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 September 16, 2019 wherein the Ministry determined that the Appellant was not
eligible for a hernia belt as a health supplement under Schedule C of the Employment and Assistance for Persons
with Disabilities Regulation (EAPWDR).
T
he Ministry found that the Appellant is eligible to apply to the Ministry for a health supplement due to being eligible
for PWD assistance. However, the Ministry determined that a hernia belt is not an eligible item set out in any
section of the EAPWDR Schedule C, and that subsection 3.10(11) specifically sets out that a hernia belt is not a
health supplement for the purpose of section 3 of the schedule.
PART D – RELEVANT LEGISLATION
Employment and Assistance for Persons with Disabilities Regulation (EAPWDR) Section 62 and 69
Employment and Assistance for Persons with Disabilities Regulation (EAPWDR) Schedule C Sections 2 and 3
APPEAL NUMBER
PART E – SUMMARY OF FACTS
The appellant is a recipient of Persons with Disabilities (PWD) assistance.
The evidence before the ministry at the time of reconsideration:
•
A R
equest for Reconsideration dated July 18, 2019 denying the request for a hernia belt as it is not
medical equipment that is funded pursuant to EAPWDR Schedule C section 3.
•
A doctor’s letter dated June 27, 2019 informing that the appellant has a large hernia that severely impairs
her function if not supported by a hernia belt and requesting that one be supplied.
•
A
Health Assistance Branch letter to the appellant dated July 18, 2019 denying the request for a healt
h
s
upplement for a hernia belt explaining that it is not an eligible item as it is not listed under EAPWDR
sections 3.1 to 3.11.
•
A
letter from an advocacy group dated September 12, 2019 advocating that the appellant be provided
a
her
nia belt, as one has been prescribed by a medical practitioner and because it is medically essential t
o
achieve or maintain basic functionality and that it will assist in physical healing of her injury.
Additional Information:
T
he appellant submitted additional information on October 7, 2019, which included 4 photographs that showed the
inside of the appellant’s home, the Disabilities Regulation for Crisis Supplement and the Policy and Procedure
Guidelines for determining Medically Essential to Achieve or Maintain Basic Mobility.
At the hearing, the appellant and the advocate explained that the appellant’s hernia had grown significantly since
2008 and that surgery to remove it was not available at the present time. They stated that the appellant had been
told surgery could be an option if weight was lost, which did happen, however the appellant had also been a
smoker and was told by the physician that no surgery would be possible without first quitting smoking. The
appellant then quit smoking, only to gain back weight such that surgery was no longer an option, at this time.
The appellant showed the panel the large, watermelon-sized hernia and explained that because of it, there was no
ability to independently do daily household activities, go shopping, do cooking, drive a car or even bend over to pick
anything up. The appellant’s advocate explained that the photographs submitted demonstrate the condition of the
appellant’s home, which is unkempt due to not being able to bend over and that the appellant is also incapable of
doing any exercising to help reduce weight, and that even walking one block is problematic. The appellant
explained that because of the hernia there was also an incontinence issue and that the ministry had provided a
year’s worth of incontinence supplies, which will cost more than the actual hernia belt itself, so questions why a belt
could not have been provided.
T
he advocate emphasized that, as per the ministry’s Policy Guidelines for Determining Medically Essential to
Achieve or Maintain Basic Mobility, the ministry’s mandate is to provide medical equipment or supplies that are
essential to achieve or maintain basic mobility and that each client’s needs are to be taken into consideration. The
advocate suggests that the ministry is not following the intent of the policies and regulation in Schedule C section
3.10(11) when they specifically identify that a hernia belt is not an item not covered under section 3, because, in the
appellant’s circumstance, a hernia belt is a medically essential assistive device which will enable the appellant to
maintain mobility. The advocate also noted that the ministry has a duty to accommodate persons with disabilities
and no effort has been made in the appellant’s situation to accommodate her specific need.
At the hearing, the ministry reviewed the reconsideration decision and emphasized that a hernia belt is specifically
identified in EAPWDR Schedule C Section 3.10(11)(c) as being an item that is not a health supplement for the
purposes of section 3 Schedule C so therefore there is no discretion permitted that would allow them to provide
funding for it.
APPEAL NUMBER
Admissibility of Additional Information
T
he panel admitted the appellant’s written submission which included photos and the oral testimony of the
appellant in accordance with section 22(4) of the Employment and Assistance Act (EAA) because the information
was in support of the information that was before the ministry at reconsideration. The ministry had no objection to
its admissibility.
APPEAL NUMBER
PART F – REASONS FOR PANEL DECISION
The issue under appeal is whether the Ministry's Reconsideration Decision dated September 16, 2019 to deny the
Appellant a hernia belt was reasonably supported by the evidence or was a reasonable application of the
applicable enactment in the circumstances of the Appellant. In particular, the Panel must decide whether the
Ministry reasonably determined that the Appellant was not eligible for a hernia belt as a health supplement because
it is not an eligible item listed under EAPWDR Schedule C sections 2 and 3.
T
he relevant legislation is as follows:
E
APWDR
General health supplements
62 The minister may provide any health supplement set out in section 2 [general health supplements] or 3 [medical
equipment and devices] of Schedule C to or for
(a)a family unit in receipt of disability assistance,
(b)a family unit in receipt of hardship assistance, if the health supplement is provided or for a person in the family
unit who is under 19 years of age, or
(c)a family unit, if the health supplement is provided to or for a person in the family unit who is a continued person.
Health supplement for persons facing direct and imminent life threatening health need
69 The minister may provide to a family unit any health supplement set out in sections 2 (1) (a) and (f) [general
health supplements]and 3 [medical equipment and devices] of Schedule C, if the health supplement is provided to
or for a person in the family unit who is otherwise not eligible for the health supplement under this regulation, and if
the minister is satisfied that
(a)the person faces a direct and imminent life threatening need and there are no resources available to the
person's family unit with which to meet that need,
(b)the health supplement is necessary to meet that need,
(c)a person in the family unit is eligible to receive premium assistance under the Medicare Protection Act, and
(d)the requirements specified in the following provisions of Schedule C, as applicable, are met:
(i)paragraph (a) or (f) of section (2) (1);
(ii)sections 3 to 3.12, other than paragraph (a) of section 3 (1).
EAPWDR Schedule C
General health supplements
2 (1) The following are the health supplements that may be paid for by the minister if provided to a family unit that
is eligible under section 62 [general health supplements] of this regulation:
(a)medical or surgical supplies that are, at the minister's discretion, either disposable or reusable, if the minister is
satisfied that all of the following requirements are met:
(i)the supplies are required for one of the following purposes:
(A)wound care;
(B)ongoing bowel care required due to loss of muscle function;
(C )catheterization;
(D)incontinence;
(E)skin parasite care;
(F)limb circulation care;
(ii)the supplies are
(A)prescribed by a medical practitioner or nurse practitioner,
(B)the least expensive supplies appropriate for the purpose, and
(C)necessary to avoid an imminent and substantial danger to health;
APPEAL NUMBER
Medical equipment and devices — orthoses
3.10
(1)In this section:
"orthosis" means
(a)a custom-made or off-the-shelf foot orthotic;
(b)custom-made footwear;
(c)a permanent modification to footwear;
(d)off-the-shelf footwear required for the purpose set out in subsection (4.1) (a);
(e)off-the-shelf orthopaedic footwear;
(f)an ankle brace;
(g)an ankle-foot orthosis;
(h)a knee-ankle-foot orthosis;
(i)a knee brace;
(j)a hip brace;
(k)an upper extremity brace;
(l)a cranial helmet used for the purposes set out in subsection (7);
(m)a torso or spine brace;
(n)a foot abduction orthosis;
(o)a toe orthosis;
(p)a walking boot.
(2)Subject to subsections (3) to (11) of this section, an orthosis is a health supplement for the purposes of section
3 of this Schedule if
(a)the orthosis is prescribed by a medical practitioner or a nurse practitioner,
(b)the minister is satisfied that the orthosis is medically essential to achieve or maintain basic functionality,
(c)the minister is satisfied that the orthosis is required for one or more of the following purposes:
(i)to prevent surgery;
(ii )for post-surgical care;
(iii)to assist in physical healing from surgery, injury or disease;
(iv)to improve physical functioning that has been impaired by a neuro-musculo-skeletal condition, and
(d)the orthosis is off-the-shelf unless
(i)a medical practitioner or nurse practitioner confirms that a custom-made orthosis is medically required,
and
(ii)the custom-made orthosis is fitted by an orthotist, pedorthist, occupational therapist, physical therapist
or podiatrist
[(3) – (10) are not relevant in the appellant’s situation]
(11)The following items are not health supplements for the purposes of section 3 of this Schedule:
(a)a prosthetic and related supplies;
(b)a plaster or fiberglass cast;
(c)a hernia support;
(d)an abdominal support.
The appellant’s position is that the physician has prescribed a hernia belt, which is medically essential and will
assist in healing, in order to manage daily living activities and to maintain mobility. The appellant argues that
because the ministry’s mandate is to assist people with disabilities to maintain mobility, them citing that a hernia
belt is specifically an item the ministry cannot issue a health supplement for is contradictory.
The ministry’s position is that health supplements may only be issued pursuant to legislation and that EAPWDR
APPEAL NUMBER
Schedule C section 3.10(11) specifically identifies a hernia support as an item that is not a health supplement for
the purposes of section 3. The ministry also argues that a hernia belt is not considered a medical supply for the
purposes of section 2 of Schedule C as it is not directly required for one of the purposes set out in section 2(1)(a)
and there was no information from a medical practitioner to establish that a hernia belt is necessary to avoid an
imminent and substantial danger to health.
Panel Decision
The legislative authority for the ministry to assist with a health supplement for any kind of medical supply or
equipment rests within EAPWDR Schedule C. Section 2 (1)(a) sets out that the ministry may provide either
disposable or reusable medical or surgical supplies if certain conditions are met and section 3 sets out the general
requirements for all medical equipment and devices. The panel reviewed all of the categories of section 3, and
determined that a hernia belt could be considered a brace, so the category that most closely fits the appellant
circumstance would be section 3.10, which is for orthotics and braces. Section 3.10(11) lists items not eligible
under section 3.10. The panel will review sections 2(1)(a), 3.10, and 3.10(11) legislation in making their
determination.
In their decision, the ministry also referenced EAPWDR section 69, life-threatening health need, and determined
that the appellant was not eligible because this piece of legislation is only for eligible items identified in sections
2(1)(a) and 3, for persons not otherwise eligible. The ministry argues that the appellant is a person eligible to
receive health supplements so this legislation does not apply, and also because a hernia belt is listed as a non-
eligible item. They argue that there is also no evidence that a medical practitioner has confirmed there is a direct
and imminent life-threatening need for the hernia belt. At the hearing, the appellant and advocate agreed that they
did not ask the physician to write that this was a life-threatening health need and that this was not at issue because
the hernia just impacts mobility for doing daily living activities. The panel will not be making a determination
regarding section 69.
EAPWDR Schedule C section 2(1)(a) – medical supply
Health supplements may be paid for medical supplies if the supplies are required for certain specific purposes
(such as wound care or incontinence); are prescribed by a medical practitioner; are the least expensive supplies
appropriate for the purpose; and necessary to avoid an imminent and substantial danger to health. In the
appellant’s circumstance, they mentioned that there were sores on the stomach and an incontinence issue due to
the hernia and that large bandages are used to cover the sores and that the ministry has assisted with adult pads
for the incontinence issue. There is no evidence on record that confirms that a hernia belt is directly required for the
purposes of wound care or incontinence, therefore, the panel finds that the ministry was reasonable in determining
that the appellant was not eligible for a hernia belt as a medical supply.
EAPWDR Schedule C section 3.10 and 3.10(11) – medical equipment
Health supplements may be paid for medical equipment and devices for a number of different items. In the
appellant’s circumstance a hernia belt could be considered under section 3.10(m), a torso or spine brace, as the
belt wraps around the torso, but legislation also specifies that it must be intended to provide pelvic, lumbar, lumbar-
sacral, thoracic-lumbar-sacral, cervical-thoracic-lumbar-sacral or cervical spine support. There is no evidence in the
appeal record that indicates that the hernia belt is intended for any of these conditions. Section 3.10(11) identifies
items that are not health supplements for the purposes of section 3, and a hernia support and abdominal support
are specifically listed in this legislation.
The appellant argues that medically required equipment should be given more weight and override something
specifically listed as not eligible. Particularly because the hernia is affecting the appellant’s health in the other ways
that was described at the hearing, such as there are more expensive supplies being purchased than the cost of a
hernia belt, which is approximately $200. The panel agrees that this argument is a valid one, however at this time
the legislation clearly identifies that hernia or abdominal supports, which the panel interprets a hernia belt to be, are
not health supplements for the purposes of EAPWDR Schedule C section 3 so therefore finds that the ministry was
reasonable in determining that the appellant was not eligible for a hernia belt as medical equipment.
APPEAL NUMBER
Conclusion
Having reviewed and considered all of the evidence and relevant legislation, the panel finds that the ministry’s
reconsideration decision, which determined that the appellant was not eligible for a hernia belt pursuant to
Schedule C Section 2(1)(a) and section 3 of the EAPWDR, was a reasonable application of the applicable
enactment in the circumstances of the appellant and therefore confirms the decision. The appellant is not
successful in the appeal.
APPEAL NUMBER
PART G – ORDER
THE PANEL DECISION IS: (Check one)
UNANIMOUS
BY MAJORITY
THE PANEL
CONFIRMS THE MINISTRY DECISION
RESCINDS THE MINISTRY DECISION
If the ministry decision is rescinded, is the panel decision referred back to the Minister
for a decision as to amount?
Yes
No
LEGISLATIVE AUTHORITY FOR THE DECISION:
Employment and Assistance Act
Section 24(1)(a)
or Section 24(1)(b)
and
Section 24(2)(a)
or Section 24(2)(b)
PAR
T H – SIGNATURES
PRINT NAME
Janet Ward
SIGNATURE OF CHAIR
DATE (YEAR/MONTH/DAY)
2019/10/18
PRINT NAME
Laurie Kent
SIGNATURE OF MEMBER
DATE (YEAR/MONTH/DAY)
2019/10/18
PRINT NAME
Linda Smerychynski
SIGNATURE OF MEMBER
DATE (YEAR/MONTH/DAY)
2019/10/18
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