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Issue

[1] The Appellant disagrees with the Director’s May 9, 2017 decision that he is 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 is a person with a disability within the meaning of section 4(1) of the Act.

Preliminary Issues

[3] In this case the Appellant’s doctor completed the Health Status Report (HSR) with two conditions and verified one condition, anxiety as expected to last one year or more but verified the other condition, 18% body burn both upper and lower extremities, as expected to last less than one year. The Respondent’s representative disputed that the condition of 18% body burn both upper and lower extremities was verified as expected to last one year or more by a medical professional.

[4] In order to be verified a person with prescribed qualifications must confirm impairments and resulting restrictions are “expected” or “likely” to last more than one year (see section 4(1)). The case law is clear that absent this verification regarding the duration and nature of impairments and restrictions an appeal must fail. The Divisional Court reviewed this requirement in the decision of Director, Ontario Disability Support Program v. Cumming, Divisional Court, Divisional Court File No. 992569DV, September 4, 2001. O’Leary, Stayshyn, Zelinski, JJ, unreported and Director ODSP v. Cherryholme, 2010 OSCJ 3259 (CanLII) for examples).

[5] No additional medical evidence was made available to satisfy the statutory requirement for verification. The legislation requires the person to have a substantial physical or mental impairment that is continuous or recurrent and expected to last one year or more and verification of this fact must be provided by a person with the prescribed qualifications. In the circumstances of this appeal for the one condition, 18% body burn both upper and lower extremities, the Appellant does not meet the requirements of the legislation.

[6] The Tribunal is bound by the legislation and the Divisional Court decisions. For these reasons, the Tribunal finds that the Appellant fails the first test under the legislation and for this reason, the Tribunal did not consider the Appellant’s condition of 18% body burn both upper and lower extremities. The Tribunal proceeded to consider the other condition in this matter.

Reasons

Applicable Law

[7] 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,

1. the person has a substantial physical or mental impairment that is continuous or recurrent and expected to last one year or more;
2. 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
3. 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.

[8] 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

[9] The Appellant’s application for income support as a “person with a disability” relies on the condition of anxiety. This condition has resulted in the following verified impairments of anxiety for 12 years, seeing his family physician, just registered with doctor recently.

[10] The Tribunal is satisfied that the Appellant’s impairments for the condition of anxiety are continuous or recurrent and expected to last one year or more because they have been verified by the Appellant’s doctor. The Tribunal finds that two of the listed impairments are not actual impairments – seeing his family physician and just registered with the doctor recently. These statements are comments that describe background information and do not constitute physical or mental impairments regarding the Appellant’s capabilities. They will not be considered to be impairments for the purposes of this appeal. The Tribunal decided to proceed with the one impairment listed, anxiety for 12 years.

[11] 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: low mood, was able to work as a truck driver – his burn aggravated his mood change.

Substantial Impairments and Restrictions

[12] 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

[13] 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.

[14] 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”.

[15] 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.”

[16] 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.

[17] The Tribunal is satisfied that at the time of the Director’s decision the Appellant’s impairment was substantial. The Tribunal carefully reviewed the documentary evidence and had the benefit of the sworn testimony of the Appellant. The Tribunal found the evidence persuasive on a balance of probabilities.

[18] The Appellant was 53 years old at the time of the Director’s decision. He appeared with his representative and an interpreter was used. He is single and lives in his sister’s basement with his sister and her daughter. The Appellant has a teen daughter who lives with her mother. The Appellant completed a graduate degree in psychology at university in his home country and in Canada had passed a training course in hypnotherapy. He attended university in Canada but did not complete his studies. He last worked as a truck driver. In November 2016, the Appellant was involved in a propane explosion in his truck. He testified that immediately upon surveying the damage and realizing his truck was destroyed, he attempted suicide by cutting his arms. Bystanders called for emergency help and he was rushed to the hospital and received skin grafts for the burns to his upper extremities and treatment for lacerated arms. While the condition of burns as a result of the explosion is not being considered by the Tribunal, it is this condition that caused him to leave work and led to his other condition which is before me today.

[19] The documentary evidence provided indicates that after the Appellant received treatment at the hospital first for the burns then he was transferred to the psychiatric section of the hospital under a Form 1 procedure allowing the hospital to hold the patient for psychiatric assessment. According to the hospital records, the Appellant spent over three weeks in hospital, part of the time in receiving psychiatric treatment for depression, anxiety and suicidal ideation.

[20] The Appellant recounted that he was diagnosed with depression and anxiety around 2003, fifteen years prior to the incident. At the time he was a married student at university. He stated that his marriage was having problems and he was incapable of continuing working. He testified that his depression and anxiety had been managed by Effexor 75 mg. for the past fifteen year. The Appellant attested that the severe anxiety began with an anxiety attack over one year ago following the explosion. In the hospital, his dosage of Effexor was increased to 150 mg. and he stated that his dosage has been gradually increased to 300 mg. He also has been prescribed Pregabalin for anxiety and Zopiclone for sleeping since the incident. The Appellant testified that the benefits of the anxiety medication are short term when first increased, that it works for a week or so and then he is back to being anxious again. He stated that the increased doses caused loss of concentration, an inability to focus and that he is very tired and sleepy.

[21] The Appellant affirmed that he received psychological treatment from three specialists while in the hospital, and the hospital records confirm a psychiatrist, a resident psychiatrist and a social worker. He stated that he attended group therapy in the hospital but it did not help at all, that he found sitting difficult, listening and concentrating hard and that he had severe anxiety. He stated that although he did not understand some of the words in the therapy, they showed pictures he could follow. He stated that the group therapy made his anxiety worse and for this reason he did not follow up with the recommended group therapy at his local hospital.

[22] The Appellant’s description of his symptoms supports a finding of substantial impairment,. He described the anxiety as causing constant sweating, severe stomach aches, and that he is hot in his face and hands and has to constantly wash both. He prefers to stay alone in his room and doesn’t want to see anyone. He stated that about once or twice a week he suffers severe anxiety for no apparent reason. The severe anxiety brings on panic attacks, bad stomach aches and vomiting and choking. He describes it as a feeling that something bad is going to happen.

[23] The Appellant described himself prior to the incident as having friends, spending time with his daughter shopping, playing tennis and driving her places. He stated that he cooked, did repairs and fixed things around the house before the incident. He was able to work and had invested in repairs to his truck. He testified that around the time of the Director’s decision he didn’t feel like going out, cooking or seeing friends. Because of his moods he didn’t find anything interesting and spent most of his days aimlessly surfing the internet. The Appellant was recommended for continued therapy after his release from the hospital but did not attend. He described the group therapy in the hospital as not working and he couldn’t see the point in more group therapy.

[24] The detailed surgical report and psychiatric clinical notes from the hospital dated between November 20, 2016 and December 13, 2016 along with the police report dated November 20, 2016 verify the Appellant’s testimony regarding the incident and suicide attempt and psychiatric treatments in the hospital.

[25] The Appellant’s doctor completed the Intellectual and Emotional Wellness Scale (IEWS) in the HSR rating the Appellant as having moderate safety concerns regarding emotion, particularly mood and anxiety, and regarding motivation (depressive). He scored minimal safety concerns regarding sleeping, (noted by the doctor as due to medications), learning – attention, and memory. The Disability Adjudication Unit (DAU) determined that the lack of severe ratings on the IEWS and the lack of outpatient psychotherapy are indicative that the Appellant’s impairments were not substantial. After having reviewed the evidence in the context of the Appellant’s testimony, the Tribunal does not agree with the Respondent’s position. While the Appellant experienced some temporary gains from increased dosages of his medications, his anxiety persisted most days and his condition was not sufficiently controlled by the medications.

[26] The hospital’s clinical notes from December 19, 2016 following discharge did describe the Appellant as feeling better at one point and planning a trip to his home country. On questioning by the Respondent’s representative, the Appellant testified that he had thought the trip would be good for him at the time, but he did not end up going for financial reasons. The hospital doctor’s clinical notes between December 2016 and January 2017 report increases in anxiety and stress issues and increases in his medications as treatment. The Appellant’s family doctor has provided therapy and monitored his medications since his hospital release.

[27] Although the Appellant’s doctor had only known him for one month at the time he completed the HSR on January 24, 2017, his follow up notes from that time period on up until the date of the Director’s decision detailed worsening stress and anxiety and increased medication for treatment. In his self-report completed January 31, 2017 and included in the HSR, the Appellant noted that he feels really empty and numb to the outside world, has no ambition or any interest in finding his way and cannot sleep even with the sleep medication.

[28] The Tribunal found the Appellant’s testimony to be credible. The Tribunal is satisfied that the Appellant’s sworn testimony is an accurate and true reflection of the Appellant’s circumstances and indicative of his substantial impairments and limitations caused by his condition of anxiety. The Tribunal also accepts that the Appellant provided genuine and compelling testimony, without magnification or exaggeration at the appeal hearing, and he was honest and sincere in his descriptions, answers and explanations about the effects of his condition and circumstances.

[29] The Tribunal was persuaded by the Appellant’s self-report and his clear and cogent testimony that his ongoing anxiety with intermittent severe anxiety attacks affected his mood and motivation. The Tribunal also gave weight to the detailed medical evidence that chronicled the Appellant’s progression of anxiety and escalating pharmacological treatment. Having considered all of the evidence relevant to the Director’s decision date and the Appellant’s testimony, the Tribunal found the evidence overall to be persuasive and the Appellant’s impairments due to his anxiety to be substantial.

Substantial Restrictions

[30] 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.

[31] 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.”

[32] For the following reasons the Tribunal is persuaded that the Appellant’s ability to function in a workplace is substantially restricted by his substantial impairment.

[33] The Appellant affirms that at the time of the Director’s decision he suffered anxiety that decreased his mood and affected his family life, his social life, and his ability to work as a truck driver. He testified that he suffers severe anxiety when he sees a truck. He described his anxiety around the date of the Director’s decision as in the 8 -9 range on a scale of 1 to 10, with 1 constituting little to no anxiety and 10 constituting intense anxiety. Although he shares custody of his daughter, he stated that he only saw her about twice a month. He affirmed that she is a teen and wants to spend more time with her friends, but stated that prior to his increased anxiety, he would drive her around and take her shopping. Due to his increased anxiety, he attested that he does not feel ready to go out or do the things he did before. The Appellant testified that he does not return friends’ phone calls and does not participate in family activities. He described being frightened when he is near a truck and that he feels he could not pass the tests for the special license required to drive a truck.

[34] The doctor rated the Appellant on the Activities of Daily Living Index (ADLI) as having moderate limitations with respect to his ability to participate physically in sustained activity and mild limitations regarding memory, attention span, physical strength and personal hygiene. The Appellant testified that his ongoing anxiety affected his abilities to function in his daily life by preventing him from doing housekeeping, cooking and shopping. He testified to being disinterested in these activities and that he relied on his sister to cook and clean. He stated that he only goes out for a walk when his sister pushes him to come out. The Appellant described the anxiety attacks as beginning when he wakes up in the morning then he takes his pills, and the severity and frequency of the attacks is lessened as the day goes on and the medication takes effect. He may have the physical ability to perform tasks but has testified that he does not have the interest to follow up with any activities. This was verified by the ratings in the IEWS. The doctor indicated 2 moderate ratings in anxiety and motivation. The Tribunal found these ratings to be significant and in keeping with the Appellant’s testimony.

[35] The Tribunal is convinced that the Appellant would not be able to return to his previous work as a truck driver given his distress at the sight of a truck and his lack of the required licensing. Given the Appellant’s isolation, his lack of motivation and energy and his described side effects of his medications including lack of concentration, inability to focus and tiredness, the Tribunal is of the view that on the balance of probabilities he would have had difficulties functioning in any type of workplace environment at the time of the decision. Accordingly, the Tribunal finds that at the time of the Director’s decision, the Appellant’s substantial impairment of ongoing anxiety and restrictions of mood change and unable to work as a truck driver resulted in substantial restrictions in his ability to function in the workplace.

Review of Disability Determination

[36] 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 of the Appellant’s age and his educational background, it is hopeful that with ongoing care and the right form of drug treatment he may engage more in life and his condition will improve. A two year review period is deemed reasonable.

Order

[37] 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.

[38] 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.