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 17 July 2017 that denied the appellant’s request for a
wideback back support and furniture risers. While the ministry found that the appellant, as a
recipient of disability assistance, was eligible under section 62 of the Employment and Assistance
for Persons with Disabilities Regulation (EAPWDR) for general health supplements set out in
Schedule C of the Regulation, the ministry determined that the requested items are not eligible
health supplements as set out in Schedule C. The ministry also held that the appellant is not
eligible for the requested items under section 69 of the Regulation as she is otherwise eligible to
receive health supplements set out in sections 2(1)(a) and (f) and section 3 of Schedule C and the
requested items are not in one of those categories of eligible health supplements.
PART D – Relevant Legislation
Employment and Assistance for Persons with Disabilities Regulation (EAPWDR), section 62 and 69
and Schedule C.
PART E – Summary of Facts
The evidence before the ministry at reconsideration consisted of the following:
1.
From the ministry’s files: the appellant is a recipient of disability assistance. She was provided
a back brace on 26 February 2015 and became eligible for a replacement in March 2017.
2.
The request for a wideback back support and furniture risers is part of a request received by
the ministry on 18 May 2017 that also included a request for a commode chair and commode
pad. The ministry approved the latter two items on 06 June 2017.
3.
A Rehabilitation Assessment dated 18 May 2017, completed by an occupational therapist
(OT), who indicated that the appellant is diagnosed with polyarthritis, fibromyalgia, colitis,
asthma, migraines, and low back pain. For the requested equipment under appeal, the OT
provides the following rationale:
“Furniture risers x 4: seating surface height is one aspect of her home environment that
can be remedied by furniture (her couch) being raised to facilitate transfers: this would
incur less pain.
Back support: supportive, contoured back support to promote comfort in sitting given her
low back pain.”
4.
Quote from a medical equipment supplier dated 12 May 2017: 3-6” Furniture Riser x 4 –
$87.82; Wideback Back Support – $83.59.
5.
On 20 June 2017, the ministry received the following note from the appellant, written on the
ministry's decision letter:
“I am appealing your decision to deny my application for the back belt. I need this belt for
support to my back, due to the chronic pain of my back condition. I have osteoporosis and
other severe back pain conditions. Also arthritis, migraines, fibromyalgia; conditions related
to my back spine. The chronic pain keeps me awake all night long. I was immobilized in
bed for an entire week due to the pain, and I live alone, so it is extremely tough on my
body and capacity to care for self.
If you need further information you may contact my doctor specialist, [name].”
6.
On 23 June 2017, the ministry received a letter from the appellant's physician, a specialist in
pain management, who writes:
“I was asked to provide correspondence for support of the lower back brace for [the
appellant]. She suffers from a combination of degenerative lumbar disc disease and facet
spondyloarthropathy. She would greatly benefit from this device and hopefully funding can
be provided to her. At this time, it is the best solution for her lower back pain as she is not
a surgical candidate.”
7.
The appellant's Request for Reconsideration is dated the 30 June 2017. Under Reasons, she
writes that she is appealing the minister's decision to deny her application for the back belt,
which she needs for support for her back due to chronic pain in her back. The balance of her
submission covers the same points as set out in her 20 June 2017 notes (see 5 above).
Notice of Appeal
The appellant’s Notice of Appeal is dated 24 July 2017. Under Reasons, she writes:
“As my doctor [name] has stated in his letter that I need a device to support my back. I also
wrote a letter describing my pain and illness. It is really chronic pain consistently; I can’t sit
during the day and up all night. Sharp pain in my spine. Please reconsider, thanks.”
The hearing
Neither the appellant nor her advocate attended the hearing. After confirming that the appellant was
notified of the hearing, the hearing proceeded in accordance with section 86(b) of the Employment
and Assistance Regulation.
The ministry stood by its position at reconsideration. The ministry representative advised the panel
that the appellant had made regular application for a back brace outside the reconsideration/appeal
process and the ministry had recently approved funding for this item.
PART F – Reasons for Panel Decision
The issue on the appeal is whether the ministry's decision denying the appellant's request for
a wideback back support and furniture risers is reasonable. More specifically, the issue is whether the
following ministry determinations are reasonably supported by the evidence or a reasonable
application of the legislation in the circumstances of the appellant:
The items requested are not listed as eligible health supplements in Schedule C of the
EAPWDR and
The appellant is not eligible for these items as supplements pursuant to Section 69 of the
EAPWDR as she is otherwise eligible to receive health supplements set out in sections 2(1)(a)
and (f) and section 3 of Schedule C and the requested items are not in one of those categories
of eligible health supplements.
Relevant legislation
The relevant legislation is from the 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
Section 1 of Schedule C contains relevant definitions.
The remaining sections deal with specific categories of heath supplements, with category-specific
criteria relating to such matters as exclusions, limits, purpose and replacement. These sections and
the categories of supplement covered are listed below:
Section Category
2 (1) General health supplements
(a) Medical or surgical supplies that are disposable or reusable and 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;
(c) The following services: acupuncture, chiropractic, massage therapy, naturopathy, non-
surgical podiatry, physical therapy.
(f) Travel for the purposes of medical care.
2.1 Optical supplements
2.2 Eye examination supplements
3 Medical equipment and devices – general provisions
3.1 Canes, crutches and walkers
3.2 Wheelchairs
3.3 Wheelchair seating systems
3.4 Scooters
3.5 Toileting, transfers and positioning aids: (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;(j) a portable commode chair; (k) a standing frame; (l) a positioning frame; (m) a
transfer aid
3.6 Hospital beds: (a) a hospital bed; (b) an upgraded component of a hospital bed; (c) an
accessory attached to a hospital bed; (d) a positioning item on a hospital bed
3.7 Pressure relief mattresses
3.8 Floor or ceiling lift devices
3.9 Breathing devices
3.10 Orthoses: (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
3.11 Hearing instruments
3.12 Non-conventional glucose meters
4 Dental supplements
4.1 Crown and bridgework supplement
5 Emergency dental supplements
6 Diet supplements
7 Monthly nutritional supplement
8 Natal supplement
9 Infant formula
10 Repealed
11 Alternative hearing assistance supplement
Analysis
In the reconsideration decision, the ministry determined that a wideback back support and furniture
risers are not listed as eligible health supplements in Schedule C of the EAPWDR. In reaching this
conclusion, the ministry canvassed in detail the range of health supplements listed in Schedule C. In
summary, the ministry held that:
A wideback back support is not an orthosis as listed in section 3.10 of Schedule C as it is not a
brace or support worn on the body;
A wideback back support is not one of the transfer aids listed in section 3.5 of Schedule C;
The requested furniture risers for use on a couch are not a positioning item for a hospital bed
as set out in section 3.6 of Schedule C;
Neither item is an eligible health supplement as any other type of medical equipment under
sections 3.1 to 3.12 of Schedule C, nor as an eligible medical supply under section 2(1) of
Schedule C, nor do they meet the criteria of any of the remaining health supplements set out in
Schedule C.
The panel has reviewed the Employment and Assistance for Persons with Disabilities Act and the
EAPWDR, and finds that the legislation does not establish any discretionary authority for the minister
to make exceptions and provide any health care products or services as a supplement other than
those set out in Schedule C. On the basis of the ministry’s thorough review of the range of health
supplements set out in Schedule C, the panel finds the ministry was reasonable in determining that
the requested items are not eligible health supplements under the legislation.
In the reconsideration decision, the ministry also found that the appellant was not eligible for the
requested items under section 69 of the EAPWDR. This section provides that the minister may
provide health supplements set out in Schedule C sections 2(1)(a) [medical supplies] and (f) [medical
transportation] and 3 [medical equipment and devices] if the health supplement is provided to or for a
person who is not otherwise eligible for it under the Regulation and if the minister is satisfied that 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. The ministry found the appellant not eligible under
section 69 because, as she is a recipient of disability assistance, the appellant is “otherwise” eligible
for health supplements under Schedule C and requested items are not health supplements under
sections 2(1) or 3 of Schedule C
The panel notes that section 69 refers to certain health supplements set out in Schedule C and
applies only to the provision of those supplements if other criteria are met. As the panel has found
that the ministry reasonably determined that that the requested items are not an eligible supply,
equipment or treatment under all of Schedule C, and therefore not one of the Schedule C
supplements specified in section 69, the panel finds that the ministry reasonably determined that the
appellant was not eligible for the requested items under section 69.
Conclusion
Based on the foregoing, the panel finds that the ministry's decision to deny the appellant's request for
a wideback back support and furniture risers is a reasonable application of the legislation in the
circumstances of the appellant. The panel therefore confirms the ministry's decision. This appeal is
thus not successful.
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