Ministry of Social Development and Poverty Reduction

APPEAL NUMBER 2020-00129 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 April 23, 2020, which held that the appellant did not meet 3 of the 5 statutory requirements of section 2 of the Employment and Assistance for Persons with Disabilities Act (EAPWDA) for designation as a person with disabilities (PWD). The ministry found that the appellant met the age and duration requirements, but was not satisfied that: • the evidence establishes that the appellant has a severe physical or mental impairment; • 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 those restrictions, the appellant requires an assistive device, the significant help or supervision of another person 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 2020-00129 PART E – SUMMARY OF FACTS On January 30, 2020 the ministry received the appellant’s PWD application comprised of a Medical Report (MR) and an Assessor Report (AR) completed by the appellant’s general practitioner (the “Physician”) on November 14, 2019, and the appellant’s self-report (SR) dated January 27, 2020. On March 6, 2020, the ministry denied the appellant’s request for PWD designation. On March 24, 2020 the ministry received the appellant’s request for reconsideration form (RFR) dated March 23, 2020, and an amended MR with revisions by the Physician dated March 23, 2020 (“Amended MR”). On April 23, 2020 the ministry completed its review. On May 4, 2020 the tribunal received the appellant’s Notice of Appeal dated May 4, 2020. Summary of relevant evidence Diagnoses In the MR, the Physician indicates that the appellant has been diagnosed with fibromyalgia, depression, and iron deficiency, date of onset being “years”. The Physician indicates that the appellant has been a patient for two years and the Physician or other doctors at the clinic have seen the appellant two to ten times in the past 12 months. In the SR, the appellant indicates that the appellant has had fibromyalgia for about 20 years. The SR indicates that the appellant has a hard time concentrating and prioritizing. The appellant suspects severe damage to the appellant’s hippocampus and memory as well as post-traumatic stress disorder (PTSD). Physical Impairment In the MR for Functional Skills, the Physician indicates that the appellant is able to walk 4+ blocks unaided (very sore the next day), can climb 5+ stairs unaided (increased symptoms with repetitive stair climbing), can lift 15 to 35 pounds (increased symptoms with repetitive lifting), and can remain seated less than one hour. In the Health History portion of the MR the Physician indicates that the appellant has persistent fatigue and muscle pain (especially upper body but lower body as well), pain with stress and physical work, is able to work at times, but finds that the appellant is debilitated for multiple days after work. In the AR, the Physician indicates that the appellant is independent with walking indoors, walking outdoors, climbing stairs, and standing, explaining that the appellant is independent but has reduced capacity. The Physician indicates that the appellant requires periodic assistance

APPEAL NUMBER 2020-00129 from another person with lifting and carrying and holding, indicating that the appellant has decreased strength and symptoms easily flared. In the SR, the appellant reports being unable to work longer than four hours or the appellant will have severe pain and end up in bed with pain for 2-3 days. The appellant reports severe headaches, muscle spasms, and muscle pain from the fibromyalgia and that if the appellant does too much the appellant’s body will “shut down”. The appellant reports that symptoms fluctuate. Mental Impairment In the MR, the Physician indicates that the appellant has significant deficits with cognitive and emotional function in the areas of consciousness, executive, language, memory, emotional disturbance, motivation, and attention or sustained concentration, commenting that deficits are intermittent (depending on symptoms). In the MR the Physician indicates that the appellant has intermittent difficulties with communication when symptoms are worse. In the Amended MR the Physician indicates this occurs 3-4 days per week. In the AR, the Physician indicates that the appellant’s ability to communicate with speaking, reading, writing, and hearing are good but can be poor when the appellant’s symptoms are flared up. For Section B, question 4 Cognitive and Emotional Functioning the Physician indicates that the appellant has moderate to major impact with bodily functions, consciousness, emotional, attention/concentration, memory, motivation and language, noting major at times due to flare ups. The Physician indicates that there is minimal impact to executive, and no impact to impulse control, insight and judgment, motor activity, psychotic symptoms, other neuropsychological problems or other emotional or mental problems. In the SR, the appellant indicates difficulty with concentrating, prioritizing, motivation as well as trouble storing and recalling simple information that should be easy to retain. The appellant reports become so stressed that the appellant forgets to eat until 8 pm or drink water. The appellant reports extreme stress after leaving a very abusive relationship. The appellant reports that the damage from the abuse by the appellant’s former spouse has been devastating. The appellant reports difficulty remembering to take medications. The appellant reports that the impact to memory and brain functioning are the most debilitating symptoms, followed by stamina and pain management. The appellant reports significant sleep disruption, only sleeping 3-4 hours per night. The appellant states that “…getting out the door can take me hours, depending on how much anxiety and stress I have, even when it’s stuff that I want to do”. The appellant has a dog that is very calming and helps ease the anxiety. DLA

APPEAL NUMBER 2020-00129 In the MR, the Physician indicates that the appella nt has been prescribed medications that interfere with the ability to perform DLA, explaining that amitriptyline is sometimes sedating. In the Health History portion of the MR, the Physician indicates that light housework is manageable but anything heavier can leave the appellant “laid up” for a few days (2-3 days). In the Health History portion of the Amended MR, the Physician indicates that the appellant’s symptoms can be triggered by cold weather or housework and that the appellant is “laid up” on average 3-4 days per week. For Section E – DLA, the Physician indicates that the appellant’s impairment directly restricts the appellant’s ability to perform DLA. The Physician indicates that the appellant’s DLA of personal self-care, meal preparation, management of medications, basic housework, daily shopping, mobility inside the home, use of transportation, and management of finances are not restricted. The Physician indicates that mobility outside the home is continuously restricted and social functioning is periodically restricted. For this periodic restriction, the Physician explains that the symptoms are worse when pain or fatigue is worse. For social functioning, the Physician explains that the appellant has difficulty communicating and sometimes has impairment to memory and concentration. Regarding the degree of restriction, the Physician indicates that the appellant can only do a moderate level/duration of physical exertion before symptoms flare. In the AR, the Physician indicates that the appellant is independent with all aspects of DLA of personal care, meals, paying rent and bills, medications and transportation. The Physician indicates that the appellant requires periodic assistance with laundry and basic housekeeping, that it takes significantly longer than typical, explaining that the appellant may need more breaks or to pace self, taking “maybe twice as long”. With DLA of shopping the Physician indicates that the appellant is independent with going to and from stores, reading prices and labels, making appropriate choices, and paying for purchases but requires periodic assistance from another person with carrying purchases home, indicating that it takes the appellant significantly longer than typical (twice as long). For social functioning, the Physician indicates that the appellant is independent with making appropriate social decisions but needs periodic support/supervision with developing and maintaining relationships, interacting appropriately with others, dealing appropriately with unexpected demands and securing assistance from others. The Physician indicates being unsure of what assistance would be helpful when symptoms are flared as social interactions are much more difficult. The Physician indicates that the appellant has very disrupted functioning with immediate social network, indicating that the appellant is separated from spouse, and marginal functioning with extended social networks commenting, “intermittent with symptoms”. In the SR, the appellant states that many household duties are neglected due to limited energy and capabilities. The appellant reports that the high stress makes the fibromyalgia symptoms worse. The appellant reports struggling “…to get out of bed for the past few weeks but that the

APPEAL NUMBER 2020-00129 stress seems to be easing up enough to the point I can somewhat think again and take care of myself and my children”. The appellant reports that symptoms fluctuate. Need for Help In the MR, the Physician indicates that the appellant needs help with housework, though often has none. In the AR, the Physician indicates that the appellant lives with two children, requires help with heavier housework, and that no help is available. The Physician does not indicate that the appellant uses any assistive devices. The Physician indicates that the appellant has an Assistance Animal, explaining that the appellant’s pet dog provides significant emotional support. Additional information provided The NOA indicates that the appellant disagrees with the ministry’s decision. At the hearing, the appellant stated that until 2018 the appellant worked a physical, cleaning job but had to call in sick frequently due to pain symptoms. The appellant obtained different employment but was unable to continue that work and has no longer been working since 2019. The appellant stated being able to perform self-care “for the most part”, but that if having a major flareup, is unable to do anything. The appellant reported decreased mobility outside the home if experiencing a flare-up. The appellant reported that the last few months have not been “terribly horrible” but that after helping move furniture one week ago the appellant had a major flare-up that lasted several days. The appellant also reported enjoying social activities with friends such as hiking or playing darts but can be sore after participating in these activities or not attending if having a flare up of symptoms. The appellant lives with the appellant’s two children in a house with a yard. The appellant confirmed being responsible for most household tasks although the children help some with laundry and dishes. The appellant does some yard work but will occasionally pay someone to help with weed trimming. At the hearing, the Physician stated that the appellant’s fibromyalgia was the most disabling condition. The Physician stated that the appellant is able to do some degree of work but that it would aggravate the appellant’s symptoms. The Physician stated that the appellant is able to complete DLA if not working outside the home. However, if the appellant experiences flareups due to employment, then the appellant is not able to complete DLA. The Physician indicated that the appellant’s social functioning is impacted mainly by the fibromyalgia which is difficult to treat. The Physician also indicated that the appellant would benefit from physiotherapy and psychological counseling, particularly to learn pain strategies, but that the appellant cannot afford to see a psychologist. The Physician indicated that no referral to a psychiatrist was made.

APPEAL NUMBER 2020-00129 Admissibility of New Information The panel has admitted the appellant and the Physician’s oral testimony as it is necessary for as it is information that is reasonably required for a full and fair disclosure of all matters related to the decision under appeal, in accordance with section 22(4) of the Employment and Assistance Act. In particular, the new information relates to the appellant’s functioning and information provided by the Physician in the MR and the AR. The panel has accepted the information in the NOA as argument.

APPEAL NUMBER 2020-00129 PART F – REASONS FOR PANEL DECISION Issue on Appeal The issue on appeal is whether the ministry’s decision to deny the appellant 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. In particular, was the ministry reasonable when concluding it was not satisfied that • a severe physical or mental impairment was established; • 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 those restrictions, in the opinion of a prescribed professional, the appellant requires help, as it is defined in the legislation, to perform DLA? Relevant Legislation EAPWDA 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 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

APPEAL NUMBER 2020-00129 (iii) the services of an assistance animal. (4) The minister may rescind a designation under subsection (2). EAPWDR Definitions for Act 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; (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.

APPEAL NUMBER 2020-00129 (3) The definition of "parent" in section 1 (1) applies for the purposes of the definition of "dependent child" in section 1 (1) of the Act. 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.C. Reg. 73/2015; (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). Panel Decision The legislation provides that the determination of severity of an impairment is at the discretion of the minister, taking into account all of the evidence including that of the appellant. However, the legislation is also clear that the fundamental basis for the analysis is the evidence from a prescribed professional respecting the nature of the impairment and its impact on daily functioning. While the legislation does not define “impairment”, the MR and AR define “impairment” as a “loss or abnormality of psychological, anatomical or physiological structure or functioning causing a restriction in the ability to function independently, effectively, appropriately or for a reasonable duration.” While this is not a legislative definition, and is therefore not binding on the panel, in the panel’s opinion, it reflects the legislative intent and provides an appropriate analytical framework for assessing the degree of impairment resulting from a medical condition. When considering the evidence provided respecting the severity of impairment, the ministry must exercise its decision-making discretion reasonably by weighing and assessing all of the relevant evidence and cannot simply defer to the opinion of a prescribed professional as that would be an improper fettering of its decision-making authority. Severe Physical Impairment The appellant disagrees with the ministry’s reconsideration decision. The appellant’s position is that the information provided in the MR, AR, Amended MR, and the oral testimony of the Physician confirms that the appellant has a severe physical impairment due to longstanding

APPEAL NUMBER 2020-00129 fibromyalgia that causes severe pain and function al limitations. The appellant reports struggling every day for 20 years with severe major impact. The ministry’s position is that the information provided by the Physician in the MR, AR, and Amended MR indicate that the appellant has periodic restrictions in physical functioning due to fibromyalgia with consequent fatigue and muscle pain. The reconsideration decision indicates that the information provided indicates that the appellant has no significant restriction to physical functioning in terms of the amount that the appellant can mobilize, lift, carry and hold, but that the appellant is “laid up” 3-4 days a week due to exacerbation of symptoms. However, the ministry’s position is that a severe degree of impairment is difficult to establish given the physical functioning reported. The ministry’s position is that when considered in conjunction with the report of DLA, it is not clear that the appellant experiences a severe degree of impairment. In particular the ministry notes that while the Physician reports that the appellant can do a moderate level/duration of physical exertion before the symptoms flare. The ministry’s position is that while the appellant has some limitations with regard to mobility and physical abilities and that the appellant must be mindful to stay within moderate limits of activity, the ministry is not satisfied that the information provided established a severed impairment of the appellant’s physical functioning. The panel finds that the ministry reasonably determined that the information provided did not establish that the appellant has a severe physical impairment as required by section 2(2) of the EAPWDA. In particular while the appellant states that the symptoms are severe and that the appellant should qualify for PWD designation, the MR, AR and the Amended MR indicate a relatively high level of physical functioning and independence. While the Physician, in both the Amended MR and by oral testimony, indicates that after moderate exertion and work the appellant’s symptoms flare up and the appellant can be “laid up” for 3-4 days per week, the Physician reports that the appellant can walk 4+ blocks unaided, can climb 5+ steps, can lift between 15 to 35 pounds and can remain seated less than one hour. The appellant confirmed that the description of functional skills is accurate but that symptoms flare up so when in pain, the appellant would not try walking 4-5 blocks or climbing stairs. The Physician stated that if the appellant is not doing work outside the house, then the appellant is able to perform household tasks. While the appellant indicated not being able to work any longer, the Physician indicated that the appellant is capable of some part-time work. However, the panel notes that employability is not a criterion for PWD designation. In the AR, the Physician indicates that the appellant is independent with walking indoors, walking outdoors, climbing stairs and standing, although at a reduced capacity so the appellant’s level of mobility and physical ability is still quite high. While the Physician indicates that the appellant requires periodic assistance from another person with lifting and carrying and holding due to decreased strength and symptoms easily flared, the panel finds that the ministry reasonably determined that the reported level of physical functioning is mainly independent.