I Appea, PART C-Decision under Appeal The decision under appeal is the Ministry of Social Development and Social Innovation's (the ministry's) reconsideration decision of May 16, 2014 in which the ministry denied the appellant's request for qualification as a person with persistent multiple barriers to employment (PPMB) because: • the ministry determined that Section 2( 4)( a) of the Employment and Assistance Regulation (EAR) was not met, as the appellant's doctor indicated that the expected duration of the appellant's medical condition is less than 2 years; • the ministry also determined that Section 2(4)(b) of the EAR was not met, in that in the opinion of the ministry the information provided did not establish that the appellant's medical condition is a barrier that precludes the appellant from searching for, accepting or continuing in employment. PART D -Relevant Legislation Section 2, EAR. EAAT003(10/06/01)
I Appeal PART E -Summarv of Facts The information before them inistry at the time of reconsideration included the following: • An undated Employability Screen for the appellant indicating a total score of 9. The screen indicates age: 25-49 inclusive; apart from current application, number of times on income or social assistance anywhere in Canada in the last 3 years: never; total lime on income or social assistance in the last 3 years: more than 12 months; highest level of education completed: grade 10-12; total amount of time in paid employment over the last 3 years: 3-12 months; literacy level: good working knowledge of English. The screen indicates that a score from 0-14 signifies "Expected to work: immediately employable/employable with short-term interventions." • A Medical Report-Persons with Persistent Multiple Barriers (MR-1) , completed by the appellant's physician January 20, 2014. -primary medical condition is severe lumbar back pain, date of onset 2 years ago. secondary medical condition is ADHD [Attention Deficit Hyperactivity Disorder], date of onset "two months ago diagnosis." -treatment: "Has seen neurologist, physic, chiropractic, pain meds. Having ongoing physic." -outcome: "Hope for improvement, off work 6-9 months." condition has existed for 2 years. -expected duration of medical conditions(s) is less than 2 years. -medical condition is not episodic in nature. -restrictions: "pain radiates down posterior legs" and "trouble bending and twisting." physician has been the patient's medical practitioner for over 6 months. • the appellant's Reason for Request for Reconsideration, April 14, 2014. The appellant states: "I am at [this] time requesting an extension in the time to file for reconsideration. I have had to change family Dr's and my new family doctor still to this date [has not] received my medical records and is not able to complete this with me. My last family Dr was not helping at all and the Dr who was helping refuses to fill the forms out properly because she doesn't want to be negative as she hopes this will get better in time." • The ministry's reconsideration decision of May 16, 2014 in which the ministry stated: -the appellant has been a recipient of income assistance for at least 12 of the past 15 months. -the Employability Screen with a score of 9 [see above) is the appellant's "most recent" screen. because the aooellant had asked for an extension of time to file for reconsideration (see above EAAT003(10106/01)
I Appeal Reason for Request for Reconsideration, April 14, 2014), on May 15, 2014 a Reconsideration Officer contacted the appellant asking if she had additional information to provide for the reconsideration. She stated that she had not heard from the ministry and did not realize that her extended deadline was May 16, 2014. The appellant stated that she was not satisfied with the information her physician had provided (in MR-1 ). She was awaiting an appointment with a different physician but did not expect to provide additional physician's information in time for the May 16, 2014 deadline. The ministry states that as of the date of the reconsideration decision, May 16, 2014, no further physician's assessment regarding the appellant's medical conditions was received by the ministry. • After the ministry's reconsideration decision, further evidence was provided: 1. the appellant provided a Notice of Appeal on May 29, 2014. In the Reasons for Appeal section of the Notice of Appeal she wrote: "I requested extension on reconsideration but only learned that it was over when I received a call [the] day before time was up. I had changed drs and needed more time to get new dr caught up on medical history. I see dr May 29. I have been in pain for 2 years and it is not improving.' 2. A Medical Report-Persons with Persistent Multiple Barriers (MR-2) dated June 6, 2014 filled out by the appellant's current physician (not the physician who provided MR-1 ) . MR-2 provides the following information about the appellant: -primary medical condition is low back pain to legs (Code 724) , date of onset 2011 secondary medical condition is described as ADHD, anxiety disorder, [Vitamin] B12 deficiency, irritable bowel s(yndrome]. The date of onset for these conditions not stated. -treatment/outcome: physiotherapy/traction can help chiropractor/ much worse medications/helps when med in effect, then wears off -condition has existed for 3 years -expected duration of medical conditions(s) is two years or more. Physician adds "uncertain, but has lasted 3 yrs so no quick cure." condition is episodic in nature. Physician adds "pain comes and goes -usu[ally] present. -episodes occur 6 days per week and will continue 6 days per week. restrictions: "can't walk or sit or stand long periods. Can't bend over. Can't lift, push or pull." -physician has been the patient's medical practitioner for six months or less. The Panel finds that the Reasons for Anneal contains information in sunnort of the information and EAAT003(10/06/01)
I Appeal records that were before the minister when the decision being appealed was made, in that the appellant provides an update on her efforts to find another physician to assess her medical condition and cites her appointment with the new physician on May 29, 2014; and therefore the panel finds that the information is admissible as evidence in accordance with the Employment and Assistance Act (EAA), Section 22 (4). With respect to MR-2, the ministry at the hearing expressed a number of concerns about the admissibility of the report as new evidence for this hearing. The ministry noted that MR-2 included 3 secondary medical conditions not included in MR-1: anxiety disorder, B12 deficiency, and irritable bowel syndrome. MR-2 indicates duration of the medical condition (s) as 3 years, compared to 2 years for MR-1. In MR-2 the medical condition(s) is indicated as episodic in nature, whereas in MR-1 it is not episodic. As well, in MR-2 the expected duration of the medical condition(s) is 2 years or more with the note "uncertain, but has lasted 3 yrs so no quick cure;" in MR-1 it is less than 2 years. Another difference between the two reports alluded to by the ministry at the hearing is that the restrictions in MR-2 are indicated as: Can't walk or sit or stand long periods. Can't bend over. Can't lift, push or pull. In MR-1, the appellant's restrictions are described as pain radiates down posterior legs and trouble bending and twisting. The ministry stated at the hearing that the appeal was about the ministry's reconsideration decision and much of the information in MR-2 was not before the ministry at the time of reconsideration or contradicted that information. The panel notes that under section 22(4) of the Employment and Assistance Act (EAA) a panel may admit as evidence (a) the information and records that were before the minister when the decision being appealed was made and (b) oral or written testimony in support of the information and records referred to in ( a). The panel finds that anxiety disorder, B12 deficiency, and irritable bowel syndrome cited in MR-2 constitute new diagnoses neither before the ministry at reconsideration nor in support of the information or records before the ministry at reconsideration. The panel therefore finds these diagnoses inadmissible as new evidence. The panel notes that some information in MR-2 contradicts information in MR-1. (1) In MR-2 the appellant's condition has existed 3 years, not the 2 years of MR-1. (2) In MR-2 it is expected to last more than 2 years, compared with less than 2 years in MR-1. (The panel notes that MR-2 indicates the expected duration of medical condition(s) as 2 years or more, adding the comment "uncertain but has lasted 3 yrs so no quick cure.") (3) In MR-2 the appellant's condition is episodic in nature, rather than non-episodic in MR-1. Because this information (1-3) in MR-2 was not before the minister at reconsideration and is not in support of the information that was before the minister at reconsideration, the panel finds the information inadmissible as new evidence. Regarding the information in Section 3 of MR-2 about restrictions, the panel finds the information admissible because it describes the impact of the pain cited in MR-1 on the appellant's movement. EAAT003(10/06101)
PART F -Reason s fo r Pa nel Decisio n The issue und er a p peal is whether th e mi n i stry's qualification a s a PP MB was a rea sonab le a pplicati app ell ant or w as reasonab l y su ppo r te d by t he evide • The m i nistry d etermin e d that Se ction 2(4)(a ) of the EAR w indicat e d th at the e xpected du r ati on o f the appe lla • Th e ministry a ls o d etermined that S ec tion 2 (4)(b) the m inistr y th e infor mati o n pr ovi ded di d no t esta barr ie r that preclude s t he appell ant fr om searc hing Emplo yment and A ssi stance Reg ulati o n Person s who have pe rsi st ent multi ple ba rriers to emplo 2 (1) To qua l if y as a p e rs o n who ha s persis m ust m eet the re quirements set out in (a) s ubsect ion (2), and (b) s ubsect ion (3) or (4). (2) The person has be en a recipient f or 15 calend ar months o f on e or more of the following: ( a) income ass i s t a nc (b) i nco m e assist ance, a f o rmer A ct ; (c) a d is ab il it y al lowance (d ) disability a ssi st an a nd Assistance for Perso ( 3) Th e f ollowi ng re quirement s ap ply ( a) t he min ist er ( i) ha s deter e mpl oyability screen (ii) based on the result of that that the person has barri abi lity to search for, accept o (b) the person has a medica c on f i r med by a medical p (i) in the opinion o (A) has continued for a continue for at least ( B) likely to continue for at least 2 mo (ii) in the opinion of the minister, is a barrier that seriously impedes the person's ability to search for, accept or continue in e mployment, (c) the person has taken all steps that the minister considers reasonable for the oerson to overcome the barriers referred to in EAA T003(10/06/01) I Appea· d e c is io n t o de ny the appell ant's reque st fo r o n o f t he legislation in the ci rcum stances of th e n c e. a s no t met, as the appel l ant's d octor nt's m edical condition is les s tha n 2 y ea rs. o f the E AR w as not m e t, in tha t in t he opin ion of b li sh that the appel lant ' s medic a l co ndi t i o n i s a for, accep t ing or c on ti n u ing in empl oyment. y me nt te nt m u l t i p l e b a r rie rs t o employ ment, a p erson at lea st 12 of th e immed i a te ly prec eding e or hardshi p a ssistance und er the Act ; har dsh ip a ssis tanc e or a y o uth all ow ance un de r u n der the Di sa bilit y Benefi ts Prog ram Act , ce or h ardship ass i s t a nc e unde r th e Em ploym e nt ns wi th Disabil ities A c t . mined that th e p erson scores at l ea s t 15 o n the set out in Sche d ule E, and employability screen, consi d ers e r s that seriously impede the perso n's r contin ue in e mployment, l cond it i on, other than an addiction, that is ractitioner a nd that, f th e me d ical p r a c ti tioner, t least on e ye a r and is likely to 2 more yea rs, or has occurred frequently in the pas t year and i s r e years, and and
para graph (a) . (4) The pers on has a m edi c al condition, other medical practit io ner and tha t, (a) in th e opini o n of the med (i) h as c onti f o r at le a s t 2 (i i) has occur con tinu e for at (b) in the o p inio n of fr o m sear ching for, acc [en. B.C. Reg. 3 The pos it ion of the m inistry in its re c o nsiderati on d E m p l oyability S c ree n ind icat e s a sc o r e of 9, t he legislation of t he E AR . The mini s t ry n otes tha t th e Medi cal R p hysi cian i nd icates that t he e x pected dur ation of the y ea rs. The mi nist r y there fore conte nds that t he appel 2( 4) ( a) ( i ) o r 2 (4)( a ) (i i ) of t he EAR . F u r the r , t he minis MR-1 est abl ishes that t h e a ppel lant i s preclude d fr emp loy m ent as requi red under section 2(4)( b). The ministry takes t tha t M R-1 does n ot e xpla in the s ev erit y of the p ain wit h be nding and t wisting. At t he h earing, th e min istry representat i ve r epeated Th e position of th e appe ll a nt is t o rel y on the in fo r dura t ion o f her c ondi tion a s grea ter th an 2 y ears, h e r rest r i ct i on s as "Can 't walk o r si t o r stand lon g pe She stated at the hearing that in her opinion the phys wit h he r me dical condi t ions as h e r new p h ysic i a n , w her current physician to determine the u n de rlying has been scheduled, as well a s an appointm e n t with a medication she takes to relieve her p a i n is not ve ry she has trouble getting out of bed in the morning and experiences severe muscle spasms that make it di ff icult to drive and to perform day -to-da y tasks. tripping and falling due to the s pasms. He r fe et ge always there, but s om e d ays are worse t h an ot her Th e panel notes t h at the evidence shows the appellant has an the refore t he pan el f inds t o b e re asonable th e ministry's de With respect to section 2(4)(a) of the EAR, MP-1 indicates that the expected duration of the appellant's medical condition is less than 2 years. MP-2 indicates an expected duration of the appellant ' s medical condition as 2 years or more, with the comment "uncertain, but has lasted so no uick cure." As noted above, the anel finds the evidence in MR-2 re EAAT 003(10/06!01) I Appea than an add i cti on, tha t i s confirmed by a ica l practitioner, n ued for a t l e a s t o ne ye a r and i s like l y to cont inu e more y ea rs, o r red fr eq uen t ly in t he past y ea r and is li kely to l east 2 mo re y ea rs, and t he mi n i ster , is a b a r rie r th at prec lude s the pers on ept ing or conti nuing i n emp loyment. 6 8 /20 0 2.] ecision i s tha t becau s e t he ap pellant' s a p plic a ble t o th e ap pellant is sec t ion 2 (4) eport -PPM B d a t e d Ja nu ary 20, 2 014 (MP -1 }, t he appellant's med i cal con dition (s) is le s s than 2 la nt does not m eet t he conditions of e ith er try st ates t h a t i t is not sa tisfi ed the in fo rm at ion i n o m sea rching for, a ccept ing or conti nu i ng in his pos it ion b ec ause i t c ont e nds in the ap pellant's l e g s or t he severi t y of her i ssues the arguments in the reco nsiderat ion dec i sion. mati on i n MP-2, w hich in di cates an exp ec t e d d esc r ibes h e r pain as usu a lly p re sent an d d e scribe s riod s. Ca n't bend over. Can't li ft, p ush or pu l l. " ician who completed MP -1 w a s not as familiar ho co mpleted MP -2. She sta ted t hat attem pts by causes of her bac k pai n are ongoing. An MR I s c a n neur o l o g ist. The ap pellant also stated that the effe c tive . Because of pain in her back and legs Sh e s tates that s he i s in constant dang er of t numb and her pain is like pins and ne edles; i t i s s. E mp loya bility Screen sco r e of 9, and c ision to ap ply sect ion 2 (4) of the EAR. 3 yrs ardin duration as
inadmissi b l e. The panel notes that 2(4)(a) of th e EAR requires that the medic opi n i on of the m e dic al pract it i on er "is l ikely t o contin t her e for e finds to be reas o n ab le the m ini st ry's decision with r The p a nel wishes t o point o ut that had the information in MR-2 on du have had to meet the requirement in 2(4)(a ) of the EAR that continue f or a t least two more years." The panel notes that the physician's statement in dicates that the e x pected 2 y ea rs or mo re dura t "uncer t ain." Given tha t statement, it is unclear as to whe even if it had i t b een a dmi ss i ble, would have me t the With respect to 2 (4 )(b) of t h e E AR t he panel n o t es that bo cau se d by t he appellant 's l ow back pain, not by her ADHD. No a bou t the li mi tatio n s c aused b y the appellant's A DHD. P ain radiates down poste rior legs and tro ubl e b endi episod ic in na ture , occur s 6 days p er week a nd w C a n' t wa lk, sit or stan d long pe riod s. Can't bend over. C that the patient i s on m e dicati ons. M P-2 state s th a w hen in e ff e c t but w ea r s off' but th e re is no in dication p artic ular w i th wal king, si ttin g , standi ng, b e ndi ng , e ff e c tive before they we ar of f. Th e p anel n ot e s that MP-1 an suppo r t t he severity and res t ricti on s of the medi cal medical ass essment. Giv e n the abo ve, the pane l finds that the i nf orm ation pr ovided d oes not establ i sh th bar rier tha t precl udes h e r from se a rching for, ac cep finds to be rea son abl e th e m ini str y' s det erminat ion of 2(4)(b) o f t he EAR. As th e panel finds th e ministry's det app ell ant d oe s no t me et t he r e q u ireme nts o f 2( 4)(a) o m inistr y's d ecisio n to deny th e appe llant' s r equest barri ers to employment. EMT 003(10/06/01) I Appeal al condit ion in the ue for at least 2 years or more. " The panel esp ec t of 2(4)( a) of the EAR. rati on b e en admissible, it would the medical c ondition is " li kely to in MR-2 ion of th e appella nt's medic al condition is ther the inform ation in MR-2 on dura tion, r eq u i r ement of 2 ( 4)( a) of t h e EAR. t h MP-1 and MP-2 add r ess the r e str ictions informati on is provided in either report MP -1 states the l imitations in the se term s: n g an d twis ting . M P -2 states th at t he pain i s ill con t in ue 6 d a y s p er wee k. The l i mit ation s ar e: an't lift , push or pu ll. Both repo r ts i nd ica te t trac tion c an help a n d tha t the medi cat io ns "hel p of the e x te nt to whic h these tr e a tmen t s help , in l i f t in g and pus h ing, o r ho w long medi cat ion s are d M P -2 do n o t pro vide d ocumen ts t hat conditions as re queste d u nder Part 4 of the to be reasona ble the m ini s t r y's de t e r min ation a t t he appe l lant's m edical condi t ion (s) pre sents a ting o r con t i nui ng i n e mployme nt, a nd th e r e fore th a t th e a ppe l lant do es n ot meet th e req uir e m e nts e rmi nation to be reasona ble t hat th e r of 2(4)(b) of the E AR, the panel con firms the for quali fication as a perso n w ith p ers iste nt mult i pl e
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