Ministry of Social Development and Poverty Reduction

Appeal Number 2024-0019 Part C – Decision Under Appeal The decision under appeal is the Ministry of Social Development and Poverty Reduction’s (the “Ministry”) reconsideration decision dated January 15, 2024, denying the Appellant a persons with disability (“PWD”) designation.

The Ministry found the Appellant met the age (over 18) and duration (likely to last more than two years) requirements. However, the Ministry found the Appellant did not meet the requirements for: severe mental or physical impairment; significant restriction on the ability to perform daily living activities; and needing significant help to perform daily living activities.

The Ministry found the Appellant was not one of the prescribed classes of persons eligible for a PWD designation on alternative grounds. As there was no information or argument on this point, the Panel did not consider this issue in this appeal.

Part D – Relevant Legislation Employment and Assistance for Persons with Disabilities Act (“Act”), s. 2 Employment and Assistance for Persons with Disabilities Regulation (“Regulation”), s. 2 Employment and Assistance Act (“EAA”), s. 22(4)

Full text of the Legislation is in the Schedule of Legislation at the end of the Reasons.

EAAT003 (17/08/21) 2

Appeal Number 2024-0019 Part E – Summary of Facts The hearing took place by teleconference on February 6, 2024. The Appellant attended together with his Support Person/Representative who also provided Witness testimony.

Evidence Before the Ministry at Reconsideration: The information the Ministry had at the time of the decision included: Reasons for Reconsideration completed by the Appellant; Medical and Assessor Reports (the “Reports”) completed by the Appellant’s Doctor (the “Doctor”); Appellant’s Self Report; and BC Cancer Agency MD’s (the “MD”) Letter.

Request for Reconsideration: In his request for reconsideration, the Appellant notes a number of reasons for his request: “It is very unlikely I will be able to keep any employment while actively seeking treatment, what employer will tolerate the illnesses that follow treatment, leaving me incapable of performing any duty required at work. By forcing me to obtain full-time employment in order to survive, I will be destined to die…”; He says there is no way for him to successfully achieve both receiving treatment and working; and He requests reconsideration of a PWD designation to allow him “the opportunity to fight for my life”.

Medical Report: The Doctor indicated that the Appellant has been their patient for four months, and they have seen the Appellant between two and ten times in the past twelve months.

Diagnosis: The Doctor identifies diagnoses of Pancreatic Cancer (onset July 2023), COPD [chronic obstructive pulmonary disease] (no onset date noted) and Diabetes Mellitus [DM] (no onset date noted).

Health History: The Doctor states that the Appellant has chronic pain, low energy, and diarrhea as a result of chemotherapy for his recent diagnosis of pancreatic cancer. He has difficulty walking long distances and shortness of breath caused by chronic COPD. The Appellant does not require any prostheses or aids for his impairment.

EAAT003 (17/08/21) 3

Appeal Number 2024-0019 The Appellant’s Doctor also notes that the Appellant has been prescribed chemotherapy to treat pancreatic cancer, causing diarrhea, and further confirms that the medications and/or treatments interfere with the Appellant’s ability to perform daily living activities.

Degree and Course of Impairment: The Doctor marks “Yes” that the impairment is likely to continue for two years or more and explains further, “Pancreatic cancer is being treated, outcome to be determined. COPD is permanent. DM is permanent”.

Functional Skills: The Doctor indicates that the Appellant: Can walk less than 1-2 blocks unaided on a flat surface; Can climb 5+ steps unaided; Has lifting limitations of 2 to 7 kilograms; and Can remain seated less than 1 hour.

The Doctor indicates that the Appellant has significant deficits with cognitive and emotional function in the areas of executive, memory, emotional disturbance, and motivation. The Doctor also comments, “Pancreatic cancer and chemotherapy have resulted in anxiety, depression, low energy, forgetfulness and impaired ability to plan and organize daily activities”.

Assessor Report: Mental or Physical Impairment: Asked to provide a brief summary of the Appellant’s mental or physical impairments that impact his ability to manage daily living activities, the Doctor notes chronic pain, low energy, anxiety, depression, and poor executive functioning.

Ability to Communicate: The Doctor indicates that the Appellant has good abilities in all areas of communication: speaking; reading; writing; and hearing.

Mobility and Physical Ability: The Doctor indicates that the Appellant is independent for all listed areas of mobility and physical ability: Walking indoors; Walking outdoors; Climbing stairs; Standing;

EAAT003 (17/08/21) 4

Lifting; and Carrying and holding.

Appeal Number 2024-0019

Cognitive and Emotional Functioning: The Doctor indicates that the Appellant’s mental impairment has a major impact on emotion, executive functioning, and motivation. The Doctor notes moderate impact on memory and minimal impact on other emotional or mental problems (e.g., hostility). No additional comments are provided.

Daily Living Activities: The Doctor indicates that the Appellant requires continuous assistance or is unable to manage personal care—dressing, but is independent in all other aspects of daily living activities listed on the form: Personal care: Grooming; Bathing; Toileting; Feeding self; Regulating diet; Transfers (in/out of bed); Transfers (on/off chair); Basic housekeeping; Shopping; Meals; Pay rent and bills; Medications; Transportation; and Social functioning.

The Doctor says that the Appellant has good functioning with both his immediate social network and his extended social network. To help maintain the Appellant in the community, the Doctor comments that the Appellant, “Requires help from wife for dressing”.

Assistance Provided for Applicant: The Doctor indicates that the Appellant’s family—wife, provides the help required for daily living activities. The Doctor does not identify any assistance devices used by the Appellant to help compensate for his impairment.

Self Report: The Appellant states that, “I was diagnosed June/2023 with Adenocarcinoma which has caused a tumour on my pancreas. I also have COPD and…IDDM”. He further says, “The chemo has made me very weak and constantly sick” and it is a “struggle to breath[e] due to my COPD and [a] struggle to maintain my diabetes”.

EAAT003 (17/08/21) 5

Appeal Number 2024-0019 BC Cancer Agency MD’s Letter The MD’s letter notes the Appellant: Is undergoing chemotherapy; Is diagnosed with adenocarcinoma of the head of the pancreas; and Is not able to commit to any [work-related] position due to his frequent appointments, chemotherapy, and possible surgery in the near future.

Additional Evidence: Evidence at the Hearing-Appellant: At the hearing, the Appellant and his Representative/Support Person said: The Appellant has Stage 4 Cancer, and his diagnosis is terminal; The Appellant feels good only about four or five days of the month; The Appellant is extremely weak, can be unsteady on his feet and is unable to walk; The Appellant’s activities outside the home are limited, he doesn’t have strength most of the time, and he just sits at home most days; The Appellant requires close supervision “24/7”; The Appellant is not currently independent with the majority of his DLAs; The Appellant’s wife provides the assistance needed for most of his DLAs—he feeds himself and can sometimes drive the car to the store or for appointments but all other DLAs fall to the Appellant’s wife to either manage entirely, or she gives the Appellant significant support and assistance; The Appellant’s mood is up and down—the Appellant can be upset, sad, and scared while also not involved and “doesn’t care” about being part of day-to-day activities and decisions; The Appellant’s condition and abilities have changed from the time the Medical Report was originally completed by the Doctor; The Appellant has no energy to work, and the treatments, tests, and investigations take too much time to allow him to work; and The Appellant and his wife are experiencing significant financial strain and are at risk of losing their possessions including their car.

In response to questions from the Ministry, the Appellant and his Representative/Support Person confirmed that he has not applied for Plan P coverage.

In answer to questions from the Panel, the Appellant further indicated that he had not applied for Persons with Persistent Multiple Barriers (“PPMB”) designation.

EAAT003 (17/08/21) 6

Appeal Number 2024-0019 Evidence at the Hearing-Ministry: In response to questions from the Panel, the Ministry indicated that when assessing level of impairment, it is not automatically assumed that an applicant with sufficient functional skills will also have the ability to complete their daily living activities. The Ministry says the ultimate determination is based on the medical report submitted. Further, the Ministry relies on all of the information provided in the Reports and considers the responses in every section to make their decision; they agree they may find needed information (ie. diagnosis) elsewhere in the document.

Finally, the Ministry noted that had the Appellant’s submitted medical information reflected the limitations and restrictions as the Appellant set out at the hearing, it is possible there would have been a different outcome with his PWD application. However, the Ministry again noted that it must rely on the medical information provided to clearly establish that in the opinion of the prescribed professional, the impairment directly and severely restricts an applicant’s ability to independently complete daily living activities continuously or periodically for extended periods.

The Ministry also explained that the PPMB application process provides another option for financial support where the eligibility criteria may be an easier match to the Appellant’s circumstances.

Admissibility of Additional Evidence: Neither party objected to the admissibility of each others’ additional oral evidence.

The Appellant’s and his Support Person’s oral evidence provide further, up-to-date information about the Appellant’s experiences and capabilities, and the additional supportive measures he requires. The Ministry’s testimony gives more detail about the review and assessment process that occurs with PWD applications, and any other things it considers or advises in respect of individual applicants.

The Panel finds that the additional evidence provided by both parties is reasonably required for the full and fair disclosure of all matters in the appeal. Therefore, the Panel finds that the additional evidence is admissible under EAA s. 22(4).

EAAT003 (17/08/21) 7

Appeal Number 2024-0019 Part F – Reasons for Panel Decision The issue on appeal is whether the Ministry’s decision denying the Appellant a PWD designation is reasonably supported by the evidence or is a reasonable application of the legislation. The Ministry found the Appellant met the age (over 18) and duration (likely to last more than two years) requirements. However, the Ministry found the Appellant did not meet the requirements for: severe mental or physical impairment; significant restriction on the ability to perform daily living activities; and needing significant help to perform daily living activities.

Appellant’s Position: The Appellant and his Support Person/Representative say that the Appellant should be granted the PWD designation. He is so weak and the medical care he requires means that he is both unable to work, and he is unavailable for work; that no Employer would put up with such limitations. The Appellant says that it should not be a choice between battling his illness or working to simply survive; if he must work then he cannot get treatment, his condition worsens, and he will certainly not survive.

The Appellant relies on his wife for constant support and assistance with daily living activities, and also requires community supports such as the Cancer Society to drive him to his appointments when he is unable to do so himself. Although the Assessor Report indicates the Appellant is independent with all daily living activities except dressing, the Appellant says his condition has changed from the time the Reports were completed by his Doctor and the Reports are not current or accurate. His existing COPD and diabetes along with the Cancer treatment have left him severely restricted with any activities. Therefore, the Appellant says that his request for PWD designation should be granted.

Ministry Position: The Ministry relied on the reasons provided in its reconsideration decision and emphasized that when determining PWD eligibility, the Ministry is governed by the legislation and all five criteria must be met. In the Appellant’s case, the Ministry said that a severe impairment could not be assessed when the medical reports noted him as independent for all daily living activities.

Physical Impairment: The Ministry maintains that, based on the information in the Reports, the Appellant’s physical impairment is mild, rather than severe. They acknowledge the Appellant’s shortness of breath and low energy, and his limitations in walking long distances, lifting, and remaining seated, as well as noting the Appellant’s need for assistance with dressing.

EAAT003 (17/08/21) 8

Appeal Number 2024-0019 However, the Ministry says that a severe physical impairment cannot be established given that the Assessor Report indicates that the Appellant is independent with almost all of his daily living activities, the Doctor does not report that the Appellant takes significantly longer to walk or to complete his daily living activities, and he requires only minimal help with no assistive devices being used or required.

Mental Impairment: The Ministry notes that in the case of the Appellant, the Doctor has not provided any diagnoses suggesting a mental impairment. Further, the Ministry says that given the Doctor’s reports of only some symptoms of anxiety and depression, some deficits with executive function, some forgetfulness, less motivation, and an impaired ability to plan and organize activities, these indicate a mild—not severe—mental impairment.

Although the Ministry recognizes the Reports indicate there is a major impact on emotion, executive function, and motivation, and a moderate impact on memory, the Ministry says that it is unclear where the major impacts on daily functioning are. The Ministry says there is no supporting medical information to show that there are major impacts on daily functioning or with the Appellant’s ability to complete his daily living activities including decision making. In the Ministry’s view, the inconsistencies between the Appellant’s evidence and the medical information, make it difficult for them to fully determine the level of mental impairment; based on the available information the Ministry concludes that only a mild mental impairment exists.

Daily Living Activities: According to the Ministry, the Appellant has not demonstrated that he has a severe impairment that, in the opinion of a prescribed professional, directly and significantly restricts his ability to perform the daily living activities set out in the legislation. The Ministry says this is because the Reports indicate that the Appellant is independent with a large majority of his daily living activities or requires only minimal assistance with one activity—dressing.

Although the Ministry recognizes that it is reasonable the symptoms reported by the Appellant including chronic pain, low energy and diarrhea would restrict his ability to perform daily living activities, it says that neither the Doctor nor the MD have demonstrated or confirmed that the Appellant has a severe impairment that results in direct and significant restrictions to his ability to perform daily living activities. The Ministry says that because it is not clear from the medical information how often the Appellant gets treatment, has diarrhea and experiences low energy, and how much the

EAAT003 (17/08/21) 9

Appeal Number 2024-0019 impairment and restrictions fluctuate after each treatment, a severe impairment has not been shown.

Finally, the Ministry recognizes that the information provided by the Appellant and his Support Person/Representative at the hearing about his inability to independently perform daily living activities is different from what had been previously submitted and reflects a change in his condition from his original PWD application. The Ministry indicated that it is possible there would have been a different outcome with his PWD application had the Appellant’s submitted medical information reflected the limitations and restrictions as reported by the Appellant at the hearing. However, the Ministry says it must rely on the available facts and the medical information provided in the application that said except for dressing, the Appellant was fully independent with his daily living activities.

Help with Daily Living Activities: The Ministry says that the Appellant has not established that he requires significant help with daily living activities. The Appellant does not require assistive devices, significant help of another person to perform his daily living activities and does not require the services of an assistance animal.

Panel Decision: PWD Designation – Generally

The legislation provides the Ministry with the discretion to designate someone as a PWD if the requirements are met. In the Panel’s view, PWD designation is for persons who have significant difficulty in performing regular self-care activities. If the inability to work is the major reason for applying for PWD designation, the Panel encourages the applicant to speak to the Ministry about other potential programs such PPMB or explore federal government programs such as Canada Pension Plan disability benefits.

The requirements for PWD designation include having an opinion from a prescribed professional outlined in the Medical and/or Assessor Report. It is reasonable to place significant weight on these opinions. The application form includes a Self Report. It is also appropriate to place significant weight on the Self Report and the evidence from the Appellant, unless there is a legitimate reason not to do so.

The Panel will review the reasonableness of the Minister’s determinations and exercise of discretion.

EAAT003 (17/08/21) 10

Appeal Number 2024-0019 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 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 application of the legislation.

A medical practitioner’s description of a condition as “severe” is not determinative. The Minister must make this determination considering the relevant evidence and legal principles.

1. Physical Impairment: The Doctor describes the Appellant’s impairment resulting from pancreatic cancer and chemotherapy treatment as causing chronic pain, low energy, and diarrhea. Previous diagnoses of COPD and diabetes also result in shortness of breath and difficulty walking long distances. The Doctor’s Reports indicate the Appellant is independent walking indoors and outdoors, climbing stairs, and standing. The Doctor also says the Appellant is limited to remaining seated less than an hour, can walk unaided on a flat surface for 1-2 blocks, and is limited to lifting between five and 15 pounds. The Appellant confirms that he is very limited with all activity and states that his abilities have changed from when he was assessed by the Doctor.

The Appellant and his Support Person/Representative have described different abilities than those set out in the Reports such as needing to sit most days. They have also noted he has even greater restrictions to his physical abilities including walking unaided much less than 1-2 blocks; he is not able to walk any distance beyond to his car and back. The difference may be explained by the cumulative effects of his conditions and the chemotherapy treatment. However, when the Doctor has not confirmed the same limitations, and has given a different opinion in their Reports, the panel finds it is reasonable for the Ministry to place greater weight on the Doctor’s opinion.

In the BC Cancer Agency letter, the MD focuses on the Appellant’s ability to work, as did the Appellant and his Support Person/Representative. While people often equate disability with the ability to work, the legislation relates PWD designation to the ability to perform regular self-care activities. The Appellant has serious medical conditions that prevent him from working. However, as noted above, the ability to work is not one of the considerations for PWD.

EAAT003 (17/08/21) 11

Appeal Number 2024-0019 Given the inconsistencies in evidence about the Appellant’s degree of independent functioning, and the differences described with his functional skills such as the Appellant is limited to sitting less than hour (Doctor’s Reports) versus he needs to sit most of the time (Appellant), the Panel finds that it was reasonable for the Ministry to make its determination about PWD eligibility based on the information in the Doctor’s Reports. Further, the Panel finds that the Ministry was reasonable in deciding that the Appellant’s physical impairment is mild rather than severe.

2. Mental Impairment: The Appellant and his Support Person/Representative have described forgetfulness; a lack of motivation; varied emotions fluctuating between sadness, hopelessness, fear; and not being interested in daily life because of his impairment and the resulting limitations. The Appellant says that due to his poor health, his wife is responsible for all daily living activities. The Doctor has indicated the Appellant’s cancer and treatment have resulted in anxiety and depression, while also identifying a major impact on emotion, executive function, and motivation, and a moderate impact on memory. However, the Doctor has not expressly diagnosed a mental health condition.

Further, the Assessor Report is inconsistent with the current evidence of the Appellant and his Support Person/Representative. The Doctor reports the Appellant to be independent with all daily living activities; he does not take significantly longer with any of his daily living activities; and he is fully independent with social functioning. The Doctor has not given any details to support that there are major impacts on the Appellant’s daily functioning and his ability to complete his daily living activities or any impact with things like decisions related to shopping, paying rent and bills, meal planning, food prep, cooking, managing meds, safe storage of food, arranging transportation, and with personal care.

In light of the inconsistencies between the evidence of the Appellant and the medical findings, and because no mental health diagnosis has been identified, the Panel finds that the Ministry was reasonable in its determination that the information provided does not indicate a severe mental impairment.

Restrictions to Daily Living Activities (Activities): A prescribed professional must provide an opinion that the applicant’s impairment restricts their ability to perform the daily living activities (“Activities”) listed in the legislation. The Activities that are considered are listed in the Regulation. Those Activities are:

EAAT003 (17/08/21) 12

Appeal Number 2024-0019 Prepare own meals; Manage personal finances; Shop for personal needs; Use public or personal transportation facilities; Perform housework to maintain the person’s place of residence in acceptable sanitary condition; Move about indoors and outdoors; Perform personal hygiene and self-care; and Manage personal medication.