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 May 24, 2018, which held that the appellant did not meet 3 of the 5 statutory requirements of section 2 of the Employment and Assistance for Persons with Disabilities Act (EAPWDA) for designation as a person with disabilities (PWD). The ministry found that the appellant met the age requirement and that a medical practitioner has confirmed that the appellant’s impairment is likely to continue for at least 2 years. Ho wever, the ministry was not satisfied 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, in the opinion of a prescribed professional, 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 Em ployment and Assistance for Persons with Disabilities Regulation (EAPWDR), section 2

PART E – SUMMARY OF FACTS Information before the ministry at reconsideration 1) Th e appellant’s PWD application comprised of: • A Medical Report (MR) dated February 27, 2018, signed by a general practitioner (GP) who has known the appellant since March 2014 and has seen the appellant 2 -10 times in the past 12 months; • An Assessor Report (AR) also dated February 27, 2018, completed by the same GP; and • The appellant’s self-report (SR) section of the PWD application, dated February 17, 2018. 2) Th e appellant’s Request for Reconsideration, which included: i) The appellant’s reasons for requesting reconsideration; and ii) A 13-page medical-legal report dated November 7, 2017, completed by a neurological surgeon (“the neurologist”) based on an examination conducted September 26, 2017. Documents provided on appeal and admissibility 3) The appellant’s Notice of Appeal (NOA) dated June 6, 2018 in which the appellant indicates that she is seeking further details from the GP. 4) A 16 -page Psychological Report dated September 25, 2018, in which the psychologist states that his opinion is based on an August 27, 2018 interview with the appellant (a 4-hour long session, with a 5- minute break at the appellant’s request) and a review of available medical documents. Included is a summary of behavioural and emotional questionnaires completed by the appellant as part of the interview/assessment. 5) A letter from the GP dated June 19, 2018. 6) Co nfirmation of a scheduled counselling appointment in June 2018. 7) The ministry’s appeal submission dated October 11, 2018, in which the ministry comments on the Psychological Report but does not provide additional evidence. The ministry does not reference the other documents submitted by the appellant on appeal and does not take a position on the admissibility of the appellant’s appeal submissions. In accordance with section 22(4) of the Employment and Assistance Act (EAA), the panel may admit oral and written testimony that is in support of the information and records available at the time of reconsideration. The panel accepted documents 3 and 7 as argument. The information in documents 4, 5 and 6 was admitted as supporting information as it provided additional detail respecting the appellant’s degenerative disc disease, anxiety and trauma. The arguments of both parties are set out in Part F of this decision.

Summary of relevant evidence Diagnoses and Health History In the MR, the GP diagnoses: • Degenerative disc disease of the cervical and lumbar spine at C4-5, C5-6, C6-7, and C7-T1; • Anxiety disorder (life-long); and • Posttraumatic Stress Disorder (diagnosed 20 years ago). The GP comments “All information about physical abilities is obtained from patient on recent office interview.” The GP notes that degenerative disc disease is confirmed by CT and MRI and that there is disc bulging at L3-4, L4- 5, and L5-S1 and that at L5-S1, lateral disc herniation causes foraminal stenosis. In her SR, the appellant describes her disability as severe lower back pain that travels down to the lower right leg, bilateral foot pain, neck and shoulder pain, right knee pain and buckling and instability (often gives out). Her hands fall asleep with pins and needles sensation. She has difficulty sleeping due to pain. The appellant also reports anxiety. Physical Impairment In the PWD application, the GP provides the following information. • In response to “Does the applicant require any prostheses or aids for his/her impairment?” the GP responds “N/A.” • Able to walk 2 to 4 blocks unaided on a flat surface. “Develops back pain, neck, & shoulder pain, knee ache.” • Able to climb 5+ stairs unaided. • Limited to lifting under 5 lbs. “Cause increase pain if lift over 5 lbs.” • Can remain seated for less than 1 hour. “Develops leg pain back spasm need to (illegible) legs.” • Walking indoors and outdoors, climbing stairs, and standing are managed independently. • Lifting and carrying/holding require continuous assistance from another person. “Over 5 lbs. need assistance groceries, house item” “Friends and family members.” In the SR, the appellant reports that due to ongoing pain she is unable to fully function for extended periods of time. She is only able to sit or stand for short intervals without severe pain setting in. Due to pain and discomfort, it is difficult to fall asleep and she often wakes up throughout the night. She now suffers debilitating headaches. Driving is painful and uncomfortable; cushions have not alleviated the discomfort. Due to her hands falling asleep while in bed and into the day, she is insecure about some hand coordination and functions. Her feet are quite painful. Due to neck and shoulder pain she is unable to carry weight on that side, even a small purse, noting that it’s worse on the left. In her reconsideration submission, the appellant notes that the GP’s diagnoses did not include left cervical radiculopathy, plantar flexion weakness or her L5-S1 disc bulge. The neurologist reviews the results of X-rays, CT scans and MRIs, which include mild sclerosis, multilevel generally mild spondylosis, mild posterior disc bulge, mild to moderate degenerative facet arthropathy, and quite advanced degenerative changes in the right facet joint at L3-4. Physical examination confirms reduced mobility of the cervical spine with tenderness dorsally and reduced mobility of the lumbar spine with impaired plantar flexion on the left and makes diagnoses of degenerative disk disease and disk herniation. The neurologist is of the opinion that the appellant’s prognosis is guarded and that she remains symptomatic 3 ½ years following a motor vehicle accident and concludes that “her disability is permanent.” The report also includes details respecting the appellant’s medical and work history pre and post motor vehicle accident.

The psychologist reports that the appellant complains of pain in her left shoulder, lower back, right leg and both feet, soreness in her neck, occasional headaches, and low energy at times. The psychologist writes that pain and physical limitations affect different facets of the appellant’s life, such as her driving, her sleep, her work, her household chores, and her physical and social activities. The psychologist notes that the appellant is not currently taking prescription medication and that while the herbal medications taken by the appellant were likely helpful in addressing some of her pain and physical limitations, they were not completely resolved. The psychologist defers to the respective medical specialists to comment further on the appellant’s physical injuries, diagnosis and prognosis. Mental Impairment The GP reports: • Significant deficits with 2 of 11 listed areas of cognitive and emotional function – “emotional disturbance”, noting increased anxiety, and “other” which the GP describes as posttraumatic stress disorder. • No difficulties with communication – speaking, reading, writing and hearing abilities are good. • A moderate impact on daily cognitive and emotional functioning is reported in 2 of 14 listed areas – bodily functions, described as sleep disturbances (unable to find comfortable position, also increased anxiety related to inability to work) and emotion (high level of anxiety). No major or minimal impacts are reported as the remaining 12 areas are reported as having no impact. • Social functioning is managed independently in 3 listed areas (appropriate social decisions, ability to develop and maintain relationships, and ability to secure assistance from others). The remaining 2 areas - interact appropriately with others (“Due to increased anxiety at times avoid interactions”) and ability to deal appropriately with unexpected demands (“cause increased anxiety”) - require periodic support/supervision. Marginal functioning with immediate and extended social networks. Where asked to describe support/supervision required which would help maintain the applicant in the community and to identify any safety issues, the GP responds “N/A.” In the SR, the appellant writes that because of previous anxiety issues, the levels are now heightened, at times even debilitating. The psychologist reports that the appellant still displays a number of trauma-related symptoms, such as her hypervigilance and avoidance behaviours, and states that the short-term prognosis of psychological recovery is extremely poor as is a long-term prognosis of a complete positive psychological recovery. “I am of the opinion that [the appellant’s] current symptoms have met the DSM-5 diagnostic criteria for Other Specified Trauma – and Stressor-Related Disorder (Adjustment-like disorders with anxiety and mood symptoms with prolonged duration of more than 6 months). This diagnosis is for a symptom profile that does not meet the full criteria of Posttraumatic Stress Disorder; however, the individual continues to have residual trauma-related symptoms. I am also of the opinion that [the appellant’s] current symptoms have met the DSM-5 diagnostic criteria for Somatic Symptom Disorder, Persistent, with Predominant Pain, Mild to Moderate.” The psychologist also reports the results of the questionnaire’s completed by the appellant: • Beck Anxiety Inventory – low end of the severe level of anxiety symptoms; • Beck Depression Inventory – high level of the Mild level of depressive symptoms; and • World Health Organization’s Disability Assessment Schedule 2.0 – overall disability score in the Moderate level.

DLA The GP reports the following: • The appellant has not been prescribed any medication and/or treatments that interfere with the ability to perform DLA. • All listed tasks of the DLA personal self are managed independently (includes dressing, bathing, transfers in/out of bed and on/off chair). • Basic housekeeping and laundry require continuous assistance from another person (“niece helping over 5 lbs.; with most cleaning”). • For the DLA shopping, carrying purchases home requires continuous assistance from another person (friends and family). The remaining tasks, going to and from stores, reading prices and labels, making appropriate choices, and paying for purchases are managed independently. • Mobility inside and outside the home are as described above under the heading Physical Impairment. • All listed tasks of the DLA meals, pay rent and bills, and medications are managed independently. • For the DLA transportation, the tasks involving the use of public transit are marked as “N/A” as it is not available and the remaining tasks, getting in and out of a vehicle, is assessed as requiring periodic assistance from another person due to back and neck pain. In the SR, the appellant explains that the challenge of carrying on a normal active life with the ongoing constant varying levels of pain is impossible, frustrating and realistically changes her life in a negative and limiting way. Her daily activities and choices are affected, for example, going into a large mall for greater selections as compared to a street store as she’s unable to walk a distance. Driving is limited and she often depends on others for longer trips. Loss of hand function is a safety concern and increases anxiety. Worry that her knee will give out, causes anxiety and limits her function. In his subsequent letter, the GP reports the need for assistance with lifting “heavy objects with weight over 5lbs.” and the need for “assistance with carrying and holding items as (sic) groceries, home items, again if bulky, or over the weight of 5 lbs., usually friends or family members.” Getting in and out of vehicle needs help, usually in form of providing hand for support while entering, and/or when exiting the vehicle. The GP adds that the appellant reports that she is not able to use public transportation since she develops severe anxiety and panic attacks when entering the bus. The neurologist reports that the appellant currently needs and will continue to need “household help.” Need for Help The GP indicates that the appellant does not require aids or prostheses and that help is provided by family and friends.

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. That is, was the ministry reasonable when determining that the requirements of section 2(2) of the EAPWDA were not met because: • a severe physical or mental impairment was not established; • the appellant’s DLA are not, 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 does not require an assistive device, the significant help or supervision of another person, or the services of an assistance animal 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 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. (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.

Panel Decision Physical Impairment The appellant is diagnosed by a medical practitioner, the GP, with multi-level degenerative disc disease. The appellant’s position is that she is disabled by the effects of severe lower back pain, pain in her neck and shoulders, as well as pain and loss of function in her hands and feet. As a result, she is unable to function for extended periods of time as she is only able to sit or stand for short intervals. She is also impaired by difficulties sleeping and headaches. The appellant points to the neurologist’s report which states that the appellant’s disability is permanent and that she needs household help now and in the future. The ministry’s position is that assessing the severity of impairment requires it to consider the nature of the impairment and the extent of its impact on daily functioning as evidenced by limitations/restrictions in mobility, physical ability and functional skills. The ministry concludes that the information provided by the GP, the neurologist and the appellant does not establish a severe physical impairment. In particular, the ministry notes that while the neurologist reports that the appellant remains symptomatic 3 ½ years after a motor vehicle accident and her prognosis is guarded, the information respecting current functional abilities represents limitations more in keeping with a moderate degree of physical impairment. The ministry also notes that employability or vocational ability is not taken into consideration for the purpose of determining PWD eligibility. The ministry’s appeal submission does not address the letter from the GP provided on appeal. The panel concludes that the ministry was reasonable when determining that the information does not establish a severe physical impairment. In reaching this conclusion, the panel notes that employability is not a legislated criteria for assessing PWD eligibility as the legislation addresses the ability to manage non-work related DLA. The panel finds that the ministry considered all of the information available at reconsideration and reasonably concluded that the physical functional assessments reflect a moderate level of impairment. In particular, although the neurologist reports reduced spinal mobility and describes the impacts on physical functioning as permanent, the neurologist does not assess specific physical functional abilities or mobility. The neurologist does report the need for assistance with housekeeping but gives no details to assess the nature or duration of the assistance. Information from the GP in the PWD application, which the GP notes was obtained from the appellant, identifies some limitations to physical functioning, most notably the need for assistance with lifting weights above 5 lbs, but that the appellant does not require aids and is independently able to manage walking indoors and outdoors (2 to 4 blocks) and climbing stairs (5+). Information provided by the GP on appeal is consistent with his previous information as the GP reports the need for assistance with bulky items and those over the weight of 5 lbs. While deferring to medical specialists respecting the appellant’s physical health, the psychologist reports that despite some improvement from herbal medications, the appellant’s pain remains. The psychologist does not assess specific functional abilities in terms of walking, climbing stairs or lifting/carrying but does observe that the appellant was able to remain seated for 4 hours with only one 5 minute break requested, which reflects an ability to remain seated for much longer durations than described in the MR and the SR. Based on the above analysis of the information available at reconsideration and the information provided on appeal, the panel finds that the ministry was reasonable when concluding that the appellant’s functional skills and mobility and physical abilities do not establish a severe physical impairment.

Mental Impairment The appellant is diagnosed by the GP with anxiety disorder and posttraumatic stress disorder. The appellant’s position is that her anxiety has worsened to the point that it is at times disabling. The ministry notes that, while the GP reports sleep disturbances and high level of anxiety, the impact on daily functioning is reported to be moderate, there are no major impacts on daily functioning, and no impact is assessed for the remaining aspects. The ministry also notes that no difficulties are assessed for communication. In its appeal submission, the ministry emphasizes that the PWD application relates to the appellant’s physical impairments and notes that most of the psychologist’s conclusions describe the appellant’s mental impairments as “mild” or “moderate.” Though the ministry’s appeal submission may have unduly minimized the quantity of information respecting mental impairment provided by the GP in the PWD application, given that the GP identifies 2 mental health diagnoses and provides information respecting cognitive, emotional and social functioning, the panel considers that the ministry is reasonable in determining that a severe mental impairment has not been established. In particular, the information at reconsideration is that the GP assesses no major impacts on daily cognitive and emotional functioning, independent decision-making, and good communication abilities. While periodic support/supervision is required for 2 listed aspects of social functioning, there is no description of the support required in order that the degree of the limitations can be assessed. Additionally, the remaining 3 aspects of social functioning are managed independently. The appellant’s own information, that her anxiety has worsened and at times is disabling, is not sufficient to establish a severe mental impairment. The panel finds that the additional information from the psychologist is in keeping with the information at reconsideration. The psychologist reports that the appellant continues to display a number of trauma-related symptoms, including hypervigilance and avoidance behaviours, for which the long-term prognosis of a complete positive psychological recovery is extremely poor, but concludes that the appellant’s symptom profile does not meet the full criteria for Posttraumatic Stress Disorder. Additionally, the diagnosis of Somatic Symptom Disorder, Persistent, with Predominant Pain is “Mild to Moderate.” Accordingly, the panel finds that the ministry was reasonable in concluding that a severe mental impairment was not established. Restrictions in the ability to perform DLA Section 2(2)(b)(i) of the EAPWDA requires that the minister be satisfied that in the opinion of a prescribed professional, a severe mental or physical impairment directly and significantly restricts the appellant’s ability to perform DLA either continuously or periodically for extended periods. While other evidence may be considered for clarification or support, the ministry’s determination as to whether or not it is satisfied, is dependent upon the evidence from prescribed professionals. The term “directly” means that there must be a causal link between the severe impairment and the restriction. The direct restriction must also be significant. Finally, there is a component related to time or duration – the direct and significant restriction may be either continuous or periodic. If periodic, it must be for extended periods. Inherently, any analysis of periodicity must also include consideration of the frequency. All other things being equal, a restriction that only arises once a year is less likely to be significant than one that occurs several times a week. Accordingly, in circumstances where the evidence indicates that a restriction arises periodically, it is appropriate for the ministry to require evidence of the duration and frequency of the restriction in order to be “satisfied” that this legislative criterion is met. DLA are defined in section 2(1) of the EAPWDR and are listed in both the MR and the AR sections of the PWD application with the opportunity for the prescribed professional to check marked boxes and provide additional