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 07 September 2018 that denied the appellant’s
request for off-the shelf orthopaedic footwear (“rocker bottom shoes”) and for custom-made foot
orthotics. The ministry determined that the information provided did not establish that the
following requirements of section 3.10 of Schedule C of the Employment and Assistance for
Persons with Disabilities Regulation were met:
•
The orthosis is prescribed by a medical practitioner or nurse practitioner, as specified in
subsection (2)(a).
•
For the off-the shelf orthopaedic footwear, the requirements set out in subsection (2)(b) –
minister satisfied item is medically essential to achieve or maintain basic functionality;
and subsection (2)(c) – minister satisfied item required is for one of the listed purposes.
•
For the custom foot orthotics, the requirements set out in subsections (2)(d)(1) and (3)(a)
– medical practitioner or nurse practitioner confirms that custom-made is medically
required; and (3)(d) – made from a hand-cast mold
.
PART D – RELEVANT LEGISLATION
Employment and Assistance for Persons with Disabilities Regulation (EAPWDR), Schedule C,
sections 3 and 3.10.
Interpretation Act, section 29
PART E – SUMMARY OF FACTS
The evidence before the ministry at reconsideration included the following:
1.
The appellant is a recipient of disability assistance,
2.
A prescription from a podiatrist dated 03 May 2018: “Rocker Bottom Shoes – [brand and
model number] (“Model1”) or any shoe with a rocker bottom sole.”
3.
An Orthoses Request and Justification form (“ORJ form”), received by the ministry on 13
June 2018:
•
The section under Medical or Nurse Practitioner Recommendation was signed by
the appellant’s podiatrist (a Doctor of Podiatric Medicine or DPM) on 08 June 2018.
•
The podiatrist describes the appellant’s medical condition in terms of over pronation
with plantar fasciitis and ligament soreness on both ankles.
•
The recommended type of orthosis is: “Prescription orthotics to control pronation
and offload 1
st
metaphyseal joint bilateral.”
•
The Assessment section was also completed by the same podiatrist on 08 June
2018.
•
The podiatrist specifies the type of orthoses required as: “Prescription-made through
foot doctor to control the position and motion of his feet.
•
The podiatrist explains how the prescribed item will assist with joint motion and/or
support as: “Allow the 1
st
metaphyseal joint to bend and prevent further joint
destruction.”
•
The podiatrist indicates that the item is required to prevent surgery and to improve
physical functioning impaired by a neuro-musculo-skeletal condition, explaining, “by
controlling over-pronation and offloading 1
st
metaphyseal joint will allow normal
walking.”
•
The podiatrist indicates that the orthosis will be custom-made, explaining, “Hand
done 3D image I did myself with a 3D laser scan.”
•
The podiatrist adds as further information, “Does not have a current corrective
device.”
4.
Price quotes for different models of rocker bottom shoes from two suppliers: Model 1 @
$190.39 and Model 2 @ $308.00.
5.
The appellant’s Request for Reconsideration is dated 29 August 2018. Under Reasons, he writes
[edited to clarify references to legislation]:
“[The podiatrist] did not mention on application as I heard personally with my visit the
requirement of rocker bottom soled built-in footwear such as [Model 2]. This would prevent
over pronating my vertical toe bone and stretch it perpendicularly with the flatfoot structure,
thus preventing surgery. The podiatrist assessed [and] wrote the abnormality of over
pronation. His position is an orthotist/podiatrist. My original orthotics are worn out, not
functioning. [Name of doctor, a podiatrist] made them with approval via [EAPWDR Schedule
C, section 3, sub] section 3(3). [Section] 3(a) [of Schedule C] states it to be more economical
to replace medical equipment [than repair it]. [Model 1] has internally designed rocker bottom
sole structure that stretches the feet. Also the period of time for usage has passed. Therefore,
the minister may provide off-the-shelf footwear of $125 with me paying the $55 difference
because EAPWDR section 62's requirements [regarding basic eligibility] are met. [Schedule
C section 3] preauthorization originated with [name of previous podiatrist]. [Model 1] is the
least expensive medical device. No other resources are available to me. [Model 2] footwear
has the same technology.”
Notice of Appeal
The appellant’s Notice of Appeal was signed by the appellant on [day not shown] September
2018 and received by the tribunal on 24 September 2018. Under Reasons, the appellant writes,
“See insert page attached.” The ORJ form reviewed above was attached.
The hearing
At the hearing, the appellant provided background to his request. He stated that eight years
ago, based on a referral from his then GP, he went to a podiatrist who diagnosed his condition
much along the same lines as his current podiatrist. With ministry funding, that podiatrist
provided him with custom-made orthotics. Over the years, these orthotics deteriorated. He went
to the podiatrist for repairs, but after a while found that he could no longer afford the fees for
these visits. These orthotics are no longer usable.
This past May, he found another podiatrist by searching the phone directory. On his first visit,
this podiatrist made the same diagnosis as the previous one, and took images of his feet in his
office using equipment similar to an MRI machine. The podiatrist recommended that he try
rocker-soled orthopaedic shoes. According to the podiatrist, these would provide the same
improvements to his gait, as would orthotics. These shoes were not available when he was first
provided orthotics — they came onto the market only in the last couple of years. The appellant
noted that the shoes are also significantly less expensive than the orthotics. On this basis, the
podiatrist gave him the prescription for these shoes.
When he went to the ministry office to inquire about following up with this prescription, he was
given the ORJ form. He then went back to the podiatrist to have him complete the form. The
appellant stated that he did not realize that the podiatrist would then complete the form
requesting and justifying custom-made foot orthotics rather than the orthopaedic shoes. He
stated that it was not his intention to request the ministry to provide custom foot orthotics, given
the availability of rocker-soled shoes. He would much prefer the shoes, as orthotics can be lost
or stolen.
The appellant then reviewed in detail the documents presented – the prescription, the ORJ form,
his Request for Reconsideration and the price quotes.
In answer to a question, the appellant stated that he does not currently have a family doctor/GP
and thought that the podiatrist was a medical practitioner. This was then followed by a
discussion on the meaning of “medical practitioner.” (See Part F, Reasons for Panel Decision,
below.)
The ministry stood by its position and reconsideration.
The ministry stated that it treated the requests for off-the-shelf orthopaedic footwear and for the
custom-made orthotics as two separate applications under one Service Request. The ministry
had not been advised that the appellant was interested in applying only for the orthopedic
footwear. The request for the orthopaedic footwear was considered under the (limited)
information provided in the prescription, and that for the orthotics on the information provided in
the ORJ form.
Admissibility of additional information
The panel accepts the appellant's statement that he is interested in applying only for the off-the-
shelf orthopedic footwear, and not the custom-made foot orthotics, as clarification of his request
for orthoses before the ministry at reconsideration.
PART F – REASONS FOR PANEL DECISION
The issue in this appeal is whether the ministry was reasonable in denying the appellant’s
request for off-the shelf orthopaedic footwear (“rocker bottom shoes”) and for custom foot
orthotics. More specifically, the issue is whether the following ministry determinations are
reasonably supported by the evidence or are a reasonable application of the legislation in the
circumstances of the appellant:
The information provided did not establish that the following requirements of section 3.10 of
Schedule C of the Employment and Assistance for Persons with Disabilities Regulation were
met:
•
The orthosis is prescribed by a medical practitioner or nurse practitioner, as specified in
subsection (2)(a).
•
For the off-the shelf orthopaedic footwear, the requirements set out in subsection (2)(b) –
minister satisfied item is medically essential to achieve or maintain basic functionality;
and subsection (2)(c) – minister satisfied item is required for one of the listed purposes.
•
For the custom foot orthotics, the requirements set out in subsections (2)(d)(1) and (3)(a)
– medical practitioner or nurse practitioner confirms that custom-made is medically
required; and (3)(d) – made from a hand-cast mold.
The relevant legislation is from the Interpretation Act:
Expressions defined
29 In an enactment:
"medical practitioner" means a registrant of the College of Physicians and Surgeons of British Columbia entitled
under the Health Professions Act to practise medicine and to use the title "medical practitioner";
And from the EAPWDR, Schedule C:
Medical equipment and devices
(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.
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;
(p)a walking boot.
(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) to (9) [not relevant]
(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.
Table 1
Item
Column 1
Column 2
Orthosis
Limit
1
custom-made foot orthotic
1 or 1 pair
13
off-the-shelf orthopaedic footwear
1 or 1 pair
(10) The period of time referred to in section 3 (3) (b) of this Schedule with respect
to replacement of an orthosis is the number of years from the date on which the
minister provided the orthosis being replaced that is set out in Column 2 of Table 2
opposite the description of the applicable orthosis in Column 1.
Table 2
Item
Column 1
Column 2
Orthosis
Time period
1
custom-made foot orthotic
3 years
13
off-the-shelf orthopaedic footwear
1 year
(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)Repealed. [B.C. Reg. 94/2018, App. 2, s. 1 (b).]
(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.
Analysis
The positions of the parties
The position of the appellant, as explained at the hearing, is that he is applying only for off-the-
shelf orthopaedic footwear (rocker bottom shoes) as a health supplement to be provided by the
ministry. He argues that his podiatrist, as a doctor of podiatric medicine, should be considered a
“medical practitioner” as the term would be commonly understood, and that as such the
podiatrist provided all the information required – a prescription, and, drawing from the
information in the ORJ form and considering that the footwear has orthotics “built in,” an
explanation that the footwear is medically essential for him to maintain basic functionality and
required to prevent surgery and improve physical functioning impaired by his muscle-skeletal
condition. He argues that it would be more economical to replace his previously provided
orthotics with the rocker bottom shoes, as provided in EAPWDR Schedule C, section 3(3).
The position of the ministry, as explained at the hearing, is that it was unaware that the
appellant’s request was for only off-the-shelf orthopedic footwear. Further, no information had
been provided that would suggest that the orthopaedic footwear would provide the same
benefits as the custom-made foot orthotics. All the ministry had to go on was a prescription for
“rocker bottom shoes” written by the podiatrist and an ORJ form with a recommended type of
orthosis as: “Prescription orthotics to control pronation…” The ministry therefore took the
position that it had no alternative but to consider the submissions separately.
Accordingly, in the reconsideration decision, the ministry reviewed each request separately
against the requirements of subsections (2) and (3) of section 3.10 of EAPWDR Schedule C.
For the off-the-shelf orthopaedic footwear (“rocker bottom” shoes), the ministry found that this
orthosis was not prescribed by a medical practitioner or nurse practitioner as required under
subsection (2)(a). The ministry explained that although the podiatrist is a Doctor of Podiatric
Medicine, he is not a medical practitioner or a nurse practitioner. The ministry also noted that
while in the ORJ form the podiatrist describes a medical need for custom orthotics to achieve or
maintain basic functionality as set out in subsection (2)(b) and required for one or more of the
listed purposes in subsection (2)(c), he makes no mention of rocker bottom shoes as an
alternative. Thus there was no information of how the rocker bottom shoes met the subsections
(2)(b) and (2)(c) criteria. The ministry therefore found that the appellant’s request for off-the-
shelf orthopaedic footwear does not meet the eligibility requirements set out in the legislation.
As to the custom-made orthotics, the ministry also found that this orthosis, having been
prescribed by the podiatrist, a Doctor of Podiatric Medicine, was not prescribed by a medical
practitioner or nurse practitioner as required under subsection (2)(a). Similarly, a medical
practitioner or nurse practitioner has not confirmed the need for the foot orthotics to be custom-
made, as required under subsections (2)(d)(i) and (3)(a). The ministry also held that the request
does not meet the requirements set out in subsection (3)(d) requiring custom orthotics be made
from a hand cast mold, finding that 3D imaging by laser scan, as described by the podiatrist, is
not equivalent to hand cast molding. The ministry therefore determined that the appellant’s
request for off-the-shelf orthopaedic footwear does not meet the eligibility requirements set out
in the legislation.
Panel Decision
The panel found the Appeal Record confusing, as it was unclear what exactly the appellant was
requesting. While his Request for Reconsideration discussed the different brands of rocker
bottom shoes, explains how such shoes would meet his needs, and cites EAPWDR Schedule C
section 3(3) [replacing worn out equipment] as providing sufficient authorization, it would have
been difficult for the ministry to not consider the ORJ form and its justification for custom-made
orthotics. Considering the ministry was presented with a prescription note for the rocker bottom
shoes and an ORJ form justifying custom-made foot orthotics, the panel finds that the ministry
was reasonable in considering the requests separately. In terms of the appellant's argument that
what he has requested is a replacement under section 3(3), in the panel's view, this provision
relates to “like for like” replacement, not for replacing worn out orthotics with orthopaedic shoes.
Even if the issue is replacing the worn-out orthotics with new orthotics, the provisions of section
3.10 still apply, including requiring a prescription by a medical practitioner. As explained by the
ministry at the hearing, replacing worn out medical equipment and devices with new ones still
requires a new decision.
The key issue in this appeal is the requirement that a medical practitioner or nurse practitioner
provide a prescription for the requested orthosis and other specified justifying information. The
panel recognizes that the term medical practitioner is not one of everyday usage. People do not
say, “I'm going to see my medical practitioner tomorrow.” Instead they talk about going to see
“my doctor,” “my family doctor,” “my GP,” or “the doctor at the walk-in clinic,” or if a specialist,
“my urologist,” or “the orthopaedic surgeon.”
The term medical practitioner is not defined in the Employment and Assistance legislation, but in
the Interpretation Act, as follows: "medical practitioner" means a registrant of the College of
Physicians and Surgeons of British Columbia entitled under the Health Professions Act to
practice medicine and to use the title "medical practitioner.” In practical terms, this means a
person who has a degree in medicine (an M.D. degree) from a university or medical school or a
school or college of osteopathic medicine, as approved by the College’s board, and meets the
initial training and other ongoing requirements to practise medicine in the province. The term
does not apply to other health professionals who may use the title “Doctor,” such as podiatrists,
dentists, chiropractors, etc.
Despite the possibility for confusion over the meaning of the term “medical practitioner,” it is a
legislatively defined term that the ministry must use in applying the legislation. Nevertheless, the
panel considers that it would have been helpful if the ministry had stated in both the original
decision and in the reconsideration decision not just that the podiatrist is a Doctor of Podiatric
Medicine and is not a medical practitioner or nurse practitioner, but what was meant by “medical
practitioner” in everyday language, such as “your family doctor or a walk-in clinic doctor, one
who has a MD degree.”
Given that a medical practitioner has not prescribed the requested off-the-shelf orthopaedic
footwear and that there is no other justifying information provided relating to the footwear in the
ORJ form, as required in subsection (2) of EAPWDR Schedule C section 3.10, the panel finds
that the ministry was reasonable in determining that the appellant was not eligible for this
requested orthosis.
As the ministry noted in its decision, a medical practitioner has also not prescribed the custom-
made orthotics recommended by the podiatrist, and has not provided justification for them to be
custom made as required under subsections (2)(d)(i) and (3)(a). Regarding subsection (3)(d),
the ministry found that 3D imaging by laser scan, as described by the podiatrist, is not
equivalent to hand cast molding, but without explaining why this is the case. Without such an
explanation, the panel finds this particular conclusion unreasonable. However, considering the
application as a whole, with the other provisions not being met, the panel finds that the ministry
reasonably determined that the appellant was not eligible for this orthosis.
Conclusion
Bas
ed on the foregoing, the panel finds that the ministry's decision denying the appellant health
supplements for off-the-shelf orthopaedic footwear and for custom orthotics is reasonably
supported by the evidence and a reasonable application of the legislation in the circumstances
of the appellant. This decision does not preclude the appellant from making another application,
while being mindful of the need for a prescription from a medical practitioner or nurse
practitioner and other information as may be required in the legislation.
Th
e panel confirms the ministry’s decision. The appellant is therefore not successful in his
appeal.
PART G – ORDER
THE PANEL DECISION IS: (Check one)
UNANIMOUS
BY MAJORITY
THE PANEL
CONFIRMS THE MINISTRY DECISION
RESCINDS THE MINISTRY DECISION
If the ministry decision is rescinded, is the panel decision referred back to the Minister
for a decision as to amount?
Yes
No
LEGISLATIVE AUTHORITY FOR THE DECISION:
Employment and Assistance Act
Section 24(1)(a)
or Section 24(1)(b)
and
Section 24(2)(a)
or Section 24(2)(b)
PART H
– SIGNATURES
PRINT NAME
Richard Roberts
SIGNATURE OF CHAIR
DATE (YEAR/MONTH/DAY)
2018 October 15
PRINT NAME
Melissa McLean
SIGNATURE OF MEMBER
DATE (YEAR/MONTH/DAY)
2018 October 15
PRINT NAME
Wesley Nelson
SIGNATURE OF MEMBER
DATE (YEAR/MONTH/DAY)
2018 October 15
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.