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 Poverty Reduction (the ministry) dated 17 October 2017 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 physical or mental 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) – sections 2 and 2.1

PART E – SUMMARY OF FACTS The evidence before the ministry at reconsideration consisted of the following: 1. The appellant’s PWD Designation Application dated 11 July 2017. The Application contained:  A Medical Report (MR) dated 10 July 2017 completed by a specialist in physical medicine and rehabilitation (“the specialist”) who has known the appellant since 15 December 2016 and seen her 2-10 times in the past 12 months.  An Assessor Report (AR) dated 04 July 2017, completed by a physiotherapist (PT) who has known the appellant for 6 months and seen her 2-10 times in the past 12 months.  The appellant chose not to complete a Self Report. 2. The appellant’s Request for Reconsideration dated 05 October 2017, attached to which is a submission by the appellant and several medical reports (see below). In the MR, the specialist diagnoses the medical conditions related to the appellant’s impairment as regional myofascial pain (left neck, shoulder, arm) with onset August 2016, and fibromyalgia with onset ~ 2000. He comments: “Pre-existing diagnosis of fibromyalgia, with aggravation of left neck/shoulder/arm August 2016.” The panel will first summarize the evidence from the MR and the AR as it relates to the PWD criteria at issue in this appeal. Severity of impairment General MR: Under Health History, the specialist writes: “Myofascial pain syndrome consists of diffuse pain, poor sleep, chronic fatigue, decreased exercise/activity/fitness levels, and low mood/high anxiety. This limits her ability to effectively work full hours and duties as an activity assistant at [place of work].” The specialist also refers to a summary note dated June 19, 2017. The panel could not find any such note in the Record. The specialist indicates that the appellant has not been prescribed any medication and/or treatments that interfere with her ability to perform DLA, and that she does not require any prostheses or aids for her impairment AR: The PT describes the appellant's impairment as: “Right wrist fracture 2003 that never healed fully, has pins & plate still in situ.” Under Comments, the PT gives as physical restrictions: “Right wrist post-fracture 2003, limited mobility & strength,” and “Fibromyalgia limits strength & endurance, aka myofascial pain syndrome.”

Physical impairment MR: The specialist indicates that the appellant can walk 4+blocks unaided on a flat surface, can climb 5+ steps unaided, is limited to lifting 5 to 15 lbs., and can remain seated for less than 1 hour. “She has no specific restrictions or contra indications, but - she needs to pace herself and work around her pain and fatigue. To limit exacerbating her condition, I recommend 1) Assisting as an extra worker with light tasks. 2) Limit lifting to occasional; no lifting more than 15 lbs.; no pushing/pulling more than 20 lbs.; limit bending/stooping to only occasionally 3) Avoid activities that cause aggravation. 4) No lifting heavy 4-wheeled walkers. 5) Limit low-level activities 6) Avoid prolonged static postures.” AR: As to mobility and physical ability, the PT assesses the appellant as independent for walking indoors, walking outdoors, climbing stairs, and standing; and requiring periodic assistance from another person for lifting and carrying and holding, commenting “Grocery shopping requires assistance to lift heavy bags.” Mental impairment MR: The specialist indicates that the appellant has no difficulties with communication. The specialist indicates that the appellant has no significant deficits with cognitive and emotional functioning, commenting, “Low mood is part of myofascial pain syndrome.” AR: Under Comments, the PT gives as mental impairment: “Depression affects activities of daily living,” and “Anxiety affects activities as well.” The PT indicates that the appellant’s ability to communicate is good for speaking, reading and hearing, and satisfactory for writing, commenting, “Right wrist injury 2003”. The PT assesses the degree to which the appellant’s mental impairment restricts or impacts her functioning in the following areas as:  Major impact: emotion (depression).  Moderate impact: bodily functions (sleep disturbance), motivation and other emotional or mental problems (anxiety).  Minimal impact: attention/concentration (unable to maintain concentration) and motor activity.  No impact: consciousness, impulse control, insight and judgment, executive, memory, language, psychotic symptoms, and other neuropsychological problems.

Ability to perform DLA MR: The specialist indicates that the appellant's impairment directly restricts her ability to perform DLA. The specialist indicates that the appellant's ability to perform housework is restricted on a continuous basis. He indicates that she is not restricted for all other activities: personal self care, meal preparation, management of medications, daily shopping, mobility inside the home, mobility outside the home, use of transportation, management of finances, and social functioning. AR: The PT provides the following assessments of the assistance the appellant requires in performing DLA (the PT’s comments in parenthesis):  Personal care – independent for toileting, feeding self, regulating diet, transfers in/out of bed, and transfers on/off chair; takes significantly longer than typical for dressing, grooming, and bathing (due to loss of right wrist function, dexterity/strength).  Basic housekeeping – periodic assistance from another person for laundry and basic housekeeping.  Shopping – independent for going to and from stores, reading prices and labels, making appropriate choices, and paying for purchases; periodic assistance from another person for carrying purchases home (to help with heavier bags to vehicle).  Meals – independent for meal planning, cooking, safe storage of food; periodic assistance from another person for food preparation (help cutting, peeling).  Pay rent and bills – independent for all tasks: banking, budgeting, and paying rent and bills.  Medications – independent for all tasks: filling/refilling prescriptions, taking as directed, and safe handling and storage.  Transportation – independent for all tasks: getting in and out of the vehicle, using public transit, and using transit schedules and arranging transportation. The PT comments: “Uses assistance to carry grocery bags to car, often divides heavier bags into lighter ones and makes extra trips to keep load light in order to manage wrist condition. Has help for laundry/housekeeping. Personal care takes longer due to loss of right (dominant) hand dexterity.” As to the support/supervision required for social functioning, the PT assesses the appellant as independent for all aspects: making appropriate social decisions, developing and maintaining relationships, interacting appropriately with others, dealing appropriately with unexpected demands and securing assistance from others. The PT assesses the appellant's relationship with her immediate and extended social networks as good functioning. MR: The specialist indicates that the appellant does not require any prostheses or aids to compensate for her impairment.

AR: The PT indicates that family and friends provide the help required for the appellant’s DLA. The PT does not indicate that the appellant requires any of the listed equipment or devices to compensate for her impairment, but adds that she uses a chair backrest at work and would benefit from a chair backrest at home and a higher quality mattress to improve sleep. The PT indicates that the appellant does not have an assistance animal. Request for Reconsideration In her Request for Reconsideration, the appellant writes that she is attaching supporting medical evidence that she meets the criteria for multiple barriers disability. These are summarized below: 1. Appellant submission dated 25 September 2017. She writes that she is been diagnosed with fibromyalgia and myofascial pain syndrome and these affect her continuously and periodically for extended times and as a result she requires home support for assistance with housework, shopping and meals for approximately 15 hours per week and that friends assist in this regard. She also writes that she takes medication daily to offset mood disorder and anxiety. She argues that these conditions give rise to persistent multiple barriers to employment. She notes that she has been on assistance on and off due to her inability to function at 37.5 hours per week since July 2016, that she has exhausted other benefits, including EI, that she broke her right dominant wrist in 2003 and struggled to return to easier work and that she has been struggling for 14 years to maintain some sort of employment at full time or part-time and has not been successful since going on leave from her current employer since July 2017. She tried to gradually return to work for an excessive amount of time but was not able to maintain this. 2. Medical imaging report dated 03 March 2004. Regarding the right wrist, and on undisplaced buckle fracture of the full volar aspect of the distal radial metathysis is in an advanced stage of bone union; an ulnar styloid fracture is ununited, and likely will remain so; and slight widening of the scapholunate joint is noted, suggesting there is some laxity or disruption of the ligament. The appellant adds handwritten comments that her right hand is dominant, she has been denied CPP disability twice, and that she has received the disability tax credit since 2003. 3. Questionnaire from an insurance company with reference to the appellant’s long- term disability plan, completed by another physician on 20 June 2008. The questionnaire and the physician’s answers relate to the appellant’s right wrist injury that precludes her from working 8 hours/day at her previous employment. 4. Physician’s assessment note dated 13 June 2013. The physician (the same one completed the above questionnaire) assesses the appellant with myofascial pain syndrome on the right side with significant myoformal distribution radiation. Trigger points in shoulder girdle and upper back, lower neck. Treatment plan is to continue with the physio/chiropractic that she is receiving. 5. Referral letter from the same physician dated 05 June 2013 (addressee unknown) conveying much the same information regarding the appellant’s condition as in 4. above.

6. Disability Tax Credit Certificate dated 19 April 2016 with the medical practitioner’s sections completed by another physician. The physician indicates that the appellant is markedly restricted in feeding and dressing. In describing the effects of the appellant's impairment, the physician notes:  “Chronic right wrist pain. She suffered comminuted distal radial fracture.  “Due to pain, stiffness, and decreased dexterity, [the appellant] requires an inordinate amount of time to dress on a daily basis.  “[The appellant] requires an inordinate amount of time to prepare meals and to feed herself, on a daily basis, due to significant pain and decreased strength and dexterity in wrist.” The physician certifies that the appellant's impairment is expected to last for a continuous period of at least 12 months. 7. Letter from the appellant’s specialist to the first physician dated 20 July 2017. The specialist describes how the appellant had a back-to-work plan involving working three full days per week, with one day off in between each day of work. He reports that she is not able to continue with this plan and has not worked since 19 July 2017. He writes that, on examination, the primary limiting factor continues to be diffuse myofascial pain syndrome. His impression is: “Chronic myofascial pain syndrome, with chronic widespread muscular pain, significant sleep disturbance, significantly reduced capacity to stay active and exercise, as well as significant mood lability, with low mood, high anxiety states, and difficulty coping with stressful events.” The specialist continues to recommend activity “restrictions,” as per his advice of as set out in the MR under (see above). Notice of Appeal The appellant’s Notice of Appeal is dated 24 October 2017. Under Reasons for Appeal, she writes that she does have a physical and mental impairment; this impairment restricts her abilities of daily living; and she does receive help for various activities of daily living. The hearing At the hearing, the appellant described how her impairment met the legislative criteria for PWD designation:  She uses an assistive device, namely a cane, for walking any distance when her condition flares up.  For about a week per month, she is unable to climb the stairs up to her bedroom as pain in her knees makes this difficult; as a result she sleeps on her couch in the living room.  When she was living in another city, she was provided 15 hours of home support per week. She estimates that, now that she has moved back to her hometown, she receives 15 – 20 hours of assistance from family and friends. This sometimes includes being driven about town, as neck pain makes shoulder checking difficult. She is also accompanied while shopping, given help taking purchases to the car, from the car into the home, and putting them away once home. Because of her lack of dexterity, she will also get help in folding laundry and putting it away and with washing her hair. Due to lack of strength, she will ask visitors to do any necessary vacuuming or other household cleaning chores. Friends also assist by cooking at their own homes, on a shared-cost basis, casseroles for her to warm up.

 She has a therapy dog that was given to her by a charitable organization to help her cope with her anxiety. She trained the dog for this purpose under the guidance of the charitable organization and the dog is so certified.  Her fibromyalgia flares up for about one week per month, resulting in sleep disturbance because of anxiety and stress. The dog is most helpful during these episodes. The ministry stood by its position at reconsideration. Admissibility of additional information Section 22(4) of the Employment and Assistance Act (EAA) provides that panels may admit as evidence the information and records that were before the minister when the decision being appealed was made and “oral or written testimony in support of the information and records” before the minister when the decision being appealed was made. These limitations reflect the jurisdiction of the panel established under section 24 of the EAA – that is, panels are limited to determining if the ministry’s decision is reasonably supported by the evidence or a reasonable application of the legislation in the circumstances of the appellant. Thus, panels are not to assume the role of decision-makers of the first instance by considering information that presents a new or different picture of the impairment or restrictions than that which was before the ministry when it made its reconsideration decision. The ministry objected to the admissibility of that part of the appellant's testimony relating to the appellant’s use of a cane and her reliance on the therapy dog, as this information was not before the ministry reconsideration. The panel finds that the information provided by the appellant regarding the use of a cane, her therapy dog, her periodic restrictions climbing stairs, and the episodic nature of her condition, is not in support of the information before the ministry at reconsideration as this information cannot be said to corroborate or substantiate anything before the ministry when it made its decision. Accordingly, pursuant to section 22(4) of the Employment and Assistance Act, the panel does not admit this information as evidence. The panel admits as evidence that part of the appellant's testimony regarding the help provided by family and friends, as this information tends to corroborate the information provided by the appellant in her Request for Reconsideration that she requires 15 hours/week of home support. The panel notes however that the type and extent of help provided has not been confirmed by either the specialist or the PT, the appellant’s prescribed professionals.

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. Specifically, the ministry determined that the information provided did not establish that the appellant has a severe physical or mental 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. 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 is in a prescribed class of persons or that the person has a severe mental or physical impairment that (a) in the opinion of a medical practitioner or nurse 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. Severity of impairment Physical impairment The position of the appellant is that her several medical professionals have provided sufficient documentation that demonstrate that her fibromyalgia and myofascial pain, together with her right wrist/hand weakness and lack of dexterity, constitute a severe physical impairment. These conditions significantly restrict her ability to function independently, to the point where she requires significant help to perform her daily living activities. In the reconsideration decision, the ministry found that due to the inconsistencies between the information provided by the specialist and the PT, it is difficult to develop a clear and coherent picture of the degree of the appellant's impairment, the impacts on her ability to perform DLA, and the assistance she requires as a result. In reaching this determination, the ministry noted that the diagnosis of a serious medical condition does not in itself determine PWD eligibility or establish a severe impairment. To assess the severity of impairment, the ministry must consider the nature of the impairment and the extent of its impact on daily functioning as evidenced by limitations/restrictions of physical functioning, mental functioning, ability to perform DLA, and help required with DLA. Given the emphasis in the legislation on restrictions and help required, the panel finds reasonable this approach to the analysis of the information provided in determining severity of impairment. In its decision, the ministry noted the comment by the specialist under Health History that her myofascial pain syndrome “limits her ability to effectively work full hours...” The ministry noted that for the purposes of determining eligibility for PWD designation, an applicant's employability or ability to work is not taken into consideration. As the focus of the legislation in section 2(b) of the EAPWDA is on whether an impairment “directly and significantly restricts the person's ability to perform daily living activities …”, and as employability or ability to work is not listed in section 2(1) of the EAPWDR as a DLA, the panel finds that ministry was reasonable in not taking into account any reported employability restrictions.