Ministry of Social Development and Poverty Reduction

Appeal Number 2023-0047 Part C – Decision Under Appeal The decision under appeal is the Ministry of Social Development and Poverty Reduction (the Ministry) decision dated February 26, 2023 denying persons with disability (PWD) designation.

The Ministry found the Appellant met the age (over 18) and duration (likely to last more than two years) requirements. However, the Ministry found the Appellant did not meet the requirements for:  severe mental or physical impairment  significant restriction on the ability to perform daily living activities  needing significant help to perform daily living activities.

The Ministry found the Appellant was not one of the prescribed classes of persons eligible for PWD on alternative grounds. As there was no information or argument on this point, the Panel considers it not to be an issue in this appeal.

Part D – Relevant Legislation Employment and Assistance for Persons with Disabilities Act (Act), s. 2 Employment and Assistance for Persons with Disabilities Regulation (Regulation), s. 2 Employment and Assistance Act (EAA), s. 22(4)

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Appeal Number 2023-0047 Part E – Summary of Facts Evidence Before the Ministry at Reconsideration:

The information the Ministry had at the time of the decision included:  the Medical Report and Assessor Report completed by the Appellant’s Family Physician (“Doctor”)  the Appellant’s Self Report  MRI report dated October 26, 2022.

Medical Report: The Appellant has been the Doctor’s patient since December 2018 and has seen the Doctor between 2 and 10 times in the past 12 months.

Diagnosis: The Doctor diagnoses cervical spinal stenosis and multilevel degenerative disk disease, longstanding with progressive symptoms.

Health History: The Doctor comments that the spinal stenosis is severe and causes constant pain and weakness in the upper arms. They indicate that the Appellant has been prescribed Gabapentin for nerve pain which can cause drowsiness or unsteadiness and interfere with her ability to perform daily living activities. The Doctor states that the Appellant does not need any prostheses or aids for her impairment.

Functional Skills: The Doctor indicates that the Appellant can walk 4+ blocks unaided on a flat surface, climb 5+ stairs unaided, but indicates “no lifting” and able to remain seated for less than 1 hour “then needs to move for comfort.” They note no significant deficits with cognitive and emotional function.

Additional Comments: The Doctor states that the Appellant has tried to continue to work despite symptoms, and additional CT findings “require work-up and referrals – carotid stenosis.”

Updated Medical Report (January 23, 2023): The Doctor updated comments in a copy of the first Medical Report. They added the diagnosis of vertigo (onset January 2023) and changed the answer to the question of whether the Appellant requires any prosthesis or aids for her impairment, indicating that the Appellant has told the Doctor that she uses an aid for bathing.

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Assessor Report:

Appeal Number 2023-0047

Mental or Physical Impairment: The Doctor identifies the Appellant’s impairment as chronic pain from severe spinal stenosis and post-concussive syndrome.

Mobility and Physical Ability: The Doctor indicates that the Appellant is independent walking indoors and outdoors, climbing stairs and standing. They indicate the Appellant needs continuous assistance from another person or is unable to lift, carry and hold, explaining that the Appellant is “unable to lift/carry anything [over] 5 lbs. or repetitively due to pain and progressive weakness from spinal stenosis.”

Daily Living Activities: The Doctor indicates that the Appellant is independent in all aspects of personal care, paying rent and bills, medications and transportation listed on the form. They indicate that the Appellant needs continuous assistance or is unable to do laundry, noting “pulling/lifting impacted.” They also note she needs continuous assistance or is unable to carry purchases home, because she needs help to carry bags. The Doctor indicates periodic assistance needed for basic housekeeping. They also indicate periodic assistance needed for cooking, noting “may require assistance [due to] pain.” The Doctor comments: “Periodic pain and progressive weakness impacts [sic] ability to do IADL’s [Instrumental Activities of Daily Living] requiring lifting/carrying/moving items etc.”

Assistance Provided for Applicant: The Doctor indicates that family and friends provide help required for daily living activities.

Updated Assessor Report (January 23, 2023): The Doctor changed the original assessment for bathing from “independent” to “uses assistive device”, explaining that the Appellant uses grab bars in the tub and is unable to shower.

The Doctor adds: Patient is unable to work indefinitely due to her physical disabilities. Severe spinal stenosis causing weakness and pain and arthritis in hands and back. Has attempted to continue to work despite her physical disabilities but is no longer able to do this. I do not feel there is a realistic chance of her ever being able to work in the future due to the progressive nature of her illness. I fully support this application for PWD.

MRI Report, October 26, 2022: MRI report indicates history of progressive worsening imbalance, noting advanced degenerative changes in the cervical spine, moderate C6-7 spinal stenosis/cord compression and multilevel foraminal stenosis from C2-3 to C7-T1, severe at many of the levels.

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Self Report:

Appeal Number 2023-0047

The Appellant says that she has severe osteoarthritis that has been getting worse over the last 4 to 5 years, and stenosis in her neck and back.

Describing the way her disability affects her life and her ability to take care of herself, the Appellant says:  she cannot stand in the shower long because she gets very dizzy, and she cannot bend over at all  she cannot hold her hands over her head to wash her hair, so she washes her hair under the tub faucet  she has added a support to the side of the tub so she can get in and out safely  she struggles with motivation to maintain basic hygiene  she has to get out of bed very slowly because of dizziness when she changes position  while she can dress herself, it takes much longer, and she has to take breaks  she struggles to open jars, bottles, and cans, and has to use warm rags or bang them on the counter to open them  she doesn’t have the energy or motivation to cook, and dizziness causes her to have little appetite  she eats pre-prepared meals  where she used to be able to clean her house in an hour, now it takes her several hours, and she has to take breaks to complete a task  she struggles to lift heavy items or reach anything over her head  she cannot carry all her groceries, and unless her son can help her, she does “smaller, more regular shops”  she has started to walk sideways, which is why she was sent for an MRI recently, and this makes it difficult to walk in the community  she does not feel safe walking up and down stairs, and she can only manage a few stairs  she gets dizzy if she bends down to pick up something from the floor  she does not feel comfortable driving  she had a fall in May 2022, with a concussion and brain bleed, and fears falling again  her mental health has suffered because she compares herself with the person she used to be; she feels useless, and some days she does not want to get out of bed  she gets help from her son and his spouse, as well as her doctors  she would benefit from financial support because she cannot work  she might get a walking stick or cane to help her moving around her community, and she would like to see a counsellor for her mental health.

Request for Reconsideration: The Appellant adds to the information in the Self Report:  her condition has worsened, and she has vertigo all day, every day  she can only walk one block  her left shoulder locks which prevents her from picking up items

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Appeal Number 2023-0047  she must do very small loads of washing, carrying a few items of clothing at a time, because she cannot lift a basket  she is affected emotionally by the loss of function and inability to support herself, and feels “like a zombie”  her son supports her, doing things like hanging pictures and carrying groceries to and from the car  she avoids cooking in large portions because she cannot lift heavy pots – her son or their spouse would have to come and lift pots  she goes to her son’s house for dinner so she can avoid preparing meals.

Additional Evidence: The Appellant provided a CT Report dated September 13, 2022 and a Radiology Report dated February 5, 2023.

CT Report: The report indicates cervical stenosis and “multilevel degenerative changes throughout the spine, unchanged from previous,” with recommendations for further consultation with specialists.

Radiology Report: Following a fall, with resulting neck pain, x-rays showed no obvious fractures, but marked multilevel degenerative changes.

Appellant: At the hearing, the Appellant said:  she worked as a chef for 28 years  her right hand is deformed from arthritis, and her fingers are crooked  she cannot turn her head to the left at all  she can clean her home, and run the vacuum, but she takes her time to do it  her son and their spouse do the laundry for her  she does not have help from others to cook, but goes to her family for bigger meals  she cannot work, and all her doctors, including three neurologists, agree that she cannot work any more  she is in desperate financial need.

Admissibility of Additional Evidence: The Ministry did not object to the additional reports, or to the additional oral evidence of the Appellant at the hearing.

The additional Radiology and CT Reports provide information about the Appellant’s medical conditions. The Appellant’s oral evidence provides additional detail about her physical condition

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Appeal Number 2023-0047 and her circumstances. The Panel finds that the additional evidence is reasonably required for the full and fair disclosure of all matters in the appeal. Therefore, the Panel finds that the additional evidence is admissible under EAA s. 22(4).

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Part F – Reasons for Panel Decision

Appeal Number 2023-0047

The issue on appeal is whether the Ministry’s decision denying the Appellant PWD designation is reasonably supported by the evidence or is a reasonable application of the legislation. The Ministry found the Appellant met the age (over 18) and duration (likely to last more than two years) requirements. However, the Ministry found the Appellant did not meet the requirements for:  severe mental or physical impairment  significant restriction on the ability to perform daily living activities  needing significant help to perform daily living activities.

Appellant’s Position: The Appellant says that she has severe mental and physical impairments as a result of severe cervical stenosis and arthritis. She says that she is in constant pain and needs help from her family to do any activities that require lifting or carrying more than 5 pounds or reaching over head. Her condition is getting worse. She is unable to work and does not have the financial resources to support herself. Her inability to work has left her feeling hopeless and useless.

Ministry Position: The Ministry maintains that the Appellant’s physical impairment is moderate, rather than severe. They argue that there is no diagnosis of a mental health condition to indicate a severe mental impairment. The Ministry also says that the information provided does not indicate direct and significant restrictions in daily living activities. Therefore, the Ministry says it also cannot determine that the Appellant needs significant help with restricted activities.

Panel Decision: PWD Designation – Generally The legislation provides the Ministry with the discretion to designate someone as a PWD if the requirements are met. In the Panel’s view, PWD designation is for persons who have significant difficulty in performing regular self-care activities. If the inability to work is the major reason for applying for PWD designation, the Panel encourages the applicant to speak to the Ministry about other potential programs such as Persons with Persistent Multiple Barriers to Employment (PPMB) or explore federal government programs such as Canada Pension Plan disability benefits.

Some requirements for PWD designation must have an opinion from a professional, and it is reasonable to place significant weight on these opinions. The application form includes a Self Report. It is also appropriate to place significant weight on the Self Report and evidence from the Appellant, unless there is a legitimate reason not to do so.

The Panel will review the reasonableness of the Minister’s determinations and exercise of discretion.

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Appeal Number 2023-0047 Severe Mental or Physical Impairment “Severe” and “impairment” are not defined in the legislation. The Ministry considers the extent of any impact on daily functioning as shown by limitations with or restrictions on physical abilities and/or mental functions. The Panel finds that an assessment of severity based on physical and mental functioning including any restrictions is a reasonable application of the legislation.

A medical practitioner’s description of a condition as “severe” is not determinative. The Minister must make this determination considering the relevant evidence and legal principles.

1. Physical Impairment: The Doctor describes the Appellant’s impairment arising from severe spinal stenosis, causing weakness and pain in her hands and back. Medication for nerve pain causes drowsiness and unsteadiness. Since the reconsideration decision, the Appellant has also been diagnosed with vertigo. The Doctor says that the Appellant is unable to lift anything over 5 pounds. The Appellant confirms that she cannot lift or carry items weighing more than that and cannot reach over her head. She is limited in her ability to bathe, uses a bath aid to get in and out of the tub, and cannot stand to take a shower.

The Doctor has updated the Medical and Assessor Reports but has not changed the information about the Appellant’s ability to function, which includes being able to walk 4+ blocks and climb 5+ stairs unaided. The Doctor indicates the Appellant is independent walking indoors and outdoors, climbing stairs and standing. Limitations are related to lifting, carrying, and holding, and remaining seated for more than one hour.

In their comments, the Doctor focuses mainly on the Appellant’s ability to work, as did the Appellant. While people often equate disability with the ability to work, the legislation relates PWD designation to the ability to perform regular self care activities. The Appellant has serious medical conditions that prevent her from working. However, as noted above, the ability to work is not one of the considerations for PWD.

The Appellant has described greater limitations than those set out in the Medical and Assessor Reports, such as being able to walk only one block, and walking sideways because of vertigo. The difference may relate to the progressive nature of the Appellant’s condition. However, when the Doctor has not confirmed the same limitations, and has given a different opinion in their reports, it is reasonable for the Ministry to place greater weight on the Doctor’s opinion.

The Panel finds that the Ministry was reasonable in its determination that, based on the information in the Doctor’s reports, the Appellant’s physical impairment is moderate rather than severe.

2. Mental Impairment: The Appellant has described lack of motivation, feeling useless and not wanting to get out of bed, because of her physical symptoms and limitations. However, the Doctor has not diagnosed a mental health condition, and has not identified any deficits in cognitive         EAAT003 (17/08/21) 9

Appeal Number 2023-0047 and emotional functioning. Therefore, the Panel finds that the Ministry was reasonable in its determination that the information provided does not indicate a severe mental impairment.

Restrictions to Daily Living Activities (Activities): A prescribed professional must provide an opinion that the applicant’s impairment restricts the ability to perform the daily living activities (“Activities”) listed in the legislation. At least two Activities must be restricted in a way that meets the requirements. Not all Activities, or even the majority, need to be restricted.

The restrictions to Activities must be significant and caused by the impairment. This means that the restriction must be to a great extent and that not being able to do the Activities without a lot of help or support will have a large impact on the person’s life.   The restrictions also must be continuous or periodic. Continuous means the activity is generally restricted all the time. A periodic restriction must be for extended periods meaning frequent or for longer periods of time. For example, the activity is restricted most days of the week, or for the whole day on the days that the person cannot do the activity without help or support. To figure out if a periodic restriction is for extended periods, it is reasonable to look for information on the duration or frequency of the restriction.    The Activities that are considered are listed in the Regulation. The Medical Report and Assessor Report also have activities that are listed, and though they do not match the list in the Regulation exactly, they generally cover the same activities. The Medical Report and Assessor Report provide the professional with an opportunity to provide additional details on the applicant’s restrictions. The inability to work and financial need are not listed as Activities and are only relevant to the extent that they impact listed Activities.

The Doctor indicates that the Appellant is restricted in lifting, carrying, and holding, which impact her ability to perform Activities. However, the Doctor also indicates that the Appellant is independent in moving about indoors and outdoors, and performing personal hygiene and self care, although the Appellant uses a grab bar in the tub. They indicate some limitations in:  performing housework: states the Appellant needs periodic assistance, no explanation of the type of help, frequency or duration  preparing meals: states the Appellant may require periodic assistance due to pain, no explanation of the type of help, frequency or duration  shopping for personal needs: states the Appellant needs continuous assistance to carry bags.

The Appellant describes being unable to carry a laundry basket, or more than a few items of clothing, when doing laundry. She explains that, unless her son can take her to the store and help carry purchases, she must make more frequent trips for smaller amounts of groceries. Her son and their spouse also do laundry for her because she cannot carry a basket of clothes. The Appellant says that she can keep her home clean, although she takes longer to do the housework, and she cannot reach over her head.

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Appeal Number 2023-0047

The Panel finds that the information provided by the Doctor does not confirm direct and significant restrictions to the Appellant’s ability to perform Activities. While the Doctor and the Appellant focus on the Appellant’s ability to work, the legislation requires evidence of restriction in the Activities listed in the legislation.

The Panel notes that the Appellant describes greater restrictions than the Doctor has indicated in the Medical and Assessor Reports, such as increasing vertigo, and being unable to walk more than one block. Although the Doctor updated the Medical and Assessor Reports to confirm that the Appellant uses a grab bar when bathing, the Doctor did not give an updated opinion about changes in function. The Panel notes the Ministry’s comment at the hearing that the Reports do not reflect the Appellant’s evidence at the hearing. The Ministry has suggested that the Appellant discuss Activities with the Doctor, for an accurate report of the Appellant’s current restrictions.

The Panel finds that the Ministry was reasonable in its determination that the limitations described in the Medical and Assessor Reports did not indicate a significant overall restriction in the Appellant’s ability to perform Activities.

Help Required: A prescribed professional must provide an opinion that the person needs help to perform the restricted Activities. Help means using an assistive device, the significant help or supervision of another person, or using an assistance animal to perform the restricted Activities. An assistive device is something designed to let the person perform restricted Activities.

As the Panel has found that the Ministry was reasonable in determining that the Appellant was not directly and significantly restricted in her ability to perform Activities, the Panel finds that the Ministry was also reasonable in determining that it could not find that the Appellant needs help to perform those Activities.

Conclusion: The Panel finds that the Ministry’s decision to deny the Appellant PWD designation was reasonably supported by the evidence. The Panel confirms the reconsideration decision. The Appellant is not successful in the appeal.

EAAT003 (17/08/21)

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Appeal Number 2023-0047 Schedule – Relevant Legislation

Employment and Assistance for Persons with Disabilities Act Persons with disabilities s. 2 (1) In this section: "assistive device" means a device designed to enable a person to perform a daily living activity that, because of a severe mental or physical impairment, the person is unable to perform;

"daily living activity" has the prescribed meaning; "prescribed professional" has the prescribed meaning. (2) The minister may designate a person who has reached 18 years of age as a person with disabilities for the purposes of this Act if the minister is satisfied that the person is in a prescribed class of persons or that the person has a severe mental or physical impairment that

(a) in the opinion of a medical practitioner or nurse practitioner is likely to continue for at least 2 years, and

(b) in the opinion of a prescribed professional (i) directly and significantly restricts the person's ability to perform daily living activities either

(A) continuously, or (B) periodically for extended periods, and (ii) as a result of those restrictions, the person requires help to perform those activities. (3) For the purposes of subsection (2), (a) a person who has a severe mental impairment includes a person with a mental disorder, and (b) a person requires help in relation to a daily living activity if, in order to perform it, the person requires