PART C -D ecis ion unde r Appeal The Decis ion under Ap pe al is the Mini stry R e con s ideration mini stry deter m in ed the app e l lant was inel igibl e for t Multipl e Barr iers (PPM B ) bec ause she di d not me et Employmen t an d Ass ista nce R e g ul at ion ( EAR). The be en in recei pt of income assista nce for a t l e as t t welve h er applic atio n s he met the r equir eme nts under S ecti a p pe llant scored twel ve (12) o n the employabilit y scre re quir emen ts to be a ssessed u nder S ection 2 (3 ). Th c on s i de red un d er Se cti on 2 (2) a nd (4) of the EA R. me di cal con dit ion ha s last ed at leas t one (1) ye ar howev con d it ion i s expec ted to con ti n u e for two (2) years o the a ppel lant's medical c o n di tion and the res ultin g r f r om searc hi n g f o r, a c cepti n g o r c o n tinui n g in all type cri teri a unde r su b s ection (4 ) (b), so she does not qu PART D -Relevant L egislation Em plo yment an d Assis t ance Regul a t i on (EA R) -Se EAA T003(10/06/01) Decisi o n o f A ugus t 18 , 2 01 4 in whic h the h e qual ificati o n of Pers ons With Persistent the requirements se t out in Secti o n 2 o f th e mini stry fou nd that b ecause the a ppel lant ha s ( 1 2) of the past fi fteen (15 ) months prior to on 2 (2) . The min ist ry found that a s the en, her a ppl ica tion di d not me et t h e e ap pella nt's applic ation was t he r efore The mini str y was s ati sfied that th e appel lant's er the mini stry was not sa tis fie d that her r m ore. In addition, i n the opi n i on o f the min istr y, estr iction s a r e n o t a ba rrier that pr eclude s her s of empl oy ment; t herefore, she did n ot meet t h e alify for PPMB desi gnat i on. c t ion 2
PAR T E -S um marv of Facts The i nform ati on before the m i nistry at the t ime of r econ e Fo ur med ica l imagin g repor ts f or t h e appe llant spin e has mild sco li o sis, AP alig nm ent is a n a S1 i nte r vertebral d isc sp a c es with a s so ciated verteb ra l bo dy and d isc hei gh t s are otherwis been a pri o r amputation o f the ti p of the left pha erosiv e o r proliferati ve chang es are n o t ed. The thi was made to Februa ry 21, 20 13 and there has bee mild osteoar t hritic change in the medi al pat ellofemoral n o a cute s pace abno rm a lity i s iden tifi ed. Th e ce rv ical spi ne is i n no rma l al ignment, ther e is a w ith mild endplate dege nerate changes , v e rtebral b m a in ta i ned, there is e vide nc e of f r ac t u r e/di sl spo ndylos i s at C5-C6. ,. A medi c al report f o r Pe r sons with Persi ste n t by t h e app el lan t' s p h ysici an. H e wr ite s her p rima her condit ion has exist ed for ma ny years, t h e t w o years, and t h e cond ition is n o t ep isodic in ,. A medi c al rep o rt for Pe r sons with P ersistent by t h e a p pe ll a n t 's p h ysici an. H e writes her p r back," and her s econdary condit ion i s a sthma durat ion of t h e con d ition i s l es s th an two y ears, r e port states the appellant' r es trictio ns are pro lifti ng, use of hands and [ill egibl e]. e A copy of t h e E m plo yabi lity screen compl ete d all scor e o f 12. '" A l et ter w ri tten by t h e app e llant's advocate date The let ter asks t h e physici a n to a g r e e o r disagr appellant's co nd i t i on. The physi c i a n a gr ees t h limited to l i fting 15 lbs , n o repe tition, n o repetiti less than 30 minutes before body pain and stiffness, standing is limited to 20 mi walking is limi ted to less than 1 b lock and taking 5 times l '" A letter sent by the ministry to the physician dated August 5, 2014 asking that the physician clarify if the appellant's condition is expected With the notice of appeal , the appell an t has included a copy physicia n. In the letter the p h y s ic i a n responds to the will last more than two years by indicating that yes, it will. This letter was admitted as evidence as per the Emplo ymen t and Assistance Act section 22 (4). The panel fou th e document is in support of evidence that was before the ministry at the tim The letter was accepted because it provides clarity of how long the appellant's condition is expected to last. At the hearing the ministry had no objections to the letter being accepted as evidence. At the hearing the appellant told the panel that the August 15, 2014 letter provided by the physician answers the auestion of whether the annellant's condition would continue for two vears. The EAAT 003(10/06/01) sideratio n included the foll ow ing : da ted M ay 2 3, 20 14 . One report state s her to m ic, ther e is a mil d narrowing o f the L 1 -L2, LS endpl a te degen erative chang e s, and th at her e mai n t ained. The sec o nd report sta tes there h as lanx, t h e join t sp a ces are preser ved, a n d n o r d r ep o rt on her kn ee states a com paris on n no si g n ificant int erv a l ch ang e, t h ere is a co m partments o f both knees, and th a t f o ur t h rep ort o n her cervi c al sp in e s tat es her mi ld narr o wi ng of the C5-C6 i nterverte bral disc ody a n d d isc h e ights a r e o t h e rwise ocation and his im p ress ion is there i s m i ld ce rv ica l Multiple Barr iers dated June 17, 2 0 14 c ompl eted ry medical condi tion is "O A ba c k and knee ," e x p ecte d du r ati on of the condition is l ess than nature. Mult iple Barriers dated June 12, 2 01 4 complete d imary m e dical condi tion is "O A knee, hands, and , there is no i nd ic atio n of o ns et, the expected and the condit ion i s not episo dic in nature. The blems w alking , standing for to o long, bending, in t h e n ame of the app ellan t giving her an o ver d July 31, 2 0 14 to the ap pel l ant's ph ys ician. e e w ith se v e ra l st ateme n t s about t h e at the appellant h as wi de spread ost eoa r thri t i s , is ve bending /reaching / twisting , limited t o s i t tin g nutes, and onge r than n o r m al. to last more t han two years. of the lette r that the minist ry s e n t to th e mi nistry's questi on i f the appellant's cond i tion nd that the evidence c on tai n e d i n e of the reconsideration.
a ppe llant poin ts out t h a t the lett er clearly states that the cont inue for m o re t h a n t w o y ears . Th e appe llant told the p an e l th a t a ltho ugh the m edical the re ports d o n o t i nclu d e d etai l s of pain or the r estriction continued that th e p h ysici an di d inc l ude d etails of h w ith P e rsist e nt M u l tiple Bar rie r s d a ted Jun e 12, 2014 a ad di tional d et ail s w ith t he l et ter date d July 3 1, 2014 her re s trictions . The app ellan t a d ded t h a t the me dical a very smal l a r ea for th e ph ysician to detail a n app l exceptionally b rief in thei r description. She a dd ed t hat decis ion t h a t an emplo yment pro gram may hel p her ov Sc reen, she told the panel that the b ar rie rs no t e d on her Empl em ploy ment ass istan ce for m or e that 12 m on ths, having work e xper i ence in the last 3 years. Sh e argue s t hese employm en t pr ogram. In regards to h er physi cal li mi tati o n s the a pp e l l ant told the cli m bin g stairs, sit ting , a nd th at her medi cation sever c annot dr ive or attend app o int ments wh e n sh e is med expec ts she may ne ed more suppor t in th e near f u ture i admi t ted a s evi d enc e a s per the Em pl oy me n t a nd A t he testim ony i s in sup port of evi d ence th at was be fore The t estimo n y wa s accepted bec au s e it pro vi d es th ho w he r conditio n a f fec ts her phy s ical abi l ity and wellnes He r son an d daughter atten ded the hea r i ng as witness ho u s ehold meal s, cl e ans the house, a s si sts with th e a dde d th at he pours t he m ilk from th e la r g e cont aine The app ell a nt ' s dau g hter tol d the pa nel th at the app her m om m ost places , c arries he r p u rse fo r h er, a nd The ministry told the panel that t he re quirement of the appell more years has been satisfied by the physician's response to At the hearing the ministry told the panel that the deci w as b a sed solel y on t he inf or m at ion provided in the application. The ministry inte inf ormation about the a p pe l lant 's condition in her application as causing barriers to her ability to seek, accept and main tain employment. The m inistry read the fo und that the re was insufficient detail as to a description of her limitations. The ministry told th panel that in many cases, if a person attend s an employme barrie rs that have restricted th em in th e pas t from employment. She added th would make accommodations for employees with barriers to enable them to work. The panel finds as fact the following: • The appellant has been on income assistance for at least twelve (12) of the past fifteen (15) months. EAAT 003(10/06 /01) phys i cian agrees that the conditi on wi ll i maging report s de scr i be her con d ition as mil d, s she suffer s from as a r e s ul t . She er rest ric t io n s on t h e medica l r e port for Persons nd the a ppellan t' s advo cate p rov ided wher e the physicia n agreed with more deta ils on r eport for Persi s tent Multiple B a rriers prov id es ican t's r estric tio ns s o the physi cia n may be in re sponse to the ministry's s tat em en t i n the ercom e the b arr i ers noted in h er Emplo yabili t y oyabil ity Screen a r e being o n a gra de 10 -1 2 educ a tion, h aving li ! lle or no b arriers are not g oi ng to be eli m inat ed by a n pa nel she ha s di fficulty g ett ing ou t of bed , ely aff ects h er a bil it y to t hi nk cle arly s o s h e i c ate d. She uses a cane for wal k i ng but she f h er c o n di t i on wo rsen s. This info r mati on was s sistance Act sec tion 22 (4). The p a nel foun d t hat the min is t ry at the ti me o f the r e cons i derati on. e a p pell ant's perspecti ve a nd addi ti o nal det ails o f s. es. Her s on to ld th e p a nel he co oks the anim als, and as sist s her w ith s hoppi ng. H e r into a sm a ller one so th at h is mom c a n li f t i t. e l la nt ca nnot lift he r g r and daughter, she d r ive s th at he r mo m is in pain all o f the time. an t ' s condition being likely to l ast two the ministry's le tter. s ion to deny the appellant PPMB designation rpreted th e physician's comments in the application and e n t related progr a m they can overcome at some employers
o The appellant scored twelve (12) on the employability screen. o The appellant's primary medical condition according to her physician is osteoarthritis in her back and knee. o The appellant's secondary medical condition according to her physician is asthma. o The appellant's physician has indicated the condition has existed for many years. o The appellant's physician has indicated in his prognosis that the expected duration of the medical condition is more than two (2) years. o The appellant's physician indicates the condition is not episodic in nature. EAAT 003(10/06101)
PART F -Reasons for Panel Decision The iss u e in this case is the reaso nableness of the qu al i fy a s a person with persistent multiple b ar riers legislative requirements. The ministr y found that the appellant met the that s h e had been a recipient of income a ssi st ance calendar months. The appell an t ' s score on the employability screen conside red the app l icati o n u n der section 2 (4) of the Employment The EAR section 2 states ; P e r sons wh o have persistent multiple barriers t 2 (1 ) To q u ali fy as a person wh o has persisten t mu l ti pl set out in (a) subsection (2), and (b) subsectio n (3) or (4). ( 2) T he pe rson ha s bee n a recip ient fo r at least 12 of th the fo llowing: (a) income as sistance or ha rdship assistanc e under the (b) income as si st an c e , h ar dship assistan ce or a youth allowance (c) a d isa bili ty allo wa n c e und er the Disabi l i t y Be nefits ( d) d i sability a s si stance or har dship assistance under th (3) T h e fol lowi ng re quiremen ts app ly (a) the m inis ter (i) has determin ed t ha t the p er son s cor es al lea st 15 (ii) bas e d o n the result of th at employa bilit y s cre en, considers p erson 's abi l i ty to searc h for , acc e pt o r con ti n u e in e mploy (b) the per son h as a medical c ondit ion, other than an ad (i) in t h e o pinion o f the medical pract itioner, (A) ha s cont inued f or at least one ye a r a n d is likely to c (8) ha s occ u r r ed frequently i n th e past ye ar and is lik e ( ii) in the opinio n of the minist er, is a barr ier that ser iously in e m p loyment, a nd (c) t he per son has ta ken all steps that th e m in i ster considers re to i n p a ragraph ( a). ( 4} The pe rson h a s a m edical c ondition, oth er th a n an ad tha t. (a} in the opin i on of the m edical pr act itio ne r, (i} has co n tinued for al least one ye ar a nd i s l ike ly lo (ii} has occurred frequently in the past year and is likely to conti (b} in the opinion of the minister, is a barrier that precludes the person fro cont i nuing in employment . It is the ministry"s pos ition tha t the app ellant 's score therefore her appl ication must be considered under EAR section 2(4). The ministry argues that the app e llant"s me dical condi t io n does n o t c a u se a barrier that would preclude her accepting or continuing in any employment. T he appellan t arg ues that her medical condition creates a barrier to her searching for, accepting, or cont inuing in any employment. Regarding the ministry's decisio n that the appellant's physici condition is likely to continue for at least 2 more years, the panel notes that at the time the reconsideration decision was written, the ministry had not received a response from the physician regarding the expected duration of the appellant 's condition bein issued the h sician res anded that her condition is ex EAAT003(10/06/01) m in istry's deci sion that the app e l lan t does not on the b as i s that she does not meet all of the require m e nts of Section 2 (2) for at least 1 2 of the immediately precedi ng 15 i s 12, t h erefor e the min istry a n d Assistan ce Regulation (E AR ). o e m ployment e b arrie rs to employment, a pe rson m ust m e et th e requirements e imm edia tely precedin g 15 calen d ar m o nth s of one o r more o f Act; under a fo rme r A c t; P rogram Ac t; e Employm ent and A ssi s tan c e fo r P ersons with D isabi li tie s Act . on th e employabili ty sc r een set out in Schedule E, and that the pe rson ha s barr i e rs that seriously i mpe d e t h e ment, dic tion , that is conf i r med b y a me d ica l pract i t i oner and that, o nt inue for at leas t 2 mo re y ear s, or ly to cont inue for at lea st 2 mor e y ears , and im pede s t h e per son's ability to searc h for, acce p t or continue ason able fo r the pe rson to overcom e the barri ers r eferr ed dic tion. that is conf irmed by a me dic a l p ra ctitioner a nd conti nue f o r al lea s t 2 mo re years, or nue for at least 2 more years , and m searching for, accepting or on the Employability Screen is less than 15 and from s ea r ching fo r, a n has not confirmed that her medical . Following the reconsiderat i on decision ected to last more than two ears. At
the hearing the ministry told the panel that it is satisfied by the response and concedes that the requirement of the EAR section 2(2)(4)(ii) has been satisfied. The panel finds that in light of the new evidence the ministry's finding in the reconsideration decision was not supported by the evidence and was unreasonable. Regarding the ministry's determination that, in the opinion of the minister, the appellant's condition does not present a barrier that precludes her from searching for, accepting or continuing employment the panel considered the evidence in the appeal record and the testimony given at the hearing. The panel considered the details provided by the appellant's physician about the restrictions that her condition causes, including that she is limited to lifting 15 lbs, no repetition, no repetitive bending/reaching/twisting, limited to sitting less than 30 minutes before body pain and stiffness, standing is limited to 20 minutes, and walking is limited to less than 1 bloc!< and taking 5 times longer than normal. The oral evidence of the appellant and her witnesses is consistent with this description and did not identify any conflicts. In weighing the evidence of the appellant, her condition, and the barriers it creates, the panel found that the details in the medical report for PPMB and the information in the advocate's letter sent to the physician was more useful than the medical imaging reports. This is because the panel found the medical imaging reports detailed only the physical characteristics of her condition visible by the physician but provided no interpretation of how these characteristics affected the appellant in terms of pain, strength, movement, restrictions, or ability. The panel finds that the medical report for PPMB dated June 12, 2014 in which the physician described her restriction as, "problems walking, standing for too long, bending, lifting, use of hands and [illegible]" was more useful in determining her level of restriction. The panel also relied on the letter dated July 31, 2014 where the physician agreed with the advocate that the appellant, "has widespread osteoarthritis, is limited to lifting 15 lbs, no repetition, no repetitive bending/reaching/twisting, limited to sitting less than 30 minutes before body pain and stiffness, standing is limited to 20 minutes, and walking is limited to less than 1 bloc!< and taking 5 times longer than normal" to provide a more clear picture of her barriers. The panel notes the ministry acknowledged the physician's description of her restrictions but did not include details in the reconsideration decision about why her restrictions did not satisfy the minister of the legislated requirements other than to write that her restrictions "may prevent her from accepting employment in positions requiring prolonged physical activity." The panel finds that this determination by the ministry was unreasonable. When the barriers enumerated on the appellant's employability screen are considered, the panel finds the ministry's argument that the appellant could find an employer who will accommodate her restrictions unreasonable as she has little education, little or no worl< experience, and has been on social assistance for more than 12 months of the past three years. The panel finds that the reconsideration decision was not a reasonable application of the applicable legislation in the circumstances of the appellant and therefore the panel rescinds the decision. EAAT 003(10/06/01)
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