Ministry of Social Development and Poverty Reduction

APPEAL NUMBER 2021-0095

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 April 28, 2021, which held that the appellant did not meet 3 of the 5 statutory requirements of section 2 of the Employment and Assistance for Persons with Disabilities Act for designation as a person with disabilities (PWD). The ministry found that the appellant met the age and duration requirements, but was not satisfied that:

 the appellant has a severe physical and/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 those restrictions, the appellant requires an assistive device, the significant help or supervision of another person, or the services of an assistance animal to perform DLA.

In addition, the ministry found that it had not been demonstrated that the appellant is one of the prescribed classes of persons who may be eligible for PWD designation on alternative grounds, which includes: a person who is enrolled in palliative care; a person who has at any time been determined eligible for At Home Program payments through the Ministry of Children and Family Development; a person who has at any time been determined eligible by Community Living BC for community living support; and a person who is considered disabled under section 42(2) of the Canadian Pension Plan Act

PART D – RELEVANT LEGISLATION Employment and Assistance for Persons with Disabilities Act (EAPWDA), section 2

Employment and Assistance for Persons with Disabilities Regulation (EAPWDR), section 2 

APPEAL NUMBER 2021-0095

PART E – SUMMARY OF FACTS Evidence at Reconsideration  The appellant’s PWD application comprised of a Medical Report (MR) [dated January 13, 2021], and Assessor Report (AR) [dated February 3, 2021], which were completed by the appellant’s General Practitioner (the physician), who had known the appellant for 5 years and seen him 11 or more times in the past 12 months prior to completing the PWD application. The approaches and sources used to conduct the MR and AR were office interview with the appellant, and consultation with the physician and a mental health counsellor. It is noted that the AR was completed by the physician in conjunction with the appellant’s mental health counsellor.  The PWD application also included the appellant’s Self-Report (SR) signed and dated February 2, 2021. In it the appellant described difficulty managing his disabilities which includes chronic leg pain, rhinitis, and fibromuscular dysplasia. He indicated that his struggles have led to increased stress levels and it is hard to live his life which can feel impossible.  Request for Reconsideration (RFR), signed and dated March 8, 2021, which included: 1. Letter from the physician dated April 6, 2021 in which further explanation is provided for the appellant’s fibromuscular dysplasia, global assessment of function, his limitations and it is explained that the appellant is not employable. 2. Supplement MR (section 2 - C, D, and E) and AR (section 3 - B and C) from the physician dated March 22, 2021. 3. A cardiac imaging report dated January 23, 2019. 4. 2-page imaging report dated July 5, 2020. 5. Imaging report dated September 9, 2020.

Diagnoses In the original MR, the physician diagnosed the appellant with fibromuscular dysplasia (onset 2020) and Spontaneous Coronary Artery Dissection (onset 2018).

Health History In the original MR, the physician stated, in part, the following about the appellant:  Physical limitations due to his cardiac system since 2018 and causing frequent chest pain since 2019. This required hospitalization as well.  Renal infarct causing hospitalization.  Acute stress reaction/Psychosis required hospitalization in December 2019.  He has attended multiple clinics and his diagnosis is unfolding.  He has had non-neurological leg pain for 6 years.  He has a pending cardiac MRI and leg vessel CT Angio exam.  He has Rhinitis which specialists have not been able to improve. Physical Impairment In the original MR, the physician indicated the following about the appellant:  Can walk 4+ blocks unaided, can climb 5+ steps unaided, can lift 15-35 lbs and can remain seated without limitation.

In the amended MR, the physician indicated the following about the appellant:  In addition to indicating that the appellant can walk 4+ blocks unaided the physician circled ‘unknown’  In addition to indicting that the appellant can climb 5+ steps unaided, the physician circled ‘unknown’ with the comment “March 22, 2021 corrected as claudication pain in legs limits mobility”

APPEAL NUMBER 2021-0095

In the original AR, the physicin indicated the following about the appellant:  Walking indoors/outdoors, climbing stairs, standing and carrying/holding are performed independently.  Lifting is performed independently but assistance is required with over 50 lbs. In the SR, the appellant did not make mention of physical ability, physical functioning, or mobility. Mental Impairment In the original MR, the physician did not diagnose the appellant with a mental impairment and indicated the following:  There are no difficulties with communication  It is unknown whether there are significant deficits with cognitive and emotional function. The comments included indicated: no prescribed medications because physical health deemed unstable, currently not psychotic, not depressed, not anxious, and is stressed due to diseases. In addition, it was stated that the appellant had an Acute Stress Reaction and Psychosis December 2019 – query Dissociative disorder and he saw a psychiatrist July 2020. – In the amended MR, the date of acute stress reaction and psychosis was changed to November 2019.  There are no restrictions with social functioning, and it is unknown if there are restrictions with the management of finances with the comment: “Financial stress has accumulated because the [appellant] is a certified who has not been physically well enough to work since 2019”. In the original AR, the physician indicated the following about the appellant:  The ability for speaking, writing, reading, and hearing are good.  All listed areas of cognitive and emotional functioning were left blank.  All listed tasks under ‘pay rent/bills’, ‘medications’ and ‘social functioning’ are performed independently. The appellant has marginal functioning with immediate social networks (difficult relationships with entire family members) and good functioning with extended social networks.

In the amended AR, the physician indicated that there are major impacts to ‘emotion, motivation, and other emotional or mental problem’, moderate impacts to ‘insight/judgment, attention/concentration, and psychotic symptoms’ and minimal or no impacts to all other listed cognitive and emotional functioning.

In the SR, the appellant did not make mention of a mental impairment and mentioned that his stress levels have increased.

Daily Living Activities In the original MR, the physician indicated the following about the appellant:  Medications that interfere with the ability to perform DLA have been prescribed for lifelong, with the comment: “blood thinner, must avoid contact sport, avoid injury, at risk of bleeding”.  There are no restrictions to all listed areas of DLA except Managing Finances which is unknown. In the amended MR, the physician indicated that social functioning requires periodic assistance and commented “pain and his mental illness of depression creates inability for him to communicate. He stops eating for days at a time as well due to anger. Significant interpersonal hostility toward hospital staff”.

In the original AR, the physician indicated the following about the appellant:  “No assistance needed with physical daily activities”.  All listed tasks of DLA are performed independently in the categories of personal care, basic

APPEAL NUMBER 2021-0095

housekeeping, shopping, meals, paying rent/bills, medications, transportation, and social functioning.

In the amended AR, the physician commented:  “Hostility toward medical staff and persecutory delusions of medical staff in failing to treat his chronic leg pain, ongoing vascular events renal, cardiac related to 2018 Cardiac Artery Dissection, Psychotic Episode November 2020 required hospitalization. (illegible) to this Psychiatric Consults failed trial of Buspirone and deemed medically unfit for Psychotropics. Prior to this failed Cymbalta (allergic), Citalopram (not effective) Depressions exist (illegible)”.  The applicant has been under significant mental stress over the majority of his life, when this is added to his physical health issue and illness it makes it difficult for him to cope in day to day life. His struggle with chronic pain over the years has taken a toll on his physical and mental health and has made employment difficult.

In the SR, the appellant did not indicate that there are restrictions to DLA or that continued or periodic assistance for extended periods is required for DLA.

Help In the original MR, the physician indicated the following about the appellant:  Requires no prostheses or aids for the impairment. In the original AR, the GP indicated the following about the appellant:  “No assistance needed with physical daily activities”.  Assistance is provided by family with the comment: “family will help with chores, heavy lifting, etc…”.  The appellant does not use an assistive device.  No assistance is provided by assistance animals. In the SR, the appellant did not indicate who provides the necessary assistance. Additional Information In the AR, the physician stated “the applicant has been under significant mental stress over the majority of his life, when this is added to his physical health issue and illness it makes it difficult for him to cope in day-to-day life. His struggle with chronic pain over the years has taken a toll on his physical and mental health and has made employment difficult”.

Evidence on Appeal Notice of Appeal (NOA), signed and dated May 6, 2021, in which the appellant stated, in part, that “it has been documented that I have been screened for coronary artery dissection to see how the wound was healing. An incident in May 2019 my heart opened up. My internalist was screening for Lupus and that has come back positive”.

The panel found that the information in the NOA consists of the appellant’s argument and does not require a determination of admissibility.

Evidence Prior to the Hearing Prior to the hearing the appellant submitted a 2-page letter from the physician dated May 24, 2021. The letter indicated the following:  The appellant has a compromised heart, myocardial infarct in his early 20s, spontaneous coronary artery dissection in the heart, cardiac dysfunction of the left ventricle and an organ

APPEAL NUMBER 2021-0095

threatening blood clot in the renal artery.  The appellant is taking medications to prevent reoccurrence, but the myocardial infarct reoccurred two years after onset.  He is being investigated for Lupus.  There are no financial means to pay for medications and travel for appointments nor does the appellant have the support for physiotherapy.  The appellant is at risk of a life-threatening bleed if he performs physical work or get injured. The cost of medication, particularly blood thinners is substantial.  He has a lack of strength of the anterior heart for which the appellant will receive physiotherapy.  The myocardial infarct caused deconditioning of the body due to a lack of tolerance for exercise which is related to exertional angina and exertional leg pain.  The appellant would like to return to his vocation which requires physical work, but he is unable to due to his physical condition. This has caused the inability to afford rent, fuel for travel, or groceries and is living with family in dysfunction. Financial stability would allow the appellant to pay for rent and leave the dysfunctional situation with family.  The appellant was previously self-employed and does not have access to employer disability programs. He cannot afford his medial bills without incurring debt.  Medication will be necessary for medical conditions for the appellant’s lifetime and psychiatry has advised against psychiatric medication.  The physician stated that the appellant’s mental health would improve if he were able to afford his medication and basic life needs.  Periodic assistance is required for: going to/from stores, carrying purchase home, basic housekeeping, and occasionally to transfer from bed or chair.  The appellant does not live independently and required help in hospital from his sister and mother.  The appellant’s lack of motivation is accounted for by depression.  The physician overestimated the appellant’s abilities and underestimated his financial situation in the original PWD application and should have indicated “yes” to basic housework, daily shopping, and mobility outside the home. Mobility is restricted due to leg and chest pain.  The physician apologized for not completing the PWD application correctly. Evidence at the Hearing At the hearing, the ministry relied on its reconsideration decision.

Admission of Additional Information. The ministry did not object to admitting into record the letter from the physician dated May 24, 2021. A panel may consider evidence that is not part of the record as the panel considers is reasonably required for a full and fair disclosure of all matters related to the decision under appeal.

In this case, the panel determined that the May 24, 2021 letter from the physician is admissible because the information allow for full, and fair disclose of all matters related to the issue on appeal.

APPEAL NUMBER 2021-0095

PART F – REASONS FOR PANEL DECISION The issue on appeal is whether the ministry's reconsideration decision, which found that the appellant is not eligible for 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. The ministry found that the evidence does not establish that the appellant has a severe mental or physical impairment and that his DLA are, in the opinion of a prescribed professional, directly, and significantly restricted either continuously or periodically for extended periods. Also, it could not be determined that the appellant requires the significant help or supervision of another person because of those restrictions.

The criteria for being designated as a PWD are set out in Section 2 of the EAPWDA as follows: Persons with disabilities 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 (iii) the services of an assistance animal. (4) The minister may rescind a designation under subsection (2).

The EAPWDR provides as follows:

APPEAL NUMBER 2021-0095

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, or (b) acting in the course of the person's employment as a school psychologist by (i) an authority, as that term is defined in section 1 (1) of the Independent School Act, or (ii) a board or a francophone education authority, as those terms are defined in section 1 (1) of the School Act if qualifications in psychology are a condition of such employment.

Alternative grounds for designation under section 2 of Act 2.1 The following classes of persons are prescribed for the purposes of section 2 (2) [persons with disabilities] of the Act:

APPEAL NUMBER 2021-0095

(a) a person who is enrolled in Plan P (Palliative Care) under the Drug Plans Regulation, B.C. Reg. 73/2015;

(b) a person who has at any time been determined to be eligible to be the subject of payments made through the Ministry of Children and Family Development's at Home Program;

(c) a person who has at any time been determined by Community Living British Columbia to be eligible to receive community living support under the Community Living Authority Act;

(d) a person whose family has at any time been determined by Community Living British Columbia to be eligible to receive community living support under the Community Living Authority Act to assist that family in caring for the person;

(e) a person who is considered to be disabled under section 42 (2) of the Canada Pension Plan Panel Decision Severe Impairment In the reconsideration decision, the ministry was not satisfied that the information provided establishes a severe physical or mental impairment. Determining a severe physical or mental impairment requires weighing the evidence provided against the nature of the impairment and its reported functional skill limitations. A diagnosis of a serious medical condition does not in itself determine PWD eligibility or establish a severe impairment. An “impairment” is a medical condition that results in restrictions to a person’s ability to function independently or effectively. To assess the severity of an impairment, the ministry must consider the nature of the impairment and the extent of its impact on daily functioning.

The panel finds that employability is not a consideration for eligibility for PWD designation because employability is not a criterion in section 2(2) of the EAPWDA nor is it listed among the prescribed daily living activities in section 2 of the EAPWDR.

Physical Impairment The appellant argued that he has mobility restrictions and pain due to his medical conditions and that he has a severe impairment as a result.

The ministry argued that based on the information provided in the PWD application, a severe impairment of the appellant’s physical functioning has not been established.

In its reconsideration decision, the ministry noted the physician’s assessment of the appellant’s functional skills (can walks 4+ blocks unaided on flat surfaces, can climbs 5+ steps unaided, can lift up to 35lbs and can remain seated without limitation), the amended assessment (unknown how many blocks the appellant can walk unaided, unknown how many steps the appellant can climb unaided, can lift up to 35lbs and remain seated without limitation) and the physician’s assessment of the appellant’s mobility and physical ability in the AR (walking indoor/outdoor, climbing stairs, standing, lifting [over 50lbs assistance needed], carrying and holding are all performed independently). The ministry conceded that the appellant experience pain however, it concluded that the information provided by the physician was not enough to establish that the appellant has a severe physical impairment.

APPEAL NUMBER 2021-0095

The panel finds the ministry’s analysis of the evidence as stated here reasonable and adds that the physician’s failure to provide an accurate assessment does not meet the legislative requirements. That is, the panel is of the opinion that it is insufficient to state that “Claudication pain in the legs limits mobility” and then not explain how mobility is limited or how often. Though the physician indicated that the original PWD contained incorrect information regarding the appellant’s abilities, the panel also notes that the original PWD application was completed with the appellant and it is reasonable to presume that it reflects the appellant’s assessment of his abilities. Furthermore, the May 24, 2021 letter from the physician speaks to DLA and mentioned that mobility is restricted due to leg and chest pain but did not explain the extent of the restriction or how the mobility restriction impacts overall functioning.

Given the overall assessments of the appellant’s functional ability, and mobility and physical ability in the PWD application, the revised PWD application and the May 24, 2021 letter from the physician, the panel finds that the ministry was reasonable in its determination that the evidence does not support a finding that the appellant suffers from a severe physical impairment and that the legislative criteria outlined in Section 2(2) of the EAPWDA have not been met.

Mental Impairment The appellant argued that due to his pain, lack of mobility and inability to work, he has mental strain, stress, and depression.

The ministry’s position is that based on the assessments provided in the PWD application, a severe impairment of mental functioning has not been established.

In its reconsideration decision, the ministry noted that the physician’s comments in the MR which included: “Not Depressed, Not Anxious, Stress due to disease”. It was noted that in the AR the physician indicated that there are no impacts to cognitive and emotional functioning as a result of a mental impairment or brain injury. In the amended AR, the physician indicated that 3 areas had major impacts (emotions, motivation, and other emotional or mental problems), 3 had moderate impacts (insight\judgment, attention\concentration, and psychotic symptoms) and 6 minimal impacts (bodily functions, consciousness, impulse control, executive, motor activity and language).

The ministry also noted that there are no difficulties indicated with communication and speaking, hearing, writing, and reading are all indicated as ‘good’. In the MR social functioning is indicated as not restricted. In the amended MR, the physician indicated that social functioning is periodically restricted and pain and the appellant’s mental illness of depression creates an inability to communicate. In the AR, all aspects of social functioning are performed independently as are DLA that are typically difficult for those with significant restriction to mental functioning such as decision making about personal activities, care, or finances, communicating, or interacting with others.

The ministry also noted that the amended AR the physician noted that the appellant has been under significant mental stress over the majority of his life and when his physical health issues are added to this, it is difficult to cope with daily life. The appellant’s struggles and with chronic pain over the years has taken a toll on his physical and mental health. The ministry concluded that the information does not establish that the appellant has a severe mental impairment.

The panel concurs with the ministry’s analysis and adds that the physician has not provided an official diagnosis of a mental illness in the original PWD application or in the amended information. Furthermore, the May 24, 2021 letter, the physician stated that the appellant’s “lack of motivation is better accounted for by depression”, which in the panel’s opinion falls short of actually diagnosing the appellant with depression. In the same letter, the physician indicated that the appellant’s mental state is