Issue
[1] The Appellant disagrees with the Director’s December 14, 2015 decision that she was not a person with a disability, as defined in section 4 of the Ontario Disability Support Program Act, 1997 (the Act). The Director determined that the impairments were not substantial and also that there were no substantial restrictions in one or more of the activities of daily living listed in section 4(1) of the Act.
Decision
[2] The Tribunal is satisfied that the Appellant was a person with a disability within the meaning of section 4(1) of the Act.
Reasons
Applicable Law
[3] In order to be considered a “person with a disability” for the purposes of the ODSPA, an Appellant must meet the requirements of section 4(1) of the Act.
(1) A person is a person with a disability for the purposes of this Part if, the person has a substantial physical or mental impairment that is continuous or recurrent and expected to last one year or more; the direct and cumulative effect of the impairment on the person’s ability to attend to his or her personal care, function in the community and function in a workplace, results in a substantial restriction in one or more of these activities of daily living; and the impairment and its likely duration and the restriction in the person’s activities of daily living have been verified by a person with the prescribed qualifications.
[4] Section 23(10) of the Act states that the onus is on an Appellant to satisfy the Tribunal that the decision of the Director was wrong.
Verification of Impairments, Duration and Restrictions
[5] The 40 year-old Appellant’s application for income support as a “person with a disability” relied on the following conditions: sternoclavicular joint osteoarthritis (right), knee pain, chronic pain/fibromyalgia, and major depression. These conditions resulted in the following verified impairments: right arm pain with movement, knee pain intermittent, difficulty with pain various places/various times, lack of concentration, helpless/hopeless, and fatigue. The Tribunal is satisfied that the Appellant’s impairments were continuous or recurrent and expected to last one year or more as verified in Exhibit R1.
[6] The Act also requires that the restrictions in a person’s activities of daily living have been verified by a person with appropriate qualifications. In that regard, the Tribunal is satisfied that the Appellant has the following verified restrictions: difficulty carrying groceries, difficulty with housework, pain with walking doing usual household tasks, intermittent down times when the process flares up, and exhausted and stressed by ADL’s taking care of household and 3 kids.
Substantial Impairments and Restrictions
[7] In addition to the requirement for proper verification, in order to be found to be a “person with a disability” under subsection 4(1) of the Act, an Appellant must satisfy the Tribunal that he or she had a physical or mental impairment that met the threshold of substantial, and that the direct and cumulative effect of the impairment resulted in a substantial restriction in his or her ability to attend to personal care, function in the community, or function in a workplace, at the time of the Director’s decision. The legislation requires the Appellant to meet both of these thresholds of “substantial” in order to be determined to be a “person with a disability.”
Substantial Impairments
[8] With respect to the definition of “person with a disability” guidance has been provided by the Ontario Court of Appeal in Gray v. Director, Ontario Disability Support Program (2002), 59 O.R. (3d) 364 (C.A.). In this case the Court dealt with the important issue of the appropriate determination of substantial impairment within the meaning of s. 4(1) of the Act.
[9] The Court held that “compared with its predecessor and with similar federal legislation, it would appear that the current definition of ‘person with a disability’ in the ODSPA was intended to encompass a broader segment of society and to provide assistance to persons with significant but not severe long-term functional barriers”.
[10] The Court also held that when interpreting the word “substantial” in s.4(1)(a) of the Act “the word should be given a flexible meaning related to the varying circumstances of each individual case in a manner consistent with the purposes of the Act.”
[11] The Court of Appeal in Crane v. Ontario (Disability Support Program)(2006), 278 D.L.R. (4th) 374, stated that s.4(1) presents three separate tests that require separate analysis and answers. The onus is on the Appellant to establish all three factors. However, the Court went on to say that in some cases, not all, there can be an overlap of evidence relevant to the factors in paragraphs (a) and (b) of s.4(1). This is because although the concept of impairment is anchored in medicine, the determination of whether an impairment is substantial will require consideration of the whole person, including a person’s ability to function in the domains of personal care, community and workplace.
[12] The Tribunal considered the totality of the evidence before it, including the documents submitted as part of the application for disability, the supplementary medical evidence received by the Tribunal, the Appellant’s oral testimony, and the submissions from the parties. While the Tribunal is satisfied that the Appellant had a substantial impairment resulting from her chronic pain/fibromyalgia and sternoclavicular joint osteoarthritis at the time of the Director’s decision (see below), the Tribunal is not satisfied that the Appellant’s knee pain resulted in a substantial impairment for the following reasons: diagnostic imaging of the knee was not done until a year after the date of the Director’s decision, the Appellant’s orthopedic surgeon did not prescribe any significant treatment for her knee pain and did not think physiotherapy was required (although it is noted that the Appellant was prescribed physiotherapy from a walk in clinic, but this treatment never occurred), the physical examinations done of the Appellant’s knee in the various reports did not identify any significant symptomology, and the Appellant did not require the use of any assistive devices (e.g. cane, walker) with respect to her knee impairment. The Tribunal is also not satisfied that the Appellant’s major depression resulted in a substantial impairment on its own because the Appellant was never referred to a mental health professional (e.g. psychologist, psychiatrist). With that being said, the Tribunal accepts that the Appellant’s mental health impairments were secondary to her physical impairments and finds it appropriate to consider them in this context.
[13] With respect to the documentary evidence, the Intellectual and Emotional Wellness Scale (IEWS) identified the Appellant as having Class 3 ratings (i.e. assistance from another person required in order to complete the activities specified, safety concerns, moderate symptoms or signs) with respect to emotion and motivation and Class 2 ratings (i.e. no assistance from another person is required to complete the activities specified, some safety concerns, minimal symptoms or signs) with respect to consciousness, lack of insight, intellectual function, judgment, learning, motor behaviour, and thinking. As noted above, the Tribunal did not find the Appellant’s mental health impairments to be substantial on their own because they did not warrant treatment from a mental health professional. However, as also noted above, the Tribunal accepts that the Appellant’s mental health impairments were secondary to her physical impairments and found it appropriate to view them as a dimension of the Appellant’s physical impairments. As such, the Tribunal viewed the ratings on the IEWS and the fact that the Appellant was experiencing mental health repercussions from her physical impairment to be supportive of a finding that the Appellant’s physical impairments were substantial.
The Activities of Daily Living Index (ADLI) identified the Appellant as having Class 3 limitations (i.e. requires considerably longer time to complete the task and may on some occasions be unable to complete the task with or without accommodations and with or without moderate pain) with respect to ‘attention span is sustainable and appropriate to task’; ‘physical strength commensurate with person’s age and sex’; ‘ability to participate physically in sustained activity’; and ‘do housekeeping’ and Class 2 limitations (i.e. may result in slightly longer time requirements to complete the task or mild exacerbation of pain OR accommodation may be required to complete the task) with respect to ‘responds within normal limits to situations requiring memory’; ‘able to stand’; and ‘able to sit for a sustained period’. While moderate ratings can lean towards the mild or towards the severe, the Tribunal finds, given the other evidence and the Appellant’s testimony noted below, that they lean more towards the severe in this case and are suggestive of substantial impairment.
[14] The Tribunal also found the additional medical information to be supportive of a finding of substantial impairment. The physiatrist’s report dated March 10, 2016 noted that the Appellant had experienced some improvement with a change in her medication, but that she still experienced “considerable pains diffusely throughout her body”. The Tribunal found the persistence and degree of symptomology, despite pharmacological intervention and titration, to be suggestive of substantial impairment.
[15] The Tribunal also notes from the Appellant’s testimony that the dosage of the Appellant’s pain medication continues to be increased, with the last increase occurring 4 months ago. The Tribunal also found the family physician’s opinion persuasive with respect to a finding of substantial impairment. More specifically, in his letter dated January 9, 2016, the physician states that the Appellant has moderate to severe fibromyalgia impairing her function. She also has a right sternoclavicular arthritis which impairs the function of her right (dominant) arm. These conditions cause her problems with ADLs and interfere with her ability to work. Both conditions are continuous; both also flare at times causing periods where she is bed-bound. Both have been resistant to multiple therapies. In my medical opinion she is unable to maintain a full-time job because of these issues. The Tribunal found the opinion of the Appellant’s family doctor regarding the Appellant’s inability to work particularly persuasive in this matter as the doctor was in a good position to assess the Appellant’s situation having known the Appellant for 14 years and seeing her 6- 10 times in the year prior to completing the Appellant’s application for disability benefits.
[16] With respect to the oral evidence, the Tribunal found the Appellant’s testimony to be credible, largely consistent with the documentary evidence, and supportive of a finding of substantial impairment. The Appellant experienced substantial and constant pain which interfered with her ability to work, drive, take public transit, sleep, stand, sit, walk, do laundry, climb stairs, cook, do housekeeping, lift/carry, shop for groceries, and interact with her children. The pain medication prescribed to the Appellant provided some relief, but it was not sufficient so as to ameliorate the substantial nature of her impairments. In addition, the Appellant had mental health impairments secondary to her physical impairments which caused her to have low moods, frequent crying spells, and a desire to die and this interfered with her ability to socialize and maintain friendships. Overall, the Tribunal found the Appellant’s self-described symptomology supportive of a finding of substantial impairment.
[17] While the Tribunal found the Appellant’s testimony to be credible regarding her impairments and restrictions, she did not appear to have good insight into her diagnoses or treatment options. As a result, the Tribunal was not persuaded that the Appellant had received maximal intervention for her impairments yet (e.g. pain clinic, aqua therapy). The Tribunal finds in this case that the lack of more significant interventions does not indicate a lack of substantiality, but rather that the Appellant should be given a shorter review period as her impairments may improve with greater intervention.
[18] Thus, on the whole of the evidence, and on a balance of probabilities, the Tribunal finds that the oral and documentary evidence establishes that the Appellant had a substantial impairment on the date of the Director’s decision.
Substantial Restrictions
[19] The remaining issue for the Tribunal is whether these substantial impairments, individually or cumulatively, result in substantial restrictions in one or more activities of daily living – that is the ability to function in the community, the workplace or attend to personal care.
[20] In Director, Ontario Disability Support Program v. Gallier, [2000]101 A.C.W.S. (3d) 642 the Court ruled that in considering whether an Appellant is substantially restricted in activities of daily living the Tribunal is “entitled to consider the applicant in the context of her own situation…The test is not whether any person with these impairments and restrictions met the criteria, but whether this person met the criteria.”
[21] The Tribunal is persuaded that the Appellant’s substantial impairments result in substantial restrictions in the Appellant’s ability to function in a workplace. The Tribunal finds that the self-described limitations the Appellant experienced with respect to engaging in various forms of physical activity and in her ability to engage in household tasks demonstrates that she would have had difficulty performing in a workplace. The Tribunal also finds that the Appellant’s secondary mental health impairments, particularly her low energy and poor motivation, would have substantially restricted her ability to function in a workplace. The Tribunal finds the medium/moderate limitations identified on the ADLI supportive of the Appellant’s testimony and the finding that she would be substantially restricted in her ability to engage in employment. As noted above, the Tribunal places significant weight on the opinion of the Appellant’s physician that the Appellant was not able to work. The Tribunal also finds that the frequency and level of pain experienced by the Appellant from her conditions would interfere with her ability to engage in employment. For these reasons, the Tribunal finds that the Appellant’s substantial impairments resulted in substantial restrictions in her ability to function in a workplace.
[22] While there was other evidence regarding restrictions in personal care and functioning in the community, the Tribunal finds it unnecessary to delve into these as substantial restriction in any one area is sufficient to meet the legislative test as a person with a disability.
[23] Section 5(1) of Ontario Regulation 222/98 under the Act, provides there shall be a review date for a determination that a person is a person with a disability unless the decision maker is “satisfied that the person’s impairment is not likely to improve.” The Tribunal is satisfied that it is appropriate to set a date because the Appellant has not received maximal intervention for her impairments as of yet and they may improve with treatment.
Order
[24] The appeal is granted. The decision of the Respondent Director is rescinded. The Tribunal orders that if otherwise eligible, income support shall be paid to the Appellant in accordance with section 17 of O. Reg. 222/98 made pursuant to the Act.
[25] A review date under section 5(1) of O.Reg. 222/98 under the ODSPA is set for 2 years from the date of this Order.