Ministry of Social Development and Poverty Reduction

Appeal Number 2023-0202 Part C – Decision Under Appeal The decision under appeal is the Ministry of Social Development and Poverty Reduction (the Ministry) reconsideration decision dated June 23, 2023. The ministry denied the appellant designation as a person with disabilities (PWD). The ministry found that the appellant met the age (18 years or older) requirement. However, the ministry was not satisfied that the evidence establishes that

• the appellant’s impairment is likely to continue for at least 2 years; • the appellant has a severe physical or mental impairment; • the appellant's impairment significantly restricts the ability to perform daily living activities; and

• the appellant requires the significant help or supervision to perform daily living activities.

The ministry also found the appellant was not one of the prescribed classes of persons eligible for PWD on the 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 (the Act), section 2 Employment and Assistance for Persons with Disabilities Regulation (the Regulation), section 2

The full text of these sections of legislation is set out at the end of the decision.

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Appeal Number 2023-0202 Part E – Summary of Facts Evidence Before the Ministry at Reconsideration 1) The appellant’s PWD application: • The Medical Report and Assessor Report sections completed by the appellant’s nurse practitioner who has seen him 11 or more times in the past 12 months and who has been his nurse since 2019. They have referred the appellant to an orthopedic surgeon, and to physio and massage. • To complete this form, the nurse used a telephone assessment and a chart review. • The Applicant Information (Self Report) section was not completed. Instead, the appellant wrote: “Doctors reports attached describes my disability.”

2) Medical documents: • An orthopedic assessment (December 5, 2022) • A left shoulder X-Ray (November 16, 2022) • A right shoulder MRI (October 14, 2022) • A left shoulder MRI (October 14, 2022)

New Evidence Provided on Appeal and Admissibility

The appellant submitted a Notice of Appeal.

The appellant’s advocate submitted: • a letter that they wrote to the appellant’s nurse practitioner (July 14, 2023); and • a questionnaire drafted by the advocate with boxes to be checked by a medical practitioner (the doctor) who, according to the ministry letter, works at the same clinic as the nurse practitioner who completed the Medical and Assessor Reports (July 26, 2023).

The ministry submitted a letter in response to the advocate’s submission (August 3, 2023) “Had the ministry had this information at the time of the reconsideration decision, a different decision may have been reached.” In reviewing the appellant’s submission, the ministry notes: • The medical practitioner agrees that the appellant has severe conditions that will last for more than 2 years. • More information has been provided regarding the appellant’s ability to stand (limited to 2-3 minutes due to pain swelling and numbness) and lifting, carrying and holding (limited to 1-2 kilograms and requiring continuous assistance due to the nature of the medical conditions).

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Appeal Number 2023-0202 More information related to significant r • estrictions in housekeeping, shopping, and meals, which confirms a need for continuous assistance from another person as a direct result of the medical condition. • More information related to the appellant’s need for help with their daily living activities.

The ministry did not object to the admission of the additional documents. The panel finds that the information provided on appeal and at the hearing is reasonably required for a full and fair disclosure of all matters related to the decision under appeal, as it contributes to the panel’s understanding of the circumstances surrounding the appellant’s PWD application. The panel therefore admits this information as evidence pursuant to section 22(4) of the Employment and Assistance Act.

Summary of Relevant Evidence

Duration

Medical Report • The estimated duration of the impairment is “unknown at this time”. Questionnaire: • “It is my medical opinion that [the appellant] has severe conditions that will last for more than 2 years.”

Physical Functioning

Medical Report Diagnoses: • Shoulder pain bilaterally (onset May 2022) • Rotator cuff tear (onset May 2022) Health History: • The appellant is unable to work and perform many activities due to his pain. • He requires support from his family to complete household tasks and meal preparation. • Due to his rotator cuff tear tendinopathy he has decreased range of motion, which prevents him from completing certain activities such as lifting and carrying and working. • He does not require aids or prostheses for his impairment. Functional Skills: • Can walk 4 blocks unaided on a flat surface.

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Appeal Number 2023-0202 • Climb more than 5 steps unaided. • Can lift 2 to 7 kg. • He has no limitations remaining seated. Additional Comments: • “He has pain with movement. Lifting or certain range of motion exercises aggravate his pain.”

Assessor Report Impairments that impact ability to manage Daily Living Activities: • Bilateral shoulder pain Mobility and Physical Ability: • Lifting and carrying require periodic assistance from another person (“He requires support from family.”) • Independent: Walking indoors, walking outdoors, climbing stairs, and standing

Orthopedic Specialist Report • The appellant reports “a gradual onset of left shoulder pain over the last 8 months… • He is now experiencing decreasing ROM and strength secondary to the chronicity of his discomfort. • Treatments thus far include physiotherapy for about 8 sessions that did not help, rather they increase his pain, so he stopped attending. • He has not had any injections in the shoulder. • He is taking Tylenol orally as needed for pain control. • [He] has quite severe shoulder pain with clinical signs of subacromial impingement/bursitis and image findings of a partial-thickness infraspinatus rotator cuff tear which may be contributing to his pain… • “He has not yet optimized the nonoperative treatment modalities therefore I would not pursue surgery unless he has failed 3 to 6 months of physiotherapy and a trial of corticosteroid injections(s).”

Left Shoulder MRI • “Worsening shoulder/arm pain x 6mo, initially left shoulder, now bilateral. Decreased ROM and strength bilaterally, symptoms not improving with physiotherapy/conservative management. New onset of left radiculopathy.” • “Subchondral cysts are seen about the posterior aspect of the humeral head. The rotator cuff is intact. There is no evidence of focal tear or atrophy.” • “Mild tendinopathy of the supraspinatus. No full-thickness tear or cuff atrophy.”

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Appeal Number 2023-0202 Right Shoulder MRI • “Worsening shoulder/arm pain x 6mo, initially left shoulder, now bilateral. Decreased ROM and strength bilaterally, symptoms not improving with physiotherapy/conservative management. New onset of left radiculopathy.” • “There is moderate acromioclavicular joint osteoarthritis. There is no Hill-Sachs fracture or acromiale. There is tendinopathy of the supraspinatus. There is probable partial-thickness bursal sided fraying of the infraspinatus no full-thickness tear although the fraying and partial-thickness tearing of the bursal surface of the infraspinatus is approaching full-thickness” • “Tendinopathy of the supra and infraspinatus with findings of partial-thickness bursal sided tearing of the infraspinatus.”

Left Shoulder X-Ray (Nov 16, 2022) • “Bones appear osteopenic…No other osseous findings in the shoulder girdle. No soft tissue calcifications.”

Questionnaire “[The appellant] suffers from severe conditions including: • Varicose Veins • Left Shoulder: Mild tendinopathy of supraspinatus. Right shoulder (MRI) tendinopathy of supra + infraspinatus + partial thickness bursal sided tear of the infraspinatus (tear of ligament). Restrictions and assistance needed: • Basic mobility & Climbing stairs: significant restrictions with walking longer than 10-15 minutes or climbing more than 7-8 stairs without stopping due to increased pain, numbness, and swelling in left leg. • Lifting, Carrying & Holding: directly restricted from lifting, carrying or holding more than 1-2 kg due to chronic pain and limited range of motion in both shoulders. Also, [the appellant] has an infection in his right shoulder further restricting his mobility. He requires continuous assistance. • Sitting and Standing: significantly restricted from sitting longer than 30 minutes or standing longer than 2-3 minutes at a time due to burning pain, swelling, and numbness in leg. [The appellant] must sit with his leg elevated. • Sleep Disturbances: “[The appellant] wakes up every 1-2 hours due to pain [and anxiety and depression]

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Mental Functioning

Appeal Number 2023-0202

Assessor Report The appellant lives with family. Ability to Communicate: • Speaking, reading, writing, and hearing abilities are good. Cognitive and Emotional Functioning (impact on daily functioning) • Minimal impact for motivation. • No impact for all remaining aspects (bodily functions, consciousness, emotion, impulse control, insight and judgement, attention, executive, memory, motor activity, language, psychotic symptoms, other neuropsychological or emotional or mental problems). • Social Functioning: All areas are managed independently. Good functioning with immediate and extended social networks.

Questionnaire: • Sleep Disturbances: The appellant wakes up every 1-2 hours due to depression and anxiety [and pain]. Major impact. • Anxiety and Depression: Major impact • Impulse Control: Moderate Impact • Attention/Concentration: Moderate Impact • Memory Issues: Frequently forgets words when speaking and loses train of thought. Poor short-term memory. Major impact. • Lack of Motivation: Major Impact • The appellant requires continuous support with maintaining relationships. He has regular episodes of social isolation. He avoids responding to family or friends calls/text messages.

Daily Living Activities

Medical Report • Activities that are restricted: meal preparation (periodic), basic housework (continuous), daily shopping (periodic). • Activities that are not restricted: personal self care, management of medications, mobility inside the home, mobility outside the home, use of transportation, management of finances. • “He cannot meal prep or do housework as it aggravates his pain. He has challenges with shopping due to the pain.” • “He requires assistance from family to help with meals and daily chores.”

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Appeal Number 2023-0202 • Has not been prescribed medications an d/or treatment that interfere with his ability to perform daily living activities.

Assessor Report • Personal Care: dressing and grooming take significantly longer than typical (“decreased ROM. He has challenges lifting his arm to put on a shirt/jacket, do his hair”). All other activities (bathing, toileting, feeding self, regulating diet, transfers in/out of bed, transfers on/off chair) are managed independently. • Basic Housekeeping: He needs continuous assistance from another person for both tasks (laundry and basic housekeeping). “Family does this as it aggravates his pain.” • Shopping: Going to and from stores, reading prices and labels, making appropriate choices, and paying for purchases are independently managed. The nurse practitioner did not mark or comment on carrying purchases home. • Meals: Continuous assistance is needed for meal planning, food preparation and cooking. “Sister and Mother prepare all the food.” Periodic assistance is required for safe storage of food. • Pay Rent and Bills: All tasks are managed independently. • Medications: All tasks are managed independently. • Transportation: All tasks are managed independently.

Orthopedic Specialist Report • “[The appellant] is able to manage DALs/IADLs with tolerable discomfort.”

Questionnaire • “[The appellant] is directly and significantly restricted in his ability to do his daily living activities continuously, as a result of the conditions noted above [varicose veins and left shoulder condition].” Restrictions and assistance needed: • Dressing, Grooming and Bathing: significant restrictions with personal care due to chronic pain in legs [sic] and shoulders. Takes 2X longer getting dressed due to difficulty lifting arms. [The appellant] sits on the side of the bathtub while bathing and frequently neglects shaving. • Toileting: Takes 2X longer with transfers on and off the toilet Holds onto wall for support. • Feeding self: direct restrictions due to chronic pain. • Laundry & Housekeeping: significant restrictions due to chronic leg pain, swelling and numbness, as well as limited range of motion in arms. Requires continuous assistance with all laundry and housekeeping duties.

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Appeal Number 2023-0202 • Shopping: significant restrictions due to mobility issues. [The appellant] experiences chronic pain walking through the store and is unable to stand in line-ups longer than 2-3 minutes. He requires continuous assistance with carrying purchases home. • Meals: direct restrictions with meal planning, preparation and cooking due to lack of appetite and motivation, as well as mobility issues. [The appellant] is only able to make quick and easy to prepare meals and requires continuous assistance from his wife. He also frequently forgets to put food away into the fridge. • Banking & Budgeting: takes 2X longer to access the bank due to mobility issues. [The appellant’s] wife provides continuous assistance with budgeting their money. • Transportation: takes 2X longer to get in or out of a vehicle due to chronic pain. [The appellant] also takes 3X longer to walk to the bus stop when using transit. • “I have checked the applicable boxes where I confirm that he is directly and significantly restricted in his ability to perform his daily living activities and requires significant help to perform the activities, noted above.”

Help to Perform Daily Living Activities

Assessor Report • Help required for daily living activities is provided by family. • “His sister and mother help with all the food preparation and household chores. • He requires assistance with activities that aggravate his pain, i.e., lifting his arms above his shoulders.” • The appellant does not use assistive devices. • The appellant does not have an assistance animal.

Questionnaire • Continuous help is required with lifting, carrying and holding, including carrying purchases home. • Continuous help is required with all laundry and housekeeping duties. • Continuous help with meal preparation is required.

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Part F – Reasons for Panel Decision

Appeal Number 2023-0202

The issue on appeal is whether the ministry’s decision that the appellant was ineligible for PWD designation was reasonably supported by the evidence or was a reasonable application of the legislation in the circumstances of the appellant. That is, was the ministry reasonable when it determined that • the appellant’s impairment is not likely to continue for at least 2 years; • the appellant does not have a severe physical or mental impairment; • the appellant's impairment does not significantly restrict her ability to perform daily living activities; and • the appellant does not require the significant help or supervision to perform daily living activities.

PANEL DECISION Duration Section 2(2)(a) of the Act requires the Minister to be satisfied that the appellant’s impairment is likely to continue for at least 2 years.

The appellant’s position is that his medical conditions will continue for at least 2 years. At reconsideration, the ministry’s position is that the appellant does not meet this criterion because the nurse practitioner did not indicate whether the appellant’s impairment is likely to continue for two years or more, and because they wrote “unknown at this time”. In their appeal submission, the ministry notes that the medical practitioner agrees that the appellant has severe conditions that will last for more than 2 years. They state that had had this information at the time of the reconsideration decision, a different decision may have been reached.

Considering the new evidence, the panel finds that the ministry’s decision that the appellant did not meet the duration criterion is no longer reasonable. The doctor has now confirmed that the appellant’s impairment will last for more than 2 years.

Severity of Impairment – Physical or Mental Section 2 of the Act requires the Minister to be satisfied that the appellant has a severe impairment. “Severe” and “impairment” are not defined. 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 daily physical and mental functioning including any restrictions is a reasonable

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Appeal Number 2023-0202 interpretation of the legislation. The panel not es that the legislation does not identify employability or financial limitations as considerations when determining PWD eligibility.

Physical Impairment

The appellant’s position is that he is severely impaired by the pain caused by his medical conditions.

The ministry’s position at reconsideration is that a severe impairment of the appellant’s physical functioning has not been established. The nurse practitioner indicates the appellant can walk 4+ blocks unaided and lift 5 to 15 lbs., which is considered sufficient ability to lift a variety of household and shopping objects. The nurse practitioner indicated the appellant is independent with the majority of listed areas of mobility and physical ability and does not describe the frequency of periodic assistance from another person required with lifting and carrying/holding. In their appeal submission, the ministry notes that more information has been provided regarding the appellant’s ability to stand (limited to 2-3 minutes due to pain swelling and numbness) and lifting, carrying and holding (limited to 1-2 kilograms and requiring continuous assistance due to the nature of the medical conditions). The ministry states that had they had this information at the time of the reconsideration decision, a different decision may have been reached.

Considering all the evidence, the panel finds that the ministry’s decision at reconsideration that the appellant did not have a severe physical impairment is no longer reasonable. The doctor has now confirmed that the appellant, in addition to this shoulder problems, also suffers from varicose veins in his leg which limits his him with standing (2-3 minutes), and with sitting (30 minutes due to burning pain, swelling, and numbness). He must sit with his leg elevated. According to the doctor the appellant is now also limited to 1-2 kg with lifting, carrying and holding due to chronic pain and limited range of motion in both shoulders and requires continuous assistance. He wakes up every 1-2 hours due to pain and anxiety and depression. The panel finds there is now sufficient evidence to establish that the appellant has a severe physical impairment.

Mental Impairment The appellant’s position is that he has a mental impairment. The Ministry’s position is that the appellant does not have a severe mental impairment. In the PWD application, the nurse practitioner does not describe a mental health condition or

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Appeal Number 2023-0202 brain injury. They indicate the appellant has no difficulties with communication, has no significant deficits to cognitive and emotional functioning and is not restricted with social functioning.

The panel finds that the ministry reasonably determined that the appellant does not have a severe mental impairment. The panel notes many differences between the new evidence on the appellant’s mental and cognitive functioning from the doctor and the information from the nurse practitioner. While the nurse practitioner indicates that the appellant’s ability to communicate is good in all 4 areas (speaking, reading, writing, and hearing), the doctor indicates that the appellant frequently forgets words when speaking and loses his train of thought. While the nurse practitioner indicates there is no impact for emotion and memory, the doctor indicates major impacts in these areas. While the nurse practitioner indicates there is minimal impact for motivation, the doctor indicates major impact in this area. While the nurse practitioner indicates there is no impact for impulse control and attention, the doctor indicates moderate impacts in these areas. The nurse practitioner indicates that all areas of social functioning are managed independently, and the appellant has good functioning with immediate and extended social networks. However, the doctor indicates that the appellant needs continuous support with maintaining relationships (regular episodes of social isolation and avoids responding to family or friends calls/text messages.)

The panel finds that inconsistencies in the medical information are too significant to enable the panel to get a reasonably clear picture of the appellant’s mental functioning. The doctor describes the degree of the appellant’s mental impairment as considerably increased in comparison to the nurse practitioner’s assessment but does not explain the reason for these inconsistencies. Consequently, the panel cannot find the ministry unreasonable in their determination that the appellant does not have a severe mental impairment.

Restrictions in the Ability to Perform Daily Living Activities

The appellant’s position is that his medical conditions significantly restrict his ability to perform daily living activities.

The ministry’s position at reconsideration is that there is not enough evidence to confirm that the appellant’s impairment significantly restricts his ability to perform his daily living activities continuously or periodically for extended periods.

The ministry noted that the nurse practitioner does not describe the frequency of periodic restrictions to meal preparation and daily shopping. The ministry also noted although the nurse practitioner indicates periodic restrictions to daily shopping, they also indicate the

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Appeal Number 2023-0202 appellant is independent with going to/from st ores, reading prices/labels, making appropriate shopping choices, and paying for purchases. The ministry noted that the nurse practitioner does not describe how much longer than typical the appellant takes with dressing and grooming. It was noted they also indicate the appellant is not restricted with personal self-care. The ministry also noted although the nurse practitioner indicates the appellant requires continuous assistance from another person with meal planning, food preparation, and cooking, they also indicate periodic restrictions to meal preparation. It was further noted that the nurse practitioner indicates the appellant is independent and not restricted with the majority of listed areas of daily living activities.

In their appeal submission the ministry notes that more information has been provided related to significant restrictions in housekeeping, shopping, and meals, which confirm a need for continuous assistance from another person as a direct result of the medical condition. “Had the ministry had this information at the time of the reconsideration decision, a different decision may have been reached.”

The panel finds that considering the new information there is now sufficient evidence that the appellant’s impairment directly and significantly restricts his ability to perform his daily living activities continuously. Specifically, the appellant is significantly and continuously restricted with preparing his own meals, shopping, and housework.

Both doctor and nurse practitioner report that the appellant needs continuous assistance from his family with meal preparation. The panel accepts the opinion of the prescribed professionals and therefore finds that the appellant is directly and significantly restricted with preparing his own meals and needs continuous help from his family in this area. The panel notes that in their professional opinion the doctor was able to reconcile the appellant’s ability to prepare quick and easy meals with a need for continuous assistance with meal preparation.