Ministry of Social Development and Poverty Reduction

Appeal Number 2022-0119 Part C – Decision Under Appeal Under appeal is the reconsideration decision of the Ministry of Social Development and Poverty Reduction (the ministry) dated May 19, 2022, that denied the appellant designation as a person with disabilities (PWD) under section 2 of the Employment and Assistance for Persons with Disabilities Act. The ministry stated that the appellant met the requirements of having reached 18 years of age and of a medical practitioner confirming the impairment is likely to continue for at least 2 years. However, the ministry was not satisfied that: • the appellant has a severe mental or physical impairment • the appellant's 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 is not in one of the prescribed classes of persons who may be eligible for PWD designation under 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

Employment and Assistance for Persons with Disabilities Act (EAPWDA), section 2

Employment and Assistance for Persons with Disabilities Regulation (EAPWDR), sections 2 and 2.1

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Part E – Summary of Facts

Appeal Number 2022-0119

Information before the ministry at reconsideration

• The appellant’s PWD application, comprised of: o A Medical Report (MR1) dated July 9, 2020, and an Assessor Report (AR2) dated October 13, 2020. Both were completed by the appellant’s general practitioner (GP1) of two years who had seen the appellant 2 – 10 times in the 12 months before the AR was completed. o The Self-report section of the PWD application was not completed.

• The appellant’s April 25, 2022, Request for Reconsideration submission.

Information provided on appeal and admissibility

• Notice of Appeal dated June 8, 2022.

• A second PWD application, comprised of: o A Medical Report (MR2) and an Assessor Report (AR2), both dated October 17, 2022, by a general practitioner (GP2) who indicates that this was not the first contact with the appellant. o A Self-report dated October 18, 2022. • Pain clinic records for April and May 2022 regarding treatment of the appellant’s bilateral hip and knee pain with intravascular injections. • Consult letters from a specialist in rheumatology and internal medicine dated March 3 rd , June 8 th , September 21 st , and November 25 th , 2020, and January 28 th , 2021. The letters indicate ongoing investigations, ruling out a number of medical conditions to explain the appellant’s pain including, connective tissue disease and inflammatory arthritis. In the most recent letter, the specialist states that the appellant “may have soft tissue pain” and “may benefit from seeing a specialist pain clinic.” • Electrophysiology Report (undated) for which the conclusion is “Normal nerve conduction studies in upper and lower extremities.” • Results of a January 5, 2021, medical resonance image (MRI) of the lumbar spine (findings were all normal except for mild osteoarthritis of the lower lumbar facet joints). • Results of a July 18, 2020, MRI of the right hip (findings were normal/unremarkable except for mild left common hamstring tendinopathy.)

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Appeal Number 2022-0119 • Laboratory results for bloodwork (interp retation of the results is not provided), • 15-pages comprised of: o Invoices for appointments with a pain clinic in 2022 for April through October 2022 for monthly visits except for April when the appellant attended three times. o Records of appointments with a naturopath in 2018. o Records of appointments with a physiotherapist from 2018 through October 2022. The appellant was seen monthly in 2021, except for February, April, June, and December when the appellant had two appointments, and monthly in 2022 except for March and June when the appellant had two appointments.

At the hearing, the appellant was assisted by her spouse who provided evidence and served as translator.

Information provided by the appellant’s spouse included: • The appellant does not have a mental problem. • PWD designation is needed because the appellant can no longer afford treatment and needs financial assistance. • The appellant usually has physiotherapy once a month but goes twice a month when she feels very bad. • The appellant is still attending the pain clinic and is stable, but her situation will become an emergency if treatment does not continue. • The appellant’s condition started with a pinch in the right knee but now includes pain in the other knee and pain that can shoot down from the shoulder. • Doctors do not know what the problem is. • The appellant needs to support herself 90% of the time when walking. • The appellant is always accompanied by her spouse when walking outside because once the appellant was alone and just sat down. • Some days are okay, and the appellant can walk and go to the pool but sometimes, the next day or a few days “she cannot come back from that.” • They have lost count of how many days the appellant has pain, sometimes it is very bad. It happens often but there is no way to know when, so they don’t know the frequency. There is no way to predict when it will happen. • The appellant can walk two blocks, but two blocks is not normal functioning. • The appellant saw GP2 on a good day, otherwise, she would not have been able to make the appointment. • It is difficult for the appellant to get in and out of low cars.

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Appeal Number 2022-0119 At the hearing, the appellant stated that if she cleans the living room and goes walking, she feels “more sick.” She has had to reduce her dose of gabapentin by half because of sensitivities to medication.

At the hearing, the ministry reviewed the reconsideration decision and gave its position respecting the new information submitted by the appellant but did not provide evidence. In response to a question from the appellant’s spouse, the ministry stated that it can be helpful for applicants to submit a daily journal of good and bad days as evidence of functioning.

The panel admitted the new oral and documentary evidence submitted by the appellant and her spouse under section 22(4) of the Employment and Assistance Act as information reasonably required for full and fair disclosure of the matters at issue. The panel considered the information to be directly related to PWD eligibility. The ministry did not object to the admission of the new information.

The positions of both parties are set out in Part F of this decision.

Summary of relevant evidence

Physical Impairment

Diagnoses and Health History

In MR1, GP1 diagnoses the appellant with ongoing right hip and knee pain and swelling, which are under investigation.

In MR2, GP2 adds that the appellant now has left knee pain, and that pain extends into the appellant’s thighs and into her feet with sensory symptoms, including cold sensitivity in her legs, and discomfort. GP2 also diagnoses fatigue (is physically exhausted), fibromyalgia, and low back pain. Additional commentary includes: • can walk only short distances (20-40 metres) • has difficulty going up and down stairs (will sit to go up and down) • cannot carry more than 5 lbs. at a time (cannot even carry a light grocery bag) • cannot push/pull and therefore can’t do household chores • cannot sit for long periods – needs to get up constantly and move around to alleviate pain in legs • has difficulty standing still (e.g., to prepare a meal)

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Appeal Number 2022-0119 • constant pain • impairs her ability to do day to day activities, household chores, and grocery shop – needs help with these. • if she does exercise one day, needs 2-3 days’ rest, then again “occ” needs to stop for a week • approximately 2 bad weeks to every 1 good week • any day she does too much, she is in bed for 3-7 days • has been seen by neurology, kinesiology, pain clinic, sports med, and rheumatology • needs crutches intermittently

In the SR completed as part of the second PWD application, the appellant states that she has had improvement from four years ago, but her life is still far from what it used to be, when she did a challenging hike once a week. Sometimes she can deal with pain, sometimes she cannot. The pain is always there, sometimes it is stronger. There are days she feels better and will do cleaning or walking, but someday or the next day she will have a flare up. The appellant also describes her abilities for walking, stairs and carrying which closely mirror the above description by GP2.

In the reconsideration submission, the appellant describes her functioning: • hard to go down very soft street inclines • cannot go up or down more than 5-8 steps, when no one is looking, she sits on the stairs to go up or down • most times cannot sit for a long time, and avoids sitting on hard places • needs a special inner shoe sole • most times won’t take a pain killer because it makes her very drowsy (gabapentin works differently) • some days she might feel well and the next day or two she will pay for that one day • tries to go the pool at least 2-3 times a week

Functional Skills

GP1: • can walk less than one block unaided (during flare ups) • can lift 5 to 15 lbs. during flare ups (no limitations otherwise) • can climb 2 to 5 steps unaided • no limitation respecting the time the appellant can remain seated

GP2: • can walk one to two blocks unaided, with pain

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Appeal Number 2022-0119 • can climb two to five steps unaided • can lift less than 5 pounds • can remain seated for less than one hour

Mobility and Physical Ability

GP1: • walking indoors independently managed • walking outdoors, climbing stairs, lifting, and carrying and holding require periodic assistance “when flare up.” • no information about the ability to stand is provided.

GP2: • walking indoors independently managed (but uses surfaces for support) • needs to prepare meals sitting rather than standing • walking outdoors is managed independently (but takes longer and is limited to 1 block) • climbing stairs (continuous assistance or unable (sits down to go up the stairs) • standing is managed independently (best day 1 hour, worst 5 minutes) • lifting and carrying and holding are managed independently (maximum 5 lbs.) • “When she has done a lot on a day the next day she will be in bed x 4 days if she does her kinesth. exercises she will not be able to do anymore & rest completely x at least 3 days.”

Mental Impairment

No significant deficits, impacts on daily functioning or problems with communication or social functioning are identified by GP1. GP2 indicates a major impact on daily functioning for “other emotional or mental problems” described as “forgets where things are placed or e.g., looking for her phone & it is in her hand.” GP2 reports no impact on daily functioning for all other areas of cognitive and emotional function. GP2 reports marginal functioning with extended social networks “less with others because of difficulty.”

Daily Living Activities

In MR1, GP1 reports:

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Appeal Number 2022-0119 • “when flare up” the appellant’s impairme nt directly restricts the ability to perform basic housework, daily shopping, mobility inside and outside the home, and use of transportation” • Personal self care, meal preparation, management of medications, management of finances, and social functioning are not restricted. • The appellant has had multiple flare ups in the last 2 years. • Needs crutches when hip/knee flare up.

In MR2, GP2 reports: • Basic housework, daily shopping, mobility inside and outside the home, and use of transportation are restricted by the appellant’s impairment. Where asked to indicate whether the restriction is periodic or continuous, GP2 did not respond. • Management of medications, management of finances, and social functioning are not restricted. • The boxes where the medical or nurse practitioner is asked to indicate whether an activity is or is not restricted were left blank for personal self care and meal preparation. • Needs to sit to prepare meals, needs to rest on the shopping cart, uses surfaces in the house to walk around, crutches if knees are bad outside, needs to be transported in a vehicle she can get into.

In AR1, GP1 reports: • all listed tasks of personal care, shopping, meals, pay rent and bills, medications, and social functioning are managed independently. • All listed tasks of basic housekeeping and transportation require periodic assistance from another person “when flare up.”

In AR2, GP2 reports: • Right hip and bilateral knee pain, significant fatigue, and diffuse pain are the impairments that impact the appellant’s ability to manage DLA • All listed tasks of personal care, pay rent and bills, medications, and social functioning are managed independently. • Both listed tasks for basic housekeeping require assistance from another person (continuous assistance 80% of the time; periodic assistance 20% of the time). • For shopping, going to and from stores (must be taken to store) and carrying purchases home (does not carry any groceries) require continuous assistance. • For meals, food preparation and cooking require periodic assistance from another person and take significantly longer to perform (needs to sit to make meals 80-90% of the time).

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Appeal Number 2022-0119 • For transportation, getting in and out of a vehicle requires periodic assistance and the appellant cannot use public transit as she has no balance and can’t get up the stairs. • No safety issues except sometimes cannot make it across a crosswalk within the duration of the light (so could not easily get away from trouble.)

Both GP1 and GP2 indicate that the appellant has not been prescribed medications and or treatments that interfere with the ability to perform DLA.

Help

GP1 reports that assistance is provided by family and that crutches are needed when having a flare up. GP1 also indicates that a cane is used.

GP2 reports that assistance is provided by family and that the appellant uses crutches (when day is particularly bad). Cane – but hurts her back.

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Part F – Reasons for Panel Decision

Appeal Number 2022-0119

Issue on Appeal

The issue on appeal is whether the ministry’s decision to deny the appellant 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. That is, was the ministry reasonable when determining that the requirements of section 2(2) of the EAPWDA were not met because: • a severe physical or mental impairment was not established • 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 • as a result of those restrictions, in the opinion of a prescribed professional, the appellant does not require an assistive device, the significant help or supervision of another person, or the services of an assistance animal to perform DLA.

Panel Decision Eligibility for PWD designation under section 2 of the EAPWDA Severe Impairment – Physical or Mental Section 2 of the EAPWDA requires that the minister “is satisfied” that a person has a severe physical or mental impairment, giving the minister discretion when making the determination. When exercising this discretion, the legislation’s requirement for information from a medical or nurse practitioner (and other prescribed professionals) makes it clear that the fundamental basis for assessing PWD eligibility is information from one or more prescribed professionals. The panel also notes that the legislation does not identify employability or financial constraints as considerations when determining PWD eligibility.

A diagnosis of a serious medical condition does not in itself determine PWD eligibility or establish severe impairment. While neither “impairment” nor “severe impairment” is defined in the legislation, the PWD Application defines “impairment” as a loss or abnormality of psychological, anatomical, or physiological structure or function, causing a restriction in the ability to function independently, effectively, appropriately, or for a reasonable duration. Although this definition is not binding on the panel, the panel considers the assessment of the severity of impairment based on daily functional abilities to be reasonable.

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Appeal Number 2022-0119 Physical Impairment Positions of the Parties The appellant’s position is that her physical functioning is severely impaired by constant pain and fatigue.

The ministry’s position at reconsideration was that the information from GP1 did not establish a severe physical impairment. The ministry found that GP1 did not indicate how often flareups of pain occur and furthermore, the functional skills were not indicative of severe physical impairment. At the hearing, in response to the new information provided, the ministry stated its position remains that a severe physical impairment is not established. The ministry stated that conflicting information provided by GP2 makes it difficult to determine the appellant’s walking ability and that being limited to sitting less than hour does not confirm a severe impairment. The ministry also stated that there was no explanation of why assistance with stairs is required given that the appellant is also reported as independent with stairs. Finally, the ministry stated that GP2 did not indicate how often the appellant does too much and is off for four days.

Panel Analysis The medical information and the appellant’s testimony establish that the appellant experiences symptoms including bilateral knee pain, hip pain and fatigue, though a conclusive diagnosis of the cause of the symptoms remains unknown. The medical documentation and the appellant’s own information indicate that the level of pain varies. The panel considered all the medical information and found that the information from GP2 generally reflects a reduced degree of physical functioning from that reported by GP1. As the information from GP2 is much more recent, having been provided more than 2 years after the first PWD application was completed, the panel places greater weight on the information from GP2 as being an assessment of the appellant’s current functioning. However, the panel finds that the information from GP2 does not provide a clear picture of the appellant’s physical functioning. For example, GP2 assesses the appellant as able to walk 1-2 blocks (with pain) with no assistance but also states that the appellant can only walk 20-40 metres. The appellant’s spouse confirms that the appellant can walk 2 blocks but that she must be accompanied in case her symptoms worsen while out walking. Information was not provided to establish how often the appellant’s symptoms worsen when walking outside. The information is also unclear respecting the appellant’s ability to manage stairs – in MR2, the appellant is reported to be able to manage 2 to 5 steps unaided but in AR2, GP2 indicates that the appellant needs continuous assistance and sits down to go up stairs. The appellant’s own information varies from being able to manage

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Appeal Number 2022-0119 5-8 steps but also needing to sit on the stairs. I t is also unclear if the functional skills assessment by GP2 reflects functioning for a good day/week or a bad day/week, except for indicating that on her best day the appellant can remain standing for 1 hour and on her worst day standing is limited to 5 minutes. The panel finds that the additional medical documentation submitted on appeal (consult letters, test results, etc.) confirmed that the appellant has symptoms including bilateral hip and knee pain but does not include information respecting the appellant’s daily physical functioning.

Based on the above analysis, the panel finds that the ministry was reasonable to decide that the information did not establish a severe physical impairment.

Mental Impairment Positions of the Parties The appellant does not argue that she has a severe mental impairment. The ministry’s position is that the information does not establish a severe mental impairment.

Panel Analysis The appellant is not diagnosed with a mental impairment or brain injury. Except for GP2 identifying a problem with memory and some restriction on the appellant’s social functioning, no limitations to the appellant’s cognitive, emotional, and social functioning are reported. Noting that the appellant does not argue that she has a mental impairment, the panel finds that the ministry was reasonable to decide that the information does not establish a severe mental impairment.

Restrictions in the ability to perform DLA Positions of the Parties The appellant’s position is that constant pain and fatigue significantly restrict her ability to manage DLA.

The ministry’s position is that it is not satisfied that the appellant has a severe impairment that directly and significantly restricts the appellant’s ability to perform DLA. The ministry states that it relies on the medical opinion and expertise from the medical practitioner and

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Appeal Number 2022-0119 other prescribed professionals to determine if an impairment directly and significantly restricts DLA.

In its reconsideration decision, the ministry found that GP1 reported periodic restrictions with some DLA and that the appellant had had multiple flare ups in the last 2 years. However, GP1 did not provide specific information about the frequency and duration of the flare ups to determine if the periods represent a significant restriction to the appellant’s overall level of functioning.

At the hearing, the ministry maintained its position that the information was not sufficient to establish significant restrictions that are continuous or periodic for extended periods. The ministry stated that GP2 reports that the appellant independently manages most DLA. Respecting the restrictions identified by GP2, the ministry stated that shopping carts and surfaces in house are not assistive devices; the appellant can take some modes of transportation; there is no description of how much longer meal preparation takes; and that sitting to prepare meals does not represent a significant deficit to independence. The ministry recognized the need for assistance with heavier chores of basic housekeeping, but found that it was challenging to confirm the need for continuous assistance given the functional skills assessed by GP2, and that it is unclear if the assessment reflects functioning levels for a good or bad week.