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 July 11, 2019, which found that the Appellant did not meet two of the five statutory requirements of Section 2 of the Employment and Assistance for Persons with Disabilities Act (EAPWDA) for designation as a person with disabilities (PWD). While the Ministry found that the Appellant met the age requirement and had a severe mental impairment which was likely to continue for at least two years, the Ministry was not satisfied that the evidence establishes that:

• 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 EAPWDA, Section 2

Employment and Assistance for Persons with Disabilities Regulation (EAPWDR), Section 2

APPEAL NUMBER I PART E - SUMMARY OF FACTS The evidence before the Ministry at the time of the Reconsideration Decision included the PWD Application comprised of a Self Report (SR) dated June 20, 2018, a Medical Report (MR) dated January 16, 2019 and completed by a General Practitioner (GP) who has known the Appellant for more than 5 years and has seen the Appellant 2 - 10 times in the past year, and an Assessor Report (AR) also dated January 15, 2019, and also completed by the GP.

The evidence also included: 1. A Request for Reconsideration (RFR) form dated June 12, 2019, which states that the Appellant is requesting an extension of the deadline to file an RFR as the Appellant was under the care of the internal medicine unit of a community Health Authority (HA) and had an appointment with a specialist on June 17, 2019; and

2. An email dated March 6, 2019 from a Ministry adjudicator to the GP indicating that the Ministry required more information to assess the Appellant's application for a PWD designation "in the form of a narrative describing how much longer the applicant takes completing (DLA and) what kind of help (the Appellant) needs". In the email, the adjudicator also asks the GP to:

• Complete the section of the AR which is designed to obtain information from the assessor as to the level of support or supervision required by the applicant to perform certain specified areas of social functioning (e.g. making appropriate social decisions, developing and maintaining relationships);

• Identify whether the applicant was independent in each activity or required periodic or continuous supervision;

• Explain or describe each requirement in more detail, including a description of the degree and duration of the support or supervision required; and,

• Provide any additional comments. The copy of the email included as evidence, in which none of the above details are provided, bears the unattributed handwritten comment "which pt?", possibly in the handwriting of the GP.

Diagnoses The section of the MR in which the prescribed professional, in this case the Appellant's GP, is asked to specify diagnoses relating to the Appellant's impairments, has not been completed. In the section of the MR where the GP is asked to indicate the severity of medical conditions relevant to the applicant's impairment, the GP has written "Severe Anxiety and Panic attacks+".

Mental Impairment The Ministry is satisfied that the information provided establishes a severe mental impairment.

APPEAL NUMBER Physical Impairment The Ministry is not satisfied that the information provided establishes a severe physical impairment. The GP has not provided any indication of a physical impairment in the section of the MR wh_ere the prescribed professional is asked to indicate how the Appellant's medical condition impairs the Appellant's physically. In another section of the MR, the GP has indicated that the Appellant has no restrictions or limitations with respect to the Appellant's ability to walk unaided on a flat surface, how many stairs the Appellant can climb unaided, the Appellant's ability to lift objects, or how long the Appellant can remain seated. The GP has not completed the section of the MR where the prescribed professional is asked to provide any additional information considered relevant to understanding the significance of the Appellant's medical condition, the nature of the Appellant's impairment, and the impact the impairment has on the Appellant's daily functioning.

Where asked in the AR what physical impairments impact the Appellant's ability to manage DLA, the GP has written "see previous".

In the SR, the Appellant indicates a recent diagnosis of thyroid disorder that requires the Appellant to take unspecified medication(s) but does not indicate any resulting physical impairments.

Restrictions in the Ability to Perform DLA In the section of the MR where the prescribed professional is asked where the applicant's medical condition results in impairment, the GP has written "Please refer to client's notes and I can confirm that this is in fact true and legitimate. (The Appellant's) severe anxiety and panic attacks have a severe impact on (the Appellant's) life 100% of/he time. (The Appellant) can't seem to function with DLA or work or productivity'. The GP also indicates that the Appellant has been prescribed medications and/or treatments that interfere with the Appellant's ability to perform DLA, but, despite being asked on the form for an explanation, has not provided any indication as to what interfering medications or treatments have been prescribed or how they interfere with the Appellant's ability to perform DLA. The GP has also indicated that the Appellant's impairment directly restricts the Appellant's ability to perform DLA in the areas of personal self care, meal preparation, management of medications, basic housework, daily shopping, management of finances, and social functioning, but has not indicated whether the restrictions are periodic or continuous, and has not provided any explanations or additional comments in that section of the MR. With regard to impacts on social functioning, in the section of the MR where the prescribed professional is asked to provide any additional information considered relevant to understanding the significance of the person's medical condition, the nature and extent of the person's impairment, and the impact on the person's daily functioning, the GP has written "see previous". The previous comment regarding social functioning skills was "see client notes".

In the AR, the GP states that the Appellant has a good ability to speak, read, write and hear. With respect to whether the Appellant requires assistance in performing DLA, the GP states that the Appellant is independent with respect to all listed DLA in the areas of personal care (except for self feeding, for which the Appellant takes significantly longer than typical), that the Appellant takes significantly longer than typical with basic housekeeping activities, and that the Appellant is independent with all aspects of shopping. Regarding the DLA relating to meals, the GP indicates that the Appellant is independent in

APPEAL NUMBER storing food safely, but that the Appellant takes significantly longer than typical in meal planning, food preparation and cooking. The GP also indicates that the Appellant takes significantly longer than typical in budgeting, paying rent and bills, and filling and refilling medical prescriptions and taking medication as directed. With respect to transportation, the GP indicates that the Appellant is independent in all aspects. In assessing how the Appellant's mental impairment impacts the Appellant's immediate social network (family and friends) and extended social network relationships, the GP has ticked "very disruptive functioning" but has not provided any additional comments.

In the SR, the Appellant writes"/ can't even participate with society' and that they forget doctor appointments, can't keep up with the laundry or keep the house organized. The Appellant also writes "entering a store causes me to have panic attacks, there is too much stimulation and I get anxious and scared. My bills are not getting paid and I fear bankruptcy which adds to my stress level. I have lost jobs because I cannot get out the door on time and I have lost all time management. I feel like I'm spiraling out of control. I also find myself starting something and not being able to finish anything. I have pushed friends away, struggled with relationships and can't even have a phone conversation".

Need for Help In the MR the GP indicates that the Appellant does not require any prostheses or aids for impairment. In the SR, the Appellant wrote "I have the support of my family, my doctor and community volunteers. Without these supports I could not manage my finances or shop for personal needs. My family has encouraged me to seek emotional and mental health support and receive proper counselling in order to support my mental health".

In the AR, the GP has not identified the type or amount of assistance the Appellant requires for any DLA, or provided any additional comments regarding the Appellant's need for help with respect to specified DLA. In the section of the AR where the assessor is asked to indicate the level of support or supervision required by the applicant in social functioning, the GP has not provided any information. Nevertheless, the GP does indicate in the AR that the Appellant receives the help required with DLA from family. As noted above, the GP has also confirmed in the AR that the Appellant's explanation regarding the support required from family, the Appellant's doctor and community volunteers, and the statement that the Appellant could not perform certain DLA without those supports, is" true and legitimatrf'. The GP has not indicated whether the Appellant has an assistance animal.

Additional Information Submitted after Reconsideration In the Appellant's Notice of Appeal (NOA) dated July 23, 2019, the Appellant states that they have recently been under the care of a medical specialist (First Internal Medicine Specialist). Prior to that the Appellant had been without a doctor and the Appellant's health had deteriorated over the past year and a half. The Appellant writes that they had a Magnetic Resonance Imaging (MRI) scan on July 18, 2019 and would be seeing an internal medicine medical team on July 30, 2019. The Appellant states that they have been diagnosed with a "Chronic Thyroid" which has severely impacted the Appellant's ability to perform DLA, and that without the support of the Appellant's family the Appellant would be unable to acquire the necessities of life.

APPEAL NUMBER Together with the NOA, the Appellant also provided a note from the First Internal Medicine Specialist dated June 17, 2019 (First Internal Medicine Specialist's Note) which reads "This patient is currently being followed by internal medicine (First Specialist's name) at (name of HA). (The Appellant) is being treated for a medical issue affecting (the Appellant's) functioning and mood'.

On August 23, 2019 the Appellant provided additional written evidence (the August 23 Submission) to the Tribunal comprising:

• One page note dated August 23, 2019 from the Appellant (August 23 Note) in which the Appellant writes that they had dropped off unspecified paperwork to a rehabilitation medicine specialist (Rehab Specialist), but that the Rehab Specialist was on holidays until early September 2019. The Appellant states that they had an appointment with the Rehab Specialist on September 7, 2019, and that the Appellant was enclosing a second internal medicine specialist's letter (Second Internal Medicine Specialist's Letter) in support of treatment; and

• Second Internal Medicine Specialist's letter, dated August 7, 2019, stating that the Appellant has had severe hypothyroidism since April 2019. The Second Internal Medicine Specialist also states that "(The Appellant) has quite severe symptoms, which have prevented (the Appellant) from ... having normal daily functional lifestyle. (The Appellant's) hypothyroidism has been quite difficult to treat and quite refractory to medications, (the Appellant) has been improving chemically but is not anywhere close to being at target range quite yet. Hopefully as we improve (the) hypothyroidism, (the Appellant's) symptoms will improve as well ... I would anticipate that (the Appellant) would be within the normal range within the next year but (I) cannot give a closer time frame (than) that. Between April 2019 and now ... (the Appellant) has been quite disabled ... "

On September 17, 2019, the Appellant provided additional written evidence (the September 17 Submission) to the Tribunal in the form of a three page letter written by the Rehabilitation Specialist (Rehab Specialist's Letter) dated September 6, 2019. The Rehab Specialist's Letter states that the information provided with the Appellant's application for a PWD designation is incomplete, and (the Rehab Specialist includes with the letter a significant amount of additional information regarding the Appellant's medical condition, severity of impairment, ability to perform DLA and need for help, as set out below.

Rehab Specialist's Knowledge of the Appellant's Diagnosis and Treatment The Rehab Specialist states that the Rehab Specialist has known the Appellant since the Rehab Specialist began providing the Appellant with patient care on April 18, 2019. At that time, the working diagnosis of the Appellant's impairment was carpel tunnel syndrome (CTS}, which the Rehab Specialist describes as severe, adding " ... (the Appellant's) presentation in a more global sense was severe endocrine dysfunction". The Rehab Specialist also states that the Rehab Specialist "originally thought that (the Appellant) might have a pituitary tumor to account for the degree of hormonal dysfunction" and that the Appellant was referred to a medical evaluation clinic where the First Internal Medicine Specialist and the Second Internal Medicine Specialist have also examined the patient.

In summary, the Rehab Specialist provides the following diagnoses in the Rehab Specialist Letter:

APPEAL NUMBER 1. Severe hypothyroidism with median neuropathy at the wrist and a severe form of CTS for which release surgery would likely be ineffective;

2. Affective disorder with depressed mood; and 3. Global anxiety. The Rehab Specialist states that the Appellant is currently on maximal doses of hormone replacement treatment and that "often full recovery is not complete".

Rehab Specialist's Assessment of Mental Impairment The Rehab Specialist writes that the cognitive and emotional dysfunctions of the Appellant's hypothyroid state are underrepresented in the Appellant's application, and the Rehab Specialist provides further evidence of impairment (which the Panel feels is unnecessary to expand upon as the Ministry was satisfied that the information provided establishes that a severe mental impairment exists).

Rehab Specialist's Assessment of Physical Impairment Contrary to the evidence provided by the GP in the MR, the Rehab Specialist indicates that the Appellant's ability to walk unaided on a flat surface is limited to 2 - 4 blocks, that the Appellant can only climb 2 - 5 stairs unaided, and that they can lift a maximum of 2 - 7 kg for frequent lifts and 7 - 16 kg for occasional lifts. The Rehab Specialist agrees with the GP that the Appellant has no limitations in the amount of time that they can remain seated, "provided the seating is supportive". In addition, the Rehab Specialist states that the Appellant is limited in "fine hand functions, grasp, and release", which the Rehab Specialist identifies as direct motor impairments of hypothyroidism and CTS.

Rehab Specialist's Assessment of Restrictions in the Ability to Perform DLA The Rehab Specialist states that the Appellant has "continuing challenges" with the following DLA (additional comments in parentheses): personal care (independent but requiring "an inordinate amount of time to perform these activities"), meal preparation, management of medications, basic housework (all of these activities take longer to perform}, daily shopping (all of these activities take longer to perform), mobility outside the home, and management of finances. In addition, the Rehab Specialist states that all of the above-noted DLA are "affected to a moderate or severe degree".

The Rehab Specialist also disputes the GP's assessment of the Appellant's ability to speak, read, write and hear, which the Rehab Specialist assesses as satisfactory to poor depending on the Appellant's level of fatigue, adding "(the Appellant) cannot take in new learned information in a cohesive manner or efficiently. (The Appellant) is relying heavily on assistive methods to support (their) memory".

Rehab Specialist's Assessment of Need for Help The Rehab Specialist states that the Appellant is receiving family support to be functional in all DLA. The Rehab Specialist explains that the Appellant is able to manage their finances but requires oversight and support from family "while (the Appellant's) memory is so impaired'. The Rehab Specialist states that, while the information provided by the GP in the AR indicating that it takes the Appellant considerably longer to complete most DLA activities is accurate, it fails to "itemize the supervision and

APPEAL NUMBER assistance that (the Appellant) receives periodically for all ... meal planning and preparation, financial planning and performance, medication management and follow-through. For the medication follow­ through, (the Appellant) is being supported by the pharmacy, and ... physicians, isolating (the Appellant) to a single prescriber and making sure that (the Appellant's) diet (is modified) to absorb the medication to be successful in ... thyroid replacement'.

The Rehab Specialist also states that the Appellant's impairments have had an enormous social impact, adding "It may be implied that this is based on (the Appellant's) mental and affective disorder, but the main order of concern ... is (the Appellant's) activity tolerance in general. (The Appellant) has very significant dysfunction in terms of initiating and sustaining activities that require physical activity and cognitive initiation".

The Rehab Specialist concludes by saying "I am continuing to be involved in terms of supporting (the Appellant) for psychological and emotional support, medication trials, all with judicious care to not work at cross purposes with my internal medicine colleagues".

Admissibility of Additional Information Section 22(4) of the EAA provides that panels may admit as evidence (i.e. take into account in making its decision) the information and records that were before the Ministry when the decision being appealed was made and "oral and written testimony in support of the information and records" before the Ministry when the decision being appealed was made - i.e. information that substantiates or corroborates the information that was before the Ministry at reconsideration. Because a panel can only accept oral and written testimony in support of the information and records before the Ministry when the decision was made, there is limited discretion for a panel to admit new evidence. Once the panel has determined which additional evidence is admissible under EAPWDA Section 22(4), instead of asking whether the decision under appeal was reasonable at the time it was made, panels must determine whether the decision under appeal was reasonable based on all admissible evidence.

The Ministry did not indicate whether it objected to the Panel admitting the evidence contained in the NOA, the August 23 Note or the IMS Letter. In a letter dated September 19, 2019 (following its review of the information provided in the September 17 Submission) the Ministry wrote "Had the ministry had (the information contained in the September 17 Submission}, the ministry may have found (the Appellant's) request had met the criteria for PWD designation". The Panel found this comment to be particularly unhelpful. It is not relevant as evidence and, because of the admissibility limitations under EAPWDA Section 22(4), it cannot affect the Panel's decision.

The Panel considered the written information contained in the NOA relating to the diagnosis of Chronic Thyroiditis to be information that was neither before the Ministry when the decision being appealed was made nor written testimony in support of information and records before the Ministry when the decision being appealed was made because the information available to the Ministry at the time the reconsideration decision was made did not include a diagnosis of Chronic Thyroiditis. Therefore the Panel finds that the information relating to that particular impairment and its impact on the Appellant's DLA is not admissible. The Panel finds that the information in the NOA regarding the Appellant's upcoming appointment for an MRI and consultations with the internal medicine team to be information in support of information before the Ministry when the decision being appealed was made because it

APPEAL NUMBER represents an additional medical test relating to the Appellant's medical condition, but assigns no weight to the evidence as the appointment occurs after the Ministry's reconsideration was made and the results of the tests are not provided. The Panel considers the information in the NOA relating to the Appellant's need for family support to be a restatement of evidence previously provided by the Appellant in the SR.

Regarding the information included in the August 23 Submission, the Panel finds the information contained in the August 23 Note to be admissible because it is in support of information and records before the Ministry at reconsideration, but assigns no weight to the evidence as the appointment occurs after the Ministry's reconsideration was made and the results of the tests are not provided. The Panel finds the information contained in the Second Internal Medicine Specialist's August 7 letter regarding a diagnosis of severe hypothyroidism to be inadmissible because the information available to the Ministry at the time the reconsideration decision was made did not include a diagnosis of hypothyroidism.

The Panel considered the information contained in the September 17 Submission relating to Appellant's severe hypothyroidism and severe CTS to be not admissible as those diagnoses were not included in the evidence before the Ministry at reconsideration. The Panel considers the information relating to the Appellant's affective disorder with depressed mood and global anxiety, their impact on the severity of the Appellant's impairment and their impact on the Appellant's ability to perform DLA and need for help to be admissible as it is information in support of the written information and records that were before the Ministry at reconsideration. Because the Rehab Specialist is a prescribed professional, the Panel assigns full weight to the admissible evidence in the Rehab Specialist's letter.

APPEAL NUMBER I PART F - REASONS FOR PANEL DECISION The issue under appeal is whether the Ministry's Reconsideration Decision, which found that the Appellant is not eligible for 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. Having been satisfied that the Appellant had a severe mental impairment, was it reasonable for the Ministry to determine that the evidence, in the opinion of a prescribed professional, does not establish that the Appellant's DLA are directly and significantly restricted either continuously or periodically for extended periods? Was it reasonable for the Ministry to determine that as a result of those restrictions, it could not be determined that 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: Persons with disabilities 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 Jiving activity" has the prescribed meaning; 1 11 1Prescribed 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 ability to perform daily living activities either (A) continuously, or (B) periodically for extended periods, and (ii) as a result of those restrictions, the person requires help to perform those activities. (3) For the purposes of subsection (2), (a) a person who has a severe mental impairment includes a person with a mental disorder, and (b) a person requires help in relation to a daily living activity if, in order to perform it, the person requires (i) an assistive device, (ii) the significant help or supervision of another person, or (iii) the services of an assistance animal. (4) The minister may rescind a designation under subsection (2).