Ministry of Social Development and Poverty Reduction

Appeal Number 2021-0223 Part C – Decision Under Appeal The decision under appeal is the Ministry of Social Development and Poverty Reduction’s (“ministry”) reconsideration decision dated November 8, 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 impairment to continue for at least 2 more years, but was not satisfied the other 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.

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Appeal Number 2021-0223 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 received on May 20, 2021. On June 14, 2021, the ministry denied the application finding that the appellant met only 2 of the criteria for PWD designation. On October 26, 2021, the appellant submitted a Request for Reconsideration (“RFR”). On November 8, 2021, the ministry completed the review of the RFR finding that the appellant did not meet 3 PWD criteria.

2. the RFR signed by the appellant on October 13, 2021, with a 2-page typed document (“RFR submission”), signed by a family member (“F.”) on behalf of the appellant. The submission states that the appellant is undergoing medical trials with Dr. A. and other medical professionals to test an experimental drug. F. described the following memory deficits:  The appellant forgot names at work and left work early “with no due understanding of time or his schedules.” He was fired on 2 occasions as a result.  The appellant loses items at home on countless occasions, including keys, bags, wallets, cards, passports, documents, and appointments for everyday life. This happens despite reminders such as labels for boxes, or hangers for keys. The appellant frequently attends the Lost and Found counter at stores “looking for yet another article left at an unrecalled counter.”  The appellant has difficulty finding his way when there are several mall entrances. He also has difficulty locating a parked car. Shopping becomes overwhelming “when familiar stores seem in wrong places or buses go by with vague express destinations.”  The appellant has difficulty finding his way back if taking a wrong turn or wrong lane. The original purpose for going to a store can quickly fade from his memory.

3. The appellant’s PWD application comprised of:  the Applicant Information (self-report - “SR”) dated October 13, 2021,  a Medical Report (“MR”) dated May 4, 2021, completed by a general practitioner (“Dr. A.”) who had the appellant as a patient for 2 months but had not seen the appellant prior to the appointment on May 4th.  an Assessor Report (“AR”) dated May 4, 2021, also completed by Dr. A. who did the assessment through an office interview with the appellant.

4. The ministry’s PWD Decision Summary with attached letter dated June 14, 2021, in which the ministry found that the appellant did not meet 3 of the criteria for PWD designation.

Summary of relevant evidence from the application: SR The appellant explained that he was diagnosed with dementia while living in another country (“Country X”). Symptoms The appellant described having memory problems which cause him to experience anxiety and a loss of spatial direction. His memory problems have eroded his self-confidence, especially in stressful situations.

Functional limitations  The appellant reported losing the ability to recognize where he is in unfamiliar places. He sometimes had to ask the police for assistance.  The appellant described being unable to remember what he was explaining to people at work and when he didn’t remember names it caused him stress and embarrassment. The appellant said he was let go from jobs as a result. He then returned to Canada to live with family and convalesce.

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Appeal Number 2021-0223 The appellant provided an example of not being able to find a familiar place (when he was driving to visit a friend). He had to ask his family to assist him in meeting the friend.

Restrictions to DLA  The appellant indicated that he has a lot of difficulty with transportation (driving) and social interactions due to his memory difficulties.

Help/support  The appellant indicated needing help from his family even for simple activities such as meeting a friend in a familiar place.

MR Diagnosis In the MR (section A), Dr. A, did not provide a diagnosis. Under Health History (section B) Dr. A. confirmed that the appellant has memory and anxiety issues (for the past 3-4 years) and recently lost his job.

Functional skills - physical impairment In section D (1-4) Dr. A. indicated the appellant can walk 4 or more blocks unaided on a flat surface, climb 5 or more steps, and has no limitations with lifting or sitting.

Functional skills - mental impairment In section D (5-6) Dr. A. indicated the appellant has no difficulties with communication. Question 6 asks whether there are any significant deficits with cognitive and emotional function. Dr. A. checked yes, indicating the appellant has significant deficits with Executive, Memory, Emotional disturbance, and Attention (sustained concentration). Under Comments, the doctor wrote, “unexpected cognitive decline - dementia.”

Daily living activities In section B-3, Dr. A. indicated the appellant has been prescribed medications that interfere with his ability to perform DLA. The doctor did not assess specific DLA in the MR (section E) but provided the assessment in the AR.

Help required In section B-4, Dr. A. checked no, the appellant does not require any prostheses or aids for the impairment. AR Physical impairment Dr. A. indicated the appellant is independent with all physical abilities listed on the form: walking, climbing stairs, standing, lifting, and carrying/holding.

Mental impairment In section B-2, Dr. A indicated the appellant has good communication skills in all areas (speaking, reading, writing, and hearing).

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Appeal Number 2021-0223 Dr. A. checked that the appellant’s mental impairment impacts 4 of the 14 areas of cognitive and emotional functioning listed in section B-4:

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minimal impact for Consciousness, Emotion, and Attention/Concentration. moderate impact for Memory.

Dr. A. reported no major impacts and checked no impact for Bodily functions, Impulse control, Insight and judgment, Executive, Motivation, Motor activity, Language, Psychotic symptoms, Other neuropsychological problems, and Other emotional or mental problems.

Daily living activities Dr. A. stated that the appellant’s cognitive decline and early onset dementia impacts his ability to manage DLA. For Part C, the doctor assessed the appellant as independent with all DLA:  Personal Care - all areas were independent including Dressing, Grooming, Bathing, Toileting, Feeding self, Regulating diet, and Transfers (bed and chair);  Basic housekeeping: all areas were marked as independent: Laundry, and Basic housekeeping;  Shopping: all areas were independent including Going to and from stores, Reading prices and labels, Making appropriate choices, Paying for purchases, and Carrying purchases home;  Meals: all areas were independent including Meal planning, Food preparation, Cooking, and Safe storage of food;  Pay rent and bills: independent in all areas: Banking, Budgeting, and Pay rent and bills;  Medications: independent in all areas: Filling/refilling prescriptions, Taking as directed, and Safe handling and storage;  Transportation - all areas were independent: using public transit and using transit schedules, arranging transportation, and getting in and out of a vehicle;  Social Functioning: all areas were independent including appropriate social decisions, able to develop and maintain relationships, interacts appropriately with others, able to deal appropriately with unexpected demands, and able to secure assistance from others.

Regarding social functioning, Dr. A. also checked that the appellant has good functioning with his immediate and extended social networks, and no safety issues were identified.

Help required Dr. A. checked that help with DLA is provided by family, adding that friends and neighbours are available if needed. No support/supervision with social functioning was indicated; the appellant does not use any assistive devices or have an assistance animal.

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Appeal Number 2021-0223

Additional submissions The appeal was adjourned twice to give the appellant more time to get his medical records from Country X and to arrange for a family member (“the advocate”) to speak at the hearing on his behalf. Subsequent to the reconsideration decision, the appellant submitted new evidence to the Tribunal requiring an admissibility determination under section 22(4) of the Employment and Assistance Act.

1. The appellant provided a submission package received at the Tribunal on January 7, 2022, and consisting of the following documents:

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A letter from Dr. A. dated January 4, 2022, stating that the appellant has been receiving care for “cognitive decline of unknown origin” and has a lesion on his pituitary gland as shown in a recent Magnetic Resonance Imaging scan (“MRI”) of his brain. The lesion is under investigation as being a probable cause for the appellant’s cognitive decline.

An MRI report dated October 26, 2021, indicating the appellant was referred for a “brain MRI without contrast” because of “progressive memory loss plus cognitive decline 4 years.” The MRI was ordered by a Geriatric/Internal medicine specialist (“Dr. B.”). The MRI showed an enlarged pituitary gland with no additional masses or abnormalities. The MRI indicates a diagnosis of “probable pituitary adenoma” with a recommendation for further tests/imaging studies.

A letter from Dr. B. dated September 27, 2021, and addressed to Dr. A. Dr. B. describes an appointment with the appellant, accompanied by F. who provided important collateral information. Dr. B. reports “progressive short term memory loss and cognitive impairment” of about 4 years duration that began to manifest itself in Country X and has continued upon the appellant’s return to Canada.

The letter describes the following impacts from memory loss as presented on a discharge summary from a hospital in Country X [panel note: a copy of the discharge summary was not included with the submission]:

-The appellant would forget schedules at work; have difficulties following a plan; not bring the correct materials needed for his job; and misplace items. The appellant was also not oriented to date but there were no changes in personality. -The appellant tried taking a supplement but was non-compliant with his medications. -The appellant was admitted to hospital and had an MRI which showed some “deep white matter ischemic changes in the left frontal lobe” that included “decreased hypoperfusion over the frontal lobes more so on the right.” -The appellant was given a tentative diagnosis of Alzheimer’s disease, and there was also a mention of possible Lyme disease. -The appellant returned home in December 2020 to live with family and was prescribed a different medication for his memory symptoms upon returning to Canada. At the appointment, F. reported some improvement in the appellant’s memory and cognition while taking the medication. Dr. B. wrote that the appellant “continues to be independent for his ADLs [Activities of daily living] and IADLS [Instrumental activities of daily living].” The appellant continues to drive and denies any accidents or traffic violations but he has difficulties finding his destination at times. -The appellant denies any psychotic symptoms and most days he exercises, reads, and plays a musical instrument. -The appellant showed no motor symptoms and had a normal gait and reflexes, Sensory testing was also normal. -The appellant was given memory tests including the Mini Mental Status exam (“MMSE”) in which he scored 24/30 on this date, losing points for delayed recall. The appellant was not oriented to year; he had significant difficulties with intersecting pentagons losing points for attention; and he was unable to draw a clock face correctly (mistakes included placing numbers in the wrong position and putting too many hands on the clock).

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Appeal Number 2021-0223 -On the Montreal Cognitive Assessment Test (“MOCA”), the appellant scored 15/30 losing points for visuo-spatial, series and orientation, and delayed recall. The appellant scored 4/15 on the Montreal Cognitive Assessment Memory Index (“MOCA Index”). The appellant was able to identify current political figures and news events. -Dr. B. concludes that the investigations done in Country X indicate a “presumed diagnosis of early onset Alzheimer’s disease.” The appellant will be referred for further screening, blood work, and a brain MRI. The dosage for his memory medication has been increased due to the perceived benefit.

A letter from Dr. B., dated November 19, 2021, and addressed to Dr. A. Dr. B. states that the appellant reported having a car accident (related to road and traffic conditions) and could therefore not make it to the appointment. A tele-medicine appointment was arranged in which F. participated as well. F. reported that the appellant’s condition had stayed about the same and the appellant indicated no changes or new symptoms. The appellant requires further investigation for the pituitary mass and has been referred for an MRI of his pituitary gland as well as “pituitary-related screening blood work.”

Dr. B. states that the appellant did not go for other screenings/blood work that was ordered in September and a new requisition was provided. The appellant has been referred to another doctor for assessment of the pituitary lesion and he can continue with the same medication for now.

Admissibility of MRI report and letters from Dr. A. and Dr. B The ministry did not raise any objections to the letters, or the MRI report and the panel admits them as evidence under section 22(4) of the Employment and Assistance Act (“EAA”). The panel finds that these documents contain additional detail about the diagnosis and its impact on memory and function. The panel finds that the documents are admissible because they are reasonably required for a full and fair disclosure of all matters related to the decision under appeal.

2. The appellant provided a second submission package received at the Tribunal on March 31, 2022, and consisting of the following documents:

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An Outpatient clinic dispensing prescription from Country X with the date formatted in the language of Country X. The prescription states that the appellant is diagnosed with early-onset Alzheimer’s disease and was prescribed 2 medications and 1 vitamin supplement. The body of the document details the medications and explains the procedures for prescription refill.

 2 Return visit appointment forms with the dates formatted in the language of Country X.  An invoice confirming that the documents are a certified translation into English. Admissibility of medical documents from Country X The ministry did not raise any objections to the documents from Country X and the panel admits them as evidence under section 22(4) of the Employment and Assistance Act (“EAA”). The panel finds that these documents are reasonably required for a full and fair disclosure of all matters related to the decision under appeal because they confirm the appellant’s original diagnosis and indicate treatment and follow-up.

Oral testimony - admissibility The appellant did not attend the hearing but authorized the advocate to present the case and make any decisions on the appellant’s behalf. At the hearing, the advocate consented to the ministry’s request for an observer who attended for training purposes. In addition to argument, both parties provided detailed information that the panel admits under section 22(4) of the EAA as evidence reasonably required for a full and fair disclosure of all matters related to the decision under appeal.

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Appeal Number 2021-0223 Appellant (advocate) The advocate gave concrete examples of the appellant’s cognitive and memory difficulties. In response to questions, the advocate provided explanations about the appellant’s interactions with medical professionals.

The advocate explained that:  the appellant is able to speak for himself but has a lot of difficulty using the phone and is unable to coordinate appointments on his own. The appellant lives with family members who assist him despite having their own serious limitations with memory or communication due to their health conditions. An occupational therapist (“OT”) came to assess a family member and saw the appellant’s problems. The family member would not agree to see the OT again so an assessment for the appellant was never set up.  the onset of memory problems in Country X not only caused the appellant to lose his job but also severed his relationship with family who reside there.  the appellant has so much difficulty with coordinating tasks that he was unable to obtain all his medical records from Country X. Family and friends are still working on obtaining the records on the appellant’s behalf.  the appellant had lived in country X for many years and once he returned to Canada, it took a long time to connect him with the medical system here. Dr. A. is the appellant’s new family doctor and had only seen the appellant once (at the appointment to fill out the PWD medical forms). Dr. A. has seen the appellant since then, “in short bursts of about 15 minutes.”  Dr. A. has referred the appellant for blood tests and a surgical consult regarding the pituitary mass. To the advocate’s knowledge the tests have not been done yet and the appellant is still in line to see the surgeon. Sometimes the appellant does not remember if he has gone to an appointment, or he says that he went when he actually didn’t go. The advocate said that the appellant “really can’t maintain appointments unless [a family member] takes him there.”  the appellant is not competent to keep driving because “he cannot do rote things needed for driving.” The appellant was frequently getting lost; unable to find his parked car; or creating a hazard to himself and others.  on an average day, the appellant needs someone with him the entire time because he loses things every day and would be a danger at a work site due to his difficulty with following directions.  the appellant would not be safe with kitchen activities. A family member does all the cooking and they “order in a lot” because the appellant cannot remember a sequence or cannot complete all the steps once he starts making something; for example, “the tea never gets made.”  the appellant has a lot of trouble communicating by phone and the family has paid a lot of money to have an “IT guy” help the appellant with the phone. The IT guy also set up a sequence for the appellant’s musical instrument which the appellant still plays, although he was unable to maintain the set up.

Ministry The ministry was familiar with the memory tests that Dr. B. administered to the appellant. The ministry provided the following information for interpreting the test scores:

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The MOCA has a score from 0-30. A score of 26 or higher indicates normal memory [the appellant’s score was 15]. The MOCA Index is a rapid screening test for memory with a score from 0-15 [the appellant’s score was 4]. The MMSE is a mental status test that focuses on the current moment.

The panel accepts the ministry’s interpretation of the test results as reasonable.

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Appeal Number 2021-0223

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 the requirements regarding 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 Arguments The appellant argues that a severe mental impairment is established on the evidence. The appellant made no submissions on physical impairment but maintains that PWD support should be justified by the diagnosis of early onset dementia in 2 countries and the focus on trials of an experimental drug for memory problems.

In the RFR submission, F. describes the impact of the appellant’s impairment as a “recurring crescendo of frustrated anger which disorients the whole household.” F. said that family members are constantly called on to assist the appellant in looking for misplaced items. F. described the appellant experiencing “an anxious freeze” when getting lost in one of many similar corridors. F. argues that all of the events around losing items and getting lost “occur manifold times…as part of a whole disability which needs to be treated as a reality.”

The advocate explained that the appellant tends to minimize, or lacks awareness of, the severity of his impairment because he wants to present himself in a favourable light and has difficulty communicating with his doctors due to his cognitive problems. The advocate argued that the appellant needs to be supported based on the diagnosis of early Alzheimer’s and the “massive memory issues” which impact every aspect of his life.

Ministry argument at the Reconsideration The ministry argued there was insufficient evidence to establish a severe impairment of physical or mental functioning. The ministry noted that all physical functions were rated with the lowest level of restriction in the MR. The appellant was also assessed as independent with all physical functions in the AR.

Regarding a mental impairment, the ministry accepted that the appellant is experiencing a cognitive decline but argued that the information showed mostly minimal or no impacts on cognitive and mental functioning. The ministry argued that a severe mental impairment was not established because the appellant was assessed as independent with all DLA involving communication and decisions about personal activities, care, or finances.

Ministry position at the hearing Regarding a severe impairment, the ministry maintained that the reconsideration decision was reasonably supported by the evidence but the new documentary evidence and the advocate’s submissions at the hearing would “turn the decision in favour of an approval.” The ministry accepted that the new information demonstrates a severe mental impairment.