Ministry of Social Development and Poverty Reduction

APPEAL NUMBER 2021-00057

PART C – DECISION UNDER APPEAL The decision under appeal is the Ministry of Social Development and Poverty Reduction (ministry) reconsideration decision dated March 3, 2021 which denied the Appellant's request for a Monthly Nutritional Supplement (MNS) for vitamin/minerals as well as additional nutritional items. The ministry held that the requirements of Section 67(1.1) of the Employment and Assistance for Persons with Disabilities Regulation (EAPWDR) and Section 7 of Schedule C were not met as there was not sufficient information to establish that the medical practitioner confirmed:

• As a direct result of a chronic, progressive deterioration of health the Appellant displays two or more of the listed symptoms; • The Appellant requires vitamins/minerals for the purpose of alleviating a listed symptom and failure to obtain vitamin/mineral supplementation will result in imminent danger to the Appellant’s life; and, • The Appellant requires additional nutritional items as part of a caloric supplementation to a regular dietary intake to alleviate a symptom of the chronic, progressive deterioration of health and to prevent imminent danger to the Appellant’s life.

PART D – RELEVANT LEGISLATION Employment and Assistance for Persons with Disabilities Regulation (EAPWDR), Section 67(1.1) and Schedule C, Section 7

APPEAL NUMBER 2021-00057

PART E – SUMMARY OF FACTS The Appellant did not attend the hearing. After confirming that the Appellant was notified and had communicated to the Tribunal an intention to not attend the hearing, the hearing proceeded under Section 86(b) of the Employment and Assistance Regulation.

The evidence before the ministry at the time of the reconsideration decision included: 1) Letter dated February 29, 2016 in which the Appellant’s medical practitioner (MP) wrote to confirm that the Appellant has a “severe, direct, imminently life-threatening health problem that requires multiple medications, equipment, and specialized medical care to treat. 2) Letter dated February 17, 2017 in which the Appellant’s MP wrote that the Appellant has serious medical issues and, “although it is extremely difficult to predict the future and therefore [the Appellant’s] prognosis, based on [the Appellant’s] specific diagnosis it is very possible [the Appellant’s] lifespan is less than 5 years. 3) Application for MNS dated December 9, 2020 signed by the Appellant's MP and stating in part that: • The Appellant's severe medical conditions are Osteoporosis (note: “would benefit from increased protein diet”) and Pemphigus (note: “autoimmune disorder”). • In response to the question whether, as a direct result of the severe medical condition, the Appellant is being treated for a chronic, progressive deterioration of health, the MP wrote: “Yes. [The Appellant] requires chronic [steroid medication], painkillers, [antibody therapy medication].” • In response to the question whether, as a direct result of the chronic progressive deterioration in health, the Appellant display two or more symptoms, the MP indicated moderate to severe immune suppression and noted “this isn’t a ‘symptom’ but patient at risk of infections (recurrent)” as well as the symptom of significant deterioration of a vital organ with a note that “treatment causing osteoporosis.” • The Appellant's height and weight are noted. • In response to a request to specify the vitamin or mineral supplement(s) required and the expected duration of need, the MP wrote “Vitamin D” at a specified quantity per day and “Calcium” at a specified quantity per day. • Asked to describe how these items will alleviate the specific symptoms identified, the MP wrote “reduce fragility fractures.” • Asked to describe how the vitamin or mineral supplement(s) will prevent imminent danger to the Appellant’s life, the MP left this section of the form blank. • In response to a request to specify the additional nutritional items required and the expected duration of need, the MP wrote “increase protein in diet (for life).” • In response to the question whether the Appellant has a medical condition that results in the inability to absorb sufficient calories to satisfy daily requirements through a regular dietary intake, the MP wrote: “no.” • Asked to describe how the nutritional items required will alleviate one or more of the symptoms described and provide caloric supplementation to the regular diet, the MP wrote: “improve bone integrity/ reduce fractures.” • Asked to describe how the nutritional items will prevent imminent danger to the

APPEAL NUMBER 2021-00057

Appellant's life, the MP left this section of the form blank. • The MP did not provide any additional comments. 4) Letter dated January 29, 2021 in which a dermatologist wrote that that Appellant has pemphigus vulgaris and would do best with their health to have good nutrition on a daily basis to support organs and to support healing of the immune system. The Appellant finds vitamins help the condition. 5) Request for Reconsideration dated February 17, 2021.

In the Request for Reconsideration the Appellant wrote: • The Appellant believes that the doctor and the Appellant provided all the information needed. • The Appellant has an autoimmune disease that has resulted in the Appellant having osteo rheumatoid and psoriatic arthritis as well as a short life expectancy because the body is attacking itself. The Appellant believes this results in all the Appellant’s organs being affected. • The Appellant’s disease “phemphigus vulgarius” is extremely rare. • The Appellant receives four infusions a year, has taken double the amount of a normal person’s dose of vitamins recommended by the Appellant’s doctors. • The Appellant’s doctors also recommend a high protein diet. By doing so, this has slowed down the process of the Appellant not losing strength and muscle mass at a faster rate and staying as healthy as possible. • Due to COVID and not being able to see doctors at this time, the Appellant enclosed three documents from the past. The Appellant hopes this will explain why the Appellant needs assistance with the diet and vitamins at this time.

Additional information In the Notice of Appeal dated March 11, 2021, the Appellant expressed disagreement with the ministry's reconsideration decision and wrote that because of the Appellant’s personal health the Appellant desperately needs help with nutritional supplements and vitamins and minerals to survive.

The ministry relied on its reconsideration decision, which was summarized by the ministry in a thorough and helpful manner at the hearing. The ministry also clarified at the hearing that: • The Appellant is currently in receipt of a high protein diet supplement. • The ministry did not consider the older letters provided by the Appellant, from 2016 and 2017, because the MNS relates to medical issues that have an immediate need and requires the ministry to consider the Appellant’s current medical condition. • The ministry does not know if skin is a vital organ of the body.

The panel considered that there was no additional information for which a determination of admissibility was required under Section 22(4)(b) of the Employment and Assistance Act.

APPEAL NUMBER 2021-00057

PART F – REASONS FOR PANEL DECISION The issue on appeal is whether the ministry decision, which denied the Appellant's request for a Monthly Nutritional Supplement for vitamins/ minerals as well as additional nutritional items because the requirements of Section 67(1.1) of the EAPWDR and Section 7 of Schedule C were not met, was reasonably supported by the evidence or is a reasonable application of the applicable enactment in the circumstances of the Appellant.

The applicable sections of the EAPWDR are set out in the Schedule at the end of these Reasons.

Section 67(1.1)(a) of the EAPWDR- Severe Medical Condition with Chronic, Progressive Deterioration of Health

In the reconsideration decision, the ministry was satisfied that the MP confirmed that the Appellant has a chronic, progressive deterioration of health due to severe medical conditions, specifically Osteoporosis and Pemphigus (autoimmune disorder), therefore, the eligibility criterion in Section 67(1.1)(a) of the EAPWDR had been met.

Section 67(1.1)(b) of the EAPWDR- Symptoms Section 67(1.1)(b) of the EAPWDR requires that a medical practitioner or nurse practitioner confirms that as a direct result of the chronic, progressive deterioration of health, the person displays two or more of the symptoms listed, specifically: malnutrition, underweight status, significant weight loss, significant muscle mass loss, significant neurological degeneration, significant deterioration of a vital organ, or moderate to severe immune suppression.

Ministry’s Position In the reconsideration decision, the ministry was satisfied that the MP confirmed that the Appellant displays the symptom of moderate to severe immune suppression. Although the MP identified the symptom of significant deterioration of a vital organ in the MNS application, the ministry was not satisfied that there was sufficient information to establish that the MP confirmed or demonstrated that the Appellant displays the symptom of significant deterioration of a vital organ and, therefore, the ministry found that the requirement for a minimum of two listed symptoms, as set out in Section 67(1.1)(b) of the EAPWDR, had not been met. The ministry wrote that the MP indicated that the Appellant’s treatment is causing Osteoporosis and while the ministry acknowledged that Osteoporosis represents weakened bone strength, the ministry noted that bones are not considered vital organs of the human body, such as the brain, heart, kidneys, liver and lungs. The ministry wrote that there is no confirmation or evidence provided by the MP’s to establish that one or more of the Appellant’s vital organs have significantly deteriorated as a result of either of the two medical conditions reported.

APPEAL NUMBER 2021-00057

Appellant’s Position

In the Notice of Appeal, the Appellant wrote that because of the Appellant’s personal health, the Appellant desperately needs help with nutritional supplements and vitamins and minerals to survive. In the Request for Reconsideration the Appellant wrote that the Appellant believes that the Appellant’s doctor and the Appellant provided all the information needed. The Appellant wrote that the Appellant has an autoimmune disease that has resulted in having osteo rheumatoid and psoriatic arthritis as well as a short life expectancy because the body is attacking itself. The Appellant wrote that this results in all the Appellant’s organs being affected.

Panel decision In the MNS application, in response to the question whether the Appellant displays two or more symptoms as a direct result of the chronic progressive deterioration in health, the MP indicated significant deterioration of a vital organ with a checkmark and wrote: “treatment causing Osteoporosis.” In the reconsideration decision, the ministry acknowledged that Osteoporosis represents weakened bone strength, and the ministry wrote that bones are not considered vital organs of the human body, such as the brain, heart, kidneys, liver and lungs. At the hearing, the ministry stated that the ministry is not aware whether skin might be considered a vital organ of the human body. Although the MP referred to Osteoporosis in relation to the symptom of significant deterioration of a vital organ, the panel finds that the ministry reasonably determined that the bones are not considered a vital organ of the human body and the MP’s comments in the MNS application do not support a finding that the Appellant displays the symptom of significant deterioration of a vital organ.

The Appellant wrote in the Request for Reconsideration that the Appellant has an autoimmune disease that has resulted in the Appellant having osteo rheumatoid and psoriatic arthritis and a short life expectancy because the body is “attacking itself.” The Appellant wrote that autoimmune condition results in all the body’s organs being affected. In the letter dated January 29, 2021, the Appellant’s dermatologist wrote that that Appellant has pemphigus vulgaris and would do best with their health to have a good nutrition on a daily basis to support organs and to support healing of the immune system.

While the Appellant believes that all of the body’s organs are being affected by the Appellant’s autoimmune disease and the Appellant’s dermatologist recommends good daily nutrition to support organs, neither the Appellant nor the dermatologist identified a particular organ of the body or confirmed that it had been “significantly” deteriorated. The panel finds that the ministry reasonably concluded there was insufficient evidence to establish that a MP confirmed that, as a direct result of the chronic, progressive deterioration of health, the Appellant displays two of the listed symptoms. Therefore, the panel finds that the ministry’s conclusion that the criterion for eligibility in Section 67(1.1)(b) of the EAPWDR had not been met was reasonable.

APPEAL NUMBER 2021-00057

Section 67(1.1)(c) and (d) of the EAPWDR- Vitamins and Minerals

Section 7(a) of Schedule C and Section 67(1.1)(c) and (d) of the EAPWDR say that in order to receive a vitamin and mineral supplement, the MP must confirm that, for the purpose of alleviating a symptom displayed (i.e. moderate to severe immune suppression), the person requires vitamins and minerals specified in the request, and failure to obtain the vitamins and minerals will result in imminent danger to the person's life.

Ministry’s Position In the reconsideration decision, the ministry was not satisfied that the vitamin/mineral supplementation is intended to alleviate the symptom of moderate to severe immune suppression and, therefore, the ministry found that the Appellant’s request did not meet the eligibility criterion on Section 67 (1.1)(c) of the EAPWDR. The ministry wrote that the vitamins and minerals (calcium/ vitamin D) have been prescribed to treat the Appellant’s Osteoporosis to prevent fractures and not to alleviate the suppressed immune system. The ministry wrote that the dermatologist did not prescribe any specific vitamin or mineral supplements to alleviate the Appellant’s immune disorder.

The ministry was also not satisfied that failure to obtain the vitamins and minerals listed will result in an “imminent” danger to the Appellant’s life as required in Section 67(1.1)(d) of the EAPWDR. The ministry wrote that the MP did not confirm in the MNS application that failure to obtain the items requested will result in imminent danger to the Appellant’s life as the MP did not answer this question. The ministry wrote that the dermatologist also did not indicate that failure to obtain vitamin mineral supplementation will result in imminent danger to the Appellant’s life. The ministry concluded that as the Appellant’s request did not meet the requirements of Section 67(1.1)(c) and (d) of the EAPWDR, the Appellant was not eligible for the MNS of vitamin/mineral supplementation.

Appellant’s Position In the Notice of Appeal, the Appellant wrote that because of the Appellant’s personal health the Appellant desperately needs help with vitamins and minerals to survive. In the Request for Reconsideration the Appellant wrote that “phemphigues vulgarius” is an extremely rare medical condition and the Appellant has taken double the amount of a normal person’s dose of vitamins as recommended by the Appellant’s doctors.

The Appellant wrote that the Appellant has an autoimmune disease that has resulted in the Appellant having osteo rheumatoid and psoriatic arthritis as well as a short life expectancy because the body is attacking itself. The Appellant wrote that, due to COVID and not being able to see doctors at this time, the Appellant enclosed three documents from the past to explain why the Appellant needs assistance with the diet and vitamins.

APPEAL NUMBER 2021-00057

Panel decision

In the MNS application, in response to the request to specify the vitamin or mineral supplement(s) required and how these will alleviate the specific symptom identified, the MP wrote “Vitamin D” and “Calcium” to “reduce fragility fractures.” The MP recommended Vitamin D and Calcium to protect bones against “fragility fractures” due to the Appellant’s medical condition of Osteoporosis and not to alleviate the symptom of moderate to severe immune suppression that the ministry found had been confirmed by the MP, as previously discussed. In the letter dated January 29, 2021, the Appellant’s dermatologist wrote that that Appellant finds vitamins help with the Appellant’s condition of pemphigus vulgaris. In the panel’s view, the ministry reasonably determined that the dermatologist did not confirm that the vitamins are required to alleviate a particular symptom displayed by the Appellant as a result of the Appellant’s diagnosed medical condition.

Although the Appellant wrote in the Request for Reconsideration that the Appellant has taken double the amount of a normal person’s dose of vitamins recommended by the Appellant’s doctors due to the medical condition of “phemphigues vulgarius,” there was no further information to show confirmation by a MP that the vitamins are required to alleviate a symptom displayed by the Appellant. The panel finds that the ministry reasonably determined there was insufficient evidence to establish that a MP confirmed that, for the purpose of alleviating a symptom displayed by the Appellant, the Appellant requires vitamins and minerals. Therefore, the panel finds that the ministry’s conclusion that the eligibility requirement in Section 67(1.1)(c) of the EAPWDR had not been met was reasonable.

In the MNS application, when asked to describe how the vitamin or mineral supplement(s) will prevent imminent danger to the Appellant’s life, the MP left this section of the application blank. The Appellant wrote that, due to COVID and not being able to see doctors at this time, the Appellant enclosed three documents from the past to explain why the Appellant needs assistance with the diet and vitamins. In the reconsideration decision, the ministry acknowledged that the Appellant had provided two letters from the MP, written in 2016 and 2017, and wrote that the ministry is unable to use this information to determine current eligibility for MNS as they do not contain current information.

In the letter dated February 29, 2016, the MP confirmed that the Appellant has a “severe, direct, imminently life-threatening health problem that requires multiple medications, equipment, and specialized medical care to treat.” In the letter dated February 17, 2017, the MP wrote that the Appellant has serious medical issues and “although it is extremely difficult to predict the future and therefore [the Appellant’s] prognosis, based on [the Appellant’s] specific diagnosis it is very possible [the Appellant’s] lifespan is less than 5 years.” While these letters confirm that the Appellant has lived with a serious medical condition for several years, the panel finds that the references to “imminently life-threatening” from 5 years ago and a prognosis of a 5-year life span from 4 years ago are dated and of limited value to finding that the MP has confirmed a

APPEAL NUMBER 2021-00057

failure to obtain the vitamins and minerals will result in “imminent” danger to the Appellant’s life, or that the danger is ‘about to happen.’ The panel finds that the ministry was reasonable to require current information from a MP to confirm that the failure to obtain the vitamins and minerals will result in imminent danger to the person's life and, therefore, to place no weight on the information in the older letters from the MP.

In the more current letter dated January 29, 2021, the Appellant’s dermatologist wrote that, due to the Appellant’s diagnosis of pemphigus vulgaris, the Appellant would “do best” to have good daily nutrition “to support [the Appellant’s] organs and to support healing of the immune system” and that the Appellant “finds vitamins help [the Appellant’s] condition.” The dermatologist observed that the Appellant finds that vitamins help with the medical condition; however, the dermatologist does not confirm that failure to obtain vitamin mineral supplementation will result in imminent danger to the Appellant’s life. The panel finds that the ministry was reasonable to conclude that there is insufficient evidence to establish that a MP confirmed that failure to obtain the vitamins and minerals will result in imminent danger to the Appellant's life. Therefore, the panel finds that the ministry reasonably concluded that the eligibility criterion in Section 67(1.1)(d) of the EAPWDR had not been met.

Section 67(1.1)(c) & (d) and Schedule C, Section 7(a)- Additional Nutritional Items Section 7(a) of Schedule C and Section 67(1.1)(c) of the EAPWDR say that a medical or nurse practitioner must confirm that, for the purpose of alleviating a symptom referred to in sub-section (b), the Appellant requires the additional nutritional items that are part of a caloric supplementation to a regular dietary intake as specified in the request.

Ministry’s Position The ministry wrote in the reconsideration decision that the ministry was not satisfied that a MP confirmed that the Appellant requires additional nutritional items as part of a caloric supplementation to a regular dietary intake. The ministry wrote that while the MP indicated increased protein for life is required to improve bone integrity and reduce fractures, significant deterioration of a vital organ was not accepted as a confirmed symptom and the MP did not describe how or if the increased protein will alleviate the symptom of moderate to severe immune suppression. The ministry wrote that special dietary restrictions or requirements (i.e. protein, gluten-free, generally healthier diet) are not considered indicative of a need for caloric supplementation, and the ministry stated at the hearing that the Appellant is currently in receipt of a supplement for a high protein diet. The ministry wrote that the MP does not provide evidence to demonstrate that a high protein diet is required for caloric supplementation as the Appellant does not display a symptom that would indicate a need for caloric supplementation (such as underweight status, significant weight loss, or significant muscle mass loss), the Appellant is within the normal weight range, and the Appellant does not have a medical condition that results in an inability to absorb sufficient calories to satisfy daily requirements

APPEAL NUMBER 2021-00057

through a regular dietary intake.

The ministry was also not satisfied that failure to obtain the additional nutritional items will result in an “imminent” danger to the Appellant’s life as required in Section 67(1.1)(d) of the EAPWDR. The ministry wrote that the MP did not confirm that protein supplementation is required to prevent imminent danger to the Appellant’s life as the MP did not answer this question in the MNS application. The ministry concluded that, as the Appellant’s request did not meet the requirements of Section 7 of Schedule C and Section 67(1.1)(c) and (d) of the EAPWDR, the Appellant was not eligible for the MNS of additional nutritional items.

Appellant’s Position In the Notice of Appeal, the Appellant wrote that because of the Appellant’s personal health the Appellant desperately needs help with nutritional supplements in order to survive. In the Request for Reconsideration the Appellant wrote that the Appellant’s doctor and the Appellant provided all the information needed. The Appellant wrote that the Appellant’s doctors recommend a high protein diet that will slow down the process of losing strength and muscle mass and allow the Appellant to stay as healthy as possible.

Panel decision In the MNS application, in response to a request to specify the additional nutritional items required, the MP wrote “increase protein in diet (for life).” In the reconsideration decision, the ministry wrote that special dietary restrictions or requirements (i.e. protein, gluten-free, generally healthier diet) are not considered indicative of a need for caloric supplementation. The MP makes a recommendation for a larger portion of the Appellant’s regular dietary intake to consist of protein and the ministry stated at the hearing that the Appellant is currently in receipt of a supplement for a high protein diet. The panel finds that the ministry reasonably determined that a need for an increase in protein in one’s diet is not indicative of a need for caloric supplementation.

Asked in the MNS application to describe how the increased protein in the Appellant’s diet will alleviate one or more of the symptoms described and provide caloric supplementation to the regular diet, the MP wrote: “improve bone integrity/ reduce fractures.” The increased protein is recommended by the MP to address the Appellant’s medical condition of Osteoporosis and not to alleviate the symptom of moderate to severe immune suppression, which symptom the ministry found had been confirmed by the MP, as previously discussed. While the Appellant wrote in the Request for Reconsideration that the Appellant’s doctors recommend a high protein diet that will slow down the process of losing strength and muscle mass and allow the Appellant to stay as healthy as possible, the MP did not confirm the symptom of significant muscle mass loss in the MNS application.