Ministry of Social Development and Poverty Reduction

PART C - DECISION UNDER APPEAL The decision under appeal is the Ministry of Social Development and Poverty Reduction (the ministry) reconsideration decision dated February 11, 2019 which found that the appellant did not meet three of the five 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 requirement and that her impairment is likely to continue for at least two years. However, the ministry was not satisfied 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 these restrictions, the appellant requires the significant help or supervision of another person, the use of an assistive device, 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), Sections 2 and 2.1

PART E - SUMMARY OF FACTS With the oral consent of the appellant, a ministry observer attended but did not participate in the hearing.

The evidence before the ministry at the time of the reconsideration decision included the Persons With Disabilities (PWD) Application comprised of the appellant's information and self­ report dated June 28, 2018, a medical report (MR) and an assessor report (AR) both dated October 7, 2018 and completed by a general practitioner (GP) who has known the appellant since July 2012 and has met with her 2 to 10 times in the past 12 months.

The evidence also included the following documents: 1) Medical Imaging Report dated June 21, 2016 relating to X-Rays of the appellant's thoracic spin, lumbar spine and sacrum; 2) Medical Imaging Report dated September 2, 2016 relating to a CT scan of the appellant's lumbar spine; 3) Medical Imaging Report dated November 12, 2017 relating to an MRI of the appellant's lumbar spine; 4) Hospital report from the spine clinic dated January 15, 2018; 5) Letters dated May 24 and May 31, 2018 from an anesthesiologist regarding facet injections; 6) Letters dated January 31, 2019 from the GP who completed the MR and the AR; and, 7) Request for Reconsideration dated January 31, 2019, including a letter from the appellant dated January 31, 2019.

Diagnoses In the MR, the GP diagnosed the appellant with chronic low back pain (degenerative disc disease). with "general pain" onset in 2012 and "worse," with chronic right sciatica in 2015. The GP also diagnosed chronic anxiety disorder "likely all her life," with an onset of depression in 2015. Asked to describe the appellant's mental or physical impairments that impact her ability to manage her daily living activities (DLA), the GP wrote in the AR: "severe chronic low back pain, anxiety and depression." Physical Impairment

In the MR and the AR, the GP reported: • In terms of the appellant's health history, the appellant's lower back pain became much more exacerbated one year ago "such that she could no longer work .... She tried very hard to work but the lower back pain has been unrelenting despite treatment (physiotherapy, analgesics) and interventional therapies- such as facet joint injections." The GP also wrote that "the pain makes it very difficult for her to sit or stand for longer than 20 to 30 minutes. She cannot bend at her waist to do tasks at ground level. She cannot carry anything heavier than about 1 O lbs." • The appellant does not require any prostheses or aids for her impairment. • In terms of functional skills, the GP reported that the appellant can walk 2 to 4 blocks unaided on a flat surface, climb 5 or more steps unaided, lift 2 to 7 kg. (5 to 15 lbs.) and remain seated less than 1 hour, with a note added by the GP with respect to remaining

seated: "less than 30 minutes."

• The appellant is not restricted with her mobility inside the home and she has continuous restrictions with her mobility outside the home. • In the AR, the appellant is assessed as being independent with walking indoors (GP note: "but very slow- depends on level of pain"). The appellant takes significantly longer than typical with walking outdoors. The appellant also takes significantly longer with climbing stairs, standing, lifting (GP notes: "limited to less than 7 kg."), and for carrying and holding. • In the section of the AR relating to assistance provided, the GP indicated that no assistance is provided through the use of an assisted device and no equipment is required that is not currently being used, and the GP noted "N/A" or not applicable.

In the Medical Imaging Report dated June 21, 2016 relating to X-Rays of the appellant's thoracic spine, lumbar spine and sacrum, the physician indicated the following: • Regarding the sacrum, that there are "no aggressive osseous abnormalities present . there is symmetric mild SI joint degenerative changes which is slightly more progressive on the right side peri." • Regarding the thoracic spine, "alignment is normal. Mild multilevel degenerative disc changes are present. Vertebral body heights are preserved." • With respect to the lumbar spine, " there is grade 1 retrolisthesis of L4-L5 with associated disc space facet spondylosis. Vertebral body heights are preserved. Severe L5/S1 disc space and facet arthrosis is present likely resulting in neural foraminal and central canal compromise. Further assessment with CT or MRI can be performed."

In the Medical Imaging Report dated September 2, 2016 relating to a CT scan of the appellant's lumbar spine, the physician indicated that there are "degenerative changes at the L4-5 and L5 S1 levels, as described," "minimal bulging of the annulus of the L4-5 disc. No focal disc herniation is noted at the levels examined. There is no significant central spinal stenosis," and "mild narrowing involves the L5 nerve root exit foramina bilaterally due to marginal osteophytes."

In the Medical Imaging Report dated November 12, 2017 relating to an MRI of the appellant's lumbar spine, the physician indicated an overall impression of "moderate lower lumbar spondyliotic change as outlined."

In the hospital report from the spine clinic dated January 15, 2018, the physician indicated that a review of the MRI imaging report of November 12, 2017 revealed "at L3-4 there is a mild diffuse disc bulge which is slightly more prominent in the left paracentral location. This causes minimal posterior displacement of the traversing left L5 nerve root. At L5-0S1 there is a mild disc height loss with Modic type 2 endplate changes. There is a mild diffuse disc bulge causing some moderate to marked bilateral foraminal narrowing with compression of the exiting L5 nerve roots bilaterally." The recommendation was for "conservative management", to follow up with a physiotherapist and possibly pursue trial of a right L5 selective nerve root block.

In the letters regarding the facet injections, the anesthesiologist indicated that the appellant's pain was "reduced by 50%" after the May 24, 2018 treatment and that, at the May 31, 2018 treatment the appellant's "pain is significantly decreased" and she is "able to sit for longer oeriods of time."

In the letters dated January 31, 2019, the GP who completed the MR and the AR indicated that: • The appellant was seen and she has "moderate to severe low back pain with the symptoms in the lower extremities. At this point in time she is unable to work until further assessment investigations." • The appellant has been his patient since 2012 and she suffers from a number of conditions. • In the last year, the appellant has been unable to work due to the severity of her pain condition and she is now being considered for surgery.

In her self-report, the appellant indicated: • She has chronic lower back pain with right side sciatica. • She is unable to work or to perform any job duties such as lifting or carrying heavy objects. • Her need to change body positions interferes with work. She is unable to sit or stand for prolonged periods of time and this causes discomfort that affects her ability to do any job. • The pain worsens when bending or stretching. She gets muscle spasms and tightness in her lower back, pelvis and hips. She has nerve and muscle pain. • The pain keeps her from doing simple things like walking, exercising, bending, cleaning, and cooking. • She is unable to stand or sit for longer than 30 minutes. The pain worsens after prolonged sitting or standing. • She has difficulty standing up straight, walking, or going from standing to sitting. In the letter with her Request for Reconsideration, the appellant wrote: • Her back is "wrecked" and she has severe lower chronic back pain, compressed disc lower lumbar, which cause direct pressure to the sciatic nerve. Sciatic damage "is some of the most severe pain a human being can feel." • Outside the debilitating pain, she also has a legitimate mobility limitation because of the same problems. She is "forced to walk at a deep stoop, can't stand for more than 1 O to 15 minutes at a time and have to sit at very specific angles so as not to irritate the nerve and send myself through hours of excruciating pain," and she has "to get facet joint injections for the rest of my life," which "makes employment impossible for me."

Mental Impairment In the MR and the AR, the GP reported: • In terms of the appellant's health history, from the interactions with the appellant the GP has "diagnosed her with generalized anxiety disorder, but it had not been disabling until about 1 year ago when her lower back pain became much more exacerbated such that she could no longer work." • The appellant has difficulties with communication identified by the GP as "other" and "somewhat difficulties at times with communication as she becomes too anxious and tearful." • The appellant has significant deficits with her cognitive and emotional functioning in the areas of memory, emotional disturbance, motor activity and attention or sustained concentration. The GP provided comments that "at times the above are sionificant due

to her anxiety and depression particularly when she is having a lot of pain." • The appellant is not restricted in her social functioning. • The appellant has a good ability to communicate in reading, writing and hearing, and she has a satisfactory ability with speaking. • With respect to the section of the AR relating to daily impacts to the appellant's cognitive and emotional functioning, the GP assessed a major impact in the area of emotion and moderate impacts to of bodily functions, attention/concentration, motor activity and language, with "disorganization of speech" emphasized. There are minimal impacts in the areas of executive, memory, and motivation. There are no impacts to the remaining 6 listed areas of functioning. The GP did not provide any additional comments. • For social functioning, the appellant is independent with making appropriate social decisions, with developing and maintaining relationships, interacting appropriately with others and securing assistance from others. The appellant requires periodic support/supervision from another person with dealing appropriately with unexpected demands (GP note: "due to her anxiety, and depression, she takes longer to make a decision"). • The appellant has very disrupted functioning in her immediate social network. The GP wrote that "people in her life make her feel like she's the problem and stigmatize her.

She really tries to interact normally, but overall feels a lot of social isolation." The appellant has good functioning in her extended social networks. • Asked to describe the support/supervision required to maintain the appellant in the community, the GP left this section incomplete.

In her self-report, the appellant wrote: • The pain is putting stress on her body, both mentally and physically, causing depression. • The pain affects everything that she does from work to play and ultimately her quality of life.

Daily Living Activities (DLA) In the MR and the AR, the GP reported: • The appellant has not been prescribed medication and/or treatment that interfere with her ability to perform DLA. • The appellant is not restricted with several DLA, specifically: personal self care, meal preparation, management of medications, daily shopping, mobility inside the home, use of transportation, management of finances, and social functioning. • The appellant is continuously restricted with basic housework and mobility outside the home. Asked to describe the assistance that the appellant requires with DLA, the GP wrote: "she manages to do most of DLA slowly through the day and spreads out over course of the week. She cannot do all the activities on one day due to persistent, unrelenting low back pain. She has to have her children or mother help with many activities and household tasks." • For the move about indoors and outdoors DLA, the appellant is independent with walking indoors (GP note: "but very slow- depends on level of pain") and takes significantly longer than typical with walking outdoors. • For the personal care DLA, the appellant is independent with the tasks of grooming, feedinq self and reaulatina diet. She takes siqnificantlv lonaer than tvoical with dressina

(GP note: "takes at least 3 to 4 times longer to dress below the waist"), bathing, toileting, and transfers in/out of bed and on/off chair (GP note for transfers: "takes 2 to 3 times longer than someone without back pain"). • Regarding the DLA of basic housekeeping, the appellant takes significantly longer than typical with doing laundry and basic housekeeping, with a note by the GP that it is "hard to carry large loads. Has to carry multiple smaller loads. Unable to bend over for vacuuming and has her mother help out." • For the shopping DLA, the appellant is independent with all tasks with the exception of carrying purchases home, for which she requires periodic assistance from another person and the GP wrote "depends on how much she buys and how heavy they are. Gets help from family." Specifically, she is independent with the tasks of going to and from stores, reading prices and labels, making appropriate choices and paying for purchases. • The GP commented that the appellant's "children or mother may help out with some housework, shopping and carrying things." • Regarding the meals DLA, the appellant is independent with meal planning and safe storage of food. She takes significantly longer than typical with the tasks of food preparation and cooking. The GP explained that it "takes much longer than it would if she had no pain as she has to change her body position frequently from sitting to standing and sitting again." • For the pay rent and bills DLA, the appellant is independent with all tasks, including banking and budgeting. • Regarding the medications DLA, the appellant is independent with all of the tasks, specifically: filling/refilling prescriptions, taking as directed, with safe handling and storage. • For the transportation DLA, the appellant is independent with using public transit (GP note: "unknown as she drives") and takes significantly longer than typical with getting in and out of a vehicle (GP note: "takes at least 3 times longer than someone with no problem"). The GP indicated that the task of using transit schedules and arranging transportation is not applicable to the appellant's situation.

In her self-report, the appellant indicated: • The pain keeps her from doing simple things like walking, exercising, bending, cleaning, cooking. • She is unable to bend down to put her pants or shoes on orto bathe the kids. • Traveling long distance causes severe lower back pain. • The pain affects everything she does, from work to play and ultimately her quality of life. In the letter with her Request for Reconsideration, the appellant wrote that she has been unable to work for a year and she needs money for her family to live on.

Need for Help The GP reported in the AR that the appellant receives help from family and wrote that "her children and mother try to help within their abilities." The GP indicated that the appellant does not use anv assistive devices to help compensate for her impairment and no equipment is

needed. Additional information In her Notice of Appeal dated February 25, 2019, the appellant expressed her disagreement with the ministry's reconsideration decision and wrote that she has a severe condition with her chronic lower back pain that has disabled her from working. Her personal life has been drastically affected. Her recent CT Scan on February 12, 2019 states that her lower back is getting worse and the GP mentioned to her on February 20, 2019 that she has severe arthritis on her L5-S1 lumbar spine. As well, there is severe bilateral foraminal narrowing that limits her ability to perform every day activities due to severe pain, inflammation and discomfort.

Prior to the hearing, the appellant provided additional documents, specifically: 1) Medical Imaging Report dated February 12, 2019 relating to a CT Scan of her lumbar spine, with the overall impression described as: "multilevel lumbar degenerative changes are worse at L5-S1, where there is severe bilateral foraminal narrowing that is not significantly changed compared to the prior MRI of November 2017. Moderate right foraminal narrowing at L4-5 has/may have progressed slightly compared to the prior studies;" and, 2) Letter dated March 19, 2019 in which the GP who prepared the MR and the AR wrote: • The appellant experiences severe, debilitating pain from degenerative disc disease- lumbar spine and this condition has not been responsive to facet joint injections so her pain is relentless; • Due to severe anxiety, she often has difficulty with communication. This, along with depression, present symptoms that restrict her ability to deal with everyday life. These conditions are exacerbated by pain and inability to get restful sleep. • The appellant is restricted in almost all aspects of her life as well as being unable to work. • The appellant worries about not being able to provide for her children. • The combined effects of the appellant's medical conditions result in her having continuous restrictions with performing her DLA. She is continuously restricted with all activities that involve focusing, standing, walking, bending, twisting, lifting and carrying. These activities include: personal self-care, shopping, laundry, housework, cooking and meal preparation. She needs help and is assisted with most of these activities by her mother and children. • The appellant has significant restrictions with personal self-care and dressing causing her to take an inordinate amount of time to do these activities.

At the hearing, the appellant's advocate stated: • The ministry decided that the appellant does not have a severe mental and physical impairment. The GP wrote in the MR that the appellant "cannot carry anything heavier than about 10 lbs." and the ministry has interpreted this as being able to lift up to 10 lbs. and that this is a lot of weight. • The appellant focuses on her employability because she has worked since she was a teenager and this is a big concern for her. • The ministry considered the treatments that the appellant has tried, including analgesics and facet joint iniections, but these treatments have not worked for the aooellant. The

GP described the appellant's pain as "relentless." • The GP also described the appellant's pain as "severe" and "debilitating" and that is not even considering that the appellant also has a mental impairment. • The appellant has seen a psychiatrist in the past but even if she had not seen a specialist, this should not undermine the opinion of the GP. • The appellant's own statements mention that the pain keeps her from doing the simple things like walking, exercising, bending, cleaning, and cooking. • The GP is not in close contact with the appellant and is not aware of when she requires help with many activities. • The appellant's pain also causes sleep disruptions. • The appellant takes significantly longer with many activities and this indicates a need for assistance although there is no assistance available. She "manages" but that does not mean she does not require assistance. • In the MR, the GP reported that the appellant has continuous restrictions with doing housework and with her mobility outside the home. The GP wrote that the appellant cannot do all of activities on one day because of the pain. It is an indication that that the appellant's impairment is severe when the appellant cannot complete her activities in a normal time period. • Although the GP indicated in the AR that the appellant is independent with walking indoors, the GP also wrote that this is done "very slow" and that it "depends on level of pain." • The GP also specified that the appellant takes "3 to 4 times" longer with the task of dressing and "2 to 3 times" longer with transfers in and out of bed and on and off of a chair. The GP wrote that the appellant's mother "may help out with some housework, shopping and carrying things." The appellant's mother is elderly and is limited herself in how much she can help. • The appellant has no choice but to get things done slowly or they do not get done at all. • For food preparation and cooking, the GP indicated that the appellant has to "change her body position frequently," which is indicative of a person with severe pain. • It is not just the physical pain that should be considered as there are also mental health issues which need to be considered together and not in isolation. • The new letter from the GP indicates that the appellant has continuous restrictions with almost all aspects of her life. The GP has also emphasized the continuous and significant restriction with personal self-care. • The GP indicated that the appellant is assisted with most activities and the need for assistance has been demonstrated. • The GP may not have had much knowledge about filling out the forms when she indicated in the MR that there are no restrictions in most DLA, especially since the report in the AR is that the appellant takes significantly longer with many tasks. • The GP indicated in the MR that the appellant's anxiety has become "disabling." • Although there is a focus on employability, the GP also mentions that the appellant cannot bend at her waist to do tasks at ground level and this would impact several activities even though the activities are not identified specifically. The GP identifies the restrictions that would affect those activities. • Not everyone with severe back pain has an assistive device.

At the hearing, the appellant stated: • Her pain is very severe. • She has a lot of restrictions, especially with her DLA and with her children. She cannot get up in the morning to get one child to school and he has missed many days. • She has not been referred by her GP for home support for help with her DLA. • She has not been hospitalized due to her back pain. • Her pain stays at a rating of 8. The facet injections numb the pain right away but the pain comes back within a day. The next day, her pain will be back to a rating of 8 or 8.5. • The pain gets worse with sitting or standing, and especially when she is sleeping. She cannot get enough sleep. • Her GP will be referring her for surgery. The ministry relied on the reconsideration decision as summarized at the hearing. Admissibility of Additional Information The ministry did not raise an objection to the admissibility of either document. The advocate argued in favor of admissibility on the basis that the letter from the GP dated March 19, 2019 identified continuous restrictions that are important to the Tribunal decision and the Medical Imaging Report dated February 12, 2019 confirms the severe bilateral foraminal narrowing that was information provided in documents before the ministry at reconsideration. The panel considered the Medical Imaging Report as confirming the information in the previous reports and a comparison was made with the November 2017 report and was, therefore, in support of, and tending to corroborate, the investigations of the medical conditions referred to in the PWD application which was before the ministry at reconsideration. Therefore, the panel admitted this additional information in accordance with Section 22(4)(b) of the Employment and Assistance Act. However, the panel did not admit the letter from the GP dated March 19, 2019 as the GP provided information in the letter that was contradictory to the information in the MR and AR. For example, the GP reported in the MR that there were no restrictions to any DLA, with the exception of the basic housework DLA as well as mobility outside the home, whereas in the letter the GP indicated that the appellant is continuously restricted with housework as well as several other tasks of DLA, namely: personal self care, shopping, laundry, cooking and meal preparation and for which she needs assistance with "most" of these activities. In the AR, the GP reported that the appellant only required periodic assistance with the task of carrying purchases home when shopping. The panel finds that the information in the GP's letter changes the character of the appellant's application and that the ministry has not had an opportunity to consider this evidence. As the information was not before the ministry at reconsideration and was not in support of information before the ministry at reconsideration, the GP's letter does not meet the requirements of Section 22(4)(b) of the Employment and Assistance Act.