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 16 January 2019 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 section 2 of 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 mental or physical 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 ministry also found that it has not been demonstrated that the appellant is in one of the prescribed classes of persons who may be eligible for PWD designation on the alternative grounds set out in section 2.1 of the Employment and Assistance for Persons with Disabilities Regulation. As there was no information or argument provided by the appellant regarding alternative grounds for designation, the panel considers this matter not to be at issue in this appeal.

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 05 July 2018. The Application contained: • A Self Report (SR). • A Medical Report (MR) dated 05 July 2018, completed by a specialist in gastroenterology ("the specialist") who has not stated how long she has known the appellant but indicates that she has seen her 2-1 0 times in the past year. • An Assessor Report (AR) dated 20 August 2018, completed by a general practitioner ("GP") who has known the appellant for 8 years and seen her 11 or more times in the past year. • A Medical Report to Service Canada (for a CPP Disability application) dated 07 June 2018, completed by the specialist, to which are attached notes of 2 years of visits (6 visits), 2 years of lab reports, 2 years of investigations, and 2 years of administrative tasks (diagnostic imaging).

2. The appellant's Request for Reconsideration dated 12 December 2018, in which the appellant states that she needs an extension.

In the MR, the specialist provides the following diagnoses related to the appellant's impairment: hepatitis (onset July 2017), symptoms concerning for abnormalities of weight (onset July 2017), and chronic panreatitis (onset July 2017). The GP describes the appellant's impairment as follows: "Severe fatigue, abdominal pain, widespread joint [pain], depressed appetite due to pancreatitis/hepatic disease.

The panel will first summarize the evidence from the MR, the AR, and CPPD Medical Report as it relates to the PWD criteria at issue in this appeal.

Severity/health history Physical impairment MR: Under Health History, the specialist writes: "She has limited energy focus from her chronic diarrhea, painful cramps, and limited oral intake. Naps multiple times per day. She feels unable to go back to work."

Under Additional Comments, the specialist writes: "Chronic diarrhea & abdo[minal] pain lead to fatigue, dependency on bathrooms, and exhaustion. Chronic hepatitis NYD [not yet determined] can lead to fatigue and exhaustion. These put limits on a person's ability to focus, remain seated for long periods. Shorter work intervals or options to work [with] being home are better if available."

Regarding functional skills, the specialist reports: "Unknown" for how far the appellant can walk unaided on a flat surface; "Unknown" for how many stairs she can climb unaided; "No limitations" for her liftina abilitv; and limited to remainina seated to 1 to 2 hours (freauencv of

bowel movement dependent). The specialist indicates that the appellant has not been prescribed any medication and/or treatments that interfere with her ability to perform DLA, explaining that, "Her treatments would not interfere, but they haven't improved her symptoms to the point where she can return to work."

AR: Respecting mobility and physical ability, the GP assesses the appellant as Independent for walking indoors and standing; requiring periodic assistance from another person for walking outdoors, taking significantly longer than typical for climbing stairs ("3 times longer"), and for lifting and carrying and holding ("<10 lb. max").

CPPD Medical Report: In describing the appellant's relevant physical findings and functional limitations, the specialist writes: "She has chronic diarrhea, early satiety, poor oral intake, chronic pain, weakness, unable to focus [or] work long hours, unpredictable symptom flare."

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 function.

AR: The GP assesses the appellant's ability to communicate as good for speaking, reading, writing, and hearing.

The GP put a line through the Cognitive and Emotional Functioning table that asks how the appellant's mental impairment has impacts on functioning, with no Major, Moderate or Minimal impacts shown.

Ability to perform DLA MR: The specialist reports that appellant's ability to perform DLA is not restricted for any of the listed activities: personal self-care, meal preparation, management of medications, basic housework, daily shopping, mobility inside the home, mobility outside the home, use of transportation, management of finances, and social functioning.

AR: The GP provides the following assessments of the assistance the appellant requires in performing DLA (the GP's comments in parenthesis): • Personal care - inde endent for all as ects: dressin , roomin , bathin , toiletin

feeding self, regulating diet, transfers in/out of bed, and transfers on/off chair. • Basic housekeeping - independent for laundry; takes significantly longer than typical for basic housekeeping (3 times longer). • Shopping - takes significantly longer than typical for going to and from stores and carrying purchases home (3 limes longer); independent for reading prices and labels, making appropriate choices and paying for purchases. • Meals - in all aspects: meal planning, preparation, cooking and safe storage of food. • Pay rent and bills - Independent in all aspects: banking, budgeting, and paying the rent and bills. • Medications - independent in all aspects: filling/refilling prescriptions, taking as directed, and safe handling and storage. • Transportation - independent in all aspects: getting in and out of the vehicle, using public transit, and using transit schedules and arranging transportation.

The GP provides no assessments with respect to social functioning restrictions. Help provided/required MR: The specialist indicates that the appellant does not require any prostheses or aids to compensate for her impairment.

AR: The GP does not indicate that the appellant requires the use of assistive device.

The GP indicates that the appellant does not have an assistance animal. The GP indicates that assistance is provided by family and friends. Regarding the help required when none is available, the GP writes, "None available until friends show up."

Self Report In describing her disability, the appellant writes: "Constant discomfort with cramps, bloating, diarrhea, nausea, vomiting, loss of energy and muscle & joint pain. Headaches. Unable to eat more than a few tablespoons per day and limited on type of food. Cannot eat red meat, chicken or pork. Usually salad, salmon & soup. Struggle with daily activities of housework. Takes me 3 to 4 times longer due to fatigue & discomfort. Need to take a break every 10 mins. when doing housework."

In explaining how her disability affects her life and her ability to take care of herself, she writes: "Unable to spend time with family due to illness & energy. Unable to walk my dog alone and then only two blocks. Spent most time in bed due to my fatigue. Frustrating & depressing to not be able to eat or be able to have any energy to enjoy my life, always feeling ill or in pain. Feelin sick, nauseous, cram s, aches & ains all da & ni ht.

I My family doctor [name] has more info on this in his clinical notes if you need to request them as he's been treating me for this alongside [the specialist]. (Her clinical [notes] attached.)"

Notice of Appeal In her Notice of Appeal, dated 28 January 2019, the appellant gives as her reasons for appeal: "because I have a severe impairment which effects my daily living and am not able to work at all."

The hearing At the hearing, the appellant described the severity of her impairment. She explained that because of her medical conditions she is in bed 80% of the time, on the couch for 10% of the time, and spends only about 10% of the time doing anything for herself. She can cook for herself, but that means just warming up a can of soup. She is able to wash her clothes, but since she wears only pyjamas, or a tracksuit when going out, washing these does not require much effort. Her mother, who is in her mid-?0s, washes and changes her sheets. The appellant stated that she is able to drive to the store, but that does not involve buying and carrying very much, maybe only a few cans of soup. She has a friend who helps her whenever he can with heavier tasks, such as bringing her water or vacuuming her home, as well as walking her dog. She takes a bath only about once a week, as this lakes a lot of energy and she cannot ask her mother to help her in and out of the tub.

The appellant emphasized that under these circumstances she has a very poor quality of life. She has worked hard all her life and is applying for disability assistance now only because she is no longer able to work.

She stated that she has known the specialist only for the past 14 months. The specialist focuses mainly on her illnesses, their symptoms and results from multiple blood tests, CT scans and MRls, but does not know much about her day-to-day life. She has known the GP for eight years and he knows a bit more about her circumstances, but both the specialist and the GP are busy and in her view it is unrealistic and unfair to expect them to provide the narrative detail requested in the forms.

The ministry stood by its position at reconsideration. Admissibility of additional information The ministry did not object to the information provided by the appellant in her testimony at the hearing.

With the exception noted below, the panel finds that the information provided by the appellant in her testimony at the hearing is in support of the information and records before the ministry at reconsideration. This information tends to substantiate the information provided by the specialist and the GP and the information provided by the appellant in the SR. The panel therefore admits this information as evidence under section 22(4) of the Emolovment Assistance Act.

The panel does no� admit as evidence the information provided by the appellant respecting help provided by her mother and by her friend. There was no specific information in this regard when the ministry made its decision, and therefore this information cannot be said to be in support of the information and records before the ministry at reconsideration.

7

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 sections 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.

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) 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).

Analysis Severity of impairment The legislation is clear that the determination of severity of impairment is at the discretion of the minister, taking into account all of the evidence, including that of the applicant. The legislation requires that for PWD designation, the minister must be "satisfied" that the person has a severe mental or physical impairment. For the minister to be "satisfied" that the person's impairment is severe, the panel considers it reasonable for the ministry to expect that the information submitted by the independent and professional medical practitioner and prescribed professional (in this case the specialist and the GP) completing the application provides the minister with a comorehensive overview of the nature and extent of the imoacts of the oerson's medical

Q

conditions on daily functioning. As the legislation requires the minister to make determinations regarding the degree of impairment, the degree of restrictions in the ability to perform DLA and the resulting degree of help required, it is therefore important that the MR and the AR include explanations, descriptions or examples in the spaces provided so that the minister has the information needed to make these determinations. Significant weight must also be placed on the evidence of the applicant, unless there is a legitimate reason not to do so. The reconsideration process provides the opportunity for the prescribed professionals and applicant to clarify or add to the information provided on application, and the panel hearing an appeal must consider any information provided on appeal, as long as the panel finds it admissible.

The legislation provides that the minister must be satisfied that the applicant has a severe mental or a severe physical impairment (or both). In this case, the ministry did not differentiate between the two types of impairment, addressing only the physical aspects of the appellant's impairment. Considering that neither of the medical practitioners diagnosed the appellant with a mental health condition as an impairment, did not identify any significant deficits with cognitive or emotional function, did not report any difficulties with communications, and did not assess any impacts of mental impairment on daily functioning, the panel finds that the ministry was reasonable in addressing only the appellant's physical impairment as the impairment at issue at reconsideration.

The appellant's position, as explained at the hearing, is that her medical condition precludes employment and that this is amply demonstrated by her severe fatigue resulting in her staying in bed or on her couch most of the day, her chronic diarrhea making her dependent on the ready availability of washrooms, her limited oral intake resulting in a lack of energy and concerning weight loss, and abdominal and widespread joint pain. The appellant argues that surely this is sufficient to establish a severe impairment.

In the reconsideration decision, the ministry was not satisfied that the information provided is evidence of a severe impairment. In reaching this determination, the ministry acknowledged that the appellant: • experiences severe fatigue and has limited energy (takes multiple naps); • has limited oral intake; • has a dependency to be near bathrooms; • is limited in her ability to focus; • cannot remain seated for long periods of time; • experiences abdominal and widespread joint pain; • takes her 3 times longer to perform tasks such as climbing stairs, basic housekeeping and shopping.

However, the ministry was not satisfied that the appellant's impairments are considered severe because: • She is considered independent in a large majority of her DLA including all aspects of personal care and laundry. • Taking 3 times longer to perform some of your daily tasks does not necessarily conclude a severe impairment. • She does not require any assistive devices (for example, if she experienced severe fatiaue it would be exoected that she would benefit from a device such as a walker with

. a seat to enable her to walk and rest when needed to achieve further distances). • Although there is mention of employment being a challenge due to her medical conditions, the ministry noted that this application is not intended to assess employability or vocational abilities. A medical barrier to a person's ability to engage in paid employment is not a legislated criterion for severity. • The specialist indicates that she experience no limitations with lifting and her GP indicates she can lift up to 10 lbs; this is not considered a significant restriction as she would be able to carry out most tasks of daily living with that ability.

The ministry argues that a diagnosis of a serious medical condition does not in itself determine PWD eligibility. Under the legislation, eligibility for PWD hinges on an "impairment" and its severity. "Impairment" is more than a diagnosed medical condition. An impairment is a medical condition that results in restrictions to a person's ability to function independently, appropriately, effectively or for a reasonable duration.

The ministry noted that the legislation clearly provides that the determination of severity of impairment is at the discretion of the minister, taking into account all of the information provided in the application and attached information.

It is the ministry's position that determining a severe impairment requires weighing the evidence provided against the nature of the impairment and its reported functional skill limitations. In this case, the evidence provided does not sufficiently describe or portray a severe impairment. While the ministry acknowledges that she experiences some degree of restriction due to her impairments, the minister is not satisfied that the combination of her functional skills, mobility and physical abilities exhibits a severe impairment.

Panel finding In the reconsideration decision, the ministry noted that for the purposes of determining eligibility for PWD designation, a medical barrier to the applicant's ability to engage in paid employment is not a legislated criterion for severity of impairment. In this regard, the panel notes that section 2(2) of the EAPWDA can be read as "The minister may designate a person ... as a person with disabilities ... if the minister is satisfied that the person ... has a severe mental or physical impairmentthat (b) ... (i) directly and significantly restricts the person's to perform daily living activities ... (ii) as a result ... , the person requires help to perform those activities." As the focus 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. In other words, it is unreasonable to expect the ministry to assume that difficulty in attending or performing a job extends to other areas of daily functioning.

The panel notes, however, that employability can be an indirect factor for PWD designation. The legislation provides for "alternative grounds" for PWD designation, one of which, listed in section 23.1 of the EAPWDR, is a person who is considered to be disabled under section 42 (2) of the Canada Pension Plan (Canada) - i.e. a oerson meetina the disabilitv criterion for a CPP