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 December 21, 2017, which held that the appellant did not meet 4 of the 5 statutory requirements of section 2 of the Employment and Assistance for Persons with Disabilities Act for designation as a person with disabilities (PWD). The ministry found that the appellant met the age requirements, but was not satisfied that:  the evidence establishes that the appellant’s impairment is likely to continue for at least 2 years;  the evidence establishes that the appellant has a severe physical or mental impairment;  the appellant’s daily living activities (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 those restrictions, the appellant requires an assistive device, the significant help or supervision of another person, or the services of an assistance animal to perform DLA. 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 information before the ministry at the time of reconsideration included the appellant’s PWD application comprised of a Medical Report (MR) and an Assessor Report (AR), both completed by the appellant’s general practitioner (the “Physician”) dated August 24, 2017, and the appellant’s Self-Report (SR) dated August 6, 2017. The appellant’s request for PWD designation was denied on October 25, 2017. On December 8, 2017 the ministry received the appellant’s Request for Reconsideration (the “RFR”) dated December 7, 2017. The information at the time of reconsideration also included the following: - Referral letter from a pain specialist (the “Specialist”) dated October 24, 2017 (the “Referral Letter”) - Letter from the Physician dated November 3, 2017 (the “Letter”) On January 11, 2018 the tribunal received the appellant’s Notice of Appeal dated January 10, 2018. Summary of relevant evidence Diagnoses In the MR, the Physician indicates that the appellant has degenerative disc disease, date of onset not known, and chronic pain, date of onset December 2015. The Physician indicates that the appellant has been his patient since May 2017 and he has seen him 2-10 times since then. In the AR, the Physician indicates that the appellant’s physical impairments that impact his ability to manage DLA are chronic pain in neck and shoulder. In the Referral Letter, the Specialist indicates that the appellant was first seen on July 19, 2017 for chronic left sided neck and shoulder pain originating from a workplace injury in December 2015. The Specialist states that the appellant has a diagnosis of left cervical and shoulder girdle myofascial pain with central sensitization. The Specialist indicates that the appellant has had a left shoulder ultrasound, MRI arthrogram, and cervical spine MRI but the results of those examinations are non-contributory to the current diagnosis. In the Letter, the Physician indicates that the appellant is unable to work doing physical tasks without aggravation of the pain in his left shoulder girdle and cervical region. In the SR, the appellant states that he had an ultrasound on March 17, 2016 that did not show any significant findings. He states that he had an MRI cervical spine on May 4, 2017 that showed “evidence of mild multilevel degenerative disc disease and facet arthrosis” but “no cord compression or myelopathic change”. The appellant states that he had a left shoulder arthrogram that identified rotator cuff tendinosis but no tears. Duration In the MR, the Physician indicates that estimated duration of the appellant’s impairment is unknown and ongoing treatment options are being pursued. In the Letter, the Physician states that he cannot comment on the appellant’s prognosis but would consider it variable from patient to patient with this sort of presentation. Physical Impairment In the MR for Functional Skills, the Physician indicates that the appellant is able to walk 4+ blocks unaided on a flat surface, can climb 5+ steps unaided, is limited to lifting under 5 pounds, and can remain seated less than 1 hour. In the Health History portion of the MR, the Physician indicates that the appellant is unable to physically exert himself or do any heavy lifting without exacerbation of his pain and neurological symptoms. The Physician indicates that this is present at all times, to varying degrees, and that the appellant can have episodes for days at a time in which he is bed-ridden, unable to help around the house, prepare meals, or take care of children. Under

Part F – Additional Comments, the Physician indicates that the appellant has not found any successful treatment even though he has seen orthopedic specialists, pain specialist, and has attended physiotherapy, massage, and acupuncture. In the AR, the Physician indicates that the appellant is independent with walking indoors, walking outdoors, climbing stairs, standing and carrying and holding but requires periodic assistance from another person with lifting, explaining that the appellant cannot lift heavy objects usually. In the SR, the appellant states that he has a longstanding disability affecting his neck and head as well as his left shoulder and arm after a workplace injury on December 31, 2015 when he was doing food deliveries. The appellant states that his injury causes him constant moderate-severe pain, which becomes unbearable when he engages in physical exertion, especially lifting, pushing/pulling, and reaching. The appellant reports that he returned to work for April and May 2016 but was laid off on June 2, 2016. He states that on April 11, 2017 he had an extreme flare-up of pain, which rendered him unable to move his head or neck due to stabbing pain, swelling, and stiffness, and he was driven to a hospital. The appellant states that he continues to experiences periodic muscle spasms, episodes of uncontrollable shaking in his left hand, and reduced nerve sensation in his left foot and leg and left arm and hand. The appellant states that with acupuncture, massage and deep tissue treatments he experiences some relief but it is only temporary. The appellant states that he is waiting for a neuromuscular consultation and nerve conduction studies and hopes that this procedure will explain why he has been suffering with this pain for the last year and a half. The Referral Letter indicates that the appellant presented with ongoing let sided neck and shoulder pain described as tightness, throbbing, aching pain with occasional paresthesia to left fingers. In the Letter, the Physician indicates that the appellant sustained an aggravation to his previous work place injury from which he had never completely recovered, which was then worsened and aggravated with further insults. The Physician indicates that the appellant’s injury may have worsened further with the development of chronic pain syndrome and chronic myofascial dysfunction with central sensitization. The Physician indicates that the appellant is unable to work doing physical tasks without aggravation of pain in that region, is unable to be in a static position for extended time without aggravation of his pain. In the RFR the appellant states that due to his physical disability he is unable to support or fully take care of himself, his common law spouse and five young children (ages 1to 7). The appellant states that he has constant pain and requires various treatments. He states that he has been disabled for almost two years, since December 31, 2015 and his condition is only worsening without sufficient interventions. Mental Impairment The MR indicates that the appellant does not have any difficulties with communication and does not have any significant deficits with cognitive and emotional function. Under Part F – Additional Comments the Physician indicates that the appellant has not been able to work or enjoy hobbies, which has caused low mood and frustration. In the AR, the Physician did not indicate the appellant’s level of ability with speaking, reading, writing or hearing. The Physician did not complete section 4, cognitive and emotional functioning. In the Referral Letter the Specialist states that the appellant would benefit from counselling (minimum duration 12 weeks) to address mental health implications of ongoing chronic pain that is interrupting his ability to work and interact with his children and family. The Specialist states that addressing mental health impacts in turn can help to reduce central sensitization and improve function. DLA In the AR, the Physician indicates that the appellant is independent with all aspects of personal care, paying rent and bills, personal care, paying rent and bills, medications and transportation. The Physician indicates that the appellant requires periodic assistance with laundry and basic housekeeping, explaining that on bad days he cannot do housekeeping or laundry. The Physician indicates that with respect to shopping, the appellant is independent with going to and from stores, reading prices and labels, making appropriate choices and paying for purchases but requires periodic assistance with carrying purchases home, explaining that he cannot carry heavy objects. For

meals, the Physician indicates that the appellant is independent with meal planning and safe storage of food but requires periodic assistance with food preparation and cooking, explaining that when things are bad the appellant cannot cook or prepare food. For additional comments, the Physician indicates that the appellant’s partner needs to help him with housework, laundry and carrying heavy objects most of the time and needs to cook and prepare food when the appellant’s pain is severe in nature. The Physician did not complete the section for social functioning. In the SR, the appellant states that his injuries affect every part of his life, every day. The appellant states that he has to take frequent breaks from everyday activities and sit down or relax to take pressure from his neck and despite medication, his pain never totally goes away, fluctuating from moderate to severe in intensity. The appellant states that at worst, his pain is crippling and renders him helpless for a period of time. He states that routine housework such as mopping, dusting, scrubbing and vacuuming has become a challenge and now he cannot do it without help. The appellant states that his common law partner does much of the housework, though he does as much as he can on better days. He states that his partner does much of the cooking because standing in the kitchen taxes his injury. The appellant states that he lives on a large property that requires a certain degree of outdoor work to maintain, but he cannot do yard work anymore and had to purchase a ride on lawnmower using credit in order to maintain the lawn. He states that he cannot plow snow from his driveway either and cannot afford hired help so he has to park on the road in the winter and walk his children to and from the vehicle when the snow level is high. He states that he lives in an older home and had planned to renovate it but is not able to do so as he cannot lift, bend, reach or turn the way he needs to in order to paint, repair, or refinish the house. The appellant states that his social life has suffered and he is unable to participate in activities he used to enjoy such as golf, cycling and skiing and he has had to limit his volunteer activity. The appellant states that his deepest joy is his family and he enjoys activities with his children but cannot roughhouse or swing the boys like he used to, or carry his baby in her car seat carrier. Need for Help In the MR, the Physician indicates that the appellant does not require any prostheses or aids for his impairment. In the AR, the Assessor indicates that help for DLA is provided by family. In the Referral Letter, the Specialist indicates that the appellant will need ongoing multi-disciplinary care from a team of practitioners (minimum duration 12 weeks), as well as counselling of same duration to address mental health implications of ongoing chronic pain. In the Letter, the Physician indicates that the appellant needs ongoing physiotherapy and visits with the pain specialists. In the SR, the appellant states that he requires help from his partner with housework and cleaning, help with yard work and ongoing treatment with physiotherapy, acupuncture and massage therapy for temporary relief. In the RFR, the appellant states that treatments recommended for his condition are: physiotherapy, occupational therapy, chiropractor visits, deep tissue massage therapy and prolotherapy. Additional information provided In his Notice of Appeal dated January 10, 2018, the appellant states that he is incapacitated due to a work injury and has been unable to work for over two years. The appellant states that he has no income and no way to support himself. The appellant states that he is appealing to another agency to fund his recovery so that he can work again but has been unsuccessful so far. The appellant states that he is significantly disabled and in great need of financial support. By email dated February 5, 2018 the ministry advised that the ministry’s submission will be the reconsideration summary provided in the Record of Ministry Decision.

With the consent of both parties, the hearing was conducted as a written hearing pursuant to section 22(3)(b) of the Employment and Assistance Act. Admissibility of New Information The panel has admitted the information in the appellant’s Notice of Appeal as it is evidence in support of information and records that were before the ministry at the time of reconsideration, in accordance with section 22(4) of the Employment and Assistance Act. In particular, the information regarding the appellant’s disability and need for financial support was before the ministry at the time of reconsideration.

PART F – REASONS FOR PANEL DECISION Issue on Appeal The issue on appeal is whether the ministry’s decision to deny the appellant designation as a PWD was reasonably supported by the evidence or was a reasonable application of the applicable enactment in the circumstances of the appellant. In particular, was the ministry reasonable when concluding it was not satisfied that  the evidence establishes that the appellant’s impairment is likely to continue for at least 2 years;  a severe physical or mental impairment was established;  the appellant’s daily living activities (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 those restrictions, in the opinion of a prescribed professional, the appellant requires help, as it is defined in the legislation, to perform DLA? Relevant Legislation EAPWDA 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 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 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. (4) The minister may rescind a designation under subsection (2). EAPWDR Definitions for Act 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 practice 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. (3) The definition of "parent" in section 1 (1) applies for the purposes of the definition of "dependent child" in section 1 (1) of the Act. Alternative grounds for designation under section 2 of Act 2.1 The following classes of persons are prescribed for the purposes of section 2 (2) [persons with disabilities] of the Act: (a) a person who is enrolled in Plan P (Palliative Care) under the Drug Plans Regulation, B.C. Reg. 73/2015; (b) a person who has at any time been determined to be eligible to be the subject of payments made through the Ministry of Children and Family Development's At Home Program; (c) a person who has at any time been determined by Community Living British Columbia to be eligible to receive community living support under the Community Living Authority Act; (d) a person whose family has at any time been determined by Community Living British Columbia to be eligible to receive community living support under the Community Living Authority Act to assist that family in caring for the person; (e) a person who is considered to be disabled under section 42 (2) of the Canada Pension Plan (Canada).

Panel Decision Duration The appellant’s position is that he has been significantly disabled for over two years and that despite medications and treatment; he continues to have pain that is crippling at times. The ministry’s position is that the Physician did not indicate that the appellant’s impairment is likely to continue for two years or more and notes “unknown duration – ongoing treatment options being pursued”. The ministry’s position is that the legislative criteria has not been met. As the Physician has not confirmed that the appellant’s impairment is likely to continue for two years or more as is required by section 2(2)(a) of the EAPWDA, the panel finds that the ministry was reasonable in concluding that the legislative criterion was not met. Severity of Impairment The legislation provides that the determination of severity of an impairment is at the discretion of the minister, taking into account all of the evidence including that of the appellant. However, the legislation is also clear that the fundamental basis for the analysis is the evidence from a prescribed professional respecting the nature of the impairment and its impact on daily functioning. While the legislation does not define “impairment”, the MR and AR define “impairment” as a “loss or abnormality of psychological, anatomical or physiological structure or functioning causing a restriction in the ability to function independently, effectively, appropriately or for a reasonable duration.” While this is not a legislative definition, and is therefore not binding on the panel, in the panel’s opinion, it reflects the legislative intent and provides an appropriate analytical framework for assessing the degree of impairment resulting from a medical condition. When considering the evidence provided respecting the severity of impairment, the ministry must exercise its decision-making discretion reasonably by weighing and assessing all of the relevant evidence. Severe Physical Impairment The appellant’s position is that he has a severe physical impairment due to a workplace injury in his neck, back and shoulder that became extremely exacerbated in April 2017. The appellant’s position is that his moderate to severe pain is always present, every day, and at times becomes unbearable and crippling. The appellant’s position is that his physical impairment has forced him to limit his mobility, restrict his activities and adapt his lifestyle in order to minimize the ever present pain. The ministry’s position is that the information provided does not establish a severe physical impairment. The reconsideration decision indicates that a diagnosis of a serious medical condition does not in itself determine PWD eligibility or establish a severe impairment. The ministry notes that in terms of physical functioning, the Physician indicates that the appellant can walk 4+ blocks unaided, can climb 5+ steps unaided, can lift under 5 pounds and remain seated less than 1 hour. While the Physician indicates that the appellant requires periodic assistance with lifting, noting that the appellant “can not lift heavy objects usually”, there is no information provided to explain the frequency or the degree of the periodic assistance required to manage lifting. The reconsideration decision indicates that the Letter primarily focuses on the appellant’s employability and vocational abilities but that, for the purpose of determining PWD eligibility, employability or vocational ability is not taken into consideration. The ministry’s position is that while the appellant experiences pain and some limitations, particularly with lifting, the functional skill limitations described by the Physician do not describe a severe degree of physical impairment. The panel finds that the ministry reasonably determined that the information provided does not establish that the appellant has a severe physical impairment. In particular, the functional skills reported in the MR and the AR