Ministry of Social Development and Poverty Reduction

Part C – Decision Under Appeal

Appeal Number 2024-0129

The decision under appeal is the Ministry of Social Development and Poverty Reduction (ministry) Reconsideration Decision dated April 8, 2024, which determined the appellant was not eligible for the Persons with Disabilities designation because she did not meet three of the five criteria. The ministry was satisfied that she met the age and duration criteria but not satisfied, based on the evidence presented, that she met 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 designation on alternative grounds. As there was no information or argument on this point, the panel considers it not to be an issue in this appeal.

Part D – Relevant Legislation

Employment and Assistance for Persons with Disabilities Act (Act), section 2

Employment and Assistance for Persons with Disabilities Regulation (Regulation), sections 2 and 2.1

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 2024-0129

Evidence Before the Minister at Reconsideration

Person with Disabilities Application (application) (October 24, 2023)

Self-Report -summary The appellant states that months ago she started to feel pain in her lower back, legs and feet. It has slowly become worse and prescribed medication only gives her about two to two and a half hours of sleep. She cries most of the night. Lack of sleep makes her feel like her immune system is suffering. She states she also has pain in her shoulders, arms and hands, but her back and legs are the worst.

The appellant adds that it takes her at least an hour longer to complete her jobs. When she goes to work she is in pain the whole time. She can no longer perform tasks such as raking leaves or lifting anything over about 5 lbs.

On November 13, 2023, the appellant added the following information to the self-report. She wrote that the medication has not relieved her pain, she was unable to go to work and the pain kept her up most nights. Her doctor prescribed gabapentin, which resulted in a psychotic episode. She called a relative to take her to the hospital and noticed her left leg was numb. In the hospital, she was given tests. Upon release she went to a relative’s place as she couldn’t take care of herself; she was getting sudden dizzy spells. After a few days she thought she could leave but had another dizzy spell and asked to return to the hospital. The appellant also discovered that she could not write properly and didn’t know what was going on with her body. She only knew that something is changed, and she’s scared.

Medical Report (February 1, 2024 ) – signed by the appellant’s doctor The doctor (a general practitioner) provided the following information and responses to the questions below.

A. Diagnosis Ankylosing spondylitis Cerebrovascular disease Ischemic heart disease Anxiety disorder

Date of onset – month/year 2022 2023 2023

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Appeal Number 2024-0129

B. Health History o Please indicate the severity of the medical conditions related to this person's impairment and how the medical conditions impair this person. - The appellant has severe lower back pain, which will worsen as she gets older and develops more lumbar spine disease due to ankylosing spondylitis progression. - The appellant had a small stroke probably in October or November 2023 and is at high risk for more due to cerebrovascular disease aggravated by smoking. - In November 2023, the appellant developed cardiac ischemic with a positive troponin. This was probably a non ST elevation myocardial infarction. - The appellant’s heightened anxiety creates a catastrophic reaction when she develops a new symptom. Her anxiety is generalized and constant and is a great hindrance to living a normal life. - The appellant has a sleep disorder due to pain, which worsens her anxiety.

o Has the applicant been prescribed any medications and/or treatments that interfere with her ability to perform daily living activities? – no o Does the applicant require prostheses or aids for her impairment? – no

C. Degree and Course of Impairment Is the impairment likely to continue for two years or more from today? – yes - Lifelong and will worsen as she gets older.

D. Functional Skills o How far can this person walk unaided on a flat surface? – 1-2 blocks o How many stairs can this person climb unaided? – 5+ o Are there difficulties with communication? - no o Are there any significant deficits with cognitive and emotional function? – yes - The doctor checked emotional disturbance (e.g. depression, anxiety).

What assistance does your patient need with daily living activities? (includes help from another person, equipment and assistance animals)? - no response

F. Additional Comments The appellant is unable to work in her present state, which will not improve with time or treatment.

G. Frequency of Contact The doctor states they have known the appellant for four years and have seen her two to ten times.

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Appeal Number 2024-0129

Assessor Report (December 7, 2023) – signed b y the appellant’s physiotherapist The physiotherapist provided the following information and responses to the questions below.

A. Living Environment The physiotherapist states the appellant lives alone.

B. Mental or Physical Impairment o What are the applicant’s mental or physical impairments that impact her ability to manage daily living activities? - chronic low back and leg pain related to a diagnosis of ankylosing spondylitis - anxiety disorder that causes increased stress and depression

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

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 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 s e s a s s i s t i v e d e v i c e T a k e s s i g n i f i c a n t l y l o n g e r t h a n t y p i c a l E x p l a i n a n d

Climbing stairs Standing Lifting

x

x

x

Carrying and holding x Comments: increased low back pain with lifting activities

x

x

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

afraid of falling

requires help >15

lbs. “

Appeal Number 2024-0129

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, x fog brain alert/drowsy, confusion Emotion (e.g. excessive or inappropriate x anxiety/ anxiety, depression etc. stress about future well-

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)

x

x

x

x

x poor short-term memory

x

x

being & finances

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Language (e.g. expression or comprehension problems (e.g. inability to 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 (e.g. hostility)

C. 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

x x x x x x x

x

x x

x x

Appeal Number 2024-0129 x

x

x anger and frustration

x

x one-time episode of psychosis

Explain/ Describe

but doesn’t eat much

due to stiffness and

soreness

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

Making appropriate choices Paying for purchases Carrying purchase home

x x

Meals x 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 vehicle Using public transit x Using transit schedules and x arranging transportation

x

Appeal Number 2024-0129

x

requires assistance>15

lbs.

Social Functioning – only complete if applicant has an identified mental impairment Indicate the assistance required related to impairment(s) that directly restrict the applicant’s ability to manage in the following areas.

EAAT (26/10/22) 8 I n d e p e n d e n t P e r i o d i c s u p p o r t / s u p e r v i s i o n C o n t i n u o u s s u p p o r t / s u p e r v i s i o n E x p l a i n /

Appropriate social decisions (including avoiding situations dangerous to self or others, good social judgement) Able to develop and maintain relationships Interacts appropriately with others (e.g. understands and responds to social cues, problem solves in social context)

x

x x

D e s c r i b e

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

Appeal Number 2024-0129 x

x

Describe how the mental impairment impacts the applicant’s relationship with - immediate social network – marginal functioning – little significant participation/communication: relationships often minimal and fluctuate in quality - disrupted due to anger and frustration/tendency to go on rants - extended social networks – good functioning – positively interacts with the community; often participates in activities with others

Comments: If the applicant requires help, as indicated above, please describe the support/supervision required, which would help to maintain her in the community. - appointments with social work, clinical counsellor and psychiatry

D. Assistance Provided for Applicant

Assistance provided by other people – family, health authority professionals, community service agencies, friends

Comments: - job retraining for less physical jobs

Assistance provided by Assistance Animals – no

E. Additional Information The physiotherapist states the appellant has a combination of physical and mental health issues. She is motivated to continue working but is trained only for labour jobs. It is not recommended that she continue to do labour with her current health conditions.

G. Frequency of Contact The physiotherapist states this is their first contact with the appellant. They have known her for three weeks and have seen her two to ten times.

Briefly describe the type and duration of the program or services you or your organization are providing or have provided to the applicant. - Assessment for Persons with Disabilities application

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Appeal Number 2024-0129

Letter from the Ministry to the Appellant (M arch 6, 2024) The ministry states it denied the appellant’s application for Persons with Disabilities designation and included the reasons for the denial.

Request for Reconsideration (March 20, 2024) The appellant states the reason she is requesting reconsideration is because her back, shoulder and neck pain is getting worse.

She wakes up hurting; it can hurt to just make her bed. Through all of this, she is getting more and more depressed. Some days the depression is really severe. But the real issue is all the pain she is in. She takes her medication but can still feel the pain through her medication – although not as bad.

The appellant adds that she has worked for 46 years (since she was 15) in physical labour but just cannot do it anymore.

The following medical reports were attached with the Request for Reconsideration.

Ultrasound Report – (March 13, 2024) Findings: Minor mixed atherosclerotic plaques at the carotid bifurcations without significant narrowing. Peak systolic velocities within normal limits. Antegrade vertebral artery flow.

MRI – (February 26, 2024) Findings: There are five lumbar type vertebrae. Osseous alignment is normal. No fractures are present. The conus terminates at L2 and is normal in appearance. T12-L1: Mild loss of disc height small anterior osteophytes. No significant central canal or foraminal stenosis. L1-2: Mild loss of disc height small anterior osteophytes. No significant central canal or foraminal stenosis. L2-3: Mild generalized disc bulge. Small Schmorl’s node inferior endplate of L2. Mild generalized disc bulge lateral osteophyte formation. Minimal central stenosis and bilateral foraminal compromise. Mild bilateral fact arthropathy. No significant central canal or foraminal stenosis. L3-4: Mild generalized disc bulge. Mild bilateral facet arthropathy. Moderate right and mild left foraminal stenosis. No central canal compromise.

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Appeal Number 2024-0129

L4-5: Moderate loss of disc height. Mild bilatera l facet arthropathy. Mild generalized disc bulge. Mild central canal narrowing. Moderate left and mild right foraminal compromise. L5-S1: Mild generalized disc bulge and mild bilateral facet arthropathy. No significant central canal narrowing. Mild right and left foraminal compromise. SI Joints: On limited assessment visualized portions of the SI joints are normal.

IMPRESSION: Multilevel spondylotic change without evidence of high-grade central stenosis. Foraminal compromise most pronounced on the right L3-L4 and on the left L4-L5, moderate in degree.

CT Scan Report (January 4, 2024) Findings: Non-contrast CT head No acute hemorrhage. No acute large territory infarct. Mild patchy background white matter low attenuation changes are noted that are nonspecific but most likely related to mild chronic small vessel ischemic disease. No midline shift. No hydrocephalus or herniation. No extra-axial collections or intra-axial lesions identified. Mucous retention cyst within the left maxillary and right ethmoid sinuses. Bubbly secretions within the right maxillary sinus. Remaining sinuses are unremarkable. Mastoid air cells are well aerated. Unremarkable orbits. Unremarkable calvaria.

CT Angiogram ARCH: Normal three-vessel branching pattern without significant proximal stenosis.

CAROTIDS: No significant extracranial ICA stenosis by NASCT criteria. Medial retropharyngeal loop of the left ICA at the level of the oropharynx. Mild atherosclerotic calcification of the left carotid siphon. No significant intracranial stenoses. VERTEBROBASILAR: Right dominant vertebral artery. Hypoplastic left vertebral artery with short segment occlusion at the distal V2 proximal V3 segments, beginning within the transverse foramen of C3 with reconstitution within the transverse foramen of C1. Normal basilar artery. CIRCLE OF WILLS: Patent bilateral MCAs and ACAs. Bilateral patent fetal type PCAs. No aneurysm or vascular malformation seen. OTHER: Patent dural venous sinuses. No significant neck abnormalities. Unremarkable visualized lung apices.

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Appeal Number 2024-0129

C4 on C5, grade 1 anterolisthesis of C3 on C4 a nd C7 on T1. No acute or aggressive osseous lesions. No significant spinal canal narrowing is demonstrated.

Impressions: 1. No acute intracranial pathology 2. Short-segment chronic appearing occlusion of hypoplastic left vertebral artery within the distal V2/proximal, V3 segments. No other significant stenosis or occlusion of the major arteries in the head or neck. 3. Bubbly secretions within the right maxillary sinus possibly related to acute sinusitis for clinical correlation.

Additional Information received after the Reconsideration Decision

Appellant

Notice of Appeal (April 11, 2024) The appellant states her doctor filled out the forms incorrectly and they don’t understand the pain she is experiencing.

Testimony at the Hearing

Appellant At the hearing, the appellant stated, when shopping, she can only carry a few items at a time, which is significantly different than a few years ago. The appellant added that when cleaning her house, she can’t do more than one hour at a time. She can take care of herself and she doesn’t have any help. However, she states she hurts all day, every day.

She added that once her rent and utilities are paid, she has only approximately $130/month left for groceries. The appellant also stated that although her doctor stated her medications don’t affect her ability to perform daily living activities, the medication makes her feel weird - “her brain gets stuck”. She wondered how broken she needs to be to receive help.

Ministry At the hearing, the ministry relied on its record and also explained some of the criteria required to qualify for the Persons with Persistent Multiple Barriers benefits.

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Appeal Number 2024-0129

Admissibility The ministry did not object to the additional information provided by the appellant. The panel determined the additional information is reasonably required for a full and fair disclosure of all matters related to the decision under appeal and therefore is admissible under section 22(4) of the Employment and Assistance Act.

The information the ministry provided regarding the Persons with Persistent Multiple Barriers Program, while helpful to the appellant, is not relevant to the issues before the panel and is therefore inadmissible.

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Part F – Reasons for Panel Decision

Appeal Number 2024-0129

Issue The issue on appeal is whether the ministry’s reconsideration decision was reasonably supported by the evidence or was a reasonable application of the legislation in the circumstances of the appellant.

Did the ministry reasonably determine the appellant was not eligible for the Persons with Disabilities designation, because the minister was not satisfied that: 1) the appellant has a severe mental or physical impairment and 2) in the opinion of a prescribed professional: i) that severe impairment directly and significantly restricts daily living activities, and ii) as a result of those restrictions, the appellant requires help to perform those activities.

Appellant Position The appellant states she has pain in her lower back, legs, feet, shoulders, arms and hands but her back and legs are the worst. Her prescribed medication only gives her about two to two and a half hours of sleep.

The appellant adds that it takes her at least an hour longer to complete her tasks; she is in pain the whole time. She can no longer perform tasks such as raking leaves or lifting anything over about five lbs.

In addition, the appellant states that once her rent and utilities are paid, she has only approximately $130/month left for groceries. She also states that although her doctor stated her medications don’t affect her in performing daily living activities, the medication certainly does affect her functioning.

Through all of this, the appellant states she is getting more and more depressed.

Ministry Position Mental or Physical Impairment Mental functioning The ministry states it cannot determine that the appellant has a severe mental impairment.

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