Ministry of Social Development and Poverty Reduction

Appeal Number 2024 - 0311 Part C – Decision Under Appeal The decision under appeal is the Ministry of Social Development and Poverty Reduction (“the Ministry”) Reconsideration Decision dated August 13, 2024, which determined the Appellant was not eligible for the Persons with Disabilities (“PWD”) 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 that she met the following criteria:  Severe mental or physical impairment;  Impairment directly and significantly restricts daily living activities; and,  Help needed with daily living activities as a result of significant restriction.

The Ministry found it had not been demonstrated that the Appellant is one of the prescribed classes of persons who may be eligible for the PWD designation on alternative grounds under section 2.1 of the Employment and Assistance for Persons with Disabilities Regulation. As there is 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 (“the Act”), section 2

Employment and Assistance for Persons with Disabilities Regulation (“the 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 - 0311

The hearing took place on August 30, 2024 as an in person hearing.

Background

Persons with Disabilities Designation Application (June 28, 2024)

Self Report (April 18, 2024) The Appellant describes her disability as follows: o Chronic bilateral pinched nerves that stem from her neck down her arms and fingertips; o She has itching tingling, numbness; o X-rays show shifts in her spine (C4d C5 over C6); and o Pain began 2020 to the present.  She feels tired, physically weak, anxious, depressed, has trouble falling asleep and problems with memory and concentration. Her mood is directly correlated with her pain. Momentary relief from a type of treatment (e.g., massage) makes her happier, lighter and excited about life. She is also effective at managing stress.  The Appellant cannot afford treatments at present. She says various professionals (physio, massage, acupuncture, etc.,) help her, but relief is ultimately a bandage.  She has tried heat, cold, painkillers, resting, nerve flossing, yoga, some gentle muscle training (which helps) along with countless other methods recommended by professionals, all of which she has given above average effort to obtain limited results.  She is only 25 years old. Applying for PWD is her last resort. She desires to succeed in this world but has no physical ability to do so. She has tried different jobs over four years, each one leaving her more hurt than if she were not working at all. This includes jobs where she stands or sits, but she gets flares (of pain) doing nothing, too. It has taken her four years to come to terms with the challenges of living with her disability.

In response to the question “How does your disability affect your life/ability to take care of yourself?” the Appellant reports:  It affects her life tremendously.  Physically: She went from being able to effortlessly lift 100s of pounds to now. She needs two hands to lift a small cast iron pan, or her wrist and arm flare up. She needs three pillow to sleep at night, yet she still struggles to sleep and wakes up in even more pain in the morning. Her body tenses when she sits, stands, or does

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Appeal Number 2024 - 0311 something or does nothing. She feels co nstant pulling in her muscles, joint pain, and nerve sensations.  Emotionally: Her mood has gravely shifted since her pain started. She used to be full of energy and radiance, but now feels depressed constantly. Her motivation has fallen away. She lost most of her friendships. She feels irritable most of the time.  Mentally: She feels as though she is going insane, as no matter what she does she is in perpetual pain. She is so young, yet so debilitated. She struggles with this truth most of her day. This has caused her to become very anxious and hopeless. She struggles to focus and remember things.  Ultimately, she can take care of herself, but it is hard and requires the full capacity of her energy each day. Not only does she find it impossible to work because of this, but she can no longer do the things she loves. She can no longer dance, train, or become a registered massage therapist which has always been her dream. She feels tired and tapped out.

Medical Report (April 24, 2024, completed by the Appellant’s doctor (“Dr. A”)) Diagnosis  Cervical Radiculopathy (Chronic) – onset 2020.

Health History  Dr. A states: Patient suffers bilateral arm/hand pain, shooting in nature and some neck pain, L>R, for 4 years. Pain unremitting over four years, average severity 6/10. Will have flares above baseline pain to 8/10 pain about every two weeks that will last hours to days. Pain makes it not possible for patient to lift more than 15 lbs, perform repetitive movements with her arms, affects everything and causes difficulty with writing. Living with chronic pain also causes depression symptoms, affecting patient’s ability to concentrate and to motivate herself to go about her day.  Dr. A says the Appellant has not been prescribed any medications that interfere with her ability to perform daily activities, nor does she require any prosthesis or aids.

Degree and Course of Impairment  Dr. A writes “Uncertain. Further specialist consultation is pending.”

Functional Skills  Appellant: o Can walk on a flat surface 4+ blocks unaided. o Can climb 5+ stairs unaided.

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Appeal Number 2024 - 0311 o Can lift 2 – 7 kg. o Can remain seated 1 – 2 hours. o Has no difficulty with communication. o Has cognitive emotional function deficits in the areas of:  Emotional disturbance (e.g., depression anxiety);  Motivation (loss of initiative or interest); and,  Attention or sustained concentration.  Dr. A reports that the Appellant notes a distinct relationship between pain and mental health, challenges with being unable to enjoy her activities or exercise, and feelings of hopelessness.

Daily Living Activities (“DLA”)  Dr. A reports the following activities are restricted continuously: meal preparation and basic housework, and that no restrictions are indicated for the other DLAs.  Regarding the degree of restriction, Dr. A reports, “Patient unable to chop vegetables, lift pots or cook beyond simple meals. Unable to mop or vacuum.”  Regarding assistance the patient needs with DLAs, the doctor reports: “Patient’s partner assists with all the above activities or she will only cook simple meals.”

Additional Comments  Dr. A reports that the chronicity of the patient’s condition is challenging for the patient to cope with and leads to worsening of mental health. The combination of depression and chronic pain leads to the dysfunction noted above.

Frequency of Contact  Dr. A indicates that they have known the patient since June 2015 and have seen her 2 – 10 times in the past year.

Assessor Report, April 18, 2024 (completed by a Registered Nurse (“the Nurse”), first contact with the Appellant).

Living Environment  Nurse indicates that the Appellant lives with family, friends or a caregiver.

Mental or Physical Impairment Brief Summary Mental or Physical Impairments:  Nurse indicates that the Appellant needs two hands to lift a cast iron pan and has maximum lifting of 15 pounds, which causes weakness, fatigue, numbness, tingling, itching nerve pain (8/10), negative mood/emotions/focus.

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Appeal Number 2024 - 0311 Ability to Communicate  Nurse indicates writing is poor, reading is satisfactory and speaking and hearing are good. Writing is indicated as weak, causing numbness, tingling, and pain.

Mobility and Physical Ability  Nurse reports lifting and carrying take significantly longer than typical; no details are provided.  Walking indoors and outdoors, climbing stairs and standing are independent.

Cognitive and Emotional Functioning  Nurse reports Emotion (e.g., excessive or inappropriate anxiety: depression, etc.,) has a major impact on daily functioning.  Bodily functions, attention/concentration, motivation, have a moderate impact.  Memory and other emotion or mental problems have a minimal impact.  No impact is reported for consciousness, impulse control, insight and judgement, executive (e.g., planning, organizing, sequencing, etc.,) motor activity, language, psychotic symptoms, other neuropsychological problems.

Daily Living Activities -Personal Care  Nurse indicates the Appellant is independent for all aspects of personal care.

-Basic Housekeeping  Nurse indicates the Appellant is independent with Laundry, requires continuous assistance with Basic Housekeeping (vacuuming, mopping).

-Shopping  Nurse indicates Appellant is independent with all aspects except requires continuous assistance for carrying purchases home if (they are) over 15 pounds.

-Meals  Nurse indicates the Appellant is independent with all aspects of meals except she requires continuous assistance with food preparation, described as unable to cut veggies, modified cooking.

-Pay Rent and Bills  Nurse indicates the Appellant is independent for all aspects.

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Appeal Number 2024 - 0311 -Medications  Nurse indicates the Appellant is independent for all aspects.

-Transportation  Nurse indicates the Appellant is independent for all aspects.

-Social Functioning  Nurse indicates the Appellant is independent for all aspects.  Nurse indicates the Appellant’s mental impairment impacts the Appellant’s relationship with her immediate social network (partner, family, friends) as marginal functioning - little significant participation/communication; relationships often minimal and fluctuate in quality.  Nurse indicates the Appellant’s mental impairment affects the Appellant’s relationships with her extended social network (neighbourhood contacts, acquaintances etc.,) as marginal functioning - little more than minimal acts to fulfill basic needs.

Assistance Provided for Applicant -Assistance provided by other people  Nurse indicates the help required for DLAs is provided by family and friends.  Nothing is indicated in response to the question, “If help is required but there is none available, please describe what assistance would be necessary.”

-Assistance provided through the use of Assistive Devices  Nothing is indicated.

-Assistance provided by Assistance Animals  Nurse indicates no assistance animal.

Additional Information  In response to the request to provide any additional information that may be relevant to understanding the nature and extent of the Applicant’s impairment and effect on DLAs the Nurse states: Scalene tension leading to shortness of breath. Not able to continuously sit or stand and needs to self-massage minimum of two hours/day, sporadically required unable to predict when pain will happen with greater intensity? Nerve pain and muscle tension exacerbate each other, therefore, muscle tension requires daily intense management with self massage.

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Appeal Number 2024 - 0311

Request for Reconsideration (July 27, 2024) As part of her Request for Reconsideration, the Appellant made the following submission:  Since her original application, her doctor has confirmed a diagnosis of fibromyalgia, with an expected duration of more than two years.  Completing the PWD application and Request for Reconsideration was an extremely vulnerable and triggering experience. She did not feel comfortable eliciting the degree to which her pain affected her mentally as she had not shared this, even with friends or family. Since filling out the form with her best guesses at the time, she has been assessing how she lives her day-to-day life and is now able to respond more accurately to each question.  Regarding the extent of her impairment: o She has tested her ability to lift, and the limit is 5 pounds, not 15 as set out in her application. She initially said she needed to use two hands to lift a cast iron pan; the pan weighs 5 pounds and is very challenging. Previously she could carry 50-pound boxes great distances. o Her maximum for sitting is 30 minutes rather than 2 hours as reported in her application. o To avoid debilitating pain, she must lie down a minimum of three hours (a day in addition to sleep). Sitting standing, any form of movement is severely challenging and debilitating. o All her upper body muscles are perpetually aching and clenching, shooting and itching and always tingling. She has numbness and minimal sensation through her upper body, and minimal feeling in her finger/hand. o Every muscle in her upper body is tense and strained. Pain persists 24/7. o Preparing the handwritten component of the self report made her wrist tense up for three days. She cannot write. o She barely sleeps and requires three pillows otherwise her pain rises to 10/10. o Breathing is laborious. She cannot take a full breath because her neck muscles are too tight; (they) feel like rocks. She says this is a related to function of all her organs, as every cellular process in the body requires blood flow and oxygen. This contributes to her pain, making her disoriented, lethargic and weak such that she has no energy to get out of bed or take care of herself. o The severity of her pain is baseline six, but can rise to ten, and is often eight. There is never any relief. o It feels like she literally has no strength. This carries into having no strength in her mental or emotional capacity too.

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Appeal Number 2024 - 0311 o Everything on the list of what causes flareups is a basic task. Her life is constant catching up to overlapping flareups (which is impossible). All while trying to mitigate everything she does. She must be 100% conscious of what she is doing at all times.

 Effect on wrists and arms: o She cannot use her wrists and hands at all. She feels surging pains for days once a flare up is triggered. All her tendons and ligaments feel torn and bruised. o Her wrists give out and drop whatever she is holding instantly if its over 5 pounds. o She used to be able to do everything in the kitchen like a normal person. She only eats what is easy and does not require preparation. She cannot cut a carrot without surging pains in her wrist and arm.

 Housekeeping: o She cannot mop, vacuum or deep clean at all. She can lightly wipe the counter. Doing dishes is too strenuous so others in her household do this for her. o She does not clean or cook. She has OCD, and she used to work for a professional cleaning company. This is hard on her.

 Need for help: o She needs someone to prepare meals, do housework, and help her with personal hygiene (to complete personal hygiene) because she can’t do it on her own, but this isn’t an option financially. o Her quality of life has depleted exponentially, more than her writing can detail. o She is courageous to be alive right now and to take care of herself to the best of her ability.

 She uses the following assistive devices: o Three pillows to fall asleep (without this she gets two hours of sleep but gets six if she uses them); o A lacrosse ball, a trigger point massage stick, a massage gun and a foam roller (all of which are mandatory in her ability to function day to day); and, o Wrist braces when she sleeps (to prevent severe pain in the morning).

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

Appeal Number 2024 - 0311 Physical vs mental impairment: o Her physical impairment is so painful it has become mental. The mental impairment is a side thing, though extremely severe for not being the main issue. o Her answers to the (Cognitive and Emotional Function) question are an extension of the severe effects her physical disability has caused her, but they almost qualify for disability on their own. o This shows how debilitating and unbearable (her physical impairment) is. o Going through each box on Section 4 (Cognitive and Emotional Functioning in the Assessor Report) she notes:  She has a major impact on sleep disturbance, emotion, motivation, tense motor activity.  Moderate impact on consciousness/alertness, executive, memory, motivation.  No impact on impulse control, judgement, language, psychotic symptoms, learning disabilities. o When she says she is anxious and depressed, she means severely anxious and severely depressed. She reports, sharp and harsh mood swings, depressed to the point where she can’t get out of bed for days, brain fog so she can’t put sentences together sometimes, connect thoughts, or her mind shuts down. o Extreme anxiety and inability to feel okay in public spaces, problems socializing and no interest in socializing.

 Comparison to her previous life: o Before her pain she used to be happy and excited about everything and now she has very little will to live because of how much pain she is in. o She used to have four large communities of friends, and now she has two friends because of how disturbed she is from her physical pain. o Her mood swings are out of control. She used to be patient and kind and now she feels bitter and has no patience for anyone. She no longer feels optimistic. She no longer feels joy. She feels numb physically and mentally. She feels hopeless. This is 24/7. o She is flared up and in pain 24/7. She never experienced anything like this in her life. She feels like she is going insane.

 She notes the Ministry’s contention that the frequency and duration of these episodes have not been identified, and therefore it is not established they are

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Appeal Number 2024 - 0311 occurring periodically and for extended periods. She notes this is not asked for in the form and says they are not episodes, she feels them all the time, constantly.

Locum letter on behalf of Appellant’s doctor (July 26, 2024) Confirms the Appellant has been diagnosed with fibromyalgia. This is a chronic diagnosis and will last longer than 2 years.

Reasons for Appeal (August 15, 2024) The Appellant states: I do not believe the ministry read my appeal. Also, nowhere is it stated that my pain only occurs every two weeks. In my appeal, I even took the liberty of writing three sentences *in a row* stating that my pain lasts 24/7 because I thought that part (and every part) would be looked over.

Appellant Submission of Doctor Letter (August 27, 2024) The Appellant submitted a letter from her current doctor (Dr. B) who has taken her over as a patient (as her former doctor (Dr. A) had too many patients). The letter includes the following information:

 The Appellant has unremitting pain that is present 24 hours a day with no relief.

 She is able to lift 2.5 pounds with one hand. She tends to avoid lifting altogether due to pain. She is able to lift 5 pounds with two hands, which causes severe pain. The Appellant gets worsening of her pain if she lifts anything. This can cause a flare of pain.

 She finds it painful to sit with maximum of 30 minutes of sitting. Anything except lying down causes pain, can stand for up to 30 minutes. She gets pain flares if she does anything other than lying down.

 She is unable to use a knife or chop anything due to pain. She is unable to do any basic housework. She struggles to maintain personal hygiene. She is unable to handwrite. She is unable to use her hands and wrists functionally. She gets 4 – 6 hours of sleep per night which causes significant daily fatigue. She has poor activity tolerance due to pain in her neck causing pain with breathing.

 She needs three pillows to sleep, four different massage tools and needs to massage for four hours per day to avoid 10/10 pain. She uses wrist braces which are mandatory for her to sleep.

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Appeal Number 2024 - 0311

 The Appellant’s partner assists with all home activities including cleaning, cooking, preparing food and laundry. He carries everything from the car.

 The Appellant is diagnosed with depression that is directly related to chronic pain. She sometimes stays in bed for several days and has little desire to leave the house. She has little desire to communicate or socialize. She has mood swings, irritability and anger. She is unable to maintain personal relationships and has no desire to. Depression has a major impact on her memory, cognition, focus and emotion. It also has a major impact on her sleep. The sleep disturbance affects her alertness. She has brain fog that affects her ability to string thoughts together. She also has related anxiety with severe difficulty being in public spaces.

 Prior to having fibromyalgia, the Appellant was very active: she was strength training regularly and was able to lift up to 200 pounds at the gym. She could carry 50 pounds, could stand or sit all day. She states she had no chronic joint or muscle pain. She loved to cook and clean. She was optimistic and felt joy. She was social and had dozens of healthy personal relationships. All of her symptoms have progressed yearly since being diagnosed in 2020.

 The information was gathered from a patient interview. The doctor submits the information establishes a severe physical and mental impairment. It shows her impairment does directly impair her DLAs continuously. It also establishes she does use assistive devices and requires significant help from another person.

Hearing Submissions - Appellant

At the hearing the Appellant reiterated the points set out in Request for Reconsideration, adding:  She has very recently separated from her partner who was her primary source of support. She is now living with her parents.  Her diagnosis of depression is recent. Her doctor has recommended treatments that she is considering.  Her depression manifests itself in physical symptoms, aggravating her fibromyalgia, which in turn aggravates her depression.  She can only sit a maximum of 30 minutes and stand a maximum of 30 minutes, that is, she must change her position.  She does not need help walking or toileting, she is able to drive.

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Appeal Number 2024 - 0311  Her mental impairment has compromised her social function, making her unable to maintain relationships.  Her pain makes her lash out at everybody. She has no friends beyond her spouse.  She has anxiety and difficulty in public places, she doesn’t want to leave the house.  She does not take any prescribed medications for pain relief, as she is scared about side effects but does use products such as Tylenol.  Her pain is unremitting but flares up depending on her activities.  The Appellant described the three pillows she requires for sleep as non prescription, and her wrist braces as non prescription.  Most nights she gets four to six hours of sleep.  The Appellant also expressed a number of concerns regarding what is required to meet the definition of a significant impairment and commented on the limited nature of information that can be collected from the PWD application form. She states that Dr. A and the Nurse agree with her on this point.