Ministry of Social Development and Poverty Reduction

Appeal Number 2022-0154 Part C – Decision Under Appeal The decision under appeal is the Ministry of Social Development and Poverty Reduction’s (the Ministry’s) Reconsideration Decision (RD) dated July 8, 2022, which found that the Appellant did not meet three of the five statutory requirements of Section 2 of the Employment and Assistance for Persons with Disabilities Act (EAPWDA) for designation as a person with disabilities (PWD). While the Ministry found that the Appellant met the age requirement and had an impairment which was likely to continue for at least two years, it was not satisfied that the evidence establishes that:

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The Appellant has a severe physical 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 these restrictions, the Appellant requires the significant help or supervision of another person, the use of an assistive device, or the services of an assistance animal to perform DLA.

The Ministry also determined that the Appellant is 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) and the Appellant did not appeal the decision on this basis. 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 EAPWDA, Section 2 EAPWDR, Section 2 Employment and Assistance Act (EAA), Section 22(4) Employment and Assistance Regulation (EAR), Sections 85(2) and 86(b)

The relevant legislation is provided in the Appendix.

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Appeal Number 2022-0154 Part E – Summary of Facts The evidence before the Ministry at the time of the RD included the PWD Application comprised of an applicant information and self report (SR), signed by the Appellant on April 4, 2022, a Medical Report (MR) dated March 30, 2022 and completed by the Appellant’s General Practitioner (GP), who has known the Appellant for eight years and who has seen the Appellant 2 - 10 times in the past year, and an Assessor Report (AR) dated April 1, 2022, also completed by the GP.

The evidence available to the Ministry at the time of the RD also includes: • A Request for Reconsideration Form (RFR) signed by the Appellant on June 6, 2022, in which the Appellant gives the reasons why he is asking the Ministry to reconsider its decision; and,

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A page from the MR (the Additional MR Page) that is to be completed by a prescribed professional – in this case, the GP – if the prescribed professional is not the person who completes the AR. The GP did not complete this section of the MR because they also completed the AR. The Additional MR Page appears to have been completed by the Appellant.

The information contained in the RFR and the page from the MR referred to above is summarized in the appropriate sections of the discussion below.

Diagnoses In the MR, the GP diagnosed the Appellant with Schizophrenia, with a date of onset of 1992; Lumbar Spondylosis, with a date of onset of 2019; Right Hip Osteoarthritis, with a date of onset of 2020; and Asthma, with a date of onset of 2007.

Severe Physical Impairment In the MR, under Health History, where asked to indicate the severity of the applicant’s medical conditions and how they impair the applicant, the GP wrote that the Appellant “… (has (Osteoarthritis) of the lower back and the right hip. Asthma has been present since 2007. The main reason he is not able to work is due to the Arthritis in the spine/right hip”.

With respect to functional skills, the GP reports that the Appellant can walk 1 to 2 blocks unaided on a flat surface, climb 2 to 5 stairs unaided, lift 2 to 7 kg, and can remain seated for 1 to 2 hours. In the section of the MR where the prescribed professional is asked to provide any additional information that might be considered relevant in understanding the significance of the applicant’s medical condition and the nature of their impairment, the GP has written “(The Appellant) … has longstanding issues with back pain. I would anticipate (this issue) will be with him on a permanent basis ”.

In the section of the AR where the assessor is asked to indicate the assistance required related to impairments that directly restrict the applicant’s management of mobility and physical abilities, the GP indicates that the Appellant is independent with standing, but needs periodic assistance

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Appeal Number 2022-0154 from another person with lifting and carrying and holding, and takes significantly longer than normal with walking indoors and outdoors, climbing stairs, lifting, and carrying and holding.

In the SR, the Appellant says that he has Schizophrenia, Lumbar Spondylosis, Osteoarthritis and Asthma, all of which prevent him from working. He also writes “I have a hard time getting around. I cannot walk for distances at all … I am being tested for prostate cancer. We have not completed testing yet. I cannot do any heavy lifting, nothing more than 5 lbs. … I have been suffering from these conditions for many years”.

In the RFR, the Appellant writes “I have osteoarthritis in my hand, legs, feet and back. I have problems bending and lifting. I cannot walk far distances, only short walks. I require inhalers that I use daily, many times a day”.

In the Additional MR Page, the Appellant has written “problem with mobility due to severe osteoarthritis”.

Severe Mental Impairment In the MR, under Health History, the GP has written that the Appellant “has had Schizophrenia diagnosed since 1992. He is on medication. Has (an appointment) with Psychiatry on April 9, 2022”. In the section of the MR where the prescribed professional is asked to provide any additional information that might be considered relevant in understanding the significance of the applicant’s medical condition and the nature of their impairment, the GP has written “(The Appellant) has longstanding mental health problems. I would anticipate (this issue) will be with him on a permanent basis ”.

In the section of the MR where the prescribed professional is asked if there are any significant deficits with cognitive and emotional function, the GP has ticked “yes” for the areas of executive planning, memory, emotional disturbance, motivation and attention and sustained concentration.

In the section of the AR where the assessor is asked to indicate the level of ability to communicate, the GP indicates that the Appellant’s abilities are good in all listed areas (writing, speaking, reading ability and hearing).

In the section of the AR where the assessor is asked to indicate to what degree the applicant’s mental impairment restricts or impacts functioning, the GP has indicated no major impacts; moderate impacts on emotion, attention/concentration, executive functioning, memory, and motivation; no minimal impacts; and no impacts in any of the other areas (bodily functions, consciousness, impulse control, insight and judgment, motor activity, language, psychotic symptoms, and other neuropsychological problems).

With respect to social functioning, the GP indicates in the AR (with comments in italics) that the Appellant is independent in making appropriate social decisions, in his ability to develop and maintain relationships, and in interacting appropriately with others ([Appellant] lives with his sister. Has supporting relationship with his sister). The GP has indicated that the Appellant needs periodic support or supervision in his ability to deal appropriately with unexpected

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Appeal Number 2022-0154 demands and in his ability to secure assistance from others. The GP also indicates that the Appellant has marginal functioning with both his immediate and extended social networks.

In the SR, the Appellant writes “I see a doctor for my schizophrenia and for depression. … I have been suffering from these conditions for many years”.

In the RFR, the Appellant writes “I have major depression due to the tragic loss of my mother and the breakup of long time girlfriend (mother of my child). I require antidepressants for those losses. I also have a drinking problem. I am an alcoholic.”

In the Additional MR Page, the Appellant has written “I am diagnosed with paranoid schizophrenia”.

Restrictions in the Ability to Perform DLA In the MR, the GP indicates that the Appellant has not been prescribed any medications or treatments that interfere with his ability to perform DLA.

In the AR, the GP states that the Appellant is independent with respect to all tasks for the DLA of personal care, medication and transportation. Regarding the DLA of basic housekeeping, shopping, meals and paying rent and bills, the GP indicates that the Appellant requires significant help from another person, adding “(Appellant) does not do housekeeping or shopping. States that his sister looks after these areas. (The Appellant) states that his sister organizes meals and pays rent/bills”.

In the Additional MR Page, the Appellant has ticked several boxes to indicate that his impairment significantly restricts his ability to perform the DLA of meal preparation, basic housework, daily shopping, mobility outside the home, and social functioning.

Need for Help In the MR, the GP indicates that the Appellant does not require any prostheses or aids for his impairment.

In the AR, the GP has indicated that the help required for DLA is provided by his family and that he lives with his sister. In the section of the AR where the prescribed professional is asked what assistance is provided through the use of a specific list of assistive devices, the GP has not indicted that any assistive devices are required. The GP also indicates that the Appellant does not have an assistance animal.

In the SR, the Appellant writes “My sister and my son … help (me) do my DLA such as showering (because) I have fallen in the tub many times when unassisted. My sister does my cleaning, cooking, laundry and shopping. I live on my own without family so I depend on them to come and help me daily”.

In the RFR, the Appellant says that he depends on his son for rides, and on his son and sister to help with his DLA.

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Appeal Number 2022-0154 Additional Information Submitted after Reconsideration Section 22(4) of the EAA says that a panel may consider evidence that is not part of the record that the panel considers to be reasonably required for a full and fair disclosure of all matters related to the decision under appeal. Once a panel has determined which additional evidence, if any, is admitted under EAA Section 22(4), instead of asking whether the decision under appeal was reasonable at the time it was made, a panel must determine whether the decision under appeal was reasonable based on the requirements set out in the legislation and on all admissible evidence.

In his Notice of Appeal (NOA), the Appellant has written: “(I am appealing the Ministry’s decision because) I am (a) paranoid schizophrenic. I have been in and out of mental health. I’ve been in and out of facilities for many years. I hear voice(s) people following me and trying to cause me harm. I also have osteoarthritis throughout my body head to toe. (I) cannot walk long distances, short distance is hard. No heavy lifting, constant pain. The pain keeps me up all night. I require assistance to help with day to day chores, like grocery shopping, laundry, dishes. My son helps (me) to shower, my sister cooks most meals for me. I also am an alcoholic. I go through daily withdrawal to the extent of extreme shaking. I require medication for these problems such as citalopram, risperidone, trazodone, multi-vitamins, muscle relaxers, Tylenol 3, (and) naproxen are the medications I use daily. I am also being tested for prostate cancer due to extreme blood in stool and I also have (chronic obstructive pulmonary disease) which I use inhalers for and it gets worse yearly.”

Evidence Presented at the Hearing The Appellant did not attend the hearing. After confirming that the Appellant was notified of the date, time and place of a hearing at least two business days in advance, as required under EAR Section 85(2), the Panel proceeded with the hearing in the absence of the Appellant, pursuant to EAR Section 86(b).

At the hearing, the Ministry relied on the RD. In response to a question from the Panel, the Ministry said that it did not contact the Appellant’s GP for additional information about the severity of the Appellant’s physical and mental impairments because the evidence that the GP had provided was indicative of a moderate rather than a severe impairment. Regarding the Appellant’s physical impairments, the Ministry summarized the information in the MR regarding the Appellant’s functional skills, which did not indicate any severe limitations in walking, climbing, lifting, carrying or sitting. Regarding mental impairments, the Ministry said that in the AR, the GP had indicted no major impacts to his cognitive or emotional functioning.

In response to another question from the Panel, the Ministry said that it had determined that the GP had not provided enough information to confirm that the Appellant is continuously restricted in his ability to manage the housekeeping, shopping, meal organizing and rent and bill payment aspects of his DLA. It was not clear to the Ministry from the available evidence that the help the

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Appeal Number 2022-0154 Appellant requires with those DLA are as a result of any severe impairments. The Ministry said that the help provided by the Appellant’s sister might, for example, simply be the result of the Appellant’s sister’s desire to provide assistance because she wanted to help him, not because he needed the help.

The Ministry also pointed out that any need for help would have to be due to the Appellant’s physical limitations. The Ministry noted that the GP had indicated in the MR and the AR that the Appellant was independent in most of the DLA that would likely be impacted by a severe mental impairment, such as making decisions about personal activities, care, finances; or his ability to communicate and interact effectively with others.

Admissibility of New Evidence New evidence in the NOA comprised a list of the medications the Appellant is taking on a daily basis.

No new evidence was provided by the Ministry at the hearing. In the MR, the GP indicated that the Appellant has not been prescribed any medications or treatments that interfere with his ability to perform DLA. Because medications do not interfere with the Appellant’s ability to perform DLA, his daily medication is not a matter relating to the decision under appeal. Consequently, the Panel did not admit this new information.

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Appeal Number 2022-0154 Part F – Reasons for Panel Decision The issue under appeal is whether the Ministry's RD, 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 legislation in the circumstances of the Appellant. In other words, was it reasonable for the Ministry to determine that the evidence does not establish that the Appellant has a severe mental or physical impairment, and that the Appellant’s DLA are not, in the opinion of a prescribed professional, directly and significantly restricted either continuously or periodically for extended periods? And was it reasonable for the Ministry to conclude that it cannot be determined that the Appellant needs significant help with his DLA because it has not been established that DLA are significantly restricted?

ANALYSIS The Ministry has determined that both the duration of the impairment criterion and the Appellant’s age criterion have been met and are therefore not at issue in this appeal.

Severity of Impairment Neither the terms “impairment” nor “severe” are defined in the EAPWDA. The Cambridge Dictionary defines “impairment” in the medical context to be “a medical condition which results in restrictions to a person’s ability to function independently or effectively” and defines “severe” as “causing very great pain, difficulty, worry, damage, etc.; very serious”. “Impairment” is defined in the MR and the AR sections of the PWD application form to be “a loss or abnormality of psychological, anatomical, or physiological structure or function causing a restriction in the ability to function independently, appropriately or for a reasonable duration”. While the term is not defined in the legislation, the Panel finds that the Ministry’s definition of “impairment” as set out in the MR and the AR is a reasonable definition of the term for the purpose of partially assessing an applicant’s eligibility for the PWD designation.

Physical Functioning The Ministry’s position is that the assessments provided by the GP in the MR and the AR, and by the Appellant in the SR indicate a moderate rather than severe physical impairment.

The Appellant’s position that his Osteoarthritis causes problems with bending, heavy lifting and walking long distances, and that he has been suffering from these conditions for years.

Panel Decision In the RD, the Ministry says that the GP has not indicated how much longer it takes the Appellant to manage the activities of walking indoors and outdoors, climbing stairs, lifting or carrying and holding. As a result, the Ministry said that it could not determine if they represent a significant restriction in his overall level of physical functioning. The Panel finds that it is reasonable for the Ministry to have to know how much longer than typical these activities take in order to help it determine whether the Appellant’s restrictions in physical functioning are severe, as the legislation requires.

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Appeal Number 2022-0154 In the AR, the GP indicates that the Appellant requires periodic assistance from another person with lifting and carrying and holding, and takes significantly longer than normal with walking indoors and outdoors, climbing stairs, lifting, and carrying and holding. While space is provided in the AR for the assessor to give comments or explanations, and the term “periodic assistance” is defined, the Panel notes that the GP has not provided any indication of the frequency or extent of the need for periodic assistance with carrying and holding, which the Ministry would reasonably also have to know to determine whether the Appellant’s restrictions were for extended periods.

Because many of the details necessary for the Ministry to assess the severity and extent of the Appellant’s physical impairment have not been provided by the Appellant’s prescribed professional, the Panel finds that the Ministry reasonably determined that there is not enough evidence for it to conclude that the Appellant’s limitations in physical functioning are “severe” and are the result of periodic restrictions that are “for extended periods”.

Mental Functioning The Ministry’s position is that the evidence provided by the Appellant’s GP is that the Appellant is independent with the DLA that would typically be difficult for someone who experiences significant restrictions to their mental functioning. The Ministry further determined that the Appellant does not have difficulties with communication, and that he is independently able to make appropriate social decisions, develop and maintain relationships and interact appropriately with others. The Ministry concludes that this level of independence is not indicative of a severe mental impairment.

The Appellant’s position is that he has been suffering from Schizophrenia and depression for years, for which he requires daily medication.

Panel Decision Although the legislation contains no formalized criteria to define what constitutes mild, moderate or severe cognitive deficits, prescribed professionals are required to indicate in the MR and the AR the severity of a mental impairment by assessing the number of skill areas affected by the impairment, the severity of the deficits in psychological processes, and the degree of impairment in skill areas.

In the AR, the GP says that the Appellant indicates that he is moderately impacted by his mental impairment in five of the listed items (emotion, attention/concentration, executive functioning, memory, and motivation), but has no major impacts. In addition, the GP assesses the Appellant’s ability to communicate as “good” in all areas, without making any further comments or explanations in the space provided.

In the Section of the AR that deals with social functioning, the GP says that the Appellant requires periodic assistance in dealing with unexpected demands and securing assistance from others, but the frequency and extent of the assistance required is not given in the space provided, other than a statement by the GP saying that the Appellant lives with his sister. (The

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Appeal Number 2022-0154 Panel notes that the Appellant says he lives alone and gets daily help from both his sister and his son. As the Appellant did not attend the hearing, the Panel was unable to resolve this discrepancy, nor was it able to ask the Appellant how daily help was provided by family members who did not live with him.)

Based on the available evidence in particular the moderate impacts and lack of clarity of assistance, the Panel finds that the Ministry reasonably determined that the Appellant does not have a severe mental impairment.

Restrictions in the Ability to Perform DLA The Ministry’s position is that it is not satisfied that the Appellant’s required level of assistance for his DLA is significant as his cognitive and emotional functioning and physical impairment are only moderately impacted. In addition, the Ministry noted in the RD that it is in the nature of the duty of family members to help each other when in need, which does not necessarily establish that such help is required as a result of an impairment.

The Appellant’s position is that his impairments significantly restrict his ability to perform the DLA of meal preparation, basic housework, daily shopping, mobility outside the home, and social functioning.

Panel Decision DLA are defined in Section 2(1) of the EAPWDR and are also listed, in an expanded form and using different language, in the MR and in the AR. For example, the DLA of “prepare own meals” in EAPWDR Section 2(1) appears in the AR as “meal planning”, “food preparation”, “cooking” and “safe storage of food”.

Section 2(2)(b) of the EAPWDA requires that the Ministry be satisfied that a prescribed professional has provided an opinion that an applicant’s severe impairment directly and significantly restricts their DLA, continuously or periodically for extended periods. The term DLA appears in EAPWDA Section 2(2)(b) in the plural (“daily living activities”), which means that at least two of the activities listed in Section 2(1) must be significantly restricted for this legislative criterion to be met.