APPEAL #
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 January 28, 2015 which held that the ministry was not able to
approve the appellant’s request for a Rifton Pacer Gait Trainer (RPGT) because the appellant did not
meet the eligibility requirements set out in the Employment and Assistance for Persons with
Disabilities Regulation (EAPWDR) section 69, and Schedule C sections 2(1)(a), 2(1)(c), 2(1.1), 2.1,
2.2, 3, 3.1 - 3.12, 4, 4.1, 5, 6, 7, 8, and 9.
PART D – Relevant Legislation
EAPWDR sections 62 and 69
EAPWDR Schedule C sections 2(1)(a), 2(1)(c), 2(1.1), 2.1, 2.2, 3, 3.1 to 3.12, 4, 4.1, 5, 6, 7, 8, and 9.
APPEAL #
PART E – Summary of Facts
The documentary evidence before the ministry at reconsideration included the following:
1.
A quote dated June 3, 2015 from a supplier of medical equipment for the purchase of a RPGT
and attachments/accessories.
2.
A Medical Equipment Request and Justification form submitted on behalf of the appellant by
her Physical Therapist. It was signed and dated by the Physical Therapist on June 18, 2014
and describes the appellant’s medical condition as “Acquired brain injury, craniotomy, cortical
visual impairment and gastro-esophageal reflux, and long QT – syndrome”. It was also signed
by a physician (signature illegible) on July 7, 2014 who wrote ‘’Rifton Pacer Gait Trainer K544
517C XL” in response to the question “What type of medical equipment is recommended?”
Accompanying this form was a 4-page letter from the appellant’s Physical Therapist (PT) that
listed the appellant’s equipment as follows (items not associated with basic mobility are not
included):
• Quickie Iris Wheelchair (tilt in space) with custom seating
• Overhead Lift and 6-point sling
• Easy-Stand Evolv
• Rifton Pacer gait trainer –size large- on loan from (a rehabilitation facility) May 2014, will
have to be returned Sept 2014 – quote for purchase has been obtained
• Bilateral AFO’s
• Suitcase ramp
• Wheelchair Accessible Vehicle (make/model)
• BHM Junior folding floor lift.
The PT explained that the appellant experienced an anoxic brain injury secondary to cardiac arrest in
August, 2009. She was in care facilities until May of 2010 when she returned home. Since that time
she has been receiving rehabilitation and has made significant gains. Her family, caregivers and
therapists have seen definite changes in her alertness and improvement in her motor skills.
Additionally, her medications are being gradually reduced. The appellant can move her right leg
independently, and is starting to be able to bear weight considerably on this side She has the head
and trunk strength to maintain a sitting position with stand-by supervision for at least 20 minutes, and
to sit in her wheelchair for up to 4 hours. She has tolerated 1 hour pool sessions where she is quite
active the majority of the time. This has been a . . . successful therapeutic activity for her, to the point
that she is able to “walk” independently in chest deep water . . . her progress with hydrotherapy over
several years has allowed her to progress to the point of successfully trialling a gait trainer. The
appellant is moved between her bed, wheelchair, recliner, commode, and stander via overhead
mechanical lift and 6-point universal sling. Recently, she has progressed her weight bearing ability to
the point of being able to do a partial weight bearing pivot transfer with mod/max assistance from one
helper who is familiar with her. This was previously a heavy two person transfer. If this is continued to
be practiced it is very possible that this could become a reasonable or moderate assistance from one
person. She has also been using the Easy Stand Evolv mechanical sit-to-stand stander for bilateral
lower extremity weight bearing. Currently, she is standing over a 20-minute period. She has also
been weight bearing to some extent in the pool, and most recently has been using a gait trainer at
home. The PT describes the RPGT and states “(I)t is the minimal equipment necessary in this
category to achieve a safe and satisfactory result”. She adds that the appellant “ . . . is doing quite
well in the gait trainer; she is still taking a lot of weight via the seat, but is able to propel the device on
her own, and is tolerating being in the gait trainer for periods of around 20 minutes. She concludes
that the appellant “ . . . has made great gains over the past five years and is continuing to make
APPEAL #
strides and progress. In the first several years following her brain injury, (the appellant) was quite
medically fragile, and also quite heavily medicated; as such her rehabilitation was limited by these
factors. As (the appellant) has been able to tolerate medication decreases recently, she has been
much more alert, and has had much more reserves of energy to make functional gains. It is the
general feeling of her team that (the appellant) has not yet reached her rehabilitation potential. The
gait trainer will allow her and her family to keep progressing her ambulatory status, and will ultimately
help her to become more independent in her transfers, etc.”
3.
A letter to the appellant from the ministry dated December 9, 2014 advising that the ministry
has denied the appellant’s request for a RPGT.
4.
The appellant’s Request for Reconsideration signed and dated January 13, 2015 that includes
the following statement: “This request was denied because it was not shown that the RPGT
would be used for Functional Mobility. It was stated that it would improve (the appellant’s)
weight bearing ability. This is partially correct; however with the continued use of the RPGT,
(the appellant) would develop the physical strength to stand on her own and transfer more
easily from bed to chair, without the constant use of an overhead lift. She does use the RPGT
that was on loan from (a medical facility) to go on walks with other family members and care
givers. Just with the short time she had a loan of the RPGT she can walk without assistance
other than the RPGT up to approximately 1 km. She can also stand on her own with little
support for short periods. Attached are three pictures showing (the appellant) in the RPGT
using it for functional mobility and one showing the direct results of its use. Unfortunately there
are no other means of physical therapy for (the appellant) as she was denied due to (a
specified hospital’s) policies. I respectfully request that you review the materials and
reconsider your decision. Thank you for your time. I look forward to your reply.”
The appellant’s Notice of Appeal was signed and dated February 8, 2015 and listed the following
reasons for appeal:
-
“Definition of gait trainer/walker by Wikipedia. (wikipedia is not a reliable source and can
be edited.)
-
I and others believe it is a piece of medical equipment and is funded as such by some
health care insurances.
-
There is a medical need for (the appellant) to use a Gait trainer as stated by her PT to
progress her ambulatory status.
Attached to the Notice of Appeal was a 4-page submission that included a statement of policy of one
health care provider (Aetna). The submission describes “Medical Benefits” provided by the RPGT and
presents “Business Cases” which argue that the RPGT can save on costly medical and surgical
interventions that might otherwise be needed.
Prior to the hearing, the appellant submitted a Release of Information form authorizing her father and
her mother as her representatives. In addition, she submitted a Representation Agreement form that
listed her mother as her representative and her father as her alternate representative.
At the hearing, the appellant ‘s father (AF) reported that he had recently had a conversation with
someone who had until recently been one of the appellant’s physical therapists. He learned that the
ministry had contacted this individual and had a telephone conversation with him regarding the
appellant and her needs. The AF noted that there was nothing in the appeal record concerning this
APPEAL #
conversation. He also reported that the therapist allowed that he had not provided enough information
in the written justification he provided in the appellant’s request for the RPGT, to clearly establish the
need for this equipment. He noted that the appellant is trapped in a wheelchair and she wants to
regain (as much as possible of) the function she had before her acquired brain injury (ABI). The
appellant has progressed so far with the use of the RPGT that she is now able to walk 1.67
kilometers in it. As a consequence of its use, the appellant has regained more regular functioning
including more regular elimination. In addition, for some time after the ABI, she was mute but she has
regained an ability to vocalize. The appellant’s gains in ambulatory status have been significant and
this has lead to her requiring far fewer medications. Accordingly, she is now much more alert and has
greater cognitive abilities.
In response to a question from the panel, the AF confirmed that the RPGT would provide stability,
balance and support for the appellant in ambulating. In response to another question, the AF
indicated that the RPGT does not allow the appellant to go to places that cannot be reached with the
wheelchair. He explained that the RPGT is lighter and more mobile than the wheelchair but its size is
not smaller than the dimensions of the wheelchair. The AF added that there is one way in which the
RPGT has provided enhanced mobility and function for the appellant. Since her ABI she has required
a lift and crane to transfer from the wheelchair to the bed and vice versa. But due to her progress
since using the RPGT she is now sometimes a
ble to sit on the side of the bed and move from the bed
to the wheelchair or to the RPGT, with the assistance of (just) one person, but without the need for
the lift.
The AF explained that the wheelchair does provide basic mobility in some situations where the RPGT
would not work as effectively such as on rough terrain or on beaches. In response to a question from
the panel, the AF concluded that the appellant would not be able to use a “regular” walker.
The ministry representative stated that she had consulted with the ministry’s Supervisor of Medical
Equipment on the matter of whether the RPGT was a “walker”. She reported that they had concluded
that “ . . . they had no problem calling it a walker” and that it was “OK to call it (the RPGT) a walker”.
She noted that the essential issue in this appeal centers around the interpretation of the phrase “ . . .
medically essential to achieve or maintain basic mobility”. She explained that the ministry considers
basic mobility to be getting from point A to point B. The ministry does not deny that the appellant has
had a clear and significant benefit from the use of the RPGT but that is not what the legislation
covers. She noted that there are occasions in which an individual on disability assistance may be
funded to receive and use two pieces of equipment as mobility aides – although she indicated that
this is rare – but where a wheelchair is not meeting the person’s need to get from A to B then a
second device such as a scooter might be provided. She stated that the legislation doesn’t deal with
rehabilitation. In some cases, she noted the equipment provided for basic mobility might be a more
expensive option than another mobility aid but if the more expensive option meets the eligibility
requirement and the less expensive option does not then the more expensive option will be chosen.
She concluded by stating that she felt the reconsideration decision wasn’t clear enough on the
reasons that the RPGT was denied. It was not clearly explained.
APPEAL #
PART F – Reasons for Panel Decision
The issue in this appeal is whether the ministry’s decision to deny the appellant’s request for a Rifton
Pacer Gait Trainer was reasonably supported by the evidence or was a reasonable application of the
applicable enactment in the circumstances of the appellant. In particular, was the ministry reasonable
in determining that the appellant did not meet the criteria set out in the EAPWDR?
The relevant legislation is as follows:
From the EAPWDR:
General health supplements
62 (1) Subject to subsections (1.1) and (1.2), the minister may provide any health supplement set out
in section 2 [general health supplements] or 3 [medical equipment and devices] of Schedule C to or
for a family unit if the health supplement is provided to or for a person in the family unit who is
(a) a recipient of disability assistance,
Health supplement for persons facing direct and imminent life threatening health need
69 The minister may provide to a family unit any health supplement set out in sections 2 (1) (a) and
(f) [general health supplements] and 3 [medical equipment and devices] of Schedule C, if the health
supplement is provided to or for a person in the family unit who is otherwise not eligible for the health
supplement under this regulation, and if the minister is satisfied that
(a) the person faces a direct and imminent life threatening need and there are no resources available
to the person's family unit with which to meet that need,
(b) the health supplement is necessary to meet that need,
(c) the person's family unit is receiving premium assistance under the Medicare Protection Act, and
(d) the requirements specified in the following provisions of Schedule C, as applicable, are met:
(i) paragraph (a) or (f) of section (2) (1);
(ii) sections 3 to 3.12, other than paragraph (a) of section 3 (1).
Schedule C
Health Supplements
General health supplements
2 (1) The following are the health supplements that may be paid for by the minister if provided to a
family unit that is eligible under section 62 [general health supplements] of this regulation:
(a) medical or surgical supplies that are, at the minister's discretion, either disposable or reusable, if
the minister is satisfied that all of the following requirements are met:
(i) the supplies are required for one of the following purposes:
(A) wound care;
(B) ongoing bowel care required due to loss of muscle function;
(C) catheterization;
(D) incontinence;
(E) skin parasite care;
(F) limb circulation care;
(ii) the supplies are
(A) prescribed by a medical practitioner or nurse practitioner,
(B) the least expensive supplies appropriate for the purpose, and
(C) necessary to avoid an imminent and substantial danger to health;
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(iii) there are no resources available to the family unit to pay the cost of or obtain the supplies;
(a.1) the following medical or surgical supplies that are, at the minister's discretion, either disposable
or reusable, if the minister is satisfied that all the requirements described in paragraph (a) (ii) and (iii)
are met in relation to the supplies:
(i) lancets;
(ii) needles and syringes;
(iii) ventilator supplies required for the essential operation or sterilization of a ventilator;
(iv) tracheostomy supplies;
(a.2) consumable medical supplies, if the minister is satisfied that all of the following requirements are
met:
(i) the supplies are required to thicken food;
(ii) all the requirements described in paragraph (a) (ii) and (iii) are met in relation to the supplies;
(b) Repealed. [B.C. Reg. 236/2003, Sch. 2, s. 2 (b).]
(c) subject to subsection (2), a service provided by a person described opposite that service in the
following table, delivered in not more than 12 visits per calendar year,
(i) for which a medical practitioner or nurse practitioner has confirmed an acute need,
(ii) if the visits available under the Medical and Health Care Services Regulation, B.C. Reg. 426/97,
for that calendar year have been provided and for which payment is not available under the Medicare
Protection Act, and
(iii) for which there are no resources available to the family unit to cover the cost:
Item
Service
Provided by
Registered with
1
acupuncture
acupuncturist
College of Traditional Chinese Medicine under the H
2
chiropractic
chiropractor
College of Chiropractors of British Columbia under th
3
massage therapy
massage
College of Massage Therapists of British Columbia u
therapist
4
naturopathy
naturopath
College of Naturopathic Physicians of British Columb
5
non-surgical
podiatrist
College of Podiatric Surgeons of British Columbia un
podiatry
6
physical therapy
physical therapist
College of Physical Therapists of British Columbia un
(d) and (e) Repealed. [B.C. Reg. 75/2008, s. (a).]
(f) the least expensive appropriate mode of transportation to or from
(i) an office, in the local area, of a medical practitioner or nurse practitioner,
(ii) the office of the nearest available specialist in a field of medicine or surgery if the person has
been referred to a specialist in that field by a local medical practitioner or nurse practitioner,
(iii) the nearest suitable general hospital or rehabilitation hospital, as those facilities are defined in
section 1.1 of the Hospital Insurance Act Regulations, or
(iv) the nearest suitable hospital as defined in paragraph (e) of the definition of "hospital" in section 1
of the Hospital Insurance Act,
provided that
(v) the transportation is to enable the person to receive a benefit under the Medicare Protection Act
or a general hospital service under the Hospital Insurance Act, and
(vi) there are no resources available to the person's family unit to cover the cost.
(g) Repealed. [B.C. Reg. 75/2008, s. (a).]
(1.1) For the purposes of subsection (1) (a), medical and surgical supplies do not include nutritional
supplements, food, vitamins, minerals or prescription medications.
(2) No more than 12 visits per calendar year are payable by the minister under this section for any
combination of physical therapy services, chiropractic services, massage therapy services, non-
APPEAL #
surgical podiatry services, naturopathy services and acupuncture services.
(2.1) If eligible under subsection (1) (c) and subject to subsection (2), the amount of a general health
supplement under section 62 of this regulation for physical therapy services, chiropractic services,
massage therapy services, non-surgical podiatry services, naturopathy services and acupuncture
services is $23 for each visit.
(3) If the minister provided a benefit to or for a person under section 2 (3) of Schedule C of the
Disability Benefits Program Regulation, B.C. Reg. 79/97, the Income Assistance Regulation, B.C.
Reg. 75/97 or the Youth Works Regulation, B.C. Reg. 77/97, as applicable, for the month during
which the regulation was repealed, the minister may continue to provide that benefit to or for that
person as a supplement under this regulation on the same terms and conditions as previously until
the earlier of the following dates:
(a) the date the conditions on which the minister paid the benefit are no longer met;
(b) the date the person ceases to receive disability assistance.
2.1 Optical supplements
2.2 Eye examination supplements
Medical equipment and devices
3 (1) Subject to subsections (2) to (5) of this section, the medical equipment and devices described
in sections 3.1 to 3.12 of this Schedule are the health supplements that may be provided by the
minister if
(a) the supplements are provided to a family unit that is eligible under section 62 [general health
supplements] of this regulation, and
(b) all of the following requirements are met:
(i) the family unit has received the pre-authorization of the minister for the medical equipment or
device requested;
(ii) there are no resources available to the family unit to pay the cost of or obtain the medical
equipment or device;
(iii) the medical equipment or device is the least expensive appropriate medical equipment or
device.
(2) For medical equipment or devices referred to in sections 3.1 to 3.8 or section 3.12, in addition to
the requirements in those sections and subsection (1) of this section, the family unit must provide to
the minister one or both of the following, as requested by the minister:
(a) a prescription of a medical practitioner or nurse practitioner for the medical equipment or device;
(b) an assessment by an occupational therapist or physical therapist confirming the medical need for
the medical equipment or device.
(2.1) For medical equipment or devices referred to in section 3.9 (1) (b) to (g), in addition to the
requirements in that section and subsection (1) of this section, the family unit must provide to the
minister one or both of the following, as requested by the minister:
(a) a prescription of a medical practitioner or nurse practitioner for the medical equipment or device;
(b) an assessment by a respiratory therapist, occupational therapist or physical therapist confirming
the medical need for the medical equipment or device.
(3) Subject to subsection (6), the minister may provide as a health supplement a replacement of
medical equipment or a medical device, previously provided by the minister under this section, that is
damaged, worn out or not functioning if
(a) it is more economical to replace than to repair the medical equipment or device previously
APPEAL #
provided by the minister, and
(b) the period of time, if any, set out in sections 3.1 to 3.12 of this Schedule, as applicable, for the
purposes of this paragraph, has passed.
(4) Subject to subsection (6), the minister may provide as a health supplement repairs of medical
equipment or a medical device that was previously provided by the minister if it is more economical to
repair the medical equipment or device than to replace it.
(5) Subject to subsection (6), the minister may provide as a health supplement repairs of medical
equipment or a medical device that was not previously provided by the minister if
(a) at the time of the repairs the requirements in this section and sections 3.1 to 3.12 of this
Schedule, as applicable, are met in respect of the medical equipment or device being repaired, and
(b) it is more economical to repair the medical equipment or device than to replace it.
(6) The minister may not provide a replacement of medical equipment or a medical device under
subsection (3) or repairs of medical equipment or a medical device under subsection (4) or (5) if the
minister considers that the medical equipment or device was damaged through misuse.
Medical equipment and devices — canes, crutches and walkers
3.1 (1) Subject to subsection (2) of this section, the following items are health supplements for the
purposes of section 3 of this Schedule if the minister is satisfied that the item is medically essential to
achieve or maintain basic mobility:
(a) a cane;
(b) a crutch;
(c) a walker;
(d) an accessory to a cane, a crutch or a walker.
(2) A walking pole is not a health supplement for the purposes of section 3 of this Schedule.
3.2 Medical equipment and devices — wheelchairs
(2) Subject to subsection (4) of this section, the following items are health supplements for the
purposes of section 3 of this Schedule if the minister is satisfied that the item is medically essential to
achieve or maintain basic mobility:
(a) a wheelchair;
(b) an upgraded component of a wheelchair;
(c) an accessory attached to a wheelchair.
(3) The period of time referred to in section 3 (3) (b) of this Schedule with respect to replacement of
an item described in subsection (2) of this section is 5 years after the minister provided the item being
replaced.
(4) A high-performance wheelchair for recreational or sports use is not a health supplement for the
purposes of section 3 of this Schedule.
3.3 Medical equipment and devices — wheelchair seating systems
3.4 Medical equipment and devices — scooters
3.5 Medical equipment and devices — toileting, transfers and positioning aids
3.6 Medical equipment and devices — hospital bed
3.7 Medical equipment and devices — pressure relief mattresses
3.8 Medical equipment and devices — floor or ceiling lift devices
3.9 Medical equipment and devices — breathing devices
3.10 Medical equipment and devices — orthoses
3.11 Medical equipment and devices — hearing instruments
3.12 Medical equipment and devices — non-conventional glucose meters
4. Dental supplements
4.1 Crown and bridgework supplement
PAGE 9 of 14
EAAT003(10/06/01)
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5. Emergency dental supplements
6. Diet supplements
7. Monthly nutritional supplement
8. Natal supplement
9. Infant formula
The Appellant’s Position
The AF stated that while it is true that the appellant has a wheelchair, he argued that nowhere in the
legislation does it specify that a recipient of disability assistance cannot have more than one device in
support of meeting basic mobility needs. He argued that the appellant has a medical need for the
RPGT since it contributes to a healthy heart in addition to numerous other significant physical
improvements in the appellant’s condition. The statement of “Medical Benefits” in the 4-page
submission accompanying the Notice of Appeal also reported that being upright and mobile (in the
RPGT) improves respiration, digestion, circulation, bowel/bladder function, and bone development.
The AF explained that he had also included in the material submitted to the ministry, a business case
which he argued demonstrates that the ministry could reasonably expect to save money by providing
the appellant with the requested RPGT, since over the expected lifetime of the appellant the costs of
replacement wheelchairs could be significantly reduced and the savings would more than cover the
cost of the RPGT.
The AF concluded by noting that the Reconsideration Decision had stated that the RPGT was not
medically essential for the appellant. He challenged this conclusion by arguing that a doctor had
specified the RPGT as recommended for the appellant.
The Ministry’s Position
The Reconsideration Decision confirmed that as a recipient of disability assistance, the appellant is
eligible to receive the health supplements set out in the EAWPDR. The ministry reviewed each
category of Section C of the EAPWDR under which the appellant might qualify for the RPGT and the
ministry concluded the following:
• the RPGT does not qualify as medical equipment. The ministry considered whether the RPGT
could be defined as a walker but concluded that it could not since in the ministry’s view “ . . . the gait
trainer is a device intended for rehabilitation and to train individuals to walk, A walker is for support,
stability and balance, not to train for ambulation”. Nonetheless, as noted previously, at the hearing the
ministry allowed that the RPGT was considered to be a walker. The Reconsideration Decision also
stated that even if a gait walker is defined as a piece of medical equipment, the minister is not
satisfied that the physical therapist confirms the medical need for the gait trainer as her other medical
equipment enables her to mobilize. The minister is not satisfied that a RPGT is medically essential to
achieve or maintain basic mobility. Accordingly, even if the RPGT is considered to be a walker it does
not meet the criteria to qualify under section 3(2)(b) and 3.1(1) of Schedule C of the EAPWDR as
medical equipment and devices;
• The RPGT does not qualify as a medical or surgical supply. It is not a supply required for wound
care, ongoing bowel care required due to loss of muscle function, catheterization, incontinence, skin
parasite care, or limb circulation care. Additionally, the RPGT is not lancets, needles and syringes,
ventilator supplies required for the essential operation or sterilization of a ventilator, or tracheotomy
supplies. Also, the RPGT is not nutritional supplements, food, vitamins, minerals, or prescription
medications. Section 2(1.1) sets out that for the purposes of subsection (1)(a), medical and surgical
supplies do not include nutritional supplements, food, vitamins, minerals or prescription medications.
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Accordingly, the RPGT does not qualify as medical supplies under section 2(1) of Schedule C of the
EAPWDR as medical equipment and devices;
• The RPGT does not qualify as therapy. It is not acupuncture, chiropractic, massage therapy,
naturopathy, non-surgical podiatry, or physical therapy. Accordingly, the RPGT does not qualify as
therapy under section 2(1)(c) of Schedule C of the EAPWDR;
• the RPGT does not qualify as optical supplements, eye examination supplements, wheelchairs,
wheelchair seating systems, scooters, bathing and toileting aids, hospital bed, pressure relief
mattresses, floor or ceiling lift devices, breathing devices, orthoses, hearing instruments, non-
conventional glucose meters, dental supplements, crown and bridgework supplement, emergency
dental supplements, diet supplements, monthly nutritional supplement, or natal supplement..
Accordingly, the RPGT does not qualify under sections 2.1, 2.2, 3.2, 3.3, 3.4, 3.5, 3.6, 3.7, 3.8, 3.9,
3.10, 3.11, 3.12, 4, 4.1, 5, 6. 7, 8, or 9 of Schedule C of the EAPWDR.
Finally, the ministry considered whether the appellant qualified for the RPGT under section 69 of the
EAPWDR. The ministry concluded that there was no evidence to establish that the appellant faced a
direct and imminent life threatening health need for the RPGT. As the appellant did not satisfy the
criteria for section 69 of the EAPWDR she was not eligible for the RPGT under this legislation.
The ministry accepts that the appellant has clearly enjoyed significant benefits from the use of the
RPGT but argued that the legislation does not address the issue of rehabilitation – only basic
mobility.
The ministry concluded that while sympathetic with the appellant’s case, a review of all categories of
health supplements set out in Section C of the EAPWDR determined that the appellant’s request for
an RPGT did not meet the legislated criteria set out in the EAPWDR.
Panel Decision
The panel examined the ministry’s arguments regarding the appellant’s eligibility for the medical
equipment and supplies listed under sections 2(1)(a), 2(1)(c), 2(1.1), 2.1, 2.2, 3.2 – 3.12, 4, 4.1, 5, 6,
7, 8, and 9 of Schedule C of the EAPWDR. The panel also noted that no evidence was presented by
the appellant that indicated that the appellant considered the RPGT as qualifying under any section of
Schedule C of the EAPWDR other than section 3.1. Accordingly, the panel concluded that the
ministry had reasonably determined that the RPGT did not qualify as any of the items listed in those
sections identified by the ministry.
Additionally, the panel noted that no evidence had been presented by the appellant to establish that
she faced a direct and imminent life-threatening need for the RPGT. Accordingly, the panel
concluded that the ministry reasonably determined that the appellant did not qualify for the RPGT
under section 69 of the EAPWDR.
A central argument advanced by the ministry in the Reconsideration Decision concerned the contrast
between the definitions and functions of a walker and that of the RPGT. At the hearing, the ministry
allowed that the RPGT was a “walker” so the panel set aside the contrasting definitions and focused
upon the contrasting functions outlined by the ministry. The minister cited the definition of gait trainer
from Wikipedia and noted that it “ . . . assists a person who is unable to walk independently to learn or
relearn to walk safely and efficiently as part of gait training. Gait trainers are intended . . . to provide
the opportunity to improve walking ability. A gait trainer offers both unweighting support and postural
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alignment to enable gait practice. It functions as a support walker and provides more assistance for
balance and weight-bearing than does a traditional rollator walker, or a walker with platform
attachments. It also provides opportunities to stand and to bear weight in a safe, supported position. “
In the light of this functional description, the ministry concluded that the gait trainer (RPGT) is a
device intended for rehabilitation and to train individuals to walk. By contrast, the ministry concluded
that a walker is for support, stability, and balance, not to train for ambulation. But the panel finds this
contrast to be unreasonable and unsupportable. Walkers do have a rehabilitative capacity and are
used as rehabilitative devices by some people in some circumstances. For example, a person
receiving a knee replacement as a result of arthritis will typically employ the use of a wheelchair for
basic mobility when leaving the hospital. This is usually followed by the use of a walker for purposes
of balance and basic mobility and for strengthening muscles weakened through both the disuse and
surgery. The next step in the continuum is typically a combination of a walker, crutches and the use
of a cane before being able to resume walking unaided. While the ultimate goal is for the person to
resume walking unaided, this may not always occur. Accordingly, the ministry’s assertion that a
walker is not a piece of equipment used for rehabilitation is not a reasonable conclusion in the view of
the panel. Consequently, since the ministry has agreed that the RPGT can be considered a walker
insofar as the definitions of a walker and the RPGT are concerned, and the panel has rejected the
ministry’s contention that there is a significant difference between the functions of a walker and the
RPG, the panel concludes that the ministry unreasonably determined that the RPGT is not a walker.
The panel noted that both the AF and the PT emphasized the significant gains that the appellant has
made in the last few years in terms of her rehabilitation. The panel also noted however, that whereas
the AF gave significant credit to the use of the RPGT in contributing to these gains, the PT was less
clear in describing the benefits attributable to the RPGT. In the 4-page letter dated June 18, 2014
which she provided with the Medical Equipment Request and Justification form, she included mention
of the use of the RPGT, but also cited the benefits derived from weekly swimming sessions and
hydrotherapy, as well as physical therapy sessions at home. Accordingly, this evidence does not
clearly establish the contribution(s) made by the RPGT toward the rehabilitation gains and therefore
does not satisfy the criterion in section 3(2)(b) of Schedule C of the EAPWDR. The Request for
Reconsideration form appears to have been written by the PT (but this is not certain). In it, the writer
states that “Just with the short time she had a loan of the Rifton Gait Trainer, she can walk without
assistance other than the Rifton Gait Trainer up to approximately 1 km.”
The ministry argued that the legislation does not explicitly identify rehabilitation as a criterion for the
provision of medical equipment and devices. The panel accepts that this is a reasonable conclusion.
Section 3.1(1) of Schedule C of the EAPWDR provides that a walker is a health supplement if the
minister is satisfied that the walker is “ . . . medically essential to achieve or maintain basic mobility”.
This is the critical test. The ministry argues that the wheelchair alone meets the appellant’s needs for
basic mobility – it allows her to get from point A to point B. The AF does not accept this view, but did
allow in his oral testimony that the wheelchair provided basic mobility for the appellant in situations
where the RPGT would not – such as on rough terrain or at a beach. The AF argued that the
legislation does not disallow the provision of two pieces of equipment (or more) such as a wheelchair
and the RPGT. The panel accepts that this is true but according to the wording of the legislation both
pieces of equipment must be needed in order to provide basic mobility. If one piece of equipment is
sufficient to provide basic mobility then the other piece of equipment is not necessary, and is thereby
not allowed. The panel concludes that the ministry reasonably determined that the wheelchair alone
met the basic mobility needs of the appellant.
APPEAL #
The AF also provided a business case to argue that the ministry could save money on the lifetime
costs that could be estimated for the appellant making certain assumptions regarding the appellant’s
life span, the number of wheelchairs that would be required were she to have such a lifespan and the
cost of wheelchairs. Section 3 (1)(b)(iii) does specify that the medical equipment and devices
provided by the minister are to be the least expensive appropriate medical equipment or device. But
the ministry did not deny on this basis and the AF’s cost saving argument does not address the
criteria at issue.
In summary, the panel evidence is that the continued use of the RPGT by the appellant can
reasonably be expected to contribute to increased function and capacity by the appellant and that it
seems possible that such gains would be forfeit if the appellant does not have access to the
continued use of the RPGT. Nonetheless, the legislative test for the provision of the RPGT is not
related to rehabilitation outcomes or needs – it deals with achieving or maintaining basic mobility.
Accordingly, the panel concludes that the ministry reasonably determined that the appellant did not
meet the legislated criteria set out in the EAPWDR for an RPGT.
Having reviewed and considered all of the evidence and the relevant legislation, the panel finds that
the ministry’s decision that the appellant was not eligible for a Rifton Pacer Gait Trainer was a
reasonable application of the legislation in the circumstances of the appellant.
The panel therefore confirms the ministry decision.
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