Ministry of Social Development and Poverty Reduction

Appeal Number 2021-0186 Part C – Decision Under Appeal The decision under appeal is the Ministry of Social Development and Poverty Reduction (the Ministry) Reconsideration Decision (RD) dated September 17, 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 EAPWDR, Section 2 Employment and Assistance Act (EAA), Section 22(4) The relevant legislation is provided in Appendix A.

Appeal Number 2021-0186 Part E – Summary of Facts The evidence before the Ministry at the time of the RD included the PWD Application comprised of an undated and unsigned applicant information and self report (SR), apparently completed by the Appellant, a Medical Report (MR) dated June 14, 2021 and completed by the Appellant’s General Practitioner (GP) who has known the Appellant since October 1992 and who has seen the Appellant 11 or more times in the past year, and an Assessor Report (AR) dated June 14, 2021, also completed by the GP. The evidence available to the Ministry at the time of the RD also include a Request for Reconsideration form (RFR) signed by the Appellant on September 7, 2021, in which the Appellant gives the reasons why she is asking the Ministry to reconsider its decision. Those reasons are detailed in the appropriate sections of the discussion below.

Diagnoses In the MR, the GP diagnosed the Appellant with Polyarthralgia without an identified date of onset, but which the GP has indicated has been “worse since July 2019”, Fibromyalgia with a date of onset of 2021, Anxious Depression with a date of onset of 2019, and asthma with a date of onset of 2009.

Severe Physical Impairment

Physical Functioning In the MR, under Health History, where asked to indicate the severity of the applicant’s medical conditions and how they impair the applicant, the GP wrote that the Appellant complained of Polyarthralgia in 2019 and told the GP that she has had it in the past, but it has been getting worse since 2019. The GP also said that the Appellant has been able to manage her asthma with inhalers. The GP further notes that the Appellant has ongoing pain, poor sleep, feelings of exhaustion, diffuse headaches impacting day-to-day activities including DLA, and that she is unable to work. With respect to functional skills, the GP reports that the Appellant can walk 2 to 4 blocks unaided on a flat surface, climb one flight of stairs unaided, lift under 2 kg, and can remain seated for less than 1 hour, adding “gets … stiff”. 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 applicant’s medical condition and the nature of their impairment, the GP has written “(Appellant) is highly motivated to improve but her symptoms impair her daily. In the past she was able to function very well in a managerial position … huge change in function with current impairments”. 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 with walking indoors, but takes significantly longer than normal with all other listed mobility and physical abilities (walking outdoors, standing, climbing stairs, lifting, and carrying and holding), adding “walking limited by arthralgia, similarly standing – short periods only, lifting/carrying < 2 kg”. In the SR, the Appellant states that she suffers from stiff muscles and joints, and that the pain moves around, adding “Some days more intense than others. The more I do, the more intense the pain gets so I have to stop and rest”. She also says that she is unable to carry things or do anything for a period of time because her joints crack and are painful. She writes that her eyesight has deteriorated, and she can’t sit or stand, walk, or concentrate. She says that she suffers from extreme tiredness and wakes constantly due to pain. In the RFR, the Appellant says that she has severe daily muscle and joint pain, and in completing the “Functional Skills” section of the MR, her GP had asked her to provide information about her functional

Appeal Number 2021-0186 skills (walking, climbing, etc.) on her best days. The Appellant wrote that even on her best days she can only walk one block and experiences pain when she walks. Severe Mental Impairment

Mental Functioning In the MR, under Health History, the GP has written that the Appellant has symptoms of anxious depression, which surfaced in 2020 and which are being treated with prescription medications. The GP also notes that in early 2020, the Appellant’s worsening anxious depression forced her to take time off work, and she subsequently returned to work, but in January 2021 she was unable to continue working due to increased pain and arthralgia. She was then referred to a specialist who prescribed medication which proved ineffective and was discontinued. The GP further notes that the Appellant has worsening anxious depression and low mood and energy. 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 executive planning, memory, emotional disturbance, motivation and attention and sustained concentration, adding the comment “Despite (the Appellant taking prescription medications) these symptoms continue day-to-day”. 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 listed areas (writing, speaking, reading ability and hearing) and does not provide any comments or explanations in the spaces 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 a major impact on emotion and attention/concentration; a moderate impact on bodily functions (specifically sleep disturbance), executive functioning, memory, and motivation; no minimal impacts; and no impacts in any of the other areas (consciousness, impulse control, insight and judgment, motor activity, language, psychotic symptoms, other neuropsychological problems, and other emotional or mental problems). No space is provided in the AR for further explanation or comment. With respect to social functioning, the GP indicates in the AR (with comments in italics) that the Appellant is independent in making appropriate social decisions, interacting appropriately with others, and ability to secure assistance from others. The GP has indicated that the Appellant needs periodic support or supervision in developing and maintain relationships (struggles with maintaining relationships due to anxious depression), and that she needs continuous support or supervision from others in dealing appropriately with unexpected demands (anxiety … impacted by ability to adapt to change). The GP also indicates that the Appellant has marginal functioning with her immediate social network and extended social network. The GP does not describe the degree of support or supervision required in the space provided, but comments that there are “no safety issues”. In the SR, the Appellant writes that she can’t concentrate and has no short-term memory. She states that there are times when she doesn’t know what she’s doing and that she cries all the time. She says that there are some days when she can’t leave the house and her anxiety “makes (her) cry or shut down”. She also says that she must write everything down but still forgets what she’s doing and loses the paper she has written her reminders on. She writes that when she was working, she couldn’t remember conversations she’d had with staff, and that she is unable to “remember being asked something or full conversations”. She describes her feelings of “living in a forgetful fog”. She also says that anxiety and depression are controlling her life, and that at least three times a week she doesn’t leave the house or get out of bed due to anxiety and depression. She says that she feels down and hopeless and doesn’t have coping skills anymore. In the RFR, the Appellant says that she must “fight back” depression every day. She writes that she can barely leave her house due to anxiety and depression, and has trouble remembering things like where she is going and how to do things she used to do. She says that she has no coping skills and no longer

Appeal Number 2021-0186 sees her friends as “just the thought of having one friend visit (her) sets (her) anxiety (into) overdrive”. As a result, she has an extremely isolated, sad and painful life. She also says that she is unable to be in crowded places. Restrictions in the Ability to Perform DLA In the MR, the GP indicates that the Appellant has not been prescribed any medications or treatments that interfere with her ability to perform DLA. Where asked to provide any additional information that might be considered relevant in understanding the impact of the Appellant’s medical condition on daily functioning, the GP has written “(The Appellant) is highly motivated to improve but her symptoms impair her daily. In the past she was able to function very well in a managerial position, therefore huge change in function with current impairments.” In the AR, the GP states that the Appellant is independent with respect to all tasks for the DLA of personal care, adding the comment “But if joints are sore will take somewhat longer”. Regarding basic housekeeping, the GP indicates that the Appellant takes significantly longer than typical, adding “Tires and needs to rest”. With respect to the DLA of shopping, the GP indicates that the Appellant is independent with all tasks except carrying purchases home and writes that the Appellant uses a trolley as an assistive device to carry her shopping bags. Regarding the other listed DLA, the GP indicates that the Appellant is independent with all aspects of paying rent and bills and managing medications, and with some aspects of meals (specifically meal planning and storage of food) but takes significantly longer than normal with food preparation and cooking (“due to polyarthralgia and fatigue … sore to chop/stir/lift/carry and fatigue with standing”). With the transportation DLA tasks, the GP indicates that the Appellant is independent with using transit schedules and arranging transportation but requires continuous assistance from another person in using public transit (“sore/fatigued to walk to/from and unable to stand on transit”) and takes significantly longer than typical for getting in and out of a vehicle (“sore joints, therefore needs to move slowly as can be painful”). In the space provided for an explanation or description of the type of assistance required, the GP has written “Polyarthralgia impacts her (DLA) but (she) is able to perform them except laundry/cleaning … always requires rest and (performs) small tasks at a time … carrying limited to <2 kg”. In the SR the Appellant states that the more she does, the more intense the pain gets, so she must stop and rest, and that, because her joints are “cracking and painful”, she is only able to carry things or perform actualities for short periods. She says that she can’t do any housework for long due to pain (referring specifically to vacuuming and changing the sheets). She also writes that she often forgets what she’s doing, “(she) frequently leaves faucets and things going”, and that grocery shopping is difficult, adding that “(she has) a little trolly (she uses). Carrying things is out of the question.” In the RFR, the Appellant writes that on a typical day it hurts her so much both physically and mentally that she spends her time in her bedroom as she is unable to do much in her day. She also says that it takes her days to clean her bathroom as she keeps having to sit down and take a break, and that this is how it is for all her DLA. She also states that she uses the elevator in her building and has her groceries delivered. Need for Help In the MR the GP indicates that the Appellant does not require any prostheses or aids for her impairment. In the section of the AR that asks who provides the help required for DLA, the GP written “lives alone”. The GP has not indicted that any assistive devices are required in the section of the MR where the prescribed professional is asked what assistance is provided through the use of a specific list of assistive devices. The GP also indicates that the Appellant does not have an assistance animal.

Appeal Number 2021-0186 In the RFR, the Appellant says that she gets “as much help as she can”. 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 the requirements set out in the legislation and on all admissible evidence. The section of the Notice of Appeal (NOA) asking why the appellant disagrees with the Ministry’s RD, the Appellant has indicated that “justification documents” will be provided. These documents were submitted on October 1, 2021 (the Appellant’s Submission or AS). A list of the documents provided in the AS, together with the comments provided, are summarized below. New information provided in the AS comprised: • A two-page undated document titled “Justification and Documentation for NOA for (the Appellant)” (the Justification) provided by the Appellant’s advocate (the Advocate), who is a registered social worker (SW) and also served as a witness. In the Justification, the Advocate writes that: o The Advocate works as a clinical SW at a hospital in the Appellant’s community and had met the Appellant on August 29, 2021 when the Advocate was called by the nursing team for an urgent assessment of the Appellant because “the team informed (the Advocate) that the (Appellant) appeared very depressed, continued to cry incessantly and was expressing suicidal ideation”; o The Advocate met with the Appellant “and obtained the necessary information and history from her. (The Appellant) explained how she just could not get out of bed and for the most part had no desire to go on”, adding that the Appellant could not stop crying throughout the interview; o The Appellant explained to the Advocate that she had “suffered multiple losses” in the past year “which had impacted her ability to concentrate, sleep and focus”; o After arranging for written consent from the Appellant for the Advocate to act on the Appellant’s behalf, the Appellant contacted the Ministry, which confirmed that the Appellant had recently applied for and been denied the PWD designation; o Despite the Advocate telling the Appellant not to submit any additional information until the Advocate was ready with their documentation, the Appellant completed and submitted the RFR, which, the Advocate writes “only speaks to her state of mind, anxiety and inability to retain the simplest of information”; o While the GP has accurately described the Appellant’s physical conditions limiting her ability to perform DLA, “a big part of (the Appellant’s) capacity is dependent on her mood which is very low … She has suffered numerous losses and (a recent major medical procedure) has only added to her feelings of grief and loss … Therefore, although (the Appellant) has the physical capacity to perform DLA as reported by the (GP), her mental state is preventing her from doing so”. The Advocate also wrote that they noted in their consultations with the Appellant that her insight and judgement are questionable at times, adding “she is unable to think clearly and her anxiety interferes with her ability to concentrate or retain information resulting in impulsivity and getting easily overwhelmed”; and,

Appeal Number 2021-0186 o In the Advocates opinion the Appellant needs periodic support “with all areas” and that “anxiety appear to play a big part in preventing her from engaging with people and she is further isolating herself. As indicated by the (GP, the Appellant’s) level of functioning … is marginal”; • An annotated copy of the AR (the Second AR), bearing the Advocate’s additional comments and explanations as detailed below; and • A one-page scoring sheet titled “PHQ-9 and GAD-7” (the Questionnaire) prepared with the Appellant identified as the person being scored and indicating how often the Appellant has been bothered by a list of 16 specific problems, ranging from “Not at all” to “Nearly every day”. Details about the scores provided for more frequently occurring problems are provided below.

Severe Physical Impairment Physical Functioning In the section of the Second 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 Advocate has indicated that the Appellant can only walk indoors independently if she is well, and has added the following comment in the appropriate space provided in the AR: “(The Appellant’s) depression results in lack of motivation and this leads to inability to even get out of bed, bathe, or tend to basic hygiene”. Severe Mental Impairment Mental Functioning In the section of the Second AR where the assessor is asked to indicate to what degree the applicant’s mental impairment restricts or impacts functioning, the Advocate has changed the GP’s assessment of the impact of the Appellant’s mental impairment on Insight and Judgement from “No Impact” to “Moderate Impact” and added the comment: “Incessant crying, feelings of despair and hopelessness, suicidal ideation – as (observed by the Advocate in the clinic at a hospital in the Appellant’s community)”. In the section of the AR that deals with social functioning, the Advocate has changed the ratings made by the GP from “Independent” to “Periodic Support/Supervision” in the Second AR for making appropriated social decisions (adding the comment: “Not always! Anxiety leads to making hasty decisions without thinking through consequences”); interacting appropriately with others (“Sometimes misses social clues”); and able to secure assistance from others (“Depending on state of mind; for the most part she just freezes in a crisis situation”). In the Questionnaire, the Advocate indicates that the Appellant scored “Nearly ever day” for how often she experienced 10 of the 16 problems. These problems were: little interest or pleasure in doing things; feeling down, depressed or hopeless; trouble falling or staying asleep or sleeping too much; feeling tired or having little energy; poor appetite or over eating; feeling bad about yourself or that you are a failure and have let yourself or your family down; trouble concentrating on things, such as reading the newspaper or watching television; feeling nervous, anxious or on edge; trouble relaxing; and, feeling afraid as if something awful might happen. Of the other 6 problems, the following 4 were identified as occurring “More than half the days”: thoughts that you were better off dead or of hurting yourself in some way; not being able to stop or control worrying; worrying too much about different things; and, being so restless it’s hard to sit still. Restrictions in the Ability to Perform DLA

Appeal Number 2021-0186 In the Second AR, where asked to describe the type and amount of assistance required, the Advocate has provided the following additional explanations: • Regarding Personal Care – “Unable to (perform any of the individually listed tasks, which include dressing, grooming, bathing, etc.) for the most part – not just pain but depression leading to lack of motivation and drive”; • Regarding Basic Housekeeping and Shopping – “… will not get out of bed for days at a time”; • Regarding the Meal Planning task of the Meal DLA (but without changing the GP’s assessment that the Appellant can function independently in this task) – “Due to low mood”; and, • Regarding Pay Rent and Bills and Medications – “Unable to perform these simple tasks – low mood, cyclical in nature”. Where asked to provide additional comments in this section of the Second AR, the Advocate has written: “Only when she is well [depression and anxiety managed] can she successfully complete these (DLA) tasks – not been well in months! Otherwise she stays in bed all day [this can go on for weeks]. Her recent (significant medical procedure) … has made matters even worse – feelings of grief and loss adding to her already existing sense of hopelessness and despair”. Need for Help In the section of the Second AR where the assessor is asked to describe what assistance would be necessary if help is required but none is available (a section of the AR that the GP had left blank), the Advocate has written: “Counselling would really help to manage feelings of grief and loss, depression and anxiety. Cognitive Behaviour Therapy? Evidence Presented at the Hearing The Advocate, who, as explained above, also served as a witness, spoke on behalf of the Appellant at the hearing. The Advocate said that the Ministry did not have adequate information on the Appellant’s mental health, as the GP’s reporting focussed on physical issues. The Advocate stated that in their experience there is a tendency for medical practitioners to be dismissive of depression and related mental impairments. In addressing the Appellant’s mental health issues, the Advocate said that the Appellant’s depression, anxiety and low mood are “preventing her from get up and go”, leaving her unable to even get out of bed most days. In response to a question from the Panel, the Appellant said that on average she is unable to get out of bed three or four times a week, and that when she is unable to get out of bed, she contacts her brother or sister-in-law who shop for her or make her meals. The Appellant added that she hasn’t had a shower in about a week. The Advocate stated that they submitted a Second AR by adding comments that focus on the Appellant’s mental impairments, since, in the Advocate’s opinion, the Appellant’s physical impairments are accurately represented by the GP. In response to a question from the Panel, the Advocate said that she had meant to change the GP’s assessment of the Appellant’s ability to manage the meal planning task from “independent” to “unable to perform” but had forgotten to do so. The Advocate said that the Questionnaire was provided in the AS because the Appellant had scored very high on the frequency with which the Appellant shows difficulties in coping with a range of problems. In response to a question from the Panel, the Advocate said that they had not presented the Questionnaire to the Appellant to complete but had asked the Appellant about how often the problems listed in the Questionnaire occur when they interviewed the Appellant and completed the Questionnaire on the Appellant’s behalf from their notes. In response to another question from the Panel, the Advocate