Ministry of Social Development and Poverty Reduction

Appeal Number 2023-0312 Part C – Decision Under Appeal The decision under appeal is the Ministry of Social Development and Poverty Reduction (the ministry) reconsideration decision dated September 27, 2023. The ministry denied the appellant designation as a person with disabilities (PWD). They determined that the appellant met the age requirement (18 years or older) and the duration requirement (impairment is likely to continue for at least 2 years). However, the ministry was not satisfied that the evidence establishes that

• the appellant has a severe physical or mental impairment; • the appellant's impairment significantly restricts the ability to perform daily living activities; and

• the appellant requires the significant help or supervision to perform daily living activities.

The ministry also found the appellant was not one of the prescribed classes of persons eligible for PWD on the 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

The full text of these sections of legislation is set out at the end of the decision.

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Appeal Number 2023-0312 Part E – Summary of Facts Evidence Before the Ministry at Reconsideration 1) The appellant’s PWD application: • The Medical Report and Assessor Report sections (June 5, 2023) completed by a general practitioner (the doctor) who has known the appellant for 5 years and has seen the appellant 11 or more times in the past 12 months. • To complete this form, the doctor used an office interview and file/chart information. • The appellant did not complete the Applicant Information (Self Report) section.

2) The appellant’s Request for Reconsideration

3) Reports from various medical professionals: • X-Ray Abdomen (March 4, 2022) • X-Ray Chest (March 4, 2022) • History and Physical Note (May 4, 2022) • X-Ray Ribs Left (May 11, 2022) • X-Ray Lumbar Spine, Sacrum and Coccyx (May 11, 2022) • CT Scan Lumbar Spine (June 4, 2022) • History and Physical Examination (July 3, 2022) • Internal Medicine (August 3, 2022) • X-Ray Chest (August 3, 2022) • CT Scan Abdomen Pelvis (August 3, 2022) • MRI Lumbar Spine (August 4, 2022) • Page 2 of a report [page 1 is not provided] (August 19, 2022) • Psychiatry (August 25, 2022)

4) Doctor’s note (May 8, 2023)

5) Discharge Prescription (August 18, 2022)

6) List of prescribed medications for the period of January to April 2023

7) A form from a charitable organisation regarding equipment on loan.

New Evidence Provided on Appeal and Admissibility

The appellant submitted a Notice of Appeal that contained no new evidence.

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Appeal Number 2023-0312

The advocate wrote a letter to the doctor and provided them with a checklist and a comment to sign. The doctor checked all boxes and signed (October 27, 2023).

At the hearing, the appellant and advocate answered questions from the panel. The ministry did not provide additional evidence but provided an explanation concerning their decision.

The ministry did not object to the admission of the new evidence. The panel finds that the new information from the doctor and the information from the appellant and advocate on appeal and at the hearing is reasonably required for a full and fair disclosure of all matters related to the decision under appeal, because it provides more information on the appellant’s impairments. The panel therefore admits this information as evidence pursuant to section 22(4) of the Employment and Assistance Act.

Summary of Relevant Evidence

Medical Report

Diagnoses: • Spinal Stenosis with Peripheral Neuropathy (onset February 2022) • Degenerative Disc Disease lumbar spine (onset February 2022) • Severe Anxiety (related to bankruptcy) (onset August 2022)

Health History:

• “Severe peripheral neuropathy, such that walking is affected due to poor balance and proprioception. Has had multiple falls, with resulting sacral and rib fractures and head injury. • Moderate spinal stenosis and disc degeneration with leg weakness and impaired control of bladder and bowel movements. • Bankruptcy, partly due to prolonged hospitalization, is causing extreme anxiety with loss of appetite and insomnia. Not able to afford to eat regular meals.” • The appellant has not been prescribed any medication and/or treatments that interfere with her ability to perform daily living activities. • The appellant does not require any prostheses or aids for her impairment.

Degree and Course of Impairment:

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Appeal Number 2023-0312 “The impairments are likely to be perma • nent. No resolution or substantial minimization of symptoms expected.”

Functional Skills: • Can walk 1-2 blocks unaided on a flat surface. • Climb more than 5+ steps unaided. • Has no limitations with lifting. • Has no limitations with remaining seated. • Has no difficulties with communication. • Has significant deficits with cognitive and emotional function in the area of emotional disturbance (e.g. depression, anxiety) o “She is overwhelmed emotionally by her bankruptcy, and her physical deterioration.”

Additional Comments: • “Prolonged admission to [a hospital] from 3/8/22 to 18/8/22.”

Assessor Report

The appellant lives alone.

Impairments that impact ability to manage Daily Living Activities: • “Impaired walking due to severe peripheral neuropathy.”

Ability to Communicate: • Speaking, reading, writing, and hearing abilities are good.

Mobility and Physical Ability: • The appellant is independent with walking indoors and standing. • She needs periodic assistance from another person with walking outdoors (“prone to falls”), climbing stairs, lifting, and carrying (“frail, weak legs”).

Cognitive and Emotional Functioning (impact on daily functioning) • “Severe anxiety related to economic problems. Insomnia, poor appetite, poor concentration and motivation.” • Major impact on emotion. • Moderate impact on bodily functions, attention/concentration, executive. • Minimal impact on impulse control, insight and judgment, memory, motivation.

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Appeal Number 2023-0312 • No impact on consciousness, motor acti vity, language, psychotic symptoms, other neuropsychological problems, other emotional or mental problems.

Daily Living Activities: • Personal Care: all tasks (dressing, grooming, bathing, toileting, feeding self, regulating diet, and regulating diet, transfers in/out of bed and transfers on/off chair) are managed independently. • Basic Housekeeping: both tasks (laundry and basic housekeeping) require periodic assistance form another person. • Shopping: Reading prices and labels, making appropriate choices, and paying for purchases are independently managed. Going to and from stores and carrying purchases home require periodic assistance from another person. • “Friends help with transport and carrying groceries.” “Not able to drive beyond her local neighborhood due to her neuropathy affecting her proprioception in her legs.” • Meals: all tasks (meal planning, food preparation, cooking, safe storage of food) are managed independently. • Pay Rent and Bills: all tasks (paying rent and bills, banking, and budgeting) are managed independently. • Medications: all tasks (filling/refilling prescriptions, taking as directed, and safe handling and storage) are managed independently. • Transportation: all tasks (getting in and out of a vehicle, using public transport, and using transit schedules and arranging transportation) are managed independently. • Social Functioning: o Appropriate social decisions and interacting appropriately with others are managed independently. Developing and maintain relationships (“Cluster B personality traits”), dealing appropriately with unexpected demands, and securing assistance from others require periodic support/supervision. o Marginal functioning with immediate and extended social networks.

Assistance Provided: • The appellant receives help from family and friends. • There is no indication that the appellant uses equipment or a device to help compensate for her impairment. • The appellant does not have an assistance animal.

Programs or services provided to the appellant: • “Referrals, prescriptions. Primary health care, regular B12 injections.”

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Request for Reconsideration

Appeal Number 2023-0312

The appellant wrote: • Her medical conditions make her day-to-day living very difficult. • She suffers from spinal stenosis with severe peripheral neuropathy. She also has Cauda Equina compression and has lost control of her bowel and bladder. She also has severe anxiety. • Her doctor told her that her impairments are likely to be permanent. • Her doctor told her that her entire nervous system is affected by severe neuropathy, made worse by anxiety. • She has frail weak legs. She has pain at every step, and she walks very slowly. • She has the use of a cane. When she got palsy in her hand it has been very difficult to use, “[her] doctor gave her a requisition for a 4 W/D walker Apr. 12/2023. It was from Canadian Red Cross. I had to have it returned as it was 35 lbs – way too heavy for me. Never used it! I could not lift it.” • Her friends and family help her get to appointments and to go shopping. They drive her and assist her to get in and out of their vehicle. They hold her arm when she walks. • When she needs something, they pick it up and deliver it to her many times. • They also help her buying groceries that she cannot afford to pay for. They buy, deliver and unpack. • She has limitations lifting – she can lift “maybe under 5 lbs”. • She also has limitations sitting – she can sit for a very short time and always sits “on a couple of blankets”. She gets very bad pain “in [her] lower lumbar and buttocks.” • At least every second day she ends up staying on the couch all day because she is in so much pain. • When she is in this state, she calls her friends of family to her place for help. They make food for her, help her go to the bathroom and with household duties. • She feels her body is deteriorating more each day due to her nerve damage in feet and legs, the palsy in her hand, and her constant excruciating pain. • She has uncontrollable explosive diarrhea and has been wearing adult diapers for the past 1 ½ years. • She is prone to falls. She has fainted many times, waking up with contusions on her head. She lives by herself, and this is scary. Sometimes it is difficult to get up because she is so weak. • Although she is taking major pain medication she is still in a lot of pain. Now she cannot afford to pay for 1 of the ones she is supposed to take.

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Appeal Number 2023-0312 • Her depression, stress and anxiety is no t only related to bankruptcy but is also related to the deterioration of her body. She has no appetite. If she eats the food does not stay in her stomach; she ends up vomiting or with explosive diarrhea. • She used to own a successful store. After her injury 1 1/2 years ago her health started to deteriorate, she has been in so much pain that she was not able to continue and had to close her store. • Now she must rely on friends and family for regular and continued help and support.

Reports from various medical professionals

X-Ray report (March 4, 2022): • “RAD Abdomen Multi Views” • “ABDO discomfort: Hx of Diverticulitis” • “There is a nondisplaced fracture laterally on the left 10 th rib. • Degenerative changes involve the lower lumbar dis spaces and facets. • The bowel gas pattern is preserved, without dilated loops, air-fluid levels, or gross free air. • The soft tissue contours are preserved, without underlying mass or abdominal calcification.”

X-Ray Chest (May 4, 2022) • “Lt lateral chest pain: Fall on Saturday pain to left side.” • “A subtle nondisplaced fracture is noted laterally at the left 10 th rib. • The bony thorax is otherwise clear, without secondary fracture, although dedicated rib views are not obtained. • The lung fields, pleural spaces, mediastinal contours are preserved. • No acute or significant traumatic intrathoracic abnormality.”

History and Physical Note (May 4, 2022) • “Chief complaint: Chest pain.” • “The patient had a fall at home about a week ago. She landed heavily on her left chest and she has had some pain in the left upper chest ever since. It is worse with deep inspiration, movement or bending. The pain is improving. She has had no fever hemoptysis or shortness of breath. She has noticed that she been [sic] more constipated for the last few days. She has also noticed with her constipation that she has had some fecal leaking without actual bowel movement. There has been a little bit of blood. She has had no nausea vomiting. She is eating well. She did have a bowel movement in the emergency department. She is not sure if her urination has

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Appeal Number 2023-0312 been normal. For pain she has been taki ng some ibuprofen but she has recently stopped that. • Past history: She is usually in good health. She has a history of high blood pressure, diverticulitis. Medications Please see Pharmanet. On physical exam she was well and in no distress. Her vital signs were normal. She was well hydrated. She had a slightly tender anterior lateral chest wall with no subcutaneous air entry bilaterally and good excursion. Her work of breathing was normal. Heart sounds were normal. She had a soft nontender abdomen. She was not distended. • Impression and plan: I suspect the patient has a chest wall contusion, possibly a fractured rib. However, her pain is improving and she has no respiratory symptoms. Her blood work is unremarkable. Will get a chest x-ray and an abdominal view. This patient has a single fractured rib on the left. There is pneumo or hemothorax. She mobilized well in the emergency department and her pain is well controlled. She will be discharged home for follow-up with her GP.”

X-Ray Ribs Left (May 11, 2022) • “History: follow up left rib fracture still hurts after 2 months also had fall onto her buttocks March 15 query fracture coccyx or l spine. • Findings: Comparison is made to previous study performed March 3, 2022. Left 10 th rib fracture anterolaterally is again seen. This again shows minimal displacement. There is some external callus formation which is developed about the fracture site, however solid bridging union is not yet evident. The remainder of the exam is unremarkable and unchanged.”

X-Ray Lumbar Spine, Sacrum and Coccyx (May 11, 2022) • “History: follow up left rib fracture still hurts after 2 months also had fall onto her buttocks March 15 query fracture coccyx or l spine. • Findings: no previous studies are available for comparison. There are 5 lumbar type vertebrae in relatively normal alignment. There is multilevel degenerative disc disease. This is mild-to-moderate at the L4/L5 level and mild at the L2/L3 and L3/L4 levels. Multilevel facet degenerative change suspected at the lower 3 lumbar levels, minimal. Pedicles are intact. Sacroiliac joints are congruent. The sacrum appears reasonably well defined, however there is focal acute angulation to the anterior cortical contour at the 3 rd sacral segment and suspicious for a minimally comminuted impacted fracture in this region. No significant displacement. No presacral soft tissue swelling.”

CT Scan Lumbar Spine (June 4, 2022)

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Appeal Number 2023-0312 • Findings: The vertebral heights are main tained. There is grade 1 anterolisthesis of L4 on L5. The alignment is otherwise maintained. There is severe intervertebral dis space narrowing at L4-5, mild at L5-S1 and moderate at the remainder of the lumbar levels… • Impression: Multilevel lumbar spondylosis most pronounced at L4-L5 where there is moderate disc bulge with superimposed left paracentral disc extrusion resulting in moderate central canal stenosis and moderate bilateral foraminal narrowing.”

History and Physical Examination (July 3, 2022) • “1 day history of urinary frequency dysuria urgency. No fever no chills no nausea no vomiting no flank pain no hematuria.” • “Physical Examination: 1. General: Alert, Appropriate. 2. Respiratory: Good breath sounds. Equal. No adventitious sounds. 3. Abdomen: Soft. Nontender. No masses. No rebound or guarding. 4. Cardiovascular: Normal S1.S2. No murmurs. Good peripheral pulses. Extremities warm and pink. No peripheral edema.” • “… patient was started on Cipro 5000 patient was started on Tylenol 3 follow up family doctor 1 week if chest pain shortness of breath back pain return to emergency department.”

Internal Medicine (August 3, 2022) • “Past medical history: 1. Hypertension , managed on antihypertensives. 2. Unclear if the patient has diverticulosis or diverticulitis history… 3. Many abdominal surgeries… • Social history: Patient lives in [a city] and manages a [retail] store. She stopped drinking a few months ago before that was drinking an alcoholic beverage every few days. She denies any smoking, recreational or IV drug history. She has received 3 COVID vaccinations. She is independent for her activities of daily living… • Assessment: overall, [the appellant] … in the context of two previous falls approximately 5 months ago, has ongoing bilateral back pain that extends into her feet. She was also concurrently found to have mild hyponatremia and mild anemia that is macrocytic in nature…”

X-Ray Chest (August 3, 2022) • “History: ?Cancer back pain weight loss” • “Findings: The lungs are clear with no pleural effusions or pneumothoraces. The cardiomediastinal and hilar contours are within normal limits. No acute or aggressive osseous abnormalities are demonstrated.”

CT Scan Abdomen Pelvis (August 3, 2022)

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Appeal Number 2023-0312 • “History: ?Cancer, 30 lbs. wt loss back pa in” • “Impression: o 1. Incompletely characterized partially exophytic left renal lesion measuring 1.2 cm in the interpolar region. This may represent a hyperdense cyst … o 2. Mild intrahepatic and extrahepatic biliary duct dilatation, with CBD remaining dilated to level of ampullary no obstructing stone cause identified.” Page 2 of a report dated August 3, 2022 o “3. Multilevel degenerative changes in the lumbar spine with multilevel moderate spinal canal stenosis and severe subarticular recess narrowing L4-5 with probable compression of the traversing left L5 nerve root. This would be better characterized with dedicated MRI of the lumbar spine, if indicated.”

MRI Lumbar Spine (August 4, 2022) • “Impression: 1. Mild degenerative central spine stenosis at L3-4. 2. Moderate degenerative central spinal stenosis at L4-5. 3. Marked right foraminal narrowing at L4-5 with probable nerve root compression.”

Page 2 of a report [page 1 has not been provided] (August 19, 2022) • “who felt that she had a mostly resolved delirium and was safe discharge and also identified likely cluster B personality. They will arrange for her to have further psychiatric followup and support in the community. [The appellant] was quite keen for discharge with her 2 [children] who will keep an eye on her over the next few days given her recent delirium. She is aware of what symptoms to monitor in regard to her back pain and spinal stenosis. I have asked her to follow up with her family physician regarding her hospital stay and to ensure her electrolytes remain stable.”

Psychiatry (August 25, 2022) • “Reason for referral: Assessment and management of possible underlying bipolar affective disorder and evaluation of possible ongoing delirium.” • “[The appellant’s child] reports that [the appellant] has remained relatively functional in the community with the ability to own [a store]. [The appellant] describes independence in her basic and instrumental activities of daily living. She manages her own personal and business-related bills. … She reports a good relationship with various clientele at her store…She was future oriented with a plan to return home and to re-open her store… it will be difficult to fully diagnose a personality disorder from a 1-time encounter with possible residual delirium… current psychosocial stressors due to her medical issues, limiting her ability to continue operation of her store on a regular basis.”

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Appeal Number 2023-0312 A doctor’s note states that the appellant was h ospitalized from August 2 – August 19, 2022 “for an acute medical illness”.

Doctor’s submission (new evidence, October 27, 2023) The doctor signed the following prepared statement: “It is my medical opinion that [the appellant] has severe conditions that will last for more than 2 years. I have checked the appropriate boxes where I confirm that she is directly and significantly restricted in her ability to perform her daily living activities and requires significant help to perform the activities, noted above.” The doctor checked all boxes and initialed each page.

“This is to confirm, in my medical opinion that [the appellant] suffers from severe conditions including:

 Spinal Stenosis with Severe Peripheral Neuropathy  Degenerative Disc Disease of the lumbar Spine  Hypertension  GERD  Anxiety  Depression  [The appellant] is directly and significantly restricted in her ability to do her daily living activities continuously, as a result of the conditions noted above.

Restrictions and assistance needed:

 Basic mobility & Climbing stairs: significant restrictions walking more than 1 block or climbing more than 5 stairs without taking a break to chronic shooting pain and weakness in legs, back pain, and numbness in both feet. Due to the numbness in feet, there are often times when [the appellant] is walking and has been unable to feel her shoes or slippers coming off her feet. She must be holding onto the railing for support going up or down the stairs. [The appellant] takes 3X longer with basic mobility and uses a cane when feeling weak or dizzy.  Lifting, carrying & Holding: directly restricted from lifting, carrying, or holding more than 5 lbs. due to chronic pain and weakness. Requires continuous assistance from her children and friends.  Sitting & Standing: significant restrictions sitting longer than 30 minutes due to chronic back pain. [The appellant] constantly readjusts her position and sits on pillows or blankets due to pressure on her lower lumbar and buttocks. She is unable to stand longer than 2-3 minutes at a time due to increased pain, weakness, fatigue, and numbness in her feet.

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Appeal Number 2023-0312  Dressing, Grooming & Bathing: direct rest rictions with personal care due to chronic pain and weakness. [The appellant] must sit when getting dressed, neglects doing her hair or make-up most of the time and has difficulty standing in the shower. She holds onto the shower wall for support and sits on the toilet lid when drying off afterwards. She would benefit from using a shower chair. Additionally, [the appellant] must always wear shoes due to numbness in her feet.  Toileting: direct restrictions with toileting due to incontinence. [The appellant] experiences daily bowel and bladder issues and wears adult incontinence products. (Depends). She must always be near a washroom and takes 2X longer transferring on and off the toilet.  Feeding self: direct restrictions due to lack of appetite. [The appellant] usually eats only one meal per day.  Transfers: Takes 2-3X longer to get in and out of bed or on and off chairs due to chronic pain, weakness, and fatigue.  Laundry & Housekeeping: significant mobility restrictions with all laundry and cleaning duties due to chronic pain. [The appellant’s] mobility issues prevent her from lifting and carrying baskets of laundry, and her ability to sweep, mop, vacuum, or stand to wash dishes. Her children provide continuous assistance.  Shopping: significant restrictions with shopping due to mobility issues. [The appellant] is unable to drive beyond a few blocks to the nearby store due to neuropathy. She has difficulty standing in line-ups to pay for her items and requires continuous assistance carrying her purchases into her home.  Meals: significant restrictions with food preparation and cooking due to mobility issues and lack of appetite. [The appellant] mostly prepares quick/easy meals or snacks. She also has difficulties standing longer than 2-3 minutes and takes breaks to sit down. Friends and family also bring her meals 1-2X per week.  Banking: direct restrictions with accessing the bank due to mobility issues. [The appellant] experiences increased anxiety when budgeting her money and paying her bills.  Medications: direct restrictions with accessing medical appointments and going to the pharmacy due to mobility issues. [The appellant] forgets to take her medications 1-2X per week and only remembers after waking up during the night in severe pain.  Transportation: mobility issues getting in and out of a vehicle. [The appellant] holds onto the car door for support and takes 2X longer. She avoids taking transit and requires transportation from her children or friends to access the community if driving more than a few blocks. Further, [the appellant] uses a handicap parking permit.  Social Functioning: [The appellant] requires continuous support dealing with unexpected demands as she becomes easily overwhelmed and anxious. Maintaining relationships is difficult due to her medical impairments.