P A R T C D e c i s i o n u n d e r A p p e a l T h e d e c i s i o n u n d e r a p p e a l i s t h e M i n i s t r y o f S o c i a l D r e c o n s i d e r a t i o n d e c i s i o n d a t e d M a r c h 2 7 , 2 0 1 4 w h i c N u t r i t i o n a l S u p p l e m e n t f o r v i t a m i n s a n d m i n e r a l s a n t h a t t h e r e q u i r e m e n t s o f S e c t i o n 6 7 ( 1 . 1 ) a n d S e c t i o n A s s i s t a n c e f o r P e r s o n s W i t h D i s a b il i t i e s R e g u l a t i o n i n f o r m a t i o n t o e s t a b l i s h t h a t a m e d i c a l o r n u r s e p r a c • a s a d i r e c t r e s u l t o f t h e c h r o n i c , p r o g r e s s i v e d o r m o r e o f t h e l i s t e d s y m p t o m s , u n d e r S e c t i o • t h e a p p e l l a n t r e q u i r e s v i t a m i n s a n d m i n e r a l s p r o g r e s s i v e d e t e r i o r a t i o n o f h e a l t h a n d t o p r e 6 7 ( 1 . 1 ) ( c ) a n d ( d ) ; a n d , • t h e a p p e l l a n t r e q u i r e s a d d i t i o n a l n u t r i t i o n a l i t e r e g u l a r d i e t a ry i n t a k e , p u r s u a n t t o S e c t i o n 7 o c h r o n i c , p r o g r e s s i v e d e t e r i o r a t i o n o f h e a l t h a S e c t i o n 6 7 ( 1 . 1 ) ( c ) a n d ( d ) . P A R T D R e l e v a n t L e g i s l a t i o n E m p l o y m e n t a n d A s s i s t a n c e f o r P e r s o n s W i t h D i s a b a n d S c h e d u l e C , S e c t i o n 7A P P E A L # I e v e l o p m e n t a n d S o c i a l I n n o v a t i o n ( m i n i s t r y ) 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 M o n t h l y 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 . T h e m i n i s t r y h e l d 7 o f S c h e d u l e C o f t h e E m p l o y m e n t a n d ( E A P W D R ) w e r e n o t m e t a s t h e r e i s n o t s u f f i c i e n t t i t i o n e r h a s c o n f i r m e d : e t e r i o r a t i o n o f h e a l t h , t h e a p p e l l a n t d i s p l a y s t w o n 6 7 ( 1 . 1 ) ( b ) ; t o a l l e v i a t e t h e s y m p t o m s o f h i s c h r o n i c , v e n t i m m i n e n t d a n g e r t o l i f e , p u r s u a n t t o S e c t i o n m s a s p a r t 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 f S c h e d u l e C , t o a l l e v i a t e t h e s y m p t o m s o f h i s n d t o p r e v e n t i m m i n e n t d a n g e r t o l i f e , u n d e r il i t i e s R e g u l a t i o n ( E A P W D R ) , S e c t i o n 6 7 ( 1 . 1 )
APPEAL# I PART E -Summary of Facts The evidence before the ministry at the time of the reconsideration decision included: 1) Page 1 of an Application for Monthly Nutritional Supplement (MNS) dated December 2, 2013 completed and signed by the appellant and stating in part that: • The appellant's severe medical conditions are: "severe depression, bipolar; losing weight for the last 4 months-cancer?;" • In response to the question whether, as a direct result of the severe medical conditions, is the appellant being treated for a chronic, progressive deterioration of health, the appellant wrote: "I need food; proteins on a regular basis;" 2) Application for Monthly Nutritional Supplement (MNS) dated December 2, 2013 signed by a medical practitioner and stating in part that: • The appellant's severe medical conditions are: [left blank]; • In response to the question whether, as a direct result of the severe medical conditions, is the appellant being treated for a chronic, progressive deterioration of health, the medical practitioner left it blank; • In response to the question whether as a direct result of the chronic progressive deterioration in health, does the appellant display two or more symptoms, the medical practitioner indicated the symptom of underweight status with a note "underweight"; • The appellant's height and weight are recorded with a note of a [Body Mass Index] of 19.8; • In response to a request to specify the vitamin or mineral supplements required, the medical practitioner noted "N/ A" or not applicable; • In response to a request to describe how the vitamin or mineral supplement will alleviate the specific symptoms identified, the medical practitioner wrote "N/A"; • In response to a request to describe how the vitamin or mineral supplement will prevent imminent danger to the appellant's life, the medical practitioner left this section blank; • In response to a request to specify the additional nutritional items required, the medical practitioner wrote "bipolar-probably not eating properly"; • 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 wrote "no"; • Asked to describe how the nutritional items required will alleviate one or more of the symptoms described and provide caloric supplementation to the regular diet, the medical practitioner noted "better nutrition;" • In response to a request to describe how the nutritional items requested will prevent imminent danger to the appellant's life, the medical practitioner left this section blank; • The additional comments by the doctor are that: "Patient states he would like to go on a high protein diet to gain some weight." 3) Photograph of the appellant's torso; and, 4) Undated Request for Reconsideration. In his Request for Reconsideration, the appellant wrote that: • He has severe malnutrition with significant weight loss and that he should send a photograph. He also has muscle mass loss. • He is bipolar and cannot get food by standing in line. He was assaulted twice because of that. • He also has severe hearing loss: "80% of my right ear and �of my left ear." In his Notice of Aooeal dated April 1, 2014, the aooellant expressed his disaqreement with the
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 e c i s i o n . T h e a p p e l l a n t w H e a l s o t h i n k s h e h a s m o d e r a t e i m m u n e s u p p r e s s i o A t t h e h e a r i n g , t h e a p p e l l a n t p r o v i d e d t h e f o l l o w i n g 1 ) P h o t o g r a p h o f t h e a p p e l l a n t ' s l e g s ; 2 ) M e d i c a l E x a m i n a t i o n R e f e r r a l d a t e d F e b r u a r y h e a r i n g i n s t r u m e n t p r a c t i t i o n e r i n d i c a t i n g t h a t a n d , 3 ) H e a r i n g A s s e s s m e n t d a t e d J a n u a r y 1 0 , 2 0 1 4 f i t t e d w i t h h e a r i n g a i d s f o r b e t t e r s o u n d l o c a l i A t t h e h e a r i n g , t h e a p p e l l a n t s t a t e d t h a t : • H e h a s r e t i r e d f r o m h i s p r e v i o u s e m p l o y m e n t e x p e r i e n c e w i t h d i f f e r e n t m e d i c a l c o n d i t i o n s . • H e h a s m a l n u t r i t i o n w i t h s i g n i f i c a n t w e i g h t l o s p h o t o g r a p h s h o w s h i s w e i g h t l o s s a n d m u s c l • H e a l s o h a s p r o b l e m s w i t h h i s p r o s t a t e a n d h w o n d e r s i f h e m i g h t h a v e c a n c e r . • H e c a n n o l o n g e r s t a n d i n l i n e f o r f o o d s i n c e f r o m a " t a k e o u t " a r e a t h a t w a s d i s c o n t i n u e d c o n t r i b u t o r t o h i s n o t g e t t i n g e n o u g h t o e a t . • H e h a s s e v e r e m e n t a l p r o b l e m s a n d a l s o s e v e a r d u e t o a n t i b i o t i c s t h a t h e t o o k . H e i s s u p • H e n e e d s s o m e e x t r a a s s i s t a n c e f o r o n l y a s h C P P d i s a b i l i t y p e n s i o n . • H e c a n o n l y d e a l w i t h o n e t h i n g a t a t i m e a n d g o v e r n m e n t a n d h e c o u l d n o t g e t b a c k t o h i s f e l t o v e r w h e l m e d . • T h e p h y s i c i a n w h o c o m p l e t e d t h e M N S A p p l i t w o h e w a s s e e i n g h a v e r e t i r e d . • H e w o n d e r s i f h e h a s m o d e r a t e i m m u n e s u p p w h i c h r e q u i r e d t h a t h e h a v e a n o p e r a t i o n a n d h i s d i e t a r e i m p a c t i n g h i s i m m u n e s y s t e m a s • H e c a n n o t c y c l e a n y m o r e a n d h i s d i e t i s c u r r e T h e m i n i s t r y d i d n o t o b j e c t t o t h e a d m i s s i b i l i t y o f t h e a d d i t i o n a l d o c u m e n t s a n d p h o t o g r a p h a s f u r t h e r i n f o c o n d i t i o n a n d b e i n g i n s u p p o r t o f t h e i n f o r m a t i o n a n d p u r s u a n t t o s e c t i o n 2 2 ( 4 ) o f t h e E m p l o y m e n t a n d A s i n f o r m a t i o n p r o v i d e d b y t h e a p p e l l a n t r e g a r d i n g p o s s s u p p o r t o f i n f o r m a t i o n o r r e c o r d s b e f o r e t h e m i n i s t r y T h e m i n i s t r y r e l i e d o n i t s r e c o n s i d e r a t i o n d e c i s i o n w • T h e a p p e l l a n t i s a P e r s o n W i t h D i s a b i l i t i e s ( P • O n D e c e m b e r 2 , 2 0 1 3 t h e a p p e l l a n t s u b m i t t e d m i n e r a l s a s w e l l a s f o r a d d i t i o n a l n u t r i t i o n a l i t • T h e a o o e l l a n t s u b m i t t e d t h e f i r s t o a a e o f t h e A A P P E A L # I r o t e t h a t h e h a s t h e t w o a n d m o r e s y m p t o m s . n . a d d i t i o n a l i n f o r m a t i o n : 1 , 2 0 1 4 t o t h e p h y s i c i a n f r o m a r e g i s t e r e d t h e a p p e l l a n t e x h i b i t e d u n i l a t e r a l h e a r i n g l o s s ; w i t h a r e c o m m e n d a t i o n f o r t h e a p p e l l a n t t o b e z a t i o n . i n t h e h e a l t h c a r e f i e l d a n d h e h a s s o m e s a n d s i g n i f i c a n t m u s c l e m a s s l o s s . T h e e m a s s l o s s . e h a s a f a m i l y h i s t o r y o f c o l o n c a n c e r a n d h e w a s r e c e n t l y a s s a u l t e d . H e u s e d t o g e t f o o d a b o u t 2 m o n t h s a g o a n d t h i s h a s b e e n a m a j o r e r e h e a r i n g l o s s . H e h a s a n 8 0 % l o s s i n h i s r i g h t p o s e d t o g e t h e a r i n g a i d s f r o m t h e m i n i s t r y . o r t p e r i o d s i n c e , i n a f e w y e a r s , h e w i l l r e c e i v e a r i g h t n o w h e a l s o h a s i s s u e s w i t h t h e f e d e r a l d o c t o r o r i n t o s e e a n a d v o c a t e b e c a u s e h e h a s c a t i o n i s h i s t h i r d f a m i l y p h y s i c i a n s i n c e t h e f i r s t r e s s i o n a s w e l l a f t e r a n i n f e c t i o n a f e w y e a r s a g o I V t h e r a p y . H e f e e l s h i s m e n t a l c o n d i t i o n a n d w e l l . n t l y c o m p o s e d o f b r e a d h a l f o f t h e t i m e . a d d i t i o n a l i n f o r m a t i o n . T h e p a n e l a d m i t t e d t h e r m a t i o n r e l a t i n g t o t h e a p p e l l a n t ' s m e d i c a l r e c o r d s b e f o r e t h e m i n i s t r y o n r e c o n s i d e r a t i o n , s i s t a n c e A c t . T h e p a n e l d i d n o t a d m i t t h e i b l e p r o b l e m s w i t h h i s p r o s t a t e a s t h i s w a s n o t i n a t t h e t i m e o f r e c o n s i d e r a t i o n . h i c h i n c l u d e d e v i d e n c e t h a t : W D ) i n r e c e i p 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 a p p l i c a t i o n f o r t h e M N S , f o r v i t a m i n s a n d e m s . n n l i c a t i o n f o r M N S t h a t h e c o m o l e t e d .
APPEAL# I P AR T F -Re asons for P a nel Decision The is sue o n the appeal is whether the ministry decision, which d e nied t h e a p pellant's request f or a Monthly Nutriti onal Sup plement for ad di t i onal nut r i tional items and for vitamins an d minerals because the r equ irements o f Se c tion 6 7(1. 1 ) a nd Sec t io n 7 of Schedul e C of the Employment and A s sistance for Persons With Disab ilities Regulation (EAPWDR) were not met, was reasonably supported by the evidenc e or is a reasonable ap pli cat i on of the appl icable enactment in the circum stances of the appellant . Se ction 67(1.1) of the E APWDR s ets out the eligibility requir eme n ts which are a t issue on this appeal for pr oviding the additi o n al nutrition al supplement , as follows : Nutriti onal suppleme n t 67 (1. 1) In order for a person w ith disab ilities to receive a nutritional supplement u nder t his section, the minister must receiv e a re q u est, in the form specified by the minister, completed by a medical p ract itione r or n urse practitioner, i n w h ich th e practitioner h a s confirme d all of the follow ing : (a ) the person with disabili ties to w hom the reques t relates i s being treated by th e practitioner for a chro ni c, progr essi v e det er i o rat i o n of hea lth o n a ccou n t of a severe medical condi tion; (b) as a d irect re sult of th e ch ronic, progres sive deterior at i on of health, th e p erson disp l ays two or more of the following symptoms: (i ) m a ln u tri tion; ( i i) underw eight stat us; (iii) sign ifi c ant weight Jo s s; ( i v) signi f i c ant m uscle ma ss lo ss; (v ) signifi ca nt neuro logica l de ge ne ra t ion; (vi) significant deter io ratio n o f a vita l o rgan; (vii) mo derate to severe immune suppression; ( c) for t he pur pose of alleviating a sy m pt om referred to i n paragr aph (b), th e person requ i res o ne or m ore of th e items set out in section 7 of Schedule C and specified in the req u e st ; (d) fa ilure to obtain the items referred t o i n p a rag raph (c) will res ult in immin en t danger to the per son' s life. Sec t ion 7 of S chedule C of the EAPWDR pro v id es a s follows: Mon t h ly nu tritional s u pplement 7 The am ou nt of a nut r it i o nal supplement that may be provided under section 67 [nutritiona l supplement] of this regulation is the sum of the amounts for those of the following items specilied as required in the request und er section 67 (1) (c): (a) for ad ditio nal n u t r i tional ite m s that are par t of a c a l or ic supp lementation to a reg u l ar d i etary intake, up to $165 ea ch month; (b) Repealed. [B.C. Reg. 68/2010, s. 3 (b).] (c) for vitamins and minerals, up to $40 each month. The ministry ackn owledged t hat the medical practiti oner confirmed that the appellant is being treated for a chronic, progressive deterioration of health on account of a severe medical condition, specificallv bipolar disorder, Pursuant to Section 67/1.1 )(a\ of the EAPWDR.
APPEAL# I Two or more symptoms The ministry's position is that sufficient information has not been provided from the medical practitioner to establish that as a direct result of the chronic, progressive deterioration of health, the appellant displays two or more of the listed symptoms, pursuant to Section 67(1.1) (b) of the EAPWDR. The ministry argued that the medical practitioner reported that the appellant's symptom is significant weight loss and no other symptoms were identified by the practitioner. The appellant's position is that there is sufficient information from the medical practitioner to establish that as a direct result of the chronic, progressive deterioration of his health, he also displays the symptoms of severe malnutrition and significant muscle mass loss and possibly moderate immune suppression. The appellant argued that, as a retired health care professional, he has some experience with different medical conditions and he believes he has malnutrition with significant weight loss and significant muscle mass loss. The appellant argued that the photographs of his torso and his legs show his weight loss and muscle mass loss. Panel decision 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. In the Application for MNS dated December 2, 2013, in responding to the question of whether as a direct result of the chronic progressive deterioration in health, the appellant displays two or more symptoms, the medical practitioner indicated the symptom of underweight status with a note "underweight." While the appellant argued that he is a retired health care professional and he believes he also displays the symptoms of malnutrition, significant muscle mass loss and possibly moderate immune suppression, none of the other symptoms listed in the MNS Application are confirmed by the medical practitioner. Section 67(1.1) stipulates that the medical or nurse practitioner must confirm that the person displays two or more of the symptoms and since this "medical practitioner" or "nurse practitioner'' must be treating the person for a chronic, progressive deterioration of health, the panel finds that the practitioner must be someone other than the person requesting the MNS. The appellant also pointed to the photographs as demonstrating his significant weight loss and significant muscle mass loss; however, there is no confirmation of these symptoms by the medical practitioner and the panel finds that there is no evidence of a baseline of comparison in order to show a "significant loss," whether in weight or muscle mass, over a period of time. The panel therefore finds that the ministry reasonably concluded that there is not sufficient information to establish that the medical practitioner has confirmed that, as a direct result of the chronic, progressive deterioration of health, the appellant displays two or more of the symptoms listed, pursuant to Section 67(1.1 )(b) of the EAPWDR. Vitamins and Minerals The ministry's position is that sufficient information has not been provided from the medical practitioner to establish that the appellant requires specific vitamins and minerals to alleviate the symptoms of his chronic, progressive deterioration of health and that obtaining these items will prevent imminent danger to life, as required by Section 67 (1.1 )(c) and (d) of the EAPWDR. The ministry argued that the medical practitioner does not specify that the appellant requires any vitamin or mineral supplements as he has written "N/A." The ministry argued that the physician does not provide an exolanation for how vitamins and mineral suoolements will helo alleviate a svmotom
APPEAL# I referred to in Section 67(1.1)(b) of the EAPWDR as he has again written "NIA." The ministry also argued that the medical practitioner does not report that obtaining vitamins or minerals will prevent imminent danger to the appellant's life. The appellant's position is that sufficient information has been provided to establish that vitamins and mineral supplements are required to alleviate one of his symptoms of his chronic, progressive deterioration of health and to prevent imminent danger to his life. The appellant argued that half of his diet currently consists of bread and that he is no longer able to ride a bicycle like he used to. Panel decision Section 67(1.1 )(c) of the EAPWDR requires that the medical practitioner confirm that, for the purpose of alleviating one of the symptoms referred to in sub-section (b), the appellant requires the vitamins and minerals as set out in Section 7 of Schedule C. In the Application for MNS dated December 2, 2013, the medical practitioner wrote "N/A" in the sections of the Application for specifying the vitamin or mineral supplements required by the appellant and how the vitamin or mineral supplement will alleviate the specific symptoms identified. As well, in response to a request to describe how the vitamin or mineral supplement will prevent imminent danger to the appellant's life, the medical practitioner left this section blank. The appellant did not argue that particular vitamins and minerals have been identified in the request, as required by Section 67(1.1) (c) of the EAPWDR, but pointed out that there is not much nutrition in his diet, which consists of half bread, and that he can no longer perform some of the activities that he used to, such as cycling. The panel finds that the appellant's evidence of his loss of the ability to perform a physical activity such as cycling is not sufficient evidence of the requirement in Section 67(1.1 )(d) that failure to obtain vitamins and minerals will result in imminent danger to the appellant's life. Overall, the panel finds that the ministry reasonably concluded that there is not sufficient information from the medical practitioner to establish that the appellant requires specified vitamins and minerals for the purpose of alleviating an identified symptom and that failure to obtain the vitamins and minerals will result in imminent danger to the appellant's life, pursuant to Section 67(1.1)(c) and (d) of the EAPWDR. Additional Nutritional Items 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 and to prevent an imminent danger to the appellant's life. The ministry argued that the medical practitioner's evidence is not sufficient to satisfy the requirement of caloric supplementation as set out in Section 7 of Schedule C because, when asked to describe the additional nutritional items required and the expected duration of need, the medical practitioner reported "bipolar-probably not eating properly." The ministry further argued that when asked 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 response by the physician was "no." The ministry argued that the medical practitioner did not indicate how much weight the appellant had lost and over what time frame his weight loss had occurred, and that his BMI is calculated at 19.8 which is in the normal weight range and, therefore, he is not in need of caloric supplementation. The ministry further argued that there is no evidence of imminent danger to the appellant's life as the medical practitioner did not report that failure to obtain nutritional items would result in imminent danger to life. The appellant's position is that sufficient information has been provided bv the medical practitioner to
APPEAL# I 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 and to prevent imminent danger to his life. The appellant argued that he can no longer stand in line for food since he was recently assaulted and while he used to get food from a "take-out" area, this service was discontinued and this has been a major contributor to his not getting enough to eat. Panel decision Section 67(1.1 )(c) of the EAPWDR requires that the medical practitioner confirm that for the purpose of alleviating a symptom referred to in sub-section (b), the appellant requires the additional nutritional items as part of a caloric supplementation to a regular dietary intake, pursuant to Section 7 of Schedule C. In the MNS Application dated December 2, 2013, in response to a request to specify the additional nutritional items required, the medical practitioner indicated "bipolar-probably not eating properly." The ministry concluded that the medical practitioner's suggestion that the appellant is probably not getting sufficient nutrition in his regular dietary intake indicates that he requires changes to his food choices within his regular dietary intake, rather than caloric supplementation to his regular diet. In the MNS application, the medical practitioner does not indicate 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. Further, the medical practitioner indicated the appellant's BMI score of 19.8, based on his height and weight, which the ministry stated is a weight within the normal range, suggesting, as the ministry concluded, that the appellant is not in need of caloric supplementation to his regular dietary intake. Given the above evidence, the panel finds that the ministry reasonably concluded that there is not sufficient information from the medical practitioner to confirm that additional nutritional items are required as part of a caloric supplementation to a regular dietary intake pursuant to Section 7 of Schedule C to alleviate related symptoms, as set out in Section 67(1.1)(c) of the EAPWDR. Section 67(1.1 )(d) requires that the medical practitioner confirm that failure to obtain the nutritional items that are part of a caloric supplementation to a regular dietary intake will result in imminent danger to the person's life. In the MNS Application, the medical practitioner did not respond to the request to describe how the nutritional items will prevent imminent danger to the appellant's life, and provided additional comments that: "Patient states he would like to go on a high protein diet to gain some weight." Given that the medical practitioner has not provided his opinion that the appellant requires nutritional items as caloric supplementation pursuant to Section 7 of Schedule C and has indicated the appellant's preference for a high protein diet, rather than any consequence of imminent danger to life, the panel finds that the ministry reasonably concluded that the medical practitioner has not confirmed that failure to obtain the requested additional nutritional items as part of a caloric supplementation to a regular dietary intake will result in imminent danger to the appellant's life, as required by Section 67(1.1 )(d) of the EAPWDR. Conclusion The panel finds that the ministry's reconsideration decision, which denied the appellant's request for a Monthly Nutritional Supplement for additional nutritional items and vitamins and minerals because all of the requirements of Section 67(1.1) of the EAPWDR were not met, was reasonably supported by the evidence. The panel confirms the ministry's decision.
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.