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Simon Shields, LLB

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Ontario Disability Support Program (ODSP) Law
(01 January 2016)

Chapter 9 - "Person with a Disability"

  1. Overview
    (a) General
    (b) Procedures Overview
    (c) The Disability Adjudication Unit (DAU)
    . Overview
    . Application Adjudications
    . Appeal Adjudications
    (d) Pre-Hearing Grants
    . How They Happen
    . Follow-Up
  2. Legal Elements of PWD Status
    (a) Overview
    (b) Medical Conditions ("Impairments")
    . Preliminary Comment
    . Practice Before the Tribunal
    (c) Duration (Prognosis)
    . Overview
    . The "Duration" Problem
    . "Target Date" and "Date of Onset"
    . Alternative Duration Evidence and Tactics
    . "Recurrent"
    (d) Functional Restrictions
    . Overview
    . General ADL Issues
    . Employment Functioning
    . Community Functioning
    . Practice Before the Tribunal
    (e) Causation
    . Overview
    . Social Factors: ODSP (Director) v Gallier
    . "Cumulative" Causation
    (f) Verification
    . Overview
    . Context
    . Qualified "Verification" Professionals
    .. For Diagnoses and Duration
    .. For Functional Restrictions
    .. Summary
    . Court Comments on "Verification"
    (g) "Substantial"
    . Overview
    . Judicial Comment re "Substantial"
  3. Substance-Dependence (Addiction) Exclusion
    (a) Overview
    (b) Analysis
    (c) Summary of the "Addiction Exclusion"
    (d) Is the "Addiction Exclusion" Illegally Discriminatory?
    (e) Hearing Tactics
    . Overview
    . Use the Addiction Evidence Positively
    . Where Necessary Argue the OHRC
    . Consent to a Trusteeship
  4. Appeal Case Preparation
    (a) Overview
    (b) Director's Submissions
    (c) Appellant's File Organization
    (d) Obtaining Medical Evidence
    (e) Supplementation and "Repair" of Medical Evidence
    (f) Problems with Medical Professional Compliance
    (g) Disclosure of Medical Evidence
  5. PWD Appeal Hearings
  6. Post-Grant Procedures
    (a) Overview
    (b) Date of Grant
    . Overview
    . Date of Grant Other Than Date Application Complete
    (c) Medical Review Date
    . Overview
    . Duration
    . Practice
  7. Divisional Court Appeals
    (a) Overview
    (b) Grounds of Court Appeal
    . Overview
    . Comment
    . Case Law

________________________________________


1. Overview

(a) General

The primary medical eligibility criteria for ODSP is being found to be a "person with a disability" ("PWD") (Note however that this NOT the only medical-related eligibility category: Ch.2, s.8 "Substitutes for PWD Status").

This chapter covers the law relating to PWD status, as well as procedural and tactical issues related to a PWD appeal hearing before the Social Benefits Tribunal ("SBT"). As PWD appeals before the SBT are the bulk of that tribunal's caseload, it is anticipated that many persons referring to this chapter are facing just such an appeal, and I have tried to write it with that in mind.

Effective conduct of such an appeal also requires a strong familiarity with the main procedural chapters in this program, in particular:

. Ch.10: Applications and Procedures
. Ch.11: Director Decisions
. Ch.12: Appeals and Other Remedies

Otherwise portions of this ODSP program that have particular relevance to a PWD appeal will be referred to as relevant.

(b) Procedures Overview

The medical phase of medical disability determination starts when the applicant receives a "Disability Determination Package" (DDP) from the Disability Adjudication Unit. The main form is the "Health Status and Activities of Daily Living Report" (commonly referred to as the "HS/ADL Report"). This form is designed by the Director of ODSP [Reg s.14(1)]. It has undergone several revisions in the past - and further revisions may be anticipated in the future. Which professionals who are qualified to complete HS/ADL Reports (and which parts of them) is discussed below in s.2(f): "Verification", below.

Along with the HS/ADL Report, another form (applicant-completed) called the Self-Report, and any additional medical reports supplied by the applicant are also considered by the "Disability Adjudication Unit" (DAU) in making their decision regarding PWD status [Act s.4(2)].

The application procedures leading up to the applicant receiving a "Disability Determination Package" (DDP) (ie. these required blank forms) are covered in Ch.10, s.2: "Applications and Procedures: Application Procedures".

(c) The Disability Adjudication Unit (DAU)

. Overview

The department of the ODSP Director that you will be dealing with for purposes of establishing medical eligibility is the "Disability Adjudication Unit", commonly referred to as the "DAU".

The DAU has several medical adjudicators, though such persons do not have to themselves be medical professionals. They review the materials supplied by the applicant: the HS/ADL Report, their Self-Report (if filed) and any additional medical evidence filed.

Part of the Disability Determination Package (DDP) is a medical consent from the applicant allowing the DAU to request medical records directly themselves. This authority is sometimes used (not that often) to request copies of existing medical records. However it is used by the DAU more frequently lately to correct omissions in the HS/ADL Report - particularly regarding duration (prognosis). [for more on the appellant's role in such "repair" see s.4(e): "Appeal Case Preparation: Supplementation and Repair of Medical Evidence"].

. Application Adjudications

The first "adjudication" conducted by the DAU is usually within 8-12 weeks of having received the completed DDP forms. If any substantial new medical evidence is submitted prior to them issuing this decision, they will review it - though this tends to slow the process down. It is much better to have one's additional medical evidence prepared and submitted WITH the DDP materials.

Of course, if such an "application adjudication" results in a finding of PWD status, then the applicant is now a "recipient" and can expect to be processed for full ODSP eligibility shortly [see s.6: "Post-Grant Procedures"].

. Appeal Adjudications

The DAU also re-adjudicates applications in the course of PWD appeals to the DAU. In particular, note [from Ch.12, s.1(n): "Appeals and Other Remedies: Appeal Process: Evidence and Submissions Disclosure"] the 30-day pre-hearing filing deadline for any additional medical evidence. The DAU always conducts a review of any additional medical evidence filed by that deadline (and sometimes after if special arrangements are made).

When these "appeal adjudications" are granted they result in "pre-hearing grants" [see sub-sec (d) below].

However, where the original refusal is upheld after an appeal adjudication, then the DAU will issue a new decision letter. Appellants often find these decision letters confusing, particularly as they tend to arrive mere days before their hearings are scheduled. I have seen numerous cases where unrepresented parties have neglected to attend their hearings, being unfamiliar with the process and believing the letter to "be" their appeal decision. Care must be taken to read any such letters carefully.

(d) Pre-Hearing Grants

. How They Happen

It is relatively common that properly-prepared appeal cases - having obtained and filed additional medical evidence within the required timelines - find that the pre-hearing adjudication results in a granting of eligibility as a "person with a disability" (PWD) (ie. a reversal of the refusal).

Such decisions - when they come - often come VERY CLOSE to the date scheduled for the appeal hearing - often a matter of 1 or 2 days before. In one case I argued the DAU grant letter was slipped under the door of the hearing room while the hearing was in progress, having been faxed by the DAU to the Tribunal offices.

. Follow-Up

When this happens the appellant is basically in the same position as someone who has taken their case through the appeal hearing before the SBT and won the appeal. General follow-up procedures in this situation are described s.6 "Post-Grant Procedures" below.

The only additional step required of an appellant (or their counsel) in the case of a pre-hearing grant is to prepare and deliver (as soon as possible) a letter to the Tribunal withdrawing the appeal. If time is particularly short a phone call to the CSR (client service representative) would be in order as well (they will still want a letter though). Failure to withdraw the appeal (besides wasting the Tribunal's time) can result in its automatic dismissal [Ch.12, s.2(e) "Appeals and Other Remedies: Appeal Hearings: Non-Participation in Hearings"], which could complicate the grant.


2. Legal Elements of PWD Status

(a) Overview

The key legal definition of PWD status reads [Act s.4(1)] (for discussion of the "substance-dependence exclusion" see s.3, below):
s.4(1)
A person is a person with a disability for the purposes of this Part if,

(a) the person has a substantial physical or mental impairment that is continuous or recurrent and expected to last one year or more;

(b) 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

(c) 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.
For purposes of analysis I break the elements of PWD status into the following issues, which also correspond to the primary concerns of SBT members when hearing PWD appeals:
  • Medical Conditions ("impairments")

    Whether the applicant has substantial medical conditions.

  • Duration (prognosis)

    Whether the anticipated prognosis (future course) of these conditions is of sufficient duration.

  • Functional Restrictions

    The functional abilities of the applicant.

  • Causation

    Whether the conditions caused the applicant's functional restrictions.

  • Verification

    Whether the above elements been verified by the appropriate medical professional.
(b) Medical Conditions ("Impairments")

. Preliminary Comment re "Impairment"

The term "impairment" - as it is used in the pivotal s.4(1) [Act] legal definition of PWD status (quoted above) - is quite misleading, and has resulted in much ambiguity and confusion regarding its application. I am not alone in this view, the Divisional Court in AC v Ontario (COMSOC) (2005) Court File #DV-657-04 (Div Ct) reached the same conclusion (which was ironic as their convoluted interpretation was subsequently and thankfully rejected by the Court of Appeal):
It is evident from the wording of section 4 (1) that the statutory definition of "person with a disability" is not set out with the level of clarity that is desirable in a social benefits statute. It is not, in my view, a model of statutory drafting.
As the following discussion elaborates, it is far better to think of (and refer to) this element as something more akin to "medical conditions".

The determination of medical disability is not new to law and is done in numerous similar contexts: CPP-D (Canada Pension Plan - Disability), WSIB (Workplace Safety and Insurance Board), private disability insurance policies, EI (Employment Insurance) and others. All of these invariably require two primary elements: (1) medical conditions and (2) functional restrictions. Further requirements that the conditions "cause" the impairment, or that they both be "present" during the point in time or period under consideration - are simple logical necessities in the application of any disability-insurance or compensation scheme. The two key substantive elements are always medical conditions and functional restrictions.

These two primary elements correspond neatly and necessarily to the manner in which the medical and rehabilitation professional communities themselves deal with such situations for therapeutic purposes. Medical conditions correspond to what medical professionals term "diagnoses", and functional restrictions to what occupational therapists and psychiatrists generally refer to as "ADLs" (activities of daily living") or "GAF" ("global assessment of functionality" ratings.

The term "impairment" [s.4(1)(a)] is, in common non-legal use, broadly understood to be interchangeable with such terms as 'handicap' or 'restriction'. Unfortunately accepting that common sense understanding of the term when applying s.4 [Act] legislation leaves s.4(1)(b) quite redundant - with it's focus on 'functioning', "substantial restrictions" and "activities of daily living".

It is a testament to the common sense of members of the Social Benefits Tribunal that they have for years disregarded this literal wording in hearing and deciding PWD eligibility appeals. Persons appearing before the Tribunal have had and can expect the term "impairment" (singular) from s.4(1)(a) to be used interchangeably with 'medical conditions' or 'diagnoses'(plural). Further, the term "functional restrictions" from s.4(1)(b) (which is quite accurate in the first place) is used interchangeably with the phrase "activities of daily living" (commonly "ADLs").

While the courts have only recently addressed and clarified this interpretive problem, some courts have practically addressed it. In McLaughlin v Ontario (ODSP) [2002] OJ #1740 (QL)(Div Ct, 2002), the court stated:
Ms. McCormick also argued that the Tribunal erred by imputing the substantial-restriction-of-daily-activities concept of s. 4(1)(b) into its "substantial impairment" consideration. We do not think it was an error on the part of the Tribunal to take into account factors relating the appellant's physical impairment that might also be pertinent to a s. 4(1)(b) analysis when they are also pertinent to the substantial impairment determination.
This approach from McLaughlin was re-affirmed by the Court of Appeal in Ontario (ODSP) v AC Court File C44724:
It is important to observe, however, that although the inquiries mandated by paragraph (a) and (b) of s. 4(1) relate to different issues or thresholds, the evidence relevant to the two inquiries can overlap.
It was this same court AC that in 2006 finally clarified the "impairment" interpretive problem that had been left in a quandary by the Divisional Court's earlier convoluted reasons in that same case. In Ontario (ODSP) v AC Court File C44724, the Court of Appeal affirmed the practical view explained above that: "(t)he core of the concept of impairment is medical." However the court added (echoing and thus adopting the Gallier case's application of "social factors" towards disability (see s.2(e): "Legal Elements of PWD Status: Causation", below):
... 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.
. Practice Before the Tribunal

As a matter of evidence, "verifying" the medical conditions is the role of the medical professional, typically through their reports.

While they can be called (even summonsed Administrative Law (Ontario)(SPPA): Ch.6, s.9: Evidence: Witnesses) to testify in person, it is general and expected legal practice (even in the civil courts) to tender medical evidence (both of treating and non-treating medical professionals) in document form. Suggestions on the obtaining and generation of documentary medical evidence are set out in s.4(d): "Case Preparation: Obtaining Medical Evidence", below.

That said, appellant testimony and general circumstances can be used to amplify, mute and clarify the available documentary medical evidence. Circumstances which might justify the emphasis (or de-emphasis) such medical evidence typically include the length of the patient/doctor relationship, the (in)frequency of medical appointments, and whether the appellant was or was not present while the doctor completed the medical forms.

In extreme cases (where evidence is otherwise unavailable) I have seen the Tribunal accept - under their broad jurisdiction to accept evidence (Administrative Law (Ontario)(SPPA): Ch.6, s.3: Evidence: Tribunal Rules of Evidence) testimony from an appellant as to what his physician has TOLD him his diagnosis is (ie. hearsay). However for such unconventional "medical" evidence to be accepted the circumstances in which it is called must show the appellant has exercised due dilgence in seeking to obtain the evidence in conventional report form. Such circumstances might include recent death of the physician, their de-registration by the College of Physicians and Surgeons, failure to respond to summons and other unusual circumstances.

(c) Duration (Prognosis)

. Overview

Contained within s.4(1)(a) [Act] is the additional requirement that the "impairment" (or as above: 'medical condition'):
... is continuous or recurrent and expected to last one year or more;
When a well-completed HS/ADL Report form is provided and filed, it is plain whether these criteria are satisfied or not. However in the common situation where the Report is incomplete or ambiguous, some of the unstated aspects of these criteria need to be unpacked.

This is done below. However before I do this, it is necessary to identify the chronic practical problems in their application.

. The "Duration" Problem

It has been a source of extreme confusion (and untold prejudice to applicants) for years that this short passage actually contains TWO separate duration requirements, one of these being satisfied by either of two alternate forms [and all of which must be properly "verified" (see s.2(f) below)].

Plainly, the duration requirement is that BOTH of the following must be properly verified:
  • the condition/s have a prognosis (anticipated course) of lasting for a year or more; AND

  • that the condition/s are EITHER (ie. one of) "continuous or recurrent".
The practical problem arises because not only do these two separate issues have significant logical interplay and overlap (leading doctors to think them redundant and unnecessary to distinguish), but the Director-drafted HS/ADL Report forms have chronically failed to make clear the evidentiary necessity of addressing BOTH of the two issues. The HS/ADL Report forms locate the 'check-boxes' for these questions in close proximity to each other in the forms, with little or no clarification to the busy medical professional of the legal requirement to distinguish them. In the result, doctors checking "continuous" skip over "expected to last one year or more" (or vice versa), thinking the concepts to be logically contained in each other (which of course, to a large extent they are).

. "Target Date" and "Date of Onset"

As noted above, when the HS/ADL Report is lacking in proper duration verification, it is necessary to understand ways in which the duration requirements can otherwise be satisfied. The most obvious way to do this is to simply re-approach the medical professional involved and get written clarification from them. If there is any single area in which the "repair" of filed medical evidence is most required it is this. See the discussion of "Supplementation and Repair of Medical Evidence" in s.4(e) below.

However, for a variety of practical reasons (ie. time pressure, non-compliance, change of doctors, etc), such clarification may not be an available option, and alternative tactics may need to be pursued. To do this it is necessary to unpack some (perhaps obvious to some) additional concepts: the "target date" and the "date of onset".

Implicit in the references to 'lasting one year or more' and being "continuous or recurrent" is the further unstated requirement that these time criteria start counting at some identified point in time. That point in time is almost always the date that the application is complete, which is the date when the DDP is filed with the DAU.

I sometimes call this the "target date". In order the meet the PWD duration criteria, the medical conditions ("impairments") and functional restrictions must be present at the "target date" - AND must then satisfy the duration requirements counting FROM that "target date" as the starting point.
Note:
The only exception to this is as follows. Changes brought about by new (May 2006) "date of grant" rules [see Ch.10, s.4: "Applications and Procedures: Date of Grant], allow the DAU to "move" the date of grant to either before or after the "target date" (ie. before or after the date the DDP was filed) when the medical evidence justifies it. While in the vast majority of cases we can still expect the "target date" to remain at the date of application, in the few cases where it is changed it is logical to expect the DAU to consider the duration criteria from the "new" target date.
Again, where the HS/ADL Report is satisfactorily completed just prior to being filed, verification of the medical conditions and functional restrictions will correspond closely in time to the date of application (or "target date").

However when this is not the case, such as in the common situation where a medical condition is verified - but only after the target date, then a second concept becomes important: the "date of onset".

The "date of onset" is simply the date that - in the best opinion of the professional expressing it - the particular medical condition under consideration "began" (ie. met the generally established medical criteria for diagnosis). If additional evidence can be obtained showing a "date of onset" that predates the "target date", then it may then be possible to "use" the medical condition in support of one's case. Seeking this additional evidence is a form of medical evidence "repair" as discussed in s.4(e): "Appeal Case Preparation: Supplementation and "Repair" of Medical Evidence".

Medical professionals (particularly if they have just started seeing the applicant as a patient, which can even be AFTER the target date) are often uncomfortable with expressing an opinion locating the date of onset at a date prior to them first seeing the patient. This is an understandable view when we appreciate that a "date of onset" for their reasons is used to determine the severity and chronicity of the condition for therapeutic (ie. treatment) reasons. Obviously a high level of certainty is desirable before medical intervention (drugs, lifestyle changes, surgery even) is recommended - and they hesitate to 'speculate' when there is no therapeutic purpose in doing so.

However an ODSP medical eligibility appeal before the Social Benefits Tribunal is a civil legal proceeding. As such the Tribunal's "standard of proof" is only that of "balance of probabilities", "more likely than not", or even "51%". Therefore if a physician (who might even only have just met the applicant months AFTER the target date), is content to commit to paper that - "on a balance of probabilities in my professional opinion" (drawn from prior medical files, physical examination, and/or from a history taken from the patient) that condition has been present since whatever date - that IS admissible evidence on this issue.

Further, any other statements located in (old or new) medical reports confirming dates at which the conditions started or were present can be also be relied on for this purpose, and accorded greater weight - since if so recorded they are typically MEANT to be therapeutically relied upon. This is another good reason to obtain and review the appellant's full medical file (I usually get obtain records going back at least 3-5 years).

. Alternative Duration Evidence and Tactics

The above discussion relates to alternative ways to verify conditions as being present at or (closely) before the "target date". Techniques used there are also useful to "bracket" the duration requirements (year or longer, and continuous or recurrent) where the HS/ADL Report fails to adequately address them.

For example, if the applicant's doctor has failed to indicate "lasting for a year or more" in the HS/ADL Report form - and if efforts at "repair" are stymied by lack of time or non-cooperation - then any other medical records verifying the presence of the medical conditions BOTH BEFORE AND AFTER the "target date" should be made plain to the Tribunal in the course of the appeal. If such reports reveal a consistent history of the medical condition being present for an extended period of time both before and after the "target date", then the Tribunal may find the one-year duration requirement to be met (or "bracketted") regardless of the inadequacy of the HS/ADL Report.

As to inadequate evidence on the duration element of "continuous or recurrent" - and while it is always preferrable to have direct confirmation from the treating professionals - it is often quite acceptable to present general medical evidence(ie. extracts from medical texts - even credible materials downloaded and printed from the internet) demonstrating that the identified conditions are BY THEIR NATURE chronic and permanent. For instance, "degenerative disc disease (DDD)" or "chronic obstructive pulmonary disease (COPD)" are not conditions that spontaneously resolve themselves, and are therefore (by their very nature) conditions of extended (often permanent) duration. Evidence provided from authoritative medical practitioners (even in the form of a textbook extract) confirming this is generally quite acceptable before the Tribunal.

Further, by virtue of s.16 of the Statutory Powers Procedures Act, the Tribunal is entitled to take 'evidentiary notice' (ie. to accept as facts basic things which they simply KNOW from their life and professional experience) of medical (and general) facts well-known to them - EVEN WITHOUT ANY EVIDENCE BEING PRESENTED ON THOSE FACTS: Administrative Law (Ontario)(SPPA): Ch.6, s.8: Evidence: Evidentiary Notice
Caution:
Readers are cautioned however that these techniques and tactics are back-ups, and not an equivalent substitute for having the full duration requirements verified by the treating medical professionals. Obtaining direct verification from the them should STILL be pursued as the primary form of evidence on the issues.
Further, where - in a PWD hearing - the Tribunal is concerned that the anticipated duration of the medical conditions is short (ie. chances of recovery look good), it is sometimes useful to suggest to them that IF (do not assume) the Tribunal is inclined to grant eligibility, that they can address this concern by setting a short "medical review date" (eg. one year). This is within their discretion to do. "Medical review dates" are explained in s.6(c): "Post-Grant Procedures: Medical Review Dates", below.

. "Recurrent"

Most of the above discussion has focussed on the year duration requirement in the context of "continuous" impairment. The alternative ground of "recurrent" has received little judicial attention.

A welcome clarification of the concept is however found in Lloyd v Ontario (Director, ODSP) [2007] OJ (QL) # 1452 (Div Ct) where the court allowed an appeal from an SBT finding that the appellant did not have substantial impairments because she was quite functional on "good days". In so doing it specifically referenced the term "recurrent" as it occurs in the PWD definition:
The appellant testified that she suffered from chronic pain arising from arthritis that affected her all the time but which varied in intensity depending on whether she was having a good or bad day and depending on the season and weather conditions. Whether she would have a good or bad day was unpredictable. This had an impact on her activities of daily living. On her bad days she suffered significant restrictions on her activities. She said that she has three to four bad days per week. Since a substantial impairment can be "recurrent" under s. 4(1) of the ODSPA, an impairment can be substantial even if a person is sometimes not impaired at all.

We are all of the view that the Tribunal erred in law by applying the wrong test in that it assessed the appellant's condition on her good days when she had a higher level of physical activity as opposed to assessing her condition during her recurrent bad days.
(d) Functional Restrictions

. Overview

As drawn from s.4(1)(b) (quoted above), the functional restriction element required for PWD status is that the applicant is "substantially restricted" in ANY ONE (or more) of the following "activities of daily living" (ADLs):
  • to attend to his or her personal care ("self-care"),

  • to function in the community ("community functioning");

  • to function in a workplace ("employability").
The aspects of s.4(1)(b) dealing with the "causation" of these functional restrictions are dealt with in s.2(e): "Causation", below.

Just to be clear: a "substantial restriction" in ANY ONE of the above three ADL categories legally satisfies this element of the PWD test. So if a person is a world class gymnast - totally functional in self-care and all physical employment task performance - they can still satisfy this element of the PWD test if they suffer from a debilitating social phobia that drives them away from human contact and normal social and romantic relations ("community functioning"). Of course such a condition would also impact on most (but not all) employment situations where interaction with other persons is required.

Following are a series of more specific topics which, when canvassed in evidence at a PWD appeal hearing, tend to accurately reveal the ADL situation.

. General ADL Issues

General (universal) ADL topics - which can impact on any (or all) of the three categories of ADL function - include [these are included in the linked "QUESTIONNAIRE", below]:

Physical:

. pain
. medication side-effects
. walking
. standing
. sitting
. bending
. carrying
. lifting
. dexterity
. breathing
. sleeping
. toiletting
. diet/nutrition
. speaking
. hearing
. sight
. nausea
. headaches
. dizziness
. obesity

Mental:

. anger control
. phobias
. ability to concentrate
. memory
. mood swings
. alcohol/drug use/history [see s.3 below on this issue]

. Self-Care

As typically viewed by the SBT, "self-care" includes the range of domestic "chores" that we all must engage in on a day-to-day basis.

Typical "self-care" topics include:

. feeding self
. washing/bathing
. dressing
. cooking
. dish-washing
. cleaning
. laundry
. shopping
. money management

Self-care restrictions need not only be physical in nature. For example: such conditions as depression, obsessive-compulsive disorder, social phobia or schizophrenia (there are more) which impact on social behaviour limit the ability to engage in public activities such as laundry and shopping.

. Employment Functioning

The statutory phrase "functioning in the workplace" is not generally taken by the Tribunal in a literal fashion as referring only to task-performance once a person is IN a workplace (ie. after they are hired) - but as covering the broader (and far more relevant) issue of "employability".

Topics which tend to arise primarily with respect to employability include:

. punctuality
. relations with authority figures
. social phobias
. reclusiveness
. ability to tolerate crowds
. anger control/history of violence/criminal history
. learning capacity (ie. learning disorders and related illiteracy and innumeracy)

. Community Functioning

Issues which are probative of social functioning include:

. sports/hobby participation
. friendship relationships
. romantic relationships/sexual activity
. socializing activities
. volunteering
. parenting
. religious attendence/involvement
. social phobias
. reclusiveness
. ability to tolerate crowds
. anger control/history of violence/criminal history

. Practice Before the Tribunal

It has been my practice before the Social Benefits Tribunal in PWD appeals to rely on a form "questionnaire" of my own design (updated periodically) to organize and capture my client's direct evidence on a coherent and orderly form. I complete this questionnaire with the client on first interview and it follows us all the way to the hearing, where it is the document that I use to guide my direct examination on their functional problems. The latest version of this questionnaire is linked here for those interested in reviewing or using it:

Direct Evidence Questionnaire

(e) Causation

. Overview

The legal requirement that the medical conditions "cause" the "functional restrictions" is included within the PWD criteria [Act s.4(1)(b)]:
... direct and cumulative effect of the impairment ... results in a substantial restriction ... ".
In the early years of ODSP this issue was sometimes relevant where a pre-existing - though non-medical factor - could be argued as contributing to the person's functional restrictions (eg. illiteracy, advanced age).

The problem was analogous to what tort lawyers know as the "thin skull rule": that a wrong-doer cannot argue their victim's pre-existing vulnerabilities (ie. "thin skull") in mitigation (reduction) of damages. In such situations the defendant "tortfeasor" is said to "take their victim as they find them" (ie. pre-existing vulnerabilities cannot be used in mitigation).

. Social Factors: ODSP (Director) v Gallier

The "thin-skull" principle respecting non-medical factors was imported in ODSP law by the important and often-cited case of ODSP (Director) v Gallier [2000] OJ #4541 (QL) (Div Ct).

In this case the SBT cited and applied so-called non-medical "social factors" (specifically: age, education and work experience) as properly contributory to functional restrictions (thus effectively making them legitimate "causing" factors equivalent to medical conditions). The Director appealed, arguing that only verified medical "impairments" (medical conditions) could be properly considered as causative of the problems. The court disagreed:
It is our view that the Tribunal was entitled to consider the applicant in the context of her own situation. We are supported in this regard by the wording of s. 4(1) which requires a consideration of "the person". The test is not whether any person with these impairments and restrictions met the criteria, but whether this person met the criteria.
This very quote was approved by the Court of Appeal in the case of Gray v Director (ODSP) 59 OR (3d) 364 (Ont CA), giving it greater authority, and also as discussed in the AC Court of Appeal case discussed in s.2(b) above.
Case Note:
In the case of Ontario (Disability Support Program) v. Anwari (Div Ct, 2011), Gallier was apparently directly contradicted (though not overturned as both cases were at the same court level). Without any apparent reference to Gallier, Gray (at least not on this point) or AC, the court here stated as follows:
[12] In making this ultimate finding relating to the causal connection between the impact of the respondent’s impairments and her ability to function in the workplace, the Tribunal fell into reversible error. In particular, as its reasons show, it found that the substantial restriction of the respondent’s ability to function in the workplace was the result of a variety of factors, many of which are social and external factors relating to both herself, her husband and their children and not, as the Act requires, only to the [SS: medical] impairments set out in paragraph [7] above.

[13] Although it is difficult not to sympathize with the plight of the respondent, her struggles and challenges resulting from other causes do not entitle her to the benefits that she claims and the Tribunal has stepped beyond what the Act allows.
On this point then, Anwari seems to be overriden by higher court law and Gallier remains authoritative on the 'social factors' issue.
. "Cumulative" Causation

Further, when assessing "causation" it is functional restrictions caused by the TOTALITY of the medical conditons (and by virtue of Gallier, other "social factors" as well) that are to be assessed towards whether the functional (ADL) restrictions are "substantial".

Some Tribunal members had their Decisions reversed in past when they have considered the functional restrictions associated with individual medical conditions (ie. one by one, in turn), weighing and then discarding or accepting them as "substantial" individually. In this fashion the "weight" of milder medical conditions and functional restrictions tended to be discarded and was not "counted" towards the substantiality of the ADL restrictions. However it is now clear that the correct approach is to weight "substantiality" in light of the effect of ALL the medical conditions - plus of course of the "Gallier factors" as above.

The "cumulative" approach was affirmed by the Divisional Court in Sandiford v Ontario (Director, ODSP) [2005] OJ #854 (QL) (Div Ct):
The assessment as to whether a person has a substantial physical or mental impairment must consider the various conditions individually and cumulatively. It is not necessary to break down the analysis to every part of the mind or body affected and find that at least one disorder is substantial. Such artificiality would detract from the person centered and remedial purposes of the ODSPA. To analyze each physical or mental disorder separately and require that each separately result in a "substantial restriction" as argued by the Respondent would deprive "cumulative" of any meaning in s. 4(1)(b).
(f) Verification

. Overview

Section 4(1)(c) of the Act sets out a requirement that the primary elements of the PWD criteria be "verified" by approved medical professionals:
... 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.
Note that there is no legal requirement that DAU medical adjudicators be similarly medically qualified [Act s.4(2)]. While Tribunal members are generally aware of this, it can always be raised in submissions to undermine the often-overreaching medical conclusions and comments contained in their medical adjudication reports (located at the back of the Director's Submissions).

. Context

Read casually, this provision can be viewed as an evidentiary rule excluding any and all non-expert evidence on the key aspects of the PWD definition (medical conditions, duration and ADLs) - and to a large extent that is an accurate legal interpretation. However s.4 of the Act - read in its totality - has effectively created an evidentiary "division-of-labour" between medical professionals and appellants. This duality is defined by the key term "substantial" as it conditions both medical conditions (ie. "impairments") and functional restrictions.

Thus the bare "verification" of the medical conditions (ie. diagnosis), their duration and THAT functional restrictions exist (not their degree) are allocated exclusively to the medical evidence. However assessing the DEGREE of these elements (ie. their "substantiality"), is for the totality of the evidence - INCLUDING that of the appellant and their non-medical witnesses (ie. family, friends, etc). This distinction is sometimes stated as "substantial is for the Tribunal", meaning that the Tribunal can reach its own conclusions on all the evidence presented on the degree of the elements present - but not their presence (for which proper medical professional verification is essential). As was stated in Ontario (Director, ODSP) v Matthews [2000] OJ #5305 (QL) (Div Ct):
It is common ground that the required verification is only as to the existence of the impairment, its likely duration, and a resulting restriction in activities. The decision as to the substantiality of those conditions is a matter for the Tribunal.
A later court, in Sandiford v Ontario (Director, ODSP) [2005] OJ #854 (QL) (Div Ct), re-affirmed this statement of the law.

Put another way: it is the exclusive role of the medical evidence put before the Tribunal to establish:
  • the medical conditions (ie. diagnoses) of the appellant;

  • whether these conditions satisfy the required "duration" requirements;

  • the functional restrictions faced by the appellant.
On the other hand, it is the role of any and all admissible evidence (appellant and witness testimony, and documents both medical and otherwise) to assess whether the conditions and functional restrictions are of a degree to meet the level of "substantial" [see s.2(g) below].

This conclusion, limiting as it is of the role of the appellant's evidence in the SBT appeal process, is entirely consistent with actual SBT practice - and as well with the conventional civil litigation distinction between expert and non-expert medical evidence.

This is not to say that medical evidence may only be admitted if it emanates immediately (eg. testimony from a doctor or their written and signed report) from a medical professional. As is discussed in s.2(b) ["Medical Conditions "Impairments"): Practice Before the Tribunal"] above, there are limited legitimate instances where "medical evidence" might flow through the appellant or another witness under the Tribunal's authority to accept hearsay evidence.
Case Note:
In Ontario (Disability Support Program) v Mohamed (Div Ct, 2011) the court upheld the Tribunal's grant to the applicant in a case where the medical evidence was weak as to impairments, largely on the basis of testimony from the applicant themself. In so doing, the court essentially adopted the phrase sometimes heard in ODSP practice that 'substantial is for the Tribunal'. This is the point that while the Act at s.4 requires that the applicant have both "substantial physical or mental impairment" and "substantial restriction in ... activities of daily living", that it is only the "impairments" and "restrictions" that must be medically verified, not their degree. Thus: "substantial is for the Tribunal".
. Qualified "Verification" Professionals

.. For Diagnoses and Duration

The following professionals (all of whom must be members of their appropriate health professional "colleges") may "verify" medical conditions (within their fields) and their duration for ODSP application purposes [Act s.4(1)(c); Reg s.46(1)]:
  • doctors (this includes psychiatrists and all medical specialists who are also MDs);

  • psychologists;

  • optometrists;

  • Registered Nurses "who holds an extended certificate of
    registration
    in accordance with the regulations made
    under the Nursing Act, 1991."
.. For Functional Restrictions

The following professionals (all of whom must be members of their appropriate professional "colleges") may "verify" functional restrictions for ODSP application purposes [Act s.4(1)(c); Reg s.46(2)]:
  • any qualified medical professional who may verify diagnoses and duration (ie. the above list);

  • occupational therapists;

  • physiotherapists;

  • a social worker "who is a registered social worker in accordance with Ontario Regulation 383/00 (Registration) made under the Social Work and Social Service Work Act, 1998."

  • chiropractors;

  • audiologists and speech-language pathologists;

  • registered nurses.
.. Summary

Practically then, professionals from the "first list" above (properly qualified doctors, psychologists, optometrists and RNs with extended registrations) may complete any and all the medical documentation required for an ODSP application.

Of course, filing a report from an optometrist regarding one's cancer would be inappropriate (not that one would prepare such a report) - so care should be taken in the selection of who completes the reports. In my experience, general practitioners (GPs) are by far the most common and appropriate professional selected for this purpose, followed by psychiatrists (where the diagnostic profile is psychiatrically-heavy). There is no rule preventing an applicant from copying the blank HS/ADL Report forms and having them completed by two professionals and then both filed (they will both be accepted and reviewed), though typically supplementary specialist reports are supplied from pre-existing medical records or especially prepared for purposes of the application or an appeal.

Professionals from the second (functional restrictions) list of qualified medical professionals can complete the "ADL" (activities of daily living) portion of the HS/ADL Report report, while those from the first list complete the "Health Status" portion. This is a less common practice but is particularly useful where professionals such as occupational therapists and RNs have intensive therapeutic experience with the patient under the supervision of a GP or specialist MD. Such heavily-involved professionals are usually in a better position to comment accurately on the appellant's functional abilities, restrictions, and therapeutic progress.

. Court Comments on "Verification"

The following case quote gives a flavour to the treatment of this key issue by the courts:
  • ODSP (Director) v Gallier

    When applying for benefits, the applicant is required to submit various forms to be completed by the applicant, and by the person verifying the circumstances surrounding the disability. It is our view that the verification provided must verify the circumstances of the impairment, its duration and its effect on the applicant. It cannot, in our view, be expected to verify every detail. For example, in this case, the applicant gave evidence that she wore a brace to alleviate her back pain. Her doctor did not refer to the brace in the form provided him by the Board and did not list it under "Treatment". In our view, the omission of mention by the doctor of a brace did not preclude the Tribunal from receiving and accepting the applicant's evidence about the brace.

    Similarly, although the medical form referred to the primary back problem, the Tribunal was not precluded from considering the applicant's evidence concerning her secondary problems of knee and hip difficulties. Section 4(1) only requires verification of the impairment, duration and restriction. Not all the details giving rise to those criteria must be provided in minute detail. This is particularly so in this case where the doctor elaborated in his report with information about x-rays and said, "The prognosis of her returning to gainful employment is not good". [author: thus inviting clarification by the appellant herself].

  • In Director ODSP v. Cherryholme (Div Ct, 2010) the court allowed an appeal by the Director where the Tribunal below disregarded weak medical evidence on verification of restrictions in the activities of daily living, preferring the evidence of the appellant themselves:
    15. The Tribunal referred to the medical evidence in support of the appellant’s claim as being weak. It referred to Dr. Kane’s findings of normalcy on every category of the Activities of Daily Living Index. The Tribunal, however, accepted the evidence of the respondent that he was reluctant to provide to Dr. Kane a true picture of his emotional status because his estranged wife was an employee in the Doctor’s office and he did not wish her to know of his emotional disability. The Tribunal then accepted the respondent’s self-assessment of emotional disability and restrictions in his daily living activities.

    16. Clearly, there was virtually no credible medical evidence before the Tribunal in support of the claim for disability and the required verification by a qualified person was utterly lacking. No explanation was given as to why verification could not have come from Dr. Singh or some other medical practitioner.

    17. The Tribunal’s failure to make a finding of verification by a prescribed professional of any restrictions in activities in daily living is in our opinion an error in law.
(g) "Substantial"

. Overview

The term "substantial", as an element in the PWD criteria, conditions both of the key elements: "impairments" (ie. medical conditions) and functional restrictions [Act s.4(1)].

It is an inherently imprecise and relative term, as is necessary for its purpose. Setting aside any periodic pretensions of medical science to precision in the "measurement" of such things as functionality and employability, the task of assessing "disability" for public support purposes is one that cries out for true, informed and compassionate human 'judgment' (as has been affirmed in the Matthews case cited below).

. Judicial Comment re "Substantial"

The following case quotes give the flavour of the treatment of this key concept by the courts:
  • ODSP (Director) v Gallier:

    We do not find it helpful in the circumstances of this case to engage in an exercise of defining "substantial" as used in s. 4(1) of the Act. The legislation is clear and the applicant clearly fits within the "substantial" test. We would only comment that "substantial" should be interpreted in a manner consistent with the purposes of the Act, set out in s.1, and in the context of the remedial nature of the statute to be given "such fair, large and liberal construction and interpretation as will best ensure the attainment of the object of the Act according to its intent, meaning and spirit".
In Ontario (Director, ODSP) v Matthews [2000] OJ #5305 (QL) (Div Ct) the court defined the essential role of the Social Benefits Tribunal in terms of this key concept (quoted above, repeated here):
It is common ground that the required verification is only as to the existence of the impairment, its likely duration, and a resulting restriction in activities. The decision as to the substantiality of those conditions is a matter for the Tribunal.
A later court, in Sandiford v Ontario (Director, ODSP) [2005] OJ #854 (QL) (Div Ct), re-affirmed this statement of the law.

In Ontario (Disability Support Program) v Mohamed (Div Ct, 2011) the court upheld the Tribunal's grant to the applicant in a case where the medical evidence was weak as to impairments, largely on the basis of testimony from the applicant themself. In so doing, the court essentially adopted the phrase sometimes heard in ODSP practice that 'substantial is for the Tribunal'. This is the point that while the Act at s.4 requires that the applicant have both "substantial physical or mental impairment" and "substantial restriction in ... activities of daily living", that it is only the "impairments" and "restrictions" that must be medically verified, not their degree. Thus: "substantial is for the Tribunal".


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