Ministry of Social Development and Poverty Reduction

Appeal Number 2022-0309 Part C – Decision Under Appeal The decision under appeal is the Ministry of Social Development and Poverty Reduction (Ministry) reconsideration decision of December 6, 2022, in which the Ministry determined that the Appellant was not eligible for Persons with Disabilities (PWD) designation.

The Ministry determined that the Appellant had reached 18 years of age and that her impairment, in the opinion of a medical practitioner or nurse practitioner, is likely to continue for at least two years.

However, the Ministry determined that the Appellant had not demonstrated that she has a severe mental or physical impairment; that her severe mental or physical impairment, in the opinion of a prescribed professional, significantly restricts her ability to perform daily living activities (DLA) either continuously or periodically for extended periods; and as a result of direct and significant restrictions, she requires help to perform those activities.

The Ministry determined that the Appellant did not meet the criteria for PWD designation as a member of a prescribed class of persons. As there was no information or argument provided by the Appellant regarding alternative grounds for designation, the panel considers this 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) – section 2

EAAT003 (17/08/21) 2

Appeal Number 2022-0309 Part E – Summary of Facts The Appellant submitted a PWD application in August 2022, which consisted of: • A Self Report (SR) completed by the Appellant; • A Medical Report (MR) completed by the Appellant’s general practitioner (GP); and • An Assessor’s Report (AR) completed by a social worker (SW).

In the SR, the Appellant states that her disabling conditions relates to several motor vehicle accidents from 2005 onward. She states that prior to this, she had two serious accidents about one month apart in 2005 and a third in 2010 in which she was a passenger, and from which her back has never recovered. In 2015 she reached a settlement with ICBC for the third accident, and this allowed her to work part-time or for a few hours per day for a number of years. She states that two physical assaults have also caused further harm to her back and ribs. The Appellant states that her back and hips were further impacted in fourth motor vehicle accident in 2020, which has led to her being unable to sit without pain for an hour most days. She reports that she is unable to lift heavy items and hires painters and helpers for assistance with household activities. The Appellant reports being unable to keep a job, struggling financially, and requiring assistance from family, friends, and people she hires. She reports being able to walk on flat surfaces for 25 mins each day, which she employs as a cure for depression and anxiety. She reports forward bending being excruciating, as is sitting for a few hours in a social setting. The Appellant states that housework takes all day because she needs to sit down after small tasks and, while she has tried several medications, activities, treatments and modalities, the only thing that works is to lay down. She reports spending most of her time at home and becoming antisocial. The Appellant states that bending in front of dresser drawers, making her bed, doing dishes, and washing the floor by hand are very painful; she states that she cannot sit at a desk for more than two hours, and sometimes not more than five minutes.

In the MR, the GP provides the following diagnoses: • Lumbar spine arthritis • Degenerative retrolisthesis

The GP assessed the Appellant’s physical functioning in the MR. The GP reports that she is able to: • Walk 4+ blocks unaided; • Climb 5+ steps unaided; • Lift 15-35 lbs.; and • Sit for 1-2 hours.

The GP further reports the Appellant’s impairment restricts her ability to perform daily living activities (DLA) and has indicated that the Appellant requires periodic assistance with daily shopping. The GP comments, in relation to the degree of restriction, that: if she needs to carry heavy bags, she needs assistance. The GP further comments, in relation to the assistance needed, that: she needs help with shopping at times it is [illegible] take long periods or if it is heavy bags she needs to carry. She has pain if she needs to bend down or lift heaving objects or is she needs to sit more than 1-2 hours. The GP reports that the Appellant has no difficulties with communication and no significant deficits with cognitive and emotional function; she has

EAAT003 (17/08/21) 3

Appeal Number 2022-0309 not been prescribed medications that interfere wit h DLA and does not require any aids or prostheses.

In the AR, the SW reports the Appellant lives alone and her impairments include chronic back pain, anxiety, depression, significant childhood trauma arthritic in back and multiple MVAs.

The SW assesses the Appellant’s ability to read and write as “good”, her ability to hear as both satisfactory and poor (some hearing issues, under investigation), and her ability to speak as poor (will avoid due to pain).

With respect to mobility and physical ability, the SW reports the Appellants ability to walk indoors (will stay in room 2 days/month when depressed) and climbing stairs (avoids) as requiring periodic assistance from another person. The SW reports that the Appellant needs continuous assistance from another person or is unable to walk outdoors (after 20 minute walk back pain is worse the next [illegible]), standing (20 min then must rest), and lifting (avoids – 10-15lbs. max). The SW reports that the Appellant is independent with carrying and holding.

The SW has also completed an assessment of the Appellant’s cognitive and emotional functioning (section B4 of the AR), which is to be completed for persons with an identified mental impairment or brain injury. The SW indicates major impacts to emotion; moderate impacts to motivation; minimal impacts to bodily functions, consciousness, impulse control, insight and judgment, attention/concentration, executive, and memory; and no impacts to motor activity, language, and psychotic symptoms.

With respect to DLA, the SW has assessed the Appellant as requiring continuous assistance, or being unable, with respect to 6 of 8 personal care activities, both basic housekeeping activities, all shopping activities, 2 of 4 meals activities, and 1 of 3 transportation activities. The SW has further assessed the Appellant as requiring periodic assistance with 1 personal care activity (grooming), 2 meals activities (meal planning and safe storage of food) and 1 transportation activity (getting in and out of a vehicle). The SW has indicated that the appellant is independently able to complete the remaining personal care activity of diet regulation, all pay rent and bills activities and the transportation activity of using transit schedules and arranging transportation.

The SW has not completed the medications activities assessment, indicating with commentary none prescribed. The SW has provided commentary reflecting the Appellant’s limitations with the DLA tasks described in the AR, the SW has also provided the following additional global commentary in relation to DLA: 2 days/month depression severely limits this woman’s ability to function; daily chronic back pain; daily pain; depression from childhood trauma can limit activities of daily living.

With respect to social functioning, which is only to be completed for persons with an identified mental impairment or brain injury, the SW reports that the Appellant is independently able to develop and maintain relationships and requires continuous support with all other areas of social functioning, which include: appropriate social decisions (avoid socializing due to chronic pain); interacting appropriately with others (pain interferes with ability to socialize appropriately); dealing with unexpected demands (will avoid); and securing assistance from others (will not

EAAT003 (17/08/21) 4

Appeal Number 2022-0309 ask). The SW indicates that the Appellant has ma rginal functioning in her mediate and extended social networks.

Regarding assistance, the SW has not indicated whether the Appellant receives assistance from other people or devices and has indicated she does not receive assistance from support animals. The SW further indicates that the Appellant requires a floor to ceiling pole, shower & toilet grab bars.

The Appellant also provided the Ministry with an Independent Medical Report, which was prepared by an orthopedic pain management specialist in 2015 in relation to the Appellant’s 2010 motor vehicle accident and subsequent ICBC claim.

The Ministry, in a decision dated September 14, 2022, determined that the Appellant was not eligible for PWD designation because she had not met all the required criteria set out in the legislation.

The Appellant submitted a Request for Reconsideration dated October 24, 2022. On November 3, 2022, the Appellant requested an extension of time. This request was approved, and the extension was granted. It does not appear that additional information was provided.

The Ministry, in a reconsideration decision dated December 6, 2022, determined that the Appellant was not eligible for PWD designation because she had not met all the required criteria set out in the legislation. This is the decision at issue in the current appeal.

Additional information before this panel on appeal consisted of the following: Notice of Appeal The Appellant submitted a Notice of Appeal dated December 9, 2022, to the Employment and Assistance Appeal Tribunal. In the Notice of Appeal, the Appellant selected a video-conference hearing and provided the following reasons for appeal: I did not have appropriate time to get all my information and its because my doctor is away out of country until [date omitted].

Appeal Submissions By way of written appeal submissions, the Appellant provided a 1-page letter from her GP. In this letter the GP explained that they had a telephone conversation with the Appellant about the AR portion of the PWD application. The GP noted that the Appellant was able to converse without assistance or repetition. The GP also noted that the Appellant reported that her depression has worsened since the pandemic, and this impairs her personal hygiene where “she would just stay in bed” “[a] few days of the month”. The GP reports that the Appellant is independent with toileting and feeding herself but does not want to eat on the days her depression is worse. The GP reports that the Appellant is not on medication for depression but has agreed to try medication. The GP further reports that the Appellant can walk unaided without assistive devices and uses over the counter medication as needed for low back pain. The GP also states that the Appellant needs to brace herself, at times, when getting up from a chair and tries to avoiding bending down as she feels that it increases her pain. Finally, the GP reports that the Appellant can stand unaided but needs to take breaks.

EAAT003 (17/08/21) 5

Appeal Number 2022-0309 The appeal panel also received oral submissions from both the Appellant and her mother at a video-conference hearing. At the hearing, the Appellant’s mother explained that her daughter suffered childhood abuse and that the pain from her car accident injuries has worsened, causing even deeper depressive episodes. The Appellant’s mother is elderly and helps her daughter when she can. This is limited to once a week or once every two weeks, as weather conditions impact her ability to travel to the Appellant. When she can visit, the Appellant’s mother keeps her company and assists with cleaning.

The Appellant explained her limitations in daily activities, primarily because of depression that overwhelms her. The depression leaves her without energy and unable to function at all some days. The Appellant described ongoing pain resulting from several car accidents over the years, and said it is worse some days than others. The pain keeps her up at night and she does not like to take medication of any kind, other than regular strength Advil and Tylenol. When asked if she cannot take prescribed medication(s) for some medical reason or whether she does not agree with taking prescription medication, the Appellant said she does not agree with taking prescription medication. She said her doctor does not seem to understand how bad she really feels and how much pain she is really in and that she does not agree with their assessment.

At the hearing, the Ministry representative summarized and explained the Ministry’s reconsideration decision. In addition, the Ministry representative explained that although the SW who completed the AR is a prescribed professional under the legislation, the AR is intended to be completed by a prescribed professional having a history of contact and recent experience with the applicant. The Appellant and SW had met for the first time the day the SW filled out the AR. As a result, where the information in the AR and MR were not consistent, the Ministry relied more heavily on the information from the MR when assessing the degree of restriction to physical functioning and daily living activities.

Admissibility The panel finds that the information provided in the Appellant’s Notice of Appeal, written appeal submissions, and oral statements at the hearing is admissible in accordance with section 22(4)(b) of the Employment and Assistance Act. The panel finds that the information provided by the Appellant relates to the medical conditions described in the PWD application and is accompanied by her arguments about why this information should have resulted in approval of her PWD application.

The panel finds the Ministry’s submission does not require an admissibility determination as there is no new or additional information provided by the Ministry. The panel finds that the information provided by the Ministry representative consisted only of explanation of information previously provided in the reconsideration decision.

EAAT003 (17/08/21) 6

Appeal Number 2022-0309 Part F – Reasons for Panel Decision The issue in this appeal is whether the Ministry’s reconsideration decision, in which the Ministry determined that the Appellant did not meet three of five statutory requirements of Section 2 of the EAPWDA for PWD designation, is reasonably supported by the evidence or is a reasonable application of the legislation in the circumstances of the Appellant.

Specifically, the Ministry determined that the information provided by the Appellant did not establish that: • the Appellant has a severe mental or physical impairment; • the Appellant’s severe mental or physical impairment, in the opinion of a prescribed professional, directly and significantly restricts her ability to perform daily living activities (DLA) either continuously or periodically for extended periods; and • as a result of those restrictions, she requires significant help or supervision of another person to perform those activities.

Severity of impairment The legislation requires that for PWD designation, the minister must be “satisfied” that the person has a severe mental or physical impairment. The legislation makes it clear that the determination of severity is at the discretion of the minister, considering all the evidence, including that of the Appellant. Diagnosis of a serious medical condition or the identification of mental or physical deficits does not in itself determine severity of impairment.

Severity of physical impairment In the reconsideration decision, the Ministry determined the Appellant does not have a severe physical impairment. In making this determination, the Ministry first observed that the information in the MR, completed by the GP, and that in the AR, completed by the SW, is not consistent and noted the difficulty these inconsistencies created with respect to understanding the Appellant’s impairments, the impacts to DLA and consequent help required. The Ministry further observed that the AR was completed by a SW who met the Appellant for the first time to complete the AR while the GP had known the Appellant since 2018 and met with her 11 or more times in the past 12 months. The Ministry explained that, for this reason, they would place more emphasis on the GP’s assessments. In assessing physical impairment, the Ministry first noted that the diagnosis of a serious medical condition does not establish a severe impairment. The Ministry went on to note that the supplemental medical report submitted is from 2015 and does not speak to the Appellant’s current situation. For this reason, the Ministry placed more weight on the MR in its reconsideration assessment. The Ministry considered the GP’s assessments relating to the Appellant’s functional skills and mobility and physical ability. The Ministry explained that the GP had described the Appellant as able to walk 4+ blocks, climb 5+ stairs unaided, lift 15 to 35 lbs., and remain seated for 1 to 2 hours, and found this not indicative of a severe physical impairment. The Ministry considered the Appellant’s SR statements that she is restricted with shopping household activities, lifting, walking alongside the GP’s assessments and noted the inconsistencies between these two accounts. The Ministry also considered the MR and AR assessments alongside one another and noted a number of inconsistencies in the information provided. As noted previously, the Ministry approached these inconsistencies by preferring the information provided by the GP who has known the Appellant significantly longer

EAAT003 (17/08/21) 7

Appeal Number 2022-0309 than the SW who met her for the first time when c ompleting the AR. In its conclusion, the Ministry acknowledged the Appellant’s pain impacts her physical functioning but found the information in the PWD application did not establish a severe impairment to physical functioning.

The panel finds that the Ministry’s determination was reasonable. The panel notes the Ministry’s approach to assessing severity in light of the diagnoses provided, nature of the impairment and extent of the impacts on functioning as evidenced by restrictions/limitations to functioning, ability to perform DLA and help required. Given the focus on restrictions and help required in the legislation, the panel finds the Ministry’s approach to assessment at reconsideration and reaching conclusions to be reasonable.

The panel also finds the Ministry’s decision to place greater emphasis on the MR than the AR, where the information provided was inconsistent, to be reasonable. In making this finding the panel has considered the Appellant’s argument that the GP is not a compassionate person who understands what she is going through and her accompanying comment that, for this reason, she does not tell the GP everything. The panel appreciates that many people experience difficulty in finding a GP and recognizes that the Appellant, and others, may end up with a GP with whom they are not entirely comfortable. Nonetheless, the Appellant’s GP is the person who has provided professional medical assessments and the panel finds the Ministry’s reliance on the information provided by the GP in the PWD application to reasonable.

The panel notes that the GP’s assessments of the Appellant’s functional capacity and mobility and physical ability assessments in the MR indicate that the Appellant is primarily independent, with some need for assistance with heavy items. The panel also considered the information provided after reconsideration as it related to physical impairments and finds that it does not add additional detail in relation to the Appellant’s ability to function independently, effectively, appropriately or for a reasonable duration. The GP’s letter, provided on appeal, indicates that the Appellant can walk unaided without assistive devices and uses over the counter medication as needed for low back pain. The GP also states that the Appellant needs to brace herself, at times, when getting up from a chair and tries to avoiding bending down as she feels that it increases her pain. Finally, the GP reports that the Appellant can stand unaided but needs to take breaks. The panel finds this additional information, considered alongside the information at reconsideration and the Appellant’s submissions at the hearing, does not establish a severe physical impairment.

The panel finds that the Ministry’s determination, that a severe physical impairment has not been established, is reasonably supported by the evidence.

Severity of mental impairment In the reconsideration decision, the Ministry determined that the information provided does not establish a severe mental impairment. The Ministry noted that the GP has not reported, or diagnosed, any mental impairment or brain injury. The Ministry noted that sections 3B & C of the AR are only to be completed by the assessor, in this case the SW, where an individual has an identified mental impairment or brain injury and where an impairment or injury has not been

EAAT003 (17/08/21) 8

Appeal Number 2022-0309 identified these sections will be considered by the Ministry alongside section 2D of the MR. In section 2D of the MR, the Ministry notes, the GP has indicated the Appellant has no difficulties with communication and no significant deficits to cognitive and emotional function and in section 2E of the MR, the GP indicates not restrictions to social function. The Ministry observed that the SW has indicated several impacts to cognitive, social, and emotional function as well as mental health conditions and mental impairments, while the GP has indicated no deficits in these areas and has not diagnosed a mental health condition or brain injury. The Ministry again explained that is placed more weight on the assessment provided by the GP, as compared to the SW who had met the Appellant for the first time when completing the AR. The Ministry concluded that a severe impairment of mental functioning was not established by the evidence provided.

The panel finds that the Ministry’s determination that a severe mental impairment has not been established was also reasonably supported by the evidence and a reasonable application of the legislation.

In assessing the Ministry’s conclusions, the panel finds the Ministry’s decision to prefer the GP’s information to be reasonable and notes GP’s assessments in the MR indicate no deficits with respect to cognitive and emotional functioning, in contrast to the reports of the SW, and to some extent those of the Appellant. The panel notes the GP’s assessments relating to cognitive and decision-making activities indicate that the Appellant is independent in all areas.

The panel also notes that the Appellant’s appeal submission, a letter from the GP, does refer to depression. However, there is little accompanying explanation as to the nature or degree of impairment related to depression. The GP has reported that the Appellant’s personal hygiene and motivation to eat are sometimes impaired by her depression and reports that this occurs a few days per month. The panel has also considered the Appellant’s statements that she does not agree with the GP’s assessment in this letter or the MR and that she suffers from depression all the time, not just a few days per month. The panel has not interpreted the GP’s letter to mean that the Appellant suffers from depression only a few days per month.

The panel also notes that the Appellant seems to disagree with several aspects of the conflicting assessments provided by the GP and the SW. The panel finds the Appellant’s statements, both in the SR and at the hearing, do not satisfactorily resolve the conflicting accounts such that the panel is able to form a clear picture of her mental impairments and associated restrictions to function. In the context of significant differences between the accounts of the Appellant’s impairments, the panel finds the Ministry’s approach to preferring the information provided by the GP - who is able to provide diagnoses; has known the Appellant significantly longer; and has interacted with the Appellant in a medical context on multiple occasions – to be a reasonable approach.

The panel has also considered the information provided after reconsideration as it related to mental impairments and finds that it does not add sufficient additional detail, in relation to the Appellant’s ability to function independently, effectively, appropriately or for a reasonable duration, to render the reconsideration conclusions on this criterion unreasonable. The panel finds that the Ministry’s determination, that a severe mental impairment has not been established, is reasonably supported by the evidence.

EAAT003 (17/08/21) 9