PA R T C Decision unde r App e a l The de c is ion und er appeal is t he Min istry of Soc ial "m i n istry") rec ons id erat ion decis ion of May 2 2, 2014 wher w as not e li gible for a month ly n utri tional s up ple me s u pplem en tat i o n or f o r vitam ins and miner als . The de ter mined th at t h e ap pel lant satisfied the fo l lowing • T hat t h e a ppellan t wa s being tr ea ted for a ch account of a sev er e m e dic a l con dit ion , as requi • Tha t t h e ap pellant dis played two or more of 6 7(1 .1 )(b) ; the minis t ry c onc lude d th at the app ellant d id not satisfy the remaining el s ectio n 67( 1.1) a nd Sche du l e C , section 7 o f the EAP appellant's physi cian h ad no t c o nfirme d: • That the appellant req uired t he MNS for the prescribe d sy m ptoms as requir ed b y E AP W • That fail u r e to o bta in the M N S will res u l t in i m by EA PWDR section 67(1.1 )(d); o r • That t he appellant r e quired caloric supplem enta EAPWDR Schedu le C s ection 7(a). PART D -Rele vant Legislation EA PWDR Sect ion 67 [nu tritio nal sup plemen� Sche dule C, s ec t ion 7 [mon t h ly n utritio nal sup plemen EAAT 003(10/06/01) APPEAL# � D evelopme nt an d Soci al In novat ion (th e ein th e ministry decided that the appe llant nt ("MNS") -eit her for nutritional i tem s fo r calo r ic ba sis for the deci si on was th at while the m inis tr y le gislative c r it eria: roni c, p r o gressiv e d et erio rat ion of heal th on red by EAPWDR sect io n 6 7( 1. 1) (a); the sym ptom s prescribed b y EAPWDR sec tio n igibili ty crite r ia set o ut in W D R. I n par tic u lar, the ministry fo und th at the purpose of all eviati ng o ne or more of t he DR s ection 6 7 (1.1 )( c); minent d anger t o the appe l lant's l ife a s requ ired ti on t o a r e gul ar diet ary in t a ke as specified by �
P A R T E S u m m a r o f F a c t s T h e e v i d e n c e b e f o r e t h e m i n i s t r y a t t h e t i m e o f t h e • A n A p p l i c a t i o n f o r M o n t h l y N u t r i t i o n a l S u p p l D e c e m b e r 1 0 , 2 0 1 3 ( t h e " a p p l i c a t i o n f o r m " ) • T h e a p p e l l a n t ' s u n d a t e d w r i t t e n r e c o n s i d e r a • P r i n t o u t s o f i n t e r n e t i n f o r m a t i o n o n i n f l a m m a c o r d i n j u r y , a n d t h e r o l e t h a t v i t a m i n s C a n d t r e a t m e n t . 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" I n r e s p o n s e t o t h e q u e s t i o n " D e s c r i b e h o w t h e a p p l i c a n t ' s l i f e " , t h e p h y s i c i a n w r o t e " W h a t k i n d I n r e s p o n s e t o a q u e s t i o n a s k i n g h i m t o s p e c i f y t h e o f n e e d , t h e p h y s i c i a n w r o t e " N e e d s g o o d q u a l i t y c a s k e d i f t h e a p p e l l a n t h a s a m e d i c a l c o n d i t i o n t h a t t o s a t i s f y d a i l y r e q u i r e m e n t s t h r o u g h a r e g u l a r d i e t a t h i s w o u l d b e t h e c a s e . " I n d e s c r i b i n g h o w t h e n u t r i d e n t i f i e d s y m p t o m s , t h e p h y s i c i a n r e s p o n d e d " H e h e a l t h a n d h e a l i n g o f h i s i n j u r i e s . " A s k e d t o d e s c r i d a n g e r t o t h e a p p e l l a n t ' s l i f e , t h e p h y s i c i a n p r o v i d e I n h i s r e c o n s i d e r a t i o n s u b m i s s i o n t h e a p p e l l a n t w r o d u r a t i o n f o r t h e n e e d f o r v i t a m i n s / m i n e r a l s b e c a u s e p r e d i c t i m m i n e n t d a n g e r o f l i f e t o a p e r s o n i s i m p o s a p p e l l a n t d e s c r i b e d u l c e r a t i v e c o l i t i s a s a n a u t o i m m a n d u l c e r s / o p e n s o r e s i n t h e c o l o n . T h e a p p e l l a n t w b o u t s o f d i a r r h e a / c o n s t i p a t i o n w i t h b l o o d , m u c u s , f e t o o b t a i n t h e i d e n t i f i e d v i t a m i n s a n d m i n e r a l s c a n c a c o m p l i c a t i o n s o f : • U l c e r a t i v e c o l i t i s i n c l u d i n g b l e e d i n g , p e r f o r a t c o l o n c a n c e r . • S p i n a l c o r d i n j u r y i n c l u d i n g l o s s o f m u s c l e t o c a r d i o v a s c u l a r d i s e a s e a n d o t h e r s . E AA T 0 0 3 ( 1 0 / 0 6 / 0 1 )A P P E A L # : r e c o n s i d e r a t i o n d e c i s i o n i n c l u d e d t h e f o l l o w i n g : e m e n t f o r m s i g n e d b y t h e a p p e l l a n t ' s p h y s i c i a n o n . t i o n s u b m i s s i o n . t o r y b o w e l d i s e a s e / u l c e r a t i v e c o l i t i s a n d s p i n a l B 1 2 a n d o t h e r s u p p l e m e n t s m a y p l a y i n t h e i r t o f d i s a b i l i t y a s s i s t a n c e a n d a $ 4 0 m o n t h l y d i e t A P W D R . g n o s e d h i m w i t h s p i n a l c o r d i n j u r y , u l c e r a t i v e e ) . T h e p h y s i c i a n i n d i c a t e d t h a t t h e a p p e l l a n t E A P W D R s e c t i o n 6 7 ( 1 . 1 ) ( b ) : m a l n u t r i t i o n a s s l o s s , a n d s i g n i f i c a n t d e t e r i o r a t i o n o f a v i t a l n t i s 5 ' 9 " t a l l a n d w e i g h s 2 0 0 p o u n d s . v i t a m i n o r m i n e r a l s u p p l e m e n t ( s ) r e q u i r e d a n d 2 " a n d " V i l D + C a " . 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APPEAL# '. Prior to the appeal hearing, the appellant submitted a letter dated June 12, 2014 to the offices of the Employment and Assistance Appeal Tribunal. The letter is from a physician acting as a locum for the appellant's regular physician. In his letter, the locum physician wrote that: • The appellant's spinal cord trauma causes him difficulty with walking, standing, sitting, attention to personal hygiene, and meal preparation. • The appellant's attention to food preparation is "sadly lacking". • The appellant suffers from ulcerative colitis which has not recently relapsed, but which could flare up at any time. • The locum physician sees the appellant at the local swimming pool 3 times a week where he swims to maintain muscle mass. "He is an inspiration to us all." • Nutritional supplementation would be of great benefit to the appellant in restoring his muscle mass so in the event of a relapse of ulcerative colitis he will be "ahead of the game and will not have as much muscle atrophy, this would then lessen the chances of him being admitted to the hospital for a prolonged stay thus saving the province the additional expense." • Allowing the supplement for 2 years would provide great benefit after which the need could be revisited. In his oral testimony on appeal the appellant said that he requires wheelchair-accessible accommodation, the rent for which uses up most of his disability assistance and leaves little for purchasing proper food. He goes swimming 6 or 7 times a week to maintain his muscle mass and his health, and relies on the food bank and free meals 3 times a week at a local church in order to get by. He said that his ulcerative colitis has recently flared up. The appellant, through his advocate, stated that he weighed 153 pounds when he got out of hospital after 6 months of treatment for his spinal cord injury, and that he has worked hard with swimming to try to rebuild muscle mass. The panel has assessed the information provided by the appellant in the locum physician's letter and in his oral testimony as providing additional detail with respect to his nutritional needs, and has accepted it as evidence in support of the information and records that were before the ministry at the time of reconsideration, in accordance withs. 22(4) of the Employment and Assistance Act. The ministry relied on its reconsideration decision. EMT 003(10/06/01)
� APPEAL# PART F -Reasons for Panel Decision The issue on appeal is whether the ministry's reconsideration decision, which held that the appellant is not eligible for a MNS, is reasonably supported by the evidence or whether it is a reasonable application of the applicable enactment in the circumstances of the appellant. The applicable legislation is as follows: EAPWDR Nutritional supplement 67 (1) The minister may provide a nutritional supplement in accordance with section 7 [monthly nutritional supplement] of Schedule C to or for a person with disabilities in a family unit who receives disability assistance ... if the minister is satisfied that (c) based on the information contained in the form required under subsection (1.1), the requirements set out in subsection (1.1) (a) to (d) are met in respect of the person with disabilities, (1.1) In order for a person with disabilities to receive a nutritional supplement under this section, the minister must receive a request, in the form specified by the minister, completed by a medical practitioner or nurse practitioner, in which the practitioner has confirmed all of the following: (a) the person with disabilities to whom the request relates is being treated by the practitioner for a chronic, progressive deterioration of health on account of a severe medical condition; (b) as a direct result of the chronic, progressive deterioration of health, the person displays two or more of the following symptoms: (i) malnutrition; (ii) underweight status; (iii) significant weight loss; (iv) significant muscle mass loss; (v) significant neurological degeneration; (vi) significant deterioration of a vital organ; (vii) moderate to severe immune suppression; (c) for the purpose of alleviating a symptom referred to in paragraph (b), the person requires one or more of the Items set out in section 7 of Schedule C and specified in the request; (d) failure to obtain the items referred to in paragraph (c) will result in imminent danger to the person's life. EAAT 003(10/06/01)
I APPEAL# Schedule C Monthly nutritional supplement 7 The amount of a nutritional supplement that may be provided under section 67 [nutritional supplement] of this regulation is the sum of the amounts for those of the following items specified as required in the request under section 67 (1) (c): (a) for additional nutritional items that are part of a caloric supplementation to a regular dietary intake, up to $165 each month; (b) Repealed. [B.C. Reg. 68/2010, s. 3 (b).J (c) for vitamins and minerals, up to $40 each month. • * * The appellant's position is that he satisfies the legislative criteria for MNS, and that he does not have enough money to pay for the nutritional items he needs unless he obtains the MNS. He argued that: • the legislation does not require the physician to specify an expected duration for the MNS, • the physician specified that the MNS would promote healing; • it is not possible to specify when danger to life is imminent; and • providing the MNS will keep the appellant out of hospital and will save the province money. The ministry's position, as set out in its reconsideration decision, is that the appellant is not eligible for MNS as he has not satisfied the legislated criteria in EAPWDR sections 67(1.1)(c) and (d) and Schedule C, subsection 7(a). The ministry argued that there was insufficient evidence to establish that the requested vitamins/mineral will alleviate the identified symptoms and that failure to obtain them will result in imminent danger to the appellant's life. With respect to nutritional items, the ministry argued that the appellant's body mass index does not establish that he is underweight or in need of caloric supplementation. Panel Decision Section 7 of EAPWDR Schedule C provides for two kinds of MNS: • Up to $165 per month for additional nutritional items that are part of a caloric supplementation to a regular dietary intake, and • Up to $40 per month for vitamins and minerals. In order for a person to be eligible for either or both MNS, section 67(7)(1.1) of the EAPWDR requires that a medical practitioner or nurse practitioner confirms the information required in each of paragraphs 67(1.1)(a) through (d). In addition, to be eligible for nutritional items, the evidence has to demonstrate that the person requires caloric supplementation to a regular dietary intake. In the appellant's case, the ministry determined that the appellant satisfied the criteria in paragraphs 67(1 .1) (a) [appellant being treated by a practitioner for a chronic, progressive deterioration of health] and 67(1.1 )(b) {appellant displays two or more prescribed symptoms]. With respect to paragraph 67(1.1 )(c), the physician commented that the requested vitamins/minerals would romote healin , but did not convincin I link it to one of the rescribed s m toms. SimilA rh, EAAT 003(10/06/01)
APPEAL# � with respect to nutritional items, the physician referred to better quality calories promoting good health and healing, but did not specify how caloric supplementation (that is, a quantity of calories in addition to a regular dietary intake) would alleviate one or more of the symptoms. With respect to paragraph 67(1.1 )(d), the physician has not identified that failure to receive either MNS will result in imminent danger to the appellant's life. The term "imminent" connotes a degree of immediacy which is not supported by the evidence, which indicates that the appellant has regained a significant amount of weight and that he has an appropriate body mass index. With respect to nutritional items, the panel acknowledges that the appellant's significant recovery of weight and muscle mass is due to his exemplary efforts and diligence. However, in order to be eligible for nutritional items under section 7 of Schedule C, a person must demonstrate that they require caloric supplementation. This refers to the quantity of calories as opposed to the "quality" or source of calories. The appellant's significant recovery of weight and his good body mass index do not demonstrate that the appellant requires caloric supplementation to a regular dietary intake. This conclusion is consistent with the evidence of the physician and the locum physician that while the appellant may be restricted in his ability to absorb calories when his ulcerative colitis is flaring, he has not experienced a flare-up in some time. The appellant stated that he has had a flare-up recently, but there is no medical confirmation of this and no evidence that the appellant has been unable to absorb sufficient calories as a result. The legislation does not indicate that any particular duration for MNS must be specified by a practitioner. Based on the panel's review of the ministry's reconsideration decision, the physician's failure to provide this information does not appear to have been a substantial basis for the ministry's decision. The panel is sympathetic to the appellant's circumstances. However, based on the evidence and for the above-noted reasons, the panel finds that the ministry's reconsideration decision to deny the appellant's request for MNS is a reasonable application of the legislation in the appellant's circumstances, and the panel accordingly confirms the ministry's decision. EMT 003(10/06101)
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