Ministry of Social Development and Poverty Reduction

Appeal Number 2022-0252 Part C – Decision Under Appeal The decision under appeal is the Ministry of Social Development and Poverty Reduction’s (“ministry”) reconsideration decision dated October 19, 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.

EAAT (26/10/22)

2

Appeal Number 2022-0252 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 August 22, 2022, and denied on September 15, 2022 with Decision denial summary explaining the criteria that were not met. On October 4, 2022, the appellant submitted a Request for Reconsideration (“RFR”). On October 19, 2022, the ministry completed the review of the RFR and found that the eligibility requirements for PWD designation were still not met.

2. The PWD application comprised of: • the Applicant Information (self-report - “SR”) signed by the appellant on August 2, 2022; • a Medical Report (“MR”) dated August 18, 2022, signed by the appellant’s doctor, a General Practitioner (“Dr. A”) who has known the appellant since January 2022 and has seen her 2-10 times in the past 12 months; • an Assessor Report (“AR”) dated August 18, 2022, also completed by Dr. A who indicates they based the assessment on an office interview with the appellant, and file/chart information (comment, “old records from 2013”).

Summary of relevant evidence from the application

Diagnoses

In the MR, the appellant is diagnosed with anxiety and depression (date of onset 2013), and C5-C6 bilateral severe foraminal stenosis (date of onset 2018). In Section B - Health History, in regard to the appellant’s mental health, Dr. A says that the appellant “is going through a stressful time.” In section F – Additional comments, the doctor describes the appellant’s anxiety and depression as “moderate to severe.” Regarding the physical impairment, Dr. A says in Section B, that the appellant “has chronic neck and back pain.”

Functional skills

Self-report The appellant says she has Post Traumatic Stress Disorder (“PTSD”) and severe depression and anxiety that makes her sad and hopeless, and constantly fearful and afraid to leave her home. The appellant says she has difficulty coping with confrontation and gets “triggered very easily and either cries uncontrollably or get very angry.” The appellant also says she has recently lost weight “due to lack of appetite.”

EAAT (26/10/22) 3

Appeal Number 2022-0252

Medical Report In section D - Functional Skills, Dr. A indicates the appellant can walk 2-4 blocks unaided; climb 2-5 steps unaided; and lift 15-35 pounds. The appellant can remain seated for 2-3 hours.

Regarding mental functions (questions D-5 and D-6), Dr. A indicates no, the appellant does not have any difficulties with communication. Dr. A checked that the appellant has significant deficits with cognitive and emotional function in 4 of the 12 areas listed: Executive, Memory, Emotional disturbance, and Motivation. The section for comments was left blank.

Assessor Report Under Section B-2, Ability to Communicate, Dr. A indicates a good ability for all 4 areas: Speaking, Reading, Writing and Hearing.

Under section B-3, Mobility and Physical Ability, Dr. A indicates the appellant is independent with 5 of the 6 functions: listed on the form • Walking indoors: • Walking outdoors: • Climbing stairs: • Standing: • Carrying and holding.

For Lifting, Dr. A checked periodic assistance from another person. The space for an explanation was left blank.

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 indicated impacts in 7 areas:

• Minimal impact for Insight and judgment, Executive, and Motor activity; • Moderate impact for Attention/concentration, Memory, and Motivation; • Major impact for Emotion.

No impact was indicated for: • Bodily functions • Consciousness • Impulse control • Language

EAAT (26/10/22) 4

• Psychotic symptoms • Other neuropsychological problems • Other emotional or mental problems

Appeal Number 2022-0252

Part E – Additional Information was left blank.

Daily Living Activities

Self-report The appellant comments on her social functioning, stating that she has difficulty trusting others and being around people she doesn’t know. The appellant says that her relationships with friends and family “are fading because I want to be by myself because I feel safer that way.”

Medical Report In Section B-1 – Health History, Dr. A says that the appellant “is unable to be social and keeps to herself…Always isolated.”

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 – Daily Living Activities, the doctor checked yes, the impairment directly restricts the appellant’s ability to perform DLA. Dr. A checked that 8 of the 10 activities are continuously restricted: • Personal self care • Meal preparation • Basic housework • Daily shopping • Mobility outside the home • Use of transportation • Management of finances • Social functioning (comment, “isolated, stays to herself”…Improving”)

Dr. A checked that 2 activities are not restricted:

• Management of medications • Mobility inside the home

EAAT (26/10/22) 5

Appeal Number 2022-0252 Assessor Report In Section C - Daily Living Activities, Dr. A indicates that the appellant is independent with all areas of 5 of the 8 DLA listed on the form: • Personal Care: the appellant was assessed as independent with dressing, grooming, bathing, toileting, feeding self, regulating diet, transfers (bed), and transfers (chair); • Basic Housekeeping: the appellant is independent with laundry and basic housekeeping; • Meals: the appellant is independent with meal planning, food preparation, cooking, and safe storage of food; • Pay Rent and Bills: the appellant is independent with banking, budgeting, and pay rent and bills; • Medications: the appellant is independent with filling/refilling prescriptions, taking as directed, and safe handling and storage.

Restricted activities

Dr. A indicated restrictions for 3 DLA:

• Shopping: the appellant needs periodic assistance from another person for 2 areas: going to and from stores, and making appropriate choices. The space for Additional comments including any safety issues was left blank.

The appellant was assessed as independent with the remaining areas of Shopping: reading prices and labels, paying for purchases, and carrying purchases home.

• Transportation: the appellant needs periodic assistance with 1 area: using public transit. The space for Additional comments including any safety issues was left blank.

The appellant was assessed as independent with the remaining areas of Transportation: getting in/out of a vehicle, and using transit schedules and arranging transportation.

• Social Functioning: the appellant was assessed as needing support or supervision for 4 out of 5 areas (comment, “socially isolated, anxiety and depression”): -needs continuous support/supervision with able to develop and maintain relationships, and interacts appropriately with others. -needs periodic support/supervision with able to deal appropriately with unexpected demands, and able to secure assistance from others.

EAAT (26/10/22) 6

Appeal Number 2022-0252 The appellant was assessed as independ ent with the remaining area: appropriate social decisions

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 or additional comments added in the spaces provided.

Need for help

Self-report The appellant did not provide any information in this report about her need for assistance with DLA.

Medical Report In Section B-1 - Health History, Dr. A reported that he appellant is seeking help and treatment for her anxiety and depression. In Section B-4, the doctor checked no, the appellant does not require any prostheses or aids for her impairments. The doctor left Section E blank when asked what assistance the appellant needs with DLA.

Assessor Report In Section A-1, Dr. A indicates that the appellant lives alone. In Section D – Assistance provided by other people, the doctor checked family, and friends. Dr. A did not fill in Section D - Assistance provided through the use of Assistive Devices. The doctor checked no the appellant does not have an assistance animal.

2. An RFR signed by the appellant on October 4, 2022, with a typed submission in which the appellant states that she has “complex PTSD due to childhood trauma” that began in early childhood. The appellant says that “I suffer daily with severe depression and anxiety. I now have agoraphobia and have become fearful to leave my home.”

Additional evidence

Subsequent to the reconsideration decision the appellant submitted additional self-report information and medical evidence requiring an admissibility determination by the panel under section 24(2) of the Employment and Assistance Act (“EAA”).

1. A Notice of Appeal with a typed submission in which the appellant provides the following information about her mental and physical impairments: • she has continued suicidal thoughts (which Dr. A was informed of) and “extreme

EAAT (26/10/22) 7

Appeal Number 2022-0252 difficulty leaving my home or being soci ally connected to anyone.” The appellant says that when she is “forced to leave home” (due to a lack of help from anyone), her anxiety and fear increase; • she has great difficulty “maintaining consistent and adequate personal care.” She depends on an emotional support animal. • she is seeking treatment for childhood trauma which she has great difficulty talking about. She doesn’t think Dr. A is aware of it. She has only been able to speak to a psychiatrist once for a change in her medication. She has not been booked for a follow up with the psychiatrist but speaks to a counsellor every 2 weeks with 3 appointments to date; • her DLA have been “severely restricted” for over 4 years. She has lost relationships with friends and family and is unable to work due to severe anxiety and depression and continued thoughts of suicide; • she has “severe carpal tunnel” which now requires surgery. The carpal tunnel as well as “significant spinal issues” impact her physical ability and independence; • she has sleep apnea that requires a CPAP machine, and hearing loss that requires hearing aids.

Admissibility – appeal submission

The panel finds that the additional self-report details what the appellant considers the impacts of her impairments to be, including activities with specific restrictions. The appellant also reports additional impairments (sleep apnea and hearing loss) and suicidal ideation that weren’t mentioned in the original PWD application. The panel admits the testimony under section 24(2) of the EAA as evidence that is reasonably required for a full and fair disclosure of all matters related to the decision under appeal.

The appeal submission also contains argument. The panel will consider the arguments of both parties in Part F – Reasons.

2. A report for a comprehensive whole body scan (“MRI”) from a doctor (“Dr. B”) dated September 3, 2021. The findings include: • no worrisome lesions, masses, or other abnormalities for the brain, sinuses, pharynx, thyroid, cervical lymph node chain, lungs, heart, breasts, esophagus, stomach, gall bladder, pancreas, spleen, adrenals, bladder, uterus, or ovaries; • the liver showed a simple cyst and mild fat disposition; the kidneys showed a 0.5 cm lesion with no other abnormalities within the limits of the scan; the bowel showed evidence of diverticulosis with no evidence of inflammatory changes involving the large bowel and no inguinal hernia. • The spine and Musculo-skeleton scan showed:

EAAT (26/10/22) 8

Appeal Number 2022-0252 -abnormal curvature of the cervical spin e; -C3/C4: mild narrowing/mild degenerative changes; -C4/C5: mild/moderate degenerative changes; -C5/C6: severe narrowing in many of the structures including right and left “neural foramina”, and mild stenosis and degenerative changes in other structures; -C6/C7: small and mild abnormalities with normal lateral recesses and normal spinal canal; -mild “degenerative spondyloarthropathic changes” throughout the thoracic spine; -moderate “degenerative spondyloarthropathic changes” in the lumbar spine; -normal appearance/no abnormal findings for the sacroiliac joints, shoulders, pelvis, hips, knees, ankles, bony skeleton, and soft tissues; • Dr. B’s final impression included: -“changes of mild chronic small vessel disease are seen in the brain;” -“fatty infiltration of the liver is identified;” -“liver, right renal and cervical cysts are present;” -“uncomplicated diverticular disease is seen in the sigmoid and descending colon;” -“degenerative changes are identified in the spine as described above.” • Dr. B recommends a follow-up scan in 24 months for proactive health monitoring unless clinically indicated sooner.

3. A consultation report from a physical therapist (“PT”) dated November 25, 2021. The report indicates that the appellant was referred to the integrated spine clinic upon visiting the hospital emergency room for neck pain.

The report contains the following information: • the appellant described a history of chronic neck pain with tingling into her hands. She was previously seen at the spine clinic in 2018 where it was felt that her hand symptoms were caused by carpal tunnel syndrome; • in October 2021, the appellant had a flare up of acute and chronic neck pain, radiating down her right arm; into her hand and fingers; and progressively worsening since onset. The appellant reported numbness as well. • the appellant described constant arm pain that is generally worse at the end of the day and can awaken her at night. She reported the same symptoms in her left arm and hand but to a lesser degree; • the appellant rated her right arm pain as “12/10 in intensity. She has neck and upper back pain which she rates at 8/10 in intensity.” • the appellant reported no bowel/bladder incontinence; “saddle anaesthesia”, fevers, infections, or drastic unexplained weight loss.” • the appellant reported issues with fine motor dexterity (right hand) but “no significant decrease bilaterally;”

EAAT (26/10/22) 9

Appeal Number 2022-0252

• the appellant reported some dizziness but “otherwise no change to her balance or gait quality.” • the neck and arm pain “are aggravated by neck movements, lying down, and looking up. The appellant has not found any position of significant relief.” • the appellant is “independent for ambulation without aid. She is independent for Activities of Daily Living [“ADL”]. She denies history of unprovoked falls.” • past medical history includes anxiety, depression, and bilateral pain episodes following surgery in 2020; • medications include Tylenol and anti-depressant medication; • a whole body MRI was completed in August 2021. The MRI revealed “bilateral severe foraminal and lateral recess stenosis at C5-6.” There was “no severe spinal canal stenosis in the cervical spine. No level of cord suppression or pathological finding in the thoracic or lumbar spine.” • the PT observed “no acute distress…Gait: independent unaided and on turns. Able to heel/toe/tandem walk independently without issue.” • the appellant had some diminished reflex on the right side (“biceps and brachioradialis reflexes”). Her strength testing was “5/5 all myotomes C4-T1 bilaterally. Grips strong, slightly decreased grip on the right as compared to the left.” • there was some diminished range of motion: “limited right-sided cervical rotation, cervical extension and flexion. Slightly limited left-sided cervical rotation.” The appellant had full, active shoulder rotation. • various physical tests indicated “worsening numbness and tingling into the hands bilaterally” as well as “peripheral nerve involvement.” • the appellant was “observed to tie and untie shoelaces at clinic today without issue.” • nerve conduction studies were recommended (via a referral to neurology by the family doctor). The PT will refer the appellant to a spine surgeon “for further assessment and management recommendations…given progressive worsening of her arm pain.” • The PT encourages the appellant to “maintain activity as tolerated within the limits of her symptoms, her neck pain should be treated conservatively.” The appellant was advised to “avoid periods of prolonged hyper extension or flexion of the cervical spine” and to follow up with her family doctor for medical management of pain.

The appellant submitted an email to the Tribunal with the PT report, in which she states that she had a nerve conductivity test performed by a neurologist. The appellant says that the test shows “severe carpal tunnel. He said I have nerve damage in my thumb, ring and

EAAT (26/10/22) 10

Appeal Number 2022-0252 middle fingers and am losing muscle at the ba se of my thumb (where it is fat – on the inside). I am booked for surgery asap…first right wrist, then left wrist.”

Admissibility – appellant’s additional documents

The ministry had no objections to the additional medical reports and email from the appellant. The panel finds that these documents provide additional detail about the appellant’s physical impairments including symptoms, findings from medical tests, and additional information about function in the PT report. The panel admits the submissions under section 24(2) of the EAA as evidence that is reasonably required for a full and fair disclosure of all matters related to the decision under appeal.

Additional evidence at the hearing

Both parties stated their arguments and the ministry did not submit any new evidence.

In her oral testimony and response to questions from the panel, the appellant provided the following information: • she started seeing Dr. A this year after her long term doctor retired; • she did not have an office interview with Dr. A. She talked to them on the phone for prescription renewals and a referral to a psychiatrist; • she had an appointment with a neurologist who told her that she has arthritis in her spine as well as muscle loss and nerve damage in 3 fingers on her right hand. She also has psoriasis so needs to find out if she has psoriatic arthritis; • she does not have the neurologist’s report because it takes 3 months to get a copy. She is also waiting for a neurosurgery consult; • she cannot turn her head or shoulder check when she drives. She uses mirrors to drive even though it’s not safe; • she has to go out every 2 weeks to get groceries because she doesn’t have anyone to help her. Sometimes she gives another person her bank card to buy things for her. She is “afraid to go out without smoking pot” [to be able to go out at all]; • her arms are weak and she has no strength to hold things due to carpal tunnel. Things slip out of her hands; • her physical ability has decreased over the years and her condition is worsening; • she is new to her community and doesn’t know her neighbours and finds it hard to ask for help; • she is scheduled for surgery on her right wrist in December 2022. She is worried about her neck but her wrist surgery will be done first; • she needs wrist braces and she does have an assistance animal (“emotional support animal” which she mentioned to Dr. A);

EAAT (26/10/22) 11

Appeal Number 2022-0252 • she has suicidal thoughts and was taken advantage of because she was not able to recognize threats and “was doing high risk behaviours;” • she only had a 10-minute telephone appointment with Dr. A for the PWD forms. She cannot lift over 20 pounds; • Dr. A referred her to a psychiatrist but there is a 6 month wait and she has not yet had a psychiatric assessment. She spoke to a psychiatrist once but just had her medication changed and has not been on the new medication long enough to tell if it is helping; • she was supposed to have a recent appointment but the psychiatric nurse never called her and she doesn’t know if the referral is still good; • she sees a counsellor every 2 weeks. She was referred by a crisis clinic; • regarding the PT’s report, the appellant is not sure why the PT talked about tying shoes because the appellant was not wearing shoes with laces that day; • she was diagnosed with complex PTSD when she lived in another country (“Country X”).

Admissibility – oral testimony

The panel finds that the oral submissions provide a broader picture of the appellant’s circumstances with additional details about her physical and mental impairments and the communications she had with her doctors and other health professionals. The panel admits the testimony under section 24(2) of the EAA as evidence that is reasonably required for a full and fair disclosure of all matters related to the decision under appeal.

EAAT (26/10/22) 12

Appeal Number 2022-0252 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: • 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 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.