Ministry of Social Development and Poverty Reduction

I APPEAL NUMBER PART C - DECISION UNDER APPEAL The decision under appeal is the Ministry of Social Development and Poverty Reduction (the ministry) reconsideration decision dated August 6, 2019 which found that the appellant did not meet four 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. However, the ministry was not satisfied the evidence establishes that:

• the appellant has a severe physical or mental impairment; • in the opinion of a medical practitioner or nurse practitioner, his impairment is likely to continue for at least 2 years; • 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.

The ministry also determined that the appellant is not in any of the classes of persons set out in section 2.1 of the Employment and Assistance for Persons with Disabilities Regulation who may be eligible for PWD designation on alternative grounds.

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

I APPEAL NUMBER PART E-SUMMARY OF FACTS 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 April 25, 2019, a medical report (MR) dated April 25, 2019 completed by a general practitioner (GP) who met the appellant for the first time to complete the report, and an assessor report (AR) dated April 24, 2019 and completed by a social worker (SW) who has known the appellant for 2 weeks and has met with him 2 to 10 times.

The evidence also included an amended copy of the MR that was initialed by the GP, an amended copy of the AR initialed by the SW, and the appellant's Request for Reconsideration dated July 22, 2019.

Diagnoses In the MR, the GP diagnosed the appellant with scoliosis, depressive disorder and anxiety disorder, all with unknown dates of onset. Asked to describe the appellant's mental or physical impairments that impact his ability to manage his daily living activities (DLA), the SW wrote in the AR: "anxiety, depression, scoliosis, insomnia, cervical spinal damage from bike accident, 2 broken vertebrae, severe brain injury, migraines, nerve damage in both hands."

Duration In the MR, when asked if the impairment is likely to continue for 2 years of more, the GP crossed off the "yes" or "no" responses and wrote "unknown."

In the amended MR, the GP indicated "yes" the impairment is likely to continue for 2 years or more, and wrote: "patient will have to access treatment with psychiatry at mental health, awaiting referral. Response to treatment might take more than 2 years."

Physical Impairment In the MR, the GP reported: • In terms of his health history, the assessment was difficult because the GP had never seen the appellant before and there were "no medical records available on this patient" and there were no results on a medical investigation of the health authority portal. The assessment was done "according to patient's history" and "patient claims to have been diagnosed with scoliosis at an early age. According to patient and social worker, the patient's scoliosis and degenerative spine disease have significantly impaired the patient's functional ability. Patient was able to walk unassisted in office with no gait impairment." • The appellant does not require any prostheses or an aid for his 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 under 2 kg. (under 5 lbs.) and remain seated 1 to 2 hours. • "As per patient's history," the appellant is continuously restricted with his mobility inside and outside the home. • In the additional comments to the MR, the GP wrote: "difficult assessment as this is patient's first visit to clinic and there are no medical records available on patient."

I APPEAL NUMBER In the AR, the SW indicated: • The appellant is assessed as requiring periodic assistance from another person and taking significantly longer than typical with walking indoors (note: "3 to 5 times slower"), walking outdoors (note: "100 meters max"), climbing stairs (note: "takes 3 to 5 times longer"), standing (note: "back pain/ knees weak"), lifting (note: "5 lbs./ pain, numbness, difficulty grasping things," and carrying and holding (note: "2 lbs."). The SW also noted: "damage more significant in right hand but both hands." • In the section of the AR relating to assistance provided, the SW indicated that none of the listed assistive devices are used by the appellant.

In the amended AR, the SW added that for walking outdoors, "some days" the appellant can walk "up to 2 blocks."

In his self-report, the appellant wrote: • He was diagnosed with scoliosis in by back along with "two exploded vertebrae" in his neck, • He is unable to lift anything heavy. • Turning his head more than a few degrees left or right causes severe, debilitating migraines. • He slipped and cut his knuckles on his right hand, severing nerves and tendons which have left his right hand almost completely useless. He is unable to hold more than a few pounds and he is constantly dropping even the lightest things like cutlery or other small, light objects. • He has severe pain in his knees from sporting accidents and motor vehicle accidents. • He has had nerve damage in his left hand since he broke both bones in his forearm near the elbow, his elbow was fused and he still has limited use of his left arm and hand. • He recently rebroke his two lower floating ribs on his right side just from arching his back too far while trying to reach with his left hand, and also rebroke a rib on his left side.

Mental Impairment In the MR, the GP reported: • In terms of the appellant's health history, "the patient seemed anxious with depressed mood in office. The patient was asked to complete a PHQ9 and GAD? questionnaire that were difficult to interpret in light of current situation. However, PHQ9 scored 23 and the GAD? scored 20. According to patient he has been on treatment for depression and anxiety in the past but was unable to tolerate the medications due to increased suicidal ideation." • The appellant has no difficulties with communication. • The appellant has significant deficits with his cognitive and emotional functioning "as observed during office visit" in the areas of emotional disturbance, motivation, motor activity, and attention or sustained concentration. • The appellant is not restricted in his social functioning. In the amended MR, the GP added: • The annellant needs to access treatment with osvchiatrv at mental health and he is

I APPEAL NUMBER awaiting a referral. • The appellant also has significant deficits with his cognitive and emotional functioning in the areas of executive and memory. • The appellant is continuously restricted in his social functioning. The GP wrote: "depression and anxiety leads to isolation, unable to interact with others and finds communication difficult due to anxiety."

In the AR, the SW indicated: • The appellant has a good ability to communicate in speaking, satisfactory ability with hearing (note: "70% deaf in right ear") and poor ability with reading (note: "poor retention") and writing (note: "right-handed ???/ chronic pain"). The SW noted that the appellant did not complete high school and is "overwhelmed by information quickly." • With respect to the section of the AR relating to daily impacts to the appellant's cognitive and emotional functioning, the SW assessed major impacts in most areas, specifically: bodily functions, emotion (note: "panic attacks"), impulse control (note: "fidgets continuously"), attention/concentration, executive, memory (note: "difficulty processing/ retaining new information"), motivation, motor activity, language, other neuropsychological problems and other emotional or mental problems (note: "easily frustrated"). There are moderate impacts assessed in the areas of consciousness and psychotic symptoms (note: "PTSD symptoms"). The SW commented that the appellant has insomnia and broken sleep and averages 4 hours per night. He has always struggled with ADHD symptoms and poor ability to focus, anxious, difficulty following through, not always recognizing consequences. Many issues of trauma as a child. • For social functioning, the appellant requires periodic support/ supervision from another person with making appropriate social decisions (note: "socially withdrawn"), with developing and maintaining relationships (note: "low self esteem"), interacting appropriately with others (note: "isolates, avoids), and securing assistance from others (note: "procrastinates due to anxiety"). The appellant requires continuous support/ supervision from another person with dealing appropriately with unexpected demands,

with a note by the SW that this "increases anxiety that is already significant." • The appellant has marginal functioning in both his immediate and her extended social networks. The SW commented that the appellant has "3 panic attacks a month." • Asked to describe the support/supervision required to maintain the appellant in the community, the SW wrote counselling. The SW added that the appellant "avoids anti­ depressants due to suicidal thoughts when taking them."

In his self-report, the appellant wrote: • Mentally, he has suffered from severe anxiety, depression, and panic attacks. • He experienced physical abuse as a child. • With not being able to take care of himself physically or financially, his anxiety is 'through the roof.' Simple things like opening the door to let his pet out are a huge struggle at times, let alone going to, or even thinking about, being in public places, which are extremely difficult.

Daily Living Activities (DLA) In the MR, the GP reported:

I APPEAL NUMBER • The appellant has not been prescribed medication and/or treatment that interfere with his ability to perform DLA. • The GP noted "as per patient's history," the appellant is continuously restricted with most of the DLA, specifically he is restricted with performing the DLA of personal self care, the meal preparation DLA, the basic housework DLA, the daily shopping DLA, the move about indoors and outdoors DLA, the use of transportation DLA, and the management of finances DLA. Regarding the degree of restriction, the GP wrote that the appellant "claimed to be restricted with daily shopping, however patient is able to do monthly grocery shopping by himself." • The appellant is not restricted with the DLA of management of medications. In the AR, the SW reported: • The appellant requires periodic assistance from another person and takes significantly longer than typical with performing many tasks of DLA, specifically: the walking indoors and outdoors DLA ("3 to 5 times slower/ 100 meters max"), the personal care DLA (dressing- "numb hands", grooming- "pain takes 3 to 5 times longer", bathing- "1 to 2 times a week takes 3 to 5 times longer", toileting- "bloating, cramps, difficulty with bowel movements", feeding self- "difficulty holding fork occasionally", regulating diet, transfers in/out of bed- "30 minutes approximately", and transfers on/off chair- "needs a sturdy chair, ergonomic support"), the basic housekeeping DLA- "overwhelming, needs help, even dishes takes 7 to 10 times longer" (including laundry- "difficulty lifting"), the shopping DLA (going to and from stores- "needs parking placard", reading prices and labels- "buys familiar foods, difficulty reading all information", paying for purchases­ "crowds further anxiety, avoids lineups", and carrying purchases home- "2 lbs. from building to car"). The appellant is independent with performing the task of making appropriate choices when shopping and he also uses an assistive device for his transfers on/off chair. The SW commented that "even minor physical tasks further pain and take 5 times longer." • For the meals DLA, the appellant is independent with meal planning and safe storage of food and requires periodic assistance from another person and takes significantly longer with the tasks of food preparation- "extremely difficult ?? open jars, cut food, etc.", and cooking- "difficulty lifting/?? Make easy meals etc. 1 time a day.". • Regarding the pay rent and bills DLA, the appellant is independent with budgeting and requires periodic assistance from another person and takes significantly longer than typical with banking- "online banking due to anxiety" and with paying rent and bills­ "online.'1 • The appellant is independent with performing all of the tasks for the medications DLA (filling/refilling prescriptions, taking as directed, and safe handling and storage). • For the transportation DLA, the appellant requires periodic assistance from another person with the tasks of getting in and out of a vehicle- "takes 3 to 5 times longer, depending on prior activity," and using transit schedules and arranging transportation­ "difficulty initially." The appellant requires continuous assistance from another person with the task of using public transit- "unable due to anxiety." The SW commented that the appellant "lost 40 lbs. within last year due to poor diet and difficulty preparing food, chronic pain, stress, nausea."

I APPEAL NUMBER In the amended AR, the SW added: • The appellant shops approximately one time per month when he is having a better day, although all days he struggles. • After shopping, he is unable to do much more as he feels stiff and in worse pain. In his self-report, the appellant wrote: • Even doing simple things like preparing food, doing dishes, or house chores are a struggle. • Being in public places is extremely difficult. Need for Help Asked in the MR what assistance the appellant needs with DLA, the GP left this section blank. In the AR, the SW indicated that the appellant does not receive help for DLA and he "wants to do counselling but at this time cannot afford the gas." For help required where none is available, the SW wrote "cooking, cleaning, counselling." None of the listed assistive devices were identified by the SW as routinely used by the appellant to compensate for his impairment.

Additional information In his Notice of Appeal dated August 15, 2019, the appellant expressed his disagreement with the ministry's reconsideration decision and wrote that his physician and assessor made a qualified, appropriate assessment. Although they had limited medical information, both have extensive experience dealing with disabilities. The ministry denial argues that fact. Prior to the hearing, the appellant provided the following documents:

1) Emergency Record dated October 16, 1981 with a diagnosis of a fractured left radius; 2) Outpatient Record dated November 6, 1981 with an injury to the appellant's left forearm, removed cast; 3) Consultation and Operation Report dated June 9, 1982 regarding an emergency right orchiopexy and right inguinal herniotomy; 4) Discharge Summary dated July 20, 1982 following a herniotomy; 5) Imaging Report of the appellant's left elbow dated February 7, 1987; 6) Emergency/ Outpatient Record relating to an accident on February 27, 1987 with an injury to the appellant's left elbow; 7) History Sheet and Consultation and Operation Reports dated March 2, 1987 regarding a fracture of the left humerus as a result of a fall; 8) Consultation and Operation Reports dated March 6, 1987 regarding an injury to the appellant's left elbow from a fall; 9) Discharge Summary dated April 14, 1987; 10)Emergency/ Outpatient Record dated September 3, 1987 regarding an injured left elbow, ribs due to a sporting accident and a diagnosis of soft tissue injury; 11)Emergency/ Outpatient Record dated February 23, 1988 regarding tantrums, with threats of self harm, with a diagnosis of behavior disorder; 12)Emergency/ Outpatient Record dated April 30, 1993 regarding an injured mouth due to an altercation; 13)Discharge Summary dated May 11, 1994 regarding a sporting accident that resulted in a fractured mandible and multiple lacerations to the face and lips as well as multiple abrasions;

I APPEAL NUMBER 14)Operative Report dated May 13, 1994 for fractured mandible and multiple facial lacerations; and, 15)The appellant's written statement dated August 15, 2019.

At the hearing, the appellant's advocate, who was the SW who completed the AR, stated: • The appellant has been confused by the whole process before the Tribunal. • She sent a letter to the doctor and spoke to the doctor when the appellant was in her office. They had a lengthy conversation and the doctor changed her assessment of the severity of the appellant's mental impairment. She referred the appellant to mental health and added other areas of significant deficit to the appellant's cognitive and emotional functioning. • She observes that the appellant has been shaking the whole time through the hearing because of his anxiety. • She saw the appellant more than twice to complete the AR and she stands by her report. It took approximately 4 hours for her to complete the AR. • The doctor did not see the appellant walking much and the advocate's assessment is that he is "stiff as a board." She acknowledges that this may be at least partially due to his anxiety. He also has difficulty with his hands and she could tell he was in pain. • She has over 16 years experience dealing with PWD applicants and assesses that the appellant has lots of barriers. The doctor recognized the appellant's issues after talking with her. • The appellant is receiving counselling and the doctor wanted to refer him to a psychiatrist. • The appellant's physical and mental impairments have a cumulative effect because his physical problems have an impact on his mental health. • The appellant needs help with cooking and cleaning. • The appellant, like many, had trouble getting the PWD forms filled out. • While she does not know the details of the scoring of the PHQ9 test at 23 and the GAD? at 20, in her conversations with the GP she stated that the appellant is severely depressed and severely anxious. • The reference in the ministry decision to frequency and duration fails to take into account that there are certain activities that may only be performed by the appellant once a month, such as grocery shopping. Also, if it normally takes 15 minutes to cook a meal, for a person to take 45 or 60 minutes to cook a meal, this is significant.

At the hearing, the appellant stated: • He has not had his medical records and this has been a problem for him. He has never been one to whine and complain and did not go to the doctor for a long time. • He was diagnosed with scoliosis as a child but there is nothing that can be done for it except to take over-the-counter pain medication and try to stay as active as possible. Since he did not go to the doctor for over 7 years, his files were deleted. He was able to obtain his records from a particular hospital from when he was a child. He has had depression from when he was a young child. • He had a hospital admission where his aunt signed for him because his mother could not deal with him. • He has had a few accidents since Januarv and he mostlv iust sits at his comouter and

I APPEAL NUMBER does not even open the blinds of his place. • As a result of his injuries, it is hard for him to walk from the front door to the garbage can, and it is even hard for him to open the door and get to that point. • Because of his scoliosis, it is hard to stand at the sink to do dishes and his apartment is "disgusting" because he is not keeping up and it is embarrassing for him to admit it. • His hands are severely painful. • His diet has been diminished because he is behind in his rent and other bills. He has become very weak and he has sprained his wrist just trying to peel potatoes. He mostly buys frozen vegetables. • With his anxiety, he experiences panic attacks. • He had a bad sporting accident when he was a teenager and his jaw was wired shut. This accident affected his ability to turn his head to one side or the other. • The biggest problem is getting time with the doctor. She does not see anything wrong with his neck but he does not understand how it could have gotten better. She has not ordered any X-Rays or further testing. He also mentioned that his grandmother had a hereditary bone condition and he has not been tested for it. • When he was a child, he saw a psychiatrist for several years. He suffers from PTSD (Post Traumatic Stress Disorder) as a result of his sporting accident as a teenager. • He goes shopping when it is late at night so there are fewer people. He uses the shopping cart like a walker, and he needs help carrying groceries. • He called many doctors until he found one who would fill out the PWD reports. • He does not like to take medications because they need to be monitored as a result of the potential negative side effects and he is only able to get to appointments once per month. He has to make difficult choices about spending money to make the lengthy drive to the appointments. • He lives alone and only showers 1 or 2 times per month. He cannot afford the Hydro bill to shower more. He buys frozen foods that are easy to prepare since he has difficulty cutting food. He does not get any assistance and he does not like to ask for assistance.

He used to "suck it up," and he is realizing he needs to accept help. He also needs to stay active. He talks to a counsellor every week. • He is in pain every day, although he finds it a little worse when it rains. When he tries to do too much, he is in more pain for several days afterwards. If he walks a block or two, for example, he can hardly walk at all for 2 to 3 weeks. All the accidents he has had

have "added up." • Sometimes he gets dizzy just getting up to get a cup of coffee. The ministry relied on the reconsideration decision, as summarized at the hearing. Admissibility of Additional Information The ministry did not object to the admissibility of the additional documents. The panel considered the additional documents and admitted the appellant's written statement and the medical records as being in support of, and tending to corroborate, the appellant's medical conditions as 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.

APPEAL NUMBER PART F - REASONS FOR PANEL DECISION The issue on appeal is whether the ministry's reconsideration decision, which found that the appellant is not eligible for PWD designation, was reasonably supported by the evidence or was a reasonable application of the applicable enactment in the circumstances of the appellant. The ministry found that the evidence does not establish that the appellant has a severe mental or physical impairment that, in the opinion of a medical or nurse practitioner, is likely to continue for at least 2 years and that his DLA are, in the opinion of a prescribed professional, directly and significantly restricted either continuously or periodically for extended periods. Also, it could not be determined that, as a result of those 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. The criteria for being designated as a PWD are set out in Section 2 of the EAPWDA as follows: