Ministry of Social Development and Poverty Reduction

Part C – Decision Under Appeal

Appeal Number 2023-0346

The decision under appeal is the Ministry of Social Development and Poverty Reduction (ministry) reconsideration decision dated November 6, 2023, which determined the appellant was not eligible for the Persons with Disabilities designation because she did not meet the following criteria:

- Severe mental or physical 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 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.

EAAT (26/10/22) 2

Part E – Summary of Facts

Appeal Number 2023-0346

Relevant Evidence Before the Minister at Reconsideration

Person with Disabilities Application (application)

Self-Report (May 16, 2023) - summary The appellant writes that in July 2020 she fainted as a result of a sexual assault that happened previously. She was taken to hospital by ambulance with the back of her head split open. She received stitches and was released the next morning. Since this assault, she has constant pain in her left lower spine, disc bulge, chronic constipation, and anxiety and depression – post traumatic stress disorder (PTSD). She also states she has serious teeth issues, which she cannot afford to fix. The appellant adds that the consistent stress has also taken its toll on her mental health. She is currently in Cognitive Behaviour Therapy, with a registered psychiatric nurse. As well, she is receiving tests (CT scans, ultrasound, MRI), cortisol injections and is in treatment with a chiropractor.

The appellant states she is currently being treated by Dr. C in a pain clinic, Dr. F (surgeon) Dr. M (general practitioner) and a registered psychiatric nurse.

She is an artist, but her condition has caused her to reduce her work down to about 16 hours per week or less, which has affected her income drastically.

Medical Report (June 6, 2023) – signed by the appellant’s doctor (Dr. M) The doctor provided the following information and responses to the questions below. B. Diagnosis Date of onset – month/year PTSD August 2020 Degenerative lumbar disc disease August 2020

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

The patient was subjected to sexual assault in 2020. This has caused significant emotional and physical trauma affecting her social and work functioning. She also has degenerative lumbar disc disease, which has been causing severe lower back pain affecting her daily functioning significantly.

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Appeal Number 2023-0346

o Has the appellant been prescribed any m edications 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? – no

Degree and Course of Impairment o Is the impairment likely to continue for two years or more from today? – yes The patient is going through mental help counseling as well as psychotherapy.

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? - under 2 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? – yes The doctor checked: memory (ability to learn and recall information), emotional disturbance (e.g., depression, anxiety), and motivation (loss of initiative or interest).

D. Daily Living Activities Does the impairment directly restrict the person’s ability to perform daily living activities? Daily Living Activities Is activity If yes, the restriction is: restricted? yes no unknown continuous periodic Social functioning – daily x x decision making; interacting, relating and communication with others

Please provide additional comments regarding the degree of restriction: - Severe restriction

E. Frequency of Contact o How long has the applicant been your patient? – more than 3 years o How often have you seen this applicant in the past 12 months? – 11 or more times

EAAT (26/10/22) 4

Appeal Number 2023-0346

Assessor Report (May 15, 2023) – signed by the psychiatric nurse The appellant’s psychiatric nurse provided the following information and responses to the questions below.

B. Living Environment The nurse indicates the appellant lives with family, friends or caregiver. Comments: “homeless”

C. Mental or Physical Impairment o What are the applicant’s mental or physical impairments that impact her ability to manage daily living activities? – headaches, dizzy spells, bowel, bulging disk, PTSD, depression, anxiety

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

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 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

Lifting Carrying and holding

x x

x

x

x

x

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

can’t stand

over 15 mins

Appeal Number 2023-0346

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

x

EAAT (26/10/22) 6

Appeal Number 2023-0346 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 Sexually inappropriate, unable to maintain relationships

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

x

x

x

x

Explain/ Describe

must drive, needs help

lifting

must drive

EAAT (26/10/22) 7 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

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

Appeal Number 2023-0346

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.

Appropriate social decisions (including avoiding situations dangerous to self or others, good social judgement)

Able to develop and maintain relationships

x

x

will need support

with social based decisions unable to develop

lasting friend­ships

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 /

D e s c r i b e

Interacts appropriately with others (e.g. understands and responds to social cues, problem solves in social context)

Appeal Number 2023-0346 x

x

at times needs

help

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 – very disruptive functioning – aggression or abuse, major withdrawn, often rejected by others - extended social networks – very disruptive functioning – overly disruptive behavior, major social isolation

If the applicant requires help, please describe the support/supervision required, which would help to maintain her in the community. - consistent, long lasting social supports

E. Assistance Provided for Applicant The nurse adds that help is provided by health authority professionals. Comments: provides social support

Assistance provided through the use of devices What equipment or devices does the applicant routinely use to help compensate for her impairment? – no items were indicated.

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

Additional information: Client is compromised physically, emotionally and mentally and is unable to work as she cannot stand or sit and is unable to develop social contacts needed for business.

H. Frequency of Contact The nurse states she has known the appellant for 4 months and seen her 11 or more times. Describe the type and duration of the program or services you or your organization are providing or have provided to the applicant. - PTSD, trauma, depression, anxiety, counselling

EAAT (26/10/22) 9

Appeal Number 2023-0346

Request for Reconsideration (October 19, 20 23) – summary The appellant provided the attached documents with the request for reconsideration.

Letter with Questionnaire, to the Psychiatric Nurse from a Legal Advocacy Centre - October 16, 2023 The writer states the appellant provided the statements below and is asking the nurse to indicate her agreement or disagreement.

The nurse states she agrees with the following statements, and also provides additional comments (in brackets). o Only able to walk up to 2-3 blocks at a time before having to stop and take a break (has observed the appellant taking rest breaks when walking). o Only able to lift up to 10 lbs at a time (can only carry 1 bag of groceries at a time due to intense pain). o Only able to sit or stand for up to 1 hour at a time (prevents her from working without pain). o When speaking to others, has difficulty expressing herself and remembering the words she needs (loses train of thought when speaking, needs prompts for words). o When reading, appellant has to read things over and over to comprehend what she is reading. She also needs to use reading glasses and has difficulty reading due to excessive watering of eyes (comprehension is delayed). o Hearing loss on her right side, due to previous surgeries on her ears when she was younger (medical condition).

The nurse also agrees with the statements below.

The following cognitive and emotional functioning has impacted the appellant’s daily functioning due to her PTSD. - Minimal impact: consciousness, executive (difficulty with planning/organizing) - Moderate impact: impulse control, motor activity, motivation (agitation) - Major impact: bodily functions (toileting problems - chronic constipation that is severe and causes her to have to go to the hospital, sleep disturbance: insomnia, gets an average of 6 hours of disrupted sleep a night), emotion, memory, language (expression, written comprehension) comments: trauma reaction, PTSD, pain.

The nurse agrees that the appellant needs continuous assistance or is unable to do the following daily living activities due to a combination of her physical and mental health:

EAAT (26/10/22) 10

Appeal Number 2023-0346

- reading prices and labels (unable due to exce ssive watering of eyes) - carrying purchases home (unable over 10 lbs) - meal planning - food preparation - cooking (relies on easy foods due to lack of motivation) - appropriate social decisions (isolates self, avoids social interactions with others) - develop and maintain relationships - deal appropriately with unexpected demands (anxious/overwhelmed when met with unexpected demands) - rigid with social contacts, trust a major issue, inability to display appropriate emotions

The nurse agrees that the appellant takes 2 times longer than typical to complete the following, due to her physical and mental health: - walking indoors/outdoors - climbing stairs - transfers (in/out of bed and on/off chairs) - laundry - basic housekeeping - going to and from stores comments: pain, injury

Letter with Questionnaire to Dr. M from a Legal Advocacy Centre - October 16, 2023 The writer states the appellant provided the statements below and is asking the doctor to indicate their agreement or disagreement.

The doctor states they agree with the following statements and also provided additional comments (in brackets). - excessive watering eye issue - bulging discs - social anxiety (the patient has lower back pain affecting her functions, also has social anxiety making it difficult to socialize). - only able to walk 2-3 blocks at a time before she has to stop and take a break (lower back pain affects mobility) - only able to lift up to 10 lbs. at a time (lower back pain affects ability to lift weights) - only able to sit/stand up to 1 hr. at a time (lower back pain affects sitting or standing) - when speaking to others has difficulty expressing herself and remembering the words (history of mental health trauma/ anxiety) - when reading has to read things over and over to comprehend what she is reading, also needs to use reading glasses and has difficulty reading due to excessive watering eyes

EAAT (26/10/22) 11

Appeal Number 2023-0346

- has hearing loss in her right side due to previ ous surgeries on her ears (reported previous ear surgery and hearing loss in the right ear)

The doctor agrees with most of the nurse’s assessment, in this questionnaire, regarding the impact on cognitive and emotional functioning due to the appellant’s PTSD, but disagrees on the following. - consciousness: minimal impact - impulse control: moderate impact - language: major impact

The doctor agrees that the appellant needs continuous assistance and is unable to read prices and labels, carry purchases home over 10 lbs, make appropriate social decisions, develop and maintain relationships and deal appropriately with unexpected demands. However, the doctor disagrees that the appellant needs continuous assistance and is unable to plan meals, prepare food and cook.

The doctor agrees with the nurse’s assessment that most daily living activities take the appellant at least 2 times longer, but disagrees that it takes her 2 times longer to walk indoors/outdoors, climb stairs and go to and from stores.

Letter To Whom it May Concern from a Transition Society (October 13, 2023) The writer states they are advocating for their client who is seeking financial assistance. So far the appellant has attended two counseling information sessions and consented to 10. - signed by an intern counsellor

Letter of Referral to an Ophthalmologist (October 12, 2023) Reason for referral: recurring excessive watering of eyes

Laboratory results from a Health Authority (date of service, March 26, 2023) Findings: broad based disc bulge with loss of normal disc height, mild neural foraminal narrowing is seen on the left, high signal intensity is noted in the disc in keeping with small annular tear.

Additional Information received after the Reconsideration Decision

Appellant

Notice of Appeal (November 8, 2023) The appellant states her work is minimal due to lower back pain and mental health.

EAAT (26/10/22) 12

Appeal Number 2023-0346

Submission (December 7, 2023) The following documents were received from the appellant’s psychiatric nurse.  Letter to Whom It May Concern, from Dr. M (December 4, 2023) – Dr. M recommends the appellant does not exceed 8 hrs/week of work so she can preserve her daily functionality and avoid flare-ups of severe lower back pain.  Progress Assessment (November 21, 2023), from Dr. K (medical doctor) Mental status examination: accessible, reliable and cooperative, no changes on mental state exam. Treatment Plan: no imminent safety concern. The doctor encourages the patient to be more active and healthier and advised her to continue with her current medication and do counseling.  Letter to Dr. Sc from Dr Su (eye physician and surgeon) (October 24, 2023) Impression: dry eyes with allergic conjunctivitis. Management includes artificial tears, irrigation of both lower eyelids look for duct obstruction.  Anesthesia Clinic Consult (June 22, 2023), Dr. C – follow-up after joint injection 7 weeks ago.  MRI (March 26, 2023) – degenerative changes in the lumbar spine, findings are similar to prior studies from 2021.  Medical Report (March 6, 2023), signed by Dr. M The appellant has been having right-ear aches and complaining about intermittent abdominal pain associated with constipation. A colonoscopy about 2 years ago showed no acute finings.  Preanesthetic consultation (March 5, 2023), report signed by DC No change, perianal numbness and sacral pain left lower back pain.  Preanesthetic consultation (June 9, 2022) - letter to Dr. M. from a medical doctor The doctor encouraged the appellant to continue exercise and massage therapy.  Health report (August 16, 2021).

Submission (December 11, 2023) The submission contains a letter from an accountant regarding the appellant’s 2021 and 2022 income, as well as a 2022 Statement of Business of Professional Activities from the Canada Revenue Agency.

At the hearing, the appellant’s advocate (who is also her psychiatric nurse) reiterated that the appellant cannot work more than eight hours/week, which is insufficient to support herself.

The advocate stated the appellant can do things at home, but very slowly (e.g., she can only carry one bag of groceries at a time). The advocate agreed that the appellant’s memory is compromised, likely as a result of her PTSD. This creates a lot of confusion.

EAAT (26/10/22) 13