Appeal Number 2022-0082 (i) directly and significantly restricts the person's ability to perform daily living activities either (A) continuously, or (B) periodically for extended periods, and (ii) as a result of those restrictions, the person requires help to perform those activities. (3) For the purposes of subsection (2), (a) a person who has a severe mental impairment includes a person with a mental disorder, and (b) a person requires help in relation to a daily living activity if, in order to perform it, the person requires (i) an assistive device, (ii) the significant help or supervision of another person, or (iii) the services of an assistance animal. (4) The minister may rescind a designation under subsection (2). EAPWDR Definitions for Act 2 (1) For the purposes of the Act and this regulation, "daily living activities", (a) in relation to a person who has a severe physical impairment or a severe mental impairment, means the following activities:
(i) prepare own meals; (ii) manage personal finances; (iii) shop for personal needs; (iv) use public or personal transportation facilities; (v) perform housework to maintain the person's place of residence in acceptable sanitary condition; (vi) move about indoors and outdoors; (vii) perform personal hygiene and self-care; (viii) manage personal medication, and (b) in relation to a person who has a severe mental impairment, includes the following activities: (i) make decisions about personal activities, care or finances; (ii) relate to, communicate or interact with others effectively.
(2) For the purposes of the Act, "prescribed professional" means a person who is
EAAT003 (17/08/21) 16
Appeal Number 2022-0082
(a)authorized under an enactment to practise the profession of (i) medical practitioner, (ii) registered psychologist, (iii) registered nurse or registered psychiatric nurse, (iv) occupational therapist, (v) physical therapist, (vi) social worker, (vii) chiropractor, or (viii) nurse practitioner,
EAAT003 (17/08/21) 17
APPEAL NUMBER 2022-0082 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) ☐ Section 24(2)(a)☒ or Section 24(2)(b) ☐
Part H – Signatures Print Name Margaret Koren
Print Name Carla Tibbo Signature of Member
Print Name Jennifer Armstrong Signature of Member
EAAT003 (17/08/21)
Date (Year/Month/Day) 2022/05/31
Date (Year/Month/Day) 2022/05/31
Date (Year/Month/Day) 2022/05/31
Signature Page