Ministry of Social Development and Poverty Reduction

Appeal Number 2023-0205 Part C – Decision Under Appeal The decision under appeal is the Ministry of Social Development and Poverty Reduction’s (“ministry”) reconsideration decision dated July 13, 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 the ministry was not satisfied that: • the appellant has a severe physical or mental impairment, • the severe 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”). There was no information or argument on this point, and 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 - section 2 Employment and Assistance for Persons with Disabilities Regulation - sections 2 and 2.1 Employment and Assistance Act - section 22(4)

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

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Appeal Number 2023-0205 Part E – Summary of Facts The information the ministry had at the time of the reconsideration included:

1. A Record of decision indicating that the PWD application was submitted on May 11, 2023, and denied on June 21, 2023, with the Decision denial summary explaining the criteria that were not met. The ministry found that only the age and duration requirements were met.

On June 22, 2023, the appellant submitted a Request for Reconsideration. On July13, 2023, the ministry completed its review and found that the criteria for a severe impairment, daily living activities and help were still not met.

2. The PWD application with 3 parts:

The Applicant Information (“self-report”) date April 27, 2023, with a handwritten submission from the appellant.

A Medical Report dated May 2, 2023, signed by a Nurse practitioner (“NP”) who has known the appellant for more than 4 years, and has seen her 2-10 times in the past 12 months, and

An Assessor Report dated May 2, 2023, also completed by the NP who based the assessment on an office interview with the appellant, medical consult reports, and file/chart information.

Summary of relevant evidence from the application

Diagnoses

In Section A of the Medical Report, the appellant was diagnosed with degenerative disc disease; “other mental – depression,” and substance related disorders (onset for all conditions not indicated).

In Section B - Health History, the NP described a longstanding history of chronic pain secondary to cervical, lumbar, and facet degeneration as well as neuro foraminal narrowing. The appellant has also struggled with recurrent disc bulges at C1/T7, T3/4 and C5/6. Previous surgeries included left shoulder arthroscopy (2016) and a tibial rod fixation (2011).

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Appeal Number 2023-0205 The NP reported chronic thoracic back pain tha t radiates to the appellant’s lower limbs. Previous musculoskeletal injuries have exacerbated the baseline chronic pain. The appellant attended a rehabilitation program and tried pain management strategies, but the symptoms are unrelenting.

Regarding the mental impairment, the NP reported that the appellant is in long term remission from both stimulant use and alcohol use disorders. The appellant’s past medical history includes depression and Tourette’s disorder.

Functional skills

Self-report The appellant described “pain all the time” because “it hurts to stand, lay down, sit down, or stand up from a sitting position.” The appellant said that “walking hurts, I need to take breaks.” Hobbies such as fishing “are now non-existent so depression takes over.”

Medical Report In Section B - Health History, the NP described physical limitations due to chronic pain, including “impacts to both power in sensation to her arms.” The appellant “struggles with static positioning as well as extended periods of walking.”

In Section D - Functional Skills, the appellant was able to walk 2-4 steps unaided on a flat surface and climb 5+ steps unaided. The appellant was able to lift 5-15 pounds and remain seated for less than 1 hour.

Regarding the mental impairment, the NP checked “no” when asked if the appellant has difficulties with communication. When asked if there are any significant deficits with cognitive and emotional function, the NP checked “yes” with additional check marks for 3 of the 12 areas listed: Memory Emotional disturbance Other (comment, “Tourette’s”).

In Comments, the NP described mental impacts from pain: “chronic pain exacerbates her overall mood and sense of well-being.” The pain is longstanding despite medical treatments.

There was no check mark to indicate deficits for the following areas: Consciousness Executive

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

Appeal Number 2023-0205

Assessor Report In Section B-2, the NP indicated “good’ for all areas of communication: speaking, reading, writing and hearing.

In Section B-3, the NP assessed all areas of Mobility and Physical Ability as independent: Walking indoors Walking outdoors Climbing stairs Standing Lifting Carrying and holding (comment, “limited to 2-7 kg”).

In section B-4, Cognitive and Emotional Functioning, the assessor is asked to indicate the impact of a mental impairment on various functions. For the 14 areas listed, the NP indicated the following impacts: minimal impact for impulse control and attention/concentration moderate impact for memory major impact for bodily functions (sleep disturbance), emotion, motivation, and motor activity.

The NP commented, “depression/chronic pain impacted sleep every day. Memory and motivation impacted on most days.” The NP checked “no impact” for the remaining functions: Consciousness Insight and judgment Executive Language Psychotic symptoms Other neuro-psychological problems Other emotional or mental problems.

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Daily living activities

Appeal Number 2023-0205

The NP provided the following information:

Medical Report In Section C – Health History, the NP indicated that cumulatively, the appellant’s various spine and shoulder issues and experience with chronic pain “impact her activities of daily living and overall sense of well-being.” The NP reported that social functioning and enjoyment of activities is also impacted by chronic pain which “exacerbates her overall mood and sense of well-being that extends into all aspects of her social and emotional relationships, ability to engage in activities of daily living as well as activities she enjoys.” The NP reported that the appellant is unable to do the work that she valued due to chronic pain.

In Section C-3, the NP checked that the appellant has not been prescribed medications or treatments that interfere with the ability to perform daily living activities. In Section G – Additional Comments, the NP explained that although the appellant has been “diligent in accessing care to support her chronic pain and emotional/social functioning…her symptoms continue to negatively impact her ability to engage in her everyday living, relationships, and employment.”

Assessor Report In Section B-1, the NP indicated that the conditions described in the Medical Report (degenerative disc disease and depression, in particular) impact the appellant’s ability to manage daily living activities.

In Section D – Daily Living Activities, the NP assessed the appellant as independent with all areas of the 8 daily living activities listed in the report but said that the appellant takes 3 times longer than typical with Personal Care and Basic Housekeeping. Specifically, the NP provided the following information:

Personal Care The NP checked “independent” with dressing, grooming, bathing, toileting, feeding self, regulating diet, and transfers - bed and chair (comment, “independent with personal care; however, takes 3 times longer than average/expected”).

Basic housekeeping The NP checked “independent” with laundry and basic housekeeping (comment, “as above” in reference to the comment for Personal Care).

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Appeal Number 2023-0205 Shopping The NP checked “independent” for reading prices and labels, making appropriate choices, paying for purchases, and carrying purchases home.

Additional Comments for these daily living activities was left blank.

Meals The NP checked “independent” with meal planning, food preparation, cooking, and safe storage of food.

Pay Rent and Bills The NP checked “independent” with banking, budgeting, and pay rent and bills.

Medications The NP checked “independent” for filling/refilling prescriptions, taking as directed, and safe handling and storage.

Transportation The NP checked “independent” for all areas: getting in/out of a vehicle, using public transit, and using transit schedules and arranging transportation.

Additional Comments for these daily living activities was left blank.

Social Functioning In Section C, the NP checked “independent” for all areas of Social Functioning. The appellant was able to: make appropriate social decisions. interact appropriately with others. deal appropriately with unexpected demands. secure assistance from others.

The NP checked that the appellant has “good functioning” with her immediate and extended social networks (comment, “good relationships; however, impacted social participation”). The NP left the spaces blank when asked what support/supervision is required to help maintain the appellant in the community or if there are any safety issues.

For Section E - Additional Information, the NP said to refer to the information the Medical Report – Health History.

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Appeal Number 2023-0205

Additional information from the appellant – daily living activities

In the self-report, the appellant said that she “can barely go to the bathroom” because “it hurts to lay down, sit down, or stand up from sitting.” The appellant said that getting dressed takes her 3 times longer than the average person because she is unable to put on socks, pants, etc. “normally.” The appellant said that laundry also takes 3 times longer, and she needs to take breaks while cooking, doing dishes, or anything around the house that she was able to do in the past.

Need for help

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

Assessor Report In Section A-1, the NP checked that the appellant lives alone. In Section E - Assistance provided by other people the NP wrote “n/a.” The NP also wrote “n/a” for Section D - Assistance provided through the use of assistive devices. The NP checked that the appellant does not have an assistance animal.

3. A Request for Reconsideration signed by the appellant on June 24, 2023, with a typed submission. In addition to argument for the reconsideration, the appellant added the following details:

After the PWD application was submitted she got the results of an MRI and is awaiting a consultation with a neurosurgeon.

She is not able to do dishes “without my back, neck, legs hurting and my hands going numb.”

She has tried to walk a distance but “only made it about a block.”

She is unable to sleep due to pain. She cannot roll over “without physically having to try and pull myself up, grab the side of the bed and shift my body to roll over.” If she does not do this many times throughout the night, her back “throbs in pain.” She also needs a cervical pillow because of compressed nerves in her neck.

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Appeal Number 2023-0205 Her arms and hands go numb due to pain and she gets a bad headache, especially on the left side which affects her eye and causes dizziness. She experiences “occipital nerve flares” every month in which she is bedridden and “can’t do anything for at least 5 days.” She cannot get dressed while standing up. She needs to either sit down or hold onto something.

Additional submissions

The appellant submitted documentary evidence requiring an admissibility determination by the panel. The appellant also provided additional information at the hearing. The ministry raised no objections to any of the submissions and the panel admits the new evidence which provides historical and recent information on the appellant’s diagnoses, symptoms, available help, and treatments/interventions. The panel finds that the additional submissions are admissible as evidence that is reasonably required for a full and fair disclosure of all matters related to the decision under appeal.

The appellant filed a Notice of Appeal with a typed statement which the panel accepts as argument. Both parties provided argument at the hearing. The panel will consider the arguments in Part F-Reasons.

Documentary evidence

1. Appellant Submission I, 14 pages, received at the Tribunal on August 15, 2023

a) A Medical Imaging Report – Cervical Spine MRI (exam date April 24, 2023) indicated a history of back pain with decreased power and sensation in the arms. Findings included moderate facet arthropathy throughout the cervical spine and “mostly mild” disc and vertebral change with the exception of C5-C6 and C6-C7 where there is “some loss of disc space and more prominent osteo distal bar.”

The report described “mild or non-significant minor narrowing” at several locations along the appellant’s spine, with “moderate to severe left neural exit foraminal narrowing” at C3-C4 and C5-C6 with suspected subtle or minor compression. At C6-C7 there was “severe narrowing of the right neural exit foramen and mild narrowing of neural exit foramen.”

The clinical impression indicated in the report was “possible minor compression of the exiting C6 nerve roots bilaterally.”

b) A Medical Imaging Report – Cervical Spine X-Ray (exam date January 19, 2023) indicated that “alignment was maintained at all sequences.” The report said that “range of motion

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Appeal Number 2023-0205 seems to be limited with flexion and extension , though this may be related to the patient’s pain in combination with pre-existent multilevel degenerative changes throughout the cervical spine, particularly from C5-C7.” Facet degeneration has progressed and is more extensive since the previous examination in May 2013 “but the pre-existent neural foraminal narrowing has not changed significantly. No new or acute findings. No obvious trauma.”

c) Four Medical imaging reports (Lumbar spine CT, Thoracic/Lumbar spine MRI, Spine CT, and Cervical spine CT) dated from 2016-2020 indicated that the appellant was referred due to a history of “worsening low back pain.” Findings included disc bulges described as “trivial uncomplicated disc bulges within thoracic spine;” a posterior bulge at C-7/T-1 with obvious nerve impingement, and “minor disc bulges at T-3/4 and T5/C6.” Multi-level degenerative changes were observed within the lumbar and thoracic spine with “moderate degenerative disc disease at C5-6 and C6-C7. “

1. Appellant Submission II, 2 pages, received at the Tribunal on August 16, 2023 A letter from a neurosurgeon dated August 11, 2023, stated that the appellant has an appointment scheduled in September 2023 and is awaiting “an upcoming surgical procedure as well.”

Oral testimony

In addition to argument, the appellant provided the following information describing her current health, level of function, and restrictions to daily living activities:

The appellant said that her pain has gotten worse, and she cannot feel her hands/arm while holding a phone. She experiences daily pain, numbness, and tingling and cannot function like she used to.

The appellant described issues with bending and sitting. Her back hurts when she goes to the bathroom; she cannot have a bath or wash her hair (“because I can’t lift my arms up”). She cannot vacuum or do laundry (“I can’t pull the laundry out of the machine because the muscle pulls in my neck and gives me a pounding headache”).

The appellant said she cannot sweep the floor due to numb fingers, or tie her shoes (“my fingers don’t work so I have to slip shoes on”).

The appellant described problems with sleeping. She takes medication to fall asleep but wakes up during the night “because I can’t roll over properly.”

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Appeal Number 2023-0205

The appellant said that she was diagnosed with Tourette’s when she was younger. She takes medication for Tourette’s as well as anxiety/depression. The appellant said that she also takes medication for borderline personality disorder which was diagnosed 10 years ago by a psychiatrist (the appellant said she did not receive a copy of the report).

The appellant said that she uses Advil/Tylenol and a non-narcotic prescription medication for pain because she wants to avoid narcotics.

In response to questions, the appellant said that her landlord//landlady helps her with some things but “other things are too embarrassing to ask.” The appellant said she used a cane in the past, but the NP has not prescribed any assistive devices.

The appellant said she had done some physiotherapy and chiropractic treatment and saw the NP quite often (before the NP went on holiday for the summer). She has not had any contact with the NP for awhile since the NP is currently away.

The appellant said that she has upcoming “ACDF” surgery [Anterior cervical discectomy and fusion, “spinal fusion surgery”] that will hopefully help the numbness in her arms/hands as well as the pain. The appellant explained that surgery was discussed during a phone consultation with the neurosurgeon.

She will have an in-person appointment in September and the surgery will take place 6-12 weeks after that. The appellant said that the required surgery is related to nerve damage at the C5/C6 level of her spine which was shown on the most recent MRI (April 2023).

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Appeal Number 2023-0205 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 Act 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 (mental) 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 severe physical or 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 doctor has given the opinion that the 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.

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Severe impairment

Appeal Number 2023-0205

“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 interpretation of the legislation. A medical practitioner’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.

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Help Required

Appeal Number 2023-0205

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