Ministry of Social Development and Poverty Reduction

Appeal Number 2022-0104 Part C – Decision Under Appeal The decision under appeal is the reconsideration decision of the Ministry of Social Development and Poverty Reduction (the ministry) dated April 28, 2022, which held that the appellant did not meet 3 of the 5 statutory requirements of section 2 of the Employment and Assistance for Persons with Disabilities Act for designation as a person with disabilities (PWD). The ministry found that the appellant met the age and duration requirements, but was not satisfied that:

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the appellant has a severe physical and/or mental impairment; the appellant’s daily living activities (DLA) are, in the opinion of a prescribed professional, directly and significantly restricted either continuously or periodically for extended periods; and

as a result of those restrictions, the appellant requires an assistive device, the significant help or supervision of another person, or the services of an assistance animal to perform DLA.

In addition, the ministry found that it had not been demonstrated that the appellant is one of the prescribed classes of persons who may be eligible for PWD designation on alternative grounds, which includes: a person who is enrolled in palliative care; a person who has at any time been determined eligible for At Home Program payments through the Ministry of Children and Family Development; a person who has at any time been determined eligible by Community Living BC for community living support; and a person who is considered disabled under section 42(2) of the Canadian Pension Plan Act.

Part D – Relevant Legislation Employment and Assistance for Persons with Disabilities Act (EAPWDA), section 2

Employment and Assistance for Persons with Disabilities Regulation (EAPWDR), section 2

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Part E – Summary of Facts Evidence at the time of Reconsideration

Appeal Number 2022-0104

1. The appellant’s PWD application comprised of: • A Medical Report (MR) [dated December 19, 2021] completed by the appellant’s Nurse Practitioner (the NP), who had known the appellant for 5 years and had seen the appellant 2-10 times in the past 12 months of the PWD application. • An Assessor Report (AR) [dated December 9, 2021], which was completed by the NR. The approaches and sources used to conduct the AR were an office interview with the appellant, file/chart information • The PWD application also included the appellant’s Self-Report (SR) dated November 2, 2021.

2. 2-page Consultation Report (pain management) conducted over the phone dated April 6, 2020. In part, it stated the following: • The appellant reported that when he turns his head to one side or the other, he will experience sharp pains with stabbing sensation and gets frequent headaches. • He described some numbness in his hands, particular in the fifth finger on both hands. The pain down his arms is not as bothersome as the pain in his neck. • His sleep is basically nonexistent as the pain generally keeps him up at night. • He is not able to do a lot of daily activities or chores that would normally be within his limits. • He is frustrated and has periods of irritability. • Previous treatments provided limited help and he is not taking any pain medications on a regular basis. • He also stated that some central low back pain that radiates towards his hips. Occasionally it will go down the legs but not regularly. The low back pain is bothersome to him but not as much as the neck. • He has multilevel significant facet osteoarthritis. • The treatment plan included injections and other treatments to manage the pain. 3. A letter from a neurosurgeon dated February 6, 2018. The letter in part stated that: • Due to previous spine compression the appellant had some ongoing sensory difficulties. • He has some osteophyte formation from degenerative change in the lower cervical spine. • The neurosurgeon stated that, in their opinion, the appellant will not benefit from further surgical interventions in the cervical spine and surgery is not indicated for the neck pain. [The panel notes that this report does not give an impression or finding regarding the severity of the appellant’s impairment and how it may impact the appellant’s functioning.] 4. A radiology result report (spine lumbar) dated December 2, 2021. The report, in part stated that: • The reason for the exam was intermittent weakness and numbness down legs. • Vertebrae alignment is anatomic and disc spacing is maintained.

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Appeal Number 2022-0104 • Mild endplate osteophyte formation is seen at L4 and L5 and not other degenerative changes noted. [The panel notes that this report does not give an impression regarding the severity of the appellant’s impairment and how it may impact the appellant’s functioning.] 5. An MRI (cervical spine) dated August 18, 2021. In part this report indicated that • There is multilevel degenerative disc disease and facet joint arthropathy with various degrees of associated spinal canal and neural foraminal narrowing. • There is no significant associated cord compression. [The panel notes that this report does not give an impression regarding the severity of the appellant’s impairment and how it may impact the appellant’s functioning.] 6. Request for Reconsideration (RFR) dated April 20, 2022. The appellant stated, in part, the following: • He did not adequately explain or provided details to the NP’s questions. • He can walk 4 blocks, but it takes 30 minutes, which includes many stops to rest his legs. He avoids walking because his legs give out and he falls. • In the mornings, his legs are not reliable, so he hesitates to go down the stairs. • When climbing stairs, he must pause and rest frequently and it can take 15 minutes to climb the staircase. • He can only sit for short periods before his arms become numb and painful. He will need to get up and move around for a bit. • Simple movements of the neck can frequently cause migraines which incapacitate him for most of the day and leave him depleted of energy. • He frequently wakes up in the night due to his pain and cannot sleep in the day too. • He isolates from the family. Constant activity and noise triggers him and he has little patience due to his pain. • He suffers from depression which mainly stems from the inability to help around the house. He is unable to manage day to day life. His biggest depressor is the inability to play with his children. • He is unable to shop for groceries, vacuum, sweep, do laundry, or cook. 7. Letter from the appellant’s spouse dated April 2, 2022. The appellant’s spouse, in part, stated the following: • The family was once an active family and can no longer participate as a family in those same activities (such as camping, walking, fishing, bike riding and sledding). • She must constantly adjust and rearrange her schedule depending on how the appellant feels that day. • Outings are short because he gets tired and must rest. • She will take his meals to him upstairs to the bedroom out of a fear of him falling down the stairs. • The appellant has a history of falling and many times she has had to help him up. • She does all the shopping, cooking, housekeeping, yard work, walking and being active with their children. • The children accommodate the appellant as well and often remain quiet at home when the appellant has been up all night due to pain.

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Appeal Number 2022-0104 Diagnoses In the MR, the NP diagnosed the appellant with C3-C4 replacement/laminectomy (onset: not specified), C4-C5 disc bulge with mild-moderate spinal canal narrowing, hypertrophied facet joints (onset: not specified) and intermittent neuropathy/weakness down both legs since c-spine laminectomy (onset: unspecified).

Health History In the first MR, the NP stated the following about the appellant: • Since his laminectomy surgery he has intermittent numbness and weakness in his hands, arms and right shoulder. When this occurs, he drops things. • His neck pain, numbness and weakness are activity dependent and if he avoids these activities, he does not have these symptoms. • He is not a surgical candidate. • His legs give out for no reason, and he can fall. • He cannot walk long distances or carry groceries. • He is not pursing treatment through the pain clinic but rather avoiding the activities that cause the pain.

Physical Impairment In the MR, the NP indicated the following about the appellant: • He can walk 4+ blocks and climb 5+ steps unaided, lift under 5 lbs and can sit without limitation.

In the AR, the NP indicated the following about the appellant: • Both hands have neuropathy. • Can only walk 4 blocks. • Can shop only 15 minutes or legs will give out and he falls. • Weakness and numbness intermittent in arms. • Walking indoor/outdoor requires periodic assistance, (the family supports and assists to get in/out of bed if his legs give out). • Climbing stairs and standing is performed independently. • Lifting and carrying/holding require periodic assistance (limited to 5lbs, legs give out if lifts more).

In the SR, the appellant stated the following about his condition: • Chronic pain and building disc syndrome. • Constant neck pain in different weather patterns. • Legs give out for no reason especially if he lifts. • Movements can cause extreme headaches. • Cannot sit or stand for long periods.

Mental Impairment In the MR, the NP indicated the following about the appellant: • There are no difficulties with communication. • There are no significant deficits with cognitive and emotional functioning.

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Appeal Number 2022-0104

In the AR, the NP indicated the following about the appellant: • Speaking, reading, writing and hearing are good. • In terms of cognitive and emotional functioning the section was crossed off with the comment “n/a”. • The appellant independently performs all DLA under ‘pay rent/bills, medications, and personal care’ • Under social function, he performs all tasks independently and has good functioning with immediate social networks and marginal functioning with extended social networks.

In the SR, the appellant did not make any comments regarding a mental impairment. Daily Living Activities In the MR, the NP indicated the following about the appellant: • No medications that interfere with the ability to perform DLA have been prescribed.

In the AR, the SW indicated the following about the appellant: • All tasks under ‘personal care’ are performed independently except ‘transfer in/out bed’, which requires periodic assistance “falls out of bed occasionally if legs completely numb in morning and uses bed to get up or family assistance sometimes”. • Under ‘basic housekeeping’, laundry is performed independently, and basic housekeeping requires continuous assistance “Can’t do this. His wife does all housekeeping”. • Under ‘shopping’ all tasks are performed independently except ‘carrying purchases home’ which requires continuous assistance “needs assistance with purchases unless less than 5 lbs or develops numbness/weakness in upper extremities”. • All tasks under ‘meals, pay rent/bills, medications, transportation and social functioning’ are performed independently. • “Gets numbness/weakness in upper extremities when trying to do basic housework. Able to do laundry if does small amount lifting at once. Can’t lift more than 5 lbs/repetitive lifting or develops numbness/weakness in upper extremities. Leg numbness/weakness occurs intermittently causing falls. Gets assistance from his wife intermittently as needed. Tries to avoid any position that might cause this.”

Help In the MR, the NP indicated the following about the appellant: • Requires no prostheses or aids for her impairment.

In the AR, the NP indicated the following about the appellant: • He lives with his wife and children. • Assistance with transfers in/out bed, basic housekeeping, and carrying purchases home comes from his family. • Under ‘assistance provided through the use of Assistive Devices’ the NR commented “n/a”.

In the SR, the appellant indicated that he must rely on his spouse for assistance.

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Appeal Number 2022-0104

Evidence prior to the Appeal Prior to the hearing the appellant submitted a 3-page MRI dated May 21, 2022. This MRI was of the spine/lumbar and it was conducted because bilateral legs give out, falling, weakness and sometimes numbness in both legs intermittently. The goal was to rule out foraminal narrowing. The impressions included: • Bilateral L5 pars defects with minimal anterolisthesis of L5 on S1. • There is multilevel facet joint arthropathy noted most pronounced at right L4-L5 facet joint. • Mild degenerative disc disease at L4-L5 and L5-S1 levels without significant associated spinal canal stenosis. There are mild to moderate degrees of associated foraminal narrowing as described.

Evidence on Appeal Notice of Appeal (NOA), signed and dated May 17, 2022, the appellant stated, “dissatisfied with the decision”.

The panel found that the information in the NOA consists of the appellant’s argument and does not require an admissibility determination.

Evidence at the Hearing At the hearing, the appellant’s wife reiterated the information she provided in the letter dated April 29, 2022, and added, in part, the following: • After the appellant’s fall in 2011, they were given a choice of surgery or paralysis. • He falls frequently and the family is in fear that he will fall. • She experiences a toll as his caretaker. Both she and her eldest child feel stress and wear and tear due to the assistance they provide. • He struggles to get out of bed 4-5 days per week. • He will take 30-60 minutes to get ready in the morning. • He feels depressed but does not take medications because they make him ill.

At the hearing, the appellant reiterated the information found in the SR, RFR and NOA, provided a brief work history and stated, in part, the following: • In the last 3 years his physical condition has gotten worse, and he cannot do the things he could previously. • On good days he can do small amounts. • He struggles to get out of bed. He will need assistance from his family. • Sitting causes numbness and he must get up and move around. He cannot sit for very long. • He has done tests and is waiting for an appointment with a nerve specialist. • He uses a shopping cart to support him when shopping. • Due to a past history of addiction, he does not use pain medication. He worries about overdosing due to his depression. • When completing the PWD application he gave brief and to the point answers to the NR. He did not provide explanation or details about his limitations. • He has not been offered assistive devices.

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Appeal Number 2022-0104 • The MRI was included in the submissions to provide more context to his current condition. It confirms building disc syndrome and compression in his neck will need time to heal. • He can walk 4 blocks, but it takes 3 times longer, he can climb 5 steps but does so gingerly, he can lift under 5lbs, but it is recommended that he does not lift at all and if he sits too long, he will get a burning sensation and numbness. • He is past depression because his life looks very different from before. • He feels defeated, depressed, stressed, frustrated and angry.

At the hearing, the ministry relied on its reconsideration decision. Admissibility of Additional Information The ministry did not object to the admission of the information submitted prior to the hearing. A panel may consider evidence that is not part of the record as the panel considers is reasonably required for a full and fair disclosure of all matters related to the decision under appeal.

In this case, the panel determined that the May 21, 2022 is information that allows for a full and fair disclosure of all matters related to the decision under appeal. The panel notes that this report does not give an impression regarding the severity of the appellant’s impairment and how it may impact the appellant’s functioning. As a result, the panel places little weight on the May 21, 2022 MRI.

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Appeal Number 2022-0104 Part F – Reasons for Panel Decision The issue on appeal is whether the ministry's reconsideration decision, which found that the appellant is not eligible for designation as a PWD, was reasonably supported by the evidence or was a reasonable application of the applicable enactment in the circumstances of the appellant. The ministry found that the evidence does not establish that the appellant has a severe mental or physical impairment and nor establish that his DLA are, in the opinion of a prescribed professional, directly and significantly restricted either continuously or periodically for extended periods. Also, as a result of those restrictions, it could not be determined that the appellant requires the significant help or supervision of another person.

Panel Decision Severe Impairment In the reconsideration decision, the ministry was not satisfied that the information provided establishes a severe physical or mental impairment. Determining a severe physical or mental impairment requires weighing the evidence provided against the nature of the impairment and its reported functional skill limitations. A diagnosis of a serious medical condition does not in itself determine PWD eligibility or establish a severe impairment. An “impairment” is a medical condition that results in restrictions to a person’s ability to function independently or effectively. To assess the severity of an impairment, the ministry must consider the nature of the impairment and the extent of its impact on daily functioning.

The panel finds that employability is not a consideration for eligibility for PWD designation because employability is not a criterion in section 2(2) of the EAPWDA nor is it listed among the prescribed daily living activities in section 2 of the EAPWDR.

Physical Impairment The appellant argued that due to his bulging disc he is limited in movements, he is in pain, his arms and legs go numb which cause him to experiences falls.

The ministry argued that based on the information provided in the PWD application, a severe impairment of the appellant’s physical functioning has not been established.

In its reconsideration decision, the ministry noted that the NP’s narrative and that the NP reported the appellant’s symptoms are severe. The ministry noted that the NP indicated that the appellant can walk 4+ blocks and climb 5+ steps unaided and remains seated without limitations.

The ministry noted that in the AR, the NP indicated that periodic assistance is required with walking indoor/outdoor, and the appellant is assisted his family to get in/out of bed when his legs give out. The ministry noted that the NP did not indicate how often this occurs to determine whether this is a severe impairment. It is reported that the appellant does not use assistive devices. The ministry also noted the appellant’s ability to walk, climb stairs and ability to sit as indicated in the SR.

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Appeal Number 2022-0104 The ministry concluded that the appellant is able to mobilize independently the majority of the time. Therefore, the ministry cannot confirm this results in a severe degree of impairment. The ministry also determined that the limitations to the appellant ability to lift, carry and hold items over 5lbs is a change in functioning but is not a severe degree of impairment as the appellant is able to manage the majority of this DLA independently including personal care, laundry and meals.

The panel’s role is limited to determining whether the ministry’s decision was reasonable. The panel finds that the ministry reasonably concluded that the NP does not provide information to show that the appellant has a severe physical impairment of his physical functioning. The panel notes the discrepancy between the appellant’s experience of his physical condition and the NP’s impressions of it. The PWD application was completed with the appellant and with a review file/chart information. The appellant indicated that he does not like talking about himself and did not provide explanation or detailed information regarding his condition. However, the appellant and his prescribed professional had the opportunity at reconsideration to satisfy this discrepancy, but the NP did not provide additional information. The May 21, 2022 MRI provided did not link the appellant’s condition to his mobility and physical functioning. The legislative requirement is that the ministry must be satisfied of a severe impairment. It is reasonable that given the evidence from the NP, and the fact that it is not consistent with the information from the appellant, that the ministry is not satisfied with a finding of severe physical impairment.

Given the overall assessments of the appellant’s functional ability, and mobility and physical ability in the PWD application and the lack of any additional information provided at appeal from a prescribed professional, the panel finds that the ministry was reasonable in its determination that the evidence does not support a finding that the appellant suffers from a severe physical impairment and that the legislative criteria outlined in Section 2(2) of the EAPWDA have not been met.

Mental Impairment The appellant argued that he suffers from depression because of his pain and inability to partake in activities with his family.

The ministry’s position is that based on the assessments provided in the PWD application, a severe impairment of mental functioning has not been established.

In its reconsideration decision, the ministry noted that the NP did not provide a diagnosis of a mental condition that would result in a mental impairment. The NP indicated that there are not significant deficits to the appellant’s cognitive and emotional functioning. The ministry noted that in the AR, the NP indicated ‘n/a’ to the section related to cognitive and emotional functioning and that the appellant independently performs all activities related to making decisions regarding personal activities, care and finances and as well as social functioning.

The ministry noted that in the SR, the appellant indicated that he frequently experiences migraines triggered by simple movements of the neck. The ministry noted that the NP did not provide a diagnosis related to the migraines or explain how they contribute to an impairment. It also noted that it is not clear how often functioning is limited due to the migraines. The ministry

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Appeal Number 2022-0104 noted that the appellant stated that he cannot par ticipant in activities around the house or with the family which contributes to his depression. The ministry concluded that since a mental impairment has not been identified by the NP, the ministry is unable to assess for a mental impairment.

The panel finds that the ministry analysis of the evidence was reasonable, and it reasonably concluded that the information provided by the prescribed professional regarding the appellant’s mental, cognitive and emotional functioning does not support a finding of a severe mental impairment. In addition to the analysis provided by the ministry, the panel notes that the NP’s narrative speaks specifically about the appellant’s ability to function physical and ability to work but does not make mention of depression or a mental impairment.