I APPEAL# PART C Decision under Appeal The decision under appeal is the Ministry of Social Development and Social Innovation (ministry) reconsideration decision dated October 30, 2014, which denied the appellant's request for a supplement to cover the cost of a Walking Boot Cast. The ministry found that the item requested is not an eligible item in Schedule C of the Employment and Assistance for Persons with Disabilities Regulation (EAPWDR). PART D Relevant Legislation Employment and Assistance for Persons with Disabilities Regulation (EAPWDR), Sections 62 and Schedule C, Section 3.10
I APPEAL# PART E Summary of Facts With the oral consent of the appellant, a ministry observer attended but did not participate in the hearing. The evidence before the ministry at the time of the reconsideration decision included: 1) Medical Equipment Request and Justification form dated August 18, 2014 in which a medical practitioner described the appellant's medical condition as metastatic breast cancer to bone. Lytic cancer lesions in left distal leg/ankle for which she recently received radiation treatment to affected area. The appellant has ongoing pain with mobilization and the medical practitioner prescribed a walking boot cast (air cast) 2) Medical Equipment Request and Justification letter dated September 9, 2014 to the ministry in which the physiotherapist reported that: • The appellant has metastatic breast cancer to bone, relapsing in 2009 from a prior 2007 early breast cancer, which was treated. • The appellant was recently found to have progressive disease with lytic changes to the distal left tibia. • She is currently mobilizing independently with a 4w/w [wheeled-walker]; she ambulates with greater weight bearing through her right lower extremity secondary to pain in the left foot/ankle. • The appellant requires a left air cast walker boot to provide protection and support when weight bearing and ambulating indoors/outdoors. This support is necessary to minimize the risk of a bone fracture to left foot/ankle given the spread of cancer to the distal tibia in left lower extremity. • The appellant trialed a left air cast walker boot from the hospital, which allowed her to ambulate safely with her walker while offering support and protection. 3) Letter of Estimate dated September 10, 2014 from a medical product supplier for a "Tall Aircast walker boot" at an estimated cost of $180; and, 4) Request for Reconsideration dated October 3, 2014 and Reasons dated October 16, 2014 prepared by an advocate on behalf of the appellant and attaching: • Excerpts from a previous decision of the Employment and Assistance Appeal Tribunal which found that the ministry's decision dated November 10, 2008, which denied a supplement to cover the cost of a air cast boot , was not a reasonable application of Section 2 of Schedule C of the EAPWDR as it then was. • Prescription dated May 14, 2014 for an air cast for the appellant's left ankle in order to weight bear. • Prescription receipt dated May 15, 2014, which states that the prescription for an air cast ankle brace has not been filled and the quote is for $80. • Prescription dated July 23, 2014 for a walking boot cast required for structural/anatomical support. This is required for a metastatic bone lesion that is painful with weight bearing. • Hospital Guidelines for patients using an Air Cast Boot which includes a description of the Air Cast Boot as a pneumatic walking brace used after surgery or injury to the lower leg or foot. The air cells in the brace are adjusted by the patient for a custom fit within a strong plastic shell. The support and stability offered by an Air Cast Boot allows patients to gradually increase weight-bearing activity on their injured leg as it heals. The boot provides support and stability as well as a custom fit throughout the healing process.
I APPEAL# In the Request for Reconsideration, the appellant's advocate wrote: • The appellant does not have a fracture. She has seriously impaired mobility issues and is at substantial risk for injury without this support. • The appellant received recent radiation treatment to the affected area and is dealing with ongoing pain with mo9ility. • As explained by the medical practitioner working with the appellant, the air cast is required for mobility support and balance, with cancer as the underlying medical condition. • The appellant has very little strength in her ankle and she needs the cast to prevent injury and maintain stability. She is already required to use a walker in order to assist her in completing her daily living activities, but this support for basic mobility is not sufficient. • According to the physiotherapist, the air cast is meant to provide "protection and support when weight bearing and a1bulating indoors and outdoors" and the appellant is unable to pay for the cost of this device eeded for basic mobility as she receives social assistance. • As noted in the hospital buidelines for patients using an Air Cast Boot, the air cast offers support and stability vJhile allowing patients to "gradually increase weight-bearing activity on 1 their injured leg as it Hals" and is a device that a health care professional fits specific to the patient and their need. Prior to the hearing, the appe11ant provided her Notice of Appeal dated November 4, 2014. In her Notice of Appeal, the appellan 1 t expressed her disagreement with the ministry's reconsideration decision and wrote: • Section 3.10(11) of Sc edule C of the EAPWDR was misapplied by the ministry. • The appellant requires t~I e walking boot for support and mobility as well as to lessen the possibility of any injury. • The appellant does n9t need assistance for a fracture but, rather for support. • The ministry interprets and limits the need for a "possible" fracture. The possible injury could be to another part of h r body if she was to fall, and this should be considered. At the hearing, the appellant' ~dvocate stated that: • The exclusion set out i legislation is limited to a walking boot "for a fracture" rather than a walking boot that is LI\ d to prevent a fracture. • The appellant no long r wears the walking boot because her body is stronger and she can I now manage her mobi ity with just her walker. • Previously, the walker ~s not sufficient to allow for flexibility in the appellant's movements. • The appellant required ~ability even to get to the local ministry office to deal with her request. • The appellant did not aye a fracture in her leg/ankle but there was a weakness and a need to protect and support thi f3rea of the body. I • When the appellant m df her request for the walking boot she was not given direction by the ministry or an explanat10n about the legislation, which would have been helpful and likely 1 would have expedited I hi process. At the hearing, the appellant tated that: • She obtained a walkin 1 ~oot which she is paying for in installments and there is still an amount owing. She is paying t i~ out of her own pocket and she seems to need many items to cope with her medical condi: ioln. • The walking boot she I b ained was "off the shelf" and not customized for her. • She relies on her mob jt as she has man doctor a ointments that she needs to attend.
I APPEAL# • Her bone was so wea ~ 1lhat it was "close to a fracture" and could have broken. She needed the walking boot to st~ y safe. • The walking boot made a great difference to her mobility because it gave her support and stopped her toes froni r r 1 ~ lll bbing. It gave a strong foundation for her foot. 1 • She has one pair of n ing shoes and no boots. • She thinks she may h !Vf had a stroke because she finds that her speech and her walking have been impaired. tter eye sight is deteriorating. • Her doctor described J~r cancer as "metastatic breast cancer to bone" which is a more serious form of cancer and shl ~r s the necessity of protecting the bone. The ministry relied on its rec¢ nsideration decision as summarized at the hearing. At the hearing, the ministry stated that: I 1 • There is an element o 9iscretion given to the ministry when considering an item for a crisis supplement if the crite 1 ic~ are met, even though the item is not listed in the legislation, which is different from the hea h supplements in Schedule C. • When the word "may" 1 s used in legislation, the ministry is provided with discretion. • The words "for a fract1 'n~" were included in the legislation as part of the description of the walking boot and was! a<ilded for clarity only. • If the walking boot wal · ~ot specifically excluded as a health supplement, the walking boot could possibly be con ic ered under one of the other sub-sections of Section 3.10. ' I
I APPEAL# The issue on the appeal is w· elther the ministry's decision, which denied the appellant's request for a supplement to cover the cos I a Walking Boot Cast because the item requested is not an eligible item in Schedule C of the E · . :oyment and Assistance for Persons with Disabilities Regulation (EAPWDR), is reasonably sy Jorted by the evidence or a reasonable application of the applicable enactment in the circumstan 1 ~ of the appellant. I I · Pursuant to Section 62 of the BAPWDR, the applicant must be a recipient of disability assistance, or be a dependent of a person i1 ~eceipt of disability assistance in a variety of scenarios. If that condition is met, Schedule C · the EAPWDR specifies additional criteria that must be met in order to quali_fy for a health ~upplemel t for variou~ items. In this case, the ministry has found that _t~e requirement of Section 62 ha een met in that the appellant has been approved as a rec1p1ent of disability assistance. At issue is whether the requJ. ted Walking Boot Cast is an eligible item under Schedule C of the EAPWDR, including: 1 Medical equipment and devices 3 (1) Subject to subsections (2) to ( )Io f this section, the medical equipment and devices described in sections 3.1 to 3.12 of this Schedule are the heal · supplements that may be provided by the minister if (a) the supplements are provi e ! to a family unit that is eligible under section 62 [general health supplements] of this regulation, and (b) all of the following require I e ts are met: (i) the family unit has recei e, the pre-authorization of the minister for the medical equipment or device requested; I I (ii) there are no resources· vailable to the family unit to pay the cost of or obtain the medical equipment or device; (iii) the medical equipment! rldevice is the least expensive appropriate medical equipment or device . . .. Section 3.1 provides that the foll'' r ing items are health supplements for the purposes of section 3 of the Schedule, if the other criteria of h section are met: a cane, a crutch, a walker, an accessory to a cane, a crutch or a walker. Section 3.2 provides that the foll wing items are health supplements for the purposes of section 3 if the other criteria of the section are met: a heelchair, an upgraded component of a wheelchair, an accessory attached to a wheelchair. I Section 3.3 provides that the foll f ing items are health supplements for the purposes of section 3 of the Schedule, if the other criteria of he section are met: a wheelchair seating system, an accessory to a wheelchair seating system. I Section 3.4 provides that the folil f j ing items are health supplements for the purposes of section 3 of the Schedule, if the other criteria of section are met: a scooter, an upgraded component of a scooter, an accessory attached to a scoote Section 3.5 provides that the fol , +ng items are health supplements for the purposes of section 3 of the Schedule, if the other criteria of r section are met: a grab bar in a bathroom, a bath or shower seat, a bath transfer bench with hand held s wer, a tub slide, a bath lift, a bed pan or urinal, a raised toilet seat, a toilet safety frame, a floor-to-ceiling p 1J in a bathroom or bedroom, a portable commode chair, a standing frame or 1 a ositionin chair for a erson , ~ whom a wheelchair is medical! essential to achieve or maintain basic
I APPEAL# mobility, and a transfer aid for 1pe rson for whom the transfer aid is medically essential. Section 3.6 provides that the foI owing items are health supplements for the purposes of section 3 of the 1 Schedule, if the other criteria oti rle sec,ion are met: a hospital bed, an upgraded component of a hospital bed, an accessory attached to a hos! iial bed, and a positioning item on a hospital bed. Section 3.7 provides that the foI owing item is a health supplement for the purposes of section 3 of the 1 Schedule, if the other criteria of rle section are met: a pressure relief mattress. I I Section 3.8 provides that the foI ot.ving item is a health supplement for the purposes of section 3 of the 1 Schedule, if the other criteria ofi ~e section are met: a floor or ceiling lift device. Section 3.9 provides that the fol wing items are health supplements for the purposes of section 3 of the Schedule, if the other criteria ofi h 1 e sec~ion are met: breathing devices. Section 3.1 O provides that the f llpwing items are an orthosis which is a health supplement for the purposes of section 3 of the Schedule, if the ther criteria of the section are met: a custom-made or off-the-shelf foot orthotic, custom-made footwea~ ~ permanent modification to footwear, off-the-shelf footwear for a specific purpose, off-the-shelf orthopae, a footwear, an ankle brace, an ankle-foot orthosis, a knee-ankle-foot orthosis, a knee brace, a hip brace, an u per ext~emity brace, a cranial helmet, a torso or spine brace, a foot abduction orthosis, or a toe orthosis. 3.10( 11) The following items ar not health supplements for the purposes of section 3 of this Schedule: (a) a prosthetic and rel ed supplies; (b) a plaster or fibergla cast; (c) a hernia support; (d) an abdominal suppo ;, (e) a walking boot for a racture. I (f) Repealed. [B.C. Reg 144/2011, Sch. 2.) Section 3 and 3. 1 through 3. 21o f Schedule C of the EAPWDR The ministry's position is that he appellant is eligible to receive health supplements under Section 62 of the EAPWDR but the Wal ng Boot Cast, is not an eligible item as medical equipment specifically set out in 3.1 through 3.12 of chedule C of the EAPWDR. The ministry also argued that the Walking Boot Cast is specifically excl ed as a health supplement, pursuant to Section 3.10(11 )(e) of Schedule C, as a "walking b ot for a fracture." The ministry disputed the persuasiveness of the previous decision of the Trib al as the applicable legislation was amended in 2010. The appellant's position is th Section 3.1 of Schedule C of the EAPWDR offers types of items that are health supplements that re medically essential to achieve or maintain basic mobility, it is clear that basic mobility is somethi g that '1eeds to be supported, and the appellant is dealing with ongoing pain with mobility. The advo te argued that a previous decision of the Tribunal rescinded a 2008 ministry decision to deny an i Cast to another person and is persuasive. The advocate argued that the exclusion in Section 3.10 1) of Schedule C of the EAPWDR is for a walking boot "for a fracture" and the appellant does not re uire the walking boot for a fracture but, rather, for support. The advocate argued that the min try needs to consider the unique circumstances of each case in detail. The advocate argued that th underlying medical condition for the appellant is cancer and she needs the cast to prevent injury and aint 4 in stability. The advocate argued that the ministry's decision does not a I a broad inter e;tation of the le islation nor the ministr 's foundational vision
I APPEAL# statement, mission statemen and gL,Jiding principles, and there is a lack of a benevolent purpose. Panel decision Section 3(1) of Schedule Co the EAPWDR stipulates that the medical equipment and devices described in Sections 3.1 to .12 of Schedule Care the health supplements that may be provided by the ministry. The appellant d d not a;dvance a position that the Walking Boot Cast is specifically set out in Section 3.1 through 3. 2 of Schedule C of the EAPWDR, but argued that the Walking Boot Cast is an item, like many of he items listed, which is medically essential to achieve and maintain the appellant's basic mobility. T e ministry acknowledged that the evidence provided by the appellant established her need for the ;alking Boot Cast and that, if the exclusion in Section 3.10(11) had not been added to Schedule C o tr,e EAPWDR, an argument is possible that the Walking Boot Cast falls within the definition of "ortho is" as set out in Section 3.10. Section 3.10 of Schedule C, ~ich sets out various types of orthoses, also lists items that are not health supplements for the p rposes of Section 3 of Schedule C and a walking boot for a fracture is listed in sub-section 3.10(11) e). The advocate argued that the exclusion is a walking boot specifically "for a fracture" an :the appellant does not require the walking boot for a fracture but, rather as a result of the unde lying condition of cancer and for support to the bone to prevent future potential injury. The item req ~sted by the appellant is described in the hospital Guidelines for patients as: "a pneumatic wa ilng brkce used after surgery or injury to the lower leg or foot" and "the boot provides support and st 9ility, as well as a custom fit throughout the healing process." The panel finds that the requeste yYalking Boot Cast is designed primarily to promote healing after surgery or injury, which woul ijnclude a fracture. In this context, while the advocate argued that the appellant is using the walkin boot to prevent injury, the panel finds that the requested Walking Boot Cast falls within the definition df a "walking boot for a fracture" as being descriptive of the primary purpose of the item to promo healihg after an injury such as a fracture. Although the advocate argued that the ministry nee Ito consider the unique circumstances of each case and how the walking boot is being used b the particular individual, the panel finds that the ministry reasonably concluded that the words "fo ~ fract~re" are part of the description of the item excluded and is not sufficiently detailed to define he pa~icular purpose for which the item is used. The panel finds that the mini ~ real onably determined that the Walking Boot Cast is not included as a health supplement as it is s · ecificJlly excluded by Section 3.10(11) of Schedule C from the health supplements that may be pro ided by the ministry. Previous Tribunal decisions are not binding although they may be persua +e; however, the Tribunal decision referred to by the advocate, and which rescinded the ministry' decisibn to deny a request for a air cast boot, is distinguishable as it considered a different sectio j f Schiedule C of the EAPWDR relating to disposable medical or surgical supplies and a versi nl of the legislation prior to amendments that were made in 2010. Conclusion I In conclusion, the panel finds tlnat the ministry's decision to deny the request for a supplement to cover the cost of a Walking B ?t Ca~t as not meeting the legislated criteria of Schedule C, Sections 3.1 to 3.12, of the EAPWDR, as a rieasonable application of the applicable enactment in the circumstances of the appella t and, therefore, confirms the decision.
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