Ministry of Social Development and Poverty Reduction

Part C – Decision Under Appeal

Appeal Number 2023-0290

The decision under appeal is the Ministry of Social Development and Poverty Reduction (ministry) reconsideration decision dated August 31, 2023, which determined the appellant was not eligible for the Persons with Disabilities designation because she did not meet the following criteria: - Severe Impairment - Direct and Significant Restrictions to Daily Living Activities - Significant Help Required with daily living activities

The Ministry found the appellant was not one of the prescribed classes of persons eligible for Persons with Disabilities 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

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 2023-0290

Relevant Evidence Before the Minister at Reconsideration

Request for Reconsideration (no date) - summary The information is provided by the appellant's doctor. The doctor writes that the appellant is having increased demands for support by family. She is increasingly dependent on assisted daily living and now needs a cane to ambulate on bad days. She needs assistance bathing and washing her hair. The appellant is unable to do grocery shopping without assistance due to worsening mobility and pain to upper limbs. A recent fall over a month ago, due to poor balance, resulted in an injury to her ankle and subsequent cellulitis, which required antibiotics and wound care.

The doctor adds that due to poor mobility, the appellant needs someone to bring her to appointments, do grocery shopping, go to the bank etc. The doctor anticipates with time and natural disease progression, the appellant will be increasingly dependent on others and more disabled.

Person with Disabilities Application (application) Self-Report (May 9, 2023) The appellant states the onset of paralyzing pain begins throughout her body, from morning and gets worse throughout the day. She has been diagnosed with rheumatoid arthritis. This condition has gravely affected the quality of her life emotionally, psychologically, physically and mentally. She adds that the inflammation on her right side (including her right shoulder throughout her arm into her fingers) has become so severe that she loses all use of that side of her body. On her worst days this debilitating pain is in her ankle and toes. She literally freezes and cannot move. She states that even completing this form she’s having extreme difficulty. Her daily living activities such as brushing her teeth, getting in the shower, bathing and getting dressed/grooming are becoming extremely difficult. Housework has become extremely difficult. Grocery shopping has become extremely difficult, and embarrassing as her fingers lock as she attempts to push the shopping cart. The appellant adds that as a very active person this diagnosis has stripped away her livelihood.

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Appeal Number 2023-0290

Medical Report (May 18, 2023) – signed b y the appellant’s doctor The doctor (general practitioner) provided the following information and responses to the questions below.

Diagnosis Seronegative rheumatoid arthritis

Date of onset – month/year

Health History Please indicate the severity of the medical conditions related to this person's impairment. How does the medical condition impair this person?

Weekly methotrexate injections, poor mobility instability with walking and requires mobility aid/orthotics, limited use of upper limbs. Family helps with housework, dressing.

o Has the appellant been prescribed any medications and/or treatments that interfere with her ability to perform daily living activities? - no o Does the appellant require prostheses or aids for her impairment? – yes, custom shoes and orthotics from podiatrist

Degree and Course of Impairment o Is the impairment likely to continue for two years or more from today? – yes, life­long condition, will need medication indefinitely.

Functional Skills o How far can this person walk unaided on a flat surface? 1-2 blocks o How many stairs can this person climb unaided? 5+ steps o What are the person’s limitations in lifting? o 2-7 kgs o How long can this person remain seated? no limitation o Are there difficulties with communication? no o Are there any significant deficits with cognitive and emotional function? no

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Appeal Number 2023-0290

Daily Living Activities Does the impairment directly restrict the person’s ability to perform Daily Living Activities? - yes

Daily Living Activities

Personal self care Meal preparation Management of medications Basic housework Daily shopping Mobility inside the home Mobility outside the home Use of transportation Management of finances Social functioning – daily decision making; interacting, relating and communication with others

Is activity restricted? yes no x x x x x x x x x x

If yes, the restriction is: unknown continuous periodic x

x x x x x

Please provide additional comments regarding the degree of restriction: - limited use of arms due to rheumatoid arthritis

What assistance does your patient need with daily living activities? - help with dressing, shoes, taking her to appointments

Additional comments The patient needs to steady themselves against a wall or surfaces when walking. She always has a friend or family member bring her to appointments due to poor mobility.

Frequency of Contact o How long has the applicant been your patient? - over 3 years

o How often have you seen this applicant in the past 12 months? - 11 or more times

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Appeal Number 2023-0290

Assessor Report (June 1, 2023) – signed b y the appellant’s doctor The doctor provided the following information and responses to the questions below.

Living Environment The doctor indicated the appellant lives with family, friends or caregiver.

Mental or Physical Impairment o What are the applicant’s mental or physical impairments that impact her ability to manage daily living activities? - rheumatoid arthritis

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 Walking outdoors Climbing stairs Standing Lifting Carrying and holding

Good Satisfactory

x x

x

Poor

x

Unable

Explain

EAAT (26/10/22) 6 I n d e p e n d e n t P e r i o d i c a s s i s t a n c e f r o m a n o t h e r p e r s o n C o n t i n u o u s a s s i s t a n c e f r o m a n o t h e r p e r s o n o r u n a b l e U s e s a s s is t i v e d e v ic e T a k e s s i g n i f ic a n t ly l o n g e r t h a n t y p i c a l E x p l a i n a n d

x x x x x x

s p e c i f y d e v ic e

Appeal Number 2023-0290

Cognitive and Emotional Functioning For each item indicate to what degree the applicant’s mental impairment restricts her 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, alert/drowsy, confusion Emotion (e.g. excessive or inappropriate anxiety, depression etc. Impulse control (e.g. inability to stop doing something or failing to resist doing something) Insight and judgement (e.g. poor awareness of self and health condition (e.g. grandiosity, unsafe behavior) Attention/concentration (e.g. distractible, unable to maintain concentration, poor short-term memory) Executive (e.g. planning, organizing, sequencing, abstract thinking, problem-solving, calculations) Memory (e.g. can learn new information, names etc., and then recall that information, forgets over-learned facts) Motivation (e.g. lack of initiative, loss of interest) Motor activity (e.g. increased or decreased goal-oriented activity, coordination, lack of movement, agitation, ritualistic or repetitive actions, bizarre behaviours, extreme tension) Language (e.g. expression or comprehension problems (e.g. inability to

x

x

x

x

x

x

x

x

x

x

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understand, extreme stuttering, mute, racing speech disorganization of speech) Psychotic symptoms (e.g. delusions, hallucinations, disorganized thinking) Other neuropsychological problems (e.g. visual/spatial problems, psychomotor problems, learning disabilities etc.) Other emotional or mental problems

Daily Living Activities Indicate the assistance required related to impairment(s) that directly restrict the applicant’s ability to manage in the following areas. 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 Making appropriate choices Paying for purchases Carrying purchase home

x x x x x

x x x

x x x

x x

x

x

Appeal Number 2023-0290

x

x

x

Explain/ Describe

Additional comments rheumatoid arthritis, poor mobility and use of hands. Needs someone to take to any appointments, shopping. Difficulty carrying things. Unsteady gait.

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Meals Meal planning x Food preparation Cooking Safe storage of food (ability, x not environmental) Pay rent and bills Banking x

x x

Budgeting x Pay rent and bills x Medications Filling/refilling prescriptions x Taking as directed x Safe handling and storage x Transportation Getting in and out of a x vehicle Using public transit Not Using transit schedules and applicable arranging transportation

Appeal Number 2023-0290

needs help to get to

appointments

Social Functioning – only complete if applicant 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.

EAAT (26/10/22) 9 I n d e p e n d e n t P e r i o d i c s u p p o r t / s u p e r v i s i o n C o n t i n u o u s s u p p o r t / s u p e r v i s i o n E x p l a i n /

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)

x

x x

x

D e s c r i b e

Appeal Number 2023-0290

Able to deal appropriately with unexpected demands Able to secure assistance from others x Describe how the mental impairment impacts the applicant’s relationship with - immediate social network - good functioning – positive relationships assertively contributes to these relationships - extended social networks - good functioning – positively interacts with the community; often participates in activities with others

Assistance Provided for Applicant The doctor states that the help required for daily living activities is provided by family and friends.

Assistance provided through the use of devices What equipment or devices does the applicant routinely use to help compensate for her impairment? Custom shoes and orthotics

Additional Information The doctor states that rheumatoid arthritis has significantly impacted the appellant’s ability to walk and use her upper limbs. She comes to the office weekly for methotrexate injections but always requires a friend or family to bring her. The appellant is very unsteady and uses walls and surfaces to balance herself. She is seeing a physiotherapist, rheumatologist and podiatrist.

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Part F – Reasons for Panel Decision

Appeal Number 2023-0290

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.

Did the ministry reasonably determine the appellant was not eligible for the Persons with Disabilities designation because:  She 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 she has been diagnosed with rheumatoid arthritis and this condition has gravely affected the quality of her life emotionally, psychologically, physically and mentally.

Daily living activities such as brushing her teeth, getting in the shower, bathing and getting dressed/grooming, housework, and grocery shopping are becoming extremely difficult.

Ministry Position

Mental Functioning The ministry acknowledges that the appellant’s self-report states that the medical condition affects her emotionally, mentally and psychologically; however, as no deficits are reported by the appellant’s doctor, the ministry is unable to establish that the appellant’s medical condition is causing a mental impairment.

Physical Functioning The ministry acknowledges impairments reported with mobility, balance, upper body and hands, and the need for a cane on ‘bad days’; however, argues the doctor demonstrates more of a moderate overall physical impairment. The ministry also acknowledges that the appellant’s self-report appears to be much more limiting than the information reported by her doctor. However, as this level of impairment is not reported by the doctor, the ministry is unable to conclude the appellant has a severe physical impairment.

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Appeal Number 2023-0290

Daily Living Activities The ministry argues that as a severe impairment has not been established it also cannot be established that the impairment directly and significantly restricts daily living activities. As reported by the doctor, the appellant does not have mental deficits or restrictions to daily living activities because of any mental impairments.

The ministry recognizes that continuous restrictions are reported with personal self-care, basic housework, daily shopping, mobility inside and outside of the home and transportation. However, without details, it is difficult to establish that the impairment is causing direct and significant restrictions to the appellant’s ability to complete her daily living activities continuously or periodically for extended periods of time. Although the ministry recognizes the appellant’s self-report, this information needs to be demonstrated by the doctor.

Help Required with Daily Living Activities The doctor reports the need for orthotics, custom shoes, and a cane periodically on bad days. In addition, they state the appellant requires some help from family, especially related to getting to/from appointments and when shopping. However, the ministry argues that as it has not been established that daily living activities are significantly restricted, it cannot be determined that significant help is required from another person or a device.

Panel Analysis Section 2(2) of the Act sets out the requirements that must be met for the minister to designate a person as a person with disabilities. One requirement is that the minister is satisfied that the person has a severe mental or physical impairment.

Mental Impairment In the medical report, the doctor states the appellant has no difficulty with communication and there are no significant deficits with cognitive and emotional function.

In the assessor’s report, under cognitive and emotional functioning, the doctor is asked to indicate to what degree the applicant’s mental impairment restricts her functioning. The doctor indicated there was no impact on daily functioning. Under social functioning, the doctor indicates the appellant is independent in all areas and stated the appellant has good functioning with her immediate and extended social networks. The panel notes in the self-report, the appellant states her condition has gravely affected the quality of her life emotionally, psychologically and mentally.

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Appeal Number 2023-0290

Although the appellant reports mental struggl es due to her medical condition, the panel finds this information does not provide sufficient detail to fully explain her mental struggles. As well, the doctor has not diagnosed a medical condition related to a mental impairment, and has not indicated any impairment of cognitive and emotional functioning. Therefore, the panel finds the ministry reasonably determined that the appellant does not have a severe mental impairment.

Physical Impairment In the assessor’s report, the doctor states that rheumatoid arthritis has significantly impacted the appellant’s ability to walk and use her upper limbs. She comes to the office weekly for methotrexate injections but always requires a friend or family to bring her. The appellant is very unsteady and uses walls and surfaces to balance herself. She is seeing a physiotherapist, rheumatologist and podiatrist. In the self-report, the appellant adds that her condition has also gravely affected the quality of her life physically. She states that the inflammation on her right side has become so severe that she loses all use of that side of her body. On her worst days this results in debilitating pain in her ankle and toes. She literally freezes and cannot move.

The ministry argues that the doctor’s evidence demonstrates more of a moderate overall physical impairment. However, the panel finds the appellant’s explanation in the self-report, which assists the panel in further understanding the degree of severity of her impairment and how it affects her daily life, provides a description of a more severe impairment. As well, the information from the doctor, in the assessor’s report, describes the difficult physical challenges the appellant endures, with her limited mobility, in daily life.

The panel finds there is sufficient evidence to confirm that the appellant’s physical impairment is severe and finds the ministry decision, that it was not satisfied that the appellant has a severe physical impairment, not reasonable. While the doctor indicated that the appellant can walk 1-2 blocks and climb 5+ stairs independently, the doctor also described the impact on the appellant’s ability to walk as significant. The doctor also indicated that they have regularly observed that the appellant is very unsteady and has to support herself with walls, and that a cane is needed on bad days. Additionally, the doctor described the impacts on the appellant’s ability to use her upper limbs as significant. All of these impacts should be considered together when looking at the severity of impairment. The panel also finds that the appellant's self-report gives more detailed, descriptive evidence about her functioning that is consistent with the doctor’s description of significant impacts. In particular, that the inflammation on her right side has become so

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Appeal Number 2023-0290

severe that she loses all use of that side of her body and on her worst days this results in debilitating pain in her ankle and toes. The panel finds that, considering the whole of the medical evidence and the additional detail the appellant provides in the self-report, it is not reasonable to place greater weight on a few ticked boxes than on the extensive and otherwise consistent medical evidence.

Restrictions in Ability to Perform Daily Living Activities Section 2(2) of the Act also states the minister must be satisfied that in the opinion of a prescribed professional, a severe physical or mental impairment directly and significantly restricts the person's ability to perform daily living activities continuously, or periodically for extended periods. Daily living activities are defined in section 2(1)(a) of the Regulation. At least two activities must be restricted in a way that meets the requirements. To be significant, the restriction must be to a great extent, such as not being able to do the activities without a lot of support. Continuous means the activity is generally restricted all the time and periodic for extended periods means frequently or for longer periods of time.

With the information below, the panel finds there is sufficient evidence to establish that that the appellant’s severe physical impairment directly and significantly restricts her ability to perform the following daily living activities continuously, or periodically for extended periods.

shop for personal needs In the request for reconsideration, the doctor states the appellant is unable to do grocery shopping without assistance due to worsening mobility and pain to upper limbs. In the medical report the doctor states daily shopping is continuously restricted and in the assessor’s report, states the appellant needs periodic assistance going to/from stores and carrying purchases home as she has poor mobility and use of her hands.

use public or personal transportation facilities In the medical report the doctor states use of transportation is continuously restricted and in the assessor’s report states the appellant needs periodic assistance getting in and out of a vehicle.

perform housework to maintain the person's place of residence in acceptable sanitary condition In the medical report the doctor states basic housework is continuously restricted and in the assessor’s report states the appellant requires periodic assistance for laundry and basic housekeeping. The doctor also states the appellant has limited use of her arms due to rheumatoid arthritis.

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