|
On The Interpretation of "Impairment"
as an Element in the ODSP "Person with a
Disability" Criteria
(Crane v Director Considered)
by Simon Shields, LLB
21 October 2008
I welcome constructive feedback on this issue and will,
if requested, post and accredit same on this website.
1. Overview
I took a sabbatical in the years 2006-7 largely to write this website. In
that time and since then I have argued perhaps only six ODSP "person with a
disability" (PWD) hearings and have discussed several others with
colleagues.
Over this time - and particularly in a hearing I argued this month - it has
become apparent to me that in the intervening years the Tribunal is being
heavily - and in my opinion, erroneously - influenced by interpretive
problems that emanate from, or at least have been furthered, by the 2005/6
Crane v Director cases [A.C. v Director, ODSP (Div Ct, 2005) and Director,
ODSP v Crane (Ont CA, 2006]. In other words: 'I go away for two years and
everything goes to hell!' ;-)
The problem centers on the meaning assigned to the term "impairment" as it occurs
in the key s.4(1) PWD legal definition, quoted in full here: 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 more than one year of 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 substantial restriction in one
or more of these ACTIVITIES OF DAILY LIVING ["ADLs"];
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. In this piece I explore what I will call the "flawed Crane interpretation" in
the context of the long-standing "pre-Crane interpretation". This entails an
analysis of the currently-used ODSP medical eligibility forms [the "Health Status
Report and Activities of Daily Living Index" ("HSR/ADL")], and of course of
the two Crane court cases. Eventually I advance a new interpretation which
I advance as the the "correct Crane interpretation".
2. The "Pre-Crane Interpretation"
I've argued hundreds of ODSP medical eligibility case overs the last 20
years, and many under the old Family Benefits Act (FBA) with it's "permanently
unemployable ["PUE"]" and old "disabled" categories. In all of these, and
in most ODSP [indeed, in any disability claim] cases until recently, the
law has always quite faithfully and logically followed the everyday
analytic categories of the helping fields of medicine and occupational
therapy which are germane to disability income maintainance law. Roughly,
these are "diagnoses" (aka 'conditions') and symptoms
aka 'impact', 'disability', 'handicaps', 'ADL restrictions' etc).
In this conventional framework, the medical terms "diagnosis" or "condition" are
synonymous with the ODSP term "impairment". Similarly, the medical terms "symptoms"
or "impacts" are (functionally) synonymous with the legal term "restrictions (of
ADLs)", the only variation being that not all symptoms are relevant to
a person's workplace, self-care and community functioning and are thus eliminated
from ODSP administrative and legal consideration.
Implicit - if not explicit - in this medical framework is that the
diagnosis/condition CAUSES the symptoms/effects/handicaps [although see the
note re 'syndromes', below]. Indeed, that causal relatonship has been
carried over in the law by the s.4(1)(b) requirement that "the direct and
cumulative effect of the impairment ... RESULTS in a substantial
restriction in one or more of these activities of daily living". Note re Syndromes:
The above causation framework does not fully track
medical categories of analysis in the case of "syndromes"
(which are identified simply as a collection of symptoms
lacking known cause - eg. fibromyalgia). ODSP law does
not recognize this point, and treats syndromes as
'causal' in their own right just like diseases or
physical injury. For instance, most psychiatric diagnoses
are also effectively syndromes under this meaning.
Any tension created by this inconsistency is easily
resolved if we understand 'syndromes' simply as
place-holder labels given to as-yet-unidentified causes
[diagnoses] of their symptom patterns. In that sense they
are simply conditions yet to be associated with their
underlying disease, genetic or trauma-induced
underpinning. In other words, it is not that the symptoms
that constitute a syndrome lack a cause, it is just
that we do not yet know what it is. In short, doctors investigate and diagnose (ie. identify the problem), and
then treat it in any of a variety of ways in an effort to eliminate or
mitigate both the condition itself and its impacts (ie. problem solve).
Occupational therapists and related therapeutic professionals also work on
the remedial end of things, where the analysis takes the diagnosis as given
and then invokes its own terminology of "activities of daily living" (ADL)
levels and such other exotica as the "Global Assessment of Functioning"
(GAF) rating. These latter concepts and measures in turn provide analytic
guidance for their therapeutic purposes.
Under the legal "pre-Crane interpretation", we have a conceptually orderly
world of cause and effect which nicely maps the medical and therapeutic
fields so relevant to people with medical problems. Hence as well [as we
see preserved in ODSPA s.4(1)(c)] the legal insistence that the diagnoses
and their negative effects be professionally "verified", with the dominant
verification authorities being doctors (discussed more in s.3(c) below).
Indeed, if "impairments" are to be understood as something other than
medical diagnoses, why does the legislation direct us to doctors and other
medical professionals for impairment 'verification'? The 'medical model' origin
of the legal term "impairment" is undeniable from any legal or medical perspective.
3. The Health Status Report and Activities of Daily Living Index Form
(a) Overview
A good starting point for this discussion, and perhaps the originating
source of this whole problem, is the "Health Status Report and ADL Index"
[hereafter the "HSR/ADL form"] issued by the ODSP Director.
This is identified as Form #2859, and there are several successive amended
versionss of it. In the present analysis I am referring to the amended
versions dated "(06/2004)" and "(03/2005)", which are for present purposes
identical.
(b) Legal Authority for the HSR/ADL Form
It is worth noting that the HSR/ADL Form is not set out in either the ODSP
Act or any ODSP Regulation - and as such is not "law". Rather it is the
product of the Director of ODSP, acting ostensibly under authority
delegated to it initially from s.38(g), and then through General Reg
222/98, s.14 - as follows: ODSPA Act
s.38(g)
The Director shall,
...
(g) exercise the prescribed powers and duties.
- AND -
ODSP General Regulation
s.14(1)
An application for income support shall be made to the Director in the form and manner approved by the Director.
s.14(2)
The Director may require an applicant to provide information necessary to determine and verify the applicant's eligibility for income support, including the following information with respect to any member of the benefit unit:
....
5. Reports of persons described in section 46 relevant to a determination under section 4 of the Act.
[ie. of the professionals who can complete the HSR/ADL Forms] (c) Design of the HSR/ADL Form
It is also worth noting that the HSR/ADL Forms are split into two main
sections, one the "Health Status Report" ("HSR") [pps.3-10] and then the
"Activities of Daily Living Index" ("ADL") [pps.11-14].
Generally MDs, RNs (extended class) and other qualified medical
professionals may complete either part, while the ADL portion may be
separately completed by occupational therapists, (regular) RNs, licensed
social workers and a few other non-medical professionals.
Note how the distinct verification roles of these two classes of
professionals maps the medical versus therapy distinction embodied in the
health care professions themselves. This legal verification distinction
reinforces the conclusion that the HSR part of the form deals with medical
"impairments" while the ADL part (plainly) deals with 'ADL restrictions'.
Pages 3 and 4 of the HSR/ADL form [in the HSR part] are meant to be
considered together as a two-page 'chart' and are the main pages of the
"Health Status Report" portion. This chart is divided into five main
columns, categorized as follows: (A) Condition(s)
Identified in the form as "the name of the disease or disease state
or diagnosis or syndrome".
(B) Impairment(s)
Identified in the form as "the loss, loss of use or derangement of
any body part or system or function. Function can be psychological
or psychiatric in origin."
(C) Restriction(s)
Identified in the form as "the limitation to the activities of
daily living arising directly or indirectly from the impairment".
(D/E) Duration
The form options are twofold:
i. "Expected to last:
[ ] less than 1 year or
[ ] 1 year or more"
ii. "and is
[ ] recurrent/episodic or
[ ] continuous."
(F) Prognosis of Condition(s)
"Is likely to:
[ ] improve
[ ] deteriorate
[ ] remain same
[ ] unknown (d) The Conceptual Structure of the HSR/ADL Forms
Note that of the above five categories, ONLY THREE are legislatively
required elements (impairments, restrictions and duration) from ODSP/A s.4
[or anywhere in the legislation for that matter]. "Conditions" and
"prognosis of conditions" are NOT mentioned in the legislation, and have
been gratuitously added by the Director.
All-important for present purposes is that the form's distinction between
"conditions" and "impairments" is NOT one created by law. It is a creature
of the Director-drafted form itself.
4. The Crane Cases
(a) Background
The Crane case (also referred to as "A.C" by the appellant's
initials), was a run of the mill ODSP "PWD" ("person with a disability")
case. From the extracts of the Social Benefit Tribunal's ["SBT"] ruling
that are quoted in the court cases, it appears that the Tribunal-level
ruling was written quite consistently with what I have above described as
the standard "pre-Crane interpretation" of PWD status.
It is not the facts or the result in the Crane cases that make them
interesting, but the analytic gymnastics of the various judges involved in
interpreting the key s.4(1) PWD provision of the ODSP Act [quoted above in
s.1].
Procedurally, the case went like this. Eligibility was denied at the Social
Benefits Tribunal level and then appealed by the claimant up the normal appeal
chain to the Divisional Court. That court allowed the appeal and ordered a re-
hearing, and a further Director appeal to the Court of Appeal was dismissed by that court on grounds unrelated to the present analysis (the CA dismissal was
grounded in 'palpable and overriding error' in the Tribunal's treatment of a particular piece of evidence).
It is important for the below discussion to note that the Tribunal stopped
its consideration of the case early on once it held that the "impairments"
- which it took to mean conditions - were NOT substantial (ie. it viewed
further analysis as a waste of time). The Divisional Court (though not the Court
of Appeal) - took significant exception to that manner of proceeding.
(b) The Divisional Court Analysis (and Critique)
'Impairments are Not Synonymous with Diagnoses'
The Divisional Court [Matlow J writing, Kiteley J concurring; Gravely dissenting] starts out conventionally enough [para.4]: The Tribunal correctly characterized the issue before it, in general terms, at Page 2 of its Decision as follow:
The Appellant is a thirty year old female with a
verified impairment of fibromyalgia, asthma,
anxiety/depression and headaches. These medical 'impairments' quite happily correspond to medical diagnoses,
and few laypersons or doctors would have any difficulty applying that
general label to them.
However that situation didn't last long, as further review of the judgment shows
[paras. 6-11]: 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 respectful
view, a model of statutory drafting.
...
... it makes no sense to refer to an impairment without
relating it to a specific ability which is affected by a
condition or injury. For example, it would make no sense
to say that a person's hand is impaired. A hand can never
properly be said to be impaired; only the ability to use
a hand can be impaired. Therefore, as an example, it is
only if a person's hand injury is such that it damages or
weakens that person's ability to hold a pen and write
that one can properly say that that person's ability to
write is impaired.
It is important to bear in mind that, even though they
may be related, AN IMPAIRMENT IS NOT
THE SAME THING AS A CONDITION OR AN INJURY
OR A SYMPTOM AND THESE WORDS CANNOT EVER
PROPER BE USED INTERCHANGEABLY [SS' emphasis]. Here we see the key divergence from the pre-Crane analysis. "Impairments"
are now no longer synonymous with the medical categories of 'diagnoses',
injury or 'condition'. Rather an 'impairment' is now an adjectival
qualifier on a human "activity" - not on the person themselves: eg.
'impaired hand-writing', 'impaired walking', 'impaired endurance' - but NOT
an 'impaired person'.
Unfortunately, the screaming redundancy of this interpretation with the separate
existence of the other main PWD element of "restrictions in the ACTIVITIES of daily living" never seems to occur to Matlow J at any subsequent point in the ruling -
rather it was the Tribunal that was 'confused' [para. 12,13]:A fair reading of the language used in the Decision
reveals that the Tribunal misunderstood the meaning of
many of these important words and, as a result, was
confused about how to interpret and apply section 4(1).
...
Accordingly, starting with subparagraph (a) [of s.4(1)],
the definition contemplates that some ability must be
impaired and that the impairment be "continuous or
recurrent and expected to last one year or more". It is worth recalling at this point that a distinction between "impairment" and the
medical concept of diagnosis (or condition) is also embodied in the HSR/ADL forms discussed above. It is interesting to speculate how much this form 'tail' may have wagged the legal 'dog'.
Now, Symptoms 'Cause' ADL Restrictions
Matlow J attempts to reconcile this awkwardness by subverting the legal
requirement of causation (ie. the impairment must CAUSE the ADL
restrictions) away from the medical model completely. Now instead of
'disease or injury' being the causal agents, we have abstracted and general
symptoms such as 'pain', 'fatigue' and 'limited range of motion [ROM]'
which 'cause' the more specific 'ADL restrictions' required by s.4(1)(b).
Thus, for example, an inability to work is not 'caused' by Hepatitis C with
its well-known and well-documented fatigue symptoms - rather 'fatigue'
ITSELF causes the inability to work a full eight-hour day on one's feet. In
this example 'fatigue' is no longer a generalized higher-order symptomatic
description, it is now an independent causal actor in its own right.
Of course this is like saying that 'heat' makes the water hot, not the
flame under the pot - it is not a statement that most people would bother
to correct, but it is a circular and quite useless analytic statement.
Matlow J's (almost metaphysical) step is remarkable in that it now
effectively legally dispenses with ANY medical model requirement of
diagnosis or 'condition'. Despite the legally-gratuitous inclusion of
"condition" in the HSR Chart, an entirely legally-acceptable HSR/ADL form
might now be submitted verifying that the applicant suffers from the
medically-verified "impairments" of pain, fatigue and lack of concentration
- all the while lacking ANY conventional medical diagnosis or conditions.
Such impairments might then 'cause' the applicant to be substantially
restricted from their ability to engage in the more specific ADL activities
such as climbing stairs, walking more than five blocks and working more
than four hours continuously.
Of course such an analytic framework reduces the role of a doctor from one
of diagnostic expert to one of 'symptoms-parrot': ie. my patient tells me
they're tired all the time, but - fully absent any blood tests verifying a
fatigue-causing disease - what the heck, he seems like an honest person. I
believe him, and thus verify his statements on to you.
A Concept Too Far
It is this conflation (fancy word - means 'inappropriate merging') of the
two key legal concepts of impairment and ADL restrictions that then tempts
Matlow J into ultimate legal error [which the Court of Appeal
corrected it on, even while agreeing in the result]. Matlow J,
para.16: Taking subparagraphs (a) and (b) [SS: the 'impairments'
and 'ADL restrictions' criteria of s.4(1)] together, it
becomes clear that the determination of a person's claims
for benefits cannot stop after an analysis of
subparagraph (a) alone because the definition of person
with a disability is not complete without applying
both. This Tribunal 'error', in the Divisional Court's analysis, justified it in
reversing the Tribunal's decision - which left off as wasteful it's efforts
once it found that the 'impairments' (which it took as conditions) were not
"substantial". An implication of Matlow J's analysis was that no conclusion
as to the 'substantial'-ness of the impairments could be made until the
full ADL restrictions were assessed - since the two concepts were
intertwined [para.26].
(c) The Court of Appeal Treatment
It is possible that the misinterpretation of the Crane cases lies in the
fact that the Court of Appeal dismissed the Director's appeal, thus
upholding the Divisional Court's order for a Tribunal re-hearing (in favour
of the appellant's position). If so the point must be emphasized that the
CA did so on grounds unrelated to the present topics. The dismissal of the
CA appeal - despite heavy criticism of Matlow J's ruling by the higher
court on its general treatment of evidence and fact-findings - was grounded
in the CA's view that the Divisional Court had correctly identified one key
"palpable and overriding error" by the Tribunal in its understanding of the
appellant's work history.
That said, it is irrefutably plain to anyone who takes the time to read the
decisions through that the key s.4(1) PWD analysis that the Divisional
Court majority undertook was robustly rejected by the Court of Appeal. As
MacPherson JA for the unanimous Court of Appeal stated [paras. 17-19]: The majority of the Divisional Court merged the contents
of paragraphs (a) [SS: impairments] and (b) [SS: ADL
restrictions] of s.4(1). The majority said that it was
meaningless to consider the concept of impairment in
isolation; rather, impairment always required a
consideration of "damage or weakness of some ability".
The majority concluded, therefore, that "[t]aking
subparagraph (a) and (b) together, it becomes clear that
the determination of a person's claim for benefits cannot
stop after an analysis of subparagraph (a) alone because
the definition of person with a disability is not
complete without applying both."
With respect, I disagree. THE CORE OF THE CONCEPT OF
IMPAIRMENT IS MEDICAL [SS emphasis]. The dissenting judge referred to the definition of "impairment" in the World
Health Organization's International Classification of
Functioning, Disability and Health (ICF WHO Res. WHA
54.21) (2001) at p.10):
DEFINITIONS
In the context of health:
....
Impairments are problems in body function or structure
such as significant deviation or loss.
...
It is clear that the World Health Organization draws a
distinction between impairment on the one hand and
activity limitations and participation restrictions on
the other hand. The same distinction is made in s.4(1) of
the ODSPA. Subject to further clarification of the relationship between "impairments"
and medical diagnoses or conditions (below), the Court of Appeal thus
re-embraces the analytic model taken by the Tribunal in its original
decision. Thus the Tribunal's procedure of halting its' analysis after an
initial criteria fails is, in a proper case, appropriate [REMEMBER - the CA
dismissed the appeal on un-related evidence treatment grounds].
5. The 'Correct' Crane Interpretation
It is important to note that while the Court of Appeal DID approve a
sequential (and not inter-related) three-step analysis to ODSP Act s.4(1)
[ie. impairments, ADL restrictions, verification: para.25]:- it DID NOT endorse the position in Gravely J's
Divisional Court dissent, that "impairments" and
"illness or disease" are not synonymous [Div Ct
dissent, para.10]; and
- it DID endorse the cross-over use of evidence between
the impairment and ADL restriction steps. That is,
whether impairments are "substantial" must be assessed
in light of both the social situation of the claimant
(ie. Gallier factors), and the specific ADL
restrictions which the impairments cause. [on this
point the Court of Appeal expressly approved the
Tribunal's treatment (paras.27-28)].
Further - and while greater clarity on the issue would have been nice - the CA
DID endorse (as quoted above) the view that "the core of the
concept of impairment is medical" and that "the concept of impairment is
anchored in medicine" [para.25].
AND the Court of Appeal expressly endorsed the Tribunal's "pre-Crane
interpretation" [my term] [para.27]: The Tribunal, on the other hand, framed its analysis in a
proper fashion. The "flawed Crane interpretation" has been to take the unreconstructed
Divisional Court analysis and to treat the medical concepts of
diagnosis/condition and the legal concept of "impairment" as mutually
exclusive. Thus in a 'flawed' approach a medical condition would not be
considered in evidence until such time as some medical verification of
general symptoms relating to the diagnosis/condition is advanced (eg.
fatigue associated with Hepatitis C). As noted above this makes
the separate ADL restriction requirement in s.4(1)(b) conceptually
redundant, and subverts the role of a medical professional into
meaninglessness.
This 'flawed' interpretation of impairments cannot survive the Court of
Appeal's direction that the concept is inherently medical in nature. This
is a direct and plain re-embracing of the medical model of illness as the
grounding model of ODSP medical eligibility law.
A much happer interpretation, consistent with both the oft-quoted
requirement for liberal interpretation of benefits-conferring legislation
and the WHO definition of "impairment" quoted above ["(i)mpairments are
problems in body function or structure such as significant deviation or loss"],
is to view the Crane CA case not simply as re-affirming the "pre-Crane
interpretation" (above), but as establishing a new and broader meaning that
embraces BOTH conventional medical-model diagnoses/conditions and
(ADDITIONALLY) 'generalized symptom patterns' akin to syndromes
(discussed above). This avoids the meaninglessness of the doctor's role
as 'verifier', as the Divisional Court in Crane left it.
Further, I submit that the above WHO definition is broad enough to capture both the conventional medical concept of diagnosis or condition [for what diagnosis
isn't a 'deviation or loss' of bodily function?], and as well an expanded
concept including general pre-diagnosis symptom patterns such as "chronic
pain", "restricted range of motion", "fatigue" and other states. These latter
are distinct from their specific ADL workplace, self-care or community functioning impacts and may ALSO fulfil the legal role of "impairments". While this erects an initial tension with the 'causal' role of such impairments, this problem - in
light of the comments made above with respect to the transitory status
of "syndromes" - does not survive on further examination. Such non-diagnostic
symptom patterns, like medically-acknowledged 'syndromes', are simply labels
allocated onto situations where full diagnostic (and thus causal) certainty is
lacking. This is just the law being generous, as it should be in ODSP cases.
In conclusion, the Crane line of cases may be read quite consistently as
expanding the concept of impairment BEYOND the medical concept of
diagnosis/condition - NOT as excluding those medical categories from it.
In this sense the Crane Divisional Court statement that "impairments" and
diagnoses/conditions are NOT synonymous may ironically survive. No, they are not synonymous - rather the concept of "impairments" encompasses and contains - AND extends beyond - that of diagnoses/conditions. In that sense the Crane Court
of Appeal case expands the grounds on which ODSP medical eligibility may be founded.
If my analysis above is correct, what remains to be done (in order to avoid
continued prejudice to untold hundreds of ODSP applicants) is for this analysis
to be reflected in the presently-confused HSR/ADL forms. As they stand now
these forms confuse applicants, medical professionals and Tribunal members alike. |
