Ministry of Social Development and Poverty Reduction

Appeal Number 2023-0114 Part C – Decision Under Appeal The decision under appeal is the Ministry of Social Development and Poverty Reduction’s (“ministry”) reconsideration decision dated April 18, 2023, in which the ministry found the appellant was not eligible for designation as a Person with Disabilities (“PWD”) under section 2 of the Employment and Assistance for Persons with Disabilities Act (“Act”). The ministry found that the appellant met the age requirement and the requirement for the impairment to continue for at least 2 years but was not satisfied that: • the appellant has a severe mental or physical impairment, • the impairment, in the opinion of a prescribed professional, directly and significantly restricts the ability to perform daily living activities either continuously or periodically for extended periods; and • as a result of restrictions caused by the impairment, the appellant requires an assistive device, the significant help or supervision of another person, or the services of an assistance animal to perform daily living activities.

The ministry found that the appellant is not one of the prescribed classes of persons eligible for PWD designation on the alternative grounds set out in section 2.1 of the Employment and Assistance for Persons with Disabilities Regulation (“Regulation”). As there was no information or argument on this point, the panel considers it not to be at issue in this appeal. Part D – Relevant Legislation The ministry based the reconsideration decision on the following legislation:

Employment and Assistance for Persons with Disabilities Act - sections 2, and 2.1

Employment and Assistance for Persons with Disabilities Regulation - section 2

Employment and Assistance Act - section 22(4)

The full text is available in the Schedule after the decision.

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Appeal Number 2023-0114 Part E – Summary of Facts The information the ministry had at the time of the reconsideration decision included:

1. A record of the decision indicating that the PWD application was submitted on January 10, 2023, and denied on March 10, 2023, with Decision denial summary explaining the criteria that were not met. On April 3, 2023, the appellant submitted a Request for Reconsideration. On April 18, 2023, the ministry completed its review and found that the eligibility requirements for PWD designation were still not met.

2. The PWD application with 3 parts: • the Applicant Information (self-report) - undated; • a Medical Report dated January 3, 2023, signed by the appellant’s doctor, a General Practitioner (“Dr. A”) who has known the appellant since 2015, and has seen her 2-10 times in the past 12 months; • an Assessor Report dated January 3, 2023, also completed by Dr. A who based the assessment on an office interview with the appellant and review of the medical chart.

Summary of relevant evidence from the application

Diagnoses

In the Medical Report, the appellant is diagnosed with Chronic pain syndrome following a motor vehicle accident in 2015. In Section B - Health History, Dr. A describes “severe left-sided myofascial pain” in the appellant’s hip, back, shoulder, and neck.

Functional skills

Self-report The appellant says she has permanent injuries (neck, shoulder, back, and hip) as well as a “tendon tear” that limits her physical functions. The appellant says that her injuries prevent standing and sitting for long periods of time due to fatigue and stress. She needs to lie down often to alleviate these symptoms.

Medical Report In Section C-Health History, Dr. A says the appellant is unable to work at her usual profession because she cannot sit for more than 30 minutes. Dr. A. says that standing and walking for prolonged periods are also difficult. The appellant has increased financial stress due to her inability to work.

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Appeal Number 2023-0114

In Section E - Functional Skills, the appellant is able to walk 4+ blocks unaided on a flat surface but “takes longer and needs to rest.” The appellant is able to climb 5+ steps unaided; lift 5-15 pounds; and remain seated for less than 1 hour.

The doctor check marked “no” when asked if the appellant has difficulties with communication.

When asked if there are any significant deficits with cognitive and emotional function, the doctor checked “yes”, for 1 of the 11 areas listed, indicating difficulty with Emotional disturbance (comment, “related to financial stress”).

No check marks were provided for the following areas to indicate any deficits:

Consciousness Executive Language Memory Perceptual psycho- motor Psychotic symptoms Motivation Impulse control Motor activity Attention or sustained concentration Other

Section E - Additional Comments was left blank.

In Section G - Additional Comments (generally), Dr. A states that the accident in 2015 “has had a major detrimental impact” on the appellant’s life due to financial stress from the inability to work. The appellant has had to sell assets to cover her expenses for the last 6-7 years. The accident has left her “almost bankrupt” and “struggling to pay for her meds.”

Assessor Report In section C-3, Dr. A assessed all areas of Mobility and Physical Ability as taking significantly longer than typical: • Walking indoors (comment, “not longer than 30 minutes”) • Walking outdoors • Climbing stairs 4

Appeal Number 2023-0114 • Standing (comment, “not longer than 30 minutes”) • Lifting (comment, “not more than 10 pounds”). • Carrying and holding (“ “). In section C-2, the doctor wrote “N/A” for Ability to Communicate.

In section C-4, Cognitive and Emotional Functioning, the assessor is asked to indicate the impact of a mental impairment on various cognitive and emotional functions. For the 14 areas listed, Dr. A indicates the following impacts: • moderate impact for Emotion (comments, “due to financial stressors” and “inability to work has caused increases financial stress”). • Minimal and moderate impact for Motivation.

The doctor checked “no impact” for the remaining functions: • Bodily functions • Consciousness • Impulse control • Insight and judgment • Executive • Memory • Motor activity • Language • Psychotic symptoms • Other neuropsychological problems

No check mark is provided for: • Other emotional or mental problems

Daily living activities

In the opinion of a prescribed professional, Dr. A provides the following information:

Medical Report In Section C-3, Dr. A checked “no”, the appellant has not been prescribed medications or treatments that interfere with the ability to perform daily living activities.

Assessor Report In Section D - Daily Living Activities, the doctor provides the following assessments:

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Personal Care

Appeal Number 2023-0114

The appellant is assessed as independent with all areas listed on the form, but dressing and grooming take significantly longer than typical as “left shoulder pain slows this down.”

Basic Housekeeping

The appellant takes significantly longer with all activities (laundry, and basic housekeeping). The space for an explanation was left blank.

Shopping

The appellant is independent with 4 of the 5 listed activities: • going to and from stores • reading prices and labels • making appropriate choices • paying for purchases

The appellant takes significantly longer than typical in carrying purchases home (comment, “needs a buggy’).

Meals

The appellant is independent with all activities:

• • • •

meal planning food preparation cooking safe storage of food

Pay Rent and Bills

The appellant is independent with banking and budgeting. No check mark was provided for pay rent and bills (comment, “limited finances”).

Medications

No assessment (check marks) was provided for filling/refilling prescriptions and taking as directed (comment, “limited finances”).

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Appeal Number 2023-0114 Dr. A checked “independent” for safe handling a nd storage.

Transportation

The appellant is independent with getting in and out of a vehicle and using transit schedules/arranging transportation. The doctor wrote “N/A” for using public transit.

The space for Additional comments for these DLA was left blank.

Social Functioning

No check marks or comments were provided for any areas of social functioning. The doctor wrote “N/A” for this daily living activity.

Need for help

Medical Report In Section C-4, Dr. A checked “no” when asked if the applicant requires any protheses or aids for the impairment.

Assessor Report In Section A-1, Dr. A checked that the appellant lives with family. In Section E-Assistance provided by other people, the doctor indicates that the appellant’s family and friends assist her with daily living activities. The doctor wrote “n/a” in Section D-Assistance provided through the use of assistive devices. The doctor checked “no” the appellant does not have an assistance animal.

3. A Request for Reconsideration signed by the appellant on April 3, 2023, with a hand­written submission. In addition to argument for the reconsideration, the appellant adds the following details: • fatigue prevents her from doing “any long-term daily chores.” She needs to “take naps throughout the day due to stress and fatigue.” • a home care company cleaned her house from 2016-2020 when the services stopped due to the Covid-19 pandemic. The appellant says she is still not able to do her housekeeping.

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Appeal Number 2023-0114 The appellant submitted the following docume nts with her Request for Reconsideration:

4. Invoices from a home care company dated July 13, 2022. The appellant was billed a total of $10,796.63 for home cleaning between February 2016 and January 2020.

5. An Independent Medical Examination report, dated May 12, 2022 (21 pages). An evaluation of the appellant’s injuries was conducted by an Orthopedic Surgeon/Hand specialist (“the specialist”). The appellant was referred to the specialist by the lawyers representing the other party in the motor vehicle accident of April 2015.

The specialist provides the following information regarding diagnoses, symptoms, function, and daily living activities: • the appellant’s main complaint is ongoing pain and chronic muscle symptoms in her left leg, shoulder, arm, neck, and back. The appellant gets back spasms if she sits for too long. • The appellant’s pain is at least 7/10 on a pain scale and can also reach 10/10. The most pain she experienced in the past 30 days was 9/10, and the least was 7/10. The appellant reports constant arm or shoulder pain and rates the pain as 9/10 on average which she states is “almost unbearable.” • The appellant’s leg and hip pain are intermittent depending on how long she is sitting or walking. If she is moving to relieve the pain, it decreases to 6/10. If she sits or walks for too long, the pain is 9/10. • After the accident, the appellant was referred for physical therapy and massage which she did for a number of years. She also had acupuncture and cupping treatments and saw a sports medicine specialist for a “frozen shoulder” which is just beginning to unfreeze after 3 years. The appellant “is attending physical therapy to try to get it better but states that nothing helps alleviate the pain.” • The appellant “cannot work and is limited in most activities because of the pain in her left hip, buttocks, and leg.” She cannot sit or stand for more than half an hour. An MRI of the appellant’s left leg/hip showed a torn tendon beneath her butt in 2016. • The appellant reports that she “does not do any specific hobbies or activities other than going to the mall and walking around. She can do approximately one lap around the large mall. She then has to sit down, and when she does, she feels as if she has had a great workout and feels fatigued.” • The appellant does not use a cane or any other assistive device. She lies down up to 4 times a day at home. She has been doing home exercises and is not taking any pain medications because “it did not feel right.” • The appellant is able to bathe herself, “but she has some difficulty donning a sweater that zips up in the back because she cannot reach back. She has difficulty 8

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Appeal Number 2023-0114 lifting her arms to do hairstyling and has simplified the way she wears her hair.” The appellant is uncomfortable driving “but was able to drive two hours for this evaluation today.” The appellant was so tired from driving that she needed to take a nap in the parking lot before the appointment. The appellant goes to the grocery store and “can lift groceries out of the cart into her vehicle.” She puts the groceries in a cart at home to bring them inside. The appellant “can do her laundry. She can cook for herself and does not have any specific limitations, except that she keeps all her utensils, pots, and tableware in lower cupboards so that she can reach them.” The appellant’s family “does a lot of the cooking, cleaning, and laundry. The appellant states that “she does not do anything.” The appellant has other medical conditions including Grave’s disease (“she is hypothyroid”), Type 2 diabetes, and osteopenia. She takes medications for her thyroid, diabetes, and high cholesterol. The appellant has problems sleeping due to her shoulder pain. Once she gets up the first time she cannot sleep again. The report describes appointments with any doctors and rehabilitation therapists between 2015 and 2018 for her ongoing pain symptoms. The current physical examination indicates that the appellant walks “with a mildly antalgic gait” due to pain in her left hip. She does not use a cane or any assistive device. She can heel walk, toe walk, and tandem walk without difficulty. The examination revealed some motor strength measurements of 5/5, while the range of motion in the appellant’s shoulders is reduced. The appellant has “physical limitation in her ability to reach forward or to the side (flexion and abduction) with both shoulders.” The appellant’s “physical limitations in not being able to sit or stand for more than 30 minutes” is consistent with hamstring syndrome. The appellant has experienced a “prolonged 7-year period of decompensation” secondary to pain. The appellant “is limited in activities of daily living, such as prolonged standing or sitting, secondary to her hamstring syndrome.” The appellant requires aggressive treatment by an orthopedic surgeon to help alleviate her chronic pain. Without further treatment, “the disability will continue to be permanent.” Without more aggressive intervention, the appellant’s prognosis is poor for regaining a full range of motion in her shoulders. With a referral to an orthopedic surgeon for more aggressive treatment, “the prognosis is good for alleviation of her chronic left hip pain.”

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Additional evidence

Appeal Number 2023-0114

At the hearing, the appellant provided the following information in response to questions: • She used to do housekeeping regularly, and laundry once a week. Since the accident, she is only able to clean once a month and do her laundry every 2 months. When she had the home care company assisting her, they cleaned her house several times a month until the Covid-19 pandemic. • She needs to take naps throughout the day, sometimes for 1-2 hours, other times for 15 minutes. She took a 15-minute nap before her appointment with the specialist and felt refreshed. • She needs to rest for 1-2 hours every day. Her day consists of an “up sleep, up sleep” routine and she is in bed by 6:00 PM to watch TV. How often she takes naps varies, but sometimes she needs to nap 4 times a day. • She was prescribed pain medications after the accident but had to stop taking them because none of them agreed with her. The doctor said to take over-the-counter medications or a lower dose of the prescription if the appellant can’t bear the pain. • She uses a cane for walking and has a handicapped parking permit. • She uses a buggy/cart for shopping and carries things in small quantities. She has a cart at home to transport small loads from the car. The last time she went shopping, she was so fatigued that she fell asleep in the parking lot. • She walks short distances and can climb a few steps before fatigue sets in. Then she has to lie down and falls asleep because she is so fatigued.

Admissibility of oral testimony

The ministry had no objections to the appellant’s submissions being accepted as evidence. The testimony includes additional detail about daily function which the panel finds is relevant to understanding the physical impairment and resulting limitations. The panel admits the testimony under section 22(4) of the Employment and Assistance Act as evidence that is reasonably required for a full and fair disclosure of all matters related to the decision under appeal.

The ministry did not submit any new evidence and both parties provided argument. The panel will consider the arguments in Part F-Reasons.

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Appeal Number 2023-0114 Part F – Reasons for Panel Decision The issue on appeal is whether the ministry’s decision that found the appellant ineligible for PWD designation was reasonably supported by the evidence or was a reasonable application of the legislation in the circumstances of the appellant. The panel’s role is to determine whether the ministry was reasonable in finding that the following eligibility criteria in section 2 of the EAPWDA were not met: • the appellant has a severe mental or physical impairment; • the impairment, in the opinion of a prescribed professional, directly and significantly restricts the ability to perform daily living activities either continuously or periodically for extended periods; and • as a result of restrictions caused by the impairment, the appellant requires an assistive device, the significant help or supervision of another person, or the services of an assistance animal to perform daily living activities.

Analysis

PWD designation - generally

The legislation provides the Minister with the discretion to designate someone as a PWD if all the requirements are met. In the ministry’s view, PWD designation is for persons who have significant difficulty in performing regular self-care activities including social interaction and making decisions about personal activities, where a mental impairment is shown.

Some requirements must have an opinion from a professional, so it is reasonable to place significant weight on those opinions. The ministry found that 2 of the 5 requirements were met because the appellant is at least 18 years of age, and a medical practitioner has given the opinion that the appellant’s impairment is likely to continue for at least 2 years.

The application form includes a self-report so it is appropriate to place significant weight on evidence from the appellant unless there is a legitimate reason not to do so. The panel will review the reasonableness of the ministry’s determinations and exercise of discretion.

Severe 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

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Appeal Number 2023-0114 interpretation of the legislation. A medical prac titioner’s description of a condition as “severe” is not determinative on its own. The ministry must make this determination considering the relevant evidence and legal principles.

Restrictions to Daily living activities

A prescribed professional must provide an opinion that the applicant’s impairment restricts the ability to perform daily living activities. The BC Supreme Court decision in Hudson v. Employment and Assistance Appeal Tribunal [2009 BCSC 1461] determined that at least two daily living activities must be restricted in a way that meets the requirements of the Act, and that not all activities need to be restricted.

The restrictions to daily living 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 daily 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 requirements for restrictions to daily living activities are set out in subsection 2(2)(b)(i) of the Act. Specific activities are listed in section 2(1) of the Regulation. The Medical Report and Assessor Report also list activities, and though they do not match the daily living activities in the Regulation exactly, they generally cover the same activities.

The Medical Report and Assessor Report give the professional the opportunity to provide additional details on the applicant’s restrictions. The inability to work and financial need are not listed as daily living activities and are only relevant to the extent they impact the listed activities.

Help Required

A prescribed professional must provide an opinion that the person needs help to perform the restricted daily living activities. This requirement is set out in subsection 2(2)(b)(ii) of the Act. Under subsection 3, “help” means needing an assistive device, the significant help or supervision of another person, or an assistance animal to perform daily living activities.

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Appeal Number 2023-0114 An assistance device, defined in section 2(1) of the Act, is something designed to let the person perform the restricted daily living activities.

Arguments

Appellant - all criteria

The appellant’s position is that her physical impairment is severe because the specialist said that her injuries are permanent and she is unemployable as a result of the accident. The appellant says she experiences a great deal of stress and fatigue due to “throbbing pain” in her neck, shoulder, back, and hip. Even with surgery, the “torn tendon under my butt is not going to get better.”

The appellant explained that her doctor did not have the specialist report when they filled out the PWD forms and she only sees Dr. A for prescriptions, brief appointments, and to approve the handicapped parking permit. The appellant argues that the specialist’s report gives a detailed account of the severity of her injury and resulting restrictions. She cannot understand how the ministry can deny PWD once they had the 21-page specialist’s report that confirms the impairment is permanent, as well as home care receipts to prove that she needs help with household chores.