Ministry of Social Development and Poverty Reduction

Appeal Number 2022-0222 Part C – Decision Under Appeal The decision under appeal is the Ministry of Social Development and Poverty Reduction (the Ministry) Reconsideration Decision (RD) dated September 15, 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:

 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 found 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)

The relevant legislation is provided in the Appendix.

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Appeal Number 2022-0222 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 May 5, 2022, a Medical Report (MR) dated June 20, 2022 completed by the Appellant’s General Practitioner (GP) who has known the Appellant for 22 years and who has seen the Appellant 2 - 10 times in the past year, and an Assessor Report (AR) also signed by the GP on June 20, 2022.

The Panel notes that the following sections of the AR appear to have been completed by the Appellant:

Section A – Living Environment Section B 2 – Ability to Communicate Section C – Daily Living Activities (except for the social functioning section) Section D – Assistance Provided for Applicant While the Appellant appears to have completed the above-noted sections of the AR, the Panel further notes that the GP has signed and dated the last page of the AR, the Panel concludes that the GP acknowledges the information on the pages of the AR that were completed by someone other than 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 August 17, 2022. Relevant information from the RFR is summarized in the relevant sections below;

 A two-page document titled “Emergency Documentation”, with a triage date of October 6, 2020 (the Emergency Department Report). The Emergency Department Report provides a history of the patient’s current illness, past medical history, the results of a physical exam, and a treatment plan, all of which are summarized in the relevant sections below;

 The first page of a three-page document titled “Consultations”, with the “Date of Service” identified as October 6, 2022 (the October 6 Consultation Report). The October 6 Consultation Report provides a past psychiatric history and an incomplete history of the Appellant’s present illness (the narrative appears to continue on the second page, which is not included). Relevant information from this document is summarized in the relevant sections below;

 The third page of a four-page document also titled “Consultations” (the Second Consultation Report). The information at the top of the Second Consultation Report is untitled as it is a continuation of what appears on the previous page. It is likely that this excerpt from a consultation report contains additional information and different pagination, but otherwise the repeated text is identical to what appears near the end of the page in the October 6 Consultation Report (see the “Severe Mental Impairment” section below). The other narrative on the third page provides a summary of the

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Appeal Number 2022-0222 subject’s past medical history, medications, social history and substance use, all of which is summarized in the relevant sections below;

 The third page of another four-page document also titled “Consultations” (The Third Consultation Report). The date of consultation is not identified, but the Third Consultation Report was printed on a different date than the other two consultation reports described above (in this case November 12, 2020). The third page of the Third Consultation Report provides information about the Appellant’s substance use, the results of a mental state examination, a summary, and a management plan and recommendations, all of which is summarized in the relevant sections below; and

 A one-page note from the Appellant’s GP, dated September 13, 2022, saying that the Appellant is unable to work for medical reasons and that a return to work date is unknown.

Diagnoses In the MR, the GP diagnosed the Appellant with Generalized Anxiety Disorder (GAD) with an unknown date of onset, Personality Disorder Custer B also with an unknown date of onset, and Major Depression with a date of onset of 2019.

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 has written “Recurrent anxiety and suicidal ideation since 2020. Symptoms include panic attacks and agoraphobia. Physical self harm includes ‘cutting’ behaviours”.

With respect to functional skills, the GP reports that the Appellant can walk more than four blocks unaided on a flat surface, climb more than 5 steps unaided, lift 15 – 35 lbs., and can remain seated for 2 – 3 hours.

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 acknowledges that the Appellant is independent with walking indoors and outdoors, climbing stairs, standing and carrying and holding, but needs help with lifting “if (the object is) too heavy”.

In the RFR, the Appellant says that she has been diagnosed with costochondritis and scoliosis. Her costochondritis “inflames” when she’s sick, stressed, or anxious. As a result, she is unable to move and breathing becomes painful. She also says that her scoliosis causes her back to constantly hurt and she can’t stand for very long. She says that her hips are also unaligned so she is also unable to walk or sit for very long.

The Appellant does not indicate that she has a severe physical impairment in any of the other documents provided.

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Appeal Number 2022-0222 Severe Mental Impairment 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 emotional disturbance and memory. No additional comments are made in the space provided.

In the section of the AR where the assessor is asked to indicate the level of ability to communicate, the GP acknowledges that the Appellant’s abilities are “good” in all areas (speaking, reading, writing and hearing). No explanations or comments are made in the space provided.

In the section of the AR designed to be completed for an applicant who has a mental impairment or brain injury, the GP has indicated a major impact to emotional functioning; a moderate impact in the areas of attention/concentration, memory and motivation; a minimal impact in the areas bodily functions, impulse control, executive functioning and psychotic symptoms; and no impact in the other areas (consciousness, insight and judgement, motor activity, language or other neuropsychological, emotional or mental problems). The AR instructions do not explain the distinction between a “moderate” and a “major” impact.

In the section of the AR where the assessor is asked if the applicant has any restrictions in social functioning, the GP has indicated that the Appellant is independent in all areas except ability to deal appropriately with unexpected demands, where the GP has indicated that the Appellant needs periodic support or supervision. No indication as to the degree of supervision or support required is given by the GP in the space provided. However the GP has written “contact with social worker might be of benefit” where the assessor is asked to describe the support or supervision required to help the Appellant maintain herself in the community. The GP has also indicated that the Appellant has marginal functioning with both her immediate and extended social networks with no comments made in the space provided.

In the Emergency Department Report, the attending physician writes that the Appellant “has had increasing anxiety over the last 2 months … increasing depression and intermittent suicidality … (The Appellant’s) GP attempted to refer the (Appellant) to psychiatry … (the Appellant) went though intake in September. (The) GP was concerned regarding potential bipolar diagnosis given bouts of hypomania. (The Appellant) describes these as very rapid fluctuations in her mood lasting less than a day, may be up to 2 to 3 days …These events seem to get better on their own … (The Appellant) said that her mood was good but her anxiety is bad … She stated that her anxiety has been much worse to the point where she is struggling to function … Inability to concentrate”. The attending physician also provides their impression: “The (Appellant) … does not have great insight … Anxiety, depression and passive suicidality. I am concerned about (the Appellant) given (her) GP as well as her family members were worried to the point that she was told to come in … I have certified her under mental health act. I will ask the psychiatrist on call to see her.”

In the October 6 Consultation Report the attending psychiatrist writes: “(The Appellant) has been referred to us by the emergency physician for an assessment of query bipolar mood disorder … This is (the Appellant’s) first visit to the emergency department in hospital. She has

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Appeal Number 2022-0222 had chronic suicidal ideation … Once she planned to commit suicide via overdose … She reports one incidence of self-harm during high school by cutting her arm … She mentioned to her mom that she does not want to live anymore, but she is scared of doing anything to hurt herself. She reports frequent mood swings every 2 – 4 weeks, started around 2 years ago and more evident during the last few months … She says that the mood swings usually last around half an hour to an hour, however, there have been incidents when the elevated mood lasted for about 2 – 3 days. In these periods she feels elevated, she has more energy … She also states that in those episodes when she feels down, and her mood is low, she has no energy, no motivation, poor concentration, poor memory and low appetite. She prefers to stay in bed for hours. She experiences … (end of page)”.

In the Second Consultation Report the attending psychiatrist writes: “(beginning of page) … in those episodes when (the Appellant) feels down, and her mood is low, she has no energy, no motivation, poor concentration, poor memory and low appetite. She prefers to stay in bed for hours. She experiences anhedonia. Her sleep has been a chronic issue … She has been having problems initiating sleep and once she is able to fall asleep she sleeps for about 9 – 11 hours. She has been also reporting some chronic suicidal ideation. She usually doesn’t have any plan to proceed with. She states that she sometimes gets panic attacks and her symptoms include chest discomfort, trembling, shortness of breath and heart racing. She denies any PTSD, eating disorder, personality disorder, or ADHD. She was diagnosed with GAD, social anxiety disorder by a pediatric psychiatrist at age 17. (Her mother) has noticed that over the past few months (the Appellant’s) mood has been changing between ups and down very quickly and even a few times in a day which may be triggered by trivial things … She gets frustrated easily.”

In the Third Consultation Report the attending physician writes: “(During the examination, the Appellant displayed) mild observable anxiety from time to time. She did not have any anxious cognitions on the day, but does report her subjective mood is low … Objectively, depression was not apparent and there was no evidence of depressive cognitions. There was no hopelessness or suicidality. There was no evidence of psychosis on the day”. In summary, the attending physician writes: “(The Appellant’s) longitudinal as well as current presentation is suggestive of GAD with social anxiety, as well as significant borderline/Cluster B traits in the form of emotional dysregulation, chronic although intermittent sense of unhappiness, intermittent suicidal ideation, especially in response to psychosocial stress, as well as maladaptive coping skills … She also presents with mild depressive symptoms … I do not think that there is sufficient evidence in her history or presentation at present to suggest bipolarity of mood …”

In the SR the Appellant confirms the diagnoses provided by the GP and as expressed in more detail in the other appeal documents. She also says that her mental illness affects her mood and she has difficulty regulating her emotions, adding “Not being able to regulate my emotions properly or process them and react correctly makes day to day situations difficult”.

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Appeal Number 2022-0222 The Appellant also writes: “BDP affects my ability to regulate my emotions, so in some situations I may react or respond ‘incorrectly’ and because I cannot properly regulate my emotions I cannot control how I feel or react. I can have very quick and intense mood swings, so I can feel fine then in a split second I can feel devastated and be crying. It is hard for me to keep stable relationships because of this disorder and (I) constantly have a fear of abandonment. This disorder can also cause me paranoia, thinking people are watching or following me as well as seeing things that aren’t actually there. I constantly feel empty which leads to impulsive behaviour so I can feel something for a little bit … the constant feeling of emptiness also means I sometimes feel suicidal or the urge to self harm. Those feelings can also present themselves when minor inconveniences happen, for example if my plans get cancelled”.

In the RFR, the Appellant writes: “Back in 2020 I was admitted to the emergency room (ER) for my mental well being where I got diagnosed with BPD and they believe I have a chance of also having bipolar disorder as well. Previously before the ER I had visited an urgent care clinic many times for my mental health as well. My family GP also agrees that I am unable to work due to mental stability. I believe that my request should be reconsidered because my mental health causes me a severe impairment ...”.

Restrictions in the Ability to Perform DLA In the section of the MR where the prescribed professional is asked if the applicant’s impairment directly restricts their ability to perform DLA, the GP has ticked “yes” for the DLA of daily shopping and “unknown” for meal preparation. The GP indicates that the Appellant is not restricted in any of the other listed DLA (personal self care, management of medications, basic housework, mobility inside and outside the home, use of transportation, and management of finances).

The GP has also indicated that the Appellant is not taking any medications or treatment that interfere with her ability to perform DLA.

The GP has not completed the section of the AR where the assessor is asked what mental and physical impairments impact the applicant’s ability to perform DLA.

The GP acknowledges that the Appellant is independent in all listed DLA functions relating to personal care, basic housekeeping, meals, paying rent and bills, medications, and transportation and all aspects of shopping except going to and from stores and carrying purchases home, where the GP acknowledges that the Appellant needs periodic assistance from another person.

In the SR, the Appellant describes in some detail the problems she has with social functioning: she says that it is hard for her to keep stable relationships because of her disorder and that it makes her paranoid, “thinking people are watching or following me”. The Appellant also says that her disorder makes her feel empty “which leads to impulsive behaviour” and that she “can’t go out alone which makes my daily life very hard”.

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Appeal Number 2022-0222 In the RFR, the Appellant writes “I have not been able to leave my home on my own without company in the last three years due to my mental health and post-traumatic stress disorder (PTSD). I need to be accompanied even to do basic tasks such as errands or going on a walk. I have been diagnosed with borderline personality disorder (BPD), generalized anxiety disorder (GAD), panic disorder, and social anxiety”, and that she has not been able to leave her home on her own “without company” in the past three years due to her mental impairments.

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

In the section of the AR that asks who provides the help required for DLA, the GP acknowledges that it is the Appellant’s family and friends, and where asked what assistance would be necessary if the applicant requires help but none is available, the GP has written “Contact with social worker may be of benefit”. In the section of the AR where the prescribed professional is asked what assistance is provided through the use of any of a list of assistive devices, none are identified.

In the SR, the Appellant writes “I always need someone with me, even to just run a quick errand down the street”, and in the RFR, “I need to be accompanied even to do basic tasks such as errands or going on a walk”.

Additional Information Submitted after Reconsideration The Appellant provided a written submission on October 11, 2022 (The Appellant Submission). The Appellant Submission comprised of a one-page letter from the Appellant’s mother (The Mother’s Letter) and a one page letter from the Appellant (the Appellant’s Letter).

Severe Mental Impairment In the Mother’s Letter, the Appellant’s mother writes: “From age 11 to 18 while in my care (the Appellant’s) mental illness drastically impacted her quality of life … and her general wellness”.

In the Appellant’s Letter, the Appellant writes: “I not only have generalized anxiety, but also have social anxiety and panic disorder”.

Restrictions in the Ability to Perform DLA In the Mother’s Letter, the Appellant’s mother writes: “From age 11 to 18 while in my care (the Appellant’s) mental illness drastically impacted her … abilities to be independent …She struggles daily to be a part of society, but she is incapable of doing what most do automatically”.

In the Appellant’s Letter, the Appellant writes: “As long as I can remember I have had severe anxiety which causes a huge fear for me to not only leave the house alone, but to make phone calls, or talk to strangers like ordering myself food” and “I deal with severe depression which makes it hard for me to take care of myself. Simple tasks like brushing my teeth, brushing my hair, and feeding myself seem like the hardest task”.

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Appeal Number 2022-0222 The Appellant did not provide any new evidence In the Notice of Appeal (NOA). Admissibility of New Evidence 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), it must assign weight to the new evidence. Once the weight has been assigned to the new evidence, 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 the requirements set out in the legislation and on all admissible evidence.

No new evidence was provided in the NOA. Most of the information in the Appellant’s Submission was evidence that the Ministry had at reconsideration. New evidence contained in the Appellant Submission comprised the Appellant’s comment that she finds it hard for her to perform personal care tasks (brushing her teeth and hair) and feeding herself. The Panel notes that this information is not consistent with the evidence in the AR, where the GP has indicated that the Appellant is independent with grooming and all listed activities associated with “meals” (identified as “prepare own meals” in the legislation). In addition, no information is included in the Appellant Submission to explain whether any significant restrictions in these activities are continuous or periodic, the frequency and duration of the restrictions if they are periodic, or whether she needs the help or supervision from another person or an assistive device to perform these activities. As a result, the Panel is not able to assign any weight to this new information.

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Appeal Number 2022-0222 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? Was it reasonable for the Ministry to determine that because of the lack of any direct and significant restrictions it could not be determined that the Appellant requires the help or supervision of another person, the use of an assistive device, or the services of an assistance animal to perform DLA?

ANALYSIS 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.