Ministry of Social Development and Poverty Reduction

Appeal Number 2022-0028 Part C – Decision Under Appeal The decision under appeal is the Ministry of Social Development and Poverty Reduction’s (“ministry”) reconsideration decision dated February 3, 2022, 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 requirement and the requirement for the impairment to continue for at least 2 years but was not satisfied that:

• the appellant has a severe mental or physical impairment; • the 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 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.

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Appeal Number 2022-0028 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 indicating that the PWD application was submitted on November 1, 2021 and denied on November 23, 2021 with an explanation (Decision denial summary) of the criteria that were not met. On January 6, 2022, the appellant submitted a Request for Reconsideration (“RFR”). On February 3, 2022, the ministry completed the review of the RFR.

2. An RFR signed by the appellant on January 5, 2022, with a request for an extension to provide an update from the appellant’s doctor and cardiologist about the appellant’s declining health. The ministry noted that no additional information was received for the reconsideration.

3. The PWD application comprised of:  the Applicant Information (self-report - “SR”) signed by the appellant on September 22, 2021. No submission was provided with the report.

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a Medical Report (“MR”) dated October 15, 2021, signed by a cardiologist who has known the appellant for 10 months and has seen the appellant once in the past 12 months (comment, “patient has been feeling flu-like symptoms, unable to be seen in person due to this”).

Assessor Report (“AR”) dated October 15, 2021, completed by a registered nurse (“RN”) who indicates they saw the appellant once for the purpose of the assessment and based the assessment on hospital records and information from nursing staff at the heart function clinic.

Summary of relevant evidence from the application and RFR: Diagnoses In the MR, the appellant was diagnosed with heart conditions: ischemic cardiomyopathy (“ICMO”), and heart failure with reduced ejection fraction (“HFrEF”) - 40% (onset January 2021). In Section B - Health History, the cardiologist explains that heart failure is a chronic, life-limiting condition that requires the appellant to take “heart failure medications for life.”

In the AR, the RN explains that the appellant is enrolled in the heart function clinic “where we address the pumping function of his heart and provide therapies to improve his symptoms of heart failure and improve his heart function.” The appellant has been enrolled in the program or 8-10 months.

Functional skills Medical Report In Section B - Health History, the cardiologist explains that heart failure “has significantly reduced [the appellant’s] functional capacity.” After the heart failure diagnosis and a hospital emergency (“ER”) visit in December 2021, the appellant “has been progressively declining in functional status.” The cardiologist states that before the diagnosis of heart failure, the appellant had no difficulty in walking long distances but since the diagnosis, shortness of breath “limits patient from walking more than 2 blocks and makes it challenging to walk up stairs.”

In section D - Functional Skills, the cardiologist indicates the appellant can walk 1-2 blocks unaided on a flat surface and climb 5 or more steps unaided. The appellant is unable to lift any weight (comment, “no energy”). The appellant has no limitations with remain seated.

Regarding mental functions (questions D-5 and D-6), the cardiologist indicates no difficulties with communication. The cardiologist checked yes, the appellant has significant deficits with cognitive and emotional function in the areas of Emotional disturbance and Motivation. The 2 sections for comments were left blank.

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Appeal Number 2022-0028

Assessor Report Under Section B-2, Ability to Communicate, the RN indicates a good ability for 3 of the 4 areas listed: Speaking, Writing, and Hearing. The appellant’s ability to read was marked satisfactory (comment, “vision difficulties”).

Under section B-3, Mobility and Physical Ability, the RN indicates restrictions for 4 of the 6 areas listed. Specifically, the appellant takes significantly longer than typical with the following functions:

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Walking outdoors: comment, “needs to take frequent breaks” Climbing stairs: comment, “challenges taking stairs due to shortness of breath” Lifting: comment, “not able to lift heavy objects” Carrying and holding: comment, “difficulty with groceries.”

The RN marked the remaining 2 areas as independent:  Walking indoors  Standing

In section B-4, Cognitive and Emotional Functioning, the assessor is asked to indicate what impacts the appellant’s impairments have on various cognitive and emotional functions. For the 14 areas listed, the RN indicates impacts in 4 areas:

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Minimal impact for Consciousness Moderate impact for: -Emotion -Motivation -Motor Activity (including decreased goal-oriented activity).

No impact is reported for the following areas:  Bodily functions (including poor hygiene and sleep disturbance)  Impulse control  Insight and judgment  Attention/concentration  Executive  Memory  Language  Psychotic symptoms  Other neuropsychological problems  Other emotional or mental problems.

Daily Living Activities Medical Report In Section B - Health History, the cardiologist explains that before the appellant was diagnosed with heart failure, he was able to work and perform DLA with no issues, but now the appellant experiences daily fatigue and requires naps throughout the day “as he has no energy to perform his daily activities or grocery shopping.”

In Section B-3, the cardiologist checked yes, the appellant has been prescribed medications or treatments that interfere with the ability to perform DLA (comment, “patient has been prescribed heart failure medications. Some of the symptoms/side effects of these medications can include dizziness/lightheaded spells as well as fatigue”).

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Appeal Number 2022-0028

Section E of the MR - Daily Living Activities, was left blank. Assessor Report In Section B1 - Mental or Physical Impairment, the RN explains that “fatigue and shortness of breath affect ability to manage daily activities which makes [the appellant] depressed.”

In Section C - Daily Living Activities, the RN indicates the following restrictions for 3 of the 8 DLA listed. Specifically, these DLA take significantly longer than typical to perform:

 Personal Care: The appellant takes significantly longer with 1 of the 8 activities listed: - Dressing: comment, “shortness of breath while dressing.” The appellant was assessed as independent with the remaining personal care activities: - Grooming - Bathing - Toileting - Feeding self - Regulating diet - Transfers (bed) - Transfers (chair)

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Basic Housekeeping: The appellant takes significantly longer with all activities: - Laundry: comment, “difficulty carrying laundry” - Basic Housekeeping: comment, “needs frequent breaks.”

Shopping: The appellant takes significantly longer with 2 of the 5 activities: - Going to and from stores: comment, “needs breaks when walking” - Carrying purchases home: comment, “difficulty lifting groceries for long distances.”

The appellant is assessed as independent with the remaining areas of Shopping: - Reading prices and labels - Making appropriate choices - Paying for purchases.

Additional comments for these DLA was left blank and all areas of the remaining DLA are assessed as independent.

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Meals: The appellant is independent with all areas: - Meal planning - Food preparation - Cooking - Safe storage of food.

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Appeal Number 2022-0028 Pay Rent and Bills: The appellant is independent with all areas:

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Banking Budgeting Pay rent and bills.

Medications: The appellant is independent with all areas: - Filling/refilling prescriptions - Safe handling and storage.

Transportation: The appellant is independent with all areas: - Getting in and out of a vehicle - Using public transit (where available) - Using transit schedules and arranging transportation.

Social Functioning: The appellant is independent with all areas: - 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

The RN checked marginal functioning when asked to describe how a mental impairment affects the appellant’s relationship with his immediate and extended social networks. No support/supervision was indicated to maintain the appellant in the community and no safety issues were reported.

Section E - Additional Information (including the effect of the impairment on DLA), was left blank.

Need for help Information from the MR and AR In the MR under Health History (Section B-4), the cardiologist marked no, the appellant does not need any prostheses or aids for the impairment.

In the AR, The RN indicates the appellant lives alone and “patient currently does not have assistance” with DLA. Section D - Assistance provided through the use of Assistive Devices, was left blank. The RN checked no, the appellant does not have an assistance animal.

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Additional submissions

Appeal Number 2022-0028

Subsequent to the reconsideration decision the appellant filed a Notice of Appeal with a 2-page typed submission and a letter from his new family doctor.

The appellant’s submission, dated February 14, 2020, provides detailed information about his medical history and resulting restrictions. The appellant reported that:

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on June 3, 2020, he tested positive for Covid-19. It lasted for 5 months and he finally tested negative on December 16, 2020; in late December 2020, he had his first stroke, followed by a second stroke 3 days later. After some recovery time, he tried to walk “step by step, with a lot of pauses and by supporting myself with furniture and everything around me.” Once the appellant was able to go outside, he realized “that what used to take me 5 minutes takes me now 25 minutes;” after having Covid-19 and 2 strokes, he was diagnosed with heart failure which makes him “very easily out of breath, dizzy, and I lost all my strength;” he can’t stand for long periods of time “which makes difficult, daily basic tasks like cooking, dressing, cleaning, or even showering.” His hygiene is deteriorating, as are his living conditions because he can’t clean his place properly or cook. He relies on pre-cooked meals or cans; his doctor asked him to go out and walk but he “can’t go further than one block which already takes me 25 minutes, so 5 times longer than before;” on his way home he has to climb stairs and that takes him 10 times longer than it used to, “to which we can add 30 minutes of recovery because of my shortness of breath;” he can’t carry more than 5 lbs. “because of the loss of strength, energy, shortness of breath, and dizziness.” An outreach worker brings the groceries home for hm because going up the stairs would double the time of his trip to approximately an hour and a half; he is only able to buy a few grocery items at once which makes his life “very complicated and doesn’t help to eat healthier;” his sleep has also been affected because he can only nap, even at night, and that reduces his ability to concentrate, “and to think long term like organizing or planning as well as my memory;” any attempt to socialize “is limited” and this affects his morale and general motivation. He is starting therapy with a specialist to help him persevere and “not be carried away by this life which has become very complicated.”

The letter from the appellant’s new doctor is dated March 10, 2022 and includes the following information:  They have been the appellant’s doctor since November 2022 [sic, 2021].  The appellant has “multiple comorbidities” including coronary artery disease, congestive heart failure, and hypertension for which he is under the care of a cardiologist. The most recent left ventricle (“LV”) function was 30%.  The appellant is also under investigation for chronic bronchitis. He contracted Covid-19 in June 2020, with his breathing more laboured since then.  Based on the appellant’s medical history, the doctor wrote, “I support his application for PWD.”

Admissibility of appeal documents The ministry did not raise any objections to the appellant’s written submission or the letter from his new doctor. The panel admits the oral submissions under section 22(4) of the Employment and Assistance Act 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 documents are relevant to the appeal because they provide a self-report on restrictions to daily functioning, and additional medical information that includes diagnoses that were not mentioned in the PWD application.

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Oral submissions

Appeal Number 2022-0028

The appellant attended the hearing with his advocate (outreach worker). They provided argument and elaborated on the appellant’s restrictions with the following information:

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The appellant’s health continues to decline and he cannot walk far or do things due to the effects of 2 strokes, heart failure, and Covid-19. His shortness of breath has worsened due to “long Covid” and his doctor has now confirmed chronic bronchitis. The appellant experienced further vision problems due to Covid-19 and had to get strong glasses.

The panel admits this additional information as evidence that is reasonably required for a full and fair disclosure of all matters related to the decision under appeal. The ministry relied on the reconsideration record and did not submit any new evidence at the hearing. Both parties stated their arguments which the panel will consider in Part F - Reasons.

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Appeal Number 2022-0028

Part F – Reasons for Panel Decision The issue on appeal is whether the ministry’s decision that found the appellant ineligible for PWD designation was reasonably supported by the evidence or was a reasonable application of the legislation in the circumstances of the appellant. The panel’s role is to determine whether the ministry was reasonable in finding that the following eligibility criteria in section 2 of the EAPWDA were not met:

• the appellant has a severe mental or physical impairment; • the 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.

Analysis Severe mental or physical impairment Arguments Appellant The appellant agrees that the reconsideration decision “was correct because it was missing information” but he argues that the appeal submissions. including the letter from his new family doctor, fill in the missing details about his declining health and limitations and confirm a severe impairment. The appellant explained that his new doctor told hm that the information “has to be very explicit and precise.” The appellant said the doctor asked for the PWD package but the appellant didn’t have it so the doctor wrote a letter instead.

In response to questions, the appellant said that the assessments by the cardiologist and RN do not accurately reflect his limitations. He said he wasn’t feeling well when the application was filled out and they didn’t discuss his restrictions. The advocate said “not everything was explained to him”; the appellant didn’t know what information was needed until he got the new family doctor who told him to be more specific.

The advocate said she helped the appellant prepare the 2-page appeal submission and describe his restrictions in detail. While they did not ask the appellant’s new doctor to sign the self-report, they said that the doctor read it and they argue that “her letter follows from [the appellant’s] submission.”

Ministry The ministry argues that the information from the cardiologist and RN does not establish a severe impairment of physical or mental functioning. The ministry notes that the appellant is able to walk 1-2 blocks and climb 5 or more steps without assistance despite his shortness of breath and a progressive decline in functional status (MR).

The ministry argues that the severity of the functional limitations is unclear based on the information in the AR because the RN indicates the appellant takes significantly longer for most physical functions but did not say how much more time the appellant needs. Regarding lifting, the ministry argues there was conflicting information between the MR (“no lifting”) and AR (“not able to lift heavy objects”), making it difficult to determine the degree of restriction.

The ministry argues the appellant does not have a severe mental impairment because the appellant was not diagnosed with a mental impairment (MR); he has good to satisfactory communication skills despite “vision difficulties” impacting reading (AR); and only moderate impacts are reported for cognitive and emotional functions with most functions assessed as “no impact” (AR). The ministry further notes that only a few areas of cognitive and

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Appeal Number 2022-0028 emotional functioning are affected by the appellant’s impairment; most areas are not restricted, and all areas of social functioning are independent. Despite significant impacts reported for emotion and motivation (MR), the ministry argues that the appellant is independent with most DLA that require motivation and energy to perform.

At the hearing, the ministry said it finds the additional submissions (self-report) helpful in that the appellant explains how much longer it takes him to walk and climb stairs, and he clarifies how much weight he can lift and how his impairment affects his motivation and morale. However, the ministry argues that the letter from the appellant’s new doctor falls short of confirming a severe impairment of physical or mental functioning because a severe impairment “is not based on medical diagnoses and the letter did not talk about the impacts to function and DLA, or what help is needed.”

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 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 - mental impairment The panel has considered the evidence as a whole and finds that the ministry was reasonable to conclude the appellant does not have a severe mental impairment. The appellant is not diagnosed with a mental impairment in the MR and there is no indication of a referral to a mental health practitioner. In the MR and AR, the appellant has significant and moderate restrictions in the areas of emotion and motivation, but the only detail provided is that fatigue and shortness of breath leave the appellant feeling depressed (AR). Both the cardiologist and RN comment on the appellant’s fatigue (“requires naps throughout the day”- MR) but at the same time, no impact was reported for sleep disturbance (Bodily functions - AR).

In the appeal submission the appellant describes his sleep disturbance and fatigue in greater detail, stating that his ability to concentrate, organize, plan, and socialize are impacted by his inability to sleep properly (“I can only sleep in the form of naps, even at night”). However, no deficits/impacts for attention/concentration and executive function are reported in the MR and AR, and the appellant is independent with social functioning despite marginal functioning with his social networks. In the appeal submission the appellant indicates starting therapy to help with his emotional functioning; however, there is no information from a therapist such as intake notes or mental health assessment results and such evidence would be helpful in explaining the extent of a mental impairment.