Ministry of Social Development and Poverty Reduction

Appeal Number 2023-0337 Part C – Decision Under Appeal The decision under appeal is the Ministry of Social Development and Poverty Reduction’s (“ministry”) reconsideration decision dated October 27, 2023, in which the ministry found the appellant was not eligible for designation as a Person with Disabilities (“PWD”) under section 2 of the Employment and Assistance for Persons with Disabilities Act (“Act”). The ministry found that the appellant met the age requirement and the requirement for the impairment to continue for at least 2 years. The ministry was not satisfied that: the appellant has a severe physical or mental impairment, the severe impairment, in the opinion of a prescribed professional, directly and significantly restricts the ability to perform daily living activities either continuously or periodically for extended periods; and as a result of restrictions caused by the severe impairment, the appellant requires an assistive device, the significant help or supervision of another person, or the services of an assistance animal to perform daily living activities.

The ministry found that the appellant is not one of the prescribed classes of persons eligible for PWD designation on the alternative grounds set out in section 2.1 of the Employment and Assistance for Persons with Disabilities Regulation (“Regulation”). As there was no information or argument on this point, the panel considers it not to be at issue in this appeal.

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Appeal Number 2023-0337 Part D – Relevant Legislation The ministry based the reconsideration decision on the following legislation:

Employment and Assistance for Persons with Disabilities Act - section 2

Employment and Assistance for Persons with Disabilities Regulation - sections 2 and 2.1

The full text is available in the Schedule after the decision.

Part E – Summary of Facts

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Appeal Number 2023-0337 The information the ministry had at the reconsideration included:

1. A Record of decision indicating that the PWD application was submitted on September 22, 2023, and denied on September 26, 2023, with the Decision denial summary explaining the criteria that were not met.

On October 10, 2023, the appellant submitted a Request for Reconsideration with additional information. On October 27, 2023, the ministry completed its review and found that the criteria for severe impairment, daily living activities and help were still not met.

2. The PWD application with 3 parts:

The Applicant Information (“self-report”) signed by the appellant on September 12, 2023.

A Medical Report dated September 14, 2023, signed by a general practitioner (“Dr. A”) who has known the appellant for 5 months, and has seen him 2-10 times in the past 12 months, and

an Assessor Report dated September 14, 2023, also completed by Dr. A who based the assessment on an office interview with the appellant; a letter from the appellant’s previous family doctor (now retired), and cardiology/internal medicine notes.

Summary of relevant evidence from the application

Diagnoses

Medical Report

In Section B, the appellant was diagnosed with atrial fibrillation and congestive heart failure (onset November 2021). In Section D – Degree and Course of Impairment, Dr. A described atrial fibrillation as a chronic issue. Ablation therapy may help resolve symptoms but cardio myopathy will likely be ongoing.

Additional information from the appellant

In the self-report, the appellant confirmed atrial fibrillation and noted a prostrate problem (“elevated PSA”). The appellant said that he takes 6-7 medications for his heart problem.

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Functional skills

Appeal Number 2023-0337

Physical impairment

Self-report The appellant said that his symptoms include dyspnea, heart palpitations, chest pain, and generalized weakness which reduce his ability to pull, push, and carry objects greater than 10 pounds. The appellant said he gets lightheaded and weak if he stands for more than one hour.

Medical Report In Section C - Health History, Dr. A indicated the appellant can only lift 10 pounds (“otherwise presyncope occurs”). The appellant’s “ambulatory function is limited to 1-2 city blocks, enough for day-to-day function but cannot ambulate continuously in line of work.”

In Section E - Functional Skills, the appellant was able to walk 1-2 blocks unaided on a flat surface; and climb 5+ steps unaided. The appellant could lift “not more than 10 pounds” and had no limitations with sitting. Under Comments, the doctor wrote that the appellant “becomes easily dyspneic with light activity and becomes dizzy.”

In Section G – Additional Comments, Dr A indicated that work activities make symptoms worse. The appellant is easily fatigued and experiences presyncope with “prolonged standing, greater than 2 hours.”

Assessor Report In Section C-3 – Mobility and Physical Ability, Dr. A assessed 4 of 6 areas as “independent:” Walking indoors Walking outdoors Climbing stairs Standing

The appellant required “periodic assistance from another person” with: Lifting Carrying and holding. The spaces for an explanation were left blank.

In Section F – Additional information, Dr. A described symptoms on exertion due to atrial fibrillation (presyncope and dyspnea). Work-related activities involving prolonged standing and lifting heavy objects increase symptoms. The appellant must cease activity to recover.

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Mental impairment

Appeal Number 2023-0337

Self-report The appellant said that his heart problem has “complicated my financial, emotional and mental state” by restricting activities and employment. The appellant reported financial stress due to his inability to work.

Medical Report Dr. A checked “no” when asked if the appellant has any difficulties with communication. When asked if there are any significant deficits with cognitive and emotional function, the doctor checked “no.”

There was no check mark to indicate deficits for the following areas: Consciousness Executive Language Memory Perceptual psycho-motor Psychotic symptoms Emotional disturbance Motivation Impulse control Motor activity Attention or sustained concentration Other

Assessor Report In Section C-2, Dr. A indicated “good” for all areas of communication: speaking, reading, writing, and hearing.

In section C-4, Cognitive and Emotional Functioning, the assessor was asked to indicate the impact of a mental impairment on various functions. For the 14 areas listed, Dr. A indicated the following impacts:

minimal impact for attention/concentration, and memory (comment, “infrequent short term memory issues/focus difficulty”).

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Appeal Number 2023-0337 No moderate or major impacts were indicated, and the doctor checked no impact for the remaining functions: Bodily functions Consciousness Emotion Impulse control Insight and judgment Executive Motivation Motor activity Language Psychotic symptoms Other neuro-psychological problems Other emotional or mental problems

Daily living activities

Dr. A provided the following information:

Medical Report In Section C – Health History, the doctor said that despite symptoms with exertion, the appellant “can handle Activities of daily living [“ADLs”] and Instrumental activities of daily living [“IADLs”] if not strenuous.”

In Section C-4, the doctor checked “no” the appellant has not been prescribed medications or treatments that interfere with the ability to perform daily living activities.

In Section F - Daily Living Activities the doctor checked “no” when asked if the impairment directly restricts the person’s ability to perform activities. In Comments Dr. A wrote, “dyspnea on exertion and presyncope prevent any strenuous activity.”

In Section G – Additional Comments, the doctor said that the appellant is unable to work.

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Appeal Number 2023-0337 Assessor Report - Restricted daily living activities

In Section D, Dr. A indicated that the appellant uses an assistive device for one area of 1 of the 8 daily living activities listed in the form: personal Care – transfers (in/out of bed)

The doctor checked “independent” for the remaining areas: dressing, grooming, bathing, toileting, feeding self, and transfers (on/off chair).

Dr. A checked “independent” for all areas of 7 daily living activities listed in the Assessor Report: Basic housekeeping - laundry and basic housekeeping (comment, “dyspnea when doing and needs to rest often”). Shopping - going to and from stores, reading prices and labels, making appropriate choices, paying for purchases, and carrying purchases home. Meals - meal planning, food preparation, cooking, and safe storage of food. Pay Rent and Bills - banking, budgeting, and pay rent and bills. Medications - filling/refilling prescriptions, taking as directed, and safe handling and storage. Transportation – getting in and out of a vehicle, using public transit, and using transit schedules and arranging transportation. Social Functioning – appropriate social decisions, able to develop and maintain relationships, interacts appropriately with others, able to deal appropriately with unexpected demands, and able to secure assistance from others. The doctor checked that the appellant has “good functioning” with his immediate and extended social networks.

In Section F – Additional Information, Dr. A said that “most daily activities can be done independently if patient takes his time or can be accomplished as not strenuous.”

Need for help

Medical Report Dr. A checked “yes” when asked if the applicant requires any protheses or aids for the impairment. The doctor explained that the appellant uses a cane to steady himself when getting up from a chair. The appellant experiences presyncope when getting up.

Assessor Report In Section E - Assistance provided by other people Dr. A checked “family.” The doctor left the form blank when asked what assistance is required when none is available. The doctor check marked “cane” when asked about assistive devices (comment, “presyncopal when transferring out of chair and uses cane to steady self”). The doctor checked “no” the appellant does not have an assistance animal.

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Appeal Number 2023-0337

3. A Request for Reconsideration signed by the appellant on October 9, 2023, with hand­written submissions. In addition to argument for the reconsideration, the appellant provided the same information as the earlier self-report with the following additional evidence: The appellant wrote that he has difficulty “going up 10 flights of stairs” but at the hearing he clarified that he meant to say 10 steps. In the Request for Reconsideration, the appellant wrote that he experiences dizziness and shortness of breath with both stairs and “normal household chores.”

Additional submissions

The appellant filed a Notice of Appeal with a handwritten submission in which the appellant indicated consultations with medical specialists (cardiology, and internal medicine). The hearing format was changed from in-person to teleconference. In response to questions from the panel, the appellant said that he sometimes gets dizzy from his medications and uses a cane (“4-5 times a week”) to get up from a chair. He keeps the cane beside him and feels dizzy when he sits down. He also uses the cane every morning when he gets up.

The appellant explained that after doing chores “for about an hour and a half” he needs to rest “for 15-30 minutes” so he can continue what he was doing. The appellant said that he needs to rest for “15-30 minutes, 6-7 days per week” when he does “long chores or walking” because he gets short of breath. The appellant said that can do chores by himself sometimes, and sometimes he asks for help from his roommates.

The appellant confirmed that he sees a cardiologist once a month to manage his medications. He also sees an internist once a month for blood pressure medication and other medications that aren’t prescribed by the cardiologist. Last week he also saw a respirologist for his lungs and breathing problems. He did not ask any of the specialists for information or a report for the PWD application because he “didn’t know it was needed.”

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Admissibility - additional information

Appeal Number 2023-0337

The panel finds that the appellant’s statements help to clarify the information in the PWD application by adding specific details about the frequency and duration of the appellant’s functional limitations as well as the involvement of specialists in his care and treatment. The ministry had no objections to the additional evidence. The panel finds that the testimony is admissible under section 22(4) of the Employment and Assistance Act as evidence that is reasonably required for a full and fair disclosure of all matters related to the decision under appeal.

The ministry presented argument at the hearing and had no new evidence. The panel will consider both parties’ arguments in Part F – Reasons.

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Appeal Number 2023-0337 Part F – Reasons for Panel Decision The issue on appeal is whether the ministry’s decision that found the appellant ineligible for PWD designation was reasonably supported by the evidence or was a reasonable application of the legislation in the circumstances of the appellant. The panel’s role is to determine whether the ministry was reasonable in finding that the following eligibility criteria in section 2 of the Act were not met: The appellant has a severe physical or mental impairment. The impairment, in the opinion of a prescribed professional, directly and significantly restricts the ability to perform daily living activities either continuously or periodically for extended periods; and as a result of restrictions caused by the severe impairment, the appellant requires an assistive device, the significant help or supervision of another person, or the services of an assistance animal to perform daily living activities.

Analysis

PWD designation - generally

The legislation provides the Minister with the discretion to designate someone as a Person with Disabilities if all the requirements are met. In the ministry’s view, PWD designation is for persons who have significant difficulty in performing regular self-care activities including social interaction and making decisions about personal activities, where a severe physical or mental impairment is shown.

Some requirements must have an opinion from a professional, so it is reasonable to place significant weight on those opinions. The ministry found that only 2 of the 5 requirements were met: the appellant is at least 18 years of age, and a doctor has given the opinion that the impairment is likely to continue for at least 2 years.

The application form includes a self-report, so it is appropriate to place significant weight on evidence from the appellant unless there is a legitimate reason not to do so. The panel will review the reasonableness of the ministry’s determinations and exercise of discretion.

Severe impairment

“Severe” and “impairment” are not defined in the legislation. The ministry considers the extent of any impact on daily functioning as shown by limitations with or restrictions on physical abilities and/or mental functions. The panel finds that an assessment of severity based on physical and mental functioning including any restrictions, is a reasonable interpretation of the legislation. A medical practitioner’s description of a condition as

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Appeal Number 2023-0337 “severe” is not determinative on its own. The ministry must make the determination considering the relevant evidence and legal principles.

Restrictions to Daily living activities

A prescribed professional (such as Dr. A) must provide an opinion that the applicant’s impairment restricts the ability to perform daily living activities. The BC Supreme Court decision in Hudson v. Employment and Assistance Appeal Tribunal [2009 BCSC 1461] determined that at least two daily living activities must be restricted in a way that meets the requirements of the Act, and that not all activities need to be restricted.

The restrictions to daily living activities must be significant and caused by the impairment. This means that the restriction must affect the person to a great extent, and that not being able to do daily activities without a lot of help or support will have a large impact on the person’s life.

The restrictions must also be continuous or periodic. Continuous means the activity is generally restricted all the time. A periodic restriction must be for extended periods, meaning frequent or for longer periods of time. For example, the activity is restricted most days of the week, or for the whole day on the days that the person cannot do the activity without help or support. To determine if a periodic restriction is for extended periods, it is reasonable to look for information on the duration or frequency of the restriction.

The requirements for restrictions to daily living activities are set out in subsection 2(2)(b)(i) of the Act. Specific activities are listed in section 2(1) of the Regulation. The Medical Report and Assessor Report also list activities, and though they do not match the daily living activities in the Regulation exactly, they generally cover the same activities.

The Medical Report and Assessor Report give the professional the opportunity to provide additional details on the applicant’s restrictions. The inability to work and financial need are not listed as daily living activities and are only relevant to the extent they impact the listed activities.

Help Required

A prescribed professional must provide an opinion that the person needs help to perform the restricted daily living activities. This requirement is set out in subsection 2(2)(b)(ii) of the Act. Under subsection 3, “help” means needing an assistive device, the significant help or supervision of another person, or an assistance animal to perform daily living activities.

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Appeal Number 2023-0337 An assistance device, defined in section 2(1) of the Act, is something designed to let the person perform the restricted daily living activities.

Arguments

Severe impairment

Appellant’s position

The appellant’s position is that he meets the requirement for a severe physical impairment because his heart disease is considered a physical disability. Although he is not in a wheelchair and does not have a mental impairment, the heart problem has “complicated my financial, emotional, physical and mental state.”

The appellant argued that the ministry “rushed their decision” because it did not consult another medical professional (“cardiologist, internist, etc.”). In discussion with the ministry at the hearing, the appellant expressed that the ministry “should have their own professionals to consult with about heart disease” since it “would be normal to have a second opinion.”

The ministry replied that it “goes on the information presented” and hopes that the doctor would give an accurate report. The ministry said that it doesn’t know who the appellant’s specialists are or what they would report.

The appellant explained that he has seen Dr. A for less than a year because his long-term family doctor retired. He could not get the forms filled out by the doctor who knows him well but the reports he gave to the ministry are “precise and accurate.”

Ministry’s position - physical impairment

The ministry’s position is that the information from both Dr. A and the appellant did not establish a severe physical impairment. The ministry argued that the “functional skills, mobility, and physical abilities reported, do not confirm a severe degree of physical impairment.” The ability to walk up to 2 blocks, lift up to 10 pounds, etc. allows the appellant to “independently complete your basic physical functioning.”

The ministry acknowledged that the appellant has experienced a decrease in his physical capacity because of the diagnoses as well as his self-reported difficulties with pushing, carrying, etc. The ministry argued that that it could not determine a severe degree of impairment because Dr. A did not explain the frequency and duration of periodic

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Appeal Number 2023-0337 assistance for lifting and carrying. The ministry argued that it was unclear why the appellant needed periodic assistance with these functions when he can lift up to 10 pounds.

Ministry’s position - Mental impairment

The ministry’s position is that a mental impairment was not established on the evidence. The ministry argued that the appellant does not have a severe mental impairment because Dr. A did not diagnose a mental condition that directly results in severe mental health issues. The ministry noted that the doctor did not report any significant deficits or impacts for cognitive and emotional functioning. The ministry acknowledged that heart conditions have impacted the appellant’s mental health but argued that “this does not appear to severely impair your mental function.”

Panel’s decision - severe impairment

Physical impairment

The panel finds that the ministry’s decision was reasonably supported by the evidence. Regarding the Medical Report, the information from Dr. A does not support a severe impairment of physical functioning. Although the assessments were at the low end of the rating scale for walking and lifting (maximum 2 blocks and 10 pounds), the doctor concluded that the appellant’s ability to walk, carry and lift “are enough for day-to-day function.”

There was an apparent inconsistency in the Medical Report regarding the appellant’s capacity for lighter activity. Under Health history, the appellant’s physical ability was sufficient for day-to-day tasks but not for a work setting that requires “ambulating continuously.” Under Functional Skills, Dr. A commented that the appellant becomes “easily dyspneic and dizzy” even with light activity.

Despite these symptoms, the appellant was able to manage light activity including walking a short distance unaided and climbing 5+ steps unaided. He does not require an assistive device for walking or climbing stairs. The evidence suggests that the appellant can manage lighter activity independently despite experiencing dizziness and other symptoms that could affect his balance when walking and standing. In the Assessor Report, the appellant was independent with standing.

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Appeal Number 2023-0337

Moreover, the appellant’s evidence supports his ability for lighter activities, with restrictions for heavier tasks. The appellant reported serious heart symptoms such as light-headedness, weakness, and shortness of breath when he does prolonged activity such as walking a long distance or climbing more than 10 steps. The appellant indicated that he can manage lighter activity if he stops to rest for 15-30 minutes afterward.

The appellant’s evidence largely supports Dr. A’s assessments regarding the ability to walk a short distance and climb stairs unassisted as well as lift to 10 pounds. The appellant confirmed being able to stand independently (“up to one hour at a time” before becoming dizzy and weak). The ministry was therefore reasonable to conclude that the overall degree of ability reported by the doctor and appellant is sufficient for most physical functions.

The appellant is frustrated by the ministry’s process in not obtaining a “second opinion” from a cardiologist or other specialist. The appellant has regular contact with specialists, so it is unfortunate that he didn’t ask them for information about his function to support the application for PWD designation.