Ministry of Social Development and Poverty Reduction

APPEAL NUMBER 2021-00017 PART C – DECISION UNDER APPEAL The decision under appeal is the Ministry of Social Development and Poverty Reduction’s (“ministry”) reconsideration decision dated January 5, 2021, in which the ministry found the appellant was not eligible for designation as a Person with Disabilities (“PWD”) under section 2 of the Employment and Assistance for Persons with Disabilities Act (“EAPWDA”). The ministry found that the appellant met 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 was not 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 4.2

APPEAL NUMBER 2021-00017 PART E – SUMMARY OF FACTS The evidence and documentation before the minister at the reconsideration consisted of:

1. Information from the ministry’s record of decision indicating that the PWD application was received on November 30, 2020 and denied on December 9, 2020. On December 23, 2020, the appellant submitted the Request for Reconsideration (“RFR”). On January 5, 2021, the ministry completed the review of the RFR.

2. An RFR signed by the appellant with a typed submission describing a stroke in March 2019 that resulted in left side paralysis. The appellant reports that his body is still “constantly numb” with unpleasant tingling that “feels like an electric shock.”

Regarding his mental functions, the appellant states that his memory has declined and his thought processes have slowed down.

Regarding his physical functions, the appellant states he cannot walk more than a block without suffering pain and exhaustion. The appellant said he cannot stand for more than 20 minutes or sit in the same position for longer than 10 minutes. After being re-admitted to hospital in June 2019 due to his brain injury and high blood pressure, the appellant reports not returning to work because he is “horribly slow and in pain”. The appellant said he is unable to walk without a cane.

The appellant said that he needs a family member “to do most things for me” including remembering appointments, filling out forms, and talking to doctors/specialists. The appellant describes financial hardship and reports being homeless, ‘couch surfing” with a friend or family member.

3. The PWD application comprised of:  the Applicant Information (self-report - “SR”) dated July 7, 2020, in which the appellant describes continuing restrictions from the stroke that paralyzed the right side of his body.

 a Medical Report (“MR”) dated October 28, 2020, signed by the appellant’s general practitioner (“Dr. R.”) who has known the appellant for more than 30 years and has seen the appellant 2 to 10 times in the past 12 months; and an

 Assessor Report (“AR”) dated November 10, 2020, also completed by Dr. R. who based the assessment on an office interview with the appellant.

4. Additional medical documents submitted with the PWD application including:  Case notes from Dr. R. dated November 2, 2020, summarizing the appellant’s diagnoses, medications, social history, and medical history.

 A discharge summary from a hospital doctor (“Dr. A.”) dated June 16, 2020, describing the appellant’s diagnoses (pre/post-admission and secondary conditions), results from medical tests, medications, treatment in the hospital, and discharge advice.

5. A letter from the ministry dated December 9, 2020, with attached Denial Decision Summary advising that the appellant did not meet all the criteria for PWD designation.

APPEAL NUMBER 2021-00017 Summary of relevant evidence from the application: Diagnoses In the MR, the appellant is diagnosed with several conditions including:  cardiovascular accident (“stroke”), right hemiparesis, and dysesthesia (onset 2019)  hypertension (onset 2017)  Obstructive sleep apnea (onset 2020)  Hepatitis C, and  Substance use disorder. In Part B - Health History, Dr. R. explains that the appellant has a “very low mood” due to his disability; sleep apnea causes daytime sleepiness; hypertension is controlled with medication; Hepatitis C is chronic and stable, and substance use is presently controlled.

In Part F - Additional Comments, Dr. R. writes that the appellant’s condition is not likely to improve. The appellant has had several recent hospital admissions due to difficulty controlling his high blood pressure.

In the June 2020 hospital discharge summary, Dr. A. reports that the appellant’s poorly controlled hypertension is “due to drug non-compliance” and the right-sided dysesthesia is a lasting impact from the stroke in 2019.

Functional skills Self-Report The appellant states that after he had the stroke, he could not get out of bed for 4 months. Through exercise and physiotherapy, he was able to walk again with a permanent limp and the use of a cane. The appellant reports continuing numbness and “constant tingling.” The appellant said he cannot walk any distance or stand for a long period.

Medical Report In Part D - Functional Skills, the appellant can walk less than 1 block unaided on a flat surface. Dr. R. checked unknown when asked how many stairs the appellant can climb and how much weight he can lift. The appellant has no limitations with remain seated.

Dr. R. checked no difficulties for communication. Dr. R. indicates significant deficits with cognitive and emotional function in 5 of the 12 areas listed on the form: Executive, Memory, Emotional disturbance, Impulse control, and Attention/sustained concentration. The section for comments is blank.

Assessor Report In Part B-2, Ability to Communicate, Dr. R. indicates the appellant has good ability for the 4 areas listed: Speaking, Reading, Writing, and Hearing.

For Part B-3, Mobility and Physical Ability, Dr. R. checked uses assistive device for the 6 areas listed: Walking indoors, Walking outdoors, Climbing stairs, Standing, Lifting, and Carrying/holding. The section for comments is blank.

APPEAL NUMBER 2021-00017 In Part B-4, Cognitive and Emotional Functioning, Dr. R. provides information on impacts to functioning that are due to the appellant’s mental impairment or brain injury:

 No impact in 8 of the 14 areas listed: Bodily functions, Consciousness, Insight and judgment, Executive, Motivation, Language, Psychotic symptoms, and Other neuro-psychological problems  Minimal impact in 2 areas: Motor activity, and Other emotional or mental problems  Moderate Impact in 3 areas: Impulse control, Attention/concentration, and Memory  Major Impact in 1 area: Emotion. Hospital discharge summary During the June 2020 hospital admission, the appellant was assessed by Physiotherapy as currently “baseline independent with mobility and his numbness is currently at the same level as prior to admission and this has been since March 2019.” Dr. A. reports that “patient does not have significant neurological deficit” and is medically stable and wants to go home. The appellant requires further investigation for sleep apnea and rapid access follow up with Neurology.

Daily Living Activities Medical Report Dr. R. check marked yes when asked if the appellant is prescribed medications or treatments that interfere with the ability to perform DLA, specifically medications for hypertension and “lipid lowering.”

In Part E - Daily Living Activities, Dr. R. checked yes, the impairment restricts the appellant’s ability to perform DLA. On the list of specific DLA, the doctor indicates that 6 of the 10 DLA are restricted as follows:

5 DLA are continuously restricted:  Personal self-care  Management of medications  Mobility inside the home  Mobility outside the home  Management of finances Daily shopping is also restricted. There is no check mark to indicate if the restriction is continuous or periodic. For Basic housework, and Use of transportation, Dr. R. checked unknown when asked if the activity is restricted.

In the MR, no check mark or information is provided for Social functioning. Assessor Report In Part C - Daily Living Activities, Dr. R. indicates the appellant requires assistance with 3 of the 8 DLA listed on the form:

APPEAL NUMBER 2021-00017  Shopping: -The appellant needs periodic assistance from another person when Going to and from stores. -The appellant needs continuous assistance from another person for Carrying purchases home. -The appellant is independent with the remaining 3 areas of Shopping: Reading prices and labels, Making appropriate choices, and Paying for purchases.

 Transportation: -The appellant needs periodic assistance from another person when Getting in and out of a vehicle. -The appellant uses assistive device when Using public transportation. -The appellant needs continuous assistance from another person in Using transit schedules and arranging transportation.

 Social Functioning: -The appellant needs periodic support/supervision with Able to develop and maintain relationships. -The appellant is independent with the 4 other areas of Social Functioning: Appropriate social decisions, Interacts appropriately with others, Able to deal appropriately with unexpected demands, and Able to secure assistance with others. -The appellant has good functioning with his immediate and extended social networks.

For DLA requiring assistance, Dr. R. left the section for Additional comments blank (including a description of the assistance required and any safety issues). Part E of the AR (Additional Information regarding restrictions to DLA) was also left blank.

For 5 DLA listed in the AR, Dr. R. indicates the appellant is independent with all areas:  Personal care: Dressing, Grooming, Bathing, Toileting, Feeding self, Regulating diet, Transfers (bed), and Transfers (chair).  Basic housekeeping: Laundry, and Basic housekeeping.  Meals: Meal planning, Food preparation, Cooking, and Safe storage of food.  Pay Rent and Bills: Banking, Budgeting, and Pay rent and bills.  Medications: Filling/refilling prescriptions, Taking as directed, and Safe handling and storage. Need for help Medical Report Under Health History (Part B), Dr. R. marked yes, the appellant requires prostheses or aids for the impairment (comment, “patient requires a cane for safe ambulation”).

In Part E - Daily Living Activities, when asked what assistance the patient needs with DLA, Dr. R. writes, “periodic assistance to manage his domestic activities.”

Assessor Report In the AR (Part D), Dr. R. indicates that the appellant’s family and friends provide assistance with DLA. For Assistance provided through the use of assistive devices, Dr. R. checked cane. For Assistance provided by Assistance animals, Dr. R. checked no.

APPEAL NUMBER 2021-00017 Other Both Dr. R. and Dr. A. indicate the appellant requires a CPAP machine for sleep apnea. Dr. R. comments, “not affordable.”

Additional information Subsequent to the reconsideration decision, the appellant filed a Notice of Appeal with a handwritten submission which the panel accepts as argument.

The appellant attended the hearing with an advocate (family member). Due to computer/technical issues the panel granted two adjournments from the original hearing date of February 8, 2021.

At the hearing, the appellant described another recent hospital visit (“yesterday”) with referrals to Neurology and the stroke clinic. The appellant said he had a CT scan at the hospital but only an MRI can show the hemorrhage in his brain. The advocate explained that the appellant’s doctors told him to go to the Emergency department (“ER”) right away if he feels dizzy, more tired, or has greater difficulty with movement.

The appellant said he went to the ER because he was feeling dizzy for the past week, he was sleeping all weekend, his elbow was “dropping down,” he was tripping on everything including the stairs, he stumbled while walking, and “had trouble hanging onto utensils.”

The appellant reports that his condition is getting worse; he can “hardly walk” (“no further than a block, in pain even with a cane, maximum 2 blocks”). The appellant said that the only place he can walk without a cane is around the living room and although he can shop “with a buggy” he still needs his cane as well and shopping is very difficult.

The advocate reports that the appellant needs help everyday. Family members manage his finances, help him with time management, and do the shopping. The advocate said the appellant can now manage his medications, and he can drive (“because he’s sitting”) but he cannot walk further than 1 block and sitting is very uncomfortable (“he has to move his body a lot”).

In response to questions, the appellant explained that Dr. R. has stopped working. The appellant found a new doctor (“2 days ago”) but has not seen that doctor yet. The appellant reported moving between communities, “couch surfing” with different relatives who help with DLA in whatever place he is staying.

The ministry did not raise any objections to the appellant’s testimony. The panel admits the testimony as evidence under 22(4) of the Employment and Assistance Act. The panel finds the appellant’s additional information is admissible because it gives an update and further details about the medical condition and restrictions to function. The new information is therefore reasonably required for a full and fair disclosure of all matters related to the decision under appeal.

The ministry relied on the reconsideration record and did not submit new evidence at the hearing. In response to questions the ministry discussed its process for adjudicating PWD applications. The panel accepts the submissions as part of the analysis of the evidence. The panel considers both parties’ arguments in Part F - Reasons for panel decision.

APPEAL NUMBER 2021-00017 PART F – REASONS FOR PANEL DECISION The issue on appeal is whether the ministry’s decision that found the appellant ineligible for PWD designation was reasonably supported by the evidence or was a reasonable application of the legislation in the circumstances of the appellant. The panel’s role is to determine whether the ministry was reasonable in finding that the following eligibility criteria in section 2 of the EAPWDA were not met:

• 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 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 based the reconsideration decision on the following 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 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

APPEAL NUMBER 2021-00017 (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…

APPEAL NUMBER 2021-00017 The panel finds that Part 2 of the EAPWDR is also relevant to the analysis of the evidence. Part 2 — Eligibility for Disability Assistance Division 1 — Applications and Applicant Requirements Application for disability assistance — stage 2 4.2 (3) On completion of the first stage process provided for in section 4.1, the applicants for disability assistance in the family unit must complete and submit to the minister an application for disability assistance (part 2) form and must include as part of the application…

(c) the information, authorizations, declarations and verifications specified by the minister as required in the application for disability assistance (part 2) form.

*** Analysis Severe mental or physical impairment To be eligible for PWD designation, the legislation requires several criteria to be met including the minister being satisfied that the applicant has a severe mental or physical impairment. To assess both a physical and mental impairment the ministry said it considers the appellant’s information in conjunction with the assessments provided by the doctor and any other medical professionals.

In response to questions about what weight the ministry gives the SR versus the MR and AR, the ministry said she didn’t know for sure but the ministry adjudicator has to look at the information as a whole to determine if the legislative requirements are met. The panel notes that section 4.2(3) of the EAPWDR requires the PWD application to be in the form prescribed by the minister (“part 2” form).

This form consists of 3 reports: the SR, MR, and AR. The SR is optional as the applicant can check that they choose not to complete it. Where a completed SR is submitted with the application the legislation does not indicate what weight to give The SR or the medical reports. The panel considers the information in each report to carry weight when it is material to PWD eligibility.

The ministry found the appellant was not eligible for PWD because not all the criteria were met. “Severe” is not defined in the legislation but in the ministry’s view, the diagnosis of a serious medical condition does not in itself establish a severe impairment of mental or physical functioning.

Mental impairment To assess the severity of a mental impairment, the ministry considers the extent of any impact on daily functioning as shown by limitations/restrictions with mental functions and emotion. The ministry does not only look at the diagnosis or a medical practitioner’s comment that the condition is “severe” but considers the bigger picture including whether there are restrictions to DLA requiring mental/social functioning (”mental DLA”) and whether significant help is required to manage those DLA. The panel finds that an assessment of severity based on cognitive and social functioning and restrictions to mental DLA is a reasonable interpretation of the legislation.

APPEAL NUMBER 2021-00017 Arguments Appellant The appellant’s evidence mostly relates to his physical limitations, but he states that the stroke also caused his memory to decline and his thought processes to slow down (“it takes longer for things to register in my mind”). The advocate argues the appellant needs ”significant daily help” with time management, appointment reminders, finances, and communicating with the doctors. The appellant feels he has “zero options” due to his inability to work and the stress of being homeless; he reports always having his own home, and a career in the past.

Ministry The ministry argues there was not enough evidence to confirm a severe impairment of mental functioning because despite reported deficits with mental functions, the appellant is assessed as independent “in almost all activities related to making decisions regarding personal care, and finances, as well as social functioning.” The ministry acknowledges the appellant’s life is impacted by the stroke but argues there was not enough information to reconcile the higher degree of support the appellant said he needs, with the degree of help indicated by Dr. R.

Panel’s decision - mental impairment The panel finds it was not reasonable for the ministry to conclude that a severe mental impairment was not established on the evidence.

When looking at the reported deficits and impacts in the appellant’s cognitive and emotional functioning, in conjunction with Dr. R.’s information on mental DLA, the record indicates that:

 Dr. R.’s assessments are consistent between the MR and AR, supporting a severe impairment in several areas as the result of the stroke. These assessments are also consistent with the appellant’s self reports: - Emotion: mood “very low”; significant deficit (MR) and major impact (AR) - Memory: significant deficit (MR) and moderate impact (AR) - Attention/concentration: significant deficit (MR) and moderate impact (AR)

 The appellant reports deficits in 2 other areas as well: - Bodily functions: the appellant recently “slept all weekend” as his condition worsened, and - Executive: planning, organizing

For these functions, there is some inconsistent information between the MR and AR: - Bodily functions: “daytime hypersomnolence” due to sleep apnea (MR) versus no impact (AR) - Executive: significant deficit (MR) versus no impact (AR)

The panel gives more weight to the information in the MR because it is consistent with the appellant’s reports of extreme sleepiness (especially right before the most recent hospitalization) and slow thought processes.

Regarding the ability to communicate, the appellant indicates he needs “constant help” talking to doctors and understanding the medical information but in the MR and AR, Dr. R. reports no difficulties with communication, good ability in all areas, and no impact for Language. However, with slower thought processes and difficulties with memory it follows that the appellant would need help communicating and understanding medical information, especially the many technical words relating to the stroke.

APPEAL NUMBER 2021-00017 When looking at Dr. R.’s information on mental DLA the record indicates that:  Personal self-care, Management of Finances, and Management of Medications are significantly restricted. (MR)  The appellant needs periodic support with developing and maintaining relationships. (AR) At the same time, the appellant is assessed as independent with Personal Care, Pay Rent and Bills, Medications, and most areas of Social Functioning (AR). For these DLA, Dr. R. does not explain the difference in assessments between the MR and AR.

However, in both the MR and AR, Dr. R. indicates the appellant needs help from family and friends to manage DLA. Further, despite good functioning with his social networks, the appellant’s low mood and dependence on family for help and shelter would reasonably impact his relationships.

The ministry concluded that mental DLA were not impacted enough to support a finding of a severe impairment, but the panel gives significant weight to the DLA assessments in the MR. The evidence for deficits and impacts to Emotion, Memory, Attention/concentration, and Executive function, confirmed by both Dr. R. and the appellant, supports restrictions to mental DLA. In addition, the information from the doctor and the appellant indicates the appellant needs help with mental DLA. A family member reminds him of appointments, manages his finances, etc. The appellant’s very low mood and daytime sleepiness further impact his daily life.