Ministry of Social Development and Poverty Reduction

Appeal Number 2023-0073 Part C – Decision Under Appeal The decision under appeal is the Ministry of Social Development and Poverty Reduction (the Ministry) decision dated March 6, 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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Part E – Summary of Facts

Appeal Number 2023-0073

Evidence Before the Ministry at Reconsideration: The information the Ministry had at the time of the decision included: • The Appellant’s Self-Report dated September 11, 2022 • The Medical and Assessor Reports dated December 12, 2022, completed by a General Practitioner (“Doctor”) • Letter from the Appellant to the Ministry, dated February 19, 2023 • Weekly updates written by the Appellant to his doctors, from May 9 to June 27, 2022 • Letter from the Doctor to the Ministry, February 19, 2023

Medical Report: The Appellant has been a patient of the Doctor for more than ten years and has seen the Doctor eleven or more times in the past twelve months.

Diagnosis: The Doctor diagnoses Type I diabetes mellitis (onset 1987), severe osteoporosis with lower back pain (onset 2015), COPD (onset 2018) and major depressive disorder (onset 2012).

Health History: The Doctor states: • The Appellant’s diabetes is complicated by gastroparesis causing recurrent vomiting and difficulty regulating blood sugars • Osteoporosis involves multiple spinal fractures and severe lower back pain requiring opiate analgesia continually • The Appellant’s COPD is mild, and he is a non-smoker of cigarettes • The Appellant has recurrent trigger fingers requiring cortisone injections • Major depressive disorder with anxiety requires treatment with medication • The Appellant has been prescribed codeine, which interferes with his ability to perform daily living activities.

Functional Skills: The Doctor states that the Appellant can walk 1 to 2 blocks, climb 5+ steps, lift 2 to 7 kg., and remain seated less than 1 hour. They indicate significant deficits in cognitive and emotional functioning in the areas of emotional disturbance, motivation and attention or sustained concentration.

Assessor Report: Mental or Physical Impairment: The Doctor states that chronic severe back pain impacts the Appellant’s ability to manage daily living activities.

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Appeal Number 2023-0073 Mobility and Physical Ability: The Doctor indicates that the appellant needs periodic assistance from another person and takes significantly longer than typical for walking outdoors, climbing stairs, standing, lifting, carrying, and holding. They explain that the need for assistance or the additional time depends on the distance or the number of stairs, how long the Appellant must stand, or the weight of an item.

Cognitive and Emotional Functioning: The Doctor indicates that the Appellant’s mental impairment has a moderate impact on bodily functions, emotion, attention/concentration, motivation, and motor activity.

Daily Living Activities: The Doctor indicates that the Appellant needs periodic assistance with laundry and basic housekeeping, going to and from stores and carrying purchases home. They state that sometimes the Appellant needs continuous family support for basic housekeeping. They state that the Appellant can take significantly longer than typical for those activities, depending on his pain level. They indicate that the appellant also needs periodic assistance to use public transit, depending how far he must walk to get to and from transit.

The Doctor indicates that the Appellant needs periodic support or supervision to deal appropriately with unexpected demands “depending on physical requirements of the demand.” They indicate marginal functioning with immediate and extended social networks.

Assistance Provided for Applicant: The Doctor indicates that family provides the help required for daily living activities, and the Appellant uses a cane.

Self Report: The Appellant describes his disability as: • Type 1 diabetic • Diabetic gastroparesis with nausea, vomiting and intense acid reflux • Enlarged left ventricle, which leaves him often dizzy, weakened and “less physically able” • Premature osteoporosis with chronic pain 24 hours a day, “fracture prone (6 spinal, 3 rib) ongoing” and decreased bone density o Fractures can occur with no trauma as the cause o He has general chronic bone pain as well as pain from the bones that were fractured • Chronic fatigue due to other chronic illnesses and symptoms.

The Appellant explains that, as a result of all his chronic conditions, he is not able to be as active as he would wish. He states: • He works shifts that last between 2 and 4 hours, 2 to 5 times a week • It is a challenge to deal with pain during his shift, and at the end of a shift, especially the longer 4 hour shift, he is in intense pain • Sleeping or remaining in any position for an extended time is extremely painful

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Appeal Number 2023-0073 • He has “extreme, intense pain 24/7” • He has not fallen due to dizziness and fatigue, but “there have been many close calls.”

Appellant’s Letter to the Ministry, February 19, 2023, and enclosures: The Appellant explains: • Gastroparesis does not severely affect his ability to work except when he is having a flare up of that condition • Osteoporosis and related fractures severely impact his ability to work • He often has to leave work early due to extreme pain, and he is only able to complete a 4 hour shift due to willpower to work through the pain • Pain medication “does give a baseline to function normally” but he has been on opioid medication for more than 10 years and has a high tolerance • He can walk unaided for a fair distance because he pushes himself to continue despite pain, but walking is the only basic action that is not severely impacted • Doing any other activity, such as sitting, lying down, climbing stairs, or lifting, for an extended period, causes intense pain • He also has intense pain with walking, but it happens at a slower rate than when he does more sedentary activities • He does not do any lifting at work because he could only lift between 5 and 10 pounds, which is about 1/5 of what his co-workers can lift • His employer has known his family for many years, so they accommodate his disability, letting him end his shift early if he is in pain, and excusing him from duties such as lifting and carrying boxes of stock • He often does not have enough money to pay rent and is fortunate to be able to live with a parent.

The Appellant encloses weekly updates from May and June 2022, sent to his doctors when he was monitoring his condition during a trial of discontinuing opioid pain medication. He also encloses work schedule calendars, showing hours worked per shift, from May 2022 to January 2023.

Doctor’s Letter to the Ministry, February 19, 2023: The Doctor states that, in their opinion, the Appellant’s illnesses “have left him permanently disabled and his situation will continue to deteriorate with resulting increasingly more profound disabilities, as he ages.” They explain that the Appellant: • Has insulin-dependent brittle diabetes, “the impact of which has been very severe on his health” • Has frequent visits to Emergency due to protracted vomiting from diabetic gastroparesis • Must spend large parts of each day managing his diabetes • Has had multiple vertebral compression fractures due to very severe osteoarthritis, resulting in chronic pain in his back that is relieved only by opiates • Is not able to stand long enough to do his previous work as a cinema attendant or computer animator

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Appeal Number 2023-0073 • Takes “significantly longer than usual to wa lk any specific distance and significantly longer than usual to do the activities of daily living” • Has impaired concentration because of codeine, which makes him disabled for work requiring “appropriate attention to specific tasks.”

Additional Evidence: Appellant’s Parent: At the hearing, the Appellant’s parent said: • The Appellant has lived in her home for the last 10 years, during which time she has seen his physical and mental health decline • He tries hard to help himself • He has diabetes, gastroparesis, hyperemesis, osteoarthritis, and rheumatoid arthritis • He has serious issues with his back, especially his tailbone, which means he cannot sit, stand or sleep, 24 hours a day, because of the pain • When the Appellant is at work on his feet for 3 to 4 hours, his back issues get worse • Pain medication lets him sleep for a couple of hours, but then the pain starts again • When he was weaned off the pain medication in April 2022 because the doctors thought he was not really in pain, he was in agony for those 3 weeks, and it was very hard to watch.

In answer to questions from the Panel, she stated: • The Appellant’s daily living activities are very limited • He tries to help around the house but lifting more than 20 lbs. is agony for him • It is difficult for him to climb the 9 stairs between floors at her house • He cleans his area of the house, and brings up things that have to go into the garbage • He takes twice as long as others to climb stairs, he is out of breath coming up 9 steps and his back hurts; he will then sit to catch his breath • He helps with dishes and tries to make meals, but he cannot stand for long • It takes him longer to do laundry • He cannot stand and sweep a floor for long • He washes the bathroom a little at a time • He is in pain after walking a half block.

Appellant: At the hearing, the Appellant said: • Gastroparesis affects the rate at which he digests food, which makes his blood sugar “a roller-coaster,” where he may take insulin, but his blood sugar keeps going up; he must micro-manage his diabetes all day • He has a Botox endoscopic treatment for gastroparesis once every 10 weeks, and he is not able to do anything for a day after he receives it • When he has a flare up of gastroparesis, he must go to hospital for medications and an intravenous drip, and cannot do anything for 1 to 2 days afterwards

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Appeal Number 2023-0073 • He gets exhausted walking between ½ to 1 block • Fractures can happen without trauma – his ribs have fractured twice from bending too far over the arm of a chair • Pain is excruciating, and opioid pain medication is less effective because he has built up a tolerance over 10 years, but he does not feel he can ask for more than the 4 pills he takes now, out of fear they will cut off the medication again • At night he tosses and turns until between 3 and 5 a.m. • He is in more pain than his parent knows • He is rarely able to pay the $800 monthly rent he agreed to pay his parent • He has neuropathy in his feet due to diabetes • When he sees his Doctor, he puts on a brave face, and does not want to show how much the pain affects him, but he feels defeated by the constant daily pain and medical conditions that do not get any better.

In answer to questions from the Panel, the Appellant said: • Regarding the Doctor’s statements in the Medical and Assessor Reports, that he can walk 1 to 2 blocks unaided but needs periodic assistance to walk outdoors: o he does not need assistance to walk, but at work there are times when he has to stop and stand without moving, and take a break before he can walk again o if he walks for an extended period without stopping, his back will twitch, and he will fall down • He can wash and dress himself, do laundry and feed himself, but he cannot help with most chores around the house, particularly vacuuming, changing bedding, and flipping the mattress • He cycles through 4 or 5 forms of motion or positions all day, to reduce the pain o for example, when he reaches his limit for sitting, after 45 to 60 minutes, he will lie down for 25 minutes • Even small amounts of cleaning leave him completely drained • He is out of breath and in pain after showering, even though he has a “sit-in bath” designed for seniors • He can drive a vehicle • He does not think that codeine affects his thinking processes or affects his ability to pay attention, because he has built up a tolerance for the medication • He does not use a cane now, though he did use one when he had a problem with his left leg for a short period of time.

Admissibility of Additional Evidence: The Ministry did not object to the additional oral evidence of the Appellant and his parent at the hearing.

The oral evidence of the Appellant’s parent and the Appellant at the hearing provides additional information about the effects of the Appellant’s medical condition, his level of function and daily activities. 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 2023-0073

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 the combined effects of brittle diabetes and severe osteoporosis result in a severe physical impairment that make him unable to work more than part-time hours at a job where he is given significant accommodation from a manager who is a family friend. He is often unable to complete a four hour shift because of pain. His Doctor confirms that he is severely and permanently disabled, and takes significantly longer than usual to walk, climb stairs, stand, lift and do activities of daily living. The Doctor also states that the Appellant has a mental impairment from the effects of the opioid medication the Appellant must take to manage pain, affecting his ability to concentrate. Therefore, the Appellant maintains that he meets the criteria for PWD designation.

Ministry Position: Severe mental or physical impairment: The Ministry maintains that the Appellant’s physical impairment is moderate, rather than severe. They say that the functional skills, mobility, and physical ability range reported by the Doctor do not show a severe degree of physical impairment. Further, the Ministry argues that the Doctor’s statements in the Assessor Report that the Appellant needs periodic assistance walking outdoors, climbing stairs, standing, lifting, carrying, and holding, are not consistent with the statements in the Medical Report about the Appellant’s ability to walk, climb stairs, lift and remain seated. The Ministry also says that, while the Doctor indicates that the Appellant takes significantly longer to perform daily living activities, they do not give details of how much longer the Appellant takes, and therefore the Ministry cannot determine if the Appellant takes significantly longer.

The Ministry says that the Appellant and the Doctor focus on the Appellant’s ability to work, rather than the functional skills, mobility, physical abilities, and daily living activities set out in the PWD application form. While the Ministry acknowledges that the Appellant is restricted in his ability to work, the Ministry is not satisfied that those restrictions show an overall severe impairment in the Appellant’s physical functioning.

The Ministry says it cannot determine that the Appellant has a severe mental impairment. The Ministry says that there are no major impacts to cognitive and emotional functioning, and

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Appeal Number 2023-0073 moderate impacts in only five areas. The Ministry maintains that the Appellant can manage most daily living activities that might be affected by a mental impairment.

Daily Living Activities: The Ministry also says that the information provided does not indicate direct and significant restrictions in daily living activities. The Ministry maintains that, without details of the frequency and duration of the periodic assistance the Doctor says the Appellant needs, it cannot determine that the Appellant’s ability to perform daily living activities is directly and significantly restricted.

Help with Daily Living Activities: The Ministry says that, as it was not established that daily living activities are significantly restricted, 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.

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.

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Appeal Number 2023-0073 1. Physical Impairment: The Appellant has brittle diabetes and osteoporosis, both of which are described by the Doctor as severe, or very severe. He has diabetic gastroparesis, which sends him to Emergency six to ten times a year. Osteoporosis has resulted in vertebral compression fractures, which give him chronic pain, for which opioids give temporary and limited relief.

The Appellant has serious medical conditions, and the Panel accepts the evidence of the Appellant and his parent about his experience of chronic pain and the need for ongoing medical treatment. However, the Panel finds that the Ministry was reasonable in its determination that the information provided indicates a moderate, rather than a severe impairment of physical functioning.

People often think of “disability” in terms of being able to work at employment. The Appellant and the Doctor have focused mainly on the restrictions on Appellant’s ability to work. However, the information provided does not indicate a severe restriction on overall physical functioning. The Appellant is able to walk for extended distances. While he climbs stairs more slowly, cannot lift more than about 10 lbs., and must change activities and positions regularly to relieve pain, still he can do those activities.

The Doctor indicates that the Appellant needs periodic assistance from another person to walk, climb stairs and stand, but there is no indication from the Appellant that he needs assistance for those activities, and the Doctor does not explain what that assistance might be. While the Doctor says that the Appellant also takes significantly longer than typical to do those activities, the explanation is that it depends on the demands, which does not explain how much longer the Appellant takes.

The Panel recognizes that the Appellant pushes himself to maintain his level of activity, and he may be trying to “put on a brave face,” as he says he does with his Doctor. However, the Ministry and the Panel must determine whether the Appellant’s serious medical conditions cause severe impairment of physical function. While there is no doubt that the Appellant’s physical functioning is impaired by chronic pain and brittle diabetes, the Panel finds that the Ministry was reasonable in its determination that the Appellant’s physical impairment is moderate rather than severe.

2. Mental Impairment: The Doctor provides a diagnosis of major depressive disorder with anxiety, and identifies significant deficits in cognitive and emotional function, in the areas of emotional disturbance, motivation and attention or sustained concentration. They also describe the effects of opioid medication the Appellant needs for controlling chronic pain, interfering with the Appellant’s ability to concentrate. The Doctor identifies moderate impact on five areas of cognitive and emotional functioning, although the Doctor does not provide details of the impact, or whether it is due to the depressive disorder, opioid side effects, or a combination of the two.

At the hearing, and in the written information he provided for the Reconsideration and the Appeal, the Appellant denies having difficulty with concentration, and did not argue that he has

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Appeal Number 2023-0073 a severe mental impairment. The Panel notes tha t it can be more difficult for an individual to identify their own deficits in cognitive and emotional functioning, and therefore would place greater weight on the Doctor’s opinion. However, beyond ticking the boxes on the Medical and Assessor Reports, the only detail the Doctor provides is a comment in their letter to the Ministry, that the Appellant would not be able to concentrate in a work environment.

The Panel finds that, without further detail of the deficits that the Doctor identifies, the Ministry was reasonable in its determination that the information provided does not indicate a severe mental impairment.