PART C – DECISION UNDER APPEAL The decision under appeal is the Ministry of Social Development and Poverty Reduction (the “ministry”) reconsideration decision dated March 20, 2020, wherein the ministry denied the appellant’s request for a TENS machine because the ministry found that, after reviewing all categories of health supplements set out in Schedule C, the appellant’s request does not meet the legislated criteria set out in the Employment and Assistance for Persons with Disability Regulation (EAPWDR). The ministry recognized the appellant’s medical condition but noted that it does not have discretion in this matter. PART D – RELEVANT LEGISLATION EAPWDR sections 62 to 70 and Schedule C
PART E – SUMMARY OF FACTS The appellant is designated as a Person with Disabilities (PWD) and is in receipt of disability assistance. On January 14, 2020 the ministry received a letter from the appellant’s family doctor confirming benefits from using a TENS machine for medical reasons (chronic low back / neck pain). On February 24, 2020 the appellant submitted the following information: - A letter from the appellant’s advocate who states: [The appellant] is in urgent need … for a TENS machine to help … cope with very severe chronic pain. - A Letter from an anesthesiology specialist of a pain clinic who states : Kindly provide funding for a TENS machine for the above noted patient for treatment of [the appellant’s] chronic -- cervicogenic headaches. - A self report in which the appellant writes: I do not agree with the decision… I have fibromyalgia, joint pain, chronic neck and lower back pain. I need this machine in order to help relieve some of the pain that I experience 24/7. I have a note from my General Doctor which states that I need this device to help me and it would be of benefit to my conditions. I am in agony every day because of my medical conditions and it makes it hard to do simple day to day tasks. At night time I cannot sleep and I am awake most of the night because of the pain I am suffering from. It is even painful for me to lift my quilt in order to stay warm. Most of the time I am in tears due to the pain from my medical conditions. This machine would help me to feel less pain and so it would be of great benefit to me. - In Section 3 of an unsigned Request for Reconsideration form the appellant writes: (1) I need the TENS machine so bad that my arthritis [in my] neck, arms, lower back pain; am in constant pain. (2) My Dr.s say that I need this TENS machine to help me with medical issues. On March 3, 2020 the ministry received the appellant’s signed request for reconsideration. The appellant writes: (3) I have chronic pain in my joints due to arthritis. Some days I cannot even get out of bed due to the pain from my various medical conditions. I have two letters from two different doctors (specialist) stating that I need this TENS machine to help alleviate my pain which is my day to day quality of life. Notice of Appeal The appellant’s Notice of Appeal dated March 24, 2020 states the following: “Because I need this machine very badly. It is affecting my condition and it is getting worse and worse every day. So I really need this machine to help me to get around the house. It is very very painful. My joints seize up. Walking is painful and I sometimes fall to the side from weakness ... Specialist and GP know condition and denial worsens condition.” In a letter dated April 3, 2020, the appellant’s advocate writes: The TENS machine has been recommended by the appellant’s doctor and also by the pain specialist. Without the TENS machine the appellant’s situation is unbearable and hopeless. The appellant cannot do “normal” day to day activities like going for walks due to the chronic and severe pain.
The appellant’s legs are unstable because of the chronic pain. There is restricted movement in the appellant’s arms, legs, hands, and fingers because of the pain. With Fibromyalgia the appellant cannot dress or even take a shower without assistance as it would be dangerous and take forever to do so. Simple everyday grooming like combing hair is very hard with Osteoporosis as it stiffens the fingers. In the morning the fingers are so severely affected that they must first be soaked in hot water before the appellant can even begin to use them for anything. The appellant has been going to a pain specialist and who helps with chronic pain. The appellant does their best with the support of the doctors in order to seek ways in order to improve the condition. The appellant gets injections for migraines and lower back pain. The appellant suffers from severe migraines due to the daily chronic pain. The migraines worsen the situation with the consistent chronic pain. The chronic pain takes a toll on the appellant’s quality of life. It makes it hard and sometimes impossible to do anything without a struggle. The appellant is also affected mentally by this condition and struggles mentally because of the daily pain. The appellant often cries due to the pain. Not finding relief from these painful conditions is dangerous because this lack of mobility due to pain could cause a fall and severe injury. The family doctor has stated that they are willing to speak to someone in order to explain the appellant’s need for a TENS machine. Hearing The appellant did not attend the hearing. Upon confirming that the appellant was notified the hearing proceeded in accordance with section 86(b) of the Employment and Assistance Regulation. The appellant’s advocate attended. At the hearing the advocate explained that the appellant’s condition is life-threatening because the appellant is always at risk to fall down due to consistent pain and sustain a serious injury. A TENS machine would alleviate the pain and the risk of injury. The cost of a TENS machine starts at $ 45. With a TENS machine the appellant would not have to go out for pain therapy but could stay safely at home during the COVIC-19 pandemic. The appellant should not go out in this situation and has to deal with the pain entirely from home. The appellant owned a TENS machine 4 years ago but it broke - this was before the advocate knew the appellant. The ministry summarized the reconsideration decision and emphasized that it recognizes the health issues the appellant is facing, but a TENS machine is not among the items the ministry is authorized to provide. The ministry is not authorized to make an exception. Following a question by the panel the ministry noted that that there is a Corona Virus Supplement available for clients with PWD designation starting with the May assistance cheque, if they are not eligible under the Federal Emergency Program. This supplement is for $300 and will be issued 3 times to every adult in the family unit. There are no restrictions on how this money is spent.
Admissibility of additional information The panel finds that the information provided by the appellant in the Notice of Appeal and at the hearing as well as the ministry’s new information is reasonably required for a full and fair disclosure of all matters related to the decision under appeal, as it contributes to the panel’s understanding of the nature of the appellant’s medical conditions and pain management and the ministry’s position. The panel therefore admits the information as evidence pursuant to section 22(4) of the Employment and Assistance Act (EAA)
PART F – REASONS FOR PANEL DECISION The issue in this appeal is whether the ministry reasonably denied the appellant’s request for a TENS machine because they found that, after reviewing of all categories of health supplements set out in Schedule C, the appellant’s request does not meet the legislated criteria set out in the EAPWDR. EAPWDR 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 to 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. 62.1 Optical supplements 62.2 Eye examination supplements 63 Dental supplement 63.1 Crown and bridgework supplement 64 Emergency dental and denture supplement 65 Orthodontic supplement 66 Diet supplement 67 Nutritional supplement 67.001 Nutritional supplement – short term 67.01 Tube feed nutritional supplement 67.1 Infant formula supplement 68 Natal supplement 69 Health supplement for persons facing direct and imminent life threatening health need (1)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,… 70 Supplement for alcohol or drug treatment 70.02 Alternative hearing assistance supplement SCHEDULE C of the EAPWDR 2 General health supplements (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; … (c)subject to subsection (2), a service provided by a person described opposite that service in the following table, delivered in not more than 12 visits per calendar year, (i)for which a medical practitioner or nurse practitioner has confirmed an acute need, (ii)if the visits available under the Medical and Health Care Services Regulation, B.C. Reg. 426/97, for that calendar year have been provided and for which payment is not available under the Medicare Protection Act, and (iii)for which there are no resources available to the family unit to cover the cost: Item Service Provided by Registered with 1 acupuncture acupuncturist College of Traditional Chinese Medicine under the Health Professions Act 2 chiropractic chiropractor College of Chiropractors of British Columbia under the Health Professions Act 3 massage therapy massage College of Massage Therapists of British Columbia under therapist the Health Professions Act 4 naturopathy naturopath College of Naturopathic Physicians of British Columbia under the Health Professions Act 5 non-surgical podiatrist College of Podiatric Surgeons of British Columbia under podiatry the Health Professions Act 6 physical therapy physical College of Physical Therapists of British Columbia under therapist the Health Professions Act 2.1 Optical supplements 2.2 Eye examination supplements 3 Medical equipment and devices (1)Subject to subsections (2) to (5) of this section, the medical equipment and devices described in sections 3.1 to 3.12 of this Schedule are the health supplements that may be provided by the minister if (a)the supplements are provided to a family unit that is eligible under section 62 [general health supplements] of this regulation, and (b)all of the following requirements are met: (i)the family unit has received the pre-authorization of the minister for the medical equipment or device requested; (ii)there are no resources available to the family unit to pay the cost of or obtain the medical equipment or device; (iii)the medical equipment or device is the least expensive appropriate medical equipment or device. (2)For medical equipment or devices referred to in sections 3.1 to 3.8 or section 3.12, in addition to the requirements in those sections and subsection (1) of this section, the family unit must provide to the minister one or both of the following, as requested by the minister: (a)a prescription of a medical practitioner or nurse practitioner for the medical equipment or device; (b)an assessment by an occupational therapist or physical therapist confirming the medical need for the medical equipment or device. (2.1)For medical equipment or devices referred to in section 3.9 (1) (b) to (g), in addition to the requirements in that section and subsection (1) of this section, the family unit must provide to the minister one or both of the following, as requested by the minister:
(a)a prescription of a medical practitioner or nurse practitioner for the medical equipment or device; (b)an assessment by a respiratory therapist, occupational therapist or physical therapist confirming the medical need for the medical equipment or device. 3.1 Medical equipment and devices — canes, crutches and walkers 3.2 Medical equipment and devices — wheelchairs 3.3 Medical equipment and devices — wheelchair seating systems 3.4 Medical equipment and devices — scooters 3.5 Medical equipment and devices — toileting, transfers and positioning aids 3.6 Medical equipment and devices — hospital bed 3.7 Medical equipment and devices — pressure relief mattresses 3.8 Medical equipment and devices — floor or ceiling lift devices 3.9 Medical equipment and devices — breathing devices 3.10 Medical equipment and devices — orthoses 3.11 Medical equipment and devices — hearing instruments 3.12 Medical equipment and devices — non-conventional glucose meters 4 Dental supplements 4.1 Crown and bridgework supplement 4.2 Denture supplements 5 Emergency dental supplements 6 Diet supplements 7 Monthly nutritional supplement 8 Natal supplement 9 Infant formula 11 Alternative hearing assistance supplement Appellant’s position The appellant argues that the ministry should fund a TENS machine because it is desperately needed to relieve some of the constant severe pain that prevents the appellant from doing simple daily activities and from sleeping at night. Without a TENS machine the appellant’s condition is life-threatening because due to consistent pain the appellant is always at risk to fall and sustain serious injuries; a TENS machine would alleviate the risk of injury. Without the TENS machine the appellant’s situation is unbearable and hopeless. With a TENS machine at home the appellant would not have to go out for pain therapy but could stay safely at home during the COVID-19 pandemic. The appellant should not go out in this situation anyways and, as a result, has now to deal with the pain entirely from home. This machine has been recommended by the family doctor a well as by the pain specialist. Ministry position The ministry determined that the appellant is not not eligible for a TENS machine as Medical Equipment for the following reason: Sections 3.1 to 3.12 set out the specific eligibility requirements for each category. The ministry is authorized to provide the following medical equipment/devices: Section 3.1 a cane; a crutch; a walker; and accessories Section 3.2 a wheelchair; an upgraded component of a wheelchair; an accessory to a wheelchair Section 3.3 a wheelchair seating system; an accessory to a wheelchair seating system Section 3.4 a scooter; an upgraded component of a scooter; an accessory to a scooter Section 3.5 a grab bar in a bathroom; a bath or shower seat; a bath transfer bench with hand held shower; a tub slide; a bath lift; a bed pan or urinal; a raised toilet seat; a toilet safety frame; a portable commode chair; a standing frame for a person for whom a wheelchair is medically essential to achieve or maintain basic mobility; a positioning chair for a person for whom a wheelchair is medically essential to achieve or maintain basic mobility; a transfer aid for a person for whom the transfer aid is medically essential to transfer from one position to another Section 3.6 a hospital bed; an upgraded component of a hospital bed; an accessory attached to a hospital bed; a positioning item on a hospital bed
Section 3.7 a pressure relief mattress Section 3.8 a floor or ceiling lift device (means a device that stands on the floor or is attached to the ceiling and that uses a sling to transfer a person) Section 3.9 a positive airway pressure device; an accessory that is required to operate a positive airway pressure device; a supply that is required to operate a positive airway pressure device; an apnea monitor with accessories and supplies; a suction unit with accessories and supplies; a percussor with accessories and supplies; a nebulizer with accessories and supplies; a medical humidifier with accessories and supplies; an inhaler accessory device with accessories and supplies.. Section 3.10 a custom-made or off-the-shelf foot orthotic; custom-made footwear; a permanent modification to footwear; off-the-shelf footwear required to accommodate a foot orthotic; off-the-shelf orthopaedic footwear; an ankle brace; an ankle-foot orthosis; a knee-ankle-foot orthosis; a knee brace; a hip brace; an upper extremity brace; a cranial helmet used to prevent self-harm; a torso or spine brace; a foot abduction orthosis; a toe orthosis Section 3.11 a hearing instrument Section 3.12 a non-conventional glucose meter Upon review the ministry found that a TENS machine is not included in the list of medical equipment which may be provided and the appellant’s request cannot be provided under the legislation for medical equipment. The ministry found the appellant is not eligible for a TENS machine as Medical Supply. The EAPWD Regulation, Schedule C, section 2(1)(a) sets out that the ministry may provide either disposable or reusable medical or surgical supplies if: (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; (iii) there are no resources available to the family unit to pay the cost of or obtain the supplies. Upon review, the ministry is satisfied that a Physician has prescribed you a TENS machine, as required by Schedule C section 2(1)(a)(ii)(A). However, the ministry is not satisfied that a TENS machine is a disposable or reusable medical or surgical supply, and therefore the appellant’s request does not meet the requirement of section 2(1)(a)(ii)(A). While the appellant requires a TENS machine for pain management, the ministry is not satisfied that the appellant requires this item to avoid imminent and substantial danger to health, as required by Schedule C section 2(1)(a)(ii)(C). Further, a TENS machine is not required for the purposes listed in Schedule C section 2(1)(a)(i). The appellant does not require this item for wound care, ongoing bowel care, catheterization, incontinence, skin parasite care, or limb circulation care. The ministry determined that the appellant is not eligible for a TENS machine as an Extended Therapy. Schedule C, section 2(1)(c) sets out that the ministry may provide coverage for the following extended therapies: acupuncture, chiropractic, massage therapy, naturopathy, nonsurgical podiatry, and physical therapy. Upon review, the ministry found that the appellant is requesting a TENS machine rather than an extended medical therapy. Therefore, the appellant’s request cannot be provided under the legislation for extended medical therapies.
The ministry found that a TENS machine is not an item set out in any of the other sections of the EAPWD Regulation, and Schedule C and thus does not meet the criteria as one of the remaining health supplements. The EAPWD Regulation, Schedule C, sections 2.1, 2.2, 4, 4.1, 5, 6, 7, 8, and 9 set out that the ministry may provide: optical supplements, eye examination supplements, dental supplements; crown and bridgework supplements; denture supplements, emergency dental supplements; diet supplements; natal supplements; and infant formula. The ministry also determined that the appellant is not eligible to receive a TENS machine under the EAPWDR section 69, as a health supplement for a person facing a direct and imminent life threatening health need. Section 69 sets out that the ministry may provide to a family unit any health supplement set out in sections 2 (1)(a) [medical supplies] and (f) [medical transportation] 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) the person’s family unit is receiving 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 3.11, other than paragraph (a) of section 3 (1). Section 69 applies to health supplements set out under Schedule C, sections 2(1)(a) to (f) [general health supplements] and section 3 [medical equipment and devices]. It is intended to provide a remedy for those persons who are facing a direct and imminent life-threatening health need for these supplements and who are not otherwise eligible to receive them. • As the appellant is a recipient of disability assistance, they are eligible to receive health supplements under the EAPWD Regulation, Schedule C. Therefore, the appellant does not require the remedy under section 69. • Information submitted with the application and Request for Reconsideration does not demonstrate that the appellant faces a direct and imminent life-threatening health need for the items requested. • A TENS machine is not a health supplement set out in Schedule C, sections 2(1)(a) and (f) or section 3. Further, the appellant’s request has not met all the requirements specified in the EAPWD Regulation, Schedule C, sections 2(1)(a) and (f) and 3 to 3.11. Panel decision Medical Equipment and Devices - Schedule C section 3 Sections 3.1 to 3.12 list all medical equipment/devices the ministry is authorized to provide. The panel finds that the ministry reasonably determined that a TENS machine is not included in this list as this item is neither a cane, crutch or walker; a wheelchair; nor a wheelchair seating system; nor a scooter; nor a toileting, transfers and positioning aid; nor a hospital bed; nor a pressure relief mattress; nor a floor or ceiling lift device; nor a breathing device; nor an orthosis; nor a hearing instrument; nor a non-conventional glucose meter. Consequently, the panel finds that the ministry reasonably determined that the appellant was not eligible for funding for a TENS machine under Schedule C section 3. Medical or Surgical supplies - Schedule C sections 2(1)(a) and 2(1)(a)(i) The panel finds that, as a TENS machine is not a disposable or reusable medical or surgical supply as set out in section 2(1)(a), and that the appellant does not require the item for wound care, ongoing bowel care, catheterization, incontinence, skin parasite care, or limb circulation care as set out in section 2(1)(a)(i). Consequently, the panel finds that the ministry reasonably determined that the appellant has not met the requirements of Schedule C section 2(1)(a) and 2(1)a)(i).
Imminent and Substantial Danger to Health - Schedule C section 2(1)(a)(ii)(C) While the appellant argues that without the TENS machine life is unbearable and hopeless and lack of mobility due to pain poses a significant health risk as it could lead to a fall with severe injury, the panel finds there is not sufficient evidence that the appellant requires a TENS machine to avoid imminent and substantial danger to health. The Panel notes that the medical professionals did not specifically mention that the device was necessary to prevent an imminent and substantial danger to health. The Panel would have expected this to be included if the medical professionals believed there was imminent and substantial danger to health. As a result, the panel finds the ministry was reasonable when it denied the item under section 2(1)(a)(ii)(C). Extended Therapies - Schedule C section 2(1)(c) The panel finds that the ministry reasonably denied funding for a TENS machine under section 2(1)(c) because the appellant’s request for a TENS machine is not a request for one of the following extended therapies for which the ministry may provide funding: acupuncture, chiropractic, massage therapy, naturopathy, nonsurgical podiatry, and physical therapy. Remaining Sections of the EAPWDR and Schedule C The panel finds that the ministry reasonably denied funding for a TENS machine because this item is not set out in any of the remaining sections of the EAPWDR and Schedule C. EAPWDR sections 62.1, 62.2, 63, 64, 65, 66, 67, 68, 70 and 70.02 set out that the ministry may provide optical supplements, eye examination supplements, dental supplements, an emergency dental and denturist supplement, an orthodontic supplement, a diet supplement, a nutritional supplement, a natal supplement, a supplement of alcohol and drug treatment, and an alternative hearing assistance supplement. Schedule C, sections 2.1, 2.2, 4, 4.1, 4.2, 5, 6, 7, 8, and 9 set out optical supplements, eye examination supplements, dental supplements, crown and bridgework supplements, denture supplements, emergency dental supplements, diet supplements, a monthly nutritional supplement, natal supplements, and infant formula. A TENS machine is not among the aforementioned items. Direct and Imminent Life Threatening Need - section 69 of the EAPWDR Section 69 applies to health supplements set out under Schedule C sections 2(1)(a) to (f) [general health supplements] and section 3 [medical equipment and devices]. It is intended to provide a remedy for those persons who are facing a direct and imminent life-threatening health need for these supplements and who are not otherwise eligible to receive them. The panel notes that as the appellant is a recipient of disability assistance and is eligible to receive health supplements under the EAPWD Regulation, Schedule C, the appellant does not require the remedy under section 69. The applicable legislation (section 2(1)(a)(ii)(C), section 2 and section 3 has been discussed earlier. While the appellant argues that without a TENS machine life is unbearable and hopeless, and lack of mobility due to pain poses a significant health risk as it could lead to a fall and severe injury, the panel finds there is insufficient evidence that the appellant faces a direct and imminent life threatening need that a TENS machine would alleviate. The Panel notes that the medical professionals did not specifically mention that the device was necessary to prevent an imminent and substantial danger to health. The Panel would have expected this to be included if the medical professionals believed there was imminent and substantial danger to health. As a result, the panel finds that the ministry reasonably determined that the information provided by the appellant does not demonstrate that there is a direct and imminent life-threatening health need for a TENS machine as set out in section 69.
Conclusion The panel finds that the ministry’s determination that the appellant is not eligible for a TENS machine is reasonably supported by the evidence and is a reasonable application of the legislation in the appellant’s circumstances; the ministry’s reconsideration decision is confirmed and the appellant is not successful on appeal.
PARTG–ORDER THE PANELDECISIONIS:(Checkone) UNANIMOUS BYMAJORITY THEPANEL CONFIRMSTHEMINISTRYDECISION RESCINDSTHEMINISTRYDECISION If the ministry decision is rescinded, is the panel decision referred back to the Minister for a decision as to amount? Yes No LEGISLATIVEAUTHORITYFORTHEDECISION: Employment and Assistance Act Section 24(1)(a) and Section 24(1)(b and Section 24(2)(a) or Section 24(2)(b) PARTH–SIGNATURES PRINTNAME Inge Morrissey SIGNATUREOFCHAIR DATE(YEAR/MONTH/DAY) 2020/04/16 PRINTNAME Angie Blake SIGNATUREOFMEMBER DATE(YEAR/MONTH/DAY) 2020/04/16 PRINTNAME Patrick Cooper SIGNATUREOFMEMBER DATE(YEAR/MONTH/DAY) 2020/04/16
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