Ministry of Social Development and Poverty Reduction

I 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 06 November 2019 that denied the appellant designation as a person with disabilities (PWD). The ministry determined that the appellant did not meet all of the required criteria for PWD designation set out in section 2 of the Employment and Assistance for Persons with Disabilities Act, section 2. Specifically, the ministry determined that the information provided did not establish that the appellant has a severe mental or physical impairment and that in the opinion of a prescribed professional the appellant's impairment (i) directly and significantly restricts the appellant's ability to perform daily living activities (DLA) either continuously or periodically for extended periods; and, (ii) as a result of those restrictions, the appellant requires help to perform those activities. The ministry determined that the appellant satisfied the other criteria of having reached 18 years of age and the impairment continuing for at least 2 years.

The ministry also found that it has not been demonstrated that the appellant is in one of the prescribed classes of persons who may be eligible for PWD designation on the alternative grounds set out in section 2.1 of the Employment and Assistance for Persons with Disabilities Regulation. As there was no information or argument provided by the appellant regarding alternative grounds for designation, the panel considers this matter not to be at issue in this appeal.

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 Evidence before the ministry at reconsideration

1. The appellant's PWD Designation Application dated 20 August 2019. The Application contained: • A Self Report (SR). • A Medical Report (MR) dated 27 August 2019, completed by a general practitioner (GP) who has known the appellant for 20 years and has seen the appellant 2-10 times in the past year. • An Assessor Report (AR) dated 20 August 2019, completed by a physical therapist (PT) who has met the appellant once. The PT writes, "This is a one time assessment, as a PT I can only contribute to the physical sensation & biomechanical losses. Self-report is the logical resource for ADL [activities of daily living] levels & management."

2. The appellant's Request for Reconsideration, dated 21 October 2019, attached to which is a submission giving reasons.

In the MR, the GP provides the following diagnoses related to the appellant's impairment: Insulin Dependent Diabetes (onset 1993), Depression and Anxiety.

In the AR, the PT describes the impairment that impacts the appellant's ability to manage DLA as "Diabetic neuropathy, significant strength loss, sensation loss, chronic pain, depression & anxiety, all of which can significantly limit AOL completion."

In the AR, the PT describes the appellant's living environment as living with an elderly parent with disabilities.

The panel will first summarize the evidence from the MR and the AR as it relates to the PWD criteria at issue in this appeal.

Severitv(health history Physical impairment MR: Under Health History, the GP writes that the appellant's poorly controlled diabetes leads to retinopathy and peripheral neuropathy and that the appellant has frequent hypoglycemia, resulting in disability: loss of consciousness, agitation.

Regarding functional skills, the specialist indicates that the appellant can walk 4+ blocks unaided on a flat surface, can climb 5+ steps unaided, is limited to lifting 15 to 35 lbs. and there are no limitations regarding remaining seated.

The GP indicates that the appellant has not been prescribed medication and/or treatments that interfere with the abilitv to perform DLA.

APPEAL NUMBER AR: Respecting mobility and physical ability, the PT assesses the appellant as independent for all listed areas of mobility and physical ability: walking indoors, walking outdoors, climbing stairs, standing, lifting, and carrying and holding. The PT comments, "Independent but significantly limited capacity and endurance, with 10/10 nerve pain onset & muscle spasms. Prolonged disability which can limit ADLs to prolong active (sic) prior to."

Under Additional Information, the PT writes: "[The appellant] has lost significant sensation [in the] feet due to [. .. ] diabetic neuropathy. This is accompanied with a significant amount of muscle atrophy with triceps surae to 3-/5 for strength loss. The global UE [lower extremity] weakness, paired with sensation loss can further contribute to neurological pain. This is again further exacerbated with struggling mental health."

Mental impairment MR: Under Health History, the GP writes: "Depression and Anxiety: long-standing. As never being free of it despite medication. Very emotional. Bursts into tears frequently. She becomes very anxious. [The appellant] has somehow managed to work, but now finding it very difficult to cope."

The GP indicates that the appellant has difficulties with communication, with a cognitive cause, commenting, "Forgetful. Emotional !ability."

The GP indicates that the appellant has significant deficits with cognitive and emotional function in the areas of executive, memory, emotional disturbance, motivation, and attention or sustained concentration.

Under Additional Comments, the GP writes that the appellant is not able to currently function, has been referred to a psychiatrist but that improvement is unlikely in the near future, and is not fit for work.

AR: The PT assesses the appellant's ability to communicate as good for speaking, reading, writing, and hearing.

The PT does not assess the degree to which the appellant's mental impairment impacts daily functioning, leaving this section of the AR blank.

Ability to perform DLA MR: The PT reports that appellant's ability to perform DLA is restricted as follows: • Restricted on a periodic basis: Personal self care, meal preparation, management of finances, and social functionin

APPEAL NUMBER • Not restricted: basic housework, daily shopping, mobility inside the home, mobility outside the home, and use of transportation. • Unknown: management of finances. The GP explains "periodic" as "poor ability when depression is worse." The GP explains restrictions with social functioning by writing, "Very emotional. Cannot cope with problems."

As an additional comment, the GP writes, "Severe disability." AR: The PT provides the following assessments of the assistance the appellant requires in performing DLA: • Personal care - independent for all tasks. • Basic housekeeping - independent for all tasks. • Shopping - independent for all tasks. • Meals - independent for all tasks. • Pay rent and bills - independent for all tasks • Medications - independent for all tasks. • Transportation - independent for all tasks. The PT comments, "No assistance required, however with physical activity & exertion there is significant 10/1 0 pain which can limit the continued activity levels & be bed bound due to pain."

The PT adds, "Prolonged standing up to 2-30 minutes progressively increases neurological pain. Can complete cooking & food preparation if self modifies activity=> sitting."

Social functioning The PT assesses the support/supervision required for social functioning as follows • Making appropriate social decisions - independent. • Developing and maintaining relationships - Independent. • Interacting appropriately with others - independent • Dealing with unexpected demands - periodic support/supervision required ("Stress/anxiety can limit tolerance"). • Securing assistance from others - "Paranoid at times." The PT assesses the appellant's relationship with both immediate and extended social networks as "good functioning."

Help provided/required MR: The GP indicates that the appellant does not require any prostheses or aids to compensate for im airmen!.

I APPEAL NUMBER When asked what assistance the appellant needs with DLA, the GP writes, "Not sure." AR: The PT indicates that the appellant requires the use of orthotics.

The PT indicates that the appellant does not have an assistance animal. The PT indicates that the appellant requires help for DLA from family and friends, commenting, "Family and friends help with mental health, physical exertion when limited."

Self Report The ministry fully reproduced the SR in the reconsideration decision. To summarize, the appellant describes her disability as IDDM [Insulin-dependent diabetes mellitus) (Diabetes, since April 1990), depression and anxiety since 1993, and extreme fatigue. She writes that: • She has had insulin dependent diabetes for 29 years now. As a result of diabetes, she has peripheral nerve disease in her legs and feet. It is like having lightning shooting down her legs and having nails in her feet, with spasms in the feet and legs causing great pain. The longer she is up on her feet, the worse it becomes and it can take a long time to calm down. She cannot walk even around home without shoes on now. • She has tried special insoles, different shoes, slippers, etc., medicinal marijuana cream, and medications, but nothing calms the pain down. • She has also been treated for retinal neuropathy and continues to be monitored every 4 months at the retinal surgeon's office. • She also suffers from depression and anxiety. She has taken medication since 1993 and it did work until about 1-2 years ago. Her doctor has seen her every 3 months for years to monitor her depression and diabetes. It causes her huge stress and discomfort when she can't get over the depression. She will be seeing a psychiatrist to help her further. • Lastly, she has extreme fatigue which will not go away. She can sleep for 12++ hours and still be exhausted when she gets up. This began 1-2 years ago and it has become unmanageable. She often needs to sleep during the day. If driving, she pulls over and sleeps in her car or a park. Her sleep is very restless. Sometimes her legs become so restless that she can't sleep for hours. She also urinates about every 1.5 to 2.5 hours at night so she can't get a full sleep. • These problems affect her life since she has no ambition to do much because she knows she will suffer worse pain afterwards. After walking or standing for 15 minutes or sometimes longer, she starts to get the spasms. Her feet are always numb, tingling yet painful too. It takes a long time for the pain to subside once she lays down. Going for

walks was her best activity but she can no longer do it. It just hurts too much. • All this affects her relationships, friendships, activities (swimming, walking, playing with her grandchildren) and former work.

Request for Reconsideration The ministry also fully reproduced the appellant's reconsideration submission. Highlights include:

APPEAL NUMBER • The appellant's doctor did not discuss, nor did he entirely know what supports she has used to live her life; nor did the physiotherapist who just assessed her physical ability to function. So, this is to explain what supports she needs. • With her insulin-dependent diabetes, she needs an enormous amount of time to recover after walking or standing to help alleviate the severe pain that occurs with that activity. The physiotherapist recommended that she use a cane to assist with walking and she has now been using one in the house but finds that it does not help with the pain in her feet and legs. • She now has a new glucose reader that tracks her blood sugar levels, so she knows when she is going to go low or high but still has no recourse when it happens. She falls over and get very dizzy, confused and disorientated with low sugars so she is hoping that the cane will help with this. • Her doctor reported that she can walk, stand and carry regular amounts. That is not at all true. She needs to have her legs up to help alleviate the pain. After walking for a short period of time she needs a long time to recuperate so she can walk again. This can be hours or a full day depending on what she was doing. [A parent] does most of the grocery shopping, so she doesn't have to. She limits her time doing chores, so as not to get so sore and tired. A friend comes every week to do cleaning at home for her as this is an agreement that she made with her [parent] upon moving in. • She uses a raised toilet seat with handles and a bath bench in the shower so she can sit and not fall in the shower. She showers only when [the parent] is home in case of a fall. • Her glucose levels are so bad that they go up and down like a yo-yo. When the sugars are low it takes a while to feel it. She then gets blank, confused, angry, crying, and needs to lay down and eat. She often passes out especially at night-time. She always seems to wake up afterwards but then her sugars rise to dangerous levels and it makes her light­ headed, extremely tired and thirsty. • She also suffers from anxiety and depression. This is exacerbated by the constant pain and inability to live her life as she always has. She can't go for walks anymore, go window shopping, visit with friends, do her craft hobby, or volunteer. • She is too tired, stressed and anxious to go out with friends. She has one friend that she visits with and who comes to clean her house, but she has no other social outlets. She does see her daughter and grandkids as the friend brings them over to visit. • She has problems with her sleep to an extreme. She is so tired all the time that she often sleeps 12+hours a day or often through the entire day and onto the next day. Suffering excessive anxiety and depression, she finds it hard to concentrate on tasks, especially recalling information and remembering what to do next. Being depressed is exhausting. She uses the toilet during the night about every 1.5 to 2 hours, so she has very interrupted sleep.

Notice of Appeal The appellant's Notice of Appeal is dated 15 November 2019. No Reasons were provided.

The hearing With the consent of the appellant, a ministry worker attended the hearing as an observer. At the hearinq, the aooellant submitted a oackaqe of documents that consisted of:

I APPEAL NUMBER • A letter from the GP dated 13 December 2019 in which the GP confirms that the appellant is permanently disabled due to severe depression, pain due to peripheral neuropathy, and brittle diabetes. The GP concurs with the psychiatrist's evaluation (see below) that the appellant is totally disabled and unfit for work. • Psychiatry Consult dated 10 December 2019, completed by a psychiatrist who concluded that the appellant, by reason of recurrent major depressive disorder, despite good treatment, in combination with her brittle diabetes and its resulting chronic neuropathic pain, ophthalmological involvement, and now concerns about renal dysfunction, is disabled to the point that she is unable to work. • Charts for several days showing significant hourly variability in the appellant's blood sugar readings.

In her presentation, the appellant covered much the same ground as in the SR and reconsideration submission. In particular, she explained that despite seeing the GP every three months for the past many years, the GP has focused on treating her brittle diabetes and has shown little interest in how she manages her life. She now recognises that the MR and the GP's letter submitted on appeal does not contain the kind of information requested by the ministry on the impact of her medical conditions on daily functioning.

The appellant described at some length how "brittle" her diabetes was - extreme variability in blood sugar within any 24-hour period, differing day-to-day even if diet and exertion remained the same. The resulting peripheral neuropathy means that even walking a short distance results in extreme pain in her feet and having to rest and put her feet up to relieve the pain. Her diabetic condition has also led to increased protein in the urine, causing concern over the health of her kidneys and anxiety that she will have to go on kidney dialysis. The appellant also explained that she had episodes every 3 or 4 years of diabetic ketoacidosis (OKA), a life-threatening situation that required hospitalization.

The appellant also described her anxiety and depression, which now seem resistant to treatment. She said that she is fortunate to have a friend of 30 years who provides support. However, because of her anxiety she can't complete daily tasks and decision-making is difficult.

The ministry stood by its position at reconsideration. Admissibility of additional information The panel finds that the information provided by the appellant in the documents submitted on appeal and in her testimony at the hearing are in support of the information and records before the ministry at reconsideration, as this information tends to corroborate the diagnoses and health history provided by the GP in the MR and the appellant's description of how her medical conditions impact her daily functioning as set out in the SR and the reconsideration submission. The panel therefore admits this information as evidence pursuant to section 22(4) of the Employment and Assistance Act.

APPEAL NUMBER PART F - REASONS FOR PANEL DECISION The issue in this appeal is whether the ministry decision that determined that the appellant did not meet three of the five statutory requirements of Section 2 of the EAPWDA for designation as a person with disabilities (PWD) is reasonably supported by the evidence or is a reasonable

application of the legislation in the circumstances of the appellant. Specifically, the ministry determined that the information provided did not establish that the appellant has a severe physical or mental impairment and that in the opinion of a prescribed professional the appellant's impairment (i) directly and significantly restricts the appellant's ability to perform daily living activities (DLA) either continuously or periodically for extended periods; and, (ii) as a result of those restrictions, the appellant requires help to perform those activities. The ministry determined that the appellant satisfied the other criteria of having reached 18 years and the impairment continuing for at least 2 years.

The following section of the EAPWDA applies to this appeal: 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 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.

The following sections of the EAPWDR applies to this appeal: 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;

APPEAL NUMBER (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 Act,

if qualifications in psychology are a condition of such employment.

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) 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 Plan (Canada).

Analysis Severity of impairment Preliminary Considerations The designation of a person as a person with disabilities arises from the application of legislation - section 2 of the EAPWDA reproduced above. It is clear from this legislation that PWD designation is at the discretion of the minister. However, it is also clear that this discretion is limited, by requiring the minister to be "satisfied" that the applicant meets the criteria set out in section 2.

APPEAL NUMBER For the minister to be "satisfied" that the person's impairment is severe, the panel considers it reasonable for the ministry to expect that the information submitted by the independent and professional medical practitioner and prescribed professional (in this case the GP and PT) completing the application provides the minister with sufficient information on the nature and extent of the impacts of the person's medical conditions on daily functioning. As the legislation requires the minister to make determinations regarding the degree of impairment, the degree of restrictions in the ability to perform DLA and the resulting degree of help required, it is therefore important that the MR and the AR include explanations, descriptions or examples in the spaces provided so that the minister has the information needed to make these determinations. Significant weight must also be placed on the evidence of the applicant, unless there is a legitimate reason not to do so. Such information provided by the applicant, while optional in the Application form, may be helpful in fleshing out the general picture provided by the medical