Ministry of Social Development and Poverty Reduction

APPEAL NUMBER 2021-0119

PART C – DECISION UNDER APPEAL The decision under appeal is the Ministry of Social Development and Poverty Reduction (the Ministry) Reconsideration Decision (RD) dated May 31, 2021, which found that the Appellant did not meet three of the five statutory requirements of Section 2 of the Employment and Assistance for Persons with Disabilities Act (EAPWDA) for designation as a person with disabilities (PWD). While the Ministry found that the Appellant met the age requirement and had an impairment which was likely to continue for at least two years, it 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 these restrictions, the Appellant requires the significant help or supervision of another person, the use of an assistive device, or the services of an assistance animal to perform DLA.

The Ministry also found that the Appellant is 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) and the Appellant did not appeal the decision on this basis. 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 EAPWDA, Section 2 Employment and Assistance for Persons with Disabilities Regulation (EAPWDR), Section 2 Employment and Assistance Act (EAA), Section 22(4)

The relevant legislation is provided in Appendix A.

APPEAL NUMBER 2021-0119

PART E – SUMMARY OF FACTS The evidence before the Ministry at the time of the RD included the PWD Application comprised of the applicant information and self report (SR) completed by the Appellant on March 31, 2021, a Medical Report (MR) dated March 31, 2021 and completed by the Appellant’s General Practitioner (GP), who has known the Appellant for four and a half years and who has seen the Appellant 11 or more times in the past year, and an Assessor Report (AR) dated March 31, 2021, also completed by the GP.

The evidence available when the RD was made also included:  A Request for Reconsideration (RFR), signed by the Appellant on May 6, 2021, in which she describes her medical condition and impairments, identifies the difficulties she has in performing DLA, and the help she needs and receives from roommates and family members in performing her DLA (as specified in detail below);

 A one-page letter, dated April 29, 2021, from a registered physiotherapist at a community wellness centre (the Physiotherapist’s Letter) outlining the Appellant’s symptoms, the type of treatment the Physiotherapist is providing, and indicating that the Appellant’s symptoms are unchanged;

 A one-page letter, dated April 29, 2021, from a registered nurse at a congenital heart clinic (the Nurse’s Letter) identifying the Appellant as a patient awaiting cardiac surgery;

 A two-page letter dated May 1, 2021 from the Appellant’s Mother (the Mother’s letter) describing the Appellant’s medical condition and her impairments, providing a history of her illness, identifying the difficulties the Mother has observed the Appellant having with her DLA, and the help the Appellant needs with those DLA; and,

 An undated one-page letter from the Appellant’s employer (the Employer’s Letter) providing examples of difficulties the Appellant has had completing required tasks at work.

Diagnoses In the MR, the GP diagnosed the Appellant with congenital heart disease, with a date of onset of May 2000.

Physical Impairment In the MR, under “Health History”, the GP states that the Appellant reports that her condition affects her ability to live and work independently. The GP also refers to two attached documents for more information:

 A cardiology procedure note dated March 22, 2021 (the Cardiology Procedure Note) identifying the Appellant as the patient and providing the results of a medical procedure involving a tricuspid valve replacement, an “ASD repair” and an atrial pacemaker; and,

 A cardiology consultation note (the Cardiology Consultation Note) dated January 19, 2021 referring to the Appellant and summarizing the Appellant’s diagnoses and symptoms and tests

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administered during the consultation, and concluding that the Appellant “is showing progressive inflow stenosis and likely has reached something of a more critical degree of inflow compromise across her tricuspid valve”.

With respect to functional skills, the GP reports that the Appellant can walk less than one block unaided on a flat surface, climb more than 5 steps unaided, and has no limitations in the amount of time she can remain seated. The GP indicates that the Appellant’s lifting limitations are unknown. In the section of the MR where the prescribed professional is asked to provide any additional information that might be considered relevant in understanding the significance of the Appellant’s medical condition and the nature of their impairment, the GP has written “Please see (the Cardiology Procedure Note) and the (Cardiology Consultation Note)”. While the Cardiology Procedure Note does not address the Appellant’s physical limitations, the Cardiology Consultation Note says, in part, “(The Appellant) is on ongoing follow-up due to challenges with exertion intolerance over the past month. She is now on medical employment insurance (EI). She describes frequent postural lightheadedness. Her fatigue has been progressive, and she is finding herself slowing on stairs, often having to sit and recover after walking up to her apartment. A stress test performed in (a different community in the Province) showed a relatively rapid tachycardia to 150 per minute and she was only able to achieve 4 minutes on the Bruce protocol … She has nonspecific chest tightness concurrently with some of her external symptoms. She has not had complete syncope … She was previously working 8 hour shifts and no longer can handle them; hence is now in EI. She has seen a physiotherapist for her intermittent vertigo and is receiving treatment in this regard”.

In the section of the AR where the assessor is asked to indicate the assistance required related to impairments that directly restrict the applicant’s management of mobility and physical abilities, the GP indicates that the Appellant is independent in all areas (walking indoors and outdoors, standing, climbing stairs, lifting, and carrying and holding), providing the following explanation “Limited by progressively worsening inflow stenosis of tricuspid valve”. The GP has not provided any additional comments in the space provided.

In the SR, the Appellant writes that she has Ebstein’s anomaly, the symptoms of which are shortness of breath, especially with exertion, fatigue, heart palpitations or abnormal heart rhythms, and a bluish discoloration of the lips and skin caused by low oxygen. She also states that she has cervically induced dizziness which is responsible for a neck-related sensation in which she feels she is spinning or the world around her is spinning. It also affects her sense of balance and concentration. Symptoms include headaches, neck pain, loss of balance, weakness, and problems concentrating. In addition, she states that she has pericarditis, which causes sharp chest pain, which may also be felt in the shoulders, neck or back. She says that there have been many times in her life that she has missed school or work for days and sometimes months because of her heart condition, and that she can have difficulties at any time with little to no warning.

In the RFR, the Appellant writes that it is extremely difficult for her to walk any distance, even when only going from her couch to the other areas of her home. She can walk less than one block or for more than a minute because she quickly becomes short of breath, gets tightening and pain in her chest that makes her feel like she is being suffocated. She states that she tires easily when walking or climbing stairs and gets dizzy. She quickly becomes short of breath which increases her chest pain, and on several occasions she has fainted. She wrote that she tries to avoid climbing stairs at all costs, and that she had

APPEAL NUMBER 2021-0119

to relocate from her last home a few months ago because she could no longer walk up the stairs to her apartment. Regarding lifting and carrying, she writes that she has had a doctor's note for the past several years, originally written to her employer, stating that she is unable to lift more than five pounds. She writes that she has trouble sleeping because she gets chest pains and feels like she’s suffocating when she lies down. She says that she also has neck and shoulder pain due to her cervical vertigo, and she is unable to look up or side to side without getting dizzy.

Mental Impairment In the section of the MR where the prescribed professional is asked if there are any significant deficits with cognitive and emotional function, the GP has ticked “yes” for the areas of emotional disturbance and “other” without specifying the other area, adding the comment “Patient reports vertigo and cervical induced dizziness by physiotherapist (see attached). Leads to concern with cognitive abilities”. The attached document to which the GP refers is the Physiotherapist’s Letter, which states that “During the course of her treatment, (the Appellant complained) of dizziness, headache, ringing in her ears, shortness of breath, lower activity tolerance and faint feeling since May 2020, affecting her work duties as well as (DLA) to the point that she was able to work only 2 hours per day with support and required support from her family for (DLA)”.

In the section of the AR where the assessor is asked to indicate the level of ability to communicate, the GP indicates that the Appellant’s abilities are good in all areas (writing, speaking, reading ability and hearing) with no explanation or description provided in the section of the AR where comments can be provided. In the section of the AR where the assessor is asked to indicate to what degree the applicant’s mental impairment restricts or impacts functioning, the GP has indicated no major impacts, a moderate impact on bodily functions, emotion and motivation, a minimal impact on attention/concentration, memory, motor activity and other neuropsychological problems, and no impact on consciousness, impulse control, insight and judgment executive functioning, language, psychotic symptoms, or other emotional or mental problems. (It is noted that, while the AR asks the assessor to “explain in the section below” if any impact is episodic or varies over time and to “explain on next page” what other neuropsychological problems exist, no comments section or space to explain appear on that page or the next page of the form.)

With respect to social functioning, the GP indicates in the AR that the Appellant is independent in all areas (making appropriate social decisions, ability to develop and maintain relationships, appropriate interaction with others, dealing appropriately with unexpected demands and ability to secure assistance from others). No comments are provided in the space provided. The GP also indicated that the Appellant has good functioning with their immediate and extended social networks. The GP makes no other comments or explanations.

In the RFR, the Appellant writes that she has cognitive difficulties due to cervical vertigo, depression, anxiety, and attention deficit disorder (ADD). She states that she has been tested for these conditions and “been diagnosed with (these conditions) by medical professionals”. She also says that she becomes lightheaded and dizzy when faced with stairs and must stop and sit for up to 10 minutes after walking up five steps before she can continue walking. It is difficult for her to concentrate or explain things as her mind wanders or will blank out, and she has trouble following written or verbal directions as she will

APPEAL NUMBER 2021-0119

quickly forget what is said. She says that she has trouble sleeping because when she lies down, she gets chest pains and feels like she is suffocating.

In the SR, the Appellant also states that she is unable to concentrate for long periods of time and is unable to communicate properly because she loses concentration and quickly forgets what was said. She has trouble following written instructions, which she must re-read many times, and verbal instructions, which must be repeated many times.

The Appellant also states in the SR that she gets lightheaded when she stands up, so she must sit for three to five minutes first. She says that she is always tired and feels mentally drained and is unable to look up or side-to-side without getting dizzy. If she holds a position for too long, she might pass out and is unable to communicate properly because she loses concentration or forgets what was said to her. 

Restrictions in the Ability to Perform DLA In the MR, the GP indicates that the Appellant has been prescribed medications or treatments that interfere with their ability to perform DLA, adding the comment “Patient reports Furosemide prescribed by (a different medical practitioner) led to presyncope with potential changes and now takes this medication every other day”, and in response to the question “What is the anticipated duration of the medication” writes “Unknown. No consults were available from (the other medical practitioner) to review”.

In the RFR, the Appellant states that when shopping she gets overwhelmed and finds it hard to concentrate on what she needs to purchase. Grocery shopping takes a lot longer than the average person because she must walk slowly. She says that she gets lightheaded, dizzy, faint and feels increased chest pain. She needs to stop often and sit, which creates a ton of anxiety as she becomes “a focal point to other customers and staff”, and that afterwards she has to lie down for the rest of the day and is unable to do anything the following day because she is very light-headed, faint and both mentally and physically exhausted.

Regarding housekeeping, the Appellant writes in the RFR that she struggles to pick up laundry to place it in a basket as the movement creates dizziness due to her cervical vertigo, and when she tries to do laundry, load or unload the dishwasher, clean the house or cook, her heart rate increases rapidly and she gets short of breath, lightheadedness, dizziness and chest pain. She also writes that she has difficulties remembering when bills are due each month, the times and dates of appointments, etc., and that she must create lists, or she will forget. She is unable to read more than a paragraph without taking a break or watch TV or videos for long periods because she gets headaches and has difficulty focusing. She reports that she can't retain information and when reading must continually go back and re-read what she just read.

In the SR the Appellant says that she has trouble following written instructions and must re-read the many times and have verbal instructions repeated many times. She writes that she forgets basic things like taking something out of the microwave, or she will walk into room and forget what she is doing and is unable to do basic housework or make meals because she gets shortness of breath, dizziness, and chest pains.

APPEAL NUMBER 2021-0119

In the Nurse’s Letter, the registered nurse writes that “(The Appellant) is currently limited even with (DLA) due to the severity of her symptoms” and “As per (a medical practitioner at the congenital heart clinic) we anticipate that (the Appellant) will be able to return to work six month’s post surgery”.

In the Mother’s Letter, the Appellant’s Mother writes that the Appellant struggles with DLA, indicating by way of example that “A simple 30 minute meal will take (the Appellant) over 2 hours to make as she continually needs to sit or (lie) down”, and that she is unable to do any cleaning, including laundry, and that the Mother was doing all of the Appellant’s shopping because the Appellant is unable to walk around a store.

In the Employer’s Letter, the Appellant’s employer identifies several work-related activities for which the Appellant demonstrated similar difficulties to those relayed by the Appellant and others with respect to her DLA.

Need for Help In the MR the GP indicates that the Appellant does not require any prostheses or aids for their impairment. Under “Health History”, the GP writes “Patient reports her condition affects her ability to live … independently”.

In the section of the AR that asks who provides the help required for DLA the GP has ticked “Family” and “Friends” without completing the comments section. In the AR, the GP has ticked the box labelled “Independent” with respect to all DLA except for the basic housekeeping DLA, going to and from stores, carrying purchases home, food preparation, cooking, and using public transit, where the GP has ticked the box labelled “Periodic Assistance from another person”. With respect to all listed DLA, the GP adds the comment “Patient reports difficulty with most DLA as she tires easily and is concerned that she could pass out and therefore limits her independence with these activities … She states that she is unable to walk to a bus or make a meal alone”. The GP also provides the additional comment “Patient concern walking to transit alone”.

In the section of the AR whether the assessor is asked to describe what assistance is necessary if there is no help available, the GP has written “She would like meal preparation/delivery, help with getting to public transit or Uber/taxi use and grocery delivery/help with putting away groceries”. Where asked what assistance is provided using assistive devices, the GP has written “None currently” and where asked what devices might be useful the GP has written “Power wheelchair may be of benefit”. The GP also states that the Appellant does not have an assistance animal.

In the RFR, the Appellant says that she is very lucky to have great roommates and supportive family members who consistently help her. She writes that when climbing stairs, she always makes sure there is a handrail or someone to help her and that she has to have someone with her or someone who is able to check on her regularly to make sure she hasn’t passed out and hurt herself.

The Appellant also writes in the RFR that her roommates shop for her or she relies on delivery services. She says that her roommates drive her wherever she needs to go or takes Ubers because she is unable to walk to bus stops or wait for buses. She also writes that her roommates and family members always make sure she has meals that can be prepared in the microwave, and she always make sures she has ready-made frozen meals on hand. She says that her roommates and family members assist with

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housework and meals for her, and she never bathes alone and always has her roommate sit close to the bathroom in case she needs help.

In the SR, the Appellant says that she is unable to walk for more than a minute without assistance and can't shower or bathe without someone present in case she gets faint or passes out.

In the Mother’s Letter, the Appellant’s Mother writes that the Appellant’s roommate moved out in December 2020 after which the Appellant’s Mother moved in to assist the Appellant with her DLA. In February 2021 the Appellant’s mother moved out of the Appellant’s home when the Appellant moved to another community in the Province to be nearer to specialists. The Appellant’s Mother writes that the Appellant now has new roommates who help when they can, but that the Mother also travels to the Appellant’s home every few weeks to assist with laundry, shopping, medical appointments and to prepare frozen meals.

In the Employer’s Letter, the Appellant’s employer writes that “some of our staff have assisted (the Appellant) at home with (DLA) she is unable to perform”.

At the hearing, the Appellant was also represented by her Mother. The Appellant relied on the evidence provided in the SR and RFR. She stressed that she is unable cook, clean her home, go to and from stores and to shower alone, and relies on her roommates and her Mother to clean, cook and shop for her. She said that she was aware that the information provided by her GP in the MR and the AR might not have provided enough detail, so she asked her heart surgeon to provide additional information and submitted it to the Employment and Assistance Appeal Tribunal (the Tribunal) on June 21, 2021 (the new information in the Heart Surgeon’s Letter is summarized below).

The Appellant’s Mother said that when she was living with the Appellant for a few months after her previous roommate left the Appellant’s home in December 2020, she would bring the Appellant to the Appellant’s Mother’s home on weekends so that the Mother could spend some time with her husband. The Appellant’s Mother said that the Appellant has always been disabled and that her heart condition, which was diagnosed 3 months before she was born, has “prevented (the Appellant) from living a normal life”. She also said that the Appellant’s serious heart condition, which might eventually require a heart transplant, was “not going to go away with surgery”.

In response to a question form the Panel, the Appellant said that her health has seriously deteriorated over the past year. She stated that the GP was not aware of the details of her health decline because she has not had an in-person appointment with the GP since just after pandemic began in March 2020, and her health begam to significantly decline about three months after the pandemic began (i.e. in about June 2020).

At the hearing, the Ministry relied on its RD, stressing that there were significant discrepancies between the GP’s information as presented in the MR and the AR and the Appellant’s information in the SR. The Ministry said that in these situations the prescribed professional’s evidence is given greater weight. The Ministry also stated that evidence of a severe medical condition is not enough; that there needs to be evidence of a severe impairment resulting from a severe medical condition.

In response to a question from the Panel, the Ministry suggested that the reason why the Ministry did not refer to the evidence in the Cardiology Consultation Note in the RD might have been because generally

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the evidence presented by an applicant’s GP is given more weight than that provided by a medical specialist.

Additional Information Submitted after Reconsideration Section 22(4) of the EAA says that a panel may consider evidence that is not part of the record that the panel considers to be reasonably required for a full and fair disclosure of all matters related to the decision under appeal. Once a panel has determined which additional evidence, if any, is admitted under EAA Section 22(4), instead of asking whether the decision under appeal was reasonable at the time it was made, a panel must determine whether the decision under appeal was reasonable based on all admissible evidence.

In the Notice of Appeal (NOA), the Appellant states that she is physically impaired and in need of assistance. The Panel considered the written information in the NOA to be argument.

On June 21, 2021, the Appellant provided an email to the Tribunal with an attached three-page letter. The email said that the Appellant had not been able to attend her initial appeal hearing as she was unaware of the hearing because she was in the hospital for open heart surgery on the date that the original hearing was scheduled. She also said that her hospital stay was longer than expected “due to complications”.

The letter attached to the Appellant’s June 21, 2021 email was signed by the Appellant’s heart surgeon (the Surgeon’s Letter) and was also dated June 21, 2021. The heart surgeon referred to a written communication from the Appellant which formed the largest part of the surgeon’s letter. In the Appellant’s written communication following the heart surgeon’s comments (which are provided below), the Appellant explained her diagnosis, the impact of her impairment on her ability to perform DLA, and her need for help, much of which was evidence included in the SR and the RFR. The following additional new information was included in the written communication: