Ministry of Social Development and Poverty Reduction

Appeal Number 2024-0227 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 2024-0227 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 2024-0227

The Appellant’s PWD application that includes: • A Medical Report dated April 18, 2024 which was completed by the Appellant’s doctor. The doctor has seen the Appellant 11 or more times and has known the Appellant for 7 years prior to completing the PWD application. • An Assessor’s Report dated April 29, 2024 which was completed by the Appellant’s physiotherapist. The physiotherapist who has known the Appellant since March 18, 2024 and has seen the Appellant 11 or more times prior to completing the PWD application. The Assessor’s Report was completed through an office interview with the Appellant. • The PWD application also included the Appellant’s self-report dated March 18, 2024. The self-report, in part, stated the following: 1. That after surgery, (a laminectomy and microdiscectomy), to correct sciatica, (caused by a degenerative and herniated disk in the lower back), she has been experiencing chronic back pain that does not respond to over-the-counter medications. 2. The pain is chronic and she does not have full movement in the lower spine or hips. This has hindered her ability. 3. The pain is mostly in the lower back and can be exacerbated by standing or sitting for periods of time. 4. It is difficult to stand or sit for long periods of time too. Standing becomes painful after 5 minutes. 5. She is reliant on a cane for walking longer distances. 6. A change in weather (low pressure, or cold humidity) increases the pain. 7. Excessive exercise or stretching also causes pain in the left sciatic nerve. 8. The stress of chronic pain and financial insecurity has impacted mental health, specifically generalized anxiety disorder with episodes of comorbid major depressive disorder. 9. She is using a wheeled shopping basket for grocery shopping and that cleaning and cooking are difficult due to the need to stand for periods of time. 10. Longer stretches of sitting or walking require longer recovery times. 11. When required to sit or stand for the majority of the day, recovery can take a day or several days. 12. Heavy lifting is difficult and causes a strain on the back so it is not recommended. 13. Cleaning is difficulty due to the inability to stand on her feet for long stretches of time as is required for washing dishes or floors, and cooking. She eats meals that require minimal preparation.

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Appeal Number 2024-0227 Request for Reconsideration dated June 3, 2024. In it, the Appellant, in part, stated the following: 1. The lower back pain makes standing in place and sitting upright difficult to maintain. 2. The lower back cannot bear the weight of the upper body and some days she can stand up to 15 minutes. But on bad days she can only stand for 5 minutes. 3. She spends most of her time in a reclining position. 4. The weather also impacts the pain. 5. Walking is comparatively easy because when moving she does not feel the pain as keenly. 6. By using a cane she can take short walks, shift her weight as needed and be independent. 7. She can drive moderate distances and run errands for an hour or two. After running errands or doing household chores such as cooking, cleaning, and laundry, she must take breaks and give herself time to recuperate after. Sometimes she cannot complete her daily living activities due to pain. 8. She has been diagnosed with generalized anxiety disorder, with comorbid episodes of depression. 9. She has been dealing with this since February 2022. 10. The financial stress and anxiety has resulted in crying episodes, suicidal ideation, and executive dysfunction. 11. Her personal hygiene is suffering due to back pain and a lack of motivation during a depressed episode. She is seeing a counsellor to deal with some of the underlying issues.

Diagnoses In the Medical Report, the doctor diagnosed the Appellant with Chronic Back Pain with an onset date of February 2022.

Health History The doctor said the following about the Appellant’s condition: • Ongoing worsening lower back pain. • Worse with movement. • Pain presents all the time and impacts her day to day life. • Treatments or medications that would interfere with the ability to complete daily living activities have not been prescribed. • A cane is used for walking.

Degree and Course of Impairment The Appellant’s impairment may last 2 or more years from the date of the PWD application.

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Appeal Number 2024-0227

Physical Impairment The Medical Report, indicated the following about the Appellant: • Can walk 2-4 blocks unaided on a flat surface, can climb 5+ steps unaided, can lift 5-15lbs and can remain seated for 2-3 hours.

The Assessor’s Report indicated the following about the Appellant: • She “has difficulty standing/sitting for long periods of time (15-60 minutes). Impairs ability to cook, do dishes, [or] work at desk”. • Walking indoors and walking outdoors are performed with an assistive device. A cane is used for longer walks. • Climbing stairs is performed independently. • Standing requires an assistive device (“using cane”). • Lifting and carrying/holding are performed independently but the weight is 20 lbs maximum.

Mental Impairment The Medical Report indicated the following about the Appellant: • There are no difficulties with communication. • There are no significant deficits with cognitive and emotional function. • “Chronic lower back pain is the limiting factor”.

The Assessor Report indicated the following about the Appellant: • Speaking, reading, writing and hearing are good. • There are no impacts on daily functioning with cognitive and emotional functioning. • “No mental impairment noted”. • The section on Social Functioning was left blank with the comment “n/a”. • All listed task under pay rent/bills and medications are performed independently.

Daily Living Activities The Medical Report said the following about the Appellant: • There are continuous restrictions with personal self-care, meal preparation, basic housework, daily shopping, mobility outside the home and use of transportation. • There are no restrictions to management of medications, mobility in the home, management of finances and social functioning. • “Not dependent for activities of daily living. Uses a cane aid in walking”.

The Assessor Report said the following about the Appellant:

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Appeal Number 2024-0227 • Under Personal-Care, all listed tasks are pe rformed independently but dressing takes significantly longer (5 times longer to put on socks) and transfers (on/off a chair) require an assistive device (“using cane”). • Under Basic Housekeeping all listed tasks take significantly longer to perform (she must make multiple trips to do laundry and avoids cleaning or cleans one room at a time. • Under Shopping, all listed tasks are performed independently except going to/from stores (which requires an assistive device; cane) and carrying purchases home (which requires an assistive device; wheeled shopping basket. • Under Meals, all listed tasks are performed independently except next to food preparation it was noted “frozen meals prepared a lot” and cooking takes significantly longer “15 minutes max then needs a break”. • Under Pay Rent/Bills, all listed tasks are performed independently. • Under Medications, all listed tasks are performed independently. • Under Transportation, all listed tasks were left blank (N/A) except getting in/out of vehicle which requires an assistive device, cane.

Help The Medical Report said the following about the Appellant: • “she needs a lot of help from family and friends”. • “Family members and friends help her”. • She uses a cane to walk.

The Assessor Report said the following about Appellant: • Family provides assistance. • Assistance is provided through the use of a cane. • Assistance is not provided through the use of an assistance animal.

Evidence At Appeal A Notice of Appeal was submitted on June 17, 2024. The Appellant argued that: • It takes all of her time to take care of herself. • On a good day she can sit in a chair for 2-3 hours but that represents the whole day. • Sitting is very painful and this inability limits what she can do. • Standing is painful. The pain is severe enough that it greatly limits how much time she is able to work and take care of herself.

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

Evidence at the Hearing

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Appeal Number 2024-0227 At the hearing, the Appellant reiterated her statem ents from the Request for Reconsideration and Notice of Appeal. She also stated, in part, the following: • She wants to be able to work and would be homeless if it was not for financial support from her family. However, they cannot continue to help much longer. • Two-three hours of sitting is the limit but the pain comes immediately. • Her home is a mess and the sink is full of dishes. She struggles to maintain her independence. • The Ministry was incorrect in its assessment. She is a member of a prescribed class as she is not able to work.

In response to questions, the Appellant stated the following: • Her family helps financially and with driving longer distances. • She is not comfortable asking for help with daily living activities. • She purchased the softest office chair she could find and added a cushion to it for comfort. This allows her to sit for 2-3 hours maximum. • She is currently taking 3 different kinds of psychological medications. • Pain medications do not work for her or she had allergic reactions to them. • She has requested a referral for the pain clinic but that is a 2-year waitlist. • Typically, when she wakes up in the morning she walks around the apartment and do as much work as she can such as doing the dishes. The pain is less in the morning. Some days she cannot move across the apartment due to the pain. Usually by 3pm she is in too much pain to do anything. • She uses an elevator to move around the apartment building and access the laundry facilities. • When her activities take twice as long to complete, (such as doing dishes, putting on socks or shopping), it adds up to a significant amount of time she spends on daily living activities. • She disagrees with the Ministry’s assessment of the evidence. Her ability is limited and it physically hurts to care for herself. • PWD designation is her last resort. She has tried to be completely independent but cannot support herself. • She had an injury of the spine and surgery did not fix it all. • She can walk 2-3 blocks unaided, stand for 10-15 minutes, lift a maximum of 20lbs and carry a maximum of 20lbs. • She finds these things impossible to do on average once per week. This could be due to exertion or the change in weather.

At the hearing, the Ministry relied on its Reconsideration Decision. The Ministry added the following:

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Appeal Number 2024-0227 • If the Appellant was receiving disability ben efits from the Canada Pension Plan Disability program, which considers employability as a qualifying criterion, she would be considered as a prescribed class. Then applying for PWD would be a streamlined process. However, the Appellant does not receive benefits from the Canada Pension Plan Disability program.

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Appeal Number 2024-0227 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 evidence 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 has 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 stated that her medical condition causes severe pain which restricts her mobility and functioning.

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

In the Reconsideration Decision, the Ministry noted the Appellant’s functional skills and the doctor’s narrative as indicated in the Medical Report. The Ministry also noted that in the Assessor Report it was indicated that the Appellant can independently walk, climb stairs, stand, lift, carry and hold, (“20lbs max.”). The Appellant needs an assistive device (cane) to walk indoors/outdoors and stand, (using cane for longer walks”). The Panel notes that in the Reconsideration Decision, the Ministry incorrectly indicated that the Assessor Report listed that walking indoor/outdoor is performed independently. The Ministry determined that with the use of a cane to assist with ambulation for longer distances, the Appellant manages her functional skills and mobility at a reasonable level. The Ministry determined that this assessment was more reflective of a moderate impairment.

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Appeal Number 2024-0227

The Ministry found that the information provided by the medical practitioner and prescribed professional regarding basic physical functioning and ability to manage activities requiring mobility and physical ability does not establish the presence of a severe physical impairment.

The Panel’s task is to determine if the Ministry’s decision is reasonable. In the case of the Appellant, she can function in her physical and mobility tasks. That is, the Medical Report indicated that she could walk 2-4 blocks unaided on a flat surface, climb 5+ steps unaided, she is able to lift 5-15 lbs and can remain seated for 2-3 hours. The Assessor’s report is similar in that the physiotherapist indicated that walking indoors/outdoors and standing required the use of a cane. Climbing stairs is performed independently. Lifting and carrying/holding is limited to a maximum of 20lbs. The Appellant’s evidence and testimony are compatible with the Medical Report and Assessor Report. That is, the Appellant indicated she can walk 2-3 blocks unaided, stand for 10-15 minutes, lift 20lbs and carry 20lbs. At the hearing, she indicated that these things are impossible on average once per week. That is, typically, 6-days a week she can function at this level. The Panel finds that the information provided does not establish that the Appellant has a severe physical impairment as she can function in all areas most of the time.

As a result, the Panel finds that the Ministry was 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 she was previously diagnosed with generalized anxiety disorder and the stress of her current situation has brought on anxiety again. She also stated that her current situation has caused depression.

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

The Ministry noted that the doctor did not provide a diagnosis of a mental health condition, or brain injury, and the doctor did not indicate significant deficits to the Appellant’s cognitive and emotion function. The Ministry noted that the Assessor’s Report did not identify any impacts to daily cognitive and emotional functioning. There are no difficulties with communication or social functioning. Therefore, the Ministry determined it cannot confirm a severe mental impairment.

The Panel’s task is to determine if the Ministry’s decision is reasonable. In the case of the Appellant, the Panel finds that there is not enough evidence from the doctor or other medical practitioner to support a finding of a mental health condition or brain injury. The doctor did not provide a diagnosis of a mental health condition. The evidence that was submitted indicates

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Appeal Number 2024-0227 that the Appellant can make decisions about pers onal activities, care or finances and she can relate to, communicate or interact with others effectively.

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 her medical conditions she is unable to function and complete her 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.

In the Reconsideration Decision, the Ministry noted that in the Medical Report it was indicated that treatments that would interfere with the Appellant’s ability to perform daily living activities have not been prescribed. The Appellant is continuously restricted with personal self-care, meal preparation, basic housework, daily shopping, mobility outside the home, and use of transportation. Regarding the degree of restrictions, the doctor commented, “She needs a lot of help from family and friends”.

The Ministry noted the narrative provided in the Assessor Report. The Ministry noted that the Assessor Report indicated that it takes significantly longer for Personal Care: dressing, (“bending over for socks/pants 5 min.”), Basic Housekeeping: laundry and basic housekeeping, (“multiple trips to basement/loads, avoids cleaning, 1 room at a time”), and Meals: Cooking, (“frozen

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Appeal Number 2024-0227 meals/prepared a lot. 15 min max then needs a br eak”). No information has been provided to describe how much longer it takes to get dressed, perform basic housekeeping, or cook. Therefore, the Ministry was unable to determine if the extra time needed represents a significant restriction to her ability. The Ministry does not consider taking twice as long to do personal care activities to be a significant restriction. The Ministry also noted that in the Assessor Report, all other listed areas and tasks of daily living had no strictions.

The Ministry noted that the physiotherapist reported the need for an assistive device for shopping, as there is a need to use a wheeled shopping basket to carry purchases home. The physiotherapist also noted that the Appellant uses a cane for transfer on/off chair, going to and from the store, and getting in and out of a vehicle. The Ministry determined that a shopping cart does not meet the definition of an “assistive device” which is defined in section 2 of the Act as a device designed to enable a person to perform a daily living activity that, because of a severe mental or physical impairment, the person is unable to perform. As the shopping cart was designed to assist all people to carry groceries it does not meet the definition of an assistive device. Regarding social functioning, the doctor reported that the Appellant is not significantly restricted in social functioning and the physiotherapist did not complete that section. The Ministry determined that the information provided does not described support and supervision needed and so we cannot confirm a significant restriction. Additionally, the doctor did not indicate the inability to make decisions about personal activities, care, or finances, or the inability to relate to, communicate or interact with others effectively. Further, the doctor and/or the physiotherapist do not report that the Appellant requires any help to be maintained in the community and does not identify any safety issues with your social functioning.