Ministry of Social Development and Poverty Reduction

r APPEAL NUMBER 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 June 17, 2019, 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 and duration requirements, but was not satisfied that:

• the evidence establishes that the appellant has a severe physical or mental impairment; • the appellant's daily living activities (DLA) are, in the opinion of a prescribed professional, directly and significantly restricted either continuously or periodically for extended periods; and

• as a result of those restrictions, the appellant requires an assistive device, the significant help or supervision of another person or the services of an assistance animal to perform DLA.

PART D - RELEVANT LEGISLATION EAPWDA, section 2 Employment and Assistance for Persons with Disabilities Regulation (EAPWDR), section 2

I APPEAL NUMBER PART E - SUMMARY OF FACTS On March 6, 2019 the ministry received the appellant's PWD application comprised of a Medical Report dated February 23, 2019 .(MR) and an Assessor Report dated February 22, 2019 (AR) completed by the appellant's general practitioner (the "Physician") on February 23, 2019, and the appellant's self-report (SR) dated February 21, 2019.

The appellant also provided the following: - MRI Cervical Spine dated May 8, 2018 - Head Scan dated January 26, 2018 - Report of a neurologist (the "Neurologist") dated January 8, 2019 - Report of another neurologist (the "Second Neurologist") dated January 24, 2019 The appellant's request for PWD designation was denied on March 26, 2019. On May 22, 2019 the ministry received the appellant's request for reconsideration form (RFR) dated May 20, 2019. The appellant also provided a letter dated May 28, 2019 (the "Letter") setting out the reasons she disagreed with the ministry's decision and indicating inaccuracies in the information provided by the Physician in the MR and the AR. The appellant also provided a copy of Section 3 -Assessor Report indicating the appellant's own assessment of her cognitive and emotional functioning and DLA (the "Appellant AR").

On June 17, 2019 the ministry completed its review. On July 3, 2019 the tribunal received the appellant's Notice of Appeal dated July 2, 2019. Summary of relevant evidence Diagnoses In the MR, the Physician indicates that the appellant has been diagnosed with chronic pain, tension headaches (date of onset January 2018) as well as anxiety and central sensitization (date of onset March 2018). The Physician indicates that the appellant has been her patient for one year and she has seen her 11 or more times in the past 12 months.

The Neurologist indicates that the appellant has chronic pain, chronic headache, and reactive depression.

The Second Neurologist indicates that the appellant has tension-type headache, possible post­ traumatic headaches with migrainous features, and anxiety.

In the Letter, the appellant states that she is unsure how " ... the diagnosis of "central sensitization" was determined by the Physician, as attached to "anxiety". The appellant states that she was verbally advised that " .. . her condition falls under an umbrella term called central

sensitization since the duration of the length of time severe headaches were still being suffered, that it could no longer be considered oost-concussive disorder". The annellant states that she

I APPEAL NUMBER was never sent for testing for this diagnosis but given information on how to live with chronic pain. The appellant says that she was advised that she has characteristics of some very serious and devastating illnesses such as MS, chronic fatigue, fibromyalgia, and lupus.

In the Letter the appellant states that she has had IMS injections, nerve block injections, physiotherapy, acupuncture, massage therapy, and chiropractic treatment and that despite every effort to find relief she has not experienced any positive results and that her condition has worsened due to the commutes to the appointments which escalated her pain experience and fatigue.

In the Letter, the appellant says that she has chronic overall body pain, chronic digestion issues, chronic lower abdominal pain, unbearable daily tension headaches, and chronic migraine headaches.

Physical Impairment In the MR for Functional Skills, the Physician indicates that the appellant is able to walk 4+ blocks, can climb 5+ stairs unaided, has no limitations with lifting, and no limitations with remaining seated. In the Health History portion of the MR the Physician indicates that the appellant developed pain after hitting her head on the side of a car in 2017 and that the appellant's symptoms have severely limited her life. The Physician indicates that on days when the appellant is in pain, she is limited to bed or house only, cannot lift or walk, and cannot be around noise.

The Physician indicates that the appellant recently developed episodes of abdominal pain that cause her to feel sick and unable to eat.

In Part F - Additional Comments of the MR, the Physician indicates that the appellant is living in fear that her pain will dominate her life and when she gets pain her fear is confirmed. The Physician indicates that the appellant has receded into herself and has become severely disabled despite no physical manifestations of pathology (see CT and MRI scan).

The MRI indicates that the appellant had a small amount of fluid within the anterior C1 and C2 articulation anteriorly but there was no evidence of any post traumatic injury to the cervical spine and no evidence of a facet injury or acute disc pathology.

The CT Head Scan findings were normal with no acute intracranial injury or haemorrhage. In the AR, the Physician indicates that the appellant is independent with walking indoors, walking outdoors, climbing stairs, standing, lifting, and carrying and holding. The Physician indicates that all aspects of mobility and physical ability are fine until the appellant has abdominal pain then she finds walking painful and she bends over.

The Neurologist indicates that the appellant reported having " . . . constant pain in the top of her head and the occiput but can have headaches and pain everywhere in the body'', a little bit of neck pain, and occasional headaches. The Psychiatrist indicates that the appellant reported that she had to ao to emeraencv once in the last vear and when she feels really intense oain

I APPEAL NUMBER she" ... cannot handle anything and has to go lie down in the room". The Neurologist's report indicates that examination of the lumbar spine, flexion extension, paravertebral muscles, straight leg raising, SI joint and hip joints were normal. He notes that the appellant's trapezius was stiff but not overly tender. He also notes that " ... even very gentle touch on the top of the head diffusely on the occiput she perceived as headache".

The Second Neurologist indicates that the appellant reported having "pain at all times, at around 5 or 6 out of 10, but once every month or 2 she gets a severe 1 O out of 1 O headache which will last for a period of 5-14 days". Triggers for this include "doing too many activities" or "walking too much." The appellant reported that her day consists of walking, doing small errands and organizing things around the house and her exercise includes walking, grocery shopping and light squats.

In the SR, the appellant states that she has moderate to severe daily headaches that prevent her from doing anything such as self-help, traveling, attending school, or working. She states that she has aches and pains all over her body from head to toe and is sensitive to touch, sounds, lights and other sensory messages. The appellant says that her lower abdominal pain is so severe that she can't move some days and it makes her nauseated. Although she is physically able to complete certain tasks, her pain is aggravated and becomes more unmanageable by over-working herself. On very bad pain days (over 50% of the time) it is hard for her to attend doctors' appointments, physio, acupuncture or any other commitments.

In the RFR the appellant says that she spends 80-85% of time in bed and that she lives in constant pain.

In the Letter, the appellant says that she hit her head getting out of a car, fully jarring her head into the upper door jam of a car. The appellant says that she did not hit her head on the side of a car as reported by the Physician.

In the Letter the appellant says that the level of independence reported in the functional skills represents her ability when she is well but that is only 10-15% of the time. The appellant says that the MR should be a measurement of the days she suffers from the most pain, which is minimum 85% of the time. The appellant says that when she is unwell, she is bed-ridden in a dark, quiet room.

The appellant says that pain is the main reason for her impairments to DLA. Mental Impairment In the MR, the Physician indicates that the appellant has significant deficits with cognitive and emotional function in the areas of executive, emotional, and attention or sustained concentration. The Physician comments that background anxiety and dysthymia are present all the time and on pain days the appellant's attention and executive function are severely restricted. The Physician indicated that the appellant has no difficulties with communication.

In the Health HistoN oortion of the MR, the Phvsician indicates that on days where the annellant

I APPEAL NUMBER has pain she cannot try to read or complete complex cognitive tasks as the pain gets worse. In the AR, the Physician indicates that the appellant's ability to communicate with speaking, writing, and hearing is good and that her reading is satisfactory (worse with headache).

For Section B, question 4 Cognitive and Emotional Functioning the Physician indicates that the appellant has major impact in the area of emotion, moderate impact to bodily functions and attention/concentration, minimal impact to memory and no impact to consciousness, impulse control, insight and judgment, executive, motivation, motor activity, language, psychotic symptoms, other neuropsychological problems or other emotional or mental problems.

The Neurologist indicates that the appellant reported that she occasionally cries in the morning but denies having any suicidal thoughts. The Second Neurologist indicates that the appellant feels tired, but denied having depression, although the appellant's mother reported that the appellant is depressed. The Second Neurologist recommended that the appellant be seen by a psychologist for support and by a psychiatrist regarding her reactive depression.

The Second Neurologist indicates that the appellant denied significant depression but endorsed anxiety symptoms.

In the Letter, the appellant says that in the MR, for significant deficits with cognitive and emotional function, the box titled perceptual psychomotor (visual spatial) should be checked off too. The appellant says that anxiety is a result of her pain and inability to carry out DLA.

In the Appellant's AR, she indicates that in addition to the impacts noted by the Physician, she has major impact to bodily functions and moderate impact to executive, memory, and language.

In the MR, the Physician indicates that the appellant has not been prescribed any medications that interfere with her ability to perform DLA.

Under the Health History portion of the MR, the Physician indicates that the appellant hit her head on the side of a car in late 2017 and developed pain at the site of the impact, which became debilitating. The Physician indicates that since the development of the pain the appellant dropped out of college, reduced her social circle to just family, finished her job, and limited her recreation to walking.

The Physician indicates that on days when the appellant is not in pain she could lead a normal life, but she is extremely fearful that the pain will return at anytime and so she continues to limit her activities.

In the AR, the Physician indicates that the appellant is independent with all aspects of DLA except with the tasks of bathing and laundry (periodic assistance needed from another person) and using public transit (takes significantly longer as headache gets worse). The Physician comments that headaches cause the appellant to be unable to bathe or wash her hair as her scalp is sensitive, and that headache and abdominal pain prevent her from concentratinQ and

I APPEAL NUMBER conversing with her family. The Physician indicates that there is significant anxiety overlay and that the appellant is tearful and fearful of pain. The Physician also comments that with a headache, any travel makes the appellant feel very sick and transit with noise and lights may induce a headache.

The Physician indicates that the appellant is independent with all aspects of social functioning. The Physician indicates that the appellant has marginal functioning with her immediate social network, noting "with pain" and marginal functioning with her extended social networks.

The Second Neurologist indicates that the appellant reports that her day consists of walking, doing small errands, and organizing things around the house. Her exercise includes walking, grocery shopping and light squats.

In the SR, the appellant states that she is extremely fatigued, and on very bad pain days even small tasks such as brushing her teeth seem impossible. The appellant states that although she is physically able to complete certain tasks, her pain becomes aggravated and more unmanageable by over working herself. She states that her pain has completely affected her life and ability to function normally and she is not able to attend school, social events, or work. She states that on very bad pain days (over 50% of the time) it is hard for her to attend doctors appointments or appointments with other treating practitioners.

In the RFR the appellant says that she spends her days (80 to 85% of the time) in bed and has no social support except for close family.

In the Letter the appellant says that she is independent in the reported DLA but only when not in severe pain, which is only 10-15% of the time. However, the appellant states that she is limited during those times and the activity worsens her condition, making the following days even more difficult. The appellant says she has great difficulty traveling in a passenger vehicle for more

than 10 minutes and has had to cancel many medical appointments. The appellant says she is uncertain why it is "unclear" as to how often the headaches occur as in the SR she indicates that her headaches are daily, days and nights. The appellant says that if this is not reflected in the MR, then it is a deficiency on the part of the Physician.

In the Letter the appellant says that due to the pain she no longer has a social life and is unable to leave the house most days, let alone attend a social function.

In the Appellant's AR, she indicates that in addition to the impacts reported by the Physician, she requires periodic assistance with regulating diet, basic housekeeping, and that she is not able to perform the tasks for the DLA of shopping 80-85% of the time. The appellant indicates that she requires continuous assistance with all tasks of the DLA of meals 80-85% of the time. She also indicates that she takes significantly longer than typical with getting in and out of a vehicle and using transit schedules and arranging transportation. For social functioning the appellant indicates that she has very disrupted functioning with respect to her extended social networks, underlining major social isolation.

Need for Help

I APPEAL NUMBER In the MR, the Physician indicates that the appellant does not require prosthesis or aids for her impairment.

In the AR, the Physician indicates that the appellant's family is supporting her but her parents work so this causes strain. The Physician does not indicate that the appellant uses any assistive devices and she does not have an Assistance Animal.

The Second Neurologist indicates that he encouraged the appellant to actively and aggressively pursue lifestyle modifications such as addressing anxiety, speaking with a counsellor, increasing her DLA, and increasing exercise. He states that Botox injections could be considered but that the appellant does not have insurance or funds to cover the cost. The Second Neurologist prescribed headache medications0

Additional information provided Prior to the appeal the appellant provided a letter from a friend (the "Friend") dated July 17, 2019 indicating that the appellant is not the girl she used to be. The Friend indicates that the appellant was a happy, energetic, playful child, participated in cultural dance and had aspirations of working and an educational degree. The Friend states that they spent much time together over the years and participated with hiking, snowshoeing, excursions, and traveling abroad. The Friend states that it saddens her to see the appellant in her current state and that she wants to see the appellant get the medical attention she needs.

The Friend enclosed a newspaper article about another woman who had a negative experience with the healthcare system and indicates that her situation was similar to the appellant's. The Friend says that the appellant is in need of support, both medical and financial, in order to regain her health.

The appellant also submitted a letter from a hospital health centre dated January 22, 2019 indicating that the appellant has been referred to their complex chronic disease program which provides care to people with symptoms or a diagnosis of chronic fatigue syndrome, fibromyalgia, and/or tick borne illnesses. The letter indicates that due to the high demand of the program, the wait list can be up to two years and at times, longer.

The panel has admitted the letter from the Friend and the letter from a hospital health centre into evidence as they are in support of information and records that were before the ministry at the time of reconsideration, in accordance with section 22(4) of the Employment and Assistance Act. In particular, the letter from the Friend supports the information from the appellant regarding her limitations. The letter from the hospital health centre supports the appellant's referral to a pain clinic.

With the consent of both parties, the hearing was conducted as a written hearing pursuant to section 22(3)(b) of the Employment and Assistance Act.

I APPEAL NUMBER PART F - REASONS FOR PANEL DECISION Issue on Appeal The issue on appeal is whether the ministry's decision to deny the appellant designation as a PWD was reasonably supported by the evidence or was a reasonable application of the applicable enactment in the circumstances of the appellant. In particular, was the ministry reasonable when concluding it was not satisfied that

• a severe physical or mental impairment was established; • the appellant's daily living activities (DLA) are, in the opinion of a prescribed professional, directly and significantly restricted either continuously or periodically for extended periods; and

• as a result of those restrictions, in the opinion of a prescribed professional, the appellant requires help, as it is defined in the legislation, to perform DLA?

Relevant Legislation EAPWDA 2 (1) In this section: "assistive device" means a device designed to enable a person to perform a daily living activity that, because of a severe mental or physical impairment, the person is unable to perform;

"daily living activity" has the prescribed meaning; "prescribed professional" has the prescribed meaning. (2) The minister may designate a person who has reached 18 years of age as a person with disabilities for the purposes of this Act if the minister is satisfied that the person has a severe mental or physical impairment that

(a) in the opinion of a medical practitioner or nurse practitioner is likely to continue for at least 2 years, and

{b) in_the opinion of a prescribed professional (i) directly and significantly restricts the person's ability to perform daily living activities either (A) continuously, or (B) periodically for extended periods, and (ii) as a result of those restrictions, the person requires help to perform those activities. (3) For the purposes of subsection (2), (a) a person who has a severe mental impairment includes a person with a mental disorder, and (b) a person requires help in relation to a daily living activity if, in order to perform it, the person requires

(i) an assistive device, (ii) the sianificant help or supervision of another person, or

I APPEAL NUMBER (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

if qualifications in psychology are a condition of such employment.

I APPEAL NUMBER (3) The definition of "parent" in section 1 (1) applies for the purposes of the definition of "dependent child" in section 1 (1) of the Act.

Alternative grounds for designation under section 2 of Act 2.1 The following classes of persons are prescribed for the purposes of section 2 (2) [persons with disabilities] of the Act:

(a) a person who is enrolled in Plan P (Palliative Care) under the Drug Plans Regulation, B.C. Reg. 73/2015; (b) a person who has at any time been determined to be eligible to be the subject of payments made through the Ministry of Children and Family Development's At Home Program;

(c) a person who has at any time been determined by Community Living British Columbia to be eligible to receive community living support under the Community Living Authority Act:

(d) a person whose family has at any time been determined by Community Living British Columbia to be eligible to receive community living support under the Community Living Authority Act to assist that family in caring for the person;

(e) a person who is considered to be disabled under section 42 (2) of the Canada Pension Pion (Canada).

Panel Decision The legislation provides that the determination of severity of an impairment is at the discretion of the minister, taking into account all of the evidence including that of the appellant. However, the legislation is also clear that the fundamental basis for the analysis is the evidence from a prescribed professional respecting the nature of the impairment and its impact on daily functioning. While the legislation does not define "impairment", the MR and AR define "impairment" as a "loss or abnormality of psychological, anatomical or physiological structure or functioning causing a restriction in the ability to function independently, effectively, appropriately or for a reasonable duration." While this is not a legislative definition, and is therefore not binding on the panel, in the panel's opinion, it reflects the legislative intent and provides an appropriate analytical framework for assessing the degree of impairment resulting from a medical condition.