Ministry of Social Development and Poverty Reduction

Appeal Number 2023-0058 Part C – Decision Under Appeal The decision under appeal is the Ministry of Social Development and Poverty Reduction (the Ministry) decision dated February 14, 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)

Full text of the Legislation is in the Schedule of Legislation at the end of the Reasons.

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Appeal Number 2023-0058 Part E – Summary of Facts The hearing took place by teleconference on May 30, 2023. The Appellant provided additional written evidence, received at the Tribunal on the business day before the hearing. The Ministry representative said that they had received the additional evidence two hours before the hearing. In response to a question from the Panel Chair, they confirmed that they did not need an adjournment to review the evidence.

Evidence Before the Ministry at Reconsideration: The information the Ministry had at the time of the decision included: • Medical and Assessor Reports completed by the Appellant’s Doctor; • Appellant’s Self Report.

Medical Report: The Doctor stated that the Appellant has been their patient for over three years, and they have seen the Appellant between two and ten times in the past twelve months.

Diagnosis: The Doctor states diagnoses of anxiety/depression (onset thirty years ago), Osgood Schlatter (onset thirty-one years ago), lower back pain (onset five years ago) and right shoulder pain (onset three years ago).

Health History: The Doctor states that the Appellant requires knee braces and a hiking stick for his impairment.

Functional Skills: The Doctor indicates that the Appellant can: • Walk less than 1 block unaided on a flat surface • Climb 5+ steps • Lift 2 to 7 kilograms • Remain seated less than 1 hour.

The Doctor indicates that the Appellant has significant deficits with cognitive and emotional function in the areas of memory, emotional disturbance, motivation and attention or sustained concentration.

Daily Living Activities: The Doctor indicates that the Appellant’s impairment directly and continuously restricts his ability to perform the following daily living activities: • Basic housework • Daily shopping • Mobility inside the home • Mobility outside the home.

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Appeal Number 2023-0058 The Doctor also indicates that the Appellant’s abi lity to manage his finances is restricted by his impairment but does not indicate if the restriction is continuous or periodic. The Doctor does not provide any additional comments or explanation of the restrictions.

Assessor Report: Mental or Physical Impairment: Asked to provide a brief summary of the Appellant’s mental or physical impairments that impact his ability to manage daily living activities, the Doctor states: “During social interactions his anxiety state will prevent him from enjoying his social events.”

Mobility and Physical Ability: The Doctor indicates that the Appellant requires periodic assistance from another person for all listed areas of mobility and physical ability: • Walking indoors • Walking outdoors • Climbing stairs • Standing • Lifting • Carrying and holding.

Cognitive and Emotional Functioning: The Doctor indicates that the Appellant’s mental impairment has major impact on emotion and motivation. They indicate moderate impact on memory and “other neuropsychological problems (e.g., visual/spatial problems; psychomotor problems; learning disabilities; etc).” and minor impact on attention/concentration and “other emotional or mental problems (e.g., hostility)”. Although the report form asks the Assessor to explain the “other problems”, the Doctor does not provide further explanation or description.

Daily Living Activities: The Doctor indicates that the Appellant is independent in all aspects of daily living activities listed on the form: • Personal care • Basic housekeeping • Shopping • Meals • Pay rent and bills • Medications • Transportation • Social functioning.

They indicate that the Appellant has good functioning with his immediate social network and marginal functioning with his extended social network.

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Appeal Number 2023-0058 Assistance Provided for Applicant: The Doctor indicates that the Appellant’s family and friends provide help required for daily living activities. They also state that the Appellant routinely uses a cane and braces as assistive devices to help compensate for his impairment.

Self Report: The Appellant states that he suffers from chronic knee pain, lower back pain and shoulder pain. He says he is unable to sit or stand for more than a few minutes, and standing and walking are “near impossible” because of his knees. He says that stress and crippling anxiety are overwhelming and make it difficult to function normally in public. His sleep and eating habits are also affected. He says he was diagnosed with “ADHD, LDD, ODD” as a child, which he continues to try to manage. Medication to manage his conditions makes him “dopey and irritable.”

Additional Evidence: Appellant: The Appellant provided the following additional written evidence before the hearing: • Letter dated April 26, 2023 from a Social Worker with a three-page written statement from the Appellant attached, signed by the Appellant and the Social Worker • Medical Imaging Reports: o Knees, May 4, 2022 o Facial bones and cervical spine, May 9, 2019 o Right Clavicle, December 21, 2015, January 18 and February 23, 2016 • Psychological Assessment Report, October 12, 2018

While not all details of the additional evidence are repeated here, the Panel has reviewed all of the documents and provides a summary of the evidence.

Letter from Social Worker: The Social Worker states: • They completed an assessment of the Appellant’s Social Determinants of Health, gathered information about his medical conditions and helped the Appellant complete a thorough list of daily living activities affected by his disabilities. • The Appellant has “demonstrated that his daily living activities are impacted by his chronic mental health and chronic pain issues that have been persistent across his lifespan.”

Appellant/Social Worker Statement: The Appellant states: • His daily living activities and ability to care for himself are affected by: o Chronic pain in his knees

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Appeal Number 2023-0058 o Pain in his right neck and shoulder d ue to fractured right clavicle in 2015 o Generalized Anxiety Disorder and Major Depression.

• He was diagnosed with Osgood Schlatter’s Disease as a child and had surgery to correct resulting pressure and damage to his knees, though he was told to expect long term complications from the condition. • He is waiting for a consultation with an orthopedic surgeon to be assessed for knee replacements. • In 2015 he broke his right clavicle, which has not healed well. He struggles with lifting and carrying heavy things and has pain in his right neck and shoulder. • He takes medication and has tried other therapies to manage mental health issues.

He states that his disabilities make it difficult to do the following activities: • Personal care and hygiene, including remembering or being motivated to get out of bed and do basic daily hygiene; • Prepare and eat meals, including remembering to eat regular meals and throw out spoiled food; • Taking medications as prescribed; • Basic housework, including remembering and being motivated to keep his home clean o Mess and clutter trigger mental health symptoms but chronic pain prevents him from cleaning his house; • Shopping for personal needs o Limited in walking, standing, and carrying o Becomes anxious, angry, and frustrated in stores because of crowds, sounds, motions, and long lineups; • Moving about indoors and outdoors, limited in: o Going up and down stairs o Standing from sitting or lying down o Kneeling, and getting up from kneeling o Walking on flat or uneven ground takes longer, needs frequent breaks o Going out without being anxious; • Managing personal finances, finds it difficult to stop himself from buying things he does not need.

The Appellant also states that, he has “a lot of anxiety, agitation, stress and depression” and, due to his mental health disability, he has difficulty: • Making decisions and planning ahead • Remembering information and appointments • Socializing without anxiety • Interacting with strangers in public • Establishing and maintaining relationships • Asking for help when needed • Making himself understood by others, either speaking or writing • Understanding what he reads • Hearing what others say to him in person or on the phone.

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Appeal Number 2023-0058 Psychological Assessment Report: The Psychologist carried out a psychological assessment of the Appellant’s cognitive abilities, mental health, and vocational capacity, at the request of a vocational counsellor. They state the following diagnoses: • Persistent depressive disorder, with intermittent major depressive episodes, with current major depressive episode • Generalized Anxiety Disorder • Attention Deficit/Hyperactivity Disorder (ADHD) • Specific Learning Disorder in Written Expression • Medical: Chronic pain due to wrist, shoulder, knees, and back injuries.

They state: • Elevated anxiety symptoms have a negative effect on attention. • The Appellant is “prone to being overwhelmed by situational stressors, and at those times he experiences deterioration in executive functions (judgment, organization and planning, and impulse control), and physical functions (disordered sleep, not eating, GI problems) which may contribute to episodes of poorly controlled anger (explosive outbursts), and impairment in his capacity to perform vocational, social, parenting, and ADL functions without external support providers.”

They make a series of recommendations, including that the Appellant “would benefit from residing in a supportive environment in which his accommodation and nutrition are stable, and where he has access to medical and mental health and physiotherapy supports.”

Evidence at the Hearing: At the hearing, the Appellant said: • His Doctor was very rushed in completing the Medical and Assessor Reports. • Most everyday tasks are impossible for him to do alone. • He has no cartilage left in his knees, and he cannot walk, climb stairs, or stand for more than a few minutes.

In answer to questions from the Ministry, the Appellant stated: • His anxiety and depression are worse now than when the psychological assessment was done. • He cannot work, and he is terrified of crowds. • He was trembling and sweating during the hearing, due to anxiety. • He has been waiting for two years for surgery for his knees; his left knee is worse than his right, but both are severely damaged, extremely painful and swollen. • He has full time help from his girlfriend and his family. • His girlfriend does his shopping and cleans his house. • He cannot stand long enough to do dishes, after a few minutes he has to sit down because his knees swell up. • He has to use a cane to walk around the house, otherwise he would fall.

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Appeal Number 2023-0058 In answer to questions from the Panel, the Appell ant stated: • He can shower on his own and make his own snacks, but his girlfriend cooks and brings him meals. • He needs a lot of help to be reminded to take his medication. • He relies on family and friends for transportation because there are no buses where he lives, and he does not have a driver’s licence. • Medication does not help with his pain. • Medication gives a little relief from anxiety, but he cannot sleep and has crippling panic attacks where it feels as if he has a truck on his chest, and his extremities go numb. • It is hard for him to sit still due to ADHD, but he also has low back and knee pain that “puts [him] in tears and feels like it’s all on fire” and his knees swell up. • He wears knee braces all day and uses the cane to walk inside and outside. • He can do his own banking because most of his transactions are online and are repetitive processes that stay the same—the only change is the amount.

Admissibility of Additional Evidence: The Ministry did not object to the admissibility of the Appellant’s additional written or oral evidence.

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 2023-0058

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 he has both severe mental and severe physical impairments. He says that he has chronic pain in his knees, back, shoulder and neck, that prevent him from standing for more than a few minutes or lifting anything heavy. He is unable to climb stairs or sit comfortably and has great difficulty getting up from a seated position. He says that he has crippling anxiety, depression, and ADHD that affect his motivation to do even basic self-care. He maintains that his impairments restrict his ability to perform many daily living activities, including preparing meals, grocery shopping, housework, moving about indoors and outdoors, and remembering to take medication as prescribed. He says that he has help from family, and his girlfriend, and he uses a cane and knee braces continuously. Therefore, the Appellant says that he meets all the criteria for PWD designation.

Ministry Position: Physical Impairment: The Ministry maintains that, based on the information in the Medical and Assessor Reports, the Appellant’s physical impairment is moderate, rather than severe. They acknowledge the Appellant’s limitations in walking, climbing stairs, lifting, and remaining seated, but say that the Doctor has not indicated how much longer the Appellant takes, or how often the Appellant needs help from others, to do those activities. They also note the Doctor’s indication that the Appellant is independent in all daily living activities, and the lack of information about how often the Appellant uses a cane or knee braces.

Mental Impairment: The Ministry maintains that a mental impairment that only has major impacts on emotion and motivation and moderate impact on memory is more indicative of “mild-to-moderate impact in function overall”. They note again that the Doctor reports that the Appellant is independent in all daily living activities and social functioning.

In the reconsideration decision, the Ministry stated that the Appellant’s self-report of ADHD and anxiety was not reported by the Doctor; at the hearing, the Ministry agreed that the Doctor did provide a diagnosis of anxiety in the Medical Report.

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Appeal Number 2023-0058 The Ministry maintains that the information provid ed at reconsideration demonstrated a moderate overall impairment of the Appellant’s ability to function independently or effectively, due to a combination of the mental and physical limitations reported.

Daily Living Activities: The Ministry acknowledges that the appellant has continuous restrictions with housework, shopping, and mobility inside and outside the home. However, the Ministry says that, because the Doctor indicated that the Appellant is also independent in all daily living activities and did not provide details of help the Appellant might need with those activities, the information provided did not demonstrate direct and significant restrictions in the ability to perform daily living activities.

Help with Daily Living Activities: The Ministry says that, as it has not been established that daily living activities are significantly restricted, it cannot determine that the Appellant needs significant help with those activities.

Additional Evidence: With respect to the additional evidence the Appellant provided, the Ministry said that there was not enough current information to determine that the Appellant meets the criteria for PWD designation. In answer to a question from the Panel, the Ministry confirmed that it accepts the letter and attached statement signed by the Social Worker, as the Social Worker’s opinion.

Majority 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 Majority Panel finds that an assessment of severity based on

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Appeal Number 2023-0058 physical and mental functioning including any res trictions 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: In the Medical Report, the Doctor states that the Appellant has Osgood Schlatter and pain in his low back and right shoulder, and reports that the Appellant needs knee braces and a cane or hiking stick. The Doctor also indicates that the Appellant can walk less than a block unaided and remain seated less than one hour. They indicate that the Appellant’s impairment directly and continuously restricts his mobility inside and outside the home.

The Doctor also states that the Appellant also needs periodic assistance for walking indoors and outdoors, climbing stairs, standing, lifting, carrying, and holding. The Appellant provides further details, stating that he wears the knee braces all day, and uses the cane whenever he is walking indoors or outdoors. He also describes severe pain when walking, standing, and sitting, which limits his ability to sit or stand for more than a few minutes. He explains that, even with a cane and the knee braces, he walks very slowly and needs frequent breaks.

At the same time, in the Daily Living Activities section of the Assessor Report, the Doctor indicates that the Appellant is independent in all daily living activities. That section is not consistent with the Doctor’s statements in the Medical Report and elsewhere in the Assessor Report that the Appellant needs assistance for all listed areas of mobility and physical ability, as well as basic housework and daily shopping.

The Majority Panel places greater weight on the Medical Report and the sections of the Assessor Report that are consistent with the Medical Report, because that evidence is consistent with the Appellant’s Self Report, his evidence at the hearing, and the Social Worker’s opinion of the Appellant’s functional ability, as set out in their letter and attached statement. The Majority Panel finds that the degree of restriction in the Appellant’s ability to walk, stand and sit, the severity of the chronic pain the Appellant describes, and the need for continuous use of knee braces and a cane for even limited mobility, indicate a severe physical impairment.

The Majority Panel finds that the Ministry was not 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 Psychologist provides diagnoses of Generalized Anxiety Disorder, persistent depressive disorder with major depressive episodes, and ADHD. The Doctor provides current diagnoses of anxiety and depression, with significant deficits in the areas of memory, emotional disturbance, motivation, and attention. The Social Worker provides additional information of the Appellant’s current condition, as does the Appellant in his Self Report and his evidence at the hearing. They confirm that, as a result of anxiety, depression, and ADHD the Appellant struggles to find the motivation to get out of bed or perform basic hygiene. The Majority Panel finds that the current

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Appeal Number 2023-0058 evidence from the Doctor and the Social Worker c onfirms that the Appellant continues to experience the conditions described in detail in the Psychologist’s report.

The Majority Panel notes that, in the reconsideration decision, the Ministry states that, while the Appellant self-reports anxiety and ADHD, those conditions were not reported by the Doctor and therefore could not be considered in determining mental impairment. The Majority Panel notes that, in fact, the Doctor did report diagnoses of anxiety and depression, with significant deficits in cognitive and emotional functioning. The additional evidence of the Psychologist confirms those diagnoses and provides a further diagnosis of ADHD. Although the Psychological Assessment Report was prepared in 2018, there is no suggestion that the Appellant has recovered from that condition, or that his symptoms have improved since then. The evidence of the Doctor, the Appellant and the Social Worker confirm that the Appellant continues to struggle with symptoms related to all diagnosed psychological conditions.

The Doctor has indicated that the Appellant’s mental impairment has a major impact on emotion and motivation. They indicate moderate impact on memory and other neuropsychological, emotional, or mental problems that, unfortunately, the Doctor does not specify or explain. The Appellant describes crippling anxiety, with extreme symptoms of panic. The Social Worker confirms that the Appellant has difficulty remembering or having the motivation to do basic hygiene, eat regular meals, take prescribed medications, or even get out of bed. While he appears to be able to maintain relationships with immediate family and a girlfriend, the Appellant has only marginal functioning beyond his immediate social circle. The Psychologist indicated in 2018 their recommendation that the Appellant “would benefit from residing in a therapeutic independent residential care setting.” It appears from the Social Worker’s assessment that the Appellant continues to be unable to manage basic aspects of self care independently.