Ministry of Social Development and Poverty Reduction

Part C – Decision Under Appeal

Appeal Number 2023-0349

The decision under appeal is the Ministry of Social Development and Poverty Reduction (ministry) reconsideration decision dated October 27, 2023, which determined the appellant was not eligible for the Persons with Disabilities designation because he did not meet the following criteria:  Severe physical or mental impairment  Severe impairment directly and significantly restricts daily living activities  Assistance required with daily living activities as a result of significant restriction

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

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 2023-0349

Relevant Evidence Before the Minister at Reconsideration

Person with Disabilities Application (application)

Self-Report (July 19, 2023) The appellant writes that he has arthritis in his knees and lower back pain. His vision is getting weaker, his ankles are weak, his feet need special shoes with insoles, and he has hearing issues and other problems of old age.

He adds that he can’t go up ladders and lift heavy objects over 30 pounds. He has back pain from bending over for long periods of time, which makes it very difficult to shower, walk, sit, and lay down. The appellant also states he needs assistance getting up from a standing position due to lower back pain. As well, he has difficulty going up and down stairs. A few times while moving quickly and standing up, he had dizzy spells and was light headed. The appellant states he is experiencing migraines more frequently - and they are lasting longer. The stress in his life has increased.

Medical Report (July 26, 2023) – signed by the appellant’s doctor The doctor (general practitioner) provided the following information and responses to the questions below

B. Diagnosis Arthritis of lower back Arthritis of bilateral ankles Arthritis of bilateral knees Depression

Date of onset – month/year 2014 1995 1995 2019

C. Health History Please indicate the severity of the medical conditions and how the medical conditions impair this person?

Patient has moderate osteoarthritis affecting the lower back, and mild osteoarthritis affecting the ankles and knees.

o Has the appellant been prescribed any medications and/or treatments that interfere with his ability to perform daily living activities? – no

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Appeal Number 2023-0349

o Does the appellant require prostheses o r aids for his impairment? – yes, uses cane if has to walk for long periods.

D. Degree and Course of Impairment o Is the impairment likely to continue for two years or more from today? – yes, this will be a chronic issue.

E. Functional Skills o How far can this person walk unaided on a flat surface? – 2-4 blocks o How many stairs can this person climb unaided? – 5+ steps o What are the person’s limitations in lifting? – 7-16 kgs o How long can this person remain seated? – 2-3 hrs. o Are there difficulties with communication? - no o Are there any significant deficits with cognitive and emotional function? The doctor checked:  executive (planning, organizing, sequencing, calculations, judgement)  memory (ability to learn and recall information), emotional disturbance (e.g., depression, anxiety)  motivation (loss of initiative or interest)  attention or sustained concentration The doctor added that the appellant also has some issues with depression.

G. Additional Comments Arthritis is affecting the spine/ankles and knees. The applicant has chronic issues with joint pain and depression related to stress and financial pressure, due to no ability to work.

H. Frequency of Contact o How long has the applicant been your patient? – 10 years o How often have you seen this applicant in the past 12 months? – 2-10 times

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Appeal Number 2023-0349

Assessor Report (August 2, 2023) – signe d by the appellant’s doctor The doctor provided the following information and responses to the questions below.

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

C. Mental or Physical Impairment o What are the applicant’s mental or physical impairments that impact his ability to manage daily living activities? – arthritis affecting lower back, both knees and ankles.

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

Good Satisfactory

x x x x

Poor

Unable

Explain

EAAT (26/10/22) 5 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 i s t i v e d e v i c e T a k e s s i g n i f i c a n t l y 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

Standing Lifting Carrying and holding

x x x

x x x

x x x

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

Can only lift light items – max 15

lbs.

Appeal Number 2023-0349

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 2023-0349 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 Patient has depression due to financial stresses/life situation

D. 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 Making appropriate choices Paying for purchases Carrying purchase home

x x x x x x x x

x x

x x x x x

Explain/ Describe

Does these duties once every 3 wks.

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

Pay rent and bills Banking Budgeting Pay rent and bills 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 x Using transit schedules and x arranging transportation

x x

x x x

Appeal Number 2023-0349

Brother pays bills and food

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) 8 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

Has some online

D e s c r i b e

relationships but no in-person friendships

Able to deal appropriately with unexpected demands Able to secure assistance from others

Appeal Number 2023-0349 x

x

Describe how the mental impairment impacts the applicant’s relationship with - immediate social network – marginal functioning – little significant participation/communication: relationships often minimal and fluctuate in quality - extended social networks – marginal functioning – little more than minimal acts to fulfill basic need.

E. Assistance Provided for Applicant The doctor indicates help required for daily living activities is provided by family – lives with his older brother.

Assistance provided through the use of devices What equipment or devices does the applicant routinely use to help compensate for his impairment? – cane

Assistance provided by Assistance Animals Does the appellant have an assistive animal?- no

Additional Information received after the Reconsideration Decision

Appellant

Notice of Appeal (November 9, 2023) The appellant states he believes he meets the persons with disabilities eligibility criteria and will be submitting supporting evidence to confirm his eligibility.

Submission - Letter from Community Resource Centre (November 23, 2023) - attachment (November 21, 2023, signed by the appellant’s doctor)

The doctor confirms the appellant suffers from severe conditions including: o arthritis (lower back, ankles and knees) o depression o sleep apnea o asthma

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Appeal Number 2023-0349

Restrictions and assistance needed: o Toileting: takes 2 times longer to transfer on and off the toilet. The appellant holds onto the counter for support. He also suffers from frequent diarrhea 6 times/week. o Transfers: takes 5-10 minutes to get out of bed in the morning due to chronic pain. The appellant takes 2 times longer with transfers on and off chairs. o Meals: direct restrictions with meal planning, preparation, and cooking due to mobility issues, and lack of motivation and appetite. When the appellant does eat, he makes microwave meals or quick snacks. His brother provides continuous assistance with cooking. o Banking and filling prescriptions: significant mobility restrictions waiting in lineups at the bank and pharmacy. The appellant requires his cane for support. His brother also provides continuous assistance with budgeting and paying rent and bills. o Transportation: takes 2 times longer getting in and out of a vehicle and holds onto the door for support. The appellant requires his cane when walking to the bus stop and needs a seat when on the bus.

Mental Health Symptoms: o Emotion: major impact. Experiences chronic depressed moods and social anxiety. o Attention and Concentration: moderate impact. The appellant has suffered several head injuries and has poor short-term memory. o Executive functioning; moderate impact. o Memory: moderate impact o Lack of motivation: major impact o Social functioning: the appellant has a poor support network except for his brother. He has difficulty developing and maintaining relationships due to chronic depressed moods and isolates himself socially. He also experiences social anxiety affecting his ability to interact appropriately with others and finds it difficult to ask for help.

The doctor states that it is their medical opinion that the appellant has severe conditions that will last for more than 2 years. They have checked the applicable boxes where they confirm that he is directly and significantly restricted in his ability to perform daily living activities and requires significant help to perform the activities noted above.

Ministry

On December 5, 2023, the ministry provided its submission, a response to the appellant’s submission. The ministry’s submission is included in this decision under “Ministry Position”.

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Appeal Number 2023-0349

The panel determined the additional informati on 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 2023-0349

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 he did not meet the following criteria?  Severe physical or mental impairment  Severe impairment directly and significantly restricts daily living activities  Assistance required with daily living activities as a result of significant restriction

Appellant Position The appellant submits that he has arthritis in his knees, lower back pain, his vision is getting weaker, his ankles are weak, his feet need special shoes, and he has hearing issues, migraines and increased stress.

The appellant states further that he can’t go up ladders, and lift heavy objects over 30 lbs. He has back pain from bending over for long periods of time, which makes it very difficult to shower, walk, sit and lay down. As well, he needs assistance getting up from a standing position and has difficulty going up and down stairs.

Ministry Position

The following arguments were made at reconsideration.

Mental Impairment The ministry states that although the appellant’s doctor notes the appellant has moderate impacts in attention/concentration, memory, and motivation, the majority of cognitive and emotional functions are either minimally impacted or not impacted at all. The ministry adds that this does not appear to severely impair the appellant’s mental function as he has minimal or no impacts in a majority of areas. Further the appellant is assessed to have good communication abilities.

Physical Impairment The ministry states although it acknowledges that the appellant experiences ankle, knee, and back pain, a severe physical impairment has not been established. Although the

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Appeal Number 2023-0349

doctor reports that the appellant can only rem ain seated for less than one hour or walk one to 2 blocks unaided, the ministry does not consider this to be a severe degree of

impairment as the appellant can complete his basic daily functioning at this range. Furthermore, it was reported that the appellant takes significantly longer for mobility and physical abilities, but the extent of how long was not specified. While the doctor noted that the appellant requires periodic assistance from another person for standing, lifting, carrying and holding it was not reported what type of assistance was required. In addition, it was reported that the appellant can lift 5-15 pounds, which is adequate for performing daily tasks.

Daily Living Activities The ministry states while the appellant requires periodic assistance with some daily living activities, the nature, frequency, and duration of the assistance was not described.

Although it was noted by the doctor that the appellant’s arthritis is affecting his lower back, and both knees and ankles, this does not establish a need for periodic assistance for extended periods. It was also noted that the appellant could lift 15-30 pounds, which enables him to lift items required for basic daily tasks. Additionally, the doctor mentioned that the appellant’s brother handles his bills, and the appellant can only do housekeeping and laundry every 3 weeks. However, this doesn't indicate an inability to manage bills or housekeeping due to his impairment. Moreover, the doctor reports that the appellant is independent in basic housekeeping activities and most other daily living activities.

In addition, the doctor does not indicate that the appellant requires any help to be maintained in the community and does not identify any safety issues with social functioning.

Therefore, the ministry finds there is not enough evidence to confirm the appellant is restricted in his ability to perform daily living activities.

Help with Daily Living Activities 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.

The ministry made the following additional arguments in its submission (December 5, 2023).

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Appeal Number 2023-0349

The ministry submits that a significant restricti on in toileting, transfers and transportation is not confirmed. Taking 2 times longer than typical to complete a task does not confirm a significant overall restriction, needing assistance. As well, the ministry does not consider that using a cane or surfaces for support indicates either a severe degree of physical impairment or significant restriction.

As well, as the appellant can make microwave meals and quick snacks, the ministry is not satisfied that he is significantly restricted or requires continuous assistance in this area.

The ministry also argues that no information has been provided to indicate why the doctor changed the assessment related to paying rent and bills and medications. As well, information is not provided to confirm why the impact on the appellant’s daily cognitive and emotional function changed between the original application and the questionnaire submitted for appeal. The doctor does not account for this change nor indicate there is a recent deterioration of the appellant’s medical condition to support a change in functioning in these areas.

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.

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

Mental Impairment In the medical report the doctor states the appellant was diagnosed with depression in 2019. In the assessor report, under cognitive and emotional functioning, the doctor indicates there is minimal impact for emotion and no issues with communication. However, in the appellant’s submission, the doctor states there is major impact for emotion. In the medical report, the doctor indicates there is minimal impact for executive functioning but in the submission indicates a moderate impact. As well, in the medical report, the doctor indicates a moderate impact for motivation but in the submission indicates a major impact.

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