Ministry of Social Development and Poverty Reduction

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 12 August 2015 that denied the appellant designation as a person with disabilities (PWD). The ministry determined that the appellant did not meet all of the required criteria for PWD designation set out in the Employment and Assistance for Persons with Disabilities Act, section 2. Specifically, the ministry determined that the information provided did not establish that the appellant has a severe mental or physical impairment that in the opinion of a prescribed professional (i) directly and significantly restricts her ability to perform daily living activities (DLA) either continuously or periodically for extended periods; and, (ii) as a result of those restrictions, she requires help to perform those activities. The ministry determined that the appellant satisfied the other 2 criteria: she has reached 18 years of age and her impairment in the opinion of a medical practitioner is likely to continue for at least 2 years. PART D – Relevant Legislation Employment and Assistance for Persons with Disabilities Act (EAPWDA) – section 2 Employment and Assistance for Persons with Disabilities Regulation (EAPWDR) – section 2

PART E – Summary of Facts The evidence before the ministry at reconsideration consisted of the following: 1. The appellant’s PWD Designation Application dated 05 June 2015. The Application contained:  A Physician Report (PR) dated 10 July 2014, completed by the appellant’s general practitioner (GP) who has known the appellant for 11 years and seen her 2 - 10 times over the past year  An Assessor Report (AR) dated 09 April 2015, completed by the same GP.  A Self Report (SR) completed by the appellant. 2. The appellant’s Request for Reconsideration, dated 14 July 2015, to which was attached a submission from the appellant’s advocate and 3 Internet articles on fibromyalgia. In the PR, the GP lists the following diagnoses related to the appellant’s impairment: fibromyalgia (onset 1996) and anxiety/depression (mood disorder) with onset unknown. The GP reports that the appellant’s impairment will likely continue for 2 years or more (longstanding: chronic condition). The panel will first summarize the evidence from the PR and AR relating to the appellant’s impairments as it relates to the PWD criteria at issue. Severity/health history Physical impairment PR: Under health history, the GP writes: “The appellant finds that her condition is progressive. Used to be able to work in restaurants and retail but is now bothered by increased (sic) and fatigue; finds it difficult looking after self and children (ADLs affected). Tried to work in daycare situation but unable to do that.” As to functional skills, the GP reports that the appellant can walk 1-2 blocks unaided, climb 2-5 steps unaided, is limited to lifting 15 – 35 lbs. and is limited to remaining seated for less than one hour. The GP indicates that the appellant has not been prescribed any medication and/or treatments that interfere with her ability to perform DLA. The GP also indicates that the appellant does not require any prostheses or aids for her impairment. Mental impairment PR: Under health history, the GP writes: “Gets overwhelmed when surrounded by large group of people; not able to do restaurant work. Avoids situations when in crowds. Snaps at the children when there is constant demand on her attention.” The GP assesses the appellant as having no difficulties with communications. GP indicates that the appellant has significant deficits with cognitive and emotional function in the

areas of emotional disturbance, motivation, and motor activity, commenting: “Definitely mood issues. Very agitated today: twitching”. Ability to perform DLA PR: The GP indicates the appellant is restricted the following DLA periodic basis: meal preparation, basic housework, daily shopping, mobility inside the home, mobility outside the home. The GP also indicates that the appellant is restricted in social functioning, giving no indication as to whether that is continuous or periodic. The GP comments: “Has good & bad days. On worse days just lying in bed: not able to do ADLs” Regarding social functioning, the GP comments: “isolates self; not much social function; not many friends; lost contact with father of children; separated.” AR: The GP reports that the appellant lives with her 2 children. The GP lists the appellant's mental or physical impairments that impact her ability to manage DLA as chronic pain issues; anxiety and depression GP assesses the appellant's ability to communicate as good for speaking, reading, writing and hearing. Regarding mobility and physical ability, the GP assesses the appellant as independent but taking significantly longer than typical in all of the following areas, with comments as shown:  Walking indoors – “some days hurts to walk.”  Walking outdoors –“some days hurts to walk.”  Climbing stairs – “stops after doing few – aggravates hip.”  Standing – “at times only able to stand for short periods.”  Lifting and carrying and holding – “neck & shoulder hurts when holding weight as low as 20 lbs.” The GP comments: “has hard time doing hills – pain.” The GP assesses the assistance required for managing DLA as follows (the GP’s comments in parentheses):  Personal care: independent in all aspects, but takes significantly longer than typical for dressing, bathing, transfers in/out of bed and transfers on/off of chair (at times difficult when hip very painful),  Basic housekeeping: Independent for laundry and basic housekeeping but takes significantly longer than typical (unable to do it as often as she should, gets help from friend once in a while).  Shopping: independent in all aspects.  Meals: independent in all aspects, but takes significantly longer than typical for meal planning, food preparation and cooking (at times only able to make something quick & easy).  Paying rent and bills: independent in all aspects.

 Medications: independent in all aspects.  Transportation: independent for getting in and out of vehicle, but takes significantly longer than typical (drives own vehicle; stays home when hip hurts too much). No assessment is provided for using public transit schedules and arranging transportation. Regarding cognitive and emotional functioning, the GP indicates that the appellant's mental impairment or brain injury restricts or impacts her functioning as follows:  Major impact – emotion and motivation.  Moderate impact – executive and memory.  Minimal impact – attention/concentration.  No impact – bodily functions, consciousness, impulse control, insight and judgment, motor activity, language, psychotic symptoms, and other neuropsychological problems. The GP comments: “Above impaired mostly on basis of depression.” With respect to social functioning the GP assesses the appellant as independent for making appropriate social decisions, developing and maintaining relationships (only has a few friends), interacting appropriately with others, dealing appropriately with unexpected demands and securing assistance from others (no help at the moment). The GP describes the impact of the appellant's impairment on her immediate and extended social networks as marginal functioning, commenting that she tends to isolate herself. Help provided/required PR: The GP indicates that the appellant does not require any prostheses or aids for her impairment The GP states that, regarding DLA, the appellant gets help mostly from her mother. AR: The GP reports that that the appellant receives help from a friend with laundry and her mother helps with the kids. The GP does not indicate that the appellant routinely uses any of the listed assistive devices. Self report The appellant describes her disability as follows:  constant back/hip/neck pain  leg & arm goes numb  constant headaches  have to lie down a lot  trouble sleeping In describing how her disability affects her life, she writes: “Sometimes the pain is so bad that I just lay around the house. I will skip meals for myself (still feed the kids). I have no motivation to just push through the pain & depression that I

will cancel appointments etc.” Reconsideration submission In the reconsideration submission, the appellant's advocate provides a detailed overview of the appellant's medical conditions and their impact on her daily life. To summarize:  The appellant is a single mother with two children.  She suffers from fibromyalgia, which results in constant pain throughout her body, with certain areas acutely affected – starting with her neck and continuing throughout her entire back and radiating down her right arm, while from her lower back the pain radiates through her right hip and down the full-length of her right leg.  The pain felt throughout the appellant's body disrupts her nightly sleep, resulting in no quality or restorative sleep, and in the morning her mind is not sharp, she is irritable, frustrated, sometimes confused and constantly fatigued, while the pain has not subsided.  In the mornings it will take her 3 to 4 times longer than typical to get out of bed because of pain and cramping in her right hip. Her morning routine takes five times longer to accomplish, as dressing grooming her painful.  Some days she cannot get up because the pain is so bad; because she must use stairs to get to the family room and kitchen it is easier to stay on the bedroom level.  Going up and down stairs requires planning and she must always use either the wall or the handrail.  If it is a day she can get up, she keeps breakfast as simple as possible. When her son goes to school she is at home with her toddler daughter; she must conserve strength to supervise her daughter through the day. Sometimes a friend provides childcare.  Laundry and housekeeping take 5 to 10 times longer because of constant back pain. Often these duties are left until her son or friend can assist. If she must leave her home for shopping or errands, the excursion must be carefully planned. She cannot drive more than 20 minutes, after which her back, shoulders and hip cause difficulty from being in one position for too long. At the grocery store she always uses a shopping cart. She will usually have the children assist with shopping or ask friends if available. She may go several days without medications or some food items because she is unable to leave the home. She relies on her brother to remind her when utility payments must be made, as her fatigue, pain and lack of sleep make her prone to forgetfulness.  As to the appellant's emotional state, constant pain and fatigue lead to feelings of depression and anxiety. She is frustrated with her condition and this can make her irritable and quick to anger. She avoids all social situations, except for a couple of friends who come to help her, and she has no meaningful contacts outside of her home. She cannot go for walks or participate in sports and she cannot maintain a relationship because her physical difficulties and limitations dictate the limits of liberty. The appellant's Notice of Appeal is dated 26 August 2015. She gave as reasons: “I believe my disability is of a severe physical nature with associated mental impact, that my daily activities are significantly restricted, and, I do require significant help/supervision of another person to perform my daily living activities.” Information submitted on appeal

Before the hearing, the appellant submitted the following:  A “To whom it may concern” letter of support dated 09 September 2015 from a friend of the appellant. The friend describes how she, on more than a few accounts, has assisted the appellant with many things in and out of her home simply because the pain that she experiences does not allow her to accomplish them herself efficiently, or in a physically healthy manner. Although the appellant is able to properly care for her children, on her worst days things such as laundry, running errands or walking down the stairs can be difficult or scary. The appellant experiences frequent falls down sets of stairs due to her back and hip issues. When this happens she is unable to do things around the house due to the resulting physical pain, as well as the fear that she may fall again. The friend goes on to describe the appellant’s struggles this anxiety and depression. In the appellant's anxiety is at its worst, the friend visits to give her the support she needs.  A “To whom it may concern" letter from the appellant’s GP, dated 09 September 2015, who writes: “This is to state that [the appellant] is well known to me. She has a chronic pain syndrome on the basis of fibromyalgia and this has been affecting her for the better part of 20 years. I recently asked her to do a brief pain inventory and pain disability Index and after reviewing this I find that she is always in pain and that she is only getting about 30% relief of this pain using opiate analgesics. Pain is significantly interfering with most aspects of her life – ADLs, mood, walking, going up and down stairs, work, housework, relations with other people, sleep and enjoyment of life. “I was also asked to elaborate on the frequency and severity of this pain. As noted in the preceding paragraph she is always suffering from pain. About once a week this pain is so severe she hardly gets out of bed or off the couch and this pain can linger for a day or more. During these episodes she needs assistance and she usually gets this from some friends or her mother.” The hearing At the hearing, the appellant's advocate referred to the reconsideration submission. He stated that had prepared this on the basis of an extensive interview with the appellant, with the aim of describing as best he could how the appellant's impairments affect her daily functioning. The appellant explained the 9-month time difference between the GP completing the PR and the AR. When she first went to see her GP about the application form, she was under the impression that he would complete the PR and that it would be up to her to find somebody else to complete the AR. She was unable to find someone to do that, and was advised by the ministry that she could have the GP complete the AR. When she took it into him, he was in a rush and did not spend much time questioning her about the assessments to be made on the form. The appellant described how the past weekend was typical. Because of her pain she was barely able to walk and a friend came over to look after the children and do some housekeeping. She explained that when she wakes up in the morning she never knows how bad the pain will be. Her medications are not much help, but when the pain is really bad she does not go to the hospital because she feels

that there is not much they could do for her. She said that her right hip will frequently give out and this has caused numerous falls down the stairs. She does her best in feeding her children; while they never go hungry, their meals may not be the most nutritious – sometimes just waffles that can easily be warmed in the toaster. She stated that on some days the pain in her right leg is so bad that she cannot drive, as it is that leg that must function properly to drive safely. She explained that the friend who wrote the letter of support lives a few doors away; they are in regular contact by texting and the friend will come over and help out when needed, subject to work and other commitments. The appellant explained while she has been diagnosed with both depression and anxiety, her GP has prescribed medication only for her depression, out of concern that any anti-anxiety medications would not work well with her pain medications. In answer to a question, the appellant stated that severe bouts of pain sometimes occur more frequently than indicated by her GP, as a result of falling down the stairs, which may occur once or twice a week. Admissibility of new Information With the exception noted below, the panel finds that the new information provided in the GPs letter, the letter of support from her friend and the appellant's testimony at the hearing is in support of the information and records before the ministry at reconsideration. The information from the GP concerning the appellant's constant pain tends to corroborate the appellant's description in her self report. The information from the GP regarding the frequency of the appellant's severe bouts of pain about once a week tends to substantiate numerous references in the material before the ministry concerning this happening “some days” or “sometimes.” Therefore the panel admits this information as evidence pursuant to section 22(4) the Employment and Assistance Act. The panel does not admit as evidence the information by the appellant and her friend concerning her history of falling down stairs, as there was no reference to this in the records before the ministry at reconsideration.

PART F – Reasons for Panel Decision The issue in this appeal is whether the ministry decision that determined that the appellant did not meet two of the five statutory requirements of Section 2 of the EAPWDA for designation as a person with disabilities (PWD) is reasonably supported by the evidence or is a reasonable application of the legislation in the circumstances of the appellant. The ministry found that the appellant met the age requirement and that, in the opinion of a medical practitioner, her impairment is likely to continue for at least two years. However, the ministry was not satisfied that the evidence establishes that:  the appellant has a severe physical or mental impairment;  the appellant's DLA are, in the opinion of a prescribed professional, directly and significantly restricted either continuously or periodically for extended periods; and,  as a result of these restrictions, the appellant requires the significant help or supervision of another person, the use of an assistive device, or the services of an assistance animal to perform DLA. The following section of the EAPWDA applies to this appeal: 2 (1) In this section: "assistive device" means a device designed to enable a person to perform a daily living activity that, because of a severe mental or physical impairment, the person is unable to perform; "daily living activity" has the prescribed meaning; "prescribed professional" has the prescribed meaning. (2) The minister may designate a person who has reached 18 years of age as a person with disabilities for the purposes of this Act if the minister is satisfied that the person has a severe mental or physical impairment that (a) in the opinion of a medical practitioner is likely to continue for at least 2 years, and (b) in the opinion of a prescribed professional (i) directly and significantly restricts the person's ability to perform daily living activities either (A) continuously, or (B) periodically for extended periods, and (ii) as a result of those restrictions, the person requires help to perform those activities. (3) For the purposes of subsection (2), (a) a person who has a severe mental impairment includes a person with a mental disorder, and (b) a person requires help in relation to a daily living activity if, in order to perform it, the person requires (i) an assistive device, (ii) the significant help or supervision of another person, or (iii) the services of an assistance animal. The following section of the EAPWDR applies to this appeal: 2 (1)For the purposes of the Act and this regulation, "daily living activities", (a) in relation to a person who has a severe physical impairment or a severe mental impairment, means the following activities: (i) prepare own meals; (ii) manage personal finances; (iii) shop for personal needs; (iv) use public or personal transportation facilities;

(v) perform housework to maintain the person's place of residence in acceptable sanitary condition; (vi) move about indoors and outdoors; (vii) perform personal hygiene and self care; (viii) manage personal medication, and (b) in relation to a person who has a severe mental impairment, includes the following activities: (i) make decisions about personal activities, care or finances; (ii) relate to, communicate or interact with others effectively. (2) For the purposes of the Act, "prescribed professional" means a person who is (a) authorized under an enactment to practise the profession of (i) medical practitioner, (ii) registered psychologist, (iii) registered nurse or registered psychiatric nurse, (iv) occupational therapist, (v) physical therapist, (vi) social worker, (vii) chiropractor, or (viii) nurse practitioner, or (b) acting in the course of the person's employment as a school psychologist by (i) an authority, as that term is defined in section 1 (1) of the Independent School Act, or (ii) a board or a francophone education authority, as those terms are defined in section 1 (1) of the School Act, if qualifications in psychology are a condition of such employment. Severity of impairment Physical impairment In the reconsideration decision, the ministry reviewed the information provided by the GP in the PR and found that the appellant experiences limitations to her physical function due to pain in her neck, shoulders and hip. However, the ministry determined the assessments provided by the medical practitioner speak to a moderate rather than a severe physical impairment. The position of the appellant is that the evidence of significant limitations in her physical functioning due to the constant pain in her neck, shoulders and hip arising from her fibromyalgia clearly demonstrates that she has a severe physical impairment. Panel decision A diagnosis of a serious medical condition does not in itself determine PWD eligibility. Under the legislation, eligibility for PWD hinges on an “impairment” and its severity. An “impairment” is more than a diagnosed medical condition. An impairment is a medical condition that results in restrictions to a person’s ability to function independently, appropriately, effectively or for a reasonable duration. To assess the severity of an impairment one must consider the nature of the impairment and the extent of its impact on daily functioning, as evidenced by functional skill limitations and the degree to