Ministry of Social Development and Poverty Reduction

APPEAL NUMBER 2021-0138

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 March 23, 2021 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 met the requirements of having reached 18 years of age and having a medical practitioner confirm that the appellant’s impairment is likely to continue for at least 2 years, 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 2021-0138

PART E – SUMMARY OF FACTS

Information before the ministry at reconsideration  The appellant’s PWD application, comprised of: o A Medical Report (MR) and Assessor Report (AR), completed on October 29, 2020 by the appellant’s general practitioner (GP) since October 2019 who saw the appellant 2 – 10 times in the preceding twelve months. o A Self-report (SR) completed by the appellant on November 10, 2020.  September 8, 2016, Medical Report-Employability form.  July 5, 2016, Request for Medical Transportation (illegible).  October 10, 2019, 2-page printout of the appellant’s medical chart.  September 10, 2020, Central Intake Referral requesting social work services.  March 13, 2020 endoscopy operative report - no bowel abnormalities detected.  November 6, 2020, referral from the GP to a specialist regarding “contracture of joint.”  December 1, 2020 letter from the ministry requesting additional information from the GP – completion of the social functioning section of the AR and exactly how much longer than typical it takes the appellant to accomplish DLA. In response, the GP resubmitted Pages 20 and 21 of 24 of the Part C of the AR (DLA).

 The appellant’s January 22, 2021 Request for Reconsideration, in which the appellant requested the ministry provide an extension of the deadline for providing information, which was granted.

 A second Request for Reconsideration dated February 26, 2021, to which the appellant attached: o A January 22, 2021 referral for an orthopedic consult, and o A February 15, 2021 letter written by the appellant. Information provided on appeal and admissibility The appellant’s Notice of Appeal dated July 2, 2021 in which the appellant writes that he disagrees with the ministry decision.

At the hearing, the appellant and his advocate provided additional information respecting the appellant’s health.

At the hearing, the ministry provided a summary of the reconsideration decision. The ministry did not introduce new evidence.

APPEAL NUMBER 2021-0138

The panel admitted the appellant’s information provided by the appellant and his advocate at the hearing, which related to the appellant’s physical and mental health, under section 22(4) of the Employment and Assistance Act as information reasonably required for full and fair disclosure of the matters at issue. Details of the new information are set out below under

The positions of both parties are set out in Part F of this decision. Summary of relevant evidence Diagnoses and Health History In the MR, the GP diagnoses:  Dupuytrens - contractures of both hands; slowly progressive; impaired hand function; inability to straighten the involved digits; fingers pulled towards palms; unable to grasp objects or perform simple activities; left hand (severe contracture) is worse than the right (mild-moderate contracture).  COPD – increased shortness of breath with reduced effort tolerance; unable to perform activities due to fatigue; needs inhalers.  Hypertension – persistent dizziness and associated headaches.  Etoh misuse. The GP indicates that the appellant’s impairment is likely to continue for two years or more. The GP writes “Surgery for digit contractures can improve his hands situation” where asked “What is the estimated duration of the impairment and are there remedial treatments that may resolve or minimize the impairment?”

Additional commentary in the PWD application:  Needs inhalers, anti-hypertensives, alcohol cessation, and medications to improve quality of life.  Would do much better if financially able to move closer to town to have access to medical supports, foodbank, and the social worker or community care worker to assist him with appointments, travel, and medication.

Note: The November 6, 2020 referral letter confirms that the appellant has relocated and is working with a community care worker who can assist with appointments and that the appellant did not attend previous referrals for surgery due to transport and social issues.

In his February 15, 2021, reconsideration submission, the appellant states that the contractures have caused both physical and emotional stress. The appellant also describes being unable to work in his life-long profession and being unable to maintain a manual labour job because he could not perform the physical duties.

APPEAL NUMBER 2021-0138

Physical Impairment In the MR, the GP reports:  Surgical referral for correction of contractures of hands; could benefit from wrist splints/hand splints in the meantime.  The appellant can walk 4+ blocks unaided on a flat surface and climb 5+ steps unaided.  Lifting is limited to 5 to 15 lbs.  No limitations respecting the amount of time for which the appellant can remain seated.  Has difficulty opening containers, grasping door handles, and holding tools/equipment etc.  Shortness of breath reduces effort tolerance; unable to perform activities due to fatigue; limitation in daily activities include going up and down stairs, doing heavy household chores, going shopping, taking part in sport and hobbies, washing, dressing, and getting out of bed.  Surgery for digit contractures can improve his hands situation. In the AR, the GP reports:  Walking indoors and outdoors, climbing stairs, and standing are managed independently and do not take significantly longer.  Lifting and carrying/holding require periodic assistance from another person.  Writing ability is poor due to hand contractures; reading ability is poor; hearing is satisfactory; and, speaking ability is good.

In the SR, the appellant writes:  Severe contracture of his hands has severely impacted his life – he no longer has the ability or money to carry out things he used to enjoy.  He is left-handed; his left hand is so “contractured.”  He struggles putting shoes and socks on and lost his job because he was unable to perform the work.  Anything most people do daily takes twice as long, if not more.  He does all activities of daily living with his non-dominant hand; this also tires him out halfway through the day.  Physical sports are out of the question.  He has been homeless and ended up living in an environment that was not healthy.  He has lost 50 lbs. In his January 22, 2021 reconsideration submission, the appellant wrote that the GP is putting in a referral for hand surgery; until this is done, he is not able to work in his profession because the contractures are so severe as to make it unsafe. His first surgery will be February 23, 2021.

At the hearing, the appellant stated that he has been suffering for four years, since his hands were crushed in a workplace accident. The appellant also stated that the employer denied the accident happened. The appellant did not file an injury claim or seek medical attention at the time. The appellant reports that he still has contractures following surgery on his left hand, which is “80 back”, and that surgery on his right hand, which currently has about 20% useful

APPEAL NUMBER 2021-0138

function, is coming up. The appellant also stated that he had a stroke last week.

The appellant’s outreach worker attended the hearing as the appellant’s advocate. She stated that she has been working with the appellant for a few months and that the appellant has found appropriate housing in a complex for seniors and disabled people. The advocate stated that the appellant cannot afford to eat and has gone from 150 lbs. to 110 lbs. and was recently admitted to hospital for seizures of an unknown cause; the appellant is awaiting a CT scan.

Mental Impairment In the MR, the GP reports:  Alcohol misuse and COPD are leading to depression.  Alcohol misuse is leading to amotivational behaviour and impacts memory and planning.  Significant deficits with cognitive and emotional function in the areas of emotional disturbance, motivation, executive, and memory.  There are no difficulties with communication.  Unable to co-ordinate appointments, requires social worker and community care worker to help. Missing office appointment follow-ups.

In the AR, where asked to indicate no impact, minimal impact, moderate impact, or major impact on daily functioning for 14 listed areas of cognitive and emotional functioning, the GP reports:  Minimal impact for bodily functions, emotion and motor activity.  No impact is reported for all other areas. In the SR, the appellant writes that he has low self-esteem because he is physically incapable of working; he would love to work and contribute to society.

In his February 15, 2021, reconsideration submission, the appellant writes that he relies on his outreach worker to make and confirm all medical appointments, and transportation for those appointments. He is in contact with the outreach worker weekly for all appointments, help with paperwork, bills, and getting to and from the foodbank.

At the hearing, the appellant’s advocate stated that she has noticed significant cognitive decline since the PWD application was completed – the appellant is missing appointments, forgetting things, including paying his rent, and thought today’s hearing was scheduled for later in the day. The appellant has bouts of depression. The advocate has to make sure the appellant is eating and that he gets to the food bank.

DLA In the AR, the GP indicates the following (information provided in the resubmitted portions of the AR is in italics):  Personal self-care - dressing, grooming, bathing, toileting, feeding self, and regulating diet take significantly longer than typical due to severe left-hand contracture; transfers

APPEAL NUMBER 2021-0138

in/out of bed and on/off chairs are managed independently.  Basic housekeeping - laundry and basic housekeeping take significantly longer than typical due to severe left-hand contracture.  Shopping – going to and from stores, reading prices and labels, making appropriate choices, paying for purchases, and carrying purchases home (can only use right hand) are managed independently.  Meals – all tasks take significantly longer than typical – difficult using left hand.  Pay rent and bills – all listed tasks require continuous assistance (managed by social worker).  Medications – all listed tasks take significantly longer than typical (not taking medications).  Transportation – all listed tasks are managed independently.  Cannot safely manage transportation independently as he cannot arrange schedules due to memory impairment.  Contractures in both hands make it difficult to hold tools/equipment/cooking utensils; therefore, taking longer than average. Has difficulty buttoning shirts, pants or tying shoelaces.  The GP did not complete the social functioning section in the AR of the original PWD application.  Social functioning: Continuous support/supervision is required for appropriate social decisions and ability to develop and maintain relationships; periodic support/supervision is required for interact appropriately with others and deal appropriately with unexpected demands; securing assistance from others is managed independently. Requires family, social worker or community care worker for social functioning and planning, arranging, and following through with appointments. Secured him better accommodation – can be taken advantage of by friends/family (ex. Had been paying high rent to a friend).  Very disrupted functioning with immediate social network; marginal functioning with extended social networks.

In his reconsideration letter, the appellant says that the contractures make activities of daily living tiresome and take longer; it’s hard to give timelines on how long an activity takes, but he is significantly slowed down. Getting dressed, tying shoes, cooking, and housecleaning are only some of the areas in which he struggles. Cooking involves microwave dinners and meals from cans as he cannot grasp pots and pans like he once could. He also relies mainly on his right hand which wears him out, as it has limited strength. 

Need for Help The GP indicates that assistance provided by other people is from friends, volunteers, community service agencies, and a community social worker. No assistive devices are currently used – hand splints are needed prior to hand surgery.

APPEAL NUMBER 2021-0138

PART F – REASONS FOR PANEL DECISION

Issue on Appeal The issue on appeal is whether the ministry’s decision to deny the appellant designation as a PWD was reasonably supported by the evidence or was a reasonable application of the applicable enactment in the circumstances of the appellant. That is, was the ministry reasonable when determining that the requirements of section 2(2) of the EAPWDA were not met because:

 a severe physical or mental impairment was not established;  the appellant’s DLA are not, in the opinion of a prescribed professional, directly and significantly restricted either continuously or periodically for extended periods; and

 as a result of those restrictions, in the opinion of a prescribed professional, the appellant does not require an assistive device, the significant help or supervision of another person, or the services of an assistance animal to perform DLA.

Panel Decision Eligibility for PWD designation under section 2 of the EAPWDA The ministry notes that employability is not a factor when determining PWD designation and invited the appellant to consult the ministry if he would like to be assessed for eligibility for income assistance as a Person with Persistent Multiple Barriers to Employment (PPMB).

Physical Impairment Positions of the Parties The appellant’s position is that his hand contractures severely limit his ability to function. The ministry’s position is that the information does not establish a severe physical impairment. Recognizing the severe left-hand limitations and report of fatigue due to COPD, the ministry concludes that the abilities for walking, climbing stairs and lifting, which do not take longer to perform, represents a mild physical impairment with these activities. Additionally, although the GP describes being unable to perform activities due to COPD, the GP does not identify any activities that are so impacted or how often the appellant is unable to perform activities. The ministry finds that the information respecting how much longer DLA impacted by hand contractures, including the GP’s December 8, 2020 statement that the contractures result is activities taking longer than average does not make it clear how much longer activities take. The ministry finds that the appellant’s statements that he manages most activities with his right

APPEAL NUMBER 2021-0138

hand, taking twice as long if not more, does not represent a severe physical impairment, but rather a moderate impairment with tasks that require manual dexterity. Finally, the ministry notes that no updates are provided following the February 23, 2021 hand surgery, which was expected to improve the appellant’s medical conditions so that current impairment and effects on DLA can be established.

Stating that employability is not considered when assessing PWD eligibility, the ministry advised the appellant that he may wish to be assessed for Persons with Persistent Multiple Barriers (PPMB) to employment and provided a link to online information.

Panel Analysis Section 2 of the EAPWDA requires that the minister “is satisfied” that a person has a severe physical or mental impairment, giving the minister discretion when making the determination. When exercising this discretion, the legislation’s requirement for information from a medical or nurse practitioner (and other prescribed professionals) makes it clear that the fundamental basis for assessing PWD eligibility is information from one or more prescribed professionals. The panel also notes that the legislation does not identify employability or financial constraints as considerations when determining PWD eligibility.

The appellant is diagnosed with severe left-hand contracture, mild-moderate right-hand contracture, hypertension, and COPD. The GP reports that shortness of breath due to COPD reduces effort tolerance and that the appellant is unable to perform activities due to fatigue; however, the appellant remains able to walk 5+ blocks and climb 5+ steps unaided without taking significantly longer. Impacts on physical functioning relating to hypertension are not identified by the GP or the appellant. Most of the limitations on physical functioning described by the GP and the appellant relate to impaired hand function due to contractures, with new information introduced at the hearing respecting seizures and a stroke. However, medical documentation respecting the new conditions or an assessment of any resulting impacts on physical functioning has not been provided. Regarding the hand contractures, the only medical information available does not reflect the appellant’s current functioning. In the absence of updated information respecting limitations arising from contractures and given the GP’s assessment of good abilities for walking, climbing stairs and standing, the panel finds the ministry was reasonable when concluding that the information does not establish a severe physical impairment.

Mental Impairment Positions of the Parties The appellant’s advocate states that the appellant has experienced a significant decline in cognitive function as demonstrated by his forgetting things. She also stated that the appellant has bouts of depression.

The ministry’s position is that the information does not establish a severe mental impairment.

APPEAL NUMBER 2021-0138

The ministry considered that GP’s comments that alcohol misuse impacts motivation, memory, and planning; the need for continuous help with appointments and transportation; and the assessment of significant deficits in the areas of emotion, motivation, executive, and memory. However, as the appellant is not diagnosed with a mental impairment or brain injury and minimal to no impact is reported on daily cognitive and emotional functioning, a severe mental impairment in the ability to function independently or effectively is not established.

Panel Analysis The appellant is diagnosed with alcohol misuse which, the panel notes, the GP has identified as a substance related disorder which is identified in the MR as a mental disorder. The GP does not include depression as a specific diagnosis related to the appellant’s impairment but does note that alcohol use and COPD are leading to depression.

Alcohol misuse is reported to impact the appellant’s memory, planning and motivation - in particular, difficulties attending appointments. In response to the ministry’s effort to obtain additional information, the GP confirmed the need for continuous support with planning, arranging, and following through with appointments and with developing and maintaining relationships. However, when assessing the impact on daily functioning for 14 listed areas of cognitive and emotional functioning, the GP reports only a minimal impact in 3 areas – bodily functions, emotion, and motor activity. Of note is that no impact is reported for executive, which is described in the AR as relating to planning, and that no impact is reported for memory and motivation. The appellant’s advocate reports that the appellant’s cognitive functioning has declined significantly since the PWD application was completed and that the appellant has bouts with depression. However, no updated information is provided by the GP reassessing the appellant’s cognitive functioning and, although mentioning depression in the PWD application, the GP does not identify impacts other than a minimal impact on daily functioning for emotion. Based on the above analysis, the panel finds that when considering all of the information, the ministry was reasonable in concluding that a severe mental impairment is not established.

Restrictions in the ability to perform DLA Positions of the Parties The appellant’s position is that it takes him at least twice as long to perform activities due to his impaired hand function and that relying on his non-dominant hand tires him out. The appellant also argues that he is unable to work due to the hand contractures.

Noting that the opinion of a prescribed professional is fundamental when determining if the ministry is satisfied that impairment directly and significantly restricts DLA, the ministry concludes that the GP’s information does not establish this degree of restriction. The ministry acknowledges that the GP reports severe left-hand restrictions prior to surgery. However, as a severe physical or mental impairment is not established, the appellant does not take significantly longer to complete DLA and does not require significant help, except for social functioning and paying bills, direct and significant restrictions either continuous or periodic for

APPEAL NUMBER 2021-0138

extended periods are not established.

Panel Analysis Section 2(2)(b)(i) of the EAPWDA requires that the minister be satisfied that in the opinion of a prescribed professional, a severe mental or physical impairment directly and significantly restricts the appellant’s ability to perform DLA either continuously or periodically for extended periods. While other evidence may be considered for clarification or support, the ministry’s determination as to whether it is satisfied, is dependent upon the evidence from prescribed professionals. The term “directly” means that there must be a causal link between the severe impairment and the restriction. The direct restriction must also be significant.

DLA are defined in section 2(1) of the EAPWDR and are listed in both the MR and the AR sections of the PWD application with the opportunity for the prescribed professional to check marked boxes and provide additional narrative. The DLA defined in the legislation do not include the ability to work.

In this case, the GP is the only prescribed professional who has provided information respecting the appellant’s ability to perform DLA. The GP indicates that personal care, basic housekeeping, and meals take significantly longer to perform due to the appellant’s left-hand contractures prior to undergoing the surgery to improve functioning. However, there is no information from the GP, or another prescribed professional, describing the appellant’s current left-hand functioning following the surgery. The panel notes that when describing the degree and course of impairment in the PWD application, the GP stated that surgery “can improve his hands situation” and that at the hearing the appellant reported his left hand is about “80 back” post-surgery. The GP does not identify restrictions in the ability to manage physical DLA tasks relating to the appellant’s COPD or hypertension and assessed the appellant as being able to walk 5+ blocks and climb 5+ steps unaided.

Respecting mental impairment, there are two additional DLA: make decisions about personal activities, care, or finances: and relate to, communicate, or interact with others effectively. In the original PWD application and in the information submitted in response to the ministry’s request, the GP identifies the need for continuous support/supervision assistance with attending medical appointments, obtaining food, paying bills, and making appropriate social decisions. Respecting the appellant’s ability to relate to, communicate or interact with others effectively, the GP reports that the appellant has no communication difficulties. Respecting the appellant’s ability to relate to or interact with others effectively, continuous support/supervision is required for developing/maintaining relationships, which is described as the appellant’s inability to plan, arrange, and keep appointments. Periodic support/supervision is required for interacting appropriately with others and dealing appropriately with unexpected demands; again, the support/supervision is described as relating to the appellant’s inability to manage appointments. Extremely disrupted functioning with immediate social networks is reported, though the appellant is also reported as relying on family for assistance. The appellant independently manages securing assistance from others, which is supported by the information reflecting a good working relationship between the appellant and his outreach worker.