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 24 March 2016 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 18 September 2015. The Application contained:  A Self Report (SR) completed by the appellant.  A Physician Report (PR) dated 18 September 2015, completed by the appellant’s general practitioner (GP) specializing in chronic pain, who has seen her 2-10 times over the past year  An Assessor Report (AR) dated 20 August 2015, completed by a social worker (SW) at a chronic pain clinic, who has known the appellant for 4 months and seen her 2-10 times in that period. 2. The appellant’s signed Request for Reconsideration dated 25 February 2016. 3. A submission in support of the Request for Reconsideration, prepared by an advocate on behalf of the appellant dated March 24, 2016. In the PR, the GP lists the following diagnoses related to the appellant’s impairment (onset unspecified): fibromyalgia, neuropathic pain in finger from fracture, major depressive disorder. The panel will first summarize the evidence from the PR and the AR relating to the appellant’s impairments as it relates to the PWD criteria at issue in this appeal. Severity/health history Physical impairment PR: Under Health History, the GP writes: ”Chronic myofascial pain. Several surgeries to help relieve pain have been unsuccessful. Previously taking opioids for pain however has been able to stop using.” Under Degree and Course of Impairment the GP indicates that the impairment is likely to continue for two or more years, commenting “Fibromyalgia tends to be chronic.” As to functional skills, the GP reports that the appellant can walk 1 to 2 blocks unaided, can climb 5+ steps unaided, can lift 5 to 15 lbs., and can remain seated for less than 1 hour (“pain and numbing hip from prolonged sitting”). The GP indicates that the appellant has not been prescribed any medication that interferes with her ability to perform DLA. The GP also indicates that the appellant does not require any prosthesis or device to compensate for her impairment. AR: The SW describes the appellant’s impairment as follows: “Hip pain & finger chronic pain that has become worse since a fall of couple years ago.”

Mental impairment PR: Under Health History, the GP writes: ”Seems to have dependent personality [and] relies on others to help her cope when pain severe. Was working until finger injury 2 yrs. ago.” The GP assesses the appellant as having no difficulties with communications. The GP indicates that the appellant has significant deficits with cognitive and emotional function in the area emotional disturbance, commenting: “No anti-depressants due to side effects. Sees counselor.” AR: The SW describes the appellant’s mental impairment as follows: “[The appellant] states that she has struggled [with] anxiety and depression.” The SW assesses the appellant's ability to communicate as good for speaking, reading and writing and poor for hearing (commenting: “40% loss in left ear”). Regarding cognitive and emotional functioning, the SW indicates that the appellant's mental impairment restricts or impacts her functioning as follows:  Major impact – none.  Moderate impact – bodily functions, consciousness and attention/concentration.  Minimal impact – emotion, impulse control, executive, memory, and motivation.  No impact – insight and judgment, motor activity, language, psychotic symptoms, other neuropsychological problems, and other emotional or mental problems. The SW comments: “Forgetful, ‘foggy brain’ believes fibro fog. Trouble [with] sleep and motivation getting out of bed. Difficulty managing emotions, difficulty coping [with] stress. Ability to perform DLA PR: The GP indicates that the appellant's impairment directly restricts her ability to perform DLA. The GP indicates that the appellant’s activity is restricted on a continuous basis for the following DLA: basic housework, daily shopping, and use of transportation. The GP indicates that the appellant is not restricted for the following DLA: personal self care, meal preparation, management of medications, mobility inside the home, mobility outside the home, management of finances and social functioning. In commenting on how social functioning is impacted, the GP states: Sometimes cancels social events due to pain.” The GP provides additional comments regarding the degree of restriction: “Stops activities often due to pain.” AR:

The SW reports that the appellant lives with family or friends. Regarding mobility and physical ability, the SW assesses the appellant as independent for walking indoors, requiring periodic assistance from another person for walking outdoors (“help from another person”) and climbing stairs (“ another person, railings”), and taking significantly longer than typical for standing, lifting (“10 lb. limit”) and carrying and holding. The SW assesses the assistance required for managing DLA as follows (the SW’s comments in parentheses): Personal care – independent for toileting, feeding self, regulating diet, and transfers on/of of chair (stiff & and painful); taking significantly longer than typical for dressing (5x as long as previously), grooming and bathing and transfers in/out of bed. Basic housekeeping – continuous assistance from another person or unable for laundry (help from daughter or support) and for basic housekeeping (help from roommate). Shopping – independent for reading prices and labels, making appropriate choices and paying for purchases; continuous assistance from another person or unable for going to and from stores (go with support person) and carrying purchases home (help from support). Meals – independent for meal planning and safe storage of food; continuous assistance from another person or unable for cooking (support from another); takes significantly longer than typical for food preparation (breaks). Pay rent and bills – independent for budgeting and paying rent and bills; take significantly longer than typical for banking (some support from daughter). Medications – independent in all aspects. Transportation – independent for using public transit (don’t use) and using transit schedules and arranging transportation; takes significantly longer than typical for getting in and out of a vehicle (painful, moves slowly). The SW provides additional comments: “Driving can be very difficult & and painful. This has impacted how far she can drive, travelling 15 min. a time. Only able to sit for 20 min. Moving slowly, gets a lot of support from family & friends.” With respect to social functioning, the SW assesses the appellant as independent for making appropriate social decisions, interacting appropriately with others, and securing assistance from others. The SW assesses the appellant as requiring periodic support/supervision for ability to develop and maintain relationships (chronic pain, has limited connections) dealing appropriately with unexpected demands (difficult, will miss events due to being overwhelmed) and other (isolated often due to pain). The SW assesses the impact of the appellant's impairment on her immediate social networks as good functioning (“Not as social,” impacts relationship [with] family, but has + relationships) and on her extended social network as marginal functioning. In providing additional comments, the SW writes: “[The appellant] has described suffering from anxiety, in particular social anxiety. She feels uncomfortable in public places. She struggles [with] sleep due to pain. Since meeting [with the appellant] I would say she struggles to manage stressful situations. Her

coping ability is low.” Help provided/required PR: The GP states that the appellant needs assistance with DLA from her mother and daughter for cleaning and shopping. AR: The SW indicates that the appellant requires help for DLA from her family, commenting: “daughter and mother provide help in DLA – shopping, laundry, cooking and cleaning. Self report In her SR, the appellant writes that after having surgery on her hip five years ago she took a bad fall two years ago. Her pain prevents her from doing day-to-day activities. It takes her twice as long to complete normal household tasks and then she needs a rest. Her daughter comes to help her with household tasks. She can only carry 10 lbs. at a time and it takes her longer. She writes that she also suffers from anxiety due to constant pain and has a hard time going out or being social. Most of the time she just stays home. Driving for more than 15 min. can be very painful so she only drives short distances. She can only stand or sit for short periods of time before her hips start to hurt. It is difficult to sit longer than 20 min. Due to chronic pain, sleep is very difficult and she only gets 4 hours at a time, making it hard to function. This causes a foggy feeling the next day. It is really hard to plan things with family and friends as 80% of the time she has to cancel due to pain Request for Reconsideration In the submission at reconsideration, the appellant, through her advocate, states that:  Her whole body feels like pressure is being applied to a bruise all the time. She does not want anyone to touch her. Rougher fabrics on her skin make it worse. It feels like she has knives in her shoulders all the time.  Walking is bad for her hips. Even walking the length of the mall results in significant pain that can last for days, making her want to curl up and go to sleep. She is basically housebound when this happens and this can last three days or more. Because of her significant reaction to walking, she tries to be careful so that she does not get this way. She agrees with the GP that she can only walk one to two blocks  She can move around inside the home, but she commonly uses walls and furniture to steady herself.  Her ability to carry things is affected by the type of ground she is dealing with. With uneven ground, her hips are unstable. Her daughter has two steps up to her home and they are brutal for her.  She could not get along without help from her daughter and mother, who assist all the time

with grocery shopping, vacuuming and generally keeping up the house, and preparing food. She cannot lift anything heavier than a pot of water. When she is able to help, she is slow, taking up to 50% longer than typical to prepare meals.  As with many activities, her hips slow her down and she has to sit down periodically. If she does assist with making a meal, that's her last activity of the day because she is completely drained by the pain.  When she stands her muscles tense up and this affects her ability to walk and do activities such as washing dishes, etc.  She is much slower than typical getting out of bed. Her best estimate is that it takes her half an hour between waking up and being able to actually get in the bed and move around. Approximately three times a week, she has to take pain medication before she even puts her feet on the ground.  Difficulties with sleeping at night make everything worse. It is difficult to get up in the morning when she can't sleep at night and the pain makes it difficult to sleep.  Fibromyalgia tires her out as well. Her best estimate is that it takes her five times longer than typical to get dressed in the morning and just getting dressed tires her out. If she can make it through her shower, she is doing well.  Getting in and out of the car is slow because she has to take precautions and if she has been in the car for 20 minutes or longer the process is even slower and more painful. If her hips won’t bear her weight she has to sit in the car and wait till she is able to stand.  In conclusion, she finds it difficult to explain how her pain limits everything she does. The pain and limitations she experiences because of her hips colours her whole life. Notice of Appeal The appellant's Notice of Appeal is dated 09 April 2016. Under Reasons, she writes: “There was more information needed from [the GP] and [the SW] but since they were on spring break, we could not get the information needed.” The hearing At the hearing, the appellant stated that her physician had recently told her that in addition to her fibromyalgia she was also diagnosed with myofascial pain syndrome. In addition, she had recently begun trigger-point injection therapy and some yoga in the hope that this would improve her mobility; however she has not yet experienced any improvement, while the trigger-point therapy itself is very painful. In answer to questions, the appellant explained that she is able to walk about a block before experiencing pain and that she can climb stairs, but she can do neither while carrying anything. With regard to the episodic nature of her condition, the appellant stated that she is in pain about 75% of the time. The appellant's daughter testified that she helps her mother by doing her laundry and housework for her. Her daughter also does most preparation and cooking and drives her to the store and grocery shopping, as well as to the bank and to medical appointments. Her daughter explained

that she provides this kind of assistance 4-5 days per week. The appellant explained that the doctor who completed the form was not in a position to see this level of assistance provided and therefore did not document it well in her PWD application. She wished she had had her family doctor, whom she has known for years, fill out the form instead. The ministry stood by its position at reconsideration. The ministry noted that the recent diagnosis of myofascial pain syndrome was not before the ministry at reconsideration. Admissibility of additional information While the GP reported in the PR that the appellant suffers from chronic myofascial pain, the panel finds that the information provided by the appellant in her testimony that she had also recently been diagnosed with myofascial pain syndrome is different from the diagnoses before the ministry at reconsideration. This additional information, and that relating to her trigger-point injection therapy, is not in support of the information and records before the ministry at reconsideration, as it cannot be said to substantiate or corroborate anything in the Record of the Ministry Decision. Accordingly, the panel does not admit this information as evidence. The panel finds the balance of the appellant's testimony and that of her daughter is in support of the information before the ministry of reconsideration and therefore admits this information as evidence pursuant to section 22(4)(b) of the Employment and Assistance Act.

PART F – Reasons for Panel Decision The issue in this appeal is whether the ministry decision that determined that the appellant did not meet three 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 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. The positions of the parties The appellant’s position With regard to the severity of the physical impairment, the position of the appellant, as summarized in her reconsideration submission, is that she finds it difficult to explain how her pain limits everything she does. The pain and limitations she experiences because of her hips colours her whole life. As the GP reported in the PR, she suffers from chronic myofascial pain. Several surgeries to help relieve pain have been unsuccessful. She relies on others to help her cope with severe pain. As she testified at the hearing, she is in pain 75% of the time and, as her daughter testified, her daughter provides significant help (by doing the appellant’s laundry, housekeeping, and meal preparation and by driving her to stores and the bank) an average of 4-5 days per week. Given the impact of her fibromyalgia and resulting pain on her daily functioning, the appellant submits that it is unreasonable that the ministry determined that a severe physical impairment had not been established. Regarding mental impairment, the appellant’s GP has diagnosed her with major depressive disorder, but she is unable to take antidepressants because of the side effects. In the AR, the appellant’s SW indicated how her fibromyalgia has impacted her mental functioning, such as difficulty sleeping, forgetfulness due to “fibro fog”, lack of motivation getting out of bed and difficulty managing emotions and coping with stress. Taking all this into account, the appellant submits that it was unreasonable for the ministry to find that she does not have severe mental impairment. As to her ability to perform DLA, her mobility is limited to being able to walk only one block, and that