Ministry of Social Development and Poverty Reduction

Appeal Number 2022-0226 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 9, 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 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 2022-0226 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 June 15, 2022; a Medical Report (MR) dated June 15, 2022 and completed by a General Practitioner (GP) who indicates that they took over as the Appellant’s primary care provider on June 15, 2022, and who has not seen the Appellant previously; and an Assessor Report (AR) also dated June 15, 2022 and also completed by the GP.

The evidence available to the Ministry at the time of the RD also included:  A one-page note, dated August 30, 2022 (the Note). The author of the Note is not identified and refers to the Appellant in the third person. Details of the information contained in the Note are provided in the appropriate sections of the discussion below;

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A Request for Reconsideration form (RFR), signed by the Appellant on August 31, 2022, in which the Appellant gives the reasons why he is asking the Ministry to reconsider its decision. Those reasons are detailed in the appropriate sections of the discussion below;

The results of an August 16, 2013 examination of the Appellant at a walk-in medical clinic in a community in another Province (the August 2013 Medical Exam);

The results of a July 3, 2014 examination of the Appellant at the same walk-in clinic referred to above (the July 2014 Medical Exam);

The results of seven medical examinations of the Appellant, conducted by an Orthopaedic Surgeon between May 30, 2014 and June 22, 2015 (the Orthopaedic Surgeon Exams);

A diagnostic imaging report of the Appellant’s spine, conducted on July 2, 2013; A diagnostic imaging report (“Diagnostic Radiology”) of the Appellant’s right shoulder, conducted on August 6, 2013;

A diagnostic imaging report (“Ultrasound”) of the Appellant’s right shoulder, also conducted on August 6, 2013; and

An application for classification as a person with persistent multiple barriers (PPMB) in the name of the Appellant and signed by the Appellant on June 15, 2022 (the PPMB Application). Next to two of a number of barriers listed on the form, the Appellant has ticked “Less than Grade 12 Education”, and “Other severe barriers to employment”, where “osteoarthritis bilateral shoulders chronic lumbago” is written.

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Appeal Number 2022-0226 Diagnoses In the MR, the GP has diagnosed the Appellant with Arthritis (bilateral shoulders and hands and lumbar spine) with a date of onset of approximately 1980, and Degenerative Disc Disease (DDD) with a date of onset of approximately 2013.

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’s) ability to … lift, write, use hands and arms and bend is impaired by pain caused by chronic osteoarthritis bilateral shoulders and hands and lumbar spine. (Appellant) has previous rotator cuff injuries bilateral shoulders and previous surgeries - reports attached and previous radiology reports attached. Recent x-rays shoulders, hands and lumbar spine requested (June 15, 2022). Appellant has limited range of movement bilateral shoulders and weakness arms and stiffness/pain bilateral hands and lower back”. With respect to functional skills, the GP reports that the Appellant can walk 2 to 4 blocks unaided on a flat surface, climb 2 – 5 steps unaided, lift 2 – 7 kg, and can remain seated for less than 1 hour.

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 walking indoors, climbing stairs and standing, but requires continuous assistance from another person or is unable to lift, carry or hold. No explanations or comments are made in the spaces provided.

The August 2013 Medical Exam results list the Appellant’s “Active Problems” to include Lumbago and Osteoarthritis of the right shoulder. The July 2014 Medical Exam results indicated that the Appellant has Osteoarthritis of the left and right shoulders and “Rotator cuff syndrome of shoulder”.

The Orthopaedic Surgeon Exams include the following comments:  May 30, 2014 - “On examination gross Supraspinatus wasting bilaterally and a midrange painful arc with a catch bilaterally … Radiographs of the right shoulder show evidence of chronic subacromial impingement, superior positioning of the humeral head in keeping with a rotator cuff tear … (The Appellant) has … massive rotator cuff tears almost certainly secondary to bilateral os acromiale and chronic attritional rupture. These are almost certainly massive and irreparable, however I think we have a good chance of improving his pain and allowing his function to progress. I have counseled (the Appellant) regarding … surgery … and he has given informed consent for this left side first for which I will do this for him in due course”;

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Appeal Number 2022-0226  November 3, 2014 – “I reviewed (the Appellant) on account of his left shoulder which is now significantly improved … and he says that his range of motion is better than it has been for 30 years … I have adjusted his cuff exercises to try and optimize his function. His right shoulder is now the most troublesome for him … I will therefore (operate on his right shoulder) in due course”;

 January 13, 2015 – “I reviewed (the Appellant) today six weeks following arthroscopic debridement right shoulder. He hasn’t seen a lot of improvement with this and he tells me his left shoulder is worsening”;

 January 19, 2014 (sic) – “I … reassessed (the Appellant’s) exercises which he had been doing and it would appear that his technique really is not ideal. I have shown him the correct manner of doing (the exercises) … and will see him back in three weeks time”;

 March 30, 2015 – “(The Appellant’s) left shoulder is definitely improving although he is having continuing issues with his right … I have given him further reinforcement in the correct way to do his exercises”;

 April 27, 2015 – “(The Appellant) is doing well, demonstrates excellent range of motion, his pain is greatly improving and indeed his strength is improving … (His right shoulder is) definitely very weak … His left shoulder is doing excellent”;

 June 22, 2015 – “I reviewed (the Appellant) on account of his shoulder and performed his subacromial steroid injection … he knows to commence his … cuff protocol in 7 to 10 days”.

The three diagnostic imaging reports from July and August 2013 report that the Appellant’s “bones are osteopenic”, “there is minimal disc space narrowing … in keeping with early DDD”, “degenerative changes are noted in the AC joint”, “there is (a cortical irregularity) which is … found in an association with a chronic rotator cuff tendonitis”, “underlying cortical irregularity is present”, and “a full thickness tear of the supraspinatus is present associated with a calcific rotator cuff tendonitis”.

In the SR, the Appellant writes “My shoulders, arms, hands and back hurt when doing activities as well as being still (arthritis)”.

In the RFR, the Appellant has noted that his “condition is physical, not mental”, and that he is unable to prepare his own meals, shop for personal needs, perform housework to maintain his place of residence in acceptable sanitary condition, and perform personal hygiene and self care. The Note reads, in part “… Patient has bilateral shoulder arthritis as well as in his hands and lumbar spine. He also has DDD. This greatly impairs his ability to work due to limited use of his hands, arms and back. Unfortunately (the Appellant) is unable to purchase his pain medications due to the high cost.”

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Appeal Number 2022-0226 Severe Mental Impairment The Appellant has not been diagnosed with any mental impairments. 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 “no”.

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 speaking ability is good, that his reading and writing abilities are poor, and that his ability to hear is satisfactory. 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 a major impact to motor activity and no impacts in any of the other listed areas (emotion, attention/concentration, bodily functions, executive functioning, memory, motivation, consciousness, impulse control, insight and judgment, language, psychotic symptoms, other neuropsychological problems, and other emotional or mental problems).

With respect to social functioning, the GP indicates in the AR that the Appellant is independent in all listed activities (making appropriate social decisions, developing and maintaining relationships, interacting appropriately with others, and ability to secure assistance from others). The GP also indicates that the Appellant has good functioning with his immediate and extended social networks.

In the RFR, as noted above, the Appellant says that he does not have a mental impairment. 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. Where asked to provide any additional information that might be considered relevant in understanding the impact of the Appellant’s medical condition on daily functioning, the GP has written “(The Appellant’s) arthritic pain is quite severe if doing activities. Even basic (DLA) exacerbates (his) pain”.

In the MR, the GP says that the Appellant’s activity is periodically restricted for the DLA of personal self care and basic housework, adding the comment “pain with shaving, brushing hair and dressing … unable to wash dishes”. Regarding the DLA of using transportation, the GP has indicated that the Appellant requires continuous assistance, adding “pain when driving a distance or sitting too long in transportation”. The GP has indicated that the Appellant’s activity is not restricted with respect to any of the other listed DLA (meal preparation, management of medications, daily shopping, mobility inside and outside the home, management of finances, and social functioning).

In the AR, the GP indicates that the Appellant is independent with most tasks for the DLA of personal care except for grooming, which the GP says he cannot do, and transfers on and off a chair, for which the GP says the Appellant must “take 5 steps to get straight up”.

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Appeal Number 2022-0226 The GP has also indicated, with no further explanation, that while the Appellant is independent with dressing and bathing, he struggles with those activities. Regarding basic housekeeping and shopping, the GP indicates that the Appellant is independent except for carrying purchases home, for which the Appellant needs periodic assistance. With respect to meals, the GP has indicated that the Appellant requires periodic assistance with food preparation and cooking, and that the Appellant is independent with all aspects of paying rent and bills and taking medications. Regarding getting in and out of a vehicle, the GP indicates that the Appellant takes significantly longer than typical (adding “slow”). No further comments or explanations are provided for any of the activities for which the Appellant is not considered independent.

In the SR, the Appellant writes “due to arthritis in shoulders, hands, lower back I can’t perform (DLA)”.

In the Note, an unidentified person writes, in part, “The patient has stated that he has great difficulty with his DLA, which includes personal care, cooking, shopping, basic housework as well as transportation”.

Need for Help In the MR, the GP indicates that the Appellant does not require any prostheses or aids for his impairment. Where asked what help the applicant needs with DLA, the GP has written “No help required as yet. His children assist him and his friends and (Appellant) does modified duties”, but no details regarding the nature and extent of assistance required are provided.

In the section of the AR that asks who provides the help required for DLA, the GP has ticked “Family” and “Friends”. 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 does not indicate who helps him with the DLA for which he is not independent.

In the Note, an unidentified person says “The Appellant) does not feel like he would be able to perform any of those (DLA) if he lived alone ”.

Evidence Presented at the Hearing The Appellant was supported at the hearing by an advocate (the Advocate). At the hearing, the Appellant said that he started getting sore shoulders and arms in the early 1980’s. He said that he first experienced shoulder pain when he was helping a friend construct a fence. He pushed on the fence and felt something pop in his shoulder. He felt the pain immediately and was hardly able to move his arm. He made an appointment with a doctor and was sent for an ultrasound. Shortly after that he had appointments with

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Appeal Number 2022-0226 doctors and chiropractors about his shoulders, including a family physician he first visited in 2005. They all told him that there was nothing they could do. The Appellant said that there are two muscles on each shoulder; one on the top and one on the bottom. He said that since the injury the top muscles on each shoulder have “been moving over sharp bones”, which is why he has been in so much shoulder pain. The Appellant said that he visited a physiotherapist two or three years ago and was told that there was little chance of improvement.

The Appellant said that he also developed a sore back and problems with his fingers about nine months ago. Regarding his back problems, the Appellant said that just recently he has found that he can’t straighten his knees, and when he stands he has to bend over forwards. He is unable to lift his feet more than a few inches off the ground and has to shuffle his feet when he walks. He said that he borrowed some crutches a few days ago and they helped, as with the crutches he was able to walk indoors the full length of a 30 foot hallway in his home. He thought he might have been able to walk further than that, but has not had an opportunity to try because he is now only able to walk indoors. He said that he was going to “try to get some crutches”, adding “The big problem right now is my back”. He said he last saw his physiotherapist on November 25, 2022 and he has his next appointment with the physiotherapist on December 2, 2022. He also said that “In the past, I walk a little better than before” immediately after physiotherapy treatment.

In response to a question from the Panel, the Appellant said that, while he was bent over when walking when he completed his PWD application, he used to be able to push himself up into a standing position using the coffee table and “could be walking straight after four or five steps”. But in the past few days he can no longer do that.

The Appellant also said that the X-rays arranged by his GP on June 15, 2022 were taken five months ago, but that he doesn’t know why they have not been provided to him by the GP, nor how they might affect his PWD application. He said that his most recent appointment with the GP was on November 24, 2022, but that the GP didn’t provide any more information about his impairments, adding “(The GP) didn’t examine me much”. When asked by the Panel why he had not talked to his GP on his most recent visit about his inability to walk, the Appellant said “She can’t help me. All she would do is prescribed more pain killers”. He said he would not take any prescription medications for pain because they were too expensive and he didn’t want to take prescription medications and so he relied on acetaminophen for his shoulder pain because it was the only non-prescription medication that worked, although he had to take it in large quantities for it to be effective.

Regarding the impact of the Appellant’s physical impairments on his ability to perform DLA, the Appellant said, “I can’t do anything”. He explained that under his current living arrangements he shares a home with two roommates at a reduced rent on the expectation that he does his share of the housework. He said that he is no longer able to

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Appeal Number 2022-0226 do any sweeping, he is not able to cook because he can’t put a pot on the stove, open a can with a can opener, or take a lid off a jar due to his arthritis. He also said that he is right-handed but must sign his name with his left hand, he is unable to brush his teeth or comb his hair without experiencing pain, and he uses his roommate’s shower chair when he showers because he can’t stand up in the shower. One of his roommates does all the shopping, though the Appellant will sometimes be able to carry bags in from the car using crutches. He also said that his daughter-in-law will sometimes drive him to appointments. The Appellant explained that one of his roommates is visited by “a regular nurse” four times a week and that the nurse does some DLA, such as cleaning the bathtub, driving, and housework, which none of the three residents can do by themselves.

When asked to describe a normal day, the Appellant said that he gets up at 4:00 am and puts coffee on that was programmed the night before, adding that he is able to heat it up if he uses both hands. Then he sits in a chair for an hour or two watching TV, and sometimes does exercises on his bed.

In response to another question from the Panel, the Appellant said he doesn’t know who wrote the Note from the unidentified person .

At the hearing, the Ministry relied on the RD. In response to a question from the Panel, the Ministry said that the Appellant could apply again for the PWD designation if his appeal was not successful, and could submit a new MR and AR in support of his application. The Ministry also confirmed that a physiotherapist, who is a prescribed professional as defined in the EAPWDR, could complete a new AR, and that the cost charged by the physiotherapist could be billed directly to the Ministry, up to the maximum amount permitted. (The Panel notes that the AR says that the maximum rate for a prescribed professional other than a physician is $75.) The Advocate said that the actual fee charged by many physiotherapists for completing an AR is $1,000, and the Appellant said that was the fee that the Appellant’s physiotherapist said he would charge. The Ministry said that the Appellant could ask his physiotherapist to provide the service for a lower fee, on the basis that the physiotherapist might be prepared to do a less comprehensive assessment.

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 the requirements set out in the legislation and on all admissible evidence.

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Appeal Number 2022-0226 The section of the Notice of Appeal (NOA) asking why the appellant disagrees with the Ministry’s RD, the Appellant has written “I cannot do DLA”. As no other information is contained in the NOA, the Panel finds that there is no new evidence contained in the NOA.

New verbal evidence presented at the hearing is that the Appellant comprises the following verbal evidence:

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