Ministry of Social Development and Poverty Reduction

Appeal Number 2021-0217 Part C – Decision Under Appeal The decision under appeal is the Ministry of Social Development and Poverty Reduction’s (“ministry”) reconsideration decision dated November 2, 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”). At the reconsideration, the ministry found the appellant met the requirements for age and duration (impairment to continue at least 2 years), but was not satisfied that 3 requirements were met:

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severe mental or physical impairment; significant restrictions to daily living activities (“DLA”), and needs help with DLA.

The ministry found 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 The ministry based the reconsideration decision on the following legislation:

Employment and Assistance for Persons with Disabilities Act - EAPWDA - section 2 Employment and Assistance for Persons with Disabilities Regulation - EAPWDR - section 2 The full text is available in the Schedule after the decision.

Appeal Number 2021-0217

Part E – Summary of Facts The evidence and documentation before the minister at the reconsideration consisted of:

1. Information from the ministry’s Record of Decision which stated that the PWD application was received on August 12, 2021 and denied on September 2, 2021. On October 4, 2021, the appellant submitted a Request for Reconsideration (“RFR”) asking for an extension of time to submit information as his family doctor was away. On November 2, 2021, the ministry completed the review of the RFR finding that the appellant met only 2 of the PWD criteria.

2. The RFR signed by the appellant on October 3, 2021, “please extend reconsideration time” to November 2, 2021. The appellant attached a note from a family physician (“Dr. S.”) confirming that the appellant’s usual doctor at the clinic (“Dr. G.”) was away until October 12, 2021. On October 18, 2021, the appellant submitted a note from Dr. G. dated October 14, 2021, that set out employment limitations due to the appellant’s ongoing medical conditions: “patient can work for a duration of 1.5 hours at a time and requires 1-2 breaks in that time.”

On October 18, 2021, the appellant provided a 1-page submission prepared by a friend (“RFR submission”) that set out the appellant’s argument for the reconsideration; described ongoing treatment for his chronic hemorrhoids/fissure at a specialized clinic (“Colorectal health centre”), and summarized his restrictions in employment. The appellant described 3 years of treatment for chronic hemorrhoid/fissure pain including several medications as well as the application of rubber bands. The appellant said that the health centre’s doctor told hm the condition keeps coming back and the appellant will have to live with it.

3. The PWD application comprised of:  the Applicant Information (self-report - “SR”) dated June 13, 2021,  a Medical Report (“MR”) dated July 21, 2021, completed by Dr. G. who has known the appellant since 2016, and has seen him 11 or more times in the past 12 months, and  an Assessor Report (“AR”) dated July 21, 2021, also completed by Dr. G. who said they have known the appellant since 2018. Dr. G. indicated that file/chart information was used to complete the AR.

4. The ministry’s PWD Decision Summary with attached letter dated September 2, 2021, in which the ministry found that the appellant met 2 of the criteria for PWD designation.

Summary of relevant evidence from the application: SR The appellant reported that his medical conditions include:  chronic depression/anxiety (“more than 13 years”) that has worsened;  chronic knee pain (“more than 13 years”);  chronic fissure/hemorrhoid (“more than 15 years”) for which he has received treatment for the past 3 years at the Colorectal health centre;  heart issues.

Symptoms The appellant described feeling anxious with a racing heart, and worsening palpitations. The appellant said his blood pressure is high and his heart rate gets too fast.

Appeal Number 2021-0217 Functional limitations  The appellant said he cannot stand for more than 10 minutes (due to knee pain).  The appellant described his struggles with sleeping.

MR Diagnosis In section A, the appellant is diagnosed with depression/anxiety (date of onset 13 years ago), and knee pain. Under Health History (section B) Dr. G. said the appellant has “low mood, hard to participate, difficult to walk.”

Degree and course of impairment In section C, Dr. G. indicated that the appellant requires an increased dose of antidepressants to help his situation. Functional skills - physical impairment In section D (1-4) Dr. G. indicated the appellant can walk less than 1 block unaided on a flat surface, climb 2-5 steps unaided, lift under 5 lbs., and he has no limitation with remain seated.

Functional skills - mental impairment In section D (5-6) Dr. G. indicated the appellant has no difficulties with communication. Question 6 asks whether there are any significant deficits with cognitive and emotional function? Dr. G. checked yes, indicating the appellant has significant deficits with Emotional disturbance. The doctor left Comments (section F) blank.

Daily living activities Dr. G. checked yes, the appellant’s medications interfere with his ability to perform DLA. The appellant requires the medications “lifelong” for depression/anxiety (escitalopram), hemorrhoids (anusol), and heart symptoms (nitroglycerin).

Dr. G. indicated that all of the DLA listed on the form are continuously restricted by the appellant’s impairment, comment: “significant fatigue makes doing the above difficult.”

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Personal self-care Meal preparation Management of medications Basic housework Daily shopping Mobility inside the home Mobility outside the home Use of transportation Management of finances Social functioning (comment: “anhedonia due to his depression”).

Help required In section B, Dr. G. checked no, the appellant does not require any prostheses or aids for the impairment.

Appeal Number 2021-0217 AR Physical impairment Dr. G. indicated the appellant takes significantly longer than typical with most of the physical abilities listed on the form: walking (indoors and outdoors), climbing stairs, and standing (comment: “due to fatigue”). Dr. G. check marked independent for lifting and carrying/holding.

Mental impairment Dr. G. indicated the appellant has good communication skills for all areas listed on the form: speaking, reading, writing, and hearing.

Dr. G. checked that the appellant’s mental impairment has no impact for 12 of the 14 areas of cognitive and emotional functioning listed in section B-4:

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Bodily functions Impulse control Insight and judgment Attention/concentration Executive Memory Motivation Motor activity Language Psychotic symptoms Other neuro-psychological problems. Other emotional or mental problems.

Dr. G. checked moderate impact for 2 areas:  Consciousness (comment: “fatigue”)  Emotion

In Section E - Additional Information, Dr. G. wrote, “low mood, feeling anxious.” Dr. G. indicated the appellant’s conditions are severe and prolonged (comment: “symptoms greater than 15 years”). Dr. G. stated that medications have helped but the appellant “gets a lot of side effects so symptoms have not improved.”

Daily living activities For Part C, Dr. G. checked independent for all areas of the all DLA listed on the form:  Personal Care: Dressing, Grooming, Bathing, Toileting, Feeding self, Regulating diet, Transfers (bed and chair)  Basic housekeeping: Laundry, Basic housekeeping  Shopping: Going to and from stores, Reading prices and labels, Making appropriate choices, Paying for purchases, Carrying purchases home  Meals: Meal planning, Food preparation, Cooking, Safe storage of food  Pay rent and bills: Banking, Budgeting, Pay rent and bills  Medications: Filling/refilling prescriptions, Taking as directed, Safe handling and storage  Transportation: Getting in and out of a vehicle, Using public transit, Using transit schedules and arranging transportation

Under Additional comments for the above DLA, Dr. G. wrote: “can do tasks but hard to do due to fatigue”

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Appeal Number 2021-0217 Social Functioning: Appropriate social decisions, Able to develop and maintain relationships, Interacts appropriately with others, Able to deal appropriately with unexpected demands, Able to secure assistance from others

Dr. G. indicated the appellant has good functioning with his immediate and extended social networks. In Section E - Additional Information, Dr. G. wrote, “has anhedonia (does not want to do anything) due to depression, significant fatigue/anhedonia making it hard to do his ADLs. He notes all household tasks are difficult for him.”

Help required Dr. G. indicated the appellant lives with family who help him with DLA (sections A and D). No assistive devices were indicated (comment: “none”). Dr. G. checked no the appellant does not have an assistance animal.

Additional submissions With the consent of both parties, the appeal proceeded as a written hearing pursuant to subsection 22(3)(b) of the Employment and Assistance Act (“EAA”). The Tribunal granted an granted a 2-week adjournment as requested by the appellant, to give him more time for written submissions.

Subsequent to the reconsideration decision the appellant submitted the following evidence to the Tribunal requiring an admissibility determination under section 22(4) of the EAA. All documents were received at the Tribunal on December 21, 2021 and forwarded to the ministry for review.

1. A 1-page typed submission (“appeal submission”) prepared by a friend, in which the appellant stated his argument and provided additional detail about his medical conditions:

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The ministry approved the appellant’s application for Persons with Persistent Multiple Barriers to employment (“PPMB”) based on health conditions that have been getting worse. The appellant’s knee pain is continuous and severe and requires a medical knee brace and walking cane which were prescribed by Dr. S. (a family doctor at the appellant’s usual clinic). The appellant is more than 30 lbs. overweight which increases his problems with mobility, knee pain, and sitting. Dr. S. also prescribed a medical seat cushion. The appellant has a migraine that is getting worse, is in constant pain every day due to several health issues, and cannot manage his life without painkillers. He described lying down and sleeping “the whole day” and said that his heart races significantly even with small movements. In the mornings, the appellant “felt his head stuck on the pillow and I could not leave the bed.” The appellant reported feeling fatigued most of the time, forgetting everything easily, and having things fall out of his hands quite often. The appellant said he is unable to work at all now. The appellant said that his landlord helps him with shopping and cooks for him sometimes. Otherwise, he only eats fast food or canned, ready to eat food because “cooking is impossible for me.”

2. A copy of a prescription from Dr. S. dated November 18, 2021: brace for left knee pain. 3. A copy of a prescription from Dr. S. dated November 24, 2021: seat cushion for hemorrhoid pain, and a walking cane for left knee pain.

4. A tele-health note from Dr. G. dated December 18, 2020. The note states the appellant has major depressive disorder and has been taking an anti-depressant medication for more than 10 years with the dose increased a few months ago. The appellant is “feeling unwell, head is heavy, unable to get up from bed, hemorrhoid and knee pain, patient denies any suicidal ideation or harm intent. No new issues noted.” Dr. G. recommended counselling services for the appellant’s depression because further increasing the does of the anti-depressant is not an option “due to increased Qtc” (heart rate interval). The appellant refused counselling and wants to try different medications at this point. Dr G. discussed the success and evidence of counselling combined with medication and

Appeal Number 2021-0217 will switch the appellant to a different medication (Zoloft) and prescribe a repeat electrocardiogram (“ECG”) in 1 month.

5. A Certificate of Health Status from Dr. G. dated December 2, 2021, stating that the appellant is off work due to medical conditions that are impacting his ability to do occupational tasks. The return-to-work date is uncertain and dependent on reassessments of clinical progress.

6. A letter from a doctor at the Colorectal health centre, dated July 4, 2019. The letter indicates the appellant was diagnosed with hemorrhoids and fissure with symptoms including bleeding and pain that have been present for several years. The appellant has not had abdominal pain or weight loss and his clinical history is unremarkable with no previous history of colorectal problems, significant diseases, or family history of cancer.

An imaging test (procto-sigmoidoscopy) showed a posterior anal fissure and hemorrhoids with other clinical features absent or normal. The doctor prescribed medication, and banding treatment which was performed in successive weekly sessions. The appellant was counselled to take a dietary fibre supplement, increase his intake of water, and change his toileting habits. The appellant requires an annual follow up examination and annual fecal occult blood test.

7. A referral from the Colorectal health centre (undated) to another doctor for “severe anal fissure.” The referral indicates the appellant is taking the anti-depressant medication prescribed by Dr. G. in the tele-health note of December 18, 2020.

8. A copy of a Health Assessment from the appellant’s PPMB application (section 1-C). The assessment was completed by a family physician (“Dr. K.”) on October 5, 2019. The assessment included the following evidence:

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The appellant’s health conditions include chronic depression and anxiety (since 2009), knee pain (since 2019), and hemorrhoids (since 2018). The conditions are episodic and do not recur predictably, comment: “it can fluctuate but the condition is present most of the time.” The appellant is suffering from chronic depression/anxiety that is ongoing and fluctuates depending on stressors. The appellant has “low interest and motivation to perform activities necessary for executive functioning.” The appellant “has problems with concentration and memory secondary to his frequent mood changes.” The appellant probably does not register information “most of the time” to remember later. The hemorrhoids and knee pain “are just regular health issues but put an extra load mentally on him to have something extra to worry about.”

Admissibility of additional evidence The ministry did not raise any objections to additional documents. With the exception of the Certificate of Health Status which addresses employability but none of the factors relevant to PWD eligibility, the panel admits the documents under section 22(4) of the EAA as evidence that is reasonably required for a full and fair disclosure of all matters related to the decision under appeal. The panel finds that the appeal submission, prescriptions for assistive devices, tele-health note, and PPMB Health Assessment contain information that is directly related to PWD eligibility criteria including descriptions of the appellant’s functional restrictions and need for help.

The panel acknowledges that the PPMB medical report was written for an application that assesses barriers to employment but notes that it has detailed information about the appellant’s depression and other conditions from a general perspective without any reference to employability. The letter and referral regarding the appellant’s fissure/hemorrhoid condition are especially relevant to the appeal as they confirm a diagnosis that the ministry said was not mentioned in the PWD medical reports or the note from Dr. G. submitted with the RFR.

The ministry did not submit any new evidence. In an email to the Tribunal, the ministry stated that the reconsideration summary is the ministry’s submission on appeal. The panel will consider the arguments of both parties in Part F - Reasons.

Appeal Number 2021-0217

Part F – Reasons for Panel Decision The issue on appeal is whether the ministry’s decision that found the appellant ineligible for PWD designation because not all the criteria under section 2 of the EAPWDA were met, was reasonably supported by the evidence or was a reasonable application of the legislation in the circumstances of the appellant. Specifically, was the ministry reasonable to find that a severe mental or physical impairment, significant restrictions to DLA, and help with DLA were not established on the evidence?

Severe mental or physical impairment Appellant’s argument In the RFR submission, the appellant argued he has a severe impairment of physical functioning because Dr. G. selected “the most restricted and limited choices” in the MR and AR for functions such as walking, climbing stairs, and lifting and indicated the appellant is very slow with mobility and with standing due to knee pain and fatigue. The appellant argued that even though Dr. G. indicated that standing is independent and there are no restrictions with sitting, the appellant can only stand for maximum 10 minutes, and sit for up to 15-30 minutes with assistance from a special cushion for his hemorrhoids/fissure.

In the Notice of Appeal, the appellant argued the reconsideration decision was not rational or supported by evidence. In the appeal submission, the appellant argued that his hemorrhoids/fissure is severe and periodic for an extended period of time as confirmed by the Colorectal health centre. The appellant argued his knee pain is also continuous and severe as it requires him to use a knee brace and cane for mobility.

Regarding his depression and anxiety, the appellant noted that he feels anxious; has worsening heart palpitations; his heart rate gets too fast, and he has difficulty sleeping (feels fatigue most of the time). In the appeal submission, the appellant argued that major depressive disorder (diagnosed by Dr. G.) is the “highest level of depression if it continues for 2 weeks” but in his case, it has continued for more than 12 years. The appellant argued that his mental health condition also affects his weight (“30 lbs. overweight”) making his knee pain and problems with sitting more severe.

Ministry argument The ministry argued there was insufficient evidence to establish a severe impairment of physical or mental functioning. The ministry acknowledged that Dr. G. reported restrictions with physical functions such as walking, climbing stairs, and lifting, and indicated the appellant takes significantly longer for most physical activities due to fatigue. However, the ministry argued the information did not establish a severe impairment because Dr. G. did not indicate how much additional time was needed, and in the AR, lifting was check marked independent.

The ministry said it was unable to assess the appellant’s functioning due to the hemorrhoids/fissure because no information about that condition was provided by Dr. G. or another medical professional. The ministry argued that a severe physical impairment was not established on the evidence because the need for assistance was not indicated for activities requiring mobility or lifting/carrying.

Regarding a mental impairment, the ministry argued the appellant’s depression/anxiety was not severe despite Dr. G.’s comments regarding the appellant’s “severe and prolonged” symptoms of low mood, anxiety, and fatigue from his medication. The ministry said the appellant does not have a severe mental impairment because only one significant deficit in cognitive and emotional functioning (Emotional disturbance) was reported in the MR with no major impacts indicated in the AR.

The ministry argued that the moderate impacts for Consciousness (fatigue) and Emotion reported in the AR were not supported by the evidence for DLA including activities related to decision-making about personal care, finances, and social functioning which were assessed as independent. The ministry argued that the information provided “is more in keeping with a moderate impairment, as opposed to a severe mental impairment.”

Appeal Number 2021-0217 Legislative requirement To be eligible for PWD designation, the legislation (EAPWDA section 2) 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. “Severe” is not defined in the legislation but in the ministry’s view, the diagnosis of a serious medical condition does not in itself establish a severe impairment of mental or physical functioning. The PWD medical reports ask for information on functional skills and abilities and the panel finds that the ministry’s assessment of severity based on daily function is a reasonable interpretation of the legislation.

Mental and physical impairment - specific considerations 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 functional abilities and whether there are restrictions to DLA requiring mental/social functioning including any safety issues. The panel finds that an assessment of severity based on cognitive, emotional, and social functioning is a reasonable interpretation of the legislation.

To assess whether the applicant has a severe physical impairment, the ministry considers information on the degree of restrictions to physical functioning and whether the applicant requires significant help or any assistive devices to manage physical tasks. The panel finds that the assessment of severity based on daily physical functioning is a reasonable interpretation of the legislation.

Panel’s decision - severe mental or physical impairment The panel finds that the ministry’s decision (no severe physical or mental impairment) is not reasonably supported by the evidence. The panel has taken a cumulative view of the evidence and finds that the documents submitted on appeal add a detailed narrative to the PWD medical reports (MR, and AR) and updated information from the appellant.  The additional information is also recent, with the documents dated between July 2019 and November

2021. For these reasons, the panel gives significant weight to the additional information.

Evidence for severe physical impairment The panel finds that the additional information supports Dr. G’s original check marks and comments regarding the appellant’s significant difficulties with walking and other physical functions due to both knee pain and chronic fatigue from depression and medication side effects. Specifically, restrictions for walking, climbing stairs, and lifting

were reported in both the MR and AR (“difficult to walk”, can walk less than 1 block, climb 2-5 steps, and lift less than 5 lbs). As the appellant noted, Dr. G.’s ratings on the scale in the MR indicated a high degree of restriction for walking and lifting.

Dr. G. gave climbing stairs a more moderate rating (2-5 steps unaided) but indicated in the AR that the appellant performs most physical functions slowly, taking significantly longer than typical with walking, climbing stairs, and standing. The appellant reported being able to stand for 10 minutes (maximum) which is consistent with fatigue as described by both Dr. G. and the appellant throughout the submissions. Based on these ratings of physical functions including the appellant being “very slow”, the panel is satisfied that the evidence establishes that knee pain, as well as fatigue/anhedonia from depression, results in a severe physical impairment.

The ministry argued the appellant was independent with all physical functions and DLA involving physical movement despite the functional limitations reported in the PWD application. However, the prescriptions submitted on appeal confirm that the appellant needs assistive devices (knee brace, walking cane, and seat cushion) to perform physical activities. The appellant indicated in the RFR submission that he can sit for a low to moderate duration (15-30 minutes) only with the assistance of a special cushion for his hemorrhoids/fissure, and he needs the brace and cane for mobility. The panel finds that the need for assistive devices is consistent with the degree of restrictions reported in the MR, AR, and additional submissions and is further evidence of a severe physical impairment.

Appeal Number 2021-0217 The ministry said the hemorrhoid condition was not diagnosed in the MR or additional medical information for the RFR, but the panel notes that in the MR the appellant was prescribed a medication for his hemorrhoids (anusol). The appeal submissions provide detailed information about the hemorrhoid condition. In the PPMB Health Assessment, Dr. K. stated that although the appellant’s knee pain and hemorrhoids are “regular health issues”, they are impacted by depression and anxiety, giving the appellant something extra to worry about.