Ministry of Social Development and Poverty Reduction

Appeal Number 2021-0188 Part C – Decision Under Appeal The decision under appeal is the Ministry of Social Development and Poverty Reduction’s (“ministry”) reconsideration decision dated September 14, 2021, in which the ministry found the appellant was not eligible for designation as a Person with Disabilities (“PWD”) under section 2 of the Employment and Assistance for Persons with Disabilities Act (“EAPWDA”). The ministry found that the appellant met the age and duration requirements but was not satisfied that: • the appellant has a severe mental or physical impairment; • the appellant’s impairment, in the opinion of a prescribed professional, directly and significantly restricts the ability to perform daily living activities (“DLA”) either continuously or periodically for extended periods; and • as a result of restrictions caused by the impairment, the appellant requires an assistive device, the significant help or supervision of another person, or the services of an assistance animal to perform DLA. The ministry also found that the appellant was not one of the prescribed classes of persons who may be eligible for PWD designation on the alternative grounds set out in section 2.1 of the Employment and Assistance for Persons with Disabilities Regulation (“EAPWDR”). As there was no information or argument provided for PWD designation on alternative grounds, the panel considers that matter not to be at issue in this appeal.

Part D – Relevant Legislation Employment and Assistance for Persons with Disabilities Act - EAPWDA - section 2 Employment and Assistance for Persons with Disabilities Regulation - EAPWDR - section 2

Appeal Number 2021-0188 Part E – Summary of Facts The evidence before the ministry at reconsideration included:  The appellant’s PWD Application comprised of the appellant’s self report (“SR”) signed by the appellant on June 4, 2021, a medical report (“MR”) completed by the appellant’s Family Nurse Practitioner (“the NP”) on February 19, 2021 and an assessor report (“AR”) completed by the appellant’s NP on June 4, 2021.  Request for Reconsideration (RFR) submitted by the appellant on August 30, 2021 citing as the reason for requesting a reconsideration: o The NP did sign off each paragraph; o Walks up to two blocks some days and always has a cane for help; o Lifting is hard and painful; o Walking in or out doors is usually very little; o Daily activities are far fetched without help; o Doesn’t really have a social network; o Gets shots on hip for past six years or more for pain; and o Paperwork sent in describes the need for disability in 2018 by a doctor.  Ministry’s PWD Designation Summary dated August 3, 2021.  Undated five-page checklist of Daily Living Activities, apparently completed by the appellant to assist in completing the PWD application.

PWD Application

Diagnosis In the MR, Part A, the NP specified the diagnoses:  Ovarian cancer, treated 2012 with date of onset May 2012  Neuropathy with date of onset June 2012  Chronic back/pelvic pain with date of onset June 2012 In the MR, Part B, the NP indicated the appellant is on medication for pain and that it may cause loss of appetite, tiredness, drowsiness, dizziness and light-headedness and that the anticipated duration of the treatment is indefinite. The NP also explained the appellant requires good fitting shoes to prevent injury to the skin on feet. In the MR, Part C, the NP indicated the impairment is likely to continue for an indefinite period as the appellant is unable to work and support herself due to severe pain caused by chemotherapy and ovarian cancer treatment.

Physical Impairment In the SR, the appellant reported:  In May 2012 she underwent ovarian cancer surgery, with 584 tumor markers removed, followed by chemotherapy from June 14, 2012 to October 25, 2012.  There is now nerve damage in all areas where the chemo was used, as well as in her feet and hands.  She has bad pain in her hips and feet such that standing alone hurts. In the MR, Part B Health History, the NP wrote:  Severe chronic back/pelvic pain caused by/related to the chemotherapy and ovarian cancer treatment.  Nerve impingement.  Pain limits the range of motion.

Appeal Number 2021-0188

In the MR, Part C Degree and Course of Impairment, the NP answered yes to the question “Is the impairment likely to continue for two years or more?” and commented:  Indefinite as unable to work and support self due to severe pain caused by chemotherapy and ovarian cancer treatment.

In the MR, Part D Functional Skills, the NP noted questions 1 to 4 were completed by the appellant as follows:  Able to walk 1 to 2 blocks unaided on a flat surface  Able to climb 2 to 5 stairs unaided  Able to lift 5 to 15 pounds  Able to sit less than 1 hour

In the AR, Part B, the NP wrote in response to what impairments impact the appellant’s ability to manage DLA:  Severe chronic back/pelvic pain caused by/related to the chemotherapy and ovarian cancer treatment.

In the AR, Part B Mobility and Physical Ability, the NP indicated the appellant:  Takes significantly longer than typical walking indoors/outdoors and climbing stairs.

Mental Impairment In the SR, the appellant reported:  She has some anxiety when things start to ache.

In the MR, Part D Functional Skills, the NP noted the appellant had completed Question 6 regarding significant deficits with cognitive and emotional function. The following areas were selected:  Executive; Memory; Emotional Disturbance, Motivation; and Attention or sustained concentration. (no additional comments made by the NP)

In the AR, Part B, the NP indicated the appellant’s level of ability to communicate is “good” with speaking, reading, writing, and hearing. In response to the impacts on the appellant’s daily cognitive and emotional functioning, the NP noted:  No impact: impulse control, insight and judgement; psychotic symptoms; and other emotional problems.  Minimal impact: motor activity  Moderate impact: consciousness; language; other neuropsychological problems  Major impact: bodily functions; emotion; attention/concentration; executive; memory; and motivation;

Restrictions in the Ability to perform DLA In the SR, the appellant wrote:  She has trouble doing everyday chores because of the nerve damages in her feet and hands.

Appeal Number 2021-0188  Personal cleaning becomes a very big chore to get in the shower and clean up.  She is unable to even open some packages or canned goods.  Doing laundry some days is a big chore.

In the MR, Part B, the NP wrote the appellant’s:  Nerve impingement limits the ability to hold onto a cup, remove lids from jars, use a can opener.  Pain limits the ability to bend over to pull up pants, don and doff socks and shoes, etc.  Pain limits the ability to cleanse self and is limited on some days.  Not able to perform housekeeping duties such as washing windows, vacuuming, sweeping and mopping floors.  Laundry folding is limited on some days.

In the MR, Part E, the NP noted the section was completed by the patient. Under the question, “Is Activity Restricted?”, the response was “Yes” in all areas except for meal preparation and management of finances. The restrictions noted were: continuous assistance required for basic housework; and periodic assistance required in all other areas where Yes was indicated. In the “If periodic” comment section the NP wrote “see previous note”.

In the AR, Part C, the NP indicated the assistance required related to the impairment that directly restricts the applicant’s ability to manage as follows:  independent with all areas of personal care, however also indicated periodic assistance needed and that it takes significantly longer than typical with dressing and transfers in/out of bed. As explanation the NP wrote “bad days needs help”.  Independent with bathing, however also indicated an assistive device (stool beside tub) is used and that it takes significantly longer than typical.  Continuous assistance required with laundry and basic housekeeping.  Periodic and continuous assistance required for going to and from stores and carrying purchases home, and these take significantly longer than typical.  Independent with reading prices and labels, making appropriate choices, paying for purchases.  Independent in the areas of meals, paying rent and bills, medications and transportation, however also notes that periodic assistance is needed and takes significantly longer in areas of food preparation and cooking.  Independent with medications, however also indicated continuous assistance and takes significantly longer than typical when taking medications as directed. The written comment notes “independent if meds are blister packed”.  Continuous assistance required with getting in and out of a vehicle and that it takes significantly longer than typical.

The NP wrote an additional comment “Taking meds as directed can be a potential safety risk if meds are not in blister packs due to patient’s low dexterity.” The NP notes the appellant is independent in all areas of social functioning but needs periodic assistance with “ability to secure assistance from others”. A written comment states “help with navigating the system” and “access to supports”. The NP indicates good functioning with immediate social network and marginal functioning with extended social networks with a written comment “pain limits ability to participate as does the anxiety in social settings”.

Need for Help In the MR, Part E, the NP commented that the appellant requires the following assistance with DLA:

Appeal Number 2021-0188  Housekeeping services that include laundry and grocery shopping  Meal prep  Shower assist  Blister packed medication or medication assistance

In the AR, Part B, the NP explained the appellant needs and uses a cane for support and that someone else does any lifting, carrying and holding for her.

In the AR, Part C, the NP noted the appellant requires help with dressing, transfers in/out of bed and on/off a chair, food preparation/cooking on bad days. The NP also commented the appellant requires help navigating the system and access to supports and requires a case manager or life skills support worker.

In the AR, Part D, the NP noted the appellant requires help from family, health authority professionals, community service agencies and volunteers however notes the appellant lives in a rural and remote area where support and services are extremely limited and mostly unavailable to patients due to location and under-staffing. The NP wrote the appellant uses a cane for walking support, braces for wrist support and bathing aids (tub stool to sit on to bathe). In response to the question regarding equipment that is required but is not currently being used, the NP noted “a hospital bed to aid with ease of mobility and independence and an electric stair chair to navigate stairs at home”.

Additional Information Submitted after Reconsideration On the Notice of Appeal form (NOA) dated September 21, 2021 the appellant wrote she has high anxiety problems, her right hip is so painful it hurts to walk, sleep or sit and her mental problems are getting worse. At the hearing, the appellant reported that the 2018 report from her doctor, also referenced in her RFR, was a one-page letter that she forgot to send in. The appellant read the letter during the hearing and it confirmed the same medical conditions as written in the PWD application, along with the statement “the appellant would require ongoing financial assistance due to her inability to work”. As well, in the letter, the appellant’s doctor stated the appellant was a candidate for a program for severely handicapped people. The appellant explained that as a result of having had ovarian cancer surgery, along with chemotherapy, that she has nerve damage and as a result cannot use her hands to do many things. She stated she cannot even cut her toe nails and cannot do her laundry as she cannot lift. The appellant explained that friends come over to do her laundry, bring in wood and drive her to town to do her shopping. She states she cannot even go for a short walk on her own because she doesn’t feel strong enough, even using her cane. The appellant stated there are times the pain in her hips is so bad she cannot even get out of bed and this can last up to three days. The appellant explained that depending on how she is feeling and what needs done her friends come to assist two days a week, but when she is having bad days, they come and help her four times during the week. The appellant stated the NP who completed the PWD application form does not even really know her full history, and that the appellant had completed many of the “tick boxes” which the NP went over with her and initialled the section. The appellant explained she had been on a program for severely handicapped people in another province until recently when she moved to British Columbia. At the hearing, the ministry reviewed the reconsideration decision and pointed out that the lack of detailed information and specifics of the frequency of assistance with DLA is why the ministry could not determine a severe physical impairment existed. For example, the NP indicated on the application form that the appellant could walk unaided, was able to lift some things, and was independent with personal care, which is not indicative of a severe physical impairment. However, the NP also noted that some continuous or periodic support was required in these same areas, along with comments stating the appellant was limited, and had “bad” days, but did not provide specific information as how much longer it takes to do DLA. The ministry explained there was not enough to

Appeal Number 2021-0188 determine whether the impairment was significant or the degree of the restriction. The ministry explained there was conflicting information in the PWD application to determine whether the appellant had a severe mental impairment. There was no formal diagnosis of a mental condition made in the MR, however the NP indicated there were significant deficits in the appellant’s cognitive and emotional functioning. The NP indicated the appellant is reported to have minimal to no impacts in the areas of motor activity, impulse control, insight/judgement or other emotional problems. The ministry considered the significant deficits and impacts in conjunction with the report of how this affects the appellant’s DLA. Because the appellant is reported to be able to complete the majority of DLA independently, including activities typically considered difficult for individuals with severe mental impairment, the ministry could not find a severe mental impairment existed.

Admissibility of Additional Information The appellant verbally read the 2018 letter from her doctor that she had meant to include with her RFR. The panel found it contained nothing that was not already stated on the applicant’s PWD application. The panel admits the appellant’s oral testimony as evidence under section 22(4) of the Employment and Assistance Act, which allows for the admission of evidence reasonably required for a full and fair disclosure of all matters related to the decision under appeal.

Appeal Number 2021-0188 Part F – Reasons for Panel Decision The issue in this appeal is whether the ministry reasonably determined that the appellant was ineligible for designation as a PWD. The ministry determined the appellant did not meet all the required criteria for PWD designation set out in the Employment and Assistance for Persons with Disabilities Act, Section 2. Specifically, the ministry determined the information provided did not establish that: • the appellant has a severe impairment; • the appellant's 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. (See Appendix A for Relevant Legislation) Analysis Severe mental or physical impairment To be eligible for PWD designation, the legislation requires several criteria to be met including the minister being satisfied that the applicant has a severe mental or physical impairment. The ministry found the appellant was not eligible for PWD because not all of the five criteria were met. Neither the terms “impairment” nor “severe” are defined in the EAPWDA. The Cambridge Dictionary defines “impairment” in the medical context to be “a medical condition which results in restrictions to a person’s ability to function independently or effectively” and defines “severe” as “causing very great pain, difficulty, worry, damage, etc.; very serious”. A diagnosis of a severe impairment does not in itself determine PWD eligibility. In the appellant’s circumstance, the ministry found that she had met the age criteria and that she had a medical condition that is likely to continue for at least two years however it does not consider her impairment to be severe or that it affects her ability to manage her DLA directly and significantly. The panel agrees that the age and duration requirements of the legislation have been met and will consider the remaining requirements by reviewing each of them individually.

Mental Impairment To assess the severity of a mental impairment, the ministry considers the extent of any impact on daily functioning as evidenced by limitations/restrictions with mental functions and emotion. The ministry does not only look at the diagnosis or a medical practitioner’s comment that the condition is “severe” but considers the bigger picture including whether there are restrictions to DLA requiring mental/social functioning and whether significant help is required to manage DLA. The panel finds that an assessment of severity based on mental and social functioning and restrictions to DLA is a reasonable interpretation of the legislation. The appellant’s position is she is feeling stressed and anxious and that she has her friends come to assist her when she needs their help to do her DLA’s. The ministry’s position is there is insufficient evidence to determine whether the appellant’s anxiety and stress is a severe or significant mental impairment that restricts her ability to manage her DLA. Panel Decision Section 2(2) of the legislation requires evidence of a severe impairment. The MR did not provide a diagnosis of a mental impairment. The NP notes the appellant experiences major impacts in the areas of executive functioning, memory, emotional disturbance, motivation and attention/sustained concentration, and reports major impacts to daily cognitive and emotional functioning. However, the appellant is also assessed as having good abilities in all

Appeal Number 2021-0188 areas of communication including speaking, reading, writing and hearing. The panel finds the ministry reasonably concluded that, because the appellant reported to be independent in all activities related to making decisions regarding personal activities, care, managing finances, social functioning and no impairment in her ability to communicate was noted, it was unable to confirm the appellant’s medical conditions severely impair her cognitive, emotional, and social functioning. Accordingly, the ministry was reasonable in applying the legislation to find that a severe mental impairment under section 2(2) of the EAPWDA was not established on the evidence.

Physical Impairment To assess whether the applicant has a severe physical impairment, the ministry considers information on the degree of restrictions to physical functioning, restrictions to DLA involving movement, and whether the applicant requires significant help or any assistive devices to manage DLA. The panel finds that the assessment of severity based on daily physical functioning is a reasonable interpretation of the legislation. The appellant’s position is the chronic pain she experiences on a day to day basis is affecting her ability to manage most of her daily activities and that friends come by two to four days a week to assist her. The ministry’s position is there is insufficient evidence provided by the NP to establish that the appellant has a severe physical impairment that affects her daily living activities. Panel Decision The panel notes there was confusion in regards to how some sections of the PWD application were completed. Although the appellant was marked off as being independent in most areas, she was also marked as taking significantly longer than typical in the areas of dressing; bathing; transfers in/out of bed; food preparation; cooking; laundry; housekeeping; taking medications as directed; and using public transit. The supporting comment for this described that help was needed on bad days. At the hearing, the appellant clarified that she required assistance two to four days per week and often had to stay sitting or in bed for three days at a time. Although the appellant provided oral evidence, (from her doctor in another province) where the doctor stated the appellant was a candidate for a program for severely handicapped people and the appellant stated she was on a program for handicapped people in another province until recently, the panel cannot consider the eligibility requirements of another province’s program in this decision. Based upon the definition of “impairment” the panel finds the appellant’s clarification, as to how her chronic pain restricts her ability to function independently or effectively because she requires assistance two to four days a week to manage her DLA, was supported by what was reported by the NP. As to the severity of the impairment, the panel finds the appellant’s condition does cause her great pain, and difficulty and this was confirmed by the NP who responded “yes” to the question regarding severity, and who confirmed the appellant required help on bad days. The panel considers the appellant’s inability to go for a walk without assistance, to not be able to do laundry or shopping independently, and to require assistance with personal care two to four days per week to be significant. For the reasons noted, the panel finds the ministry’s decision was not reasonable in determining that the requirement for a severe physical impairment under section 2(2) of the EAPWDA had not been met.

Direct and Significant Restrictions in the ability to perform DLA Subsection 2(2)(b)(i) of the EAPWDA requires the ministry to be satisfied that, in the opinion of a prescribed professional, a severe impairment directly and significantly restricts a person’s ability to perform DLA either continuously, or periodically for extended periods. This means that restrictions to DLA must be confirmed by the appellant’s doctor or one of the practitioners named in the legislation such as a psychologist or occupational therapist. The term “directly” means that the severe impairment must cause or result in restrictions to activities. The direct

Appeal Number 2021-0188 restriction must also be significant. This means that being unable to do DLA without a lot of help or support will have a large impact on the person’s life. Finally, there is a time or duration factor: the restriction may be either continuous or periodic under the legislation. Continuous means that the activity must generally be restricted all the time. The ministry views a periodic restriction as significant when it occurs frequently or for longer periods of time; for example, the activity is restricted most days of the week, or for the whole day on the days that the person cannot do the activity without help or support. DLA are defined in section 2(1) of the EAPWDR and are also listed in the MR, with additional details in the AR. Therefore, the doctor or other practitioner completing these forms has the opportunity to indicate which, if any, DLA are significantly restricted by the applicant’s impairments either continuously or periodically for extended periods and to provide additional details. The appellant’s position is she requires assistance from friends to do most all of her DLA for two to four days per week because of her chronic pain and nerve damage. The ministry’s position is, it is not satisfied that the appellant has a severe impairment that, in the opinion of a prescribed professional, directly and significantly restricts the appellant’s ability to perform the daily living activities set out in the legislation.

Panel Decision In the MR, the NP responded Yes to the question “Does the impairment directly restrict the person’s ability to perform DLA?” The NP further indicated the appellant was restricted periodically in the areas of personal self care, management of medications, basic housework, daily shopping, mobility inside/outside the home and use of transportation. In the AR, the NP indicated the appellant requires help on bad days, and at the hearing the appellant confirmed the frequency of the bad days as being two to four days per week. The panel found the appellant to be credible and notes that the appellant’s evidence was not in conflict with that from the NP. The panel considers the appellant not being able to go for a walk without assistance, do shopping, laundry, meal preparation or personal care two to four days a week to be significant. Therefore, the panel finds the ministry’s decision was not reasonable in determining that the appellant’s impairment did not directly and significantly restrict her ability to perform DLA as set out in Subsection 2(2)(b)(i) of the EAPWDA.