APPEAL t I PART C -Decision under Appeal The decision under appeal is the reconsideration decision of the Ministry of Social Development and Social Innovation (the "ministry") dated February 26, 2014, which held that the appellant did not meet all of the applicable statutory requirements of section 2 of the Employment and Assistance Regulation (EAR) to qualify as a person with persistent multiple barriers (PPMB) to employment. The ministry was satisfied that the evidence establishes that the criterion set out in the EAR section 2(2) has been met, as the appellant has been a recipient of income assistance for at least 12 of the proceeding 15 months. However, the ministiy found that the appellant did not meet the requirement set out in EAR section 2(3)(a)(i) as her score on the Employability Screen was less than 15 and therefore relied upon the provisions set out under section 2(4)(a) and (b) of the EAR. The ministly determined that the appellant's physician did not confirm that she has a medical condition, other than addiction, that has continued for one year and is likely to continue for at least 2 more years, as set out in section 2(4)(a) of the EAR and that the medical condition did not establish that she has a barrier that precludes her from searching for, accepting, or continuing in employment, as set out in 2(4 )(b) of the EAR. PART D -Relevant Legislation Employment and Assistance Regulation (EAR) section 2 EAAT 003( 10/06/01)
APPEAL; I PART E -Summary of Facts Evidence before the minisliy at the time of reconsideration included the following: Request for Reconsideration dated Febmary 12, 2014. Letter dated Febmary 12, 2014, accompanying to the appellant's Request for Reconsideration, addressed "To Whom it may concern". PPMB Medical Repmt dated November 13, 2013. Ministry Employability Screen, undated, with a total score of 12 Ministry PPMB Renewal letter to the appellant dated October 31, 2013. PPMB Medical Repmt dated November 16, 2011. In the appellant's Request for Reconsideration dated Febrnary 12, 2014, and her accompanying letter of the same date, she wrote that she was previously "on disability" (i.e. PPMB) "for the same reasons as I am now being denied for". She repmts that she suffers from depression and anxiety for which she takes medication A, which helps a little. She is also taking medication B for sleep. She was taking medication C for drng addiction but switched to medication D just before, or around Christmas 2013, because medication C was making her feel sick. She is working at getting off medication D as she does not want to be a lifer. Unlike the medication C, the cost of her prescription for medication Dis not covered if she is no longer eligible for PPMB. As a result she will not be able to afford her current medication which costs $200.00 a week or more. She reports that she is steadily reducing her reliance on medication D starting at 24 mg. and has reduced this to 20 mg. In the appellant's PPMB Medical Repmt dated November 13, 2013, her physician states that the appellant's primary medical conditions are "depression/anxiety", date of onset 2011, and that her secondary medical condition is "drng dependence", no date of onset is provided. Treatment is reported as medication E, and her primary medical conditions have existed for 2 years. Expected duration of these conditions is reported as "less than 2 years", and her condition is not episodic in nature. The appellant's restrictions specific to her medical conditions are reported as "Difficulty sleeping" with the comment "Improving with treatment". No fmther narrative was provided by the physician. The physician who completed the PPMB medical report is a General Practitioner (GP) and has been the appellant's GP for more than 6 months. In the ministry's PPMB renewal letter to the appellant dated October 31, 2013, the appellant was informed that in order to determine her eligibility for PPMB the ministry required a new PPMB Medical Report and an Employability Screen. In addition to this the appellant voluntarily reported the following responses to additional questions asked in the ministry's letter. 1. List any medical conditions not included on your Medical Report form: Response--medication B (sleeping); medication D (d1ug addiction) 24 mg daily dose; Just switched from medication C October 2013. 2. Describe any conditions that are a result of your medical conditions: Response--Problems sleeping, always tired (medication D) just switched to new meds want to lower my dose over time to get off all meds (was drug addict) Once off medication D goal is to get a job full time and get off my other meds. The appellant's PPMB Medical Report dated November 16, 2011, was completed by the same physician who completed the appellant's November 13, 2013, PPMB Medical Report. The physician reports that the appellant's primary medical conditions as "depression/anxiety"; date of onset is reported as "years", secondary medical condition "substance abuse", date of onset not specified. The physician further reports the treatment for the appellant's primary medical conditions as being various antidepressants, her outcome as stable, her EAAT 003(10/06/01)
I APPEAL, conditions have existed for 25 years, the expected duration, "more than 2 years". The physician further reports that the appellant's conditions are not episodic in nature and restrictions specific to her medical conditions are "trouble concentrating, no energy, and low motivation". After the ministry Reconsideration Decision and prior to the hearing the appellant submitted the following information in the Reasons section of her Notice of Appeal. "I was on PPMB with the medications I'm on now, but I'm being denied. I'm guessing due to renewed app saying 2 years or less. I told him I wanted to be off my meds in 2 years or less. Been taking antidepressants for over 2 years. Switched to medication D because complications with medication C. I am also on other pills due to sleeping issue". A two page submission from the appellant received by the Tribunal March 24, 2014, signed by the appellant March 20, 2014. This submission included a signed Release of Information form permitting the appellant's representative to attend the hearing, and a letter addressed "To Whom it May Concern" from the appellant's physician dated March 22, 2014. The physician's letter reports the following: "She has been on medication for mental illness since 2011 and has been unable to work since that time as well. She is still unable to work due to mental illness." At the hearing the appellant reported that she has been on PPMB since 2011 and has been on anti depressants medication since that time. She reported that the only real change has been in her medications from medication C to medication D because medication C was not working and was making her sick. The appellant also reported that she is also taking sleeping pills as she has difficulty sleeping. The appellant then refetTed to a letter from her physician submitted to the Tribunal prior to the hearing which reports that she has been on medication for mental illness since 2011, and has been unable to work since that time and she is currently unable to work due to mental illness. In response to a question from the panel the appellant rep011ed that she has been seeing the same physician that completed both of her PPMB Medical Reports for the past six years and that she may have been somewhat overly optimistic by informing him that she is determined to reduce her dependency on medication D and on all medications if possible in less than two years. The advocate added that the appellant will likely require anti depression medications for a prolonged period of time and that medication D is the medication that she is trying to reduce her reliance on. The ministry stood by the record at the hearing. In response to a question from the panel asking how the ministry determined that the appellant's medical conditions are not a barrier which preclude her from searching for, accepting or continuing in employment, the ministry referred the panel to the restrictions listed by the appellant's physician in the PPMB Medical Report, "Difficulty sleeping", and "Improving with treatment". The panel found both the appellant's oral testimony and the physician's letter of March 22, 2014, admissible under section 22(4) of the Employment and Assistance Act as both were found to be in support of the information and records before the minist1y at reconsideration. The oral testimony provided additional information from the appellant and her advocate as to why she believes the ministty's decision to be unreasonable, and the up to date opinion from the appellant's physician regarding her medical conditions and the impact he believes they have had on her previous and current employability added medical evidence regarding the appellant's health. The ministry did not object. The panel made the following findings of fact from the evidence presented: EAAT003(10/06101)
I APPEAL๏ฟฝ โข The appellant has been in receipt of income assistance for at least 12 of the preceding 15 calendar months. โข The appellant's score on the Employability Screen is less than 15. โข The appellant's physician has diagnosed her primary medical condition as depression/anxiety and a secondary medical condition of drng dependency. โข Treatment has included "medication E". โข The physician reports that the appellant's primary medical conditions have existed for 2 years and that the prognosis is that the expected duration of these medical conditions is less than two years. โข The physician that the appellant has been unable to work since 2011, and is still unable to work due to mental illness. EAAT 003(1 0/06/01)
PAR T F -Reasons f or Pa n el Dec ision T he issue in this appe al is whe ther the mi nistry's d e t erm a p plic able statutory requirement s of sec t ion 2 of the Empl p erson wi th persistent multi ple ban-i er s to employm e nt wa rea s onably supported by the evi d ence. T he m ini s t r y was satisfied tha se t out in the E AR sectio n 2 (2) has bee n m e t , as the app ell le ast 12 of t h e proceedi ng 15 mon ths . H owever , the mini re quir ement set ou t in E A R sec tio n 2(3)(a)( i ) as h er score on t h erefore relied upon t h e p rov is i ons set out und e r se c tion tha t the ap pe lla nt's physici an did no t con fi rm th at s he has a cont inue d fo r one y ear and i s likely t o con tinue fo r a t l east an d that the me dica l cond iti ons r eported by her physician her fr om searching for , acce pti ng , o r co nti nuin g in e m p l oym the ir decisio n the m inist ty r elied u pon the fo ll ow i ng leg i sla E mplo yment and Assista nc e Regulat ion Pe rsons w ho haye persi st ent mu l tiple ba rrie rs t o e mpl oyment 2 (1 ) To q u a l if y a s a per son wh o has persiste n t m ul t ip le barriers to ( a) subs e ct ion ( 2 ), a nd (b) s ubs ection (3) or (4). (2) The pers o n has be en a re c ipien t for at least 12 o f t he im media ( a) income assista n c e or h a rds hip assista ( b) income a ssista nce, hardsh i p ass i stance (c) a disa b ili ty allowance un d e r the Disability Benefi (d) disabi l i ty assi st ance or hards hip ass Disab ilit i es Act . (3) Th e f o llow i ng r equireme nts apply (a) the min ister (i) has determine d that the person scores at least 15 on the employability scree and ( i i) b ased on the result of th a seriously impede the person' s a (b) the person has a medical condition, that, (i) in the opinion of the medical practitioner, (A) has continued for at least one year and is likely to continue fo {B) has o ccurred f requently years, and (ii) in the opini on of the minister, is a barrier that seriously impedes the person's ability to search for, accept or continue in employment, and (c) the person has taken all steps that the minister considers reasonable for the person referred to in paragraph (a). (4) The person has a medical condition, other t han an a d dic tion, (a) in th e opi n i on of th e medical practitioner, (i) has continued for at least one vear and is likely to continue for at least 2 more vears, or EMT 003(10/06/01) I APPE AL , i nati on tha t th e appellan t di d not meet al l of t h e oymen t and A s sistance R eg ul atio n to q ual i f y a s a s eit h er a r easonabl e ap plica t ion of t h e le gis l ati on or t the e vid e nce establ ishes tha t the criteria a n t h as bee n a rec i pient of inco me assist a n c e fo r a t str y found that t he app ellan t did no t m eet the the Empl oya b i li ty S c reen w a s le ss than 1 5 and 2( 4 )(a ) and ( b) of th e EAR. The min istry det e rmin e d m e d ical c o ndit ion, other than ad dict ion , that h as 2 more yea rs, as set out i n se ct ion 2 (4 ) ( a) of t h e EAR d id not es t ablish tha t s he has a barrie r that precl ud es ent, as s e t out in 2(4 )(b) of t h e EAR. In ar riving at t ion : employm ent, a per s o n m us t me et the requirements set o ut i n t ely pr ec e d in g 1 5 c al endar m onths of o ne or mo r e of the follow ing: n c e unde r th e Act; or a youth a l low ance un der a former Act; t s Progr am Act; i s t ance under t h e Employment and A ss ist ance for Persons w i t h n set out in Schedule E, t emplo yability screen, considers that the person has barriers that bility to sea r c h for, accept or con tinue in employment, other than an addiction, that is confirmed by a me dical practitioner a nd r at least 2 more ye ars, or in the pa st year and is li kely to continue for at lea s t 2 more to overcome the barriers that i s confirmed by a medical prac titioner and that,
( i i ) h a s o c c u r r e d fr e q u e n t l y ( b ) i n t h e o p i n i o n o f t h e m i n i s t e r , i s a c o n t i n u i n g i n e m p l o y m e n t . T h e r e i s n o d i s p u t e b y e i t h e r p a i t y t h a t t h e a p p e l l a n t ' s s c t h a n 1 5 , a n d t h e r e f o r e h e r P P M B a p p l i c a t i o n h a s b e e n a i s a l s o n o d i s p u t e t h a t t h e a p p e l l a n t h a s m e t t h e r e q u i r e m o n i n c o m e a s s i s t a n c e f o r a t l e a s t 1 2 o f t h e p r e c e d i n g 1 5 T h e a p p e l l a n t ' s p o s i t i o n i s t h a t s h e h a s b e e n u n a b l e t o w t h a t i f s h e d o e s n o t r e c e i v e P P M B s h e w i l l n o t b e a b l e t o p o s i t i o n i s t h a t t h e a p p e l l a n t d i d n o t m e e t a l l o f t h e a p p l i a n d s p e c i fi c a l l y t h a t s h e d o e s n o t m e e t e i t h e r o f t h e l e g i s t h e r e f o r e i n e l i g i b l e t o r e c e i v e b e n e fi t s a s a P P M B t o e m A s t o t h e r e q u i r e m e n t s s e t o u t i n s e c t i o n 2 ( 4 ) ( a ) o f t h e E c o n d i t i o n s h a v e n o t c h a n g e d s i n c e s h e w a s a p p r o v e d a s t h a t b e c a u s e s h e i s a n o p t i m i s t i c p e r s o n , a n d l i k e s t o s e t s h e w a n t e d t o b e o ff o f h e r m e d i c a t i o n s i n l e s s t h a n t w o e x p e c t e d d u r a t i o n o f h e r c o n d i t i o n s i s l e s s t h a n 2 y e a r s . r e c e n t m e d i c a l r e p o r t o f M a r c h 2 2 , 2 0 1 4 , c l e a r l y s t a t e s t h s h e i s c u r r e n t l y u n a b l e t o w o r k . F u r t h e r m o r e , i n t h e a p p R e c o n s i d e r a t i o n d a t e d F e b r u a r y 1 2 , 2 0 1 4 , s h e a i ยท g u e s t h a s w i t c h e d t o m e d i c a t i o n D j u s t b e fo r e , o r a r o u n d C h r i s t m s i c k . S h e i s w o r k i n g a t g e t t i n g o ff m e d i c a t i o n D a s s h e d C ; t h e c o s t o f h e r p r e s c r i p t i o n fo r m e d i c a t i o n D i s n o t c o a p p e l l a n t a r g u e d t h a t a s t h e c o s t fo r m e d i c a t i o n D i s $ 2 0 i t a n d w i l l g e t s i c k w i t h o u t i t . T h e m i n i s t r y a r g u e d a t t h e h e a i " i n g a n d i n t h e i r R e c o n s i d c l e a r l y s t a t e s i n t h e P P M B M e d i c a l R e p o r t o f N o v e m b e r c o n d i t i o n i s l e s s t h a n 2 y e a r s . W h i l e t h e a p p e l l a n t m a y h o p i n i o n t h a t t h e m i n i s t r y m u s t r e l y o n i n r e s p o n s e t o t h i s h a v i n g t h e f u n d s r e q u i r e d fo r t h e p u r c h a s e o f m e d i c a t i o n a i ยท g u e d i n t h e i r R e c o n s i d e r a t i o n D e c i s i o n t h a t s e c t i o n 2 ( 4 m e d i c a l c o n d i t i o n , o t h e r t h a n a d d i c t i o n , t h e r e fo r e a n y r e s d e p e n d e n c y c a n n o t b e c o n s i d e r e d . T h e p a n e l fi n d s t h a t w h i l e t h e a p p e l l a n t m a y w e l l h a v e b m e d i c a l p r o g n o s i s , t h e p h y s i c i a n h a d a n o p p o r t u n i t y t o c s u b m i s s i o n o f M a r c h 2 2 , 2 0 1 4 , a n d d i d n o t a d d r e s s t h i s i a b l e t o c o n t i n u e t o a ff o r d t h e p u r c h a s e o f m e d i c a t i o n D , l o n g e r i n r e c e i p t o f P P M B , 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 E A R r e q u i r e s t h a t t h e p e r s o n m u s t h a v e a m e d i c a l c o n d i t l e g i s l a t i v e r e q u i r e m e n t , t h e r e fo r e a n y r e s t r i c t i o n s r e l a t e d B a s e d o n t h e e v i d e n c e p r e s e n t e d t h e p a n e l fi n d s t h e m i n i p h y s i c i a n h a s n o t c o n fi r m e d t h a t s h e h a s a m e d i c a l c o n d i y e a r a n d i s l i k e l y t o c o n t i n u e f o r a t l e a s t 2 m o r e y e a r s , a s E AA T 0 0 3 ( 1 0 / 0 6 / 0 1 )A P P E A L I i n t h e p a s t y e a r a n d i s l i k e l y t o c o n t i n u e fo r a t l e a s t 2 m o r e y e a r s , a n d b a r r i e r t h a t p r e c l u d e s t h e p e r s o n f r o m s e a r c h i n g f o r , a c c e p t i n g o r o r e o n t h e E m p l o y a b i l i t y S c r e e n i s 1 2 , w h i c h i s l e s s s s e s s e d u n d e r s e c t i o n s 2 ( 2 ) a n d 2 ( 4 ) o f t h e E A R . T h e r e e n t s s e t o u t i n s e c t i o n 2 ( 2 ) ( a ) o f E A R a s s h e h a s b e e n c a l e n d a r m o n t h s . o r k a s a r e s u l t o f h e r m e d i c a l c o n d i t i o n s s i n c e 2 0 1 1 a n d a f f o r d m e d i c a t i o n D a n d w i l l g e t s i c k . T h e m i n i s t r y ' s c a b l e s t a t u t o r y r e q u i r e m e n t s o f s e c t i o n 2 o f t h e E A R l a t i v e c r i t e r i a s e t o u t i n s e c t i o n 4 ( a ) o r ( b ) a n d i s p l o y m e n t . A R , t h e a p p e l l a n t a r g u e d a t t h e h e a r i n g t h a t h e r m e d i c a l a P P M B t o e m p l o y m e n t i n 2 0 1 1 . S h e f u r t h e r a r g u e d g o a l s fo r h e r s e l f , s h e m a y h a v e t o l d h e r p h y s i c i a n t h a t y e a r s a n d t h i s m a y a c c o u n t fo r h i s r e p o 1 t i n g t h a t t h e T h e a p p e l l a n t a l s o a r g u e d t h a t h e r p h y s i c i a n ' s m o s t a t s h e h a s b e e n u n a b l e t o w o r k s i n c e 2 0 1 1 , a n d t h a t e l l a n t ' s s u b m i s s i o n i n c l u d e d w i t h R e q u e s t fo r t s h e w a s t a k i n g m e d i c a t i o n C fo r d r u g a d d i c t i o n b u t a s 2 0 1 3 , b e c a u s e m e d i c a t i o n C w a s m a k i n g h e r f e e l o e s n o t w a n t t o b e a l i fe r , h o w e v e r u n l i k e m e d i c a t i o n v e r e d i f s h e i s n o l o n g e r e l i g i b l e fo r P P M B . T h e 0 . 0 0 a w e e k o r m o r e s h e w i l l s o o n n o t b e a b l e t o a f fo r d e r a t i o n D e c i s i o n t h a t t h a t t h e a p p e l l a n t ' s p h y s i c i a n 1 3 , 2 0 1 3 , t h a t t h e e x p e c t e d d u r a t i o n o f h e r m e d i c a l a v e r e a s o n t o b e l i e v e d i f f e r e n t l y i t i s t h e p h y s i c i a n ' s q u e s t i o n . A s t o t h e a p p e l l a n t ' s c o n c e rn s a b o u t n o t D , t o t r e a t h e r s u b s t a n c e d e p e n d e n c y , t h e m i n i s t r y ) ( a ) o f t h e E A R r e q u i r e s t h a t t h e p e r s o n m u s t h a v e a t r i c t i o n s r e l a t e d t o t h e a p p e l l a n t ' s s u b s t a n c e e e n o v e r l y o p t i m i s t i c w i t h h e r p h y s i c i a n r e g a i ยท d i n g h e r h a n g e h i s m i n d r e g a r d i n g h i s p r o g n o s i s i n h i s s s u e . A s t o t h e a p p e l l a n t ' s c o n c e r n s a b o u t n o t b e i n g u s e d t o t r e a t h e r s u b s t a n c e d e p e n d e n c y i f s h e i s n o r y r e a s o n a b l y d e t e r m i n e d t h a t s e c t i o n 2 ( 4 ) ( a ) o f t h e i o n , o t h e r t h a n a d d i c t i o n i n o r d e r t o m e e t t h i s t o h e r s u b s t a n c e d e p e n d e n c y c a n n o t b e c o n s i d e r e d . s t r y r e a s o n a b l y d e t e r m i n e d t h a t t h e a p p e l l a n t ' s t i o n , o t h e r t h a n a d d i c t i o n , t h a t h a s c o n t i n u e d fo r o n e s e t o u t a b o v e i n s e c t i o n 2 ( 4 ) ( a ) o f t h e E A R .
I APPEAL As to the requirements set out in section 2(4)(b) of the EAR the appellant argued that her medical conditions have not changed since her PPMB application was approved in 2011, and that her physician's submission of March 22, 2014, provides confirmation that in his opinion she has been unable to work since 2011 and is currently unable to work, due to mental illness. The ministry argued that in the appellant's PPMB Medical Repot dated November 13, 2013, the physician reports the restrictions specific to the appellant's medical condition as "Difficulty sleeping" and "Improving with treatment", and although the same physician provides confirmation that in his opinion the appellant has been unable to work since 2011, and is currently unable to work due to mental illness, based on the restrictions reported in the PPMB Medical Report of November 13, 2013, the ministry was not satisfied that the appellant's primary medical condition is a barrier that precludes her from searching for, accepting, or continuing in employment. While the appellant argued at the hearing that the nature of the restrictions related to her medical conditions has not changed since her PPMB application was approved in 2011, the panel finds that the ministry reasonably determined that only the restrictions related to the her primary medical condition of anxiety/depression can be considered and that the reported restrictions have changed significantly. Whereas in 2011 the physician repo1ts the nature of any restrictions specific to the appellant's medical conditions as "trouble concentrating, no energy and low motivation," the same physician reported in 2013 that the appellant has "Difficulty sleeping" and "Improving with treatment." Section 2( 4)(b) of the EAR requires that the evidence establish that the medical condition is a barrier that precludes the person from employment, not just certain types of employment, or from job search-related activities. Although the appellant currently has difficulty sleeping, there is no detail provided regarding the frequency of this difficulty, which the physician indicated is responding positively to treatment, or the resulting impact to the appellant's abilities. In his recent letter of March 22, 2014, the appellant's physician was provided with an opportunity to elaborate on his Report and he indicated that the appellant has been unable to work since 2011, and is currently unable to work due to mental illness. Given the lack of further details provided in the recent letter regarding the restrictions associated with the appellant's mental illness, the panel finds that it is not clear whether the physician is referring only to an inability to maintain full-time employment, or to all types of work, including sedentary or pait-time work. Therefore, the panel finds that the ministry reasonably determined that there is insufficient evidence to show that the appellant's anxiety/depression is a barrier which precludes her from seaiยทching for, accepting, or continuing in employment and the statutory requirements set out above in section 2(4 )(b) of the EAR have not been met. For these reasons the panel finds that the ministry's reconsideration decision was reasonably suppo1ted by the evidence and confirms the ministry's decision. EAAT 003(10/06/01)
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