Ministry of Social Development and Poverty Reduction

Appeal Number 2022-0082 Part C – Decision Under Appeal The decision under appeal is the Ministry of Social Development and Poverty Reduction’s (“ministry”) reconsideration decision dated April 12, 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 2022-0082 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 December 22, 2021, and denied on March 2, 2022 with a Decision denial summary explaining the criteria that were not met. On March 28, 2022, the appellant submitted a Request for Reconsideration (“RFR”). On April 12, 2022, the ministry completed the review of the RFR.

2. An RFR signed by the appellant on March 26, 2022, with the following documents attached:  A 6-page hand-written submission from the appellant describing her diagnoses, medications, functional limitations, and restrictions to DLA. The appellant reports that: -Degenerative disk disease, lumbar spine arthritis, depression, and severe sleep apnea are getting progressively worse. - she suffers from insomnia, mood swings, confusion, and problems with memory, motivation, and concentration. Her pain medication was increased to 900 mg, and she will need to take the anti­depressant medication permanently. -sleep test results show that her oxygen levels drop so low that her whole body including all of her organs are impacted by severe sleep apnea which affects her daily functioning. -since her doctor’s report in November 2021 and after speaking with a long-term friend, she has come to realize that her quality of life has decreased to the point where she is unable to walk more than 1 block before she experiences back pain. She uses a walking stick when going for a walk. -she experiences confusion when doing things; cannot follow through on plans (“makes notes of things I need/should do, no desire to complete list”); finds it hard to concentrate, and has difficulty communicating because she can’t recall a word to complete a sentence and she has “a hard time understanding simple things people say, and remembering names and information.” She also has a hard time comprehending and remembering what she has read. -due to back pain it takes 3 times longer to do anything indoors, or things just don’t get done; -when moving around, she has to take breaks, sit or stand, to try and ease the pain. Her doctor said she could sit or stand for 30 minutes at a time, but now she has to change position approximately every 10 minutes due to pain. -she gets assistance from store clerks for items over 10 pounds; then the items sit in her vehicle until she gets help with unloading. It typically takes several days to unload shopping items because she can only remove a little at a time. -she has no motivation; is overly drowsy; sleeps a lot due to depression; she doesn’t change her clothes or shower for days. She has a “lack of drive/energy/focus or motivation to do housework. Days before it gets done.” -dressing and showering take significantly longer to complete and she cannot get out of the bathtub. Also, getting out of bed takes 3 to 4 times longer because she has to grab the edge of the mattress to roll over and sit up. Then she has to stand up slowly, brace herself, and “stand there for a bit and then walk hunched over due to back and hip pain.” -laundry and housekeeping take 3 times longer because she is limited to lifting under 10 pounds and she cannot stand for long periods. She has to sit down repeatedly when she tries to do housework. -when shopping, she always uses a cart for support and stability and it takes her 3 times longer to shop. Also, the pain in her back and hips makes her think she needs things so she ends up purchasing things she doesn’t need. -she loses focus on what to eat and it takes her 2 to 3 times longer to get organized to plan a meal. Food preparation and cooking take 3 times longer because she has to alternate between sitting and standing due to back pain. She uses the counter for support. Doing dishes takes 4 times longer because she has to lean on the counter due to back pain. -finances and budgeting take 2-3 times longer because she can’t make up her mind or stay focused. She experiences a lack of concentration and irritability when paying bills. -getting out of a car takes significantly longer due to back pain. It is hard to swing her legs out to the door. She has to slowly stand up and brace herself against the car to try and straighten up. Then she stays hunched over for awhile and braces herself against the car while walking. -she forgets to take her medications on time.

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Appeal Number 2022-0082 -there is no public transit in her area but when she has seen bus schedules she could not figure them out. -when she is outside trying to do yard work, she has to use the building, car, or fence to support and steady herself while walking or to get up. She uses objects to brace herself both indoors and outdoors. -she is unable to maintain relationships because she withdraws and loses trust, or just doesn’t care. She becomes upset with unexpected demands and is unable to secure help from others due to not having anyone to help her. Her family member lives some distance away and she may only see them twice a year. -she has very disrupted functioning with her social networks because she is withdrawn from the world and doesn’t text or call anyone regularly or reply to messages. She can go for weeks without contact with family or friends because she gets in the state of “I don’t care, doesn’t concern me, poor me.” She has only met one of her neighbours once and that wasn’t by choice. She keeps to herself, does not ask for help, and is very much an introvert.

A letter from a sleep clinic dated February 28, 2022, addressed to the appellant’s family doctor and prescribing CPAP therapy.

A prescription from the sleep clinic doctor for a CPAP machine for ‘diagnosed severe obstructive sleep apnea.”

A home sleep study report from the sleep clinic (undated); An interpretation report for a home sleep test, dated February 2, 2022, and dictated by the sleep clinic doctor. The appellant requires urgent treatment with CPAP. Lifestyle optimization including regular appropriate exercise was also recommended.

Copies of prescription receipts for the appellant’s pain and anti-depressant medications; A note from the appellant’s doctor dated October 4, 2021, stating that the appellant should limit standing and sitting to 30 minutes at a time due to a medical condition involving her back. The appellant should also limit twisting, and lifting should not exceed 10 pounds.

A note from the appellant’s doctor dated May 14, 2021, stating that the appellant should limit her work to no more than 4 hours at a time for the next month.

American Family Physician journal: letter to the editor from a medical doctor dated June 2012. The letter is titled A Walking Stick Can Be a Good Alternative to a Cane.

3. The PWD application comprised of:  the Applicant Information (self-report - “SR”) signed by the appellant on November 18, 2021.  a Medical Report (“MR”) dated November 29, 2021, signed by the appellant’s doctor, a General practitioner (“Dr. A”) who has known the appellant for 1 year and has seen her 11 or more times in the past 12 months.

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an Assessor Report (“AR”) dated November 30, 2021, also completed by Dr. A who based the assessment on an office interview with the appellant and by reviewing the patient’s medical chart..

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Appeal Number 2022-0082 Summary of relevant evidence from the application and RFR: Diagnoses In the MR, the appellant is diagnosed with Arthritis – lumbar spine, and Degenerative disc disease (date of onset for both conditions, 2002); Sleep apnea (date of onset 2011), and Mood disorder – depression (date of onset 2008). In Section B - Health History, Dr. A explains that the appellant has had chronic back pain for 19 years that is getting progressively worse. The appellant requires pain medication, and her Mood disorder is made worse by back pain.

Functional skills Self-report The appellant describes waking up in the morning with her back aching. She has to grab the mattress to help her turn over in bed. Her right leg throbs all the time from the thigh to the top of the foot. When driving over a bump, she flinches due to the pain in her lower back. After being on her feet for approximately half an hour, her “back and hips and right leg are on fire.” If she sits for approximately half an hour, her back hurts so bad that she is hunched over when she stands up. She has to steady herself on nearby objects.

The appellant reports that her hips also ache which causes her to limp and sway side to side when walking. She can only walk slowly. Her sleep is also impacted because she can’t fall asleep for a long time and tosses and turns due to back pain and aching in her leg. She doesn’t get a lot of sleep during the night and ends up sleeping too much in the daytime. She has to brace herself on the car if she drives for too long because she is hunched over when she gets out of the vehicle. She also reports a pinched nerve due to her back problem.

The appellant said she gets confused when people are talking to her or she doesn’t understand what is being said. When given directions or instructions, she has to write them down right away so that she doesn’t get mixed up and forget something. The appellant said she has difficulty with concentration, memory, and understanding things. It is painful to get up from a chair, and sometimes the pain is so intense that it causes her face to grimace.

The appellant said that she avoids stairs but when she has to use them “it is a 2-footer for each step and I have to use wall or railing to steady myself.” She can’t carry a jug of milk or a bag of groceries for very long, and “it sends shooting pains across back and hips if I have to reach for something on a shelf.”

Medical Report In Section B - Health History, Dr. A reports that the appellant had to reduce her work hours due to a limited ability to stand for longer than 30 minutes at a time. The appellant is limited to lifting “no more than 10 pounds at a time” and sitting “is limited to 30 minutes at a time.” Walking is affected because the appellant cannot walk more than 2 blocks before getting pain that “refers to her hips and legs.” Sleep is affected by back pain and the appellant wakes up at night with pain. “Concentration is at times affected by the sleep and mood disorders. No safety concerns.”

In section D - Functional Skills, Dr. A indicates the appellant can walk 1-2 blocks unaided on a flat surface and climb 2-5 steps unaided (comment, “requires support”). The appellant is able to lift 5-15 pounds, and she can remain seated for less than 1 hour.

Regarding mental functions (questions D-5 and D-6), Dr. A indicates no difficulties with communication. Dr. A checked that the appellant has significant deficits with cognitive and emotional function in 3 of the 12 areas listed: Memory, Emotional disturbance and Motivation (comment, “chronic depression affecting short term memory, mood and motivation”).

Under Additional Comments (section F), Dr. A says that the appellant “has tried different approaches to work by reducing hours, taking on different responsibilities but this continues to cause pain and limit her ability to function.”

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Appeal Number 2022-0082 Assessor Report Under Section B-2, Ability to Communicate, Dr. A indicates a good ability for 3 of the 4 areas listed: Speaking, Reading, and Writing. Hearing was marked as satisfactory.

Under section B-3, Mobility and Physical Ability, Dr. A indicates the appellant is independent with all functions, with the following comments:

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Walking indoors: (no comment provided) Walking outdoors: “depending on outdoor conditions” Climbing stairs: “goes up single stair at a time with use of railing” Standing: “limited to 30 minutes due to pain” Lifting: “limited to 10 pounds” Carrying and holding: “limited due to pain.”

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, Dr. A indicates impacts in 7 areas:

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Minimal impact for Consciousness Moderate impact for: -Emotion -Motivation/concentration -Memory -Motor activity Major impact for Bodily functions (including sleep disturbance), and Motivation

No impact is reported for the following areas:  Impulse control  Insight and judgment  Executive  Language  Psychotic symptoms  Other neuropsychological problems  Other emotional or mental problems.

In Part E – Additional Information, Dr. A wrote, “mental functioning is affected on a regular basis due to Mood disorder and chronic pain. Daily functioning is limited due to pain with standing, walking, and lifting.”

Daily Living Activities Self-report The appellant said it is difficult to get things done because she can’t sit or stand for long periods of time. She struggles to put on socks and shoes and she can’t get up off the floor without using a stool which is difficult and painful. If she has to pick something up off the floor, she has to kick it to a counter or chair so that she can brace herself. Sweeping or mopping the floor causes her back to ache even more, and she can’t lift more than 4 pans or trays without pain shooting across her back and hips.

Medical Report In Section B - Health History, Dr. A reports that “activities such as mopping and sweeping and getting dressed are limited by pain.”

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Appeal Number 2022-0082 In Section B-3, Dr. A checked no, the appellant has not been prescribed medications or treatments that interfere with the ability to perform DLA

In Section E of the MR - Daily Living Activities, Dr. A indicates that 3 DLA are continuously restricted by the appellant’s impairment:

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Basic housework (comment, “housework takes longer where there is no one to help her”) Mobility outside the home (comment, “mobility is limited to 30 minutes of walking or standing”) Social functioning (comment, “has to write things down to remember them”).

The remaining 7 activities listed on the form are not restricted:  Personal self care  Meal preparation  Management of medications  Daily shopping  Mobility inside the home  Use of transportation  Management of finances

Assessor Report In Section B1 - Mental or Physical Impairment, Dr. A explains that the impairments that impact the appellant’s ability to manage DLA are “chronic back pain that impairs ability to sit, stand, walk, and carry”, and “depression that affects social functioning.”

In Section C - Daily Living Activities, Dr. A indicates that the appellant is independent with all areas of all DLA, with the exception of one area of Basic Housekeeping:

 Housekeeping (comment, “takes one and half times as long”), and 2 areas of Meals:  Food preparation, and Cooking (comment, “one and a half times longer”). Under Additional comments, Dr. A wrote, “extended time due to pain when standing.”

In addition, limitations were reported for 3 activities that were assessed as independent:  Personal Care: Transfers – bed, and Transfers - chair (comment, “difficult and painful”)  Shopping: Carrying purchases home (comment, “limited to less than 10 pounds”)

All areas of Social Functioning were assessed as independent including able to develop and maintain relationships, able to deal appropriately with unexpected demands, and able to secure assistance from others. Dr. A checked marginal functioning when asked to describe how a mental impairment affects the appellant’s relationship with her immediate and extended social networks. No support/supervision was indicated to maintain the appellant in the community and no safety issues were reported.

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Appeal Number 2022-0082 Need for help Information from the MR and AR In the MR under Health History (Section B-4), Dr. A marked no, the appellant does not need any prostheses or aids for the impairment.

In the AR, Dr. A said the appellant gets help with DLA from a family member when they are in town. Dr. A indicates the appellant lives alone.

In Section D - Assistance provided through the use of Assistive Devices, Dr. A checked Breathing device, comment, “CPAP.” Dr. A. explained that the device is currently not being used because “CPAP is currently recalled.”

The doctor 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 section 22(3)(b) of the Employment and Assistance Act (“EAA”). Subsequent to the reconsideration decision the appellant filed a Notice of Appeal with a 3-page hand-written submission and a copy of a completed Patient Pain Questionnaire.

In an email to the Tribunal, the ministry states that the reconsideration summary is the ministry’s submission on appeal.

Appellant’s evidence 1. The appellant’s submission, dated April 22, 2022, sets out her argument and gives a detailed self-report describing the worsening of her condition. The appellant reports that most activities take her 3-4 times longer to complete including:

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taking medications as directed getting in and out of a vehicle bathing regulating diet laundry going to and from stores choices [while shopping] carrying purchases walking outdoors climbing stairs standing lifting carrying and holding items dressing basic housekeeping transferring [bed and chair] food preparation and cooking sitting (comment, “poor posture”).

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Appeal Number 2022-0082 The appellant reports that her condition has worsened since Dr. A filled out the PWD medical forms. The appellant said that “the following limits/restrictions have changed from independent to takes significantly longer (3-4 times longer)”:

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walking: she can now walk less than a block before she is in pain. Her left knee is now painful with walking; her family member is no longer able to help out due to their lack of transportation; she suffers from periods of isolation and withdrawal; “Thinking, remembering, judgment, walking, and vestibular are affected;” Planning, and organizing, motor activity, and attention/sustained concentration are also impacted. Restricted activities include personal care, meal preparation, daily shopping, and mobility inside the home.

The appellant reports being on the maximum dose of her pain medication (900 mg) but taking more really has no effect. The appellant says she needs another route to help with the pain and is on the wait list for a pain clinic.

2. The pain questionnaire is dated December 7, 2021. The instructions indicate that the information is intended to be shared with the local Health Authority/hospital. The appellant reports that her worst pain is “lower back” and she also has pain in her right forearm, entire right leg and her left hip as well. When asked to describe the pain, the appellant checked burning, sharp, stabbing, and other (shooting). The appellant indicated weakness in her right leg, “gives out from time to time.”

When asked when the pain is at its worst, the appellant checked night (comment, “worsens as the day goes on”). When asked what makes the pain worse, the appellant wrote, “movement.” When asked what makes the pain better, the appellant answered with a question mark. The appellant checked yes, the pain wakes her from sleep. When asked if the pain is getting worse, better, or staying the same the appellant checked same.

When asked if she had any medical imaging of her spine, done in the past 24 months the appellant wrote, “CT or MRI or X-ray, sorry, can’t remember.” The appellant indicates the imaging was done in 2021.

Admissibility The ministry did not raise any objections to the appellant’s written submission or the pain questionnaire. The panel admits these 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 additional self-report on the appellant’s symptoms and daily functioning,

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Appeal Number 2022-0082 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: