Ministry of Social Development and Poverty Reduction

Appeal Number 2023-0265 Part C – Decision Under Appeal The decision under appeal is the Ministry of Social Development and Poverty Reduction (the Ministry) reconsideration decision dated August 3, 2023 (the Decision) denying the Appellant the persons with disabilities (PWD) designation.

The Ministry found that the Appellant met the age (over 18) and duration (impairment to last 2 years) requirements.

However, the Ministry found: • The Appellant did not have a severe physical or mental impairment; • The Appellant's daily living activities aren’t directly and significantly restricted; and, • The Appellant doesn’t need significant help to do daily living activities because of significant restrictions.

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

Employment and Assistance Act, section 22(4)

The legislation is in the Appendix at the end of this decision.

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Appeal Number 2023-0265 Part E – Summary of Facts The information the Ministry had at the time of the Decision included: • The Medical Report, dated February 21, 2023, completed by the Appellant’s Doctor (the Doctor). Details of the evidence included in the Medical Report are provided in the appropriate section below;

• The Assessor Report, dated March 31, 2023, also completed by the Doctor. Details of the evidence included in the Assessor Report are provided in the appropriate section below;

• The Self Report, dated February 1, 2023 and completed by the Appellant. Details of the evidence included in the Self Report are provided in the appropriate section below; and,

• The Appellant’s request for reconsideration (the First Reconsideration Request), dated June 30, 2023. In the First Reconsideration Request, the Appellant asks for a ten day extension of the deadline for submitting her reconsideration request.

Diagnoses In the Medical Report, the Doctor says the Appellant has anxiety and depression, but does not provide a date of onset.

Physical Impairment In the Medical Report, the Doctor does not indicate that the Appellant has any physical impairments, noting that it is unknown how far the Appellant can walk, climb, lift or remain seated.

In the Assessor Report, the Doctor says the Appellant is independent with walking indoors and outdoors, requires periodic assistance from another person with standing, lifting and climbing stairs, and needs continuous assistance from another person, or is unable to carry or hold.

In the Self Report, the Appellant says she has bad knees as a result of falling off a bicycle as a child, and can’t kneel or get up from kneeling. She also writes “I … now find it difficult to walk (or) stand (because) of my arthritis.”

Mental Impairment In the Medical Report, under Health History, the Doctor writes “(The Appellant has) frequent agoraphobia and panic episodes impairing her ability to focus/concentrate. This is made worse following the recent death of her husband.”

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Appeal Number 2023-0265 In the Medical Report, the Doctor also indicate s that the Appellant has significant deficits with memory, emotional disturbance, and motivation, adding the comment “Her anxiety/depression constantly affects her ability to stay motivated; poor focus concentration. Had been diagnosed with a learning disability in the past that impairs her learning ability. Had been dependent on (her) husband since marriage. Since his death, things have been difficult.” The Doctor also says the Appellant’s mental impairments also impair her social skills.

In the Assessor Report, the Doctor says the Appellant’s writing, speaking, reading, and hearing abilities are good. No major impacts are identified. The Doctor says the Appellant’s mental impairment has a moderate impact on her emotional functioning and other neuropsychological problems, and a minor impact on her consciousness, motivation and motor functioning activities. The Doctor also says there are no impacts in any other areas.

In the Self Report the Appellant says her mother had mental health problems, and that the Appellant was affected by “shock treatment” and medications her mother received when she was pregnant with the Appellant. The Appellant says “my nerves stop me from thinking straight”, that she can’t sleep when she is worried or upset, and that she is “worried about my future and what it holds”. The Appellant also says she has fears of thunderstorms, being alone, and rejection, and those fears affect her ability to work.

Restrictions in the Ability to Perform Daily Living Activities In the Medical Report, the Doctor says the Appellant has not been prescribed any medications that interfere with her ability to do daily living activities.

In the Assessor Report, the Doctor says that the Appellant has the following abilities with daily living activities: • Perform personal hygiene and self care – Independent (no assistance required); • Perform housework to maintain the person's place of residence in acceptable sanitary condition – Independent with laundry, but requires periodic assistance from another person with housework; • Shop for personal needs – Independent with most functions, but requires continuous assistance from another person or is unable to carry purchases home; • Prepare own meals – Independent; • Use public or personal transportation facilities – Independent; • Move about indoors and outdoors – See Doctor’s comments in the “Physical Impairment” section above; • Make decisions about personal activities, care, or finances – Independent; and,

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Appeal Number 2023-0265 • Relate to, communicate or interact wi th others effectively – Independent with most functions, but requires periodic assistance or support from another person in making appropriate social decisions. Good functioning with immediate and extended social networks.

In the Self Report the Appellant says her physical impairments make it very difficult for her to do house and yard work.

Need for Help In the Medical Report, the Doctor says they are not aware of any assistance the Appellant requires with daily living activities.

In the Assessor Report, the Doctor says the Appellant gets help with her daily living activities from friends and community services agencies, does not use any assistive devices, and does not have an assistance animal.

Additional Information Submitted after Reconsideration Section 22(4) of the Employment and Assistance Act says that a panel can consider evidence that is not part of the record when the Ministry made the Decision. But first the panel must decide if the new information is relevant. Once a panel has determined if any new evidence can be admitted, it must decide if the Decision was reasonable considering the new evidence.

The notice of appeal can potentially include new information, but the Appellant did not provide any new information there.

The Appellant provided four submissions after the Decision, three of which were late because they were received within one business day of the written hearing date. Of the four late submissions, one was not accepted by the Panel because it did not contain any relevant new information.

The First Appellant Submission On September 8, 2023, the Appellant provided a submission (the Appellant First Submission). New evidence contained in the First Appellant Submission included:

• A one-page e-mail from the Appellant to the Employment and Assistance Appeal Tribunal (the Tribunal), dated September 8, 2023 (the September 8 email), in which the Appellant says: o Apparently with reference to a photograph included in the Appellant Submission (see First Photograph below) “these are my ankles today, this is why I can’t walk, do any activity or stand without a cane now”; and,

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Appeal Number 2023-0265 o That she has decided to reapply for a PWD designation. • The first and third pages of an assessment, dated February 21, 2018 and prepared by an unidentified clinician at a health authority, and referring to the Appellant (the Assessment). The first page of the Assessment says, in part, that the Appellant “is experiencing feelings of anxiety and depression as a result of her husband’s diagnosis and treatment (for) colon cancer”, and that she “reports having a lot of friends and has been active as a volunteer in the community”. Page three of the Assessment says that the Appellant’s:

o Thought process “”appears quite slow”; o Memory is “intact”; o Attention is “good”; o Comprehension shows “moderate deficits”; o Insight is “limited”; and, o Reasoning/judgement shows a “moderate impairment”. The Assessment also provides a diagnosis of anxiety, depression and grief, and says “rule out Post-traumatic Stress Disorder (historical physical and sexual abuse)”;

• Several documents relating to the Appellant’s deceased husband, including a death certificate, a federal notice of death form, the couple’s marriage certificate, and copies of an annual mortgage statement in the names of the Appellant and her spouse;

• A copy of the first and fourth pages of a four page federal medical report (the Federal Medical Report). The fourth page of the Federal Medical Report is signed by a medical practitioner and dated July 29, 2018. The Federal Medical Report says, in part, that the Appellant has been diagnosed with an anxiety disorder, schizoaffective disorder, depression, borderline mental capacity, and a learning disorder. In a section titled “Relevant/significant medical history relating to the main medical condition”, the medical practitioner has written, in part, “Client is a 54 year old lady who has been experiencing feelings of anxiety and depression which has gotten worse as a result of her husband’s illness. Before marriage, she was receiving PWD benefits which stopped when she got married …”. In the section of the Federal Medical Report titled “Prognosis of the main medical condition of this patient”, the medical practitioner has written “unsure”;

• Three pages from an undated, multi-page employment assessment report, one page of which is signed by a vocational rehabilitation specialist (the Employment Assessment Report);

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Appeal Number 2023-0265 • Four pages of an eight page unspecified and undated document which appears to contain information provided by a medical professional on one page and by the Appellant on the other three pages (the Four Page Document). The information on the page completed by the medical professional provides details of the subject’s medical condition. The other three pages appear to be a self-assessment of the Appellant’s physical functioning abilities and physical and mental impairments;

• An undated photograph of the Appellant’s feet and ankles (the First Photograph); • A request for reconsideration form, signed and dated by the Appellant on September 24, 2023 (the Second Reconsideration Request). The section of the Second Reconsideration Request that asks the reasons for the request has been completed by the Doctor, who has written “This is additional information pertaining to the physical health of (the Appellant). (Details about her mental health have been elaborated on). She is having ongoing chronic back pain, hip pain and knee pain that seems to impact her day to day function. Recent imaging reveals moderate spondylolisthesis and degenerative disc disease (DDD) of the lumbar spine at L3 – L4 and L5 – S1; moderate to severe (bone on bone articulation) osteoarthritis on her knees bilaterally. These may be the reasons for her physical disability with regards to her gait/ambulation → unable to walk long distances; she tells me she sometimes needs additional support with the use of a walking aid for balance improvement.”;

• A one-page e-mail from the Appellant to the Tribunal, dated September 18, 2023 (the September 18 email), in which the Appellant says “Every day my body is getting worse and my depression is very bad.” The Appellant mentions the medications she is taking, and that she had her gall bladder removed on July 24, 2023;

• A one-page e-mail from the Appellant to the Tribunal, dated September 15, 2023 (the September 15 email), in which the Appellant says (apparently referring to a photograph included in the Appellant Submission - see Second Photograph below) “ This is me in 2019 with a bad fall (as a result of) arthritis in my legs and hips . My balance (is) unstable. (I) fell in my driveway. (I went) to (the) hospital but they sent me home with salve to put on. (I am also) full of depression. (I fell on) my right side.”; and,

• A photograph of the Appellant’s face following the fall described above (the Second Photograph).

The First Ministry Submission On September 28. 2023, the Ministry provided a submission (the First Ministry Submission). The First Ministry Submission provided the following assessment in response to the new information contained in the First Appellant Submission:

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Appeal Number 2023-0265 • Regarding the documents relating to the Appellant’s deceased husband, the Ministry said the documents “were not considered further” because marital and financial status are not requirements for PWD designation;

• Regarding the information in the Assessment, the Ministry said the documents recorded the Appellant’s anxiety and depression in 2018. The Ministry also said that the documents “reported moderate deficits in comprehension and moderate impairment in reasoning and judgement”;

• Regarding the Employment Assessment Report, the Ministry said the document was incomplete and difficult to read; and,

• Regarding the information in the Federal Medical Report, the Ministry summarized the information in the document;

The Ministry provided its analysis of the new information in the documents identified above, indicating that it “is not satisfied that the information suggests a severe degree of mental impairment. These documents provide information about the Appellant’s mental health in 2017 and 2018. While a learning disability is mentioned, the impact of this is not discussed apart from moderate deficits in comprehension and moderate impairment in reasoning and judgement. In the (Assessor Report, the Doctor identifies) two moderate impacts to daily cognitive and emotional function … in emotion and other (neuropsychological problems). All other areas had no impact or minimal impact on daily functioning … Further, … (the Doctor reports that) the Appellant retains independence in almost all aspects of daily living activities, including all aspects of making decisions about personal activities, care, and finances, and almost all aspects of social functioning.”

In the First Ministry Submission, the Ministry also summarizes the new information in the First Photograph, the Second Reconsideration Request, the September 15 Email, the September 18 Email, and the Second Photograph. The Ministry points out that “information was not provided by a health professional regarding a physical health condition” in the Medical Report, and the Ministry “acknowledges that the Appellant experiences chronic pain in her spine and knees. However, the restrictions noted do not confirm a severe degree of physical impairment. She can mobilize shorter distances, only occasionally relying on an unspecified mobility device. Further, her ability to lift, stand, carrying and hold and complete daily living activities was not discussed further in this information to gain a clear picture of the degree to which she is impaired.”

The Second Appellant Submission On September 29, 2023 and October 1, 2023, the Appellant made two additional submissions (collectively, the Second Appellant Submission).

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Appeal Number 2023-0265 The September 29, 2023 submission was a one -page email from the Appellant to the Employment and Assistance Appeal Tribunal (the September 29 email). In the September 29 email, the Appellant said she couldn’t lift any groceries or get out of the bath “for at least 5 minutes”. In addition, she wrote “I can’t even lift myself off the floor without a stool … I can’t (stand) because of back and leg (injuries). I was a care giver for my husband before he died … I got injured taking care of him.” Regarding help, the Appellant said she has no help in her community because she lives in a rural area.

The October 1, 2023 submission was a one-page email from the Appellant to the Tribunal (the October 1 email). In the October 1 email, the Appellant said she has arthritis in both her shoulders, and her right side is more severe. She says she “can’t stand, do dishes, vacuuming, door, windows, sweep, can’t lift and groceries.” She also says it’s too painful to stand, reach, or bend. Regarding help, the Appellant says she needs an assistant “to help me or even change bed sheets.”

The Second Ministry Submission On October 5, 2023, the Ministry made a second submission (the Second Ministry Submission). The Second Ministry Submission says “The Ministry’s submission in this matter will be the reconsideration summary provided in the Record of Ministry Decision and the Ministry response dated September 29, 2023.”

The Third Appellant Submission On October 5, 2023, the Appellant made a third submission (the Third Appellant Submission). The Third Appellant Submission comprised an email from a friend of the Appellant (the Friend).

In the Third Appellant Submission, the Friend writes “I am sending this without consulting (with the Appellant) … I had been helping (the Appellant) with the house … We neighbours try to help out - however we live a number of miles away … we worry about her - insisting that she take her cell phone with her everywhere … (if the Appellant) does fall, she has a terrible time getting up by herself, needing to pull herself up with the help of a chair or some other device - even if she needs to crawl over to the nearest thing … and as she uses a cane, she has to really 'juggle things' like groceries to even get them into the house without help. As (the Appellant) is handicapped about simple things like walking - we also try to help by doing things like helping with washing floors … I read the submission from her current doctor and although I am not a doctor, I must comment that being in BC means that having a doctor who actually 'knows us' is actually not possible. (The Doctor) only has a very short history with (the Appellant) as (the Doctor) has only been in (the Appellant’s community) for a few months, and I can't believe (they) would know 'all' of (the Appellant’s medical) history as … it is not possible to 'really be able' to understand/read/ explain entire files in the 15 minutes that we have with the doctor … (The

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Appeal Number 2023-0265 Appellant) only goes out when she absolutely 'nee ds things like groceries' or to see her councillor or doctor and she tries to do some of this over the phone … as neighbours we help where we can - but we also have families to tend to, and therefore (the Appellant) necessarily needs to be as independent as possible, which she does. We know that she needs help with these types of daily activities - however, here in (the Appellant’s community) there simply aren't many options.”

The Third Ministry Submission On October 17, 2023, the Ministry made a third submission (the Third Ministry Submission). The Third Ministry Submission says “The Ministry’s submission in this matter will be the reconsideration summary provided in the Record of Ministry Decision and the letter dated September 29, 2023.”

Admissibility of New Evidence New evidence in the First Appellant Submission comprises: • The Appellant’s comment in the September 8 email that she can no longer walk, do any activity, or stand without a cane, and the related First Photograph; • The vital documents relating to the Appellant’s deceased husband; • Information in the Assessment regarding the Appellant’s social functioning and degree of mental impairment; • Some of the mental health diagnoses included in the Federal Medical Report; • Some of the information in the Employment Assessment Report; • Some of the information in the Four Page Document; • Additional information from the Doctor about the Appellant’s physical functioning skills and diagnoses of physical impairments in the Second Reconsideration Request; • Information in the Appellant’s September 18 email about her then-current state of health, medications, and that she had had her gall bladder removed in July 2023; and, • Information in the Appellant’s September 15 email about the bad fall she had in 2019 as a result of arthritis in her legs and hips. Relevant new information is anything that provides more detail relating to the criteria that the Ministry found had not been met. These criteria are found in section 2 of the Act. The requirements that the Ministry found had not been met in the Decision were evidence from a prescribed professional of: • A severe mental or physical impairment;

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Appeal Number 2023-0265 • That directly and significantly restrict a p erson’s ability to do daily living activities either continuously or periodically for extended periods; and • That, as a result of those restrictions, the person needs help or assistance. The Panel does not admit the new information in the Appellant’s deceased husband’s vital documents or the Employment Assessment Report. This information is not relevant to the Decision because it does not provide any additional information relating to the criteria that the Ministry found had not been met. The Panel also does not admit the new information in the Assessment, the Federal Medical Report, or the Four Page Document because the information is incomplete, the person providing the information is not identified, and/or the date of the assessments is either unknown or the information is more than five years old.

The Panel admits the information provided by the Doctor in the Second Reconsideration Request, and the information in the September 8 email, the September 15 email, and the September 18 email because they provide more current information on the Appellant’s physical impairments and the severity of those impairments than what was contained in her original PWD application. In addition, the information in the Second Reconsideration Request is provided by the Doctor, who is a medical practitioner.

All of the information in the Second Appellant Submission concerns the Appellant’s self assessment of her physical functioning and daily living activity abilities at the end of September 2023 (six months after she submitted her PWD application), and is therefore admitted by the Panel because it is relevant to the legislative criteria and the Ministry’s findings as set out in the Decision.

All of the information in the Third Appellant Submission is the Friend’s assessment of the Appellant’s ability to do daily living activities and need for help with those activities and is also admitted by the Panel because it is relevant to the need for help criterion.