PART C -Decision under Appeal The decision under appeal is the Ministry of Social Development and Social Innovation (ministry) reconsideration decision dated January 28, 2014 which denied the appellant's request f o r a Monthly Nutritional Supplement (MNS) for additional nutritional items. The ministry held that the requirements of Section 67( 1.1) of the Employment and Assistance f o r Persons With Disabilities Regulation (EAPWDR) were not met as there is not sufficient inf o rmation to establish that: -the appellant requires additional nutritional items as part of a caloric supplementation to a regular dietary intake to alleviate the symptoms of his chronic, progressive deterioration of health and to prevent imminent danger to life. PART D -Relevant Legislation Employment and Assistance for Persons With Disabilities Regulation (EAPWDR), Section 67(1.1) and Schedule C, Section 7
PART E -Sum marv of F a cts The evidence bef o r e the ministry at the ti me of the reconsi 1) Ap plication f o r MNS dated August 15, 2013 si sta ting in part that: • The appe l la n t 's severe medica l conditions • In response t o the q u e stion whethe r as a di deterioration in he alth, does the appellan pract itioner indica ted t h e s ymptoms of ma signifi ca n t muscle mas s loss; • The appe l la n t 's height an d weigh t are recorded; • I n response to a request t o sp ecify the add pra ctitioner wrote: "patient needs extra • I n respo n se t o the questio n whet her the appellant has a the inability to absorb su ff i c ient calori es di e tar y intake, the me d i cal p rac titioner l • Ask ed t o des c ri b e ho w the nut ritional symp t oms descr ibed and pro vide c alo me dical prac titioner a lso l ef t this secti • Ask ed to des cr i b e ho w the nut ritional a ppellant 's life, the m edical pra ctit io n er 2) Letter sign ed by the ap pellant's medical pract that: • T he ap pellant's F M has caused cont inu w o rse. • Some of the m edicati on the a ppellant takes the m ed ica tion, he i s u nab le t o sleep properly shaking. He use s a CPA P machi ne. • Wit h Typ e 2 Di a bete s, t he appel lant ha ex erc ise. Because of the price of fresh diabetic die t , it i s una ff ordable. They go help meet t heir nutr i t io n al n eeds bu t only a appe l lant can eat and the rest has too much sugar. • T he app ell ant h ad a heart a t tack on M • The appellant tore or pul led every tendon in about 20 lbs. over a period of 7 years. • The appellant ha s sores from psoriasi s itself as fast as it should . • FM breaks down the muscles and organs and turns them into soft tiss system is deeply compromised, which explains why he catches every cough and cold going. It is not unusual for him t o h ave a • A doctor could look at him and at his stomach and confirm malnutrition.; and, 3) Request for Reconsideration dated January 14, 2014. Pri or to the hearing, the appellant provided the following additional document: Unda te d letter signed by a physi cian and stating in p • The appell ant suffers from FM , Diabetes 2 • FM has caused widespread severe and disablina musculoskeletal pain accompanied bv d er a ti on decision included: g n ed b y the appellant's medic al pr actitioner and are fi b romyalgi a (FM ) an d diabetes; rec t result of the c h ronic p rogr essiv e t display two or m o re s y m ptoms, the medical lnutrition, si gnificant weigh t loss and i tional nutri tional items required, the medical p rot ei n;" me d ical condition that results in to sa tisfy d aily r eq u irements through a regu lar ef t t hi s se ct ion b lan k ; items req u i red will allev iat e one or m ore of the ric sup plementati on to the r egular die t, the on of th e a pplic a t ion b l a nk; items will prev ent imm ine n t d an g er t o the w r ote: "h elp preven t in fection s;" and, itioner on Jan uary 1 4, 2 01 4, whi c h state s in p ar t al deter ioration a n d t he l as t 6 years have been is t o calm his nervo us syst em a nd , withou t a n d he w ou ld ha v e unc o n trollable s not bee n able t o co ntrol i t with prope r diet and fru i t , vegetables, m e ats , f is h, etc. for a p rop er to the foo d bank one d ay ever y second week t o sm all po rt i on of what t h ey re ce ive the arch 19 , 2 01 2 . his left shoulder 2 years ago. He has lost all over his body because his body ca nnot r e pair ue. His immune c o ld t hat lasts 1 ½ years. ar t that: , malnutrition and hear t disease.
fatigue, sleep, memory and mood issues. Severe muscle spasms, muscle weakness, muscle loss due to imbalance of nutrients, vitamins and protein. The appellant gets many severe infections which include colds that last for over a year. • Diabetes, if left untreated or improperly managed, can result in a variety of complications including heart disease, kidney disease, eye disease and nerve damage. Caloric supplementation will improve the quality of life and this will prevent imminent danger to heart, kidney and to life. The appellant suffered a heart attack 2 years ago and "has not been able to bounce back." • Heart disease-eat more fruits, vegetables, whole grains, and other high-fiber foods. Eat more foods high in omega-3 fatty acids, such as fish. Focus on foods that are high in calcium, potassium and magnesium. These nutrients can lower blood pressure. Folic acid, a B-complex vitamin, is an important nutrient and may also play a role in keeping the heart healthy and preventing cancer-causing changes in the cells. • The physician added a handwritten note: "agree with patient summary of the nutritional requirements." In the Notice of Appeal, the appellant expressed his disagreement with the ministry's reconsideration decision. The appellant wrote that the foods he is eating are not the foods a diabetic should be eating. He does not have a choice because of the price of fresh fruit, veggies, vitamins, and other foods are too high. The rashes and sores on the body will clearly show this. If he only ate what he should eat, he would easily drop 20 to 30 lbs. which would lead to more complications and possibly another heart attack. The appellant requests that a doctor be present at the hearing to verify that his health is fading. At the hearing, the appellant and his advocate stated that: • When his doctor completed the application for the MNS, he was brief and not that helpful. The appellant asked that a doctor be present at the hearing so that he could satisfy the criteria in the legislation. The doctor would see the sores all over his body which do not heal. • His symptoms are getting worse. • He experiences hair loss and open wounds. He has to use a CPAP machine when he's sleeping since he stops breathing 25 times per night and he gets aprasions from the machine. • He is taking 3 different medications for his nervous system. He experiences electric "tickles", like an electric shock, that goes through his body. He spent 3 months in hospital and the cause of the shocks could not be determined. He takes one medication that is for epilepsy but he does not have epilepsy. He takes another medication for anxiety disorders but he does not like to think he has anxiety. He takes the medications because they stop the shocks. • The appellant weighs 150 lbs. and if he ate the diet recommended for diabetes he would quickly drop to 130 lbs. • All the doctor wrote in the application was that he needed extra protein but he needs a healthy diet with proper nutrients so that he can lose the 'bad' weight. He has the wrong type of "weight" because he has high levels of the bad cholesterol. He should not be overweight and he needs to lose about 20 lbs. and be "fitter." • As far as he knows, his body processes the foods that he eats. Without nutrients, his diabetes is causing protein to leak into his kidneys and he will deteriorate faster. He needs to bring up his immune system. • He had a heart attack 2 years ago and he did not bounce back according to the stress test. • It is difficult to Qet the nutrients he needs. He is on 3 medications for his heart and there are
certain foods he cannot eat, such as grapefruit. • Food prices are going up and fresh fruits and vegetables would help his health. His doctor wants him to eat a healthy diet and it would help his situation. • With Diabetes Type 2, he needs to keep his blood [sugar] levels low otherwise he will be subject to different risks such as loss of a limb, or his heart or liver could go into failure. The items recommended for a diabetic diet are too expensive to purchase and the monthly supplement would help. The diet for diabetes is mostly protein, including beef and fruits and vegetables. • The additional letter was not signed by his regular doctor because he was away at the time. He has seen the doctor who signed the letter before. The doctor reviewed his chart, reviewed the letter and signed the letter on February 18, 2014. • The ministry supplied him with Boost for a period of 2 years and then said he was no longer eligible. The ministry did not object to the admissibility of the letter. The panel reviewed the letter and admitted it as relating to the appellant's previously diagnosed medical conditions and his need for the MNS and being in support of information before the ministry on reconsideration, pursuant to Section 22(4) of the Employment and Assistance Act. The ministry relied on its reconsideration decision which included evidence that the appellant is a Person With Disabilities (PWD) in receipt of disability assistance and a dietary supplement for diabetes at the rate of $35 per month. The appellant was approved for the vitamin and mineral supplement in the amount of $40 per month. At the hearing, the ministry highlighted the policy for MNS which states that a recipient of disability assistance must have a severe medical condition causing a chronic, progressive deterioration of health with symptoms of wasting. The supplement is intended to prevent imminent danger to the person's life by providing essential, specified items to supplement regular nutritional needs. The ministry provided a definition of "imminent" as 'likely to occur at any moment.' The ministry also stated that every word in the legislation is important and section 67 requires that the request must be in the specific form prescribed by the ministry and the medical or nurse practitioner must confirm all the elements listed in the section as part of this request.
PART F -Reasons for Panel Decision The issue on the appeal is whether the ministry decision, which denied the appellant's request for a Monthly Nutritional Supplement for additional nutritional items because the requirements of Section 67(1.1) of the Employment and Assistance for Persons With Disabilities Regulation (EAPWDR) were not met, was reasonably supported by the evidence or is a reasonable application of the applicable enactment in the circumstances of the appellant. Section 67(1.1) of the EAPWDR sets out the eligibility requirements which are at issue on this appeal for providing the additional nutritional supplement, as follows: Nutritional supplement 67 (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. Section 7 of Schedule C of the EAPWDR provides as follows: 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).] {c) for vitamins and minerals, up to $40 each month. The ministry acknowledged that the medical practitioner confirmed that the appellant is being treated for a chronic, progressive deterioration of health on account of a severe medical condition, specifically FM and diabetes as well as an unspecified neurological disorder, a heart condition, and inflammation of the riqht shoulder, pursuant to Section 67(1.1) (a) of the EAPWDR. Section 67(1.1) /b)
of the EAPWDR requires that a medical practitioner confirm that as a direct result of the chronic, progressive deterioration of health, the person displays two or more of the symptoms listed. The ministry acknowledged that there is sufficient information from the medical practitioner to establish that the appellant displays two or more of the symptoms, namely significant muscle mass loss, moderate to severe immune suppression and significant deterioration of a vital organ. Section 67(1.1)(c) and Section 7 of Schedule C of the EAPWDR-Caloric Supplementation The ministry's position is that it is not satisfied that the appellant requires additional nutritional items as part of a caloric supplementation to a regular dietary intake to alleviate the symptoms of a chronic, progressive deterioration of health. The ministry argued that the medical practitioner specified that the additional nutritional item required is extra protein but did not describe how the nutritional item will alleviate one or more of the symptoms and provide caloric supplementation to the regular diet. The ministry argued that the medical practitioner did not confirm that the appellant has a medical condition that results in the inability to absorb sufficient calories to satisfy daily requirements through a regular dietary intake. The ministry argued that the medical practitioner did not provide a reason for the symptom of malnutrition to relate it to one of the appellant's medical conditions and, therefore, this symptom was not established. The ministry also argued that the medical practitioner did not provide detail to confirm that the appellant is displaying underweight status or significant weight loss, which would demonstrate that he requires caloric supplementation to a regular dietary intake. The ministry argued that the appellant does not display the symptom of significant weight loss as a loss of 20 lbs. over a period of 7 years does not represent a 'significant' weight loss, especially since the appellant is at a normal weight and his current BMI is in the normal range. The appellant's position is that sufficient information has been provided by the medical practitioner, in both the original Application and the additional letters, to establish that he requires additional nutritional items as part of a caloric supplementation to a regular dietary intake to alleviate the symptoms of a chronic, progressive deterioration of health. The appellant argued that his FM has caused continual deterioration and the last 6 years have been worse, that he had a heart attack 2 years ago, he spent 3 months in the hospital for an undiagnosed neurological disorder, he has diabetes and inflammation of the right shoulder. The appellant argued that he has lost about 20 lbs. over a period of 7 years and if a doctor had attended the hearing, as he requested in his Notice of Appeal, one look at him and his stomach would allow the doctor to confirm malnutrition and that his health is fading. The appellant argued that the medical practitioner specified extra protein and there are other nutritional items that the appellant could use such as fresh fruits and vegetables to allow him to lose the "bad weight" and become fitter but these foods are not affordable. The appellant argued that in the additional letter it is confirmed by a physician that diabetes, if left untreated or improperly managed, can result in a variety of complications including heart disease, kidney disease, eye disease and nerve damage and that caloric supplementation will improve the quality of life. Panel decision Section 7 of Schedule C and Section 67(1.1 )(c) of the EAPWDR stipulate that the medical practitioner must confirm that, for the purpose of alleviating a symptom referred to in sub-section (b), the appellant requires the additional nutritional items that are part of a caloric supplementation to a regular dietary intake as specified in the request. In the original application, in response to the question whether the appellant has a medical condition that results in the inability to absorb sufficient calories to satisfy daily requirements through a regular dietary intake, the medical practitioner left this section of the annlication blank. Although the aooellant arQued that he has a number of sianificant
heal t h issu e s and a doc t o r could c onfi r m malnutritio th e m inistr y reas onab ly d et ermi ned that this sympto pract i t ion er sinc e it wa s n ot s ufficient ly describ ed an con d itions in t he original a ppl i ca t i on . In respon se to a r e que st to spe cify the add i t i ona l n u wrote that the a ppellan t "nee ds extra protein." In the lette medi c al practitioner indi c ate d a g ree ment w i t h th e n the a ppellan t ne ed s to eat more fruits , vegetables, fo ods high in omega-3 fatt y acids, such as fi s h . As well, the are hi g h in ca l c i u m , pot assium and magnesium as th ac id, a B-co m p l ex vitami n, is an i m po rtant nu tri en t an The p a n el f inds that the med ical practit ioner s do no pr o vidin g c aloric s upplementat ion to t he regu l a r d iet, r e gular diet. In the o r iginal a p plic ation, wh e n aske d on e or more of the symptoms and provide ca l oric suppleme practi tioner also lef t thi s section of the appl ica tion blank. The pane l fin d s th at the mi n i stry reas o nably de t e rmin avai l a ble from a medic al p ractitione r t o c onfirm th at the app du e to sym ptoms of was tin g, de s pite the o pport u nity for thes prac t i tioners in the ad ditiona l lette r s of Janua r y 1 4, show s tha t the it ems descri b e d as a d dit iona l n utritional hea l th, the app ell a nt doe s not disp ut e that the extra p a rt of a c alo r ic supplementati on to a regular diet, b p a rticu l a r hea lt h conce r n s. The appell a nt stated at diet so th at he c an lose the "bad w eight " an d b e com reasonabl y concluded th at t here is not suff icie nt i nfo th at spec i f i e d add i tio nal nutriti onal items are requir ed suppleme nt a t i o n to a regul ar diet ary inta ke t o al leviate 67(1.1 ) (c) of the EAP WDR . Section 67(1.1)(d) of the EAPWDR-Imminent Danger to Life The ministry's posit ion i s that it i s not satisfied t hat the to preven t an imminent d anger to the ap pellant's life. The ministry argued nu t ritional item s requ i re d w i ll p r e vent i m minent danger to life, the medical practiti they will ". ..h elp prevent infe c tion s." At th e hearing, the minis defined as 'lik ely to occur at any moment' and that, e no t sufficient i nformation to establish th at t he m edical the additional nutritional items will result in imminent dang argued that the additi ona l lett ers addr es s the potential without specifying the immediate risks in the appellant's circumstances. The appellant's position is that the information from the med obtain the additional nutritional items will result in imminent danger to his life. that his immune system is deeply compromised, that he gets many severe infections which include colds that last for over a vear, that he suffered a heart attack 2 vears aqo and "has not been able to n b y lo oking at hi s stomac h , t he pan el f i n ds t h a t m has not be en con firmed b y a m edica l d relate d to o ne o f the appe l lan t 's medi cal trit ion al items required, th e med ical prac t itio ner r signed Fe br u ary 18, 2014, a nothe r u trit ion al requi r ements s et ou t , in pa rti c ular th at w h ole grain s , o t h er high-fiber f o o d s, and more a p pe l lant nee ds t o fo cus o n fo ods tha t ese nu tr i ents c an lowe r blood pressu re a nd f o lic d m a y play a r ole in kee ping t he heart heal t hy . t characterize any o f the n utr i t i onal items l is ted as but rather as h ealthy food choices wi t h in a t o describe ho w the nutritiona l items will alleviate nt a tion to the re g ula r d i et, the medica l ed tha t th ere is ins uff ici en t evid e nce currently el lant requires calo r ic s up plementa tion e details to b e ad ded by the med i cal 20 14 a nd F ebruar y 18, 2014 . While the eviden ce i tems w o uld b e bene fici a l t o the ap pell ant's protein a n d fruits and v eg etables, etc. are no t ut rath er part of a r e gula r d iet t ha t is ge ar e d to h is t h e hearin g t h at h e nee d s t o mai ntain a hea l th y e more fit. The pan el fi nds th at the m i nistry r mation from th e medi cal p ractitioner to confi r m by the appell a nt as p a r t of a c aloric a re la t ed s ympt om, as set ou t in Section appellant requires additi ona l nutritional items that in describing how the o ner indicate d that try argued t hat t he word "i m mi n ent" i s ven c o nsi d ering the add i t ional letters, there i s practitioner has confirm ed that failur e t o obtain er to the appellant's life. The ministry r isks t o h ealth conditions in a general way ical practitioner confirmed that failure t o The appellant argued
b o u n c e b a c k " a n d , w i t h D i a b e t e s T y p e 2 , h e n e e d s w i l l b e s u b j e c t t o d i f f e r e n t r i s k s s u c h a s l o s s o f a l i m P a n e l d e c i s i o n S e c t i o n 6 7 ( 1 . 1 ) ( d ) r e q u i r e s t h a t t h e m e d i c a l p r a c t i t i o i t e m s t h a t a r e p a rt o f a c a l o r i c s u p p l e m e n t a t i o n t o a d a n g e r t o t h e p e r s o n ' s l i f e . I n t h e o r i g i n a l A p p l i c a t i o q u e s t i o n h o w t h e n u t r i t i o n a l i t e m s w i l l p r e v e n t i m m i n w i l l " . . . h e l p p r e v e n t i n f e c t i o n s . " T h e p a n e l f i n d s t h a i n i m m i n e n t d a n g e r " i n d i c a t e s a r e q u i r e m e n t f o r m o i s , r a t h e r , a g u a r a n t e e d o c c u r r e n c e w i t h o u t t h e n u t r i n s u f f i c i e n t i n f o r m a t i o n p r o v i d e d b y t h e m e d i c a l p r a c i n f e c t i o n s i s c u r r e n t l y h i g h , s i n c e t h e e v i d e n c e r e l a t e d i f f i c u l t y o v e r c o m i n g , a c o m m o n c o l d . A s p o i n t e d o t h e p o t e n t i a l r i s k t o d i a b e t e s i f l e f t u n t r e a t e d o r i m p r t h e c u r r e n t d a n g e r t o t h e a p p e l l a n t . T h e r e i s a l s o i n p r a c t i t i o n e r t o s h o w t h a t t h e r e i s a r a p i d r a t e o f d e t e i n d i c a t e t h a t t h e 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 , w i t h o u l i k e l y t o h a p p e n s o o n . T h e p a n e l f i n d s t h a t t h e m i n i p r a c t i t i o n e r h a s n o t c o n f i r m e d t h a t f a i l u r e t o o b t a i n t i n i m m i n e n t 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 , a s r e q u i r e C o n c l u s i o n T h e p a n e l f i n d s t h a t t h e m i n i s t r y ' s r e c o n s i d e r a t i o n d M o n t h l y N u t r i t i o n a l S u p p l e m e n t f o r a d d i t i o n a l n u t r i t i o S e c t i o n 6 7 ( 1 . 1 ) o f t h e E A P W D R w e r e n o t m e t , w a s p a n e l c o n f i r m s t h e m i n i s t r y ' s d e c i s i o n .t o k e e p h i s b l o o d s u g a r l e v e l s l o w o t h e r w i s e h e b , o r h i s h e a r t o r l i v e r c o u l d g o i n t o f a i l u r e . n e r c o n f i r m t h a t f a i l u r e t o o b t a i n t h e n u t r i t i o n a l r e g u l a r d i e t a r y i n t a k e w i l l r e s u l t i n i m m i n e n t n , t h e m e d i c a l p r a c t i t i o n e r r e s p o n d e d t o t h e e n t 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 , b y s t a t i n g t h e y t t h e u s e o f t h e w o r d s i n t h e s u b s e c t i o n " w ill r e s u l t r e t h a n a r i s k o r p o s s i b i l i t y ; i m m i n e n t d a n g e r t o l i f e i t i o n a l i t e m s . T h e p a n e l f i n d s t h a t t h e r e i s t i t i o n e r t o c o n f i r m t h a t t h e r i s k o f l i f e t h r e a t e n i n g s t o t h e r i s k o f c a t c h i n g , a n d t h e a p p e l l a n t ' s u t b y t h e m i n i s t r y , t h e a d d i t i o n a l l e t t e r s a d d r e s s o p e r l y m a n a g e d , w i t h o u t c o n f i r m i n g o r d e s c r i b i n g s u f f i c i e n t i n f o r m a t i o n p r o v i d e d b y t h e m e d i c a l r i o r a t i o n i n t h e a p p e l l a n t ' s h e a l t h t h a t w o u l d t t h e a d d i t i o n a l n u t r i t i o n a l i t e m s i s " i m m i n e n t , " o r s t r y r e a s o n a b l y c o n c l u d e d t h a t t h e m e d i c a l h e r e q u e s t e d a d d i t i o n a l n u t r i t i o n a l i t e m s w i l l r e s u l t d b y S e c t i o n 6 7 ( 1 . 1 ) ( d ) o f t h e E A P W D R . e c i s i o n , w h i c h d e n i e d t h e a p p e l l a n t ' s r e q u e s t f o r a n a l i t e m s b e c a u s e a l l o f t h e r e q u i r e m e n t s o f r e a s o n a b l y s u p p o r t e d b y t h e e v i d e n c e a n d t h e
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