Ministry of Social Development and Poverty Reduction

2023-0235 Part C – Decision Under Appeal The decision under appeal is the reconsideration decision of the Ministry of Social Development and Poverty Reduction (the “Ministry”) dated July 26, 2023 (the “Reconsideration Decision”), in which the Ministry denied the Appellant a persons with disabilities (“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; and  needing significant help to perform daily living activities.

The Ministry also 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 (the “Act”) – section 2  Employment and Assistance for Persons with Disabilities Regulation (the “Regulation”) – section 2

Note: The full text is available after the Decision.

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2023-0235 Part E – Summary of Facts (a) The Reconsideration Decision The evidence before the Ministry at the Reconsideration Decision consisted of:  an Applicant Information Form completed on April 1, 2023;  a Medical Report completed by the Appellant’s doctor (the “Doctor”) completed on April 2, 2023;

 an Assessor Report completed by a registered nurse (the “RN”) completed on April 1, 2023;

 the Appellant’s Canada Pension Plan Disability Benefit Form (“CPPDB Form”) completed on July 1, 2023; and

 a personal written statement from the Appellant submitted with his request for reconsideration dated on July 5, 2023;

(i) Applicant Information Form (“Self-Report”) On review of the Appellant’s Self-Report, he checked the box marked “I choose not to complete this self-report”. As a result, the body of the Self-Report was left blank.

The Self-Report was signed by the Appellant and witnessed by the RN. (ii) Medical Report The Doctor states that the Appellant has been their patient since mid February 2023, and they have seen the Appellant 2 to 10 times in the past 12 months prior to completing the Medical Report. However, there is an additional notation that the Appellant has attended the Doctor’s clinic since June 2014, presumably under the care of another physician.

Diagnosis: The Doctor diagnoses “lower backache”; however, they do not specify the onset of the backache.

Health History: The Doctor states that the Appellant experiences “severe backache due to L5/S1 [spondylolisthesis] due to PARS defect”. For clarity, spondylolisthesis is a spinal disorder in which one vertebra (spinal bone) slips onto the vertebra below it and PARS defect is a stress fracture of the bones of the lower spine. The Doctor marked “no” to the questions of whether the Appellant (i) had been prescribed any mediation and/or treatments that interfere with their ability to perform daily living activities and (ii) required any prostheses or aids for their impairment.

Degree and Course of Impairment:         EAAT003 (30/08/23) 3

2023-0235 The Doctor states that the Appellant’s impairment is likely to continue for 2 years or more and that surgical fixation is needed.

Functional Skills: The Doctor indicates that the Appellant can walk 4+ blocks unaided, climb 5+ stairs unaided, and can remain seated without limitation. However, the Appellant is unable to lift anything. The Doctor also states that the Appellant does not suffer from any significant deficits with cognitive and emotional functioning.

Daily Living Activities: The Doctor indicates that it is unknown as to whether the Appellant’s impairment restricts any of his daily living activities. The Doctor does not provide any further explanation.

Additional Comments: The Doctor does not provide any additional comments. (iii) Assessor Report In preparation for drafting the Assessor Report, the RN met the Appellant once to conduct a nursing assessment, namely an office interview, and they reviewed the Appellant’s back x-ray dated February 27, 2023. Otherwise, the Assessor Report does not specify any other medical records reviewed by the RN.

Mental or Physical Impairment: The RN states that the Appellant’s mental or physical impairments are as follows:  fractured vertebrae;  chronic anterolisthesis L5 and S1 (bilateral pars defects);  chronic degenerative disc disease;  post traumatic stress disorder (“PTSD”) and anxiety;  irritable bowel syndrome;  brain injury arising from a ski accident, assault, and horse accident;  learning disability in terms of slow processing and memory defects. Ability to Communicate: The RN indicates that the Appellant’s speaking is satisfactory; however, his reading, writing, and hearing are poor. The RN explains that the Appellant is a non-reader with poor memory and focus, and has remedial level grammar and spelling. The RN also writes that the Appellant has “tinnitus 50% time”.

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Mobility and Physical Ability:

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The RN indicates that the Appellant can walk indoors and outdoors independently for up to a maximum of 30 minutes. With respect to climbing stairs, the RN explains that the Appellant requires periodic assistance from another person. With respect to standing, lifting, and carrying and holding, the RN writes that the Appellant requires continuous assistance from another person or that he is unable to complete these activities; however, the Appellant is able to:

 stand for 5 to 20 minutes;  lift a maximum of 20 lbs.; and  carry and hold between 5 lbs. to 10 lbs. for up to 10 minutes. In the explanation section, the RN notes that “Due to severe chronic back pain x 8 yrs + severe pain flare ups 60-70% of the time.”

Cognitive and Emotional Functioning: The RN indicates that the Appellant’s cognitive and emotional functioning are impacted by his impairments as follows:

 bodily functions (major impact);  consciousness (moderate impact);  emotion (major impact)  impulse control (no impact);  insight and judgment (no impact);  attention/concentration (major impact);  executive (major impact);  memory (major impact);  motivation (moderate impact)  motor activity (no impact);  language (moderate impact);  psychotic symptoms (minimal impact);  other neuropsychological problems (major impact); and  other emotional or mental problems (major impact). In the additional comments section, the RN writes, “Sleep affected by back pain – cannot get comfortable to sleep. 15 days/month client will only sleep less than 2 hrs/night”.

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Daily Living Activities:

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The RN indicates that, due to the impairments, the Appellant needs periodic assistance from another person for:

 dressing, grooming, bathing, toileting, feeding self, and regulating diet;  laundry;  going to and from stores;  getting in and out of a vehicle; and  using transit schedules and arranging transportation. The RN further indicates that, due to the impairments, the Appellant needs continuous assistance from another person for:

 basic housekeeping;  reading prices and labels;  carrying purchases home;  meal planning, food preparation, and cooking;  banking and budgeting;  filling/refilling prescriptions; taking prescriptions as directed and the safe handling and storage of medications; and

 using public transit. In the additional comments section, the RN writes, “With back flare ups – client is unable to move even an inch due to incapacitating pain lasting for a hours to days. Neuropathic pain – numbness and tingling to legs”.

In terms of social functioning, the RN indicates that, due to the mental impairments, the Appellant needs the support of another person as follows:

 appropriate social decisions (continuous support);  able to develop and maintain relationships (continuous support);  interacts appropriately with others (periodic support);  able to deal appropriately with unexpected demands (continuous support); and  able to secure assistance from others (continuous support). The RN recommends that the Appellant have mental health supports for anxiety and social isolation. In the additional comments section, the RN writes, “Extreme isolation with severe back pain puts client @ risk of not being able to get help or do ADL’s”.

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Assistance Provided for Applicant:

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The RN indicates that the Health Authority Professionals (walk in Doctor) provide help to the Appellant for daily living activities. The RN, again, notes that the Appellant is very isolated and requires assistance, but that no assistance is available. In addition, the RN writes that the Appellant requires chronic pain management services for “… lifting, carrying, shopping, cooking, laundry, housekeeping, prompts for personal care, emotional + social supports…”

The RN also advises that the Appellant uses the following to compensate for his impairments: Dr. Ho massage impulse machine, back supports, and hot/cold packs. For clarity, the RN notes that the Appellant uses back supports for backpain flareups. In addition, the RN suggests that the Appellant may require a wheelchair for backpain flare ups.

(iv) CPPDB Form Duration of relationship with the patient: The Doctor states that he has provided care for the Appellant for less than one (1) year. Between the span of February and July 2023, the Doctor has seen the Appellant a total of four (4) times.

Medical conditions, impairments, functional limitations and treatment: The Doctor’s only diagnosis is “Anterolisthesis of L5 on S1, grade 1-2”. For clarity, anterolisthesis is an abnormal alignment of bones in the spine which usually affects the lower back. In terms of impairments, the Doctor states, “Chronic backache – causing immobility from time to time, needing bed rest.” In describing the Appellant’s functional limitation, the Doctor states, “Unable to perform minor tasks around his house and work without pain.” The doctor describes the frequency of the Appellant’s condition as “continuous” with an expected duration of “more than 1 year”. While noting that the Appellant awaits prolotherapy treatment to treat his condition, the Doctor notes that no medications have been prescribed to him.

Other relevant information: The Doctor states, “If prolotherapy fails we be referred for possible spinal fusion of chronic anterolisthesis of L5 on S1, grade 1-2, related to bilateral pars defects.”

Supporting documents: The Doctor relies on “X-rays done of back”. (v) Personal Statement The Appellant writes:

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“I am requesting reconsideration because my physical impairment is far beyond what was described in the decision summary. The impairment I experience is more than simply backache, but is rather nerve pain caused by inflammation and a fractured and slipped vertebrae. Further, while the physical limitations described in the decision summary might accurately describe my abilities on my best days, I am regularly completely incapacitated by swelling and nerve pain when my back is inflamed. During these episodes, I am practically immobile, usually including one or two days of being completely bedridden and unable to complete the simplest tasks, including making phone calls, dealing with paperwork, or any daily living activities (cooking, cleaning, shopping, moving about, etc). I would estimate, depending on my physical activity between episodes, I am in such a immobile state roughly 10 days per month. These episodes, however, are unpredictable and can happen, at any time, brought on by something as leisurely as walking on the sidewalk. During these episodes, to complete any daily living activities such as moving about, managing personal finances and keeping the home clean I would require need total assistance from another person. However; given that I live on my own, these activities are instead simply postponed until my spasms have subsided and I am mobile again, unless somebody does assist me. Though an assistive device in the form of a walking aide would be required in order to perform certain daily living activities, I generally forgo those activities as I do not wish to rely on assistive devices, and instead simply use the supports around me (walls, furniture, etc.). As such, I often do not go out during bad episodes as those who see me offer help when I'm walking and I find it embarrassing.”   (b) The Appeal

On August 1, 2023, the Appellant filed a Notice of Appeal (the “Appeal Notice”). In the Appeal Notice, the Appellant wrote, “… after 35 years serving my community pouring concrete Im no longer capable of working full days and some days I cant work at all with a sliped (sic) vert (sic) that fractured and degenerative disks (sic) leaves me incapasitated (sic) several days of the month. Im (sic) going to require surgery…”

The Appellant’s written Appeal hearing was held on September 7, 2023.         EAAT003 (30/08/23) 8

2023-0235 The Ministry referred to and relied upon the Appeal Record which largely consisted of the Reconsideration Decision.

The Panel determined that the Appellant’s limited submissions contained in the Appeal Notice were provided as argument in support of his Appeal. To the extent that the submissions can be considered as additional evidence, the Panel has determined that the submission are admissible pursuant to section 22(4) of the Employment and Assistance Act as it was reasonably required for a full and fair disclosure of all matters related to the decision under Appeal.

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2023-0235 Part F – Reasons for Panel Decision The issue on appeal is whether the Ministry’s decision denying the Appellant a 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; or  needing significant help to perform daily living activities. Appellant’s Position The Appellant says that he has a severe physical impairment due to lower backpain arising from diagnosed medical issues related to his lower spine and vertebrae, namely in the L5 on S1 region. As a result, the Appellant argues that he suffers from significant restrictions on his ability to perform daily living activities thereby needing significant help to perform them. Therefore, the Appellant believes he qualifies for a PWD designation.

Ministry’s Position The Ministry maintains that the Appellant does not qualify for a PWD designation for the reasons stated in its Reconsideration Decision. In coming to its conclusion, the Ministry contrasts the Medical Report and Assessor Report which provide an inconsistent picture of the Appellant’s condition. As the Ministry believes that the Appellant has a more established relationship with the Doctor, given their multiple visits together, it prefers the Medical Report over the Assessor Report that was completed by the RN who only saw the Appellant once. Overall, the Ministry submits that there is not enough evidence to confirm if the Appellant:

 has a severe mental or physical impairment;  suffers from significant restriction on his ability to perform daily living activities; or  needs significant help to perform daily living activities. Panel Decision The legislation provides the Ministry with the discretion to designate someone as a PWD if the requirements are met. In the Panel’s view, a PWD designation is for persons who have significant difficulty in performing regular self-care activities, commonly referred to as daily living 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

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2023-0235 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. In this Appeal, the Appellant chose not to complete the Self-Report, but he provided a written statement, which the Panel accepts as a Self-Report.

The Panel will review the reasonableness of the Ministry’s determinations and exercise of discretion.

(a) Conflicting Reports The Panel notes that the Medical Report and Assessor Report (collectively, the “Reports”) contain conflicting information. As a result, the Ministry preferred the Medical Report over the Assessor Report given its belief that the Appellant and the Doctor had a more established relationship.

As an example of the conflicting information found in the Assessor Report, the RN writes that the Appellant suffers from numerous mental health conditions whereas the Medical Report is notably absent with any reference to such conditions. Further, the Medical Report suggests that the Appellant is unable to lift anything whereas the Assessor Report suggests that the Appellant can lift a maximum of 20 lbs. Even further, the Assessor Report suggests that the Appellant suffers from significant deficits with cognitive and emotional dysfunction, and issues with communication, whereas the Medical Report explicitly indicates that no such issues exist. In sum, the Medical Report and Assessor Report provide two (2) different accounts of the Appellant.

Despite their differences, the Medical Report and Assessor Report do contain some consistent information. For example, both documents indicate that the Appellant suffers from lower backpain that arises from the L5/S1 region of the Appellant’s spine. Further, both Reports’ findings respecting the Appellant’s ability to walk unaided and climb stairs are largely consistent.

The Panel finds the Ministry’s preference for the Medical Report over the Assessor Report to be unreasonable in the circumstances. Here, the Ministry preferred the Medical Report over the Assessor Report given its belief that the Appellant and the Doctor had a more established relationship as the Appellant has know the Doctor longer. When the Medical Report was completed, the Doctor had seen the Appellant between one (1) and four (4) times; however, a review of CPPDB Form suggests that, at the material time, the Doctor had seen the Appellant at least once, but not more than three (3) times. Conversely, the RN met the Appellant only once to complete a nursing assessment. While the Doctor likely met the         EAAT003 (30/08/23) 11

2023-0235 Appellant more times in comparison to the RN by the time the Reports were completed, there is nothing on its face to suggest that the Appellant had a more established relationship with the Doctor as the Ministry suggests; indeed, the Appellant’s history of contact with both professionals was minimal at the material time. While the Appellant may have been a patient of the clinic where the Doctor practices since 2014, there is nothing in the records to suggest that the Appellant’s prior attendance at the clinic played any factor in the Doctor’s assessment other than with respect to the diagnosis listed in the Medical Report. Further, it is unclear as to what observations, clinical data, and experience the Ministry relied on to make its determination respecting the weight it put on the Medical Report over the Assessor Report.

Further, there is nothing to suggest that the Doctor spent more cumulative time with the Appellant in comparison to the RN. The Panel notes that the detailed notes and comments included in the Assessor Report supports the view that time and effort went into the RN’s assessment.

In sum, the Panel finds that it cannot be said that the Appellant had a more established relationship with the Doctor; rather, it can only be said that the Appellant saw the Doctor a few more times than he had seen the RN by the time the Reports were written.

(b) Severe Mental or Physical Impairment “Severe” and “impairment” are not defined in the legislation. The Ministry considers the extent of any impact on daily functioning as shown by limitations with or restrictions on physical abilities and/or mental functions. The Panel finds that an assessment of severity based on physical and mental functioning including any restrictions is a reasonable application of the legislation.

A medical practitioner’s description of a condition as “severe” is not determinative. The Minister must make this determination considering the relevant evidence and legal principles.

(i) Physical Impairment The Panel has reviewed the Reports and notes that both documents refer to an impairment of the Appellant’s L5/S1 joint. In the case of the Medical Report, the Appellant’s lower back impairment is diagnosed as “lower backache”. The severity of the Appellant’s impairment is described as “severe backache due to L5/S1 [spondylolisthesis] due to PARS defect”. According to the Doctor, the Appellant is unable to lift anything; however, the Doctor notes that the impact of the Appellant’s physical impairments on his ability to perform daily living activities is unknown.

In the Assessor Report, the Appellant’s lower back impairment is described as, “fractured vertebrae, chronic anterolisthesis L5 and S1 (bilateral pars defects) chronic degenerative disc

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2023-0235 disease…” According to the RN, the Appellant’s ability to lift, stand and carry/hold items is limited; as a result, he requires periodic assistance from another person to assist with personal care, basic housekeeping, shopping, meals, paying of bills, his medications, and using transportation.

While the Reports describe a similar impairment, the Panel notes that CPPDB Form, which was more recently completed by the Doctor, helps bridge the gap between the two documents as it lists the Appellant’s physical impairment as “anterolisthesis of L5 on S1, grade 1-2”. As a result, the Doctor states that the Appellant suffers from “chronic backache – causing immobility from time to time, needing bed rest”.

In addition, the Appellant provides the following additional information in his personal statement to better explain his impairment and limitations arising thereof:

 his backache is caused by inflammation and a fractured and slipped vertebrae;  he is regularly completely incapacitated by swelling and nerve pain when his back is inflamed; and

 when his backpain flares up, he is physically immobile and completely bedridden and unable to complete the simplest of daily living activities.