PART C – Decision under Appeal
The decision under appeal is the Ministry of Social Development and Social Innovation (the “Ministry”) decision to deny
coverage for a wet environment partial left foot prosthetic (the “Wet Environment Prosthetic”) for the appellant on the
basis that the appellant did not establish that there were no other resources available to pay for the cost of the medical
equipment or device pursuant to subsection 3(1)(b)(ii) of Schedule C of the Employment and Assistance for Persons with
Disability Regulation (“EAPWDR”); the Wet Environment Prosthetic did not fall into the definition of an orthosis as defined
in subsection 3.10(1) of Schedule C of the EAPWDR and was an exempt health supplement as defined in subsection
3.10(11) of Schedule C of the EAPWDR; and the Wet Environment Prosthetic did not meet the definition of disposable or
reusable medical supply as defined in subsection 2(1)(a) of Schedule C of the EAPWDR. The Ministry also found that
although the Wet Environment Prosthetic may be required for the appellant due to a life threatening health need pursuant
to s.69 of the EAPWDR, the Wet Environment Prosthetic still could not be covered because it failed to meet the definitions
in subsections 2 and 3 of Schedule C of the EAPWDR.
PART D – Relevant Legislation
Sections 62 and 69 Employment and Assistance for Persons with Disabilities Regulation (“EAPWDR”)
Subsections 2(1)(a)(i) and 3(1)(b)(ii), 3.10(1), 3.10(11) of Schedule C of EAPWDR
Section 86(b) of Employment and Assistance Appeal Regulation (“EAAR”)
22(4)(b) of Employment and Assistance Act (“EAA”)
PART E – Summary of Facts
The evidence before the Ministry at reconsideration was:
A prescription for a Wet Environment Prosthetic dated March 7, 2017 provided by the appellant’s physician.
A letter from a Prosthetics & Orthopedics company dated May 30, 2017 to the Ministry of Human Resources at the Health
Assistance Branch stating that the Wet Environment Prosthetic for the appellant’s left partial foot amputation is required
for the appellant’s physical safety to prevent falls in the shower and that the total cost is $2,927.30.
A letter from the appellant dated May 31, 2017 where the appellant states that he requires the Wet Environment
Prosthetic for his physical safety. He is currently having showers in fear of falling and hurting himself. He only has one
half of his left foot. If he obtains the Wet Environment Prosthetic, he will be able to shower safely giving himself and his
family peace of mind and the ability to maintain his personal hygiene.
A Pharma Care Prosthetic and Orthotic Program General Statement of Program Policy (the “Pharma Policy”) that was
provided by the Ministry to the appellant on an unknown date.
Additional evidence was provided in the appeal record:
An application for financial assistance to Pharma Care (Health Insurance BC) from the appellant dated June 18, 2017 (the
“Application”).
A denial of the Application from Pharma Care (Health Insurance BC) on June 22, 2017 for the reason that the Wet
Environment Prosthetic was “not a Pharma Care benefit”.
Notice of appeal dated June 26, 2017 where the appellant states that his reasons for appeal are “physical safety not
covered by Pharma Care”.
At the hearing:
The Ministry representative did not attend the hearing. The tribunal proceeded pursuant to s.86(b) of the EAAR on the
basis that the Ministry was successfully faxed a Notice of Hearing on July 7, 2107.
The appellant provided oral argument and evidence at the hearing. He has been a diabetic for 20 years and currently has
no feeling in both feet. He has lost a good portion of his left foot so he stands on his ankle when he does not have his
prosthetic on. He is unsteady without his prosthetic. He uses a prosthetic to stand on his left foot. When he is in the
shower he is even more unsteady. He asked his doctor for a prescription for a Wet Environment Prosthetic to assist him
in the shower. The appellant was surprised that his application for a Wet Environment Prosthetic was denied. The
Ministry did not originally tell the appellant that he was required to look for other funding for the Wet Environment
Prosthetic prior to applying for coverage. When the reconsideration decision came back the appellant pursued an
application with Pharma Care and Pharma Care denied the appellant funding for the Wet Environment Prosthetic. The
appellant has to lean his forehead against the wall in the shower while he lathers because he feels like he is going to slip
and fall.
The panel determines that the additional documentary evidence of the appellant’s application to Pharma Care and
Pharma Care’s denial of the appellant’s application is in support of the Pharma Policy that was before the Ministry at the
time of reconsideration. The Notice of Appeal and the oral evidence provided by the appellant at the hearing is also
evidence that is in support of information and records before the Ministry at the time of reconsideration. Therefore, the
panel admits the additional evidence pursuant to s.22(4)(b) of the EAA.
PART F – Reasons for Panel Decision
The issue before the panel is whether the Ministry’s decision to deny the appellant coverage for his Wet Environment
Prosthetic on the basis that:
1)
the appellant did not establish that there were no other resources available to pay for the cost of the medical
equipment or device pursuant to subsection 3(1)(b)(ii) of Schedule C of the EAPWDR;
2)
the Wet Environment Prosthetic did not fall into the definition of an orthosis as defined in subsection 3.10(1) and
was an exempt health supplement as defined in subsection 3.10(11) of Schedule C of the EAPWDR;
3)
the Wet Environment Prosthetic did not meet the definition of disposable or reusable medical supply as set out in
subsection 2(1)(a) of Schedule C of the EAPWDR.; and
4)
that although the Wet Environment Prosthetic may be required for the appellant due to a life threatening health
need pursuant to s.69 of the EAPWDR, the Wet Environment Prosthetic still could not be covered because it
failed to meet the definitions set out in subsections 2 and 3 of Schedule C of the EAPWDR.
was reasonably supported by the evidence or is a reasonable application of the applicable legislation in the circumstances
of the appellant.
The legislation provides:
EAA
22 (4) In a hearing referred to in subsection (3), a panel may admit as evidence only
(a) the information and records that were before the minister when the decision being
appealed was made, and
(b) oral or written testimony in support of the information and records referred to in
paragraph (a).
EAAR
86 The practices and procedures of a panel include the following:
(a) a party to an appeal may be represented by an agent;
(b) the panel may hear an appeal in the absence of a party if the party was notified of the
hearing;
EAPWDR
General health supplements
62 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) a family unit in receipt of disability assistance,
(b) a family unit in receipt of hardship assistance, if the health supplement is provided to or
for a person in the family unit who is a dependent child, or
(c) a family unit, if the health supplement is provided to or for a person in the family unit who
is a continued person.
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) a person in the family unit is eligible to receive 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
"orthotist" means a person who is certified by and in good standing with the Canadian Board for
Certification of Prosthetists and Orthotists;
"pedorthist" means a person who is certified by and in good standing with the College of Pedorthics of
Canada;
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 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 — orthoses
3.10 (1) In this section:
"off-the-shelf", in relation to an orthosis, means a prefabricated, mass-produced orthosis that is not
unique to a particular person;
"orthosis" means
(a) a custom-made or off-the-shelf foot orthotic;
(b) custom-made footwear;
(c) a permanent modification to footwear;
(d) off-the-shelf footwear required for the purpose set out in subsection (4.1) (a);
(e) off-the-shelf orthopaedic footwear;
(f) an ankle brace;
(g) an ankle-foot orthosis;
(h) a knee-ankle-foot orthosis;
(i) a knee brace;
(j) a hip brace;
(k) an upper extremity brace;
(l) a cranial helmet used for the purposes set out in subsection (7);
(m) a torso or spine brace;
(n) a foot abduction orthosis;
(o) a toe orthosis.
(2) Subject to subsections (3) to (11) of this section, an orthosis is a health supplement for the purposes of
section 3 of this Schedule if
(a) the orthosis is prescribed by a medical practitioner or a nurse practitioner,
(b) the minister is satisfied that the orthosis is medically essential to achieve or maintain
basic functionality,
(c) the minister is satisfied that the orthosis is required for one or more of the following
purposes:
(i) to prevent surgery;
(ii) for post-surgical care;
(iii) to assist in physical healing from surgery, injury or disease;
(iv) to improve physical functioning that has been impaired by a neuro-musculo-
skeletal condition, and
(d) the orthosis is off-the-shelf unless
(i) a medical practitioner or nurse practitioner confirms that a custom-made orthosis
is medically required, and
(ii) the custom-made orthosis is fitted by an orthotist, pedorthist, occupational
therapist, physical therapist or podiatrist.
(3) For an orthosis that is a custom-made foot orthotic, in addition to the requirements in subsection (2) of this
section, all of the following requirements must be met:
(a) a medical practitioner or nurse practitioner confirms that a custom-made foot orthotic is
medically required;
(b) the custom-made foot orthotic is fitted by an orthotist, pedorthist, occupational therapist,
physical therapist or podiatrist;
(c) Repealed. [B.C. Reg. 144/2011, Sch. 2.]
(d) the custom-made foot orthotic must be made from a hand-cast mold;
(e) the cost of one pair of custom-made foot orthotics, including the assessment fee, must
not exceed $450.
(4) For an orthosis that is custom-made footwear, in addition to the requirements in subsection (2) of this
section, the cost of the custom-made footwear, including the assessment fee, must not exceed $1 650.
(4.1) For an orthosis that is off-the-shelf footwear, in addition to the requirements in subsection (2) of this
section,
(a) the footwear is required to accommodate a custom-made orthosis, and
(b) the cost of the footwear must not exceed $125.
(4.2) For an orthosis that is off-the-shelf orthopaedic footwear, in addition to the requirements in subsection (2)
of this section, the cost of the footwear must not exceed $250.
(5) For an orthosis that is a knee brace, in addition to the requirements in subsection (2) of this section, the
medical practitioner or nurse practitioner who prescribed the knee brace must have recommended that
the knee brace be worn at least 6 hours per day.
(6) For an orthosis that is an upper extremity brace, in addition to the requirements in subsection (2) of this
section, the upper extremity brace must be intended to provide hand, finger, wrist, elbow or shoulder
support.
(7) For an orthosis that is a cranial helmet, in addition to the requirements in subsection (2) of this section, the
cranial helmet must be a helmet prescribed by a medical practitioner or nurse practitioner and
recommended for daily use in cases of self abusive behaviour, seizure disorder, or to protect or facilitate
healing of chronic wounds or cranial defects.
(8) For an orthosis that is a torso or spine brace, in addition to the requirements in subsection (2) of this
section, the brace must be intended to provide pelvic, lumbar, lumbar-sacral, thoracic-lumbar-sacral,
cervical-thoracic-lumbar-sacral, or cervical spine support.
(9) Subject to section 3 of this Schedule, the limit on the number of orthoses that may be provided for the use
of a person as a health supplement for the purposes of section 3 of this Schedule is the number set out
in Column 2 of Table 1 opposite the description of the applicable orthosis in Column 1.
(11) The following items are not health supplements for the purposes of section 3 of this Schedule:
(a) a prosthetic and related supplies;
(b) a plaster or fiberglass cast;
(c) a hernia support;
(d) an abdominal support;
(e) a walking boot for a fracture.
(f) Repealed. [B.C. Reg. 144/2011, Sch. 2.]
(12) An accessory or supply that is medically essential to use an orthosis that is a health supplement under
subsection (2) is a health supplement for the purposes of section 3 of this Schedule.
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;
(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).]
Medical equipment and devices — toileting, transfers and positioning aids
3.5 (0.1) In this section:
"positioning chair" does not include a lift chair;
"transfer aid" means a transfer board, transfer belt or slider sheet.
(1) 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 facilitate toileting or transfers of a person or to achieve or
maintain a person's positioning:
(a) a grab bar in a bathroom;
(b) a bath or shower seat;
(c) a bath transfer bench with hand held shower;
(d) a tub slide;
(e) a bath lift;
(f) a bed pan or urinal;
(g) a raised toilet seat;
(h) a toilet safety frame;
(i) a floor-to-ceiling pole in a bathroom or bedroom;
(j) a portable commode chair;
(k) a standing frame for a person for whom a wheelchair is medically essential to achieve or
maintain basic mobility;
(l) a positioning chair for a person for whom a wheelchair is medically essential to achieve
or maintain basic mobility;
(m) a transfer aid for a person for whom the transfer aid is medically essential to transfer
from one position to another.
(2) The period of time referred to in section 3 (3) (b) of this Schedule with respect to replacement of an item
described in subsection (1) of this section is 5 years from the date on which the minister provided the
item being replaced.
Panel decision
The panel accepts the appellant’s that after receiving the Pharma Policy from the Ministry, he applied for coverage
through Pharma Care and was denied. The panel therefore finds that the appellant has provided evidence and
established that there were not other resources available to him to pay for the cost of the Wet Environment Prosthetic.
The panel finds, however, that the Ministry was reasonable in determining that the Wet Environment Prosthetic does not
meet the definition of orthosis in s.3.10(1) of the EAPWDR, particularly because it is specifically excluded in subsection
3.10(11) of schedule C of the EAPWDR which provides that a prosthetic and related supply is not a health supplement for
the purposes of subsection 3 of Schedule C.”
The panel finds that the Ministry was reasonable in determining that Wet Environment Prosthetic was not a general health
supplement medical supply provided for in subsection 2 of schedule C of the EAPWDR. There was not sufficient
evidence that the Wet Environment Prosthetic was disposable or reusable or that it carried out one of the listed purposes
in subsection 2(1)(a)(i).
Given that the Wet Environment Prosthetic does not meet the definitions of subsection 3 or subsection 2 of schedule C of
the EAPWDR, and this is a requirement for the appellant to meet the test for coverage pursuant to s.69 of the EAPWDR,
the panel finds it to be a reasonable interpretation of the legislation that the Ministry determined that coverage could not
be offered to the appellant pursuant to s.69 of the EAPWDR.
The panel finds the Ministry’s decision was reasonably supported by the evidence and reasonable application of the
applicable enactment in the circumstances of the appellant and confirms the Ministry’s decision.
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.