Ministry of Social Development and Poverty Reduction

Part C – Decision Under Appeal

Appeal Number 2024-0273

The decision under appeal is the Ministry of Social Development and Poverty Reduction (ministry) Reconsideration Decision dated June 21, 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 she met the age and duration criteria but was 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.

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Part E – Summary of Facts

Appeal Number 2024-0273

The hearing was held as a teleconference hearing on August 8, 2024.

Evidence Before the Minister at Reconsideration

Persons with Disabilities Application (April 27, 2024)

Self-Report In describing her disability, the appellant states the following resulted from an assault in March 2018.  Fractured left transverse process L1  Subsequent soft tissue and nerve damage/pain, mid/lower back and legs  Diagnosed with severe PTSD She states that her disability affects every aspect of her day-to-day life - household chores, caring for herself, work etc. Sitting at a desk and handwriting is one of the more difficult tasks. Pain is always present. She struggles to perform tasks, especially outside her home, due to PTSD.

Medical Report (April 16, 2024) – signed by the appellant’s doctor The doctor (general practitioner) provided the information below.

Diagnosis Lumbar back pain PTSD

Date of onset March 2018 March 2018

Health History Lumbar back pain  Daily  Continuous when up  Some relief lying down  Waking up at night  Not using analgesia

PTSD  Hypervigilance  Anxiety  Reduced cognition

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The doctor states the appellant has not been p rescribed any medications and/or treatments that interfere with her ability to perform daily living activities. As well, she does not require any prostheses or aids for her impairment.

Degree and Course of Impairment The doctor indicates the impairment is likely to continue for two years or more. The duration is difficult to predict – it has already been six years.

Functional Skills The doctor states the appellant can walk less than one block and climb 2-5 steps unaided. She can remain seated for less than 1 hr. There are no limitations to lifting. There are no difficulties with communication.

The doctor indicates the appellant has significant deficits with cognitive and emotional functioning in the areas of executive, memory and emotional disturbance. Since the onset of PTSD, there is a noted reduction in function/regulation.

The appellant lives alone and last worked full-time in March 2018. She has been their patient for 6 years and they have seen her 2-10 times in the past 12 months.

Assessor Report (April 16, 2024) – signed by the appellant’s doctor The doctor provided the information below.

Mental or Physical Impairment The appellant’s impairments that impact the appellant’s ability to manage daily living activities are lumbar back pain and PTSD.

Her speaking, reading, writing and hearing are good.

Mobility and Physical Ability The appellant is independent with:  Walking indoors/outdoors  Climbing stairs  Standing  Lifting  Carrying and holding

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Appeal Number 2024-0273

Cognitive and Emotional Functioning The doctor indicates: No impact with  Bodily functions  Consciousness  Impulse control  Motor activity  Psychotic symptoms Minimal impact with:  Insight and judgement  Motivation  Language (e.g., expression or comprehension problems)  Other neuropsychological problems Moderate impact with:  Emotion  Attention/concentration  Memory  Other emotional problems Comments: “Widespread effect”

No major impact for cognitive or emotional functioning was identified.

Daily Living Activities The doctor indicates the applicant is independent with:  Personal care (dressing, grooming, bathing, toileting, feeding self, regulating diet, transfers – in/out of bed and on/off chair)  Basic housekeeping (laundry)  Shopping (going to and from stores, reading prices and labels, making appropriate choices, paying for purchases, carrying purchases home) Additional comment was, “minimal to no impact here”  Meals (meal planning, food preparation, cooking, safe storage of food)  Paying rent and bills (banking, budgeting)  Medications (filling/refilling prescriptions, taking as directed, safe handling and storage)  Transportation (getting in/out of a vehicle, using public transit, using transit schedules and arranging transportation) Additional comment was, “Independent here”

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Appeal Number 2024-0273

Social Functioning The doctor indicates the appellant is independent:  making social decisions, developing and maintaining relationships  interacting appropriately with others  dealing appropriately with unexpected demands  securing assistance from others

The doctor indicates the appellant has marginal functioning with her immediate social network – “little significant participation/communication: relationships often minimal and fluctuate in quality” and marginal functioning with her extended social network – “little more than minimal acts to fulfill basic needs”.

Assistance When asked to describe any support/supervision the appellant needs, the doctor states, “Independent”. Help for daily living activities is provided by friends, and a cousin is in the house. The doctor states the appellant does not need more help, does not use any assistive devices and does not have an assistance animal.

Letter from the Ministry to the Appellant (May 15, 2024) The ministry denied the appellant’s application for Persons with Disabilities designation and included the reasons for the denial.

Request for Reconsideration (June 9, 2024) The appellant writes that her doctor states her condition is a permanent disability. Following the March 2018 assault, she has spent hundreds of thousands of dollars on physical and mental therapies - five days/week for two years (to teach her body to walk again), two to three days/week for subsequent years, and counselling weekly, for five and a half years (to teach herself to manage severe complex PTSD).

The appellant adds that as she does not have a typical back injury, it may seem that she is a bit more capable than someone with a disc bulge per se. However, she still has to modify every aspect of her life, movements and daily routine. She lives with constant pain, with little to no reprieve. What her body can do now is minimal in comparison to before the assault. The appellant states that even if she can complete a task, it now takes five to ten times longer than it did with her able-bodied self. Her goal is part-time self-employment. With previous experience and recent education in horticulture, it is an attainable goal while being able to set her pace and demands.

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Appeal Number 2024-0273

Occupational Health Physician Assessment (February 17, 2023) – completed by an occupational health doctor) Assessment date – December 15, 2022

The appellant provided the following past medical history:  Bleeding disorder  Fracture right 5th metacarpal/left clavicle  Adjustment disorder with depressed mood (1993) – hospitalized and diagnosed with PTSD, previous suicide attempt  Fatty liver disease  Adjustment disorder with depressed mood and complicated grief (2016)  Heart murmur (2017)

The occupational health doctor provided the following information.  The appellant’s psychiatric history includes a diagnosis of alcohol use disorder. As a teenager she overdosed on three occasions and was hospitalized and treated with antidepressant medication.  In 2016/17 she experienced several significant personal losses.  In March 2018, she was hit multiple times over her back with the leg of a coffee table and struck her head when she fell backwards. The next day she awoke with severe pain in her back and went to emergency.  On January 22, 2020, a physician specializing in pain management, assessed her for her ongoing back pain. By this point she had undergone extensive rehabilitation, including physiotherapy, acupuncture, pool therapy, massage therapy, athletic therapy, transcutaneous electrical nerve stimulation, yoga, craniosacral therapy, and osteopathy as well as regular psychological counselling. Exam findings included mildly reduced mid and low back range of motion, near normal straight leg raise bilaterally, bilateral tenderness over the hip flexor muscles, and tender trigger points over the upper back and the muscles between her shoulder blades.

The appellant’s current medical complaints are:  Low back – currently her worst symptom. She describes constant but variable “cramping” pain in her low back.  Bilateral legs – constant but variable pain in her legs  Bilateral hand numbness and tingling  Mid/upper back – episodic stiffness in this area if she sits for too long on the computer  Abdomen – pain into the left hip flexor that feels “tight like a ball”

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Appeal Number 2024-0273

Activities of Daily Living The occupational health doctor states the appellant says she is independent with all daily living activities (mobility/transfers, bathing/showering, dressing, eating, personal hygiene/grooming, toileting, and computer use).

The appellant says she is independent with all her instrumental daily living activities but has a few modifications. She uses a self-propelled mower and pacing strategies and takes frequent microbreaks for various activities (yard work, vacuuming, dishes, cooking, laundry and shopping).

The appellant’s current mental/psychological complaints are:  Feeling tired or having low energy  Little interest or pleasure in doing things  Feeling down, depressed or hopeless  Nervous or feeling anxious and on edge  Anxiety attacks

The occupational health doctor writes that the appellant met the diagnostic threshold for the major depressive episode, PTSD and social anxiety disorder. She does appear to be at least mildly depressed. There is no evidence of gross cognitive dysfunction. No excessive pain behaviours were observed.

Opinions and Conclusions It is the occupational health doctor’s opinion that the appellant had adjustment disorder with depressed mood/complicated grief, prior to the incident in March 2018.

It is the occupational health doctor’s opinion that the appellant has the following conditions:  Low back – L1 transverse fracture (resolved), mechanical low back pain, post-traumatic myofascial pain syndrome  Upper back – Post-traumatic myofascial pain syndrome  Bilateral leg pain – Post-traumatic myofascial pain syndrome  Hand numbness and tingling  Abdomen/left hip girdle – Post-traumatic myofascial pain syndrome  Deconditioning Syndrome – Moderate to severe (a reduction in functional capacity of the musculoskeletal and other body systems arising from inactivity)  Major depressive episode (moderate severity, partial remission)  Post-traumatic stress disorder  Social anxiety disorder

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Appeal Number 2024-0273

It is the occupational health doctor’s opinion th at the assault of March 2018 directly caused her mid-back pain. If not for the incident she would probably not have developed musculoskeletal pain in the other areas (mid and upper back, both legs).

It is the occupational health doctor’s opinion that if not for the incident of March 2018 the appellant probably would not have developed PTSD. Although she did have an extensive history of mental health challenges, she had returned to full-time work just prior to the assault. Although the doctor is not aware of any pre-existing diagnoses of PTSD prior to the assault, previous difficulties with adjustment disorder likely predisposed or rendered her more vulnerable to developing PTSD.

It is the occupational health doctor’s opinion that she is probably at maximal medical improvement with respect to her mid-to-low back impairment. It has now been almost five years since the incident and she has consistently reported pain in her mid and lower back over the areas where she was struck during the assault to all treatment providers. Therefore, it is the doctor’s opinion that this impairment is permanent, resulting in a mild permanent partial disability.

PTSD Checklist (November 18, 2022) Score = 49, “scores 44+ considered indication of possible PTSD”

Psychological Report (June 17, 2018) completed by a psychiatrist The psychiatrist states the appellant contacted their office in May 2018 seeking services related to her physical attack, which occurred in March 2018. Since then the appellant reports experiencing severe anxiety, convulsions, nightmares and insomnia and will be accessing evidence-based trauma treatment.

Information Received After Reconsideration

Notice of Appeal (July 17, 2024) The appellant states she strongly disagrees with the ministry’s decision. A specialist has declared her as permanently disabled and she has a PTSD score nearly double that of the veterans cut off. The documentation supports this and her day-to-day life is greatly physically and mentally affected.

At Hearing At the hearing, the appellant found as the ministry representative’s first name was the same as the person who assaulted her in March 2018, it triggered her PSTD. The appellant asked the panel to give her a bit of time to recover. After taking a few moments to recover,

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Appeal Number 2024-0273

she continued with her presentation and state d that this is an example of how such triggers impact her life.

She stated that she has spent her life savings ($500,000) trying to heal. She’s now six years into it and doesn’t need any more help. When asked to describe her experience with walking/climbing stairs, she stated nerve pain is constantly there. All movement exacerbates her pain. She only gets relief laying down. The appellant also stated her counsellors indicated that she hasn’t fully recovered her cognitive capability. She experiences PTSD triggers daily although not quite as intense as exhibited after hearing the name of the person who assaulted her. The appellant added that her PTSD affects her both mentally and physically. When an episode occurs, she needs to lay down and her entire body freezes.

She has spoken to her doctor approximately six times in the past year. The appellant argued that, as her specialist stated she was permanently disabled, she doesn’t know how her doctor’s report can trump that.

The ministry relied on its record. When asked, it added that the appellant can re-apply for Persons with Disabilities designation, with new information, at any time.

Admissibility The panel determined the additional information from the appellant (detailed description of PTSD triggers, amount spent on trying to heal and the number of times she has spoken to her doctor in the past year) 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 question as to how her doctor can trump her specialist’s assessment, the panel considers argument.

The ministry did not submit any additional evidence.

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Part F – Reasons for Panel Decision

Appeal Number 2024-0273

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 it was not satisfied that the following criteria were met? - 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

Appellant Position The appellant submits that a specialist has declared her as permanently disabled and she doesn’t know how the information from her doctor “can trump that”.

She states she lives with constant pain and only gets relief when she lays down. As she does not have a typical back injury, it may seem that she is a bit more capable than someone with a disc bulge per se. However, she still has to modify every aspect of her life movements and daily routine. What her body can do now is minimal in comparison to before the assault. As well, even if she can complete a task, it now takes five to ten times longer than before.

The appellant added that her PTSD affects her both mentally and physically. She experiences episodes daily and when they occur, she needs to lay down and her entire body freezes.

Ministry Position Physical Functioning Based on the information provided, the ministry is not satisfied the appellant has a severe physical impairment. While the appellant’s doctor reported that she is only able to walk one block unaided, she is assessed by the same doctor as being independent in all areas of daily living, and able to independently walk indoors/outdoors, climb stairs, stand, lift, carry, and hold. Mental Functioning Based on the information provided, the ministry is not satisfied the appellant has a severe mental impairment. “Impairment” is more than a diagnosed medical condition. It is a

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Appeal Number 2024-0273

medical condition that restricts a person’s abili ty to function independently, appropriately, or effectively for a reasonable duration, as supported by a medical practitioner.

The ministry acknowledges the appellant experiences limitations due to PTSD. However, this does not appear to severely impair her mental function overall. No major impacts were reported in her cognitive and emotional functioning, with most being moderately impacted, minimally impacted, or not impacted at all. In addition, she is reported to be independent in all daily living activities related to mental functioning and has good communication abilities.

Daily Living Activities The ministry is not satisfied the appellant has a severe impairment that in the opinion of a prescribed professional, directly and significantly restricts her ability to perform the daily living activities set out in the legislation. The primary source of information is the appellant’s doctor, and this must be confirmed in their report.

The appellant’s doctor indicates the appellant has not been prescribed any medications or treatments that interfere with her ability to perform daily living activities. They indicate the appellant is independent with personal care, basic housekeeping, shopping, meals, paying rent and bills, medication and transportation. Regarding social functioning, the appellant is independent in all areas and has marginal functioning in both her immediate and extended social networks. There is no indication of safety issues or supervision required to be maintained in the community.

While it is acknowledged the appellant reports difficulty performing tasks due to pain and PTSD, her doctor reports that she is able to complete all daily living activities independently, noting there are minimal to no impacts.

The ministry finds there is not enough evidence to confirm that in the opinion of a prescribed professional, the appellant is directly and significantly restricted in her ability to perform daily living activities continuously or periodically for extended periods. Therefore, the legislative criteria have not been met. Help with Daily Living Activities The appellant’s doctor reports she receives help from friends. However, as it has not been established that daily living activities are significantly restricted, the ministry’s position is that it cannot be determined that significant help is required from other persons or a device.

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Appeal Number 2024-0273

Panel Analysis Where there are divergences between what is set out in the psychological report and the other evidence, the panel prefers the newer evidence. Due to the age of the information, the panel gives little weight to the Psychological Report (2018). The panel gives more weight to the Occupational Health Physician Assessment Report (February 2023) as it is more current, very thorough and provides details regarding the appellant’s health. The panel gives the most weight to the Medical and Assessor Reports (April 2024) as they are the most current.

Section 2(2) of the Act sets out the requirements that must be met for the minister to designate a person as a Person with Disabilities. One requirement is that the minister is satisfied the person has a severe mental or physical impairment.

The panel notes, “severe” and “impairment” are not defined in the legislation. The ministry considers the extent of any impact on daily functioning as shown by restrictions on mental or physical abilities. The panel finds that an assessment of severity based on physical and mental functioning, including any restrictions, is a reasonable application of the legislation.

Mental Impairment In the Medical Report, the appellant’s doctor indicates the appellant has significant deficits with cognitive and emotional functioning in the areas of executive, memory and emotional disturbance. Since the onset of PTSD, there is noted reduced function. In the Assessor Report, the doctor indicates there is either no impact, minimal impact or moderate impact for cognitive or emotional functioning. No major impact was identified. The appellant states she struggles to perform tasks, especially outside her home, due to PTSD.

Regarding social functioning, although the doctor indicates the appellant has marginal functioning with her immediate and extended social networks, they also indicate the appellant is independent making social decisions, developing and maintaining relationships, interacting appropriately with others, dealing appropriately with unexpected demands and securing assistance from others.

The panel finds the evidence above does not support a severe mental impairment. The panel acknowledges that the appellant’s doctor indicated the appellant has significant deficits with cognitive and emotional function due to PTSD and the appellant states she struggles to perform tasks (especially outside her home), due to PTSD. However, no major impact for cognitive or emotional functioning was identified and the doctor also indicates

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Appeal Number 2024-0273

the appellant is independent in many areas, as noted above, such as making social decisions and developing and maintaining relationships.

Therefore, the panel finds the ministry’s decision stating it was not satisfied the appellant has a “severe” mental impairment, reasonable.

Physical Impairment In her self-report, the appellant states her specialist has declared her as permanently disabled. However, the panel finds the ministry’s argument that “Impairment” is more than a diagnosed medical condition, reasonable.

In the Medial Report, the appellant’s doctor states she can walk less than one block and climb two to five steps unaided. She can remain seated for less than one hour. There are no limitations when lifting. In the Assessor Report, under mobility and physical ability, the doctor states the appellant is independent walking indoors/outdoors, climbing stairs, standing, lifting and carrying and holding.

The occupational health doctor states, in their opinion this impairment is permanent, resulting in a mild permanent partial disability.

In her self-report, the appellant states that her disability affects every aspect of her day-to-day life - household chores, caring for herself, work etc. Sitting at a desk and handwriting is one of the more difficult tasks. Pain is always present.

The panel finds it cannot be confirmed that the appellant has a severe physical impairment. Although the panel acknowledges the appellant has restrictions with physical functioning, her doctor indicated she is independent with all tasks related to mobility and physical ability, as listed above.

As well, although the panel finds a doctor’s opinion alone does not confirm the appellant’s physical functionality, the panel notes the occupational health doctor stated the appellant has a mild, not a “severe”, permanent partial disability.

Considering all the above, the panel finds the ministry decision that it was not satisfied the appellant has a severe physical impairment, reasonable.

Restrictions in Ability to Perform Daily Living Activities Section 2(2) of the Act also states the minister must be satisfied that in the opinion of a prescribed professional, a severe physical or mental impairment directly and significantly

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