Ministry of Social Development and Poverty Reduction

Appeal Number 2024-0060 Part C – Decision Under Appeal The decision under appeal is the reconsideration decision of the Ministry of Social Development and Poverty Reduction (“Ministry”). The Ministry decided that the Appellant did not meet all of the requirements of section 2 of the Employment and Assistance for Persons with Disabilities Act for person with disabilities designation (“PWD”). The Ministry found that the Appellant met the age and duration requirements, but did not meet the following:

• the Appellant has a severe physical and/or mental impairment; • the Appellant’s daily living activities are directly and significantly restricted either continuously or periodically for extended periods; and

• because of those restrictions, the Appellant needs an assistive device, significant help or supervision from another person, or needs an assistance animal.

The Ministry also found that the Appellant is not qualified for PWD designation on alternative grounds, which includes: a person who is in palliative care; a person who received At Home Program payments through the Ministry of Children and Family Development; a person who gets or ever got Community Living BC for community living support; and a person who is considered disabled under section 42(2) of the Canadian Pension Plan Act.

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Appeal Number 2024-0060 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 complete legislation is found at the end of this decision in Appendix A.

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Part E – Summary of Facts Evidence at the time of Reconsideration

Appeal Number 2024-0060

The Appellant’s PWD application that includes: • A Medical Report and an Assessor’s Report dated July 23, 2023 which was completed by the Appellant’s doctor and who has seen the Appellant 2-10 times in the last 12 months. The doctor had known the Appellant since 2013. This report was complete by an office interview with the Appellant and file/chart information. • The PWD application also included the Appellant’s self-report dated September 1, 2023. The self-report, in part, stated the following about the Appellant: a) he cannot drive more than an hour or stand in one spot for more than 10 minutes; b) he cannot walk for long, when he walks it is especially slow; c) When he does dishes, he has to place one foot on a stool; d) his work in construction has been hard on his body; and e) he can no longer afford physiotherapy.

Request for Reconsideration dated December 11, 2023, which indicated, in part, the following: “Ever since I started this file, my condition has gotten much worse. I can’t work anymore at the light duty job I had. It hurts my lower back; it sometimes makes it lock up. After walking up a flight of stairs, I have to stop and stretch over [the] railing. I now have been using a cane for walking, I can’t stand in one place for more than 3 minutes (like at a stove or sink). I take a long time to get out of bed. Do not look forward to a day anymore just too much pain. Depression is getting much worse.”

The following medical reports were submitted by the Appellant: • Letter written by a registered physiotherapist on September 29, 2023 recommended continue physiotherapy treatment and focus on back strengthening exercises. • Addendum to PWD Application prepared by a second registered physiotherapist describing the injury and the therapy received.

Diagnoses In the Medical Report, the doctor diagnosed the Appellant with low back pain. The onset of the condition was not indicated.

Health History The doctor said the following about the Appellant’s condition: • Medications and/or treatments that interfere with the ability to perform daily living activities have not been prescribed. • Back brace is the prostheses or aid that is required for the impairment.

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Appeal Number 2024-0060 Degree and Course of Impairment The Appellant’s impairment is likely to last 2 or more years from the date of the PWD application and commented: “Chronic condition”.

Physical Impairment The Medical Report, indicated the following about the Appellant: • Can walk 1-2 blocks unaided on a flat surface, it is unknow how many steps he can climb unaided, he lift 5-15lbs and can remain seated for 1-2 hours. • “Chronic low back pain since 2020. Worse - 0 lifting – bending - walking much”. • “Chronic low back pain/ degenerative disc disease requiring physiotherapy for maintenance”.

The Assessor’s Report indicated the following about the Appellant: • Walking indoors, walking outdoors (“slow”), climbing stairs, standing (“less than 10 minutes according to” the appellant), lifting (20lbs) and carrying/holding are performed independently. • “Low back pain persistent. Limited working; less than 10 hours per week”.

Mental Impairment The Medical Report indicated the following about the Appellant: • There are not difficulties with communication. • There are no significant deficits with cognitive and emotional function.

The Assessor Report indicated the following about the Appellant: • Speaking is good; reading is satisfactory; and writing and hearing are poor. • There are no impacts on daily functioning with cognitive and emotional functioning. • All tasks listed under social functioning are performed independently and there is good functioning with immediate and extended social networks.

Daily Living Activities The Assessor Report said the following about the Appellant: • Under personal care periodic assistance is required with and it takes significantly longer with dressing (“needs to hold on dresser to put pants on”). Toileting takes significantly longer (“occasionally needing help to wipe”). All other listed task of personal care are performed independently. • All tasks of basic housekeeping are performed independently. • Under shopping, it takes significantly longer to go to/from stores (“0 Line up”). The appellant uses an assistive device to carry purchases home (“needs buggy”). All other listed tasks under shopping are performed independently.

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Appeal Number 2024-0060 • “Difficulty [to] get right leg up to put on pants. Need to hang on [to] dresser to put pants on. Difficulty to reach around to wipe. Difficulty standing in line-ups – painful back pain”. • Under meals, it takes significantly longer with food preparation and cooking (“limited standing- less than 10 minutes [illegible] pain”). All other listed tasks of meals are performed independently. • Under pay bills/rent, it takes significantly longer with banking (“not able to stand in line”). All other listed tasks of pay bills/rent are performed independently. • All listed tasks of medication are performed independently. • Under transportation, it takes significantly longer with getting in/out of a vehicle. All other listed tasks of transportation were left blank.

Help The Medical Report, under the requirement for any prostheses or aids for his impairment, indicated that the Appellant does requires a back brace.

The Assessor Report said the following about Appellant: • Lives with family, friends or caregiver. • Family and friends provide help with daily living activities. • Assistance is not provided through the uses of assistive devices or an assistance animal. • “Chronic persistent low back pain. [illegible] flex to touch knees. Rotation normal. Pain with flexion - extension”.

Evidence At Appeal

A Notice of Appeal was submitted on February 13, 2024 and stated that “I feel like my condition is declining and I am getting worse. I can’t walk or stand for long periods. My back is locking up, I need help or assistance like assisted living. I can’t afford treatment for my condition and am just getting by day to day”.

The panel found that the Notice of Appeal is the Appellant’s argument and accepted it accordingly.

Evidence at the Hearing At the hearing the Appellant submitted the following information: • Letter dated January 8, 2024. In this letter the Appellant reiterated his previous statements from the self-report, Request for Reconsideration and the Notice of

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Appeal Number 2024-0060 Appeal. The Appellant added that he ca nnot eat well. He looks for what is made or orders food but cannot afford to order food now. He can only sit for 30 minutes now and driving is no longer possible. When climbing a flight of stairs, he must bend over the railing to stretch back. The letter also contained a signed hand­written note, dated January 11, 2024, from the Appellant’s doctor which stated “please take above symptoms as described by [the Appellant] in consideration of his PWD claim. His back pain has gotten worse since [the] last report, with increased limitation to his activities”. • An internet search and description of the medical condition scroiliitis, with a hand­written note from the Appellant stating “this sure sound[s] a lot like what I have. The pain gest so bad at times I lock up [and] can’t move. When I am wiping after toilet [it] will lock up, can’t move for minutes. This is all getting worse every week that passes. Sometimes I feel I have to go into assisted living but can’t afford to. Don’t know where I will be next month”.

At the hearing the Appellant stated, in part, the following: • He cannot work, do dishes or his daily living activities. • He cannot work for more than 2-hours at a time. When he does, he cannot function the next day. • It is best for him to lie down as he is mostly pain-free then. • Sitting is uncomfortable. • He cannot drive more than 30-45 minutes. When he does, he must stop to stretch. This is a stark change as he used to be a long-haul truck driver. • Daily living activities are hard to complete. • He cannot find alternative work. • The doctor said that the back has deteriorated, and nothing can be done to repair it. • He cannot carry things and must use a shopping cart for groceries. • He uses a cane when having to walk around the store. • He cannot afford physiotherapy any longer. • In the last few months, the pain in his groin, from a previous injury, has increased. • The right leg does not lift. When in bed he can only lift the right leg about 8 inches.

When questioned, the Appellant stated the following: • He cannot walk and carry things at the same time. • He cannot shovel or mow the lawn. • The sacroiliitis was discussed with his doctor but the doctor dismissed it. • He does not have any documented updates since July 23, 2023 other than the January 8, 2024 letter that the doctor endorsed.

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Appeal Number 2024-0060 • Medication masks the pain and as a resu lt he can end up hurting himself because he cannot feel. • When compared to typical, it takes him 10 times longer to dress, 5 times longer to shop or do dishes. • He avoid food preparation and orders out because it’s too painful to complete. • When cleaning, he cannot get off the floor without leaning on something, like the sofa. • Getting out of the vehicle is very difficult and takes longer because when he sits for any length of time, the back seizes up. • He was using his cane to walk at the time the PWD application was completed by the doctor and previous to that he used a crutch.

At the hearing the Ministry relied on its reconsideration decision. When questioned, the Ministry stated the following: • The doctor’s narrative does not line up with the Appellant’s testimony at the hearing. Therefore, the information provided by the Appellant regarding how much longer it takes to complete his daily living activities does not change the matter. • When asked why the Appellant’s testimony, which corroborates the narrative and check boxes provided by the doctor, is discredited, the Ministry stated that if the information regarding how much longer it takes to complete daily living activities was available at reconsideration it would be considered as it provides clarity.

Admissibility of Additional Information

The Ministry did not object to the admission of any additional information the Appellant submitted at the hearing.

A panel may consider evidence that is not part of the record that the panel considers is reasonably required for a full and fair disclosure of all matters related to the decision under appeal.

The panel found that the information submitted at the hearing (January 8, 2024 letter and internet information) provided additional detail or disclosed information that provides a full and fair disclosure of all matters related to the decision under appeal. The panel has admitted this new information as being in accordance with s. 22(4) of the Employment and Assistance Act.

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Appeal Number 2024-0060 Part F – Reasons for Panel Decision The issue on appeal is whether the Ministry's reconsideration decision, which found that the Appellant is not eligible for designation as a PWD, was reasonably supported by the evidence or was a reasonable application of the legislation.

Panel Decision

Severe Impairment In the reconsideration decision, the Ministry was not satisfied that the information showed that the Appellant has a severe physical or mental impairment. The Ministry is of the opinion that to show that an impairment is severe, the information has to be weighed against the nature of the impairment and how it impacts functioning either physically or mentally. Having a diagnosis of a medical condition does not mean that the impairment is severe or that the person is qualified for PWD. The information has to show that the impairment, which is caused by a medical condition, restricts a person’s ability to function on their own or effectively. The Ministry has to look at the impairment and see if it impacts daily functioning. The Ministry depends on the information in the PWD application and any other information that is given. The panel finds that the Ministry’s approach to determine severity is reasonable.

The panel also notes that the ability to work is not a consideration for PWD eligibility because the ability to work is not a requirement of section 2(2) of the Act and is not listed as a daily living activity.

Physical Impairment The Appellant said his low back pain causes severe pain which impacts his mobility and functioning.

The Ministry concluded that, based on the information provided in the original Application and Request for Reconsideration, the Appellant does not have a severe physical impairment.

In the reconsideration decision, the Ministry noted the narrative provided by the doctor and the functional assessment as indicated by the doctor in both the Medical and Assessor’s Reports. The Ministry stated that the information provided by the doctor reflected a moderate physical impairment because the Appellant can still physically function to a reasonable degree. While it is acknowledged he may take longer to walk, neither he nor the doctor indicated how much extra time is needed. Therefore, as stated by the Ministry, it was unable to establish that the extra time required represents a severe

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Appeal Number 2024-0060 impairment of physical functioning. The Minis try determined that, based on the information provided in the original application and request for reconsideration, the Appellant does not have a severe physical impairment.

The panel’s task is to determine if the Ministry’s decision is reasonable. In the case of the Appellant, he can function in his physical and mobility tasks. That is, he can walk 1-2 blocks unaided on a flat surface. He can lift 5-20lbs and remain seated for 1-2 hours. The Assessor’s report is similar in that walking indoors, climbing stairs, and carrying/holding are performed independently. Walking outdoors (slow) , standing (less than 10 minutes according to the appellant) and lifting (20lbs) are also performed independently but with restrictions as indicated.

The panel also considered the letters submitted from two different physiotherapists. It is noted that the Ministry did not provide an analysis of these letters in its reconsideration decision or a reason for why they were seemingly dismissed. The panel finds that both of the physiotherapists provided more detail about the appellant’s injury and diagnosis, the therapy received thus far, and the need for continued therapy. The undated letter stated that there is reduced thoracolumbar and hip active range of motion, poor body mechanics, antalgic gait pattern, reduced abdominal and lower body strength with some signs and symptoms consistent with degenerative disc disease and lumbar radiculopathy. The letter dated September 29, 2023 indicated the Appellant is limited in his range of motion in all directions by about 50%, muscle strength in the lower right extremity is good, there is poor core activation, lumbo-pelvic stability is poor, and the Appellant is able to do heel raises and toe raise but pain prevents him from doing repetition of these movements. The panel finds that this information demonstrates that the Appellant has restrictions. However, the fact that the Ministry neglected to provide an analysis of this evidence renders its decision regarding severe physical impairment unreasonable as it did not consider all of the evidence in the case of the Appellant.

As a result, the panel finds that the Ministry was not reasonable when it found that the Appellant does not have a severe physical impairment as is required by section 2(2) of the Act.

Mental Impairment The Appellant argued that he is depressed.

The Ministry argued that based on the information provided in the PWD application, the Appellant does not meet the legislative requirements of severe mental impairment.

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Appeal Number 2024-0060 In this reconsideration decision, the Ministry n oted that the doctor did not diagnose a mental health condition or brain injury, there are no significant deficits to your cognitive and emotion function, the assessor did not identify any impacts to daily cognitive and emotional functioning, and there are no difficulties with communication or social functioning.

The panel’s task is to determine if the Ministry’s decision is reasonable. In the case of the Appellant, there is no evidence from the doctor or the two physiotherapists to support a finding of a mental health condition or brain injury.

As a result, the panel finds that the information provided does not establish that the Appellant has a severe mental impairment. As a result, the panel finds that the Ministry was reasonable when it found that the Appellant does not have a severe mental impairment as is required by section 2(2) of the Act.

Restrictions in the ability to perform Daily Living Activities

Section 2(2)(b)(i) of the Act requires that the Minister must be satisfied that in the opinion of a prescribed professional, a severe mental or physical impairment directly and significantly restricts the Appellant’s ability to perform daily living activities either continuously or periodically for extended periods. While other evidence may be considered for clarification or support, the Ministry’s decision is based on the evidence from prescribed professionals. The term “directly” means that there must be a connecting link between the severe impairment and the restriction. The direct restriction must also be significant. Finally, there is a part related to time or duration – the direct and significant restriction may be either continuous or periodic. If periodic, it must be for extended periods. So, in the cases where the evidence shows that a restriction happens periodically, it is appropriate for the Ministry to ask for evidence about the duration and frequency of the restriction to be “satisfied” that it is for extended periods.

The Appellant argued that that due to complications from his medical conditions he is unable to function and complete his daily living activities.

The Ministry argued that it is not satisfied that the information in the PWD application shows that the impairment directly and significantly restricts daily living activities continuously or periodically for extended periods.

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Appeal Number 2024-0060 In its reconsideration decision, the Ministry no ted the doctor’s narrative and assessment of the ability to perform daily living activities as indicated in the Assessor’s Report. Specifically, the Ministry noted that the Appellant takes significantly longer for: • Dressing (need to hold on dresser to put pants on) and toileting (needs help to wipe); • Going to and from stores (0 line-ups); • Food preparation, cooking (limited standing > 10 mins with pain); • Banking (not able to stand in line); and • Getting in and out of a vehicle.

The Ministry noted that no information has been provided to describe how much longer it takes to perform the noted activities. Therefore, the Ministry is unable to determine if the extra time needed represents a significant restriction to the Appellant’s ability. Also, the Ministry was not satisfied that being unable to stand for more than 10 minutes in a line up reflects a significant restriction to the ability to manage personal finances given the options with instant tellers and online banking. The Ministry acknowledged that the Appellant’s limitations with standing would make food preparation and cooking more difficult, however it is unclear if he needs rest after standing in one place for 10 minutes or if can he remain on his feet if he were to move about the kitchen. If rest is needed, it is not known how long he must rest. Therefore, the Ministry is unable to determine if the limitation with standing results in a significant restriction to the ability with food preparation and cooking.

The Ministry stated that as the shopping cart was designed to assist all people, including unimpaired people, to carry groceries it does not meet the definition of an assistive device. The Ministry noted that the doctor indicated that the Appellant needs periodic assistance with dressing. The Ministry noted that the assistance described is not that of another person but a dresser. Also, the Ministry is not satisfied that needing to hold onto furniture to put pants on demonstrates a significant restriction to the overall ability to dress or complete personal care activities.

The Ministry noted that the Appellant is independent with the majority of this daily living activities including social functioning. The Ministry found that there is not enough evidence to confirm that in the opinion of a prescribed professional, the Appellant is directly and significantly restricted in the ability to perform daily living activities continuously or periodically for extended periods.

The panel finds that the Ministry analysis of the evidence and findings based on the evidence to be reasonable. The evidence demonstrates that the Appellant independently