Ministry of Social Development and Poverty Reduction

Appeal Number 2024-0284 Part C – Decision Under Appeal The decision under appeal is the Ministry of Social Development and Poverty Reduction (the “Ministry”) Reconsideration Decision dated May 30, 2024, denying persons with disabilities (“PWD”) designation.

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

The Ministry found the Appellant was not one of the prescribed classes of persons eligible for PWD 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”), s. 2 Employment and Assistance for Persons with Disabilities Regulation (“Regulation”), s. 2 Employment and Assistance Act, s. 22(4)

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

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Appeal Number 2024-0284 Part E – Summary of Facts The hearing took place by teleconference on August 16, 2024. In attendance at the hearing were the Appellant and a representative of the Ministry.

Evidence Before the Ministry at Reconsideration:

The information the Ministry had at the time of the decision included: • “PWD Designation Application - Medical Report” completed by a Psychiatrist • “Medical Report – Employability” completed by the Psychiatrist • Medical Letter from the Psychiatrist • Assessor Report completed by a Social Worker • Letter from the Social Worker • Appellant’s Statements: o Self Report in the Application o Written statement in the Request for Reconsideration; • Article titled “Serious Toll of Chronic Constipation Overlooked”, published by the Canadian Society of Intestinal Research.

PWD Designation Application - Medical Report:

The Psychiatrist stated that the Appellant has been their patient since June 21, 2023, and they have seen the Appellant between two and ten times in the past year.

Diagnosis: The Psychiatrist provides the following diagnoses: • Psychotic depression with somatic delusional beliefs (onset 2022); • Somatic symptoms disorder with gastro-intestinal somatic delusional beliefs, with predominant pain (onset 2022); and • Dependent personality traits.

Health History: The Psychiatrist states that the Appellant “has been experiencing treatment-resistant delusional belief that any oral food intake has been causing severe generalized sense of pressure with predominant abdominal pain. He has been functioning very poorly [secondary] to pain related limitations. His delusional somatic beliefs have been associated with increasingly sad mood, generalized anxiety and impairment of cognitive functioning likely [secondary] to depressed mood, anxiety and medications related side effect.”

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Appeal Number 2024-0284 The Psychiatrist states that the Appellant takes four medications (Mirtazapine, Clonazepam, Olanzapine and Quetiapine) that interfere with his ability to perform daily living activities, causing “sedation, mildly impaired attention span, short term memory, contributing to [increased] somatic [symptoms disorder]-induced cognitive limitations.

Functional Skills: The Psychiatrist indicates that the Appellant’s functional skills are “unknown” for walking, climbing stairs, lifting and remaining seated.

They indicate that the Appellant has no difficulties with communication, but has significant deficits with cognitive and emotional functioning in the following areas: • executive function; • memory; • psychotic symptoms; • motivation; and • attention or sustained concentration.

They comment that the Appellant has: • Low motivation to perform appropriate self-care; • Anhedonia; • Apathy; and • Unspecified anxiety. They state that the Appellant is: • Ruminating consistently about fear of eating secondary to delusional somatic beliefs; • Feeling helpless and occasionally hopeless about his future; • Feeling emotionally detached from others; • Socially isolated; and • Unable to work secondary to ongoing sense of pressure/persistent predominant pain [decreased] attention. They also state that the Appellant has “decreased ability to register new information and short term memory.” [sic]

Daily Living Activities: The Psychiatrist indicates that the impairment directly and continuously restricts the Appellant’s ability to perform the following daily living activities: • Personal self care; • Meal preparation; • Management of medications;

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• Basic housework; • Mobility outside the home; and • Social functioning.

Appeal Number 2024-0284

They indicate that mobility inside the home is not restricted, and restrictions on daily shopping are “unknown”.

In the section for explanation of the impact on social functioning, the Psychiatrist explains that social isolation is secondary to ongoing somatic sensations and pain, poor nutrition, apathy, anhedonia, low motivation, and anxiety.

In the section for additional comments regarding the degree of restriction, the Psychiatrist explains that “[secondary] to persistent pain, [the Appellant] has limited ability to register new information, poor attention, poor short term memory.”

In answer to the question “What assistance does your patient need with Daily Living Activities?”, the Psychiatrist states “presently not relevant”.

Additional Comments: The Psychiatrist states: “Somatic symptoms disorder, severe distress [secondary to] disproportional and persistent thoughts about his condition; Persistently high level of anxiety about health symptoms; causing significant disruption of daily life. This suffering is authentic, health related concerns. Cognitive features include attention focused on somatic [symptoms], with catastrophic interpretations, precipitating Depressive [disorder] and anxiety.”

Medical Report – Employability: The Psychiatrist provided a Ministry form titled “Medical Report – Employability”, in which they provided the primary diagnosis of psychotic depression with gastrointestinal somatic complaints. They provide secondary diagnoses of somatic symptom disorder and depressive personality disorder traits. The Psychiatrist describes the Appellant’s overall medical condition as “severe.”

In the section of the report that asks for a description of the nature of restrictions specific to the medical conditions, the Psychiatrist states: “somatic symptoms has [sic] been restricting motions, ability to ambulate, restrict [sic] all aspect of self-care, ADLs, IADLs, cognitive, social and occupational functioning.”

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Appeal Number 2024-0284 Medical Letter: The Psychiatrist reviews the admission notes from the Appellant’s inpatient treatment for psychotic depression with gastrointestinal somatic symptoms at two hospitals, first in January 2023 and then from March 2 to May 10, 2023. They note that during the most recent hospital stay, the Appellant “was clearly still not functioning well. Almost anything could trigger abdominal complaints. He claimed that even eating grapes or 2 [sic] will cause severe constipation, resulting in subjective ‘sense of pressure’ on his back and his neck among other pleomorphic symptoms.”

The Psychiatrist states that since the Appellant came under their care, there has been no improvement in his experience of somatic symptoms. They state that the Appellant experiences “sense of pressure” in his neck, back, extremities and joints, and “musculoskeletal and visceral pain, causing his severe functional impairment and severe occupational [and] cognitive impairment.” The Psychiatrist states:

“When he experiences pain and sense of pressure, [the Appellant] is not able to ambulate freely, he is not able to carry on with any cognitive tasks, with any occupational tasks, IADL S and ADLS. His apartment was seen by our during [sic] outreach and it was very unkept, with messy kitchen and unwashed dishes and pots. His refrigerator and kitchen had many expired foods, [the Appellant] was attempting to eat tomato…paste for dinner. He has been feeling overwhelmed with sense of pain and pressure and unable to do anything while experiencing at [sic] these somatic symptoms.”

The Psychiatrist adds: “health related quality of his life is severely impaired, both physically and mentally. His disorder has been progressing into marked functional impairment, and without adequate support, the disorder can lead to invalidism.”

Assessor Report: The Social Worker states that they have known the Appellant for “6+” months and have seen him between two and ten times in the past twelve months. They state that they provide “ongoing mental health services for stabilization and re-integration into the community.”

Mental or Physical Impairment: The Social Worker states that the Appellant’s mental or physical impairment that impacts his ability to manage daily living activities is “delusional beliefs about food causing physical pain.”

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Appeal Number 2024-0284 Ability to Communicate: They indicate that the Appellant’s ability to communicate is good.

Mobility and Physical Ability: They indicate that the Appellant is independent in all listed aspects of mobility and physical ability.

Cognitive and Emotional Functioning: They indicate that the Appellant’s mental impairment has a major impact on: • bodily functions and • emotion. They indicate moderate impact on: • executive function, • motivation and • psychotic symptoms.

Daily Living Activities: The Social Worker indicates that the Appellant is independent in all listed daily living activities, including social functioning, with good functioning with immediate and extended social networks.

Assistance Provided for Applicant: The Social Worker indicates that help required for daily living activities is provided by health authority professionals. They do not describe the help provided.

Letter from the Social Worker: The Social Worker provided a letter in support of the Request for Reconsideration. The Social Worker states: • The Appellant was an inpatient at two hospitals continuously between February 2, 2023 and May 5, 2023. • The Appellant was discharged with a diagnosis of Depressive Disorder with Somatic Delusions. • The Appellant’s lack of insight into his illness makes it difficult to treat. • The Social Worker has been the Appellant’s Case Manager since August 2023 and has visited the Appellant’s home once. • The Appellant has a friendly relationship with one neighbour but otherwise has been unable to engage in social activities. • The Appellant has been independent in managing his activities of daily living, but “in the accompany [sic] of depression and the symptoms he experiences….his somatic

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Appeal Number 2024-0284 delusions presents as gastrointestinal pa in which he feels is debilitating to the point of not leaving his home and not eating food.” • “Without the benefits one receives under the Persons with Disabilities designation, [the Appellant] may very well end up homeless and his life could potentially continue to deteriorate to the point where he could put a large burden on the medical system.”

Self Report: The Appellant states: • He suffers from severe clinical anxiety and depression which has affected his digestion and overall health. • His body does not process food properly and severe constipation has crippled him to the point that he can hardly walk from one place to another. • He does not get any energy from the food he eats. • Eating causes pain in his neck and lower back. • Doctors have administered many tests but have not been able to diagnose and treat the problem. • He is unable to work.

Request for Reconsideration: In the Request for Reconsideration, the Appellant repeats some of the information in his self report, and states: • The severity of his physical condition has been “undermined” by the Psychiatrist, the Social Worker and the Ministry. • He suffers from severe indigestion. • His body cannot process food properly, which has “a huge impact” on his physical ability. • After he eats, he feels “pain and crippling pressure” on his back, neck and abdomen. • He is limited to moving around his apartment and going with difficulty to the mental health clinic once a month. • He does not need assistance with basic daily living activities yet “but all I can manage is to walk around with great difficulty (immense pressure on my hips and knees).” • He cannot manage all aspects of social functioning and daily activities because of his condition. • It is frustrating and difficult for him to explain his suffering to others, because his is such a rare condition. • He has seen many doctors and had many tests but they have not found anything.

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Appeal Number 2024-0284 Canadian Society of Intestinal Research Article The Appellant provided a printout of an article titled “Serious Toll of Chronic Constipation Overlooked”, explaining the debilitating nature of chronic idiopathic constipation, and their advocacy for people suffering from the condition.

Additional Evidence:

Appellant: On Appeal, the Appellant provided an additional written submission, consisting of the first two pages of the Canadian Society of Intestinal Research article, and a one-page typed statement, some of which repeats the information he wrote in the Request for Reconsideration. The Appellant adds: • He suffers from “severe idiopathic chronic indigestion and constipation”. • He cannot walk or stand for extended periods of time.

At the hearing, the Appellant also said: • The Reconsideration Decision is based on the Psychiatrist’s report, but his problem is not psychological, it is physical, because his body cannot process food properly. • He is applying for PWD designation based on a purely physical impairment. • The Psychiatrist’s report does not address the physical issues, including crippling pain. • He has been seen by many doctors, who cannot diagnose his condition.

In answer to questions from the Panel, the Appellant said: • After he eats, he has pain and crippling pressure in his abdomen and back and cannot walk normally. • This condition is present all day but gets worse after he eats. • All he can eat is one banana in the morning, and then he cannot move. • He shops for his bananas, but he does not cook because there is no point. • Sometimes he gives in and eats but gets no good result. • He does not do much housekeeping, there is not much to do, but he does his own laundry. • If he has to go to the doctor’s once a month, he does that with “extreme difficulty” because of heaviness in his abdomen and back and difficulty walking. • He has seen two gastroenterologists. The first sent him for a colonoscopy, stool test, radiography and CT scan, and “found nothing”. His symptoms persisted, and he tried to get a second opinion, but that doctor found nothing either. • He receives meal tickets and liquid supplements from the health clinic, and psychological help to deal with his condition.

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Appeal Number 2024-0284 • It is not true that the frequency and dur ation of his pain is unknown, it is permanent. • Contrary to the statement in the Assessor Report, he cannot manage daily living activities independently. o He says hello to his neighbour and talks to them once in a while, and that is all he can do. o Physically he cannot get out and do things.

Ministry:

In answer to questions from the Panel, the Ministry stated: • The Ministry could have phoned the Psychiatrist to ask for clarification of apparently conflicting statements, but on review of the appeal file notes it does not appear that the Ministry did so. • There is no reference to the “Medical Report-Employability” in the Reconsideration Decision, and the Ministry may not have considered that report at reconsideration.

Admissibility of Additional Evidence:

Neither party objected to the additional evidence of the other party. The Appellant’s additional oral and written evidence provides further information about the Appellant’s experience and understanding of his condition. The Ministry’s additional oral evidence provides further information about the Ministry’s consideration of the Appellant’s evidence. The Panel finds that the additional evidence is reasonably required for the full and fair disclosure of all matters in the appeal. Therefore, the Panel finds that the additional evidence is admissible under the Employment and Assistance Act, s. 22(4).

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Part F – Reasons for Panel Decision

Appeal Number 2024-0284

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

Appellant’s Position:

The Appellant maintains that his impairment is physical, not mental, and that the reports of the Psychiatrist and the Social Worker do not accurately identify his debilitating condition. He does not deny that he suffers from psychotic depression but says that his physical impairment is due to chronic idiopathic constipation and inability to digest food properly. He describes constant crippling pain that doctors have failed to diagnose, but which makes him unable to walk.

Ministry Position:

Physical Impairment: The Ministry maintains that, while they acknowledge that the Appellant has some degree of restriction due to impairments, the evidence does not establish a severe impairment. The Ministry points to the Assessor Report, which indicates that the Appellant can independently walk indoors and outdoors, climb stairs, stand, lift, carry and hold. While the Ministry acknowledges that the Appellant feels “some pain after eating”, the Ministry says that the frequency of food intake and the frequency and duration of the pain is not provided, and therefore the Ministry cannot determine that the Appellant has a severe physical impairment.

Mental Impairment: The Ministry says that the Appellant does not have a severe mental impairment. They note the significant deficits in cognitive and emotional functioning identified by the Psychiatrist. However, they point out that the Assessor indicates that there is a major impact on only two areas of cognitive and emotional functioning, with the majority not impacted at all. The Ministry also says that the Appellant has no difficulties with communication and is independent in decision-making and social functioning.

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Appeal Number 2024-0284

Daily Living Activities: The Ministry says that there is not enough evidence to confirm that, in the opinion of a prescribed professional, the Appellant is directly and significantly restricted in his ability to perform daily living activities.

The Ministry acknowledges the Psychiatrist’s statement in the Medical Letter that, when the Appellant experiences pain, he is not able to ambulate freely, perform cognitive tasks or activities of daily living. However, the Ministry says that the frequency and duration of episodes of pain has not been provided, and therefore it cannot determine that the Appellant is significantly restricted periodically or for extended periods of time. The Ministry also notes that the Social Worker reports that the Appellant is independent in performing daily living activities, and that the Appellant stated in his Self Report that he does not need assistance yet. With respect to social functioning, the Ministry says that the information provided does not describe support and supervision needed, and the Social Worker reports that the Appellant is independent in managing daily living activities. Therefore, the Ministry says it cannot confirm a significant restriction in social functioning.

Help with Daily Living Activities: The Ministry also says that the information provided does not indicate direct and significant restrictions in daily living activities. Therefore, although the Social Worker indicates the Appellant requires help from health authority professionals, the Ministry says it also cannot determine that the Appellant needs significant help with restricted activities.

Panel Decision:

PWD Designation – Generally

The legislation provides the Ministry with the discretion to designate someone as a PWD if the requirements are met. In the Panel’s view, PWD designation is for persons who have significant difficulty in performing regular self-care activities.

Some requirements for PWD designation must have an opinion from a professional, and it is reasonable to place significant weight on these opinions. The application form includes a Self Report. It is also appropriate to place significant weight on the Self Report and evidence from the Appellant, unless there is a legitimate reason not to do so.

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

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Severe Mental or Physical Impairment

Appeal Number 2024-0284

“Severe” and “impairment” are not defined in the legislation. The Ministry considers the extent of any impact on daily functioning as shown by limitations with or restrictions on physical abilities and/or mental functions. The Panel finds that an assessment of severity based on physical and mental functioning including any restrictions is a reasonable application of the legislation.

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

The Appellant insists that his application for PWD designation is based on his physical impairment, not his psychiatric condition. He maintains that he suffers from severe idiopathic chronic indigestion and constipation. He says that he has consulted two gastroenterologists, and has undergone a battery of tests, but the specialists have not been able to diagnose the cause of his inability to process food.

While the Panel can consider the Appellant’s evidence of his experience of pain and impairment, the Panel cannot rely on the Appellant’s self-diagnosis, particularly when it conflicts with the medical evidence of the Psychiatrist. The Panel also notes the comment from the Social Worker, that the Appellant lacks insight into his illness.

The Appellant’s condition is a complex combination of physical and psychiatric symptoms. The Appellant is being treated by a psychiatrist, and was hospitalized for several months in 2023, due to diagnoses of psychotic depression with somatic delusional beliefs, and somatic symptoms disorder with gastro-intestinal somatic delusional beliefs, with predominant pain. According to these diagnoses, the Appellant’s psychiatric illness causes symptoms of crippling gastrointestinal pain. The Psychiatrist confirms that, although the Appellant’s pain appears to originate from his psychiatric condition rather than an organic cause, his suffering is real.

The Appellant’s condition does not fit neatly into the “mental or physical impairment” categories. The Appellant suffers from psychiatric conditions that cause severe physical pain symptoms, in turn causing functional impairment. Without a report supporting a physical cause of the Appellant’s impairment, the Panel finds that the Appellant’s impairment, including physical symptoms, is a severe mental impairment due to somatic symptoms of psychotic depression, and somatic symptoms disorder.

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Appeal Number 2024-0284

The difficulty in separating the Appellant’s physical and mental impairments is reflected in the evidence of the Psychiatrist and the Social Worker, which is, as the Ministry pointed out, contradictory in places. So, for example, the Psychiatrist says that the Appellant’s ability to walk and climb stairs is “unknown”, buts also says that the Appellant’s mobility outside the home is continuously restricted. The Psychiatrist says that the Appellant’s ability to perform almost all daily living activities is directly and continuously restricted, while the Social Worker says that the Appellant is “independent” in all daily living activities. The Panel acknowledges the contradictions within, and between, the evidence of the Psychiatrist and the Social Worker. However, considering the evidence as a whole, the Panel finds that there is clear picture of a severe mental impairment affecting physical and cognitive functioning.