Ministry of Social Development and Poverty Reduction

Part C – Decision Under Appeal

Appeal Number 2023-0279

The decision under appeal is the Ministry of Social Development and Poverty Reduction (ministry) reconsideration decision dated September 13, 2023, which determined the appellant was not eligible for the Persons with Disabilities designation.

Specifically, the ministry determined:  The appellant does not have a severe physical or mental impairment;  The impairment does not directly and significantly restrict daily living activities continuously or periodically for extended periods; and  The appellant does not require an assistive device, the significant help of another person, or the services of an assistance animal to perform the daily living activities.

Additionally, the ministry determined that the appellant is not one of the prescribed classes of persons who may be eligible for the Persons with Disabilities designation 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 and 2.1 Relevant sections of the legislation can be found in the Schedule of Legislation at the end of this decision.

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Part E – Summary of Facts

Appeal Number 2023-0279

Relevant Evidence Before the Minister at Reconsideration

 Request for Reconsideration (August 23, 2023) - summary The appellant states that due to limited mobility he needs a lot of support for most of his daily activities; he has a chronic condition affecting his whole life. He adds that he lives every day with a lot of pain and has difficulty sleeping. The pain and suffering have resulted in depression.

The appellant adds that he cannot walk 15 minutes straight; the maximum is 2-3 minutes as he has to rest 3-4 times. As well, he states he cannot sit for more than one minute as he needs to lay down, to relieve pressure in his back. He requires support from his wife to complete his daily living activities.

 Letter from the Appellant’s Doctor to Whom It May Concern (August 23, 2023) The doctor states the appellant’s wife informed them that there was a misunderstanding and that the appellant has to sit and take breaks and that he cannot walk 15 minutes straight.

She also informed them that her husband relies on her to do banking, go to the pharmacy, pay rent and bills, and cook and clean. The doctor adds that the appellant’s wife advised them that initially this was due to a language barrier and in the past couple of years the appellant’s low mood symptoms and low motivation have affected him in performing these activities.

 PWD Application Self-Report (August 5, 2023) - summary The appellant states he has limited movement due to severe pain in his knees, lower back, legs and arms. He states he has been in constant pain after bombs exploded on him during a war and put him in the hospital for six months; his nerves were severed, and his bones were crushed. He has had many surgeries but still has shrapnel in his legs, arms and hands.

The appellant states he tried hard to push himself at work, but could not get past the pain, resulting in many days off. He states he woke up to go to work with a lot of pain and as soon as he put his socks and shoes on, heat started in his legs and swelling in his knees. He worked with different companies hoping to find something suitable, but things got worse especially after he was diagnosed with arthritis and the pain increased. The

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Appeal Number 2023-0279

appellant states it is like knife-stabbing pain m aking him lose his balance. He also experienced buckling in his knees causing him to fall down multiple times. Once he fell on sharp items and injured his hand.

He recently stopped working. All this has caused depression and stress because financially he is not able to support himself and his family.

Medical Report (May 4, 2023) – signed by the appellant’s doctor The doctor (general practitioner) provided the following information.

Diagnosis Mechanical back pain/sciatica Mechanical knee pain Mechanical hand pain

Date of onset – year 2016 2020 2020

Health History The doctor states the appellant worked as a heavy-duty mechanic. Over the years, he reported experiencing knee and back pain, which limited his ability to work and lower back pain radiating down his right leg was aggravated by walking up stairs and bending. The pain was relieved by laying down. He also reported chronic right-hand pain aggravated by lifting objects and relieved by rest. In the past few months the appellant reported pain in his arm and hand in keeping with neuropathy. The appellant was diagnosed with patellofemoral osteoarthritis but no major signs of inflammatory arthritis, by a rheumatologist.

The doctor provided the following responses to the questions below. o Has the appellant been prescribed any medications and/or treatments that interfere with his ability to perform daily living activities? – no, the appellant discontinued pain medication due to feeling dizzy and groggy. o Does the appellant require prostheses or aids for his impairment? – no

Degree and Course of Impairment o Is the impairment likely to continue for two years or more from today? – yes o What is the estimated duration of the impairment and are there remedial treatments that may resolve or minimize the impairment? The appellant would benefit from physiotherapy, active rehabilitation and occupational therapy. Unfortunately, these treatments are not covered under the

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Appeal Number 2023-0279 Medical Services Plan and the appellant advised he cannot afford to attend these treatment sessions.

Functional Skills o How far can this person walk unaided on a flat surface? – unknown, appellant reports pain after walking for 15 minutes. o How many stairs can this person climb unaided? – 2–5 steps, the appellant advised he can walk up 3 steps, then stops due to pain. o What are the person’s limitations in lifting? – 2-7 kg o How long can this person remain seated? – less than 1 hour, the appellant reported pain after 20 minutes o Are there difficulties with communication? – no o Are there any significant deficits with cognitive and emotional function? – no

Functional Skills Comments The doctor referred to the assessment from a physiotherapist, below.

Functional Assessment (March 20, 2023) The physiotherapist states the appellant has constant pain due to surgery in his leg and feet. The pain is increasing, and the knee is swelling. An x-ray showed arthritis in his knee, which was the main concern. Pain/Altered Sensation Intensity, right now: 7/10 Character: sharp stabbing pain Disturbed sleep: yes Aggravated by: bending forwards, kneeling, going upstairs, kneeling, squatting Duration: constant Pattern: day Eased by: rest, painkillers Abilities Walking: reported pain after 15 minutes Standing: reported pain after standing for 15 minutes Limited use of left hand (gripping): 44 lbs. Limited use of right hand (gripping): 6 lbs., 7-8/10 Comments: Lifting with bad positioning/biomechanics Carry, right hand grip is not good Push-pull – 30 lbs.: pain 5/10 with push, pull: felt pain at lumbar back, 7/10 Squat: could not squat, felt stabbing pain 7-8 (1 st repetition) Kneeling: felt stabbing pain with 1 st repetition when kneeling

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Appeal Number 2023-0279

Additional comments The doctor states the appellant has had several years of chronic pain, which has affected his mood. The doctor’s assessment is that this is in keeping with moderate depression and mild anxiety.

Assessor Report (May 4, 2023) – signed by the appellant’s doctor The doctor provided the following responses to the questions below.

Mental or Physical Impairment o What are the appellant’s mental or physical impairments that impact his ability to manage daily living activities? Can shower, dress and toilet independently. Can walk independently but reports limited walking over 15 minutes due to pain.

Ability to Communicate Please indicate the level of ability in the following areas speaking reading writing hearing

Mobility and Physical Ability Indicate the assistance required related to impairment (that directly restricts the applicant’s ability to manage in the following areas). Walking indoors x Walking outdoors x Climbing stairs x

Standing Lifting

Carrying and holding

x x

x

Good Satisfactory

x x x x

Poor

Unable

x x x

x x

x

Explain

As per the appellant, he has to take breaks due to

knee and back pain

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Appeal Number 2023-0279

Cognitive and Emotional Functioning For each item indicate to what degree the applicant’s mental impairment restricts his functioning. If impact is episodic or varies over time, Impact on Daily Functioning please explain. No Minimal Moderate Major impact impact impact impact Bodily functions (e.g. eating problems, x toileting problems, poor hygiene, sleep disturbance Consciousness (e.g. orientation, x alert/drowsy, confusion Emotion (e.g. excessive or inappropriate x anxiety, depression etc. Impulse control (e.g. inability to stop x doing something or failing to resist doing something) Insight and judgement (e.g. poor x awareness of self and health condition (e.g. grandiosity, unsafe behavior) Attention/concentration (e.g. x distractible, unable to maintain concentration, poor short-term memory) Executive (e.g. planning, organizing, x sequencing, abstract thinking, problem-solving, calculations) Memory (e.g. can learn new information, x names etc., and then recall that information, forgets over-learned facts) Motivation (e.g. lack of initiative, loss of x interest) Motor activity (e.g. increased or x decreased goal-oriented activity, coordination, lack of movement, agitation, ritualistic or repetitive actions, bizarre behaviours, extreme tension) Language (e.g. expression or x comprehension problems (e.g. inability to

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Appeal Number 2023-0279 understand, extreme stuttering, mute, racing speech disorganization of speech) Psychotic symptoms (e.g. delusions, x hallucinations, disorganized thinking) Other neuropsychological problems x (e.g. visual/spatial problems, psychomotor problems, learning disabilities etc.) Other emotional or mental problems x Comments: The appellant is fluent in Arabic but has difficulty understanding and speaking English.

Daily Living Activities Indicate the assistance required related to impairment(s) that directly restrict the applicant’s ability to manage in the following areas.

Personal Care Dressing Grooming Bathing Toileting Feeding self Regulating diet Transfers (in/out of bed) Transfers (on/off chair) Basic Housekeeping Laundry Basic housekeeping

Shopping Going to/from stores Reading prices and labels

x x x x x x x

x

x

x x

x

Explain/ Describe (include a description of the type and amount of assistance required)

Knee and back pain Bending and carrying objects

“ “

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Appeal Number 2023-0279 Making appropriate x choices Paying for purchase x Carrying purchases x “ “ home Additional Comments The doctor referred to the functional assessment from the physiotherapist

Meals Meal planning Food preparation Cooking Safe storage of food (ability, not environmental)

Pay rent and bills Banking Budgeting Pay rent and bills Medications Filling/refilling prescriptions Taking as directed Safe handling and storage Transportation Getting in and out of a vehicle Using public transit

Using transit schedules and arranging transportation

x x x

x

x x

x

x

x

x x x x

x

The appellant advised the doctor he has to sit after standing for 5 minutes and pain in his right hand limits him from repetitive movement like cutting

The appellant advised the doctor

he has to sit after standing more than 15 minutes due to knee and back pain

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Appeal Number 2023-0279

Social Functioning – only complete if applica nt has an identified mental impairment Indicate the assistance required related to impairment(s) that directly restrict the applicant’s ability to manage in the following areas.

Appropriate social decisions (including avoiding situations dangerous to self or others, good social judgement) Able to develop and maintain relationships Interacts appropriately with others (e.g. understands and responds to social cues, problem solves in social context) Able to deal appropriately with unexpected demands Able to secure assistance from others

x

x x

x

x

Describe how the mental impairment impacts the applicant’s relationship with his – immediate social network (partner, family, friends) The doctor checked, “good functioning – positive relationships: assertively contributes to these relationships”. -extended social networks (neighbourhood contacts, acquaintances, storekeepers, public officials etc.) The doctor checked, “good functioning – positively interacts with the community; often participates in activities with others”.

Assistance Provided for Applicant The doctor states assistance is provided by family. Comments: the appellant’s wife does the cooking and household chores.

 Letter from the Appellant’s Doctor (December 5, 2022) The doctor writes that nineteen years ago, because of bombing during a war, the appellant reported shrapnel and tendon injury to his right forearm.

 Note from Orthopedic Surgeon (July 28, 2020) Diagnosis: bilateral non-traumatic knee pain and swelling with possible inflammatory arthritis.

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Appeal Number 2023-0279

Information Received after Reconside

ration Decision

Appellant

Notice of Appeal (September 18, 2023) In the Notice of Appeal the appellant reiterated the information in the request for reconsideration.

At the hearing, the appellant again stated that he has a difficult disability and as a result is in a lot of pain. He can’t wear shoes because of swelling and can’t bend his knees. When he tries to carry something with his right hand, it falls, and he drops it. The appellant states three or four years ago he used to help with groceries etc. but now his life alternates between sitting and laying down. He states he depends on his wife twenty-four hours/day, seven days/week. His disability affects the whole family. The appellant added that his condition has worsened since May 2023.

The appellant also stated that the physiotherapist report does not reflect his abilities, as the assessment was done in a room. For example, there is no shower to assess this ability and the appellant can walk around a room; however, this is not the same as walking in his personal environment.

The appellant added that he understands the doctor didn’t include enough information but thought he could further explain his situation at the hearing.

Ministry At the hearing, the ministry relied on its record and provided the following summary.

Physical impairment – The information from the appellant, doctor and physiotherapist doesn’t align. As well, it was unclear whether the assessment was from the doctor or from the appellant or his wife.

Mental impairment – There was no diagnosis and little information; therefore, insufficient evidence.

Daily living activities – the ministry relies on the opinion of medical professionals to determine whether there is a significant restriction to daily activities.

More details are needed from a physician to demonstrate that help is needed.

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Appeal Number 2023-0279

Admissibility The panel determined the additional information is reasonably required for a full and fair disclosure of all matters related to the decision under appeal and therefore is admissible under section 22(4) of the Employment and Assistance Act.

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Part F – Reasons for Panel Decision

Appeal Number 2023-0279

The issue on appeal is whether the ministry’s reconsideration decision was reasonably supported by the evidence or was a reasonable application of the legislation in the circumstances of the appellant.

Specifically, did the ministry reasonably determine the appellant was not eligible for the Persons with Disabilities designation because:  He does not have a severe physical or mental impairment;  The impairment does not directly and significantly restrict daily living activities continuously or periodically for extended periods; and  The appellant does not require an assistive device, the significant help of another person; or the services of an assistance animal to perform the daily living activities?

Appellant Position The appellant argues that due to limited mobility he needs a lot of support for most of his daily activities as he has a chronic condition affecting his whole life. He adds that he lives with a lot of pain every day and the pain and suffering have resulted in depression.

The appellant adds that all his daily living activities are done by his wife.

Ministry Position

Mental Functioning The ministry argues it is not satisfied the appellant has a severe mental impairment.

The ministry acknowledges the appellant is experiencing limitations to his cognitive and emotional functioning due to his pain. However, this does not appear to severely impair his mental function. No significant deficits or major impacts to the appellant’s daily cognitive and emotional functioning were reported. And the appellant has no difficulties with communication attributed to a medical condition. The appellant’s doctor provides assessments suggesting the appellant has moderate depression and mild anxiety.

Further, the ministry argues the appellant’s doctor has not confirmed that his mental health conditions are likely to continue for two or more years, as they hope this will improve now that the appellant has been prescribed medication for these conditions.

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Appeal Number 2023-0279

Physical Functioning The ministry argues it is not satisfied that the appellant has a severe physical impairment. Although the appellant’s doctor provides information related to his ability to work, employability is not a factor when considering persons with disabilities designation, as this is not included in the criteria set out in both the Act and Regulation.

The ministry argues that many of the functional skills reported in the medical and assessor reports are difficult for the ministry to interpret, as the appellant’s doctor states what the appellant has reported to be his capacity, rather than what the doctor has assessed them to be.

The ministry adds that the doctor reported that the appellant must stop and take breaks due to knee and back pain, taking longer to perform activities. However, it is not reported how much longer the appellant takes to complete any tasks (e.g. twice as long, or four times as long, etc.).

The ministry acknowledges that the appellant has some limitation to his physical abilities due to his medical conditions, which cause chronic pain. However, the range of mobility and physical abilities reported do not confirm a severe degree of impairment. Although the appellant is reported to be unable to walk longer than 15 minutes, with breaks, it is hard to assess the severity of this limitation as it is not reported how far he can walk, nor how much longer than typical it takes the appellant to walk that distance. For example, if the appellant is able to walk four or more blocks within the 15 minutes, this may not be considered to be a severe degree of impairment. The information presented suggests that the appellant is able to stand and sit for durations long enough to meet his basic requirements, such as cooking simple meals, or doing basic light daily housekeeping or personal care.

The ministry adds that while it is reported that his wife helps the appellant with all his activities, this is not directly attributed to his physical health conditions, nor is it clear that this help is required due to his pain and inability to complete these tasks independently.

Further, a full assessment from the appellant’s doctor has not been provided, but rather the assessment is attributed to the appellant or the physiotherapist. The reports provided were not interpreted to indicate how these would impact the areas assessed in the application.

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