Ministry of Social Development and Poverty Reduction

APPEAL NUMBER 2020-00270

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 27 October 2020 that denied the appellant designation as a person with disabilities (PWD) under section 2 of the Employment and Assistance for Persons with Disabilities Act. The ministry found that the appellant meets the age and duration requirements, but was not satisfied that:

• the appellant has a severe mental or physical impairment; • the appellant's impairment, in the opinion of a prescribed professional, directly and significantly restricts the ability to perform daily living activities ("DLA") either continuously or periodically for extended periods; and • as a result of restrictions caused by the impairment, the appellant requires an assistive device, the significant help or supervision of another person, or the services of an assistance animal to perform DLA.

The ministry also found that the appellant is not 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 ("EAPWDR"). As there was no information or argument provided for PWD designation on alternative grounds, the panel considers that 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.

APPEAL NUMBER 2020-00270

PART E – SUMMARY OF FACTS

With the appellant’s consent, a ministry observer attended the hearing. Evidence before the ministry at reconsideration 1. The appellant’s PWD Designation Application signed on 05 June 2020. The Application contained:  A Self Report (SR) dated June 5, 2020.  A Medical Report (MR) dated 18 June 2020, completed by a general practitioner (GP) who has known the appellant for 23 years 2018 and seen her 2-10 times in the past year.  An Assessor Report (AR) dated 18 June 2020, completed by the same GP. 2. The appellant’s Request for Reconsideration, undated. Under Reasons, the appellant refers to a typewritten submission provided by her son (see below).

Information provided on appeal and admissibility 1. The Notice of Appeal is dated 07 November 2020. Reasons for Appeal: “The original Application was filled out by family doctor and is not completely accurate. The specialist, [name] should have filled out but could not be reached.”

2. Final “Results Review Report” (the Report) of a January 20, 2021 follow up at a pre lung transplant/ [lung disease] clinic conducted as a tele visit due to the COVID-19 pandemic.

3. At the hearing, the appellant was represented by her son who described the appellant’s functioning and difficulties obtaining medical information (details below under Summary of relevant evidence).

4. At the hearing, the ministry stated that it did not object to the admission of the Report or the son’s evidence. The ministry reviewed the reconsideration decision but did not provide additional evidence. When asked by a panel member whether the ministry considered the Report as establishing severe impairment, the ministry responded that it could not offer an opinion, agreeing that the report contains specialized information likely to be understood by only specialists. The ministry noted that an advocate may be helpful in assisting applicants and that additional sources of information, including an Occupational Therapist’s assessment of functioning, are considered by the ministry.

The panel admitted the son’s oral testimony and the Report in accordance with section 22(4) of the Employment and Assistance Act on the basis that it was information required for the full and fair disclosure of all matters related to the appeal.

APPEAL NUMBER 2020-00270

Summary of relevant evidence Diagnoses In the MR, the GP provides the following diagnosis related to the appellant’s impairment: [rare lung condition], onset October 2008.

Physical impairment MR: Under Health History, the GP reports that the appellant had a lung biopsy in 2008, confirming the diagnosis of the rare, chronic lung condition. The GP writes, “This condition [is] consistent with the following impairment: shortness of breath on minor exertion. Hypoxemia → Oxygen dependent.”

Regarding functional skills, the GP indicates that the appellant can walk 1 to 2 blocks unaided on a flat surface, can climb 2 to 5 steps unaided, is limited to no lifting, and has no limitations for remaining seated.

The GP indicates that the appellant has been prescribed medication and/or treatments that interfere with the ability to perform DLA, commenting “Oxygen with nasal prongs with ambulation.” The GP adds that the anticipated duration of the medications/treatment will be “Life-long use: possible lung transplant.”

AR: Respecting mobility and physical ability, the GP assesses the appellant as independent for walking indoors, walking outdoors, standing and carrying and holding, and taking significantly longer than typical for climbing stairs. Regarding lifting, the GP comments, “Limited. 2–3 lbs. at most.”

The appellant’s SR states: “My lungs pretty much look like “swiss cheese” I have a hard time breathing when mobile or asserting energy. I depend on oxygen on a daily basis. I’m out of breath when walking up one flight of stairs. I’m hooked up to oxygen when sleeping in case my oxygen level gets too low. I use a puffer every morning. I get my blood taken 4 times a year. Exercise and working without oxygen tank is out of the question.”

In the submission attached to the Request for Reconsideration, the appellant’s son writes in part: “My mother [appellant’s name] has been dealing with [rare lung condition] for over 10 years now. Her condition has gone progressively worse year by year. She now has to walk around with an oxygen tank the size of an orange pylon every time she moves or has to exert herself in any type of physical activity. At nighttime when she goes to sleep, she also requires oxygen through the night so she has an oxygen system setup beside her bed from [medical supplies provider]. She wakes up constantly throughout the night

APPEAL NUMBER 2020-00270

because her nose gets dry and at times causes her nose to bleed. We have since acquired a nose spray recommended by her specialist [name] to wake up on a night schedule to make sure her nose is moisturized throughout the night. In the morning she has to take 2 pills, one for her condition, and another to counter that pill because it ups her cholesterol, she then has to use a puffer also every morning after the medication. She goes for quarterly blood works and does anywhere between 5-10 visits per year for CT scans, MRIs, pulmonary function tests, echocardiograms and whatever else [the specialist] needs her to do. [The appellant] loses her breath after going up one flight of stairs unaided, sometimes her breath is gone so fast she needs to stop halfway up the stairs so she can catch her breath. She is not able to walk any distance without oxygen at any capacity, even during her walk test. [The specialist] specifically tells me to inform the therapist that she can not to do any sort of walking test without oxygen. [The appellant] is extremely vulnerable to public places during this pandemic due to her respiratory illness that if she catches Covid, it could be fatal for someone with her condition. She does not go out to any public places leaving the day-to-day life necessities to me and her husband. When she does go out for anything, she has to mask up, carry her oxygen tank, and her belongings and has to navigate stressfully while carrying all those things around for the duration of her outing.”

The son also made the following points:  The appellant tries not to move too much because she has to go through the burden of wearing an oxygen tank.  A lung transplant is a possibility if her condition gets even worse and she becomes immobilized.

The son added that when the appellant applied for PWD designation through her family doctor, there was a communication barrier and the son felt that the doctor didn’t really want to fill out any form and filled out the form as fast as possible. In the son’s view, this doctor also doesn’t really understand the appellant’s day-to-day life because the doctor was just needed as someone that could give the appellant basic prescriptions. Her functioning wasn’t thoroughly assessed by the GP.

At the hearing, the son explained that the appellant doesn’t want to come across as weak when describing her condition to the GP. Because the son was not at the appointment and therefore could not provide accurate information. However, he has done so in the reconsideration submission which clarifies the realities of the appellant’s situation, which is not easy for her or her family. He believes his mom is still in denial about her condition.

The son explained that they tried to get the specialist to fill out the form but the specialist couldn’t be reached after numerous attempts. They have also reached out to the specialist via email, asking him to fill out the reconsideration request for them, but he did not get back to them. In a recent virtual visit with the specialist the son asked him to provide the needed information but the specialist was only willing to provide the Report, not a letter. He hopes the Report, which confirms 100% oxygen dependence, clarifies some of the doubts and overturns what the GP said, as the GP doesn’t look after the appellant for her lung condition and didn’t thoroughly assess the appellant’s functioning. The son stated that there is no way the appellant can live a normal life, especially in the pandemic. Every day she is struggling – walking a flight

APPEAL NUMBER 2020-00270

of stairs leaves her out of breath, she needs oxygen for all walking tests, and any walking without supplemental oxygen causes dangerously low oxygen levels, despite what the GP said.

His mom is not able to do things on her own due to the pandemic. She can manage personal care, including using a washroom, and make a simple meals but other than that needs assistance. She cannot vacuum. The pandemic has made it worse: she has financial and mental hardship and can’t go out because it is too dangerous. Everyone in the family had to adjust and assist his mom on a regular basis to make her life liveable. The appellant cannot work and needs financial assistance. The appellant is really restricted with anything that requires energy, her condition will only get worse and she is unable to get solid sleep because she has to get up through the night to adjust the oxygen level and to deal with nose irritation. The son expects that the stress of the pandemic will worsen his mom’s condition.

Information included in the Report:  The appellant reports: o stable respiratory status o not exercising that much due to the pandemic o continues to be oxygen dependent o does not require oxygen supplementation at rest o admits to not being very compliant with oxygen supplementation at night  Test Results: o pulmonary function test o 6-minute walk test performed with oxygen supplementation (slight overall decline of the walked distance since September 2018) o Laboratory tests (ex. white blood cell count) o CT of the chest (December 15, 2020) – no interval change in appearance of the chest compared to August 20, 2020 o Bone density scan – no significant change compared to previous values from 2016

 Assessment and Plan: o Patient with [rare lung disease] and related severe obstructive ventilator limitation with severely reduced DLCO (undefined) o On recent spirometry and pulmonary function test, there is a decline of the FVC (undefined), which is the first occurrence o Remains oxygen dependent with maintaining relative stable oxygenation upon exertion with the current level of oxygen therapy o Belongs to New York Heart Association Class 3 in terms of exercise tolerance and has MRC (undefined) grade 3 to 4 out of 5 dyspnea on exertion o Overall remains stable, although the worsening restriction needs further investigation

APPEAL NUMBER 2020-00270

Mental impairment MR: The GP indicates that the appellant has no significant deficits with cognitive and emotional function.

The GP indicates that the appellant has no difficulties with communication. AR: The GP assesses the appellant's ability to communicate as good for speaking, reading and writing, and satisfactory for hearing (commenting “impaired”).

The GP marks “N/A” regarding the degree to which the appellant’s mental impairment impacts daily functioning.

In the submission attached to the Request for Reconsideration the son writes:  She is also dealing with depression as a result of Covid-19 restrictions.  Her daily life mostly consists of dealing with her illness, whether it would be waking up in the middle of the night to moisturize her nose or spending time adjusting her oxygen tank.  She has really lost a lot of enjoyment in her life under these circumstances. Ability to perform DLA AR: In describing the mental or physical impairments that impact the ability to manage DLA, the GP writes, “Shortness of breath on minor exertion. Oxygen use.”

The GP provides the following assessments of the assistance the appellant requires in performing DLA:  Personal care – independent for all tasks.  Basic housekeeping – independent for laundry; no ✓ in any column for basic housekeeping, but comment “Husband does all the house chores.”  Shopping – independent for going to and from stores, reading prices and labels, making appropriate choices and paying for purchases; no ✓ in any column for carrying purchases home, but comment “Husband carries all purchases home.”  Meals – independent for meal planning: no ✓ in any column for food preparation, cooking and safe storage of food, but comment “Other family members (husband and mother-in-law) do these chores.  Pay rent and bills – independent for all tasks  Medications – independent for all tasks.  Transportation – independent for getting in and out of a vehicle; no ✓ in any column for using public transit and using transit schedules, but comment “N/A, [the appellant] drives.”

APPEAL NUMBER 2020-00270

The GP provides no additional information in the space provided. Social functioning AR: The GP 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 – independent.  Securing assistance from others – independent. The GP 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 impairment.

AR: The GP indicates that assistance for DLA is provided by family, with no additional commentary. The GP does not indicate that the appellant uses any of the listed assistive devices. The GP indicates that the appellant does not have an assistance animal.

APPEAL NUMBER 2020-00270

PART F – REASONS FOR PANEL DECISION

The ministry 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). Specifically, the ministry determined that the information provided did not establish that:  the appellant has a severe mental or physical impairment;  the appellant's impairment, in the opinion of a prescribed professional, directly and significantly restricts the ability to perform daily living activities ("DLA") either continuously or periodically for extended periods; and  as a result of restrictions caused by the impairment, the appellant requires an assistive device, the significant help or supervision of another person, or the services of an assistance animal to perform DLA.

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 issue in this appeal is whether the ministry decision is reasonably supported by the evidence or is a reasonable application of the legislation in the circumstances of the appellant.

The relevant legislation is set out in the Appendix to this decision. 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 in the Appendix. 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.

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 material submitted by the independent and professional medical practitioner and any other prescribed professional 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.

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. Therefore, it is 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.

APPEAL NUMBER 2020-00270

This does not mean that other evidence should not be factored in as required to provide explanation of the professional evidence, but the legislative language is clear that a prescribed professional’s evidence is fundamental to the ministry’s determination whether it is “satisfied.”

The reconsideration process provides the opportunity for the prescribed professionals and applicant to clarify or add to the information provided on application, and the panel hearing an appeal must consider any information provided on appeal, as long as the panel finds it admissible.

Physical impairment The appellant’s position The appellant’s position, as expressed by her son, is that she is severely physically impaired by her lung condition which leaves her completely dependent on supplemental oxygen for any activity and at night. She is unable to walk any distance without oxygen, work and exercise without oxygen are out of the question, and she is dependent on family members.

The ministry’s position Noting that it determines severity of impairment based on the extent a medical condition limits daily functioning as evidenced by limitations/restrictions in mobility, physical ability and functional skills, the ministry concludes that the limitations described by the GP in the MR (functional skills) and AR (mobility and physical ability) do not describe a severe degree of physical impairment. The ministry also notes that the GP reports that the appellant does not require any prostheses or aids or the assistance from another person to help manage physical functioning.

Panel finding In the MR and AR forms, the ministry defines “impairment” as “a loss or abnormality of psychological, anatomical or physiological structure or function causing a restriction in the ability to function independently, effectively, appropriately or for a reasonable duration.” The panel finds this definition of impairment to be reasonable, given the emphasis in the legislation on restrictions and help required. Thus, as the ministry noted, a diagnosis of a serious medical condition does not in itself determine PWD eligibility or establish a severe impairment – i.e. information on the nature and extent of the resulting restrictions is required to assess the severity of impairment.

In the appellant’s case, there is substantial, clear information that the appellant suffers from a serious medical condition resulting in the need for supplemental oxygen and which may, in the future, require lung transplantation. However, at issue is the resulting degree of impairment of the appellant’s physical functioning.

The GP reports that the appellant has shortness of breath on minor exertion and is oxygen dependent but also reports that the appellant independently manages walking indoors and

APPEAL NUMBER 2020-00270

outdoors (1 to 2 blocks unaided), climbing stairs (2 to 5 steps unaided, taking significantly longer), and is able to lift 2-3 lbs. Additionally, the GP reports that the appellant does not require any prostheses/aids or assistance from another person to manage mobility/physical ability, though the GP notes that “Oxygen with nasal prongs” interferes with ambulation.

The appellant’s son disagrees with the GP’s information, stating that the appellant was not forthcoming when speaking with the GP and that the specialist who completed the Report is better able to assess the appellant because it is the specialist whom the appellant sees regarding her lung disease. The appellant’s son asks that his information and the specialist’s information in the Report be relied on instead.

While the Report confirms that the appellant is oxygen dependent and states that the appellant’s lung disease causes severe obstructive ventilator limitation, the resulting impact on physical functional abilities is unclear. The Report indicates that overall the appellant remains stable and assesses the appellant in terms of exercise and exertion based on medical classifications. However, no explanation or frame of reference regarding the classifications is provided and the degree of activity meant by “exercise” and “exertion” is not described. Accordingly, the panel finds that the information in the Report does not contain sufficient explanatory description to determine the appellant’s physical functional abilities.

The panel acknowledges the appellant’s son’s reporting of a physical functional level worse than that assessed by the GP, impacts related to the pandemic and the appellant’s need for financial assistance due to the inability to work. However, employability and financial need are not legislated considerations, instead the legislative language is clear that the fundamental basis upon which severity of impairment is determined in an independent assessment by medical professionals. The panel also notes that the GP has known the appellant for 23 years, has access to test results and reports and indicates that the assessment was based on file/chart information, not only an office interview with the appellant.

The panel acknowledges the serious nature of the appellant’s medical condition and appreciates the difficulties in obtaining medical information, particularly during the Covid-19 pandemic, but finds that the ministry was reasonable in relying on the information from the GP and concluding that a severe physical impairment has not been established.

Mental impairment Panel finding In the Request for Reconsideration submission, the appellant’s son states that the appellant is suffering from depression due to restrictions arising from the Covid-19 pandemic. However, as noted by the ministry in the reconsideration decision, the GP did not diagnose the appellant with a mental health condition as an impairment. Additionally, the GP reported that there are no significant deficits with cognitive or emotional function or difficulties with communications except for some hearing impairment. No impacts on daily cognitive and emotional functioning were identified and the appellant is assessed as independently managing all listed aspects of social functioning and as having good functioning with immediate and extended social networks.

APPEAL NUMBER 2020-00270

Accordingly, the panel finds that the ministry was reasonable in determining that a severe mental impairment has not been established.

Direct and significant restrictions in the ability to perform DLA The appellant’s position The appellant’s position, as expressed by her son, is that she requires oxygen supplementation for any walking, struggles every day and except for being able to manage personal care and make simple meals, is dependent on family members, and is unable to do things on her own due to the pandemic.