Ministry of Social Development and Poverty Reduction

Appeal Number 2023-0228 Part C – Decision Under Appeal The decision under appeal is the Ministry of Social Development and Poverty Reduction (the Ministry) decision dated July 25, 2023 denying 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 • needing significant help to perform daily living activities.

The Ministry found the Appellant was not one of the prescribed classes of persons eligible for PWD on alternative grounds. As there was no information or argument on this point, the Panel considers it not to be an issue in this appeal.

Part D – Relevant Legislation Employment and Assistance for Persons with Disabilities Act (Act), section 2

Employment and Assistance for Persons with Disabilities Regulation (Regulation), section 2

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

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Appeal Number 2023-0228 Part E – Summary of Facts Evidence Before the Ministry at Reconsideration:

The information the Ministry had at the time of the decision included: • Medical Report and Assessor Report completed by the Appellant’s Doctor • Appellant’s Self Report • A Request for Reconsideration where the Appellant provided similar comments as made in the Self Report (below), as well as the following: o The Doctor says she filled out the application based on mental state. We had a disagreement as she knows I have limitations to daily living. o My bedroom is now in my living room, and has been for over a year, because I struggle with stairs. o I also have issues with hygiene, the part of the booklet my Doctor never asked me questions about. I found her answers to be very untrue. Everyone who knows me will tell you my problems. o I was working with a worker from the local Program, trying to help me leave my home and with daily tasks, but my son is now too old for the Program. My Mother comes to town two times a month to help me clean my place, the upstairs and basement and laundry. o I have been prescribed something to help me sleep as I have issues there as well. o I have included a letter from my Doctor asking for an extension because I have daily restrictions. • On an additional page, as part of the reasons for requesting a reconsideration, the appellant wrote further. Some comments have been noted as above, but the additional comments are: o I am seeing a different doctor for Fibromyalgia. My original doctor did not ask any questions when filling out the forms. She went off my mental state which is a lot worse than she says. She never included my daily limitations or all my health issues. o I have thyroid issues. I have had asthma my whole life. I have hearing issues from an accident when I was small. I have had digestive issues since way before 2006. Hospital records prove it. Some say IBS, others say Crohn’s. o I can’t walk far or run as my knees give out. o I have limits lifting anything over 25 pounds cause of issues with all my joints. o I am limited to two to three hours of sitting. o My family helps me because I have no one in town, besides my Auntie. With approval I can get the help from resources.

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Appeal Number 2023-0228 o I am not independent. • A letter from the Appellant’s Doctor confirming that, since the submission of the PWD application, the Appellant is working with a Rheumatologist to explore Osteoarthritis and Fibromyalgia.

PWD Application

Medical Report:

The Doctor states that they have been the Appellant’s family physician for 6 (does not indicate whether it is six months or six years) and have seen the Appellant between 2 and 10 times in the past 12 months.

Diagnosis:

The Doctor provides diagnoses of Mood Disorder – depression, Anxiety Disorder – generalized anxiety and Post Traumatic Stress Disorder with onset for both being since 2006.

Health History:

The Doctor states that depression and anxiety affect the Appellant every day. They are both very severe. She is limited in her ability to leave the home, always worried something bad will happen.

Functional Skills:

The Doctor indicates the appellant: • can walk 4+ blocks unaided on a flat surface • can climb 5+ stairs unaided • has no limitations in lifting or remaining seated The Doctor indicates that the Appellant has significant deficits with cognitive and emotional functioning in the areas of executive, emotional disturbance, motivation and attention. They explain that she struggles with mood, depression, anxiety causing daily significant impairment.

Assessor Report:

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Mental or Physical Impairment:

Appeal Number 2023-0228

The Doctor states that the Appellant’s mental or physical impairments that restrict her ability to manage daily living activities are due to severe anxiety and depression. They state that the Appellant struggles outside of the home and avoids public places/stores. She feels not safe to leave home as it triggers her anxiety.

Mobility and Physical Ability:

The Doctor indicates that the Appellant has a good level of ability to speak, read, write, and hear. They indicate that the Appellant is independent in all areas of physical mobility listed on the form.

Cognitive and Emotional Functioning:

The Doctor indicates that the Appellant’s anxiety and depression impacts her functioning as follows: • major impact with emotion • moderate impact with attention/concentration, and motivation • minimal impact with executive and memory • no impact with bodily functions, consciousness, impulse control, insight/judgement, motor activity, language, psychotic symptoms, other neuropsychological problems or other emotional or mental problems.

Daily Living Activities:

The Doctor indicates the Appellant is independent in all areas of personal care, basic housekeeping, reading prices and labels, making appropriate choices, paying for purchases and carrying purchases home. The Doctor indicates the Appellant cannot go to stores alone and has to take a pill if her auntie cannot go with her. She avoids shopping as much as possible as she feels very unsafe going out in public places. She sometimes will have to leave or sit in the car. The Doctor indicates the Appellant is independent in all areas of meals, paying rent and bills, medications and transportation.

Under Social Functioning, the Doctor indicates that the Appellant is independent in the areas of appropriate social decisions, able to develop and maintain relationships, interacts appropriately with others, able to deal appropriately with unexpected demands and able to secure assistance from others. The Doctor indicates the Appellant has very disrupted

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Appeal Number 2023-0228 function with immediate social network and m arginal functioning with extended social network.

Assistance Provided for Applicant:

The Doctor indicates that the Appellant’s family provides the help required for daily living activities and she does not have an assistance animal. The Doctor added an additional comment. “Severe daily experience of anxiety and depression causing significant limitation in function. Daily significant impairment in function as a result.”

Self Report:

The Appellant states:

• She suffers from PTSD and anxiety. • To leave her house to do normal things is very hard, she has to have the support of her Auntie, who helps her go out shopping. • It is a daily struggle to do easy things such as clean or comb her hair. • Since Covid hit BC, she has the tendency to do certain things in order (OCD). • She has suffered with PTSD since 2006 and since then many things in her life have added to the depression. • She talks to a healer and in her native culture talking about it helps her release. • Some days are bad where she feels it is a struggle to get out of bed. • She does have anxiety meds to only take when she really needs to. • She has a Mother Support Worker that has been helping her since last year and to help her understand things. • Her anxiety is a daily problem. She doesn’t like having to leave her home unless she has to. Even going shopping is a struggle. More than once she has left her cart and had to go outside as she doesn’t like crowds. She starts to panic if too many people around. • She is also claustrophobic from a child being stuck in a box. • She also has alopecia where she randomly gets bald spots, so she always hides her hair. • Her disability affects her greatly as she finds it hard to get motivated to do daily tasks. • She finds it hard to care for herself on bad days. • She loses appetite. • Usually stays in PJ’s. • Her worker has been working with her to motivate herself to change every day. • She has to have a to do list to try every day. • Her oldest son makes sure on a bad day she eats for herself.

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Appeal Number 2023-0228 • Every day is different in many ways. Some d ays are easy, but she still has to follow things a certain way. (kitchen, floors, living room, bedroom, bathroom for cleaning). • Every day her feelings are different. • She has anxiety about everything which doesn’t help and having alopecia has been more depressing as a woman. • Having anxiety, PTSD, OCD is very challenging every day.

Additional Evidence:

On the Notice of Appeal form, the appellant wrote: • I feel I qualify and meet the requirements as I have daily restrictions, not only lifting, walking, leaving my home, sleeping. • I have fibromyalgia and my knees give out on me, they swell when I stand too long and turn blue. • My bones ache 24/7. • I can’t go upstairs, it hurts, too. • My mental health is bad. • I know being on disability would benefit me and help a lot. • I had a lady from a local program helping me out, but she is now on leave. • I have a lot of health issues.

The Appellant submitted an additional Doctor note on September 5, 2023. The Doctor wrote on a prescription paper to the Appellant, “Fibromyalgia”.

At the hearing, the appellant said: • Her doctor completed the PWD form focusing on the mental part of the form and did not review her physical limitations with her. Her doctor has been her doctor for six years. • Her specialist has now confirmed that she has fibromyalgia. Her knees balloon, she can’t walk upstairs as her knees give out on her. Because of this, she has lived on the main floor of her house for six years. • Her anxiety is really bad, and she had to take an Ativan pill before coming to this hearing, and she spoke to her auntie right up until she was called into the hearing to help her get through this. • She doesn’t sleep well because of the pain and takes medication to help her sleep. • Her auntie has to take her shopping and pushes her to go into the store, but she often has to leave. She is seeing a counsellor to try to help her with that. • When she is depressed and having bad days, she doesn’t even comb her hair. (When asked how often she has a bad day she answered that it is every other day.)

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Appeal Number 2023-0228 • She can do housework, but in an OCD way. On her bad days she cannot do any housework at all.

At the hearing, the Ministry reviewed the Reconsideration Decision and noted specifically that: • All five criteria must be met. The Appellant has met the age and duration criteria, but does not meet the remaining criteria, which are: no severe impairment; that daily living activities are not significantly restricted; and because they found the daily living activities were not significantly restricted it cannot be determined that significant help is required. • The Ministry found it challenging to determine there was a severe impairment because the Doctor indicated the Appellant is independent in daily living activities, except for shopping and transportation. • The supplemental information, the specialist note confirming Fibromyalgia, submitted by the Appellant does not provide any information or narrative as to the severity, how her daily living activities are impacted or whether help is required. There is no compelling argument that the fibromyalgia is severe.

The Panel asked the Ministry for their interpretation of the Act section 2(3)(a). This legislation seems to indicate that a person who has a severe mental impairment includes a person with a mental disorder. Because the doctor has confirmed the Appellant has 3 mental disorders, would this not automatically confirm the Appellant has a severe mental impairment? The Ministry responded that it does not, that all the other criteria must be met.

The Panel asked the Ministry to explain the discrepancy between the original PWD denial decision and the Reconsideration Decision with regard to the severity of the Appellant’s mental impairment. The original denial indicates that all areas of mental impairment were reviewed, and it was determined the application evidence does not establish a severe impairment. In the Reconsideration Decision, the adjudicator wrote that the Ministry was satisfied that social functioning outside of the home, including any need for public transportation, would be significantly affected because of the Appellant’s mental health condition. The Ministry responded that they were not sure why the adjudicator wrote that statement because the Decision also indicated that it was challenging to establish a severe impairment based on the evidence provided.

The panel asked the Ministry whether the Doctor checking the “independent” boxes overrides their written comment. The Ministry responded that if both the Medical Report and the Assessor Report showed limitations to daily living activities, the Ministry would

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Appeal Number 2023-0228 have enough information, however there were inconsistencies in the Doctor’s reporting.

The panel asked the Ministry that if a mental impairment exists, and a person can do daily living activities on a good day, does the Ministry consider a person’s “bad” days? The Ministry responded that if the Doctor would have indicated this, there would have been enough information for them to make a different decision.

Admissibility of Additional Information

The Ministry did not object to the additional Doctor diagnosis or the oral evidence of the Appellant.

The Panel finds that the additional evidence is reasonably required for the full and fair disclosure of all matters in the appeal. Therefore, the Panel finds that the additional evidence is admissible under EAA s. 22(4).

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Appeal Number 2023-0228 Part F – Reasons for Panel Decision The issue on appeal is whether the Ministry’s decision denying the Appellant PWD designation is reasonably supported by the evidence or is a reasonable application of the legislation. The Ministry found the Appellant met the age (over 18) and duration (likely to last more than two years) requirements. However, the Ministry found the Appellant did not meet the requirements for:

• severe mental or physical impairment • significant restriction on the ability to perform daily living activities • needing significant help to perform daily living activities.

Appellant’s Position:

The Appellant’s position is that she meets the criteria for PWD designation. She says her depression and anxiety, as well as her physical pain, affects her every day. Her doctor has confirmed that she has a severe mental impairment, and her specialist has confirmed she suffers from Fibromyalgia. She requires help daily to manage her daily living activities. Therefore, she says she meets the criteria.

Ministry’s Position:

Physical Impairment:

The Ministry maintains that although a specialist has confirmed the Appellant has a Fibromyalgia medical condition, they did not provide any evidence to indicate how severe it is, or whether she requires significant assistance to manage her daily living activities because of it.

Mental Impairment:

The Ministry says that the Appellant’s mental impairment is moderate, not severe, because she is independent with no reported impairment in her ability to complete her daily living activities within the home and has only one area (emotion) as being majorly impacted, and only two areas with moderate impacts (attention/concentration and motivation). The Ministry argues that this is indicative of a person having a moderate mental impairment given her struggles leaving the home and interacting with others in the community.

Daily Living Activities:

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Appeal Number 2023-0228 The Ministry determined there are direct and m oderate impacts to the Appellant’s daily living activities, given that she has no restrictions with daily living activities inside the home and significant impacts to her ability to perform daily living activities required outside the home, such as when she is required to go shopping, to activities or programs within the community, and to any appointments. However, because she is independent with all daily living activities inside the home, and there is no report of her taking significantly longer to complete them, the ministry is unable to conclude that the mental impairment is causing direct and significant restrictions in her ability to complete daily living activities.

Help to Perform Daily Living Activities:

The Ministry’s position is that as it has not been established that daily living activities are significantly restricted it cannot be determined that significant help is required from other persons.

Panel Decision:

PWD Designation – Generally

The legislation provides the Ministry with the discretion to designate someone as a PWD if the requirements are met. In the Panel’s view, PWD designation is for persons who have significant difficulty in performing regular self-care activities.

Some requirements for PWD designation must have an opinion from a professional, and it is reasonable to place significant weight on these opinions. The application form includes a Self Report. It is also appropriate to place significant weight on the Self Report and evidence from the Appellant, unless there is a legitimate reason not to do so.

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

Severe Mental or Physical Impairment:

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

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Appeal Number 2023-0228

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.

Physical Impairment:

The panel finds that the Ministry was reasonable in its determination that there was not enough information provided to determine the Appellant’s physical impairment is severe; that it directly and significantly restricts her ability to perform daily living activities either continuously or periodically for extended periods; or that, as a result of those restrictions, she requires help to perform those activities.

Although the Appellant provided a doctor note that confirms she has Fibromyalgia, it does not indicate the severity of her condition, or how it affects her ability to manage daily living activities. The Appellant has indicated her pain restricts her ability to climb stairs and to manage some of her daily living activities, however this was not confirmed by the Doctor, as is required. The Doctor, in the Medical Report and Assessor Report, indicates the Appellant has no physical restrictions in her ability to manage daily living activities. The doctor indicates she has no restrictions with mobility, stairs, lifting, walking, or sitting. Therefore, the Panel finds that the Ministry was reasonable to determine there was insufficient information to determine the Appellant has a severe physical impairment.

Mental Impairment:

The Panel finds that, considering the information provided in the Medical Report and Assessor Report as well as additional information provided by the Appellant at the hearing, the Ministry’s determination that the Appellant does not have a severe mental impairment is not reasonable. The Panel finds that the combined effects of PTSD, Mood Disorder – depression, and Anxiety Disorder result in a severe mental impairment for the Appellant.

The Doctor reports that the Appellant’s depression and anxiety affects her every day and that they are both “very severe”. The Doctor adds that her struggles with mood, depression, and anxiety causes “daily, significant impairment”. The Doctor confirms that due to severe anxiety and depression the Appellant is limited when doing any activity outside the home, that she feels very unsafe going out to public places and cannot go the store alone as it triggers her anxiety. The Doctor confirms the Appellant has significant

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Appeal Number 2023-0228 deficits with cognitive and emotional function in the areas of executive functioning, emotional disturbance, motivation and attention. The Doctor reports the Appellant has very disrupted functioning in her immediate social network and marginal functioning in her extended social networks.

The Appellant explained, at the hearing, that she experiences “bad” days every other day because of her depression. During the bad days she is unable to even get herself out of bed, she does not care for herself and needs to be reminded to eat. The Appellant confirms she cannot go shopping or use public transportation without someone going with her because her anxiety and depression is triggered such that she has to leave the store.

In its Reconsideration Decision, the Ministry indicates that because the Appellant is totally independent in all her daily living activities, except for shopping and use of public transportation, that this is indicative of a moderate mental impairment, not a severe one.

When determining the severity of the mental impairment, it is reasonable to consider the frequency and duration of anxiety and panic attacks. The Panel finds that being able to manage daily living activities only 50% of the time to be significant. The Panel finds that it is also both reasonable and important to consider the impairment resulting from the Appellant’s efforts to avoid those anxiety and depression attacks. The Appellant cannot venture out from her home alone, or without taking medication, even to go appointments, shopping or use public transportation. The Panel finds that the limitations in daily function due to high anxiety and depression, including the need to avoid those attacks, are a severe impairment.