Ministry of Social Development and Poverty Reduction

Appeal Number 2023-0156 Part C – Decision Under Appeal The decision under appeal is the Ministry of Social Development and Poverty Reduction’s (“ministry”) Reconsideration Decision dated May 29, 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, but the ministry was not satisfied that: • the impairment is likely to continue for at least 2 years (in the opinion of the doctor), • 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.

EAAT (26/10/22) 2

Appeal Number 2023-0156 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

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

EAAT (26/10/22) 3

Appeal Number 2023-0156 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 February 23, 2023, and denied on April 12, 2023, with the Decision denial summary explaining the criteria that were not met. The ministry found that only the age requirement was met.

On April 28, 2023, the appellant submitted a Request for Reconsideration. The ministry approved the appellant’s request for an extension of time to submit additional information. On May 29, 2023, the ministry completed its review and found that 4 criteria were still not met (duration, severe impairment, daily living activities and help).

2. The PWD application with 3 parts:

The Applicant Information (“self-report”) dated December 12, 2022, with a handwritten submission from the appellant.

A Medical Report dated January 16, 2023, signed by a general practitioner (“Dr. A”) who had seen the appellant 2-10 times in the past 12 months. The appellant had been attending the walk-in clinic since June 2022.

An Assessor Report dated December 12, 2022, completed by a registered social worker who had known the appellant for 3 weeks and had seen her once in the past 12 months. The social worker said that the appellant was referred by Dr. A. The social worker based the assessment on an office interview with the appellant (over 3 sessions) as well as the appellant’s medical chart.

Summary of relevant evidence from the application

Diagnoses

In Section B of the Medical Report, the appellant was diagnosed with foot pain “NYD” (not yet determined), onset January 2022; facial pain (onset October 2022), and anxiety (onset January 2022).

In Section C - Health History, Dr. A indicated that blood tests and X-rays had not identified the cause of foot pain. The foot pain has caused anxiety. The facial pain may be trigeminal neuralgia. In Section E, the doctor noted that “pain is variable – present 24 hours/day to some extent.”

EAAT (26/10/22) 4

Appeal Number 2023-0156

In the Assessor Report, the social worker reported that facial pain includes “episodes of intense jaw and gum pain 2-3 times/week, lasting 30-40 minutes.” The appellant suffers from foot pain “24/7” affecting her left ankle and foot. The appellant takes extra strength Tylenol for the pain “but is uncertain if it is helping.”

The social worker said that the pain also causes anxiety; “the uncertainty of what is causing the foot pain and client not wanting to cause additional strain seems to be causing anxiety and stress.” The appellant “is concerned that foot pain is ongoing and does not seem to be improving at all over the past 10 months since pain first started.”

Additional information from the appellant

In the self-report, the appellant described “foot discomfort” including nerve pain in her left ankle, toes, and mid-foot. Jaw pain affects the left side of her face and is so intense that she had to go to the hospital three times in a week, two weeks in a row for pain relief medication. The appellant is exploring pain relief options with her doctor for trigeminal neuralgia.

The appellant said that anxiety occurs both during and following episodes of facial nerve pain which “occurs throughout the day off and on.” The appellant reported that anxiety is caused by the “high degree of pain.”

Degree and course of impairment

In Section D, when asked if the impairment is likely to continue for 2 years or more, Dr. A wrote “unknown.” The doctor explained that “due to a lack of clarity of her diagnosis, the prognosis and duration is unknown.” In Section G – Additional Comments, the doctor said that the appellant “awaits further investigation and consultation to sort this out.”

Functional skills

Self-report

Physical function

The appellant said that foot pain affects her walking speed due to “pressure put on foot during movement and having to be aware of the condition of foot at all times – discomfort, pain level.” The appellant said that she walks at a slow pace because she has to be aware of the amount of weight she puts on her foot. The appellant said that she can

EAAT (26/10/22) 5

Appeal Number 2023-0156 lift 50 pounds including laundry and groceries, but she uses a shopping cart to carry items from the store.

Mental function

The appellant reported that her concentration is affected by both foot and jaw pain. The appellant said that her pain levels affect her concentration and ability to focus “throughout tasks.”

Medical Report In Section E - Functional Skills, the appellant was able to walk 5+ blocks unaided on a flat surface and climb 5+ steps unaided. Dr. A reported no limitations with lifting or remaining seated. In Comments, the doctor said that walking causes foot pain and that the appellant has “difficulty carrying heavy items any distance due to foot pain.”

Regarding a mental impairment, Dr. A 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 doctor checked “yes” with additional check marks for 2 of the 12 areas listed: Emotional disturbance (“anxiety”) Attention or sustained concentration (“due to foot pain”).

There were no check marks to indicate deficits for the following areas: Consciousness Executive Language Memory Perceptual psycho-motor Psychotic symptoms Motivation Impulse control Motor activity Other

Assessor Report In Section B-2, the social worker indicated “satisfactory’ for all areas of communication: speaking, reading, writing, and hearing. The social worker did not fill out Section C – Cognitive and Emotional Functioning – impacts due to a mental impairment.

EAAT (26/10/22) 6

Appeal Number 2023-0156 In Section C3 - Mobility and Physical Ability, the s ocial worker assessed “walking indoors” as independent. The social worker reported the following limitations with the other listed functions:

Walking outdoors: the appellant needs periodic assistance from another person and takes 2-3 times longer (comment, “walks 2-3 times slower due to foot pain and anxiety re- causing more pain and strain”).

Climbing stairs: the appellant needs periodic assistance from another person and uses an assistive device (comment, “relies on elevator”). In further comments, the social worker said that the appellant “avoids stairs” and takes the elevator to “prevent pressure and strain put on left foot.”

Standing: the appellant needs periodic assistance from another person (comment, “avoids standing in one place for more than 15 minutes and avoids line ups due to foot pain”).

Lifting, and carrying and holding: the appellant needs continuous assistance from another person or is unable, and she uses an assistive device (comment, “avoids due to foot pain and anxiety about causing more pain if foot under pressure. Relies on grocery cart with wheels to transport items instead of lifting/carrying”).

Daily living activities

Dr. A provided the following information:

Medical Report In Section C – Health History, the doctor checked that the appellant has not been prescribed medications or treatments that interfere with the ability to perform daily living activities.

In Section F – Daily living activities, the doctor checked that 4 out of 8 activities were continuously restricted: Personal self-care Daily shopping Mobility outside the home Use of transportation (comment, “needs family to drive her to the stores”).

In Comments, the doctor indicated periodic restrictions, “might do less things if her foot is really sore.’”

EAAT (26/10/22) 7

Appeal Number 2023-0156 Dr. A checked that the following activities were not restricted: Meal preparation Management of medications Basic housework Mobility inside the home Management of finances Social functioning

Regarding social functioning, the doctor commented that “anxiety does interfere with activities all the time but does not prevent her doing them.”

Assessor Report In Section D – Daily Living Activities, the social worker assessed the appellant as independent with all areas for 2 of the 8 daily living activities listed in the report:

Personal care: the appellant is “independent” with dressing, grooming, bathing, toileting, feeding self, regulating diet, transfers (in/out of bed), and transfers (on/off a chair). For bathing, the social worker wrote that the appellant “takes shorter showers to avoid [foot] pain and strain.”

Meals: the social worker checked “independent” with meal planning, food preparation, cooking, and safe storage of food. For food preparation the social worker wrote that the appellant “is only able to prepare small portions for herself – avoids standing for more than 15 minutes due to pain.”

Restricted activities

The social worker indicated restrictions for 5 out of 8 daily living activities:

Basic housekeeping: the appellant needs periodic assistance from another person for both areas: laundry and basic housekeeping. For laundry, the social worker commented, “periodically postpones due to foot pain; periodically relies on relatives.”

The social worker further explained that “laundry is downstairs 3 flights of stairs – client does minimally approximately once a month. Periodically a relative will pick her up and she is able to do laundry at their house.” For basic housekeeping, the social worker said that the appellant “periodically postpones due to foot pain too intense and will wait to do another day when not so intense.”

EAAT (26/10/22) 8

Appeal Number 2023-0156 Shopping: the appellant needs continuous ass istance with 2 areas of shopping: going to and from stores and carrying purchases home. The social worker said that “foot pain prevents walking long distances, relies on bus or relatives to drive her. Relatives drive her 2-3 times per week…pain prevents [carrying purchases], relies on shopping cart with wheels to transport home.”

The social worker checked “independent” for the remaining areas of shopping: reading prices and labels, making appropriate choices, and paying for purchases.

Pay Rent and Bills: the appellant needs periodic assistance with banking (comment, “pain episodes periodically prevent going to bank, postpones for 1-2 days”).

The social worker checked “independent” for budgeting, and pay rent and bills (comment, “experiencing financial strain from not being able to work”).

Medications: the appellant needs periodic assistance with filling/refilling prescriptions (comment, “pain episodes periodically prevent. Relies on bus or family to give her a ride”).

The social worker checked “independent” for taking as directed, and safe handling and storage.

Transportation: the social worker checked “independent” with getting in/out of a vehicle, but the appellant takes significantly longer than typical (comment, “2 times slower”). In the self-report, the appellant added that she does not drive “as nerve pain could affect driving.”

The social worked checked “periodic assistance” in using public transit and the appellant takes significantly longer (comment, “must walk 1 block to bus – takes 2 times longer; need to sit on bus due to pain. Periodically unable to take bus due to foot pain and will postpone going, and/or rely on relatives to give her a ride, 2-3 times per week”).

The social worker checked “independent” for the remaining area of transportation: using transit schedules and arranging transportation. Additional Comments (including any safety issues) was left blank.

Social Functioning: the social worker did not provide any check marks or information for any area of Social Functioning. The social worker did not comment on the appellant’s ability to function with her social networks.

EAAT (26/10/22) 9

Need for help

Appeal Number 2023-0156

Self-report The appellant reported that her family “assists with some weekly transportation so I can walk less, including to stores, and with some laundry. A monthly bus pass would be very helpful.”

Medical Report In Section C-4, Dr. A checked “no” when asked if the applicant requires any protheses or aids for the impairment. In Section F, the doctor commented that the appellant’s family “drives her, sometimes laundry is assisted with.”

Assessor Report In Section A-1, the social worker checked that the appellant lives alone. In Section C-1, the social worker said that the appellant “relies on support from relatives with transportation, laundry, house cleaning, and filling prescriptions.”

In Section E - Assistance provided by other people the social worker said that the appellant relies on relatives for assistance with transportation to do errands 2-3 times per week. The appellant “could benefit from a discounted bus pass if on PWD.” The social worker indicated that the appellant could benefit from a mental health assessment/consult but has declined at this time.

In Section E - Assistance provided through the use of assistive devices, the social worker checked “other” (comment, “shopping cart with wheels to transport grocery items”). The social worker checked that the appellant does not have an assistance animal.

3. A Request for Reconsideration signed by the appellant on April 28, 2023, with a request for an extension of time for submissions. The ministry noted that no additional information was submitted.

Additional submissions

The appellant filed a Notice of Appeal with a hand-written statement affirming that she experiences foot pain 24 hours per day and cannot drive because of pain. The appellant stated that her ability to work and concentrate are also affected because the foot pain “is very distracting.” The panel finds that the appeal submission is admissible as evidence that is reasonably required for a full and fair disclosure of all matters related to the decision under appeal.

EAAT (26/10/22) 10

Procedural matters

Appeal Number 2023-0156

In the months before the hearing the Tribunal granted two adjournments because the appellant requested more time to have a further discussion with Dr. A (and specialists) regarding the ongoing nerve pain in her foot. The appellant said that she needed two additional months “to provide further details regarding the current and ongoing status of the nerve condition.”

In emails to the Tribunal, the appellant indicated that it was difficult to get an appointment at the clinic due to her doctor’s limited schedule. The appellant said that she wanted to meet with Dr. A before the hearing to discuss a diagnosis of Morton’s neuroma as the possible cause of the foot pain. No additional submissions or medical documents were submitted and there was no further request for additional time to meet with the doctor.

Two days before the hearing the appellant sent an email to the Tribunal requesting to dismiss the appeal. The appeal was not dismissed because a Consent to Dismiss form was not submitted prior to the hearing.

The appellant did not attend the hearing. After confirming that the appellant was notified of the hearing date and time the panel proceeded in the absence of a party as it is allowed to do under the Employment and Assistance Regulation.

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

EAAT (26/10/22) 11

Appeal Number 2023-0156 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 impairment is likely to continue for at least 2 years (in the opinion of the doctor), • the appellant has a severe physical or mental impairment, • the severe impairment, in the opinion of a prescribed professional, directly and significantly restricts the appellant’s ability to perform daily living activities either continuously or periodically for extended periods; and • as a result of restrictions caused by the impairment, the appellant requires an assistive device, the significant help or supervision of another person, or the services of an assistance animal to perform daily living activities.

Analysis

PWD designation - generally

The legislation provides the Minister with the discretion to designate someone as a PWD if all the requirements are met including confirmation from the applicant’s doctor that the impairment is long term. In the ministry’s view, PWD designation is for persons who have significant difficulty in performing regular self-care 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 1 of the 5 requirements were met because the appellant is at least 18 years of age.

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

Severe impairment

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

EAAT (26/10/22) 12

Appeal Number 2023-0156 interpretation of the legislation. A medical prac titioner’s description of a condition as “severe” is not determinative on its own. The ministry must make this determination considering the relevant evidence and legal principles.

Restrictions to Daily living activities

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

The restrictions to daily living activities must be significant and caused by the impairment. This means that the restriction must be to a great extent, and that not being able to do daily activities without a lot of help or support will have a large impact on the person’s life.

The restrictions also must be continuous or periodic. Continuous means the activity is generally restricted all the time. A periodic restriction must be for extended periods, meaning frequent or for longer periods of time. For example, the activity is restricted most days of the week, or for the whole day on the days that the person cannot do the activity without help or support. To figure out if a periodic restriction is for extended periods, it is reasonable to look for information on the duration or frequency of the restriction.

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

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

EAAT (26/10/22) 13

Help Required

Appeal Number 2023-0156

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.

Arguments

Impairment to continue for at least 2 years

Appellant’s position

The appellant’s position was that her foot pain and facial pain are ongoing. The appellant argued that the conditions are not improving despite pain medication.

Ministry position

The ministry’s position was that the duration requirement was not met because Dr. A has not confirmed that the appellant’s impairment is likely to continue for at least 2 more years.

Panel’s decision - duration of impairment

The panel finds that the decision regarding the duration of the impairment was reasonably supported by the evidence. The Act requires confirmation by the doctor that the impairment is long term, but in the Medical Report, Dr. A wrote “unknown” regarding the duration of the appellant’s foot pain. Dr. A explained that the cause of the pain is not yet determined and awaits further investigation.

There was also no confirmation that the appellant’s facial pain or anxiety will continue for at least 2 more years. The facial pain was a newly diagnosed condition (onset, October 2022) and anxiety was diagnosed at the same time as foot pain (January 2022). The appellant indicated that her pain conditions and anxiety (caused by the pain) are ongoing, but this had not been confirmed by Dr. A.