Ministry of Social Development and Poverty Reduction

Appeal Number 2023-0014 Part C – Decision Under Appeal The decision under appeal is the reconsideration decision of the Ministry of Social Development and Poverty Reduction (the ministry) dated January 10, 2023, which held that the appellant did not meet 3 of the 5 statutory requirements of section 2 of the Employment and Assistance for Persons with Disabilities Act for designation as a person with disabilities (PWD). The ministry found that the appellant met the age requirement and has an impairment that is likely to last 2 years or more from the date of the PWD application; but was not satisfied that:

• the appellant has a severe physical and/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 those restrictions, the appellant requires an assistive device, the significant help or supervision of another person, or the services of an assistance animal to perform DLA.

In addition, the ministry found that it had not been demonstrated that the appellant is one of the prescribed classes of persons who may be eligible for PWD designation on alternative grounds, which includes: a person who is enrolled in palliative care; a person who has at any time been determined eligible for At Home Program payments through the Ministry of Children and Family Development; a person who has at any time been determined eligible by Community Living BC for community living support; and a person who is considered disabled under section 42(2) of the Canadian Pension Plan Act.

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Appeal Number 2023-0014 Part D – Relevant Legislation Employment and Assistance for Persons with Disabilities Act (EAPWDA), section 2

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

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Part E – Summary of Facts Evidence at the time of Reconsideration

Appeal Number 2023-0014

1. The appellant’s PWD application comprised of: • A Medical Report (MR) [dated September 8, 2022] and an Assessor Report (AR) [dated September 27, 2022], completed by the appellant’s general practitioner (the GP), who had known the appellant since 2019 and had seen the appellant 11 or more times in the past 12 months of the PWD application. The MR and AR were completed by an office interview with family/friends/caregivers. • The PWD application also included the appellant’s Self-Report (SR) dated February 14, 2022. The SR was left blank. 2. Request for Reconsideration (RFR) dated December 6, 2022 which requested an extension to allow time to gather more evidence.

Diagnoses In the MR, the GP diagnosed the appellant with right foot degenerative joint disease, cavus foot, equinus and ankle osteoarthritis (onset: 2019).

Health History In the MR, the GP stated the following about the appellant: • Right foot pain causes pain with ambulation, standing and lifting. • Impairs ability to walk (limited to 1-2 blocks), lift (less than 15lbs), stand, so stairs (1 flight maximum). • Impairment is present all the time. • X-rays show ankle osteoarthritis. • Medications or treatments that interfere with the ability to perform DLA have not been prescribed. • Orthopedic shoes are required as protheses or aid for the impairment. • He has seen a pediatrist, management strategies have not been helpful.

Degree and Course of Impairment In the MR, the GP indicated that the appellant’s impairment is likely to continue for two or more years from the date of the application.

Physical Impairment In the MR, the GP indicated the following about the appellant: • He can walk 1-2 blocks and climb 5+ steps unaided, lift 5-15 lbs. The length the appellant can remain seated was left blank.

In the AR, the GP indicated the following about the appellant: • “Ankle pain, restricted ROM (range of motion)”. • He can independently perform but takes significantly longer with walking indoors/outdoor and standing. • He requires continuous assistance and takes significantly longer with climbing stairs. • He requires continuous assistance with lifting and carrying/holding. (the GP did not indicate the type of assistances that is provided).

In the SR, the appellant stated the following: • He has difficulty with walking, standing, running, climbing, lifting, and carrying since 2019. • Can manage 1 flight of stairs but takes 15 minutes (in pain sometimes).

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Appeal Number 2023-0014 • He can only lift about 10lbs. Mental Impairment In the MR, the GP indicated the following about the appellant: • There is no diagnosis of a mental impairment. • There are no difficulties with communication. • There are no significant deficits with cognitive and emotional function.

In the AR, the GP indicated the following about the appellant: • Speaking and hearing are good and reading and writing are satisfactory (the GP did not indicate why). • There are no impacts to any of the listed areas of cognitive and emotional functioning. • All listed areas of social functioning are performed independently and there is good functioning with immediate social networks and marginal functioning with extended social networks.

In the SR, the appellant did not make any mention of a mental impairment. Daily Living Activities In the MR, the GP indicated the following about the appellant: • Continuous assistance is required with personal self-care, daily shopping and mobility outside the house. • Comments as follows: “restrictions present continuously” and “requires assistance from his wife for the above task – bathing, dressing and housework”.

In the AR, the GP indicated the following about the appellant: • All listed tasks under all listed DLA are performed independently except as follows: o Dressing – continuous assistance required and takes significantly longer – “wife helps”. o Bathing – continuous assistance required and takes significantly longer – wife helps get in/out and wash. o Basic housekeeping – continuous assistance required. o Going to/from stores - continuous assistance required and takes significantly longer. o Carrying purchases home - continuous assistance required – “wife does this”. o Filling prescriptions – periodic assistance required – “wife helps”. o Taking medication as directed - periodic assistance required – “wife helps”.

In the SR, the appellant stated the following: • Assistance is required with showering, shopping, dressing and getting out of a chair. He loses his balance. • Restrictions are continuous and constant.

Help In the MR, the GP indicated the following about the appellant: • Requires orthopedic shoes as prostheses or aids for her impairment.

In the AR, the GP indicated the following about the appellant: • Help with DLA is provided by family. • ‘Assistance provided through the use of Assistive Devices’ was left blank. • ‘Assistance provided by assistance animals’ – “no”.

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Appeal Number 2023-0014 In the SR, the appellant indicated that help is needed with showering, dressing, shopping and getting in/out of chair. Evidence Prior to the Hearing Prior to the hearing the appellant submitted the following information: • Three sets of blood test results dated February 8, 2022, October 3, 2022 and December 30, 2022. • A letter from a foot and ankle surgeon (the surgeon) dated November 1, 2021. The letter, in part, stated that the appellant complains of pain and swelling in the right foot, he can only walk short distances before the pain starts which gets better if he rests, and that he has not other pedal complaints. • A radiology report dated August 14, 2019. The report is of the right ankle and provides findings. • A Medical Imaging Report (MIR) dated July 2, 2021 on the lumbar spine. • A radiology report dated August 11, 2021. The report is of the bilateral ankle and provides findings. • Another letter from the surgeon dated August 6, 2021 which reads similar to the November 1, 2021 letter. • A radiology report dated June 3, 2021. The report is of the bilateral ankle and provides findings. • MIR dated July 2, 2021 on the lumbar spine and pelvis. • A letter from a vascular specialist (the specialist) dated October 18, 2021. The letter stated that the appellant presents with a significant amount of swelling in his right lower extremity. He does not describe any other problems with his ankle. He has some issues with his back which are improving and is able to get around without too much difficulty. The right ankle is moderately more swollen than the left. There is not significant right ankle deformity but the foot does not line up normally as there is an outward bend. He has pitting edema. His swelling is more orthopedic in nature. For the edema it is recommended that he wears compression socks. Otherwise, he does not require any further investigation from a vascular perspective. • MIR dated July 2, 2021 on the extremity lower bilateral. • MIR dated July 2, 2021 on the chest. • SPARC BC parking permit application dated April 15, 2021.

Evidence at the Hearing At the hearing, the witness (the appellant’s wife), in part, stated the following about the appellant: • He struggles with walking, getting out of a car, getting off the couch, and stairs. • She must physically help him get out of bed and off the couch. • Since he loses his balance, she walks behind him especially when navigating stairs. • He walks indoors/outdoors but only a little. • She does everything for him such as cooking, banking and shopping. During shopping, he must hold on to a shopping cart for balance. She also helps him with medications. • He cannot stand long as his leg starts to shake. • His condition started in 2019. He was admitted to hospital and it was then discovered that he has diabetes, arthritis and problems with his diabetes.

At the hearing, the appellant (via his advocate) reiterated the information submitted prior to the hearing and, in part, stated the following about the appellant: • Not all factors or problems were considered. • The PWD application did not cover all the problems or cover them sufficiently, and the ministry should look at the information wholistically. It did not include the appellant’s sleep apnea, thyroid issues, and diabetes and weight issues (which impacts balance).

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•

Appeal Number 2023-0014 The reports submitted prior to the hearing prov ide information about the severity of his multiple conditions and indicates that he does have a serious impairment.

• The appellant was not able to clearly communicate the struggles he faces regarding his health issues due to limited cognitive ability and literacy. • He uses a desk, walls and door knobs to steady himself. • He faces fatigue, hunger, blurred vision, weight gain and muscle weakness/pain/stiffness due to his thyroid condition. • The ministry noted that the appellant’s wife completes many DLA and always has. However, that is not the point. The point is that the appellant cannot do these things now. He will try but cannot not do them easily. Previously he would help his wife with laundry but now he cannot. • He has a SPARC BC permit due to his disability. When asked, the appellant stated the following: • The orthopedic shoes do not seem to help with balance. • The help provided by the wife is required daily. • Most days he cannot lift 5-15lbs. On a good day, which is about once per month, he can.

At the hearing, the ministry relied on its reconsideration decision. Admissibility of Additional Information A panel may consider evidence that is not part of the record and what the panel considers is reasonably required for a full and fair disclosure of all matters related to the decision under appeal.

The panel found that the information provided prior to the hearing provided additional detail or disclosed information that provides a full and fair disclosure of all matters related to the decision under appeal. The panel has admitted this new information as being in accordance with s. 22(4) of the Employment and Assistance Act. An analysis of each is provided in the panel’s decision. However, the panel placed little weight on this information because it did not speak directly to the legislative requirements. That is, the information did not describe or indicate a diagnosis, prognosis, the severity of the impairment, how the symptoms/findings impact the ability to perform DLA, or the type or frequency of the help required.

The panel found that the information regarding the appellant’s cognitive ability and literacy provided additional detail or disclosed information that provides a full and fair disclosure of all matters related to the decision under appeal. The panel has admitted this new information as being in accordance with s. 22(4) of the Employment and Assistance Act. An analysis of each is provided in the panel’s decision. However, the panel placed little weight on this information as it has not been confirmed by a prescribed professional.

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Appeal Number 2023-0014 Part F – Reasons for Panel Decision The issue on appeal is whether the ministry's reconsideration decision, 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 applicable enactment in the circumstances of the appellant. The ministry found that the evidence does not establish that the appellant has a severe mental or physical impairment and does not establish that DLA are, in the opinion of a prescribed professional, directly and significantly restricted either continuously or periodically for extended periods. Also, as a result of those restrictions, it could not be determined that the appellant requires the significant help or supervision of another person.

The relevant legislation can be found in Appendix A. Panel Decision Severe Impairment In the reconsideration decision, the ministry was not satisfied that the information provided establishes a severe physical or mental impairment. Determining a severe physical or mental impairment requires weighing the evidence provided against the nature of the impairment and its reported functional skill limitations. A diagnosis of a serious medical condition does not in itself determine PWD eligibility or establish a severe impairment. An “impairment” is a medical condition that results in restrictions to a person’s ability to function independently or effectively. To assess the severity of an impairment, the ministry must consider the nature of the impairment and the extent of its impact on daily functioning.

Physical Impairment The appellant argued that due to his multiple medical conditions, he struggles with mobility and physical functioning.

The ministry argued that based on the information provided in the original PWD application and RFR the appellant does not meet the legislative requirements of severe physical impairment.

In its reconsideration decision, the ministry noted the appellant’s physical ability as indicated by the GP in the MR. The ministry concluded that the ability to walk 1-2 blocks and climb 5 steps unaided and lift up to 15lbs is not considered a severe physical impairment. The ministry also noted the discrepancy in the reports of the appellant’s ability to stand as the MR stated that standing causes pain and, in the AR, the GP stated that standing is performed independently. The ministry noted the ability to walk 1 to 2 blocks unaided, climb 5+ steps unaided, and lift 5 to 15 lbs is not considered indicative of a severe impairment of physical functioning. It is noted the ministry considers the ability to lift 5 to 15 lbs as sufficient ability to lift a variety of household and shopping objects. The ministry noted that appellant’s mobility as indicated in the AR; namely that continuous assistance is required and it takes significantly longer to climb stairs and walk outdoors. The ministry noted that the GP did not indicate how much longer than typical it takes to complete these activities. The ministry further notes that the appellant requires continuous assistance from another person with lifting and carrying/holding but can lift 5 to 15 lbs and walk 1 to 2 blocks unaided, suggesting he is able to lift and carry/hold independently within these stated limits. The ministry concluded that the information provided in the PWD application is indicative of a moderate as opposed to severe impairment of physical functioning.

After considering the evidence as noted above, the panel finds that the ministry did reasonably conclude that the information provided demonstrate that the appellant does not have a severe physical impairment of his physical functioning. The panel finds that the ability to walk 1-2 blocks and climb 5 steps unaided and lifting (carrying/holding) up to 15lbs is indicative of a moderate physical impairment. The additional information provided at appeal did not speak the appellant’s physical ability in terms of mobility and

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Appeal Number 2023-0014 physical functioning. The witness provided further information regarding the appellant’s physical ability. However, the panel notes that the legislation requires that the ministry be satisfied that the appellant has a severe impairment. The ministry stated that it relies on the information provided by the prescribed professional to come to this conclusion. When consideration the GP’s evidence, the panel notes that in the MR walking 1-2 blocks and climbing stairs is done independently (i.e. unaided) but in the AR, it is indicated that climbing stairs requires continuous assistance and takes significantly longer to complete which is conflicting information. Furthermore, the GP did not indicate how much longer the appellant takes to climb stairs which the panel deems to be important information. In this case of the appellant, the assessment provided by the GP and additional information failed establish that the appellant suffers from a severe physical impairment.

Given the overall assessments provided by the appellant and medical practitioners, the panel finds that the ministry was reasonable in its determination that the evidence does not support a finding that the appellant suffers from a severe physical impairment and that the legislative criteria outlined in Section 2(2) of the EAPWDA have not been met.

Mental Impairment The appellant did not argue that he has a severe mental impairment and did not provide any evidence to support such a claim.

The ministry argued that based on the assessments provided in the PWD application, a severe impairment of mental functioning has not been established.

In the reconsideration decision, the ministry noted that the GP indicated that the appellant has no difficulties with communication, significant deficits to cognitive or emotional functioning, or impacts to cognitive or emotional functioning. The GP indicated that the appellant’s ability to read and write is satisfactory and ability to speak and hear is good. The GP also noted that all listed tasks under social functioning are performed independently.

The panel finds that the ministry analysis of the evidence was reasonable, and it reasonably concluded that the information provided by the prescribed professional regarding the appellant’s mental, cognitive and emotional functioning does not support a finding of a severe mental impairment. The panel also notes that the GP did not diagnose the appellant with a mental impairment and the appellant did not argue that he suffers from a severe mental impairment.

Given the overall assessments of the appellant’s mental, cognitive and emotional ability and functioning in the PWD application and the lack of any additional information provided at appeal from a prescribed professional, the panel finds that the ministry was reasonable in its determination that the evidence does not support a finding that the appellant suffers from a severe mental impairment and that the legislative criteria outlined in Section 2(2) of the EAPWDA have not been met.

Restrictions in the ability to perform DLA Section 2(2)(b)(i) of the EAPWDA requires that the minister be satisfied that in the opinion of a prescribed professional, a severe mental or physical impairment directly and significantly restricts the appellant’s ability to perform DLA either continuously or periodically for extended periods. While other evidence may be considered for clarification or support, the ministry’s determination as to whether or not it is satisfied that the legislative criteria are met, is dependent upon the evidence from prescribed professionals. The term “directly” means that there must be a causal link between the severe impairment and the restriction. The direct restriction must also be significant. Finally, there is a component related to

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Appeal Number 2023-0014 time or duration – the direct and significant restriction may be either continuous or periodic. If periodic, it must be for extended periods. Any analysis of periodicity must also include consideration of how frequently the activity is restricted. All other things being equal, a restriction that only arises once a year is less likely to be significant than one that occurs several times a week. Accordingly, in circumstances where the evidence indicates that a restriction arises periodically, it is appropriate for the ministry to require evidence of the duration and frequency of the restriction in order to be “satisfied” that this legislative criterion is met.

The appellant argued that due to his multiple medical conditions he is unable to perform his DLA independently.

The ministry argued that it is not satisfied that the information provided establishes that the impairment directly and significantly restricts DLA continuously or periodically for extended periods.

In its reconsideration decision, the ministry noted the restrictions to DLA as noted in the MR. The ministry noted although the GP indicated continuous restrictions to personal self-care and mobility outside the home, the GP also indicated the ability to walk 1 to 2 blocks unaided and being independent with six of eight listed areas of personal care as they are listed in the AR. The ministry acknowledged the need for assistance with bathing, dressing, and housework. However, the GP also indicated the ability to walk 1 to 2 blocks unaided, lift 5 to 15 lbs, and being independent with walking indoors and standing. Therefore, it is difficult to establish why the appellant requires continuous assistance with bathing, dressing, and housework.

The ministry noted that in the AR, the GP indicated that the appellant’s “wife/family always did” with regards to laundry, “wife always did even before ankle issue” with regards to some listed areas of shopping and meals. The GP further wrote “wife always did banking.” The ministry noted although these statements confirm that the wife typically performs these activities, they do not confirm that the appellant is unable to perform the activities.

The ministry found that given this level of physical ability, it is difficult to establish why continuous assistance is required with dressing, bathing, basic housekeeping, going to/from stores, and carrying purchases home. The ministry also noted that the GP did not explain why periodic assistance is required with filling prescriptions and taking medication as directed. As previously noted, in the PWD application there are no impacts to cognitive and emotional functioning.

For the reasons stated above, the ministry concluded that it is difficult to establish significant restrictions to daily living activities based on the assessments of the GP.

The panel finds the ministry’s analysis of the evidence and its conclusion to be reasonable based upon the evidence before it. The panel finds that the evidence does not provide enough information to support a determination that DLA are continuously or periodically restricted for extended periods pursuant to the legislation. For example, in the MR the GP indicated that the appellant is continuously restricted with performing personal care, shopping and mobility outside the home. However, the appellant can walk 1-2 blocks unaided and can lift 5-15 lbs. The GP failed to clearly explain how these activities are restricted despite having moderate mobility or how the appellant’s ankle and foot problems cause the inability to perform these tasks independently. Furthermore, in the AR, the GP indicated that assistance is required with dressing and bathing. However, no information was provided to explain why putting on clothes or sitting in a tub/taking a shower is difficult if the appellant can stand independently.

The panel also notes that there is a discrepancy between the information provided in the SR, from the witness and appellant, compared to that provided by the GP. Though the witness demonstrated the ways

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