Davis and National Disability Insurance Agency

Davis and National Disability Insurance Agency [2022] AATA 40 (14 January 2022)
Division:NATIONAL DISABILITY INSURANCE SCHEME DIVISION
File Number: 2020/1110
Re:Karen Davis
APPLICANT

AndNational Disability Insurance Agency
RESPONDENT

DECISION
Tribunal:Member K. Parker
Date:14 January 2022
Place:Melbourne

The Tribunal sets aside the Decision Under Review and in substitution, decides that the Applicant’s access request, made under s 18 of the National Disability Insurance Scheme Act 2013 (Cth) to become a participant of the National Disability Insurance Scheme, be granted.
...................[SGD]...................................
Member K. Parker
Catchwords
NATIONAL DISABILITY INSURANCE SCHEME – access request – whether access criteria met – permanency of impairments – whether impairments resulted in substantially reduced functional capacity in one or more of the prescribed activities – Decision Under Review set aside and substituted – access granted
Legislation
Administrative Appeals Tribunal Act 1975 (Cth)
National Disability Insurance Scheme Act 2013 (Cth)
National Disability Insurance Scheme (Becoming a Participant) Rules 2016 (Cth)
Cases
Mulligan v National Disability Insurance Agency (2015) 233 FCR 201
Secondary Materials
NDIS Operational Guidelines - Access to the NDIS Operational Guideline | NDIS
REASONS FOR DECISION
Member K. Parker
14 January 2022
INTRODUCTION

The Applicant, Ms Karen Davis, made an access request to the National Disability Insurance Agency (NDIA) under s 18 of the National Disability Insurance Scheme Act 2013 (Cth) (NDIS Act) to become a participant in the National Disability Insurance Scheme (NDIS).
Ms Davis seeks review of an internal review decision made on 31 January 2020 by a delegate of the CEO of the NDIA (Decision Under Review), affirming an earlier decision by another delegate of the CEO, not to grant Ms Davis access to the NDIS on the basis that she does not meet the access criteria under s 21 of the NDIS Act.
The Tribunal’s jurisdiction to review the Decision Under Review arises under s 103 of the NDIS Act.
For the reasons set out below, the Tribunal sets aside the Decision Under Review and in substitution, decides that Ms Davis meets the access criteria under s 21 of the NDIS Act, and grants her access request to become a participant of the NDIS.
BACKGROUND
Ms Davis is a 59-year-old woman who lives alone with her pet dog. Ms Davis has an adult daughter in her mid-twenties who no longer lives with her.
Ms Davis was diagnosed with early degenerative change between the ages of 16 and 18 “through X-rays”.[1] Ms Davis developed ulcerative colitis in 1987 requiring her to take steroid medications. Ms Davis reports she gained a significant amount of weight by the time she was in her mid-twenties. Ms Davis reports she has not been able to lose that weight. She is now morbidly obese and has a BMI in the vicinity of 54kg/m2. Ms Davis continues to suffer from numerous physical and mental health medical conditions.
[1] Refer Transcript Day 1 at P-17.
Ms Davis states that she was previously employed as an office manager and in customer service. Ms Davis has been unemployed since 2011 and has received the disability support pension (DSP) since 2013.[2] In 2020, Ms Davis completed a Bachelor of Psychological Studies from Victoria University which she commenced in 2012.
[2] Refer Exhibit A1 at [65], [70].
On 25 June 2019, Ms Davis first made an access request under s 18 of the NDIS Act. A delegate of the CEO of the NDIA decided that Ms Davis did not meet the access criteria under s 21 of the NDIS Act and did not grant her access request.
On 20 November 2019, Ms Davis made a second access request. On 16 December 2019, a delegate of the CEO of the NDIA decided not to grant this access request (Original Decision).[3]
[3] Refer T-Documents T11/59. The T-Documents comprise a set of documents lodged by the NDIA with the Tribunal pursuant to its obligations under s 37 of the Administrative Appeals Tribunal Act 1975 (Cth).
Ms Davis sought internal review of the Original Decision under s 100 of the NDIS Act.
On 31 January 2020, a different delegate of the CEO of the NDIA affirmed the Original Decision made on 16 December 2019, which is the Decision Under Review.
On 27 February 2020, Ms Davis sought review by this Tribunal of the Decision Under Review.
ISSUES
The primary issue in this application is whether Ms Davis meets the access criteria under s 21 of the NDIS Act and should be granted access as a participant to the NDIS.
Section 21 of the NDIS Act provides that a person satisfies the access criteria if they meet:
(a)the “age requirements” under s 22; and, at the time of the considering the access request;
(b)the “residence requirements” under s 23 of the NDIS Act; and
(c)either the “disability requirements” under s 24 of the NDIS Act or the “early intervention requirements” under s 25.
It was accepted between the parties that Ms Davis meets the “age requirements” and the “residence requirements”. Ms Davis does not contend that she meets the “early intervention requirements”. Accordingly, the issue in contention between the parties in this application is whether Ms Davis meets the “disability requirements” under s 24 of the NDIS Act.
The “disability requirements” are set out in s 24 of the NDIS Act as follows:
(1)       A person meets the disability requirements if:
(a)the person has a disability that is attributable to one or more intellectual, cognitive, neurological, sensory or physical impairments or to one or more impairments attributable to a psychiatric condition; and
(b)the impairment or impairments are, or are likely to be, permanent; and
(c)the impairment or impairments result in substantially reduced functional capacity to undertake, or psychosocial functioning in undertaking, one or more of the following activities:
(i)        communication;
(ii)       social interaction;
(iii)       learning;
(iv)      mobility;
(v)       self-care;
(vi)       self-management; and
(d)the impairment or impairments affect the person’s capacity for social or economic participation; and
(e)the person is likely to require support under the National Disability Insurance Scheme for the person’s lifetime.
(2)For the purposes of subsection (1), an impairment or impairments that vary in intensity may be permanent, and the person is likely to require support under the National Disability Insurance Scheme for the person’s lifetime, despite the variation.
Ms Davis did not press for a finding that she had a disability that is attributable to one or more psychiatric impairments – see paragraph [‎28] below. Accordingly, the following sub-issues that arise for determination in this case are:
(a)whether Ms Davis has a disability that is attributable to one or more intellectual, cognitive, neurological, sensory, or physical impairments;
(b)whether Ms Davis’s impairments are, or are likely to be, “permanent”;
(c)whether Ms Davis’s impairments result in “substantially reduced functional capacity” to undertake one or more of the six activities prescribed in subsection 24(1)(c) of the NDIS Act;
(d)whether Ms Davis’s impairments affect her capacity for social or economic participation; and
(e)whether Ms Davis is likely to require support under the NDIS for her lifetime.
EVIDENCE
The NDIA arranged for four independent assessments of Ms Davis, as follows:
(a)a medicolegal examination on 2 February 2021 by Dr Frank Machart, an orthopaedic surgeon and Head of Department, Bankstown Hospital;
(b)an assessment (by video conference) on 9 March 2021 by Dr Caroline Kronborg, a sleep disorders physician at Melbourne Sleep Disorders Centre. Dr Kronborg also arranged for Ms Davis to undergo an in-lab CPAP treatment review study in a sleep laboratory on 8 April 2021;
(c)a medicolegal examination on 1 April 2021 by Dr Andrew Jakobovits, gastroenterologist and hepatologist; and
(d)an assessment by Ms Sue Ferguson, occupational therapist, on 23 October 2020 (via Telehealth), on 27 October 2020 (by telephone), and she undertook a home-based assessment of Ms Davis on 30 October 2020.
The parties jointly compiled a combined hearing tender bundle comprising 529 pages (Hearing Tender Bundle). The Hearing Tender Bundle include lists of the documents each parties seek to rely upon. The Hearing Tender Bundle comprises of:
(a)a set of documents lodged by the Respondent pursuant to its obligations under s 37 of the Administrative Appeals Tribunal Act 1975 (Cth) (AAT Act) (T-Documents);
(b)a witness statement by Ms Davis dated 5 March 2021 (Ms Davis’s Witness Statement);
(a)a statement of lived experience by Ms Davis dated 5 June 2021 (Ms Davis’s Statement of Lived Experience);
(b)letters/medical reports on various dates from Dr Anne Small, Ms Davis’s treating general practitioner;[4]
(c)a letter by Dr Amid Karami, general practitioner, dated 19 November 2020;
(d)an X-Ray of Ms Davis’s shoulders and ultrasound of her left shoulder performed on 11 May 2021;
(e)briefing letters and medical reports by Dr Machart, Dr Jakobovits; Dr Kronborg; and Ms Ferguson;
(f)extracts of various medical records from documents produced under summonses that were issued by the Tribunal in this proceeding, including medical reports, radiological findings, clinical notes and other medical study or test results.
[4] Dr Small’s Curriculum Vitae prepared on 17 May 2021 was tendered and marked Exhibit A5.
The Tribunal would like to express its gratitude to the NDIA and Ms Davis for their collaboration and efforts in compiling the Hearing Tender Bundle.
Additional evidence, not referred to above, was also tendered at the hearing as listed below:
(a)a radiology report by Liu dated 28 September 2006 (Exhibit R2);
(b)Victorian Aids and Equipment Guidelines issued September 2021 (Exhibit R8); and
(c)colonoscopy results dated 17 March 2021 (Exhibit THD1).
At the hearing:
(a)Ms Davis gave evidence and was cross-examined by NDIA’s counsel;
(b)Ms Davis called Ms Small as an expert witness; and
(c)the Respondent called Dr Machart, Dr Kronborg, Ms Ferguson, and Dr Jakobovits as expert witnesses, and Ms Davis’s counsel cross-examined those witnesses.
SUBMISSIONS
Both parties lodged submissions in this matter as listed below:
(a)Ms Davis’s Statement of Facts, Issues and Contentions in reply dated 5 March 2021 (Ms Davis’s SFIC);
(b)NDIA’s Statement of Facts, Issues and Contentions dated 29 April 2021 (NDIA’s SFIC);
(c)Ms Davis’s Statement of Facts, Issues and Contentions in reply dated 13 May 2021 (Ms Davis’s Reply SFIC);
(d)NDIA’s Written Outline of Opening Submissions dated 14 May 2021 (NDIA’s Opening Submissions);
(e)Ms Davis’s Closing Submissions dated 11 June 2021 comprising 40 pages (Ms Davis’s Closing Submissions);
(f)NDIA’s Closing Submissions dated 25 June 2021 comprising 51 pages (NDIA’s Closing Submissions);
(g)Ms Davis’s Closing Submissions in reply dated 2 July 2021 (Ms Davis’s Reply Closing Submissions).
CONSIDERATION
The “disability requirements” under s 24 of the NDIS Act are made up of five mandatory criteria as referred to in paragraph [‎16] and [‎17] above. The Tribunal will deal with each in turn.
Whether Ms Davis has a disability
The first criterion under s 24(1)(a) of the NDIS Act which a person seeking access to the NDIS must meet is that they have a disability “that is attributable to one or more intellectual, cognitive, neurological, sensory, or physical impairments, or to one or more impairments attributable to a psychiatric condition”.
In Mulligan v National Disability Insurance Agency (2015) 233 FCR 201 (Mulligan), Mortimer J made some general observations about assessing whether this first criterion has been met by a person seeking access to the NDIS as follows ] (emphasis in bold added):
1. Some general observations should be made about these matters. The term “disability” is used in the Act, and in s 24, as a descriptive concept for the overall effect of a person’s impairments on that person’s abilities to participate in all aspects of personal and community life. Threshold provisions such as s 24 operate not on the concept of disability, but on the concept of an impairment, which…is generally understood as involving the loss of or damage to a physical, sensory or mental function.
Ms Davis seeks access to the NDIS in relation to the following “conditions and disabilities”:[5]
(a)spondylarthrosis of the lumbar, cervical, and thoracic spine (Spondylarthrosis);[6]
(b)degenerative impingement of both shoulders (Shoulder Condition);
(c)bilateral knee osteoarthritis (Osteoarthritis);
(d)ulcerative colitis (Colitis);
(e)obstructive sleep apnoea (OSA); and
(f)morbid obesity (Obesity).
[5] Refer Ms Davis’s Closing Submissions at [2].
[6] Ibid at [30(c)].
Ms Davis also submits that she suffers from mental health conditions and Type II diabetes. Ms Davis did not press for those other conditions to be considered for the purpose of assessing whether she meets the access criteria. Ms Davis submits that she also suffered from chronic pain, but she accepted that the chronic pain arose from her other medical conditions rather than it being a separate impairment in and of itself.[7]
[7] Ibid at [30(b)].
The conditions which Ms Davis seeks to rely upon in this application are those listed in paragraph [‎27] above. Those conditions relate to the physical or sensory (in terms of Ms Davis’s experience of chronic pain) functioning of a person’s body. Accordingly, the Tribunal considers that question for determination by the Tribunal in relation to the first criterion under s 24(1)(a) of the NDIS Act in this case is confined to whether Ms Davis has a disability that is attributable to one or more physical or sensory impairments.
The Tribunal notes the Operational Guidelines issued by the NDIA providing guidance in relation to access requests.[8] Paragraph 8.1 in entitled “What is a disability attributable to an impairment?”. Of particular relevance to this first criterion (emphasis in bold added):
8.1 What is a disability attributable to impairment?
…
For the purposes of becoming a participant in the NDIS the focus of 'disability' is on the reduction or loss of an ability to perform an activity which results from an impairment. The term 'impairment' commonly refers to a loss of, or damage to, a physical, sensory or mental function.
…
For the purpose of determining access, the NDIS Act is not concerned with what caused a person's disability. All people with disabilities who meet the access criteria can be participants, whether the disability came about through birth, disease, injury or accident (see Mulligan and NDIA [2015] FCA 44 at [16]).
Whether a prospective participant has a disability attributable to an impairment is a question of fact to be determined on the balance of available evidence, including their diagnosis.
If a prospective participant has multiple impairments, the NDIA will consider all impairments together when considering whether the person satisfies this disability requirement.
[8] Access to the NDIS - The disability requirements | NDIS
In the NDIA’s SFIC and NDIA’s Closing Submissions, it states that:
(a)Mr Machart’s evidence supported a finding by the Tribunal that the degenerative conditions in Ms Davis’s spine, shoulders and knees are, as follows:[9]
(i)spondylarthrosis lumbar spine;
(ii)spondylarthrosis thoracic spine;
(iii)spondylarthrosis cervical spine;
(iv)degenerative impingement of both shoulders; and
(v)bilateral knee osteoarthritis;
(b)the NDIA concedes that those five conditions were impairments for the purpose of s 24(1)(a) of the NDIS Act;[10]
(c)this “leaves for determination by the Tribunal” whether the conditions of ulcerative colitis and morbid obesity are impairments of the purpose of s 24(1)(a) of the NDIS Act.[11]
[9] Refer NDIA’s Closing Submissions at [22].
[10] Refer NDIA’s Closing Submissions at [24].
[11] Ibid at [25].
However, the Tribunal considers that when deciding whether the first criterion in s 24(1)(a) of the NDIS Act is met, it is not necessary for the decision-maker to make findings about or to identify the condition or conditions that the person has, in order to reach its conclusions about whether the person has one or more impairments which involve the loss of, or damage to, their physical, sensory or mental function.[12] While the decision-maker may take into consideration medical diagnoses that have been made in respect of the person as an indicator that they might have certain impairments, this does not complete the decision-maker’s task. The decision-maker must satisfy themselves on the evidence before them, whether the person has one or more impairments which involve the loss of or damage to their physical, sensory, or mental function.
[12] Refer Mulligan at [‎27]; Section 8.1 of the Operational Guidelines ‘Access to the NDIS – The disability requirements’ at [‎31].
With that in mind, the Tribunal does not consider it necessary or helpful to engage in the dispute raised by the parties about precisely which “conditions” Ms Davis has, or those which should be taken into consideration, when deciding whether Ms Davis meets the criterion under s 24(1)(a) of the NDIS Act. As addressed in Mulligan, the focus is to remain on the person’s “impairments” and that is what the Tribunal will do.
Whether Ms Davis has impairments to her musculoskeletal and movement-related functions
Ms Davis told the Tribunal at the hearing that her symptoms of spinal arthritis include “pain”, “the lack of movement, joint swelling”, and an “inability to straighten and move my body in the way it should”.[13] Ms Davis said that she was constantly in pain and there was never a day where she did not experience pain. She said her body felt stiff and sore all the way down to her lower limbs. She described having to use the bed, door handle and dressing table to help her to walk to the toilet in the morning due to the pain.[14] Ms Davis said she had pain in her shoulders (the right more than the left), pain and “clicking” in her knees, pain sometimes her ankles and lower back, and that she also experiences numbness in her toes and fingers.[15] She said she has stiffness throughout her entire body.[16] Ms Davis gave evidence that she has pain radiating, mainly, down her right leg and that it affects her hip which, in turn, affects her when she is sitting down for too long. She said she cannot walk for “any sort of major distance” and cannot stand for longer than five or ten minutes.[17] Ms Davis said her lower back hurts when she swims.[18] Ms Davis gave evidence that because of the issue with her knees, she cannot squat or kneel and makes it difficult for her to walk.[19]
[13] Refer Transcript Day 1 at P-17.
[14] Ibid at P-18.
[15] Ibid at P-21.
[16] Refer Ms Davis’s Closing Submissions at [18].
[17] Refer Transcript Day 1 at P-20.
[18] Ibid.
[19] Refer Transcript Day 1 at P-21.
There was no medical or other evidence before the Tribunal to dispute Ms Davis’s evidence in relation to the matters set out in the above paragraph. This evidence was corroborated by the allied health report by Ms Ferguson dated 30 October 2020. Ms Ferguson concludes in her report:[20]
[20] Refer Exhibit R6.
Karen is a 58-year-old lady living alone with a history of chronic physical and painful conditions which impact her ability to maintain a level of physical independence, a standard of home care and the mobility required to remain living safely in her own home.
..
The impact of Karen’s spinal arthritis is evident in her impaired mobility. She walks with a mild limp, and a change in her gait pattern. She has developed poor posture as a way of managing both her spine and hip pain.
She is inclined to shuffle as she is unable to clearly lift her feet off the ground. This may also be symptomatic of the excessive weight she places on her lower spine, hips and knees. She has had a history of arthritis and repetitive strain injuries diagnosed in her early twenties. This indicates she had a predisposition to poor bone strength well before she become morbidly overweight. Her weight gain is thought to be a consequence of her inability to participate in physical activities due to poor pain management. She was unable to identify a time frame for when she developed reduced range of motion in her knees – a normal knee should ideally be able to flex or bend between 133 and 153 degrees and should be able to extend so that it is completely straight.
Karen is not able to bend her knees more than 90 degrees and a reduction in normal range of motion in any joint declines as you age, but it can also occur with a number of conditions. Certain exercises may be helpful for improving and maintaining flexibility in her joints, but her pain needs to be better managed for her to be able to consider participating in an exercise regime. Pain management medication has not been effective due to complications with her long standing and severe ulcerative colitis which has been challenging to manage.
This has resulted in a history of chronic diarrhoea, constipation and bleeding from her anus.
Active assistive and passive exercises are helpful when it’s painful to flex or extend a joint, but they rely on the effort of another person. As Karen lives alone this is not possible without physical therapy of some form.
A full mobility assessment could determine whether a mobility aid would be beneficial as the use of any mobility aid will place additional demands on her body, particularly her wrists, and shoulders. Lifting a mobility aid could add additional pain in her shoulders and is also likely to result in referred pain in her neck which would be a counterproductive recommendation. A trial would need to be conducted over a period of weeks to determine if a lightweight mobility aid would be beneficial.
Lack of exercise and physical inactivity is a primary cause of most chronic diseases e.g. anxiety and obesity, and results in limited muscle power and weight gain which is linked to functional losses, decreased mobility, independence and quality of life. Excessive weight could contribute to Karen’s loss of upright standing and locomotion, joint stress, pain and reduced range of movement and her reduced physical activity.
In Karen’s case there may also be functional losses due to ageing.
…

The Tribunal accepts Ms Davis’s evidence as set out in paragraph [34].
Radiological results demonstrate there have been physiological changes to Ms Davis’s spine, shoulders, and knees. On 25 May 2016, an X-ray and ultrasound of Ms Davis’s right knee revealed moderate to severe osteoarthritic change and small joint effusion. On 28 August 2016, an MRI was performed on Ms Davis’s spine showing degenerative spondylosis of her lower cervical spine and mid-thoracic spine and at multiple levels of her lumbar spine. On 11 May 2021, an X-ray was performed on Ms Davis’s shoulders showing moderate subacromial bursitis and mild tendinosis of the subscapularis, supraspinatus, and infraspinatus tendons.
Based on the evidence set out above in paragraph [34] to [‎37], the Tribunal finds that Ms Davis has an impairment which involves loss of or damage to her physical function, specifically her musculoskeletal and movement-related functions, and that she also has an impairment which involves loss of damage to her sensory function on account of the chronic pain she experiences on a daily basis.
Whether Ms Davis has an impairment to her digestive function
Ms Davis was diagnosed with Colitis in 1987.[21] At the hearing, Ms Davis gave evidence that even when her Colitis was in remission, that she experienced stomach cramping and altered stool processing. Ms Davis gave evidence that when her Colitis flared up, it resulted in severe abdominal pain, fatigue, faecal incontinence, explosive diarrhoea, and rectal bleeding. There were medical records before the Tribunal showing instances of hospitalisation of Ms Davis due to flare ups of her Colitis in the late 1990’s and 2006, as detailed in Ms Davis’s Closing Submissions at footnote 46. Ms Davis also gave evidence of the deferral of her tertiary studies on several occasions on account of the gastrointestinal symptoms she was experiencing as a result of her Colitis.
[21] Refer further to paragraph [‎87] of these Reasons for Decision.
Ulcerative colitis is a condition which involves inflammation of the bowel and rectum. Ms Davis relied upon Dr Jakobovits’s description of ulcerative colitis as being a “chronic disease”.
The Tribunal acknowledged that when Ms Davis was taken through her medical history relating to her Colitis, at the hearing, it seems that in recent years, mostly, Ms Davis has been “in remission” and that her symptoms have relatively insignificant. By Ms Davis’s own evidence, she states that her Colitis is “under control at the moment”.[22] The Tribunal finds that the degree of Ms Davis’s symptoms at present, on account of Colitis, are not as significant or debilitating as they have been in the past. However, as mentioned above, Ms Davis gave evidence, which the Tribunal accepts, that even when her Colitis is in remission, she still experiences “stomach cramping and altered stool processing”.[23]
[22] Refer Transcript Day 1 at P-15.
[23] Ibid at P-14.
Based on the matters set out in the above three paragraphs and putting aside any consideration of severity (which will be addressed when assessing the third criterion under s 24(1)(c) of the NDIS Act), the Tribunal is satisfied that Ms Davis has a further impairment that involves loss of or damage to her physical function, specifically her digestive function, which includes the gastrointestinal tract.
Whether Ms Davis has an impairment to her cardiovascular function
Ms Davis was diagnosed with OSA in 2008 by Dr Rodriguez, a sleep physician.[24] OSA interrupts a person’s breathing while they sleep and may cause a lack of flow of oxygen to the person’s lungs and/or obstruct their airway altogether causing them to wake up. In 2008, Dr Rodriguez recommended that Ms Davis undergo a trial with a CPAP machine (with the water pressure set at 10cmH2O).
[24] Refer Transcript Day 1 at P-36.
Ms Davis has continued to use a CPAP machine with the water pressure set at 10cmH2O when she sleeps at night.
Dr Kronborg undertook an independent assessment of Ms Davis and arranged for her to undergo a CPAP treatment review study in a sleep laboratory on 8 April 2021. In her medical report, Dr Kronborg referred to Ms Davis having “sleep disordered breathing”.[25]
[25] Refer Exhibit R5.
The medical records show that Ms Davis attended a sleep clinic in September 2010 and January 2011 to undergo an exercise myocardial perfusion study, followed by an angiogram and echocardiogram. Those studies revealed no cardiac abnormality. Ms Davis agreed with this, except that she said the doctor had told her she had a slightly enlarged heart.[26]
[26] Refer Transcript Day 1 at P-37.
However, based on the evidence referred to in paragraphs [‎43] to [‎‎45] above, the Tribunal is satisfied that Ms Davis has an impairment which involves the loss of or damage to her cardiovascular function.
Based on the findings set out in paragraphs [‎38] and [47] above, the Tribunal is satisfied that Ms Davis has a disability that is attributable to physical and sensory impairments. Accordingly, the Tribunal concludes that Ms Davis satisfies the first access criterion under s 24(1)(a) of the NDIS Act.
Permanency
The second access criterion under subsection 24(1)(b) of the NDIS Act requires the Tribunal to be satisfied that Mr Davis’s impairments are, or are likely to be, “permanent”. The word “permanent” is not defined in the NDIS Act. However, s 27 of the NDIS Act expressly provides that the NDIS rules may prescribe circumstances or criteria to be applied in assessing whether one or more impairments are, or are likely to be, permanent for the purpose of subsection 24(1)(b) of the NDIS Act.
The relevant NDIS rules in this case are the National Disability Insurance Scheme (Becoming a Participant) Rules 2016 (Access Rules). Rules 5.4 to 5.7 (stated to be made for the purpose of subsection 27(a) of the NDIS Act), are set out below:
5.4An impairment is, or is likely to be, permanent (see paragraph 5.1(b)) only if there are no known, available and appropriate evidence-based clinical, medical or other treatments that would be likely to remedy the impairment.
5.5An impairment may be permanent notwithstanding that the severity of its impact on the functional capacity of the person may fluctuate or there are prospects that the severity of the impact of the impairment on the person’s functional capacity, including their psychosocial functioning, may improve.
5.6 An impairment may require medical treatment and review before a determination can be made about whether the impairment is permanent or likely to be permanent. The impairment is, or is likely to be, permanent only if the impairment does not require further medical treatment or review in order for its permanency or likely permanency to be demonstrated (even though the impairment may continue to be treated and reviewed after this has been demonstrated).
5.7If an impairment is of a degenerative nature, the impairment is, or is likely to be, permanent if medical or other treatment would not, or would be unlikely to, improve the condition.
Impairments to musculoskeletal, movement-related, and sensory functions
In relation to Ms Davis’s impairments involving a loss of or damage to her musculoskeletal, movement-related, and sensory functions, Ms Davis states that over the previous 40 years she has tried various treatments including osteopathy, chiropractors, acupuncture, hydrotherapy, rheumatology, and physiology. Ms Davis states that she has attended the Neurosurgery Outpatient Clinic, Morbid Obesity Clinic, Orthopaedic Outpatient Clinic and Chronic Pain Management Clinic at Western Health.[27]
[27] Refer Ms Davis’s Witness Statement at [66].
In April 2021 Dr Kronborg noted in her medical report that Ms Davis’s BMI was 53.8kg/m2, based on Ms Davis’s reported weight of 125kg and height of 152cm.[28] In Dr Small’s medical report dated 1 June 2020, she states that Ms Davis’s morbid obesity “results in damage to her spine and knees via the osteoarthritis” and “also damages her heart and lungs via sleep apnoea”.[29] Dr Machart states in his report dated 15 February 2021 that “morbid obesity is the main aggravating factor, which compounds the disability caused by the arthritic changes in knees, spine, and shoulders”.[30]
[28] Refer Exhibit R5 at page 1 – Ms Davis’s height was cited in the report as five foot. This has been converted into centimetres.
[29] Refer Exhibit A5.
[30] Refer Exhibit R3 at page 5.
Ms Davis states that about 14 years ago, she went to a chiropractor who advised they were unable to assist her, after they saw her X-rays and the severity of her condition.
Ms Davis has participated in hydrotherapy. Ms Davis states that after she had turned 55 years old (and before the Covid-19 pandemic), that she used to “swim laps” about three times per week.[31] Ms Davis said she had to stop because she experienced hidradenitis suppurativa, affecting the sweat glands and which resulted in open boils, open wounds, and infections. She said the swimming helped with her mental health, physical fitness, and flexibility, but did not reduce her pain or fatigue.
[31] Ms Davis states at the age of 55, she gained access to the over 55 aquatic program at
her local leisure centre – see [60] of Ms Davis’s Witness Statement.
Ms Davis states that she managed her pain by prioritising tasks for the day and taking Panamax and Targin as needed. At the hearing, Ms Davis elaborated by saying that she took Panamax on a daily basis for her pain. She said she did not take Targin on a “very” regular basis due to its addictive nature, and only took it when she had chores to do and was “really, really sore”.[32] Ms Davis gave evidence that this medication does not take the pain away, but it dullens or “takes the edge off”.[33] Ms Davis states that she also takes Diamicron, Forxiga, Salofalk, prescribed revitaliser product for her legs and feet and vitamin supplements.[34] She states that she is unable to take anti-inflammatory medication for her Osteoarthritis in her knees, due to her Colitis.[35]
[32] Refer Transcript Day 1 at P-28.
[33] Ibid.
[34] Refer Ms Davis’s Witness Statement at [71].
[35] Ibid at [72].
Ms Davis gave evidence at the hearing that in the mornings she placed her feet in a Revitive Circulation Booster and that helped to free her up a bit (from the stiffness referred to in paragraph [‎34] of these Reasons for Decision).
Ms Davis said she last saw a rheumatologist about six years ago, qualifying her evidence about this time frame with an indication that she was “time…dyslexic”.[36] Ms Davis indicated she believed that the rheumatologist had referred her to a neurosurgeon, and the neurosurgeon had informed her she was not a candidate for surgery.[37]
[36] Refer Transcript Day 1 at P-20.
[37] Ibid at P-19.
Ms Davis states that she commenced seeing Dr Small in October 2006 and that she saw her every three months.[38] Dr Small states that Ms Davis had tried all recommended treatments such as weight loss, physiotherapy, osteopathy massage, Bowen therapy, swimming, heat packs and medication (except that that she could not take anti-inflammatory medication, because of her Ulcerative Colitis, as mentioned above). Dr Small reports that the treatments have eased her pain at times over the years, but as Ms Davis was getting older, her pain was getting worse.[39]
[38] Refer Exhibit A2 at [63]. This is confirmed by Dr Small in her medical report dated 1 June 2020 at Exhibit A4.
[39] Refer Exhibit A5 at page 2.
Ms Davis gave evidence that she does not use knee braces. She said that she predominately uses a mobility scooter to get around when in the community. She said she uses a walking stick on days when she is unable to straighten up.[40]
[40] Refer Transcript Day 2 at P-28.
Ms Davis reported an incident where she heard her knee “pop”, and she underwent an ultrasound on her right knee on 3 January 2013 showing that no abnormality was detected. About three years later, in May 2016, Ms Davis confirmed that she complained to Dr Jaberi, general practitioner, of chronic right-knee pain.[41] As mentioned above, a right knee X-ray and ultrasound was performed at this time revealing moderate to severe osteoarthritic change and small joint effusion. Ms Davis confirmed, at that time, that her general practitioner had discussed with her the results of those scans and the possibility of osteopath input and weight loss.[42]
[41] Refer Transcript Day 1 at P-47.
[42] Ibid at P-48
A further X-ray was taken of Ms Davis’s right knee on 21 April 2017 showing findings suggestive of osteoarthritis and she was referred to the osteoarthritis hip and knee service at Western Health.[43]
[43] Refer Hearing Tender Bundle at pages 489 and 490.
One year later, Ms Davis was assessed by a physiotherapist, Ms Travide, who wrote to Ms Davis’s general practitioner recording that Ms Davis had elected for a surgical option, and she should be referred to an orthopaedic surgeon. Ms Davis said that she was told by the physiotherapist she was too young to have a knee replacement. The physiotherapist said she would refer Ms Davis anyway. Ms Davis said she did not hear anything more about it. When asked why she did not chase this up, Ms Davis said that her mother was dying in 2017 to 2018, so her knee was not a priority.[44]
[44] Refer Transcript Day 2 at P-49.
Ms Davis states that she has attended three sessions of a pain management program in 2018, which involved videos about mindfulness.[45] At the hearing, Ms Davis told the Tribunal that she was discharged from the pain management clinic because:
I have a healthy approach to my pain, is what the professor said. And that, because I try and do mindfulness training, I try to do aversion thought processes to alleviate the pain, so he was of the opinion that they could not be of any more of assistance to me as I have a healthy attitude towards my pain.[46]
[45] Refer Exhibit A1 at [54].
[46] Refer Transcript Day 1 at P-33.
Ms Davis further states that she thinks her referral to occupational therapists had resulted from the pain management clinic, and the occupational therapists helped her with pacing activities, by advising that she work for one minute and sit for one minute, to help her deal with the pain. Ms Davis remarked that it was “very, very difficult to put into real life”.[47]
[47] Ibid.
Ms Davis also gave evidence that she had taken a course of acupuncture about 30 years ago to try to alleviate her pain, but this treatment was unsuccessful.[48]
[48] Ibid.
Dr Machart opined that he did not believe that a knee replacement was the correct treatment option for Ms Davis in the presence of obesity. Dr Machart considered that “once obesity was addressed”, Ms Davis may not need a knee replacement.[49] Dr Machart acknowledged that Ms Davis’s knee condition reduced her capacity to walk and made weight loss more difficult.[50] In his report, Dr Machart states that theoretically, a knee replacement could help with weight loss but he also states that he would not recommend a knee replacement because “it would be too hazardous, e.g. anaesthetic complications in the presence of obesity”.[51] Dr Machart states in his report dated 16 April 2021 that he doubted that Ms Davis would “pass as fit for an anaesthetic”, and that surgery would not be possible, even if deemed applicable.[52]
[49] Refer Exhibit R3 at page 6.
[50] Ibid at page 7.
[51] Ibid.
[52] Ibid at page 3.
As mentioned above, on 11 May 2021, an X-ray of Ms Davis’s shoulders and an ultrasound of her left shoulder showed “moderate subacromial bursitis” and “mild tendinosis of the subscapularis, supraspinatus and infraspinatus tendons”.[53] At the hearing, Ms Davis gave evidence that a general practitioner, Dr Karami, had told her that those scans confirmed that she had arthritis in both shoulders.[54]
[53] Refer Exhibit A3.
[54] Refer Transcript Day 1 at P-22.
Mr Machart states in his report dated 15 February 2021 that upon examination of Ms Davis, there was “reasonably good range of movement” in her left shoulder, but that the movement “was painful, and limited by bursitis in both shoulders”.[55]
[55] Refer Exhibit R3 at page 8.
Ms Davis gave evidence that her Shoulder Condition affected her when hanging out the washing, folding clothes, and lifting items. She said she used to like knitting and crocheting but cannot do that any longer.[56]
[56] Refer Transcript Day 1 at P-8.
A full spine X-ray was carried out on Ms Davis’s spine in September 2006 showing that she had “early spondylosis at L4 and L5”.[57] No further scans were taken of the spine until 2009.
[57] Refer Exhibit R2.
In September 2009, Ms Davis experienced a fall from a garden swing, following which she suffered from headaches and stiffness to her neck. A CT scan was performed of her cervical spine showing degenerative changes at C5-6 and C6-7 levels.
In June 2012, an X-ray was taken of Ms Davis’s thoracic and lumbar spine showing a mild thoracolumbar scoliosis convex to the left centred at L1. This was followed by a CT scan on 10 July 2012 showing advanced degenerative change at C5-6 and C6-7 with possible left paracentral disc protrusion at C5-6 and right paracentral protrusion of disc osteophyte protraction at L3-4, right L4/-5 and left L5/S1 foraminal narrowing with possible nerve root compression and lower lumbar facet joint osteoarthritis. On 25 July 2012, a CT scan was taken of Ms Davis’s thoracic spine showing similar results. At the hearing, Ms Davis confirmed that this was why she described herself as having nine disc bulges.[58] In July 2012, a bone density scan was performed, indicating that Ms Davis had normal bone mineral density.[59]
[58] Refer Transcript Day 1 at P-50.
[59] Refer Bone Density Report by Dr Small dated 18 July 2012.
Ms Davis was seen by Professor Keith Lim, Rheumatologist at Western Health, on 27 June 2014. At the hearing, Ms Davis intimated having been on a waiting list for two years to see Professor Lim. Professor Lim ordered a whole-body scan and other radiology showing similar results to those described above in paragraph [37]. At the hearing, Ms Davis confirmed that she saw Dr Albert Leung, neurosurgeon, about her neck and he recommended that Ms Davis undertake a weight loss program. Professor Lim referred Ms Davis to a community pain clinic (Pain Clinic #1).
Ms Davis commenced at the Pain Clinic #1 in November 2014. A report by a physiotherapist at Western Health on 10 November 2014, states that Ms Davis was provided with education and advice on managing chronic conditions and she attended a limited exercise program and hydrotherapy.
This report refers to Ms Davis having requested that she be discharged from the Pain Clinic #1 service because of a flare up of her Colitis, and because she had developed an infection preventing her from continuing in the pool. Ms Davis confirmed that she was enjoying the hydrotherapy, but she had a “massive breakout of boils” under her arm which was why she had to withdraw.[60]
[60] Refer Transcript Day 1 at P-51.
In relation to the pain being experienced by Ms Davis, she undertook a trial of a narcotic medication, Endep, in May 2015. Reportedly, she did not tolerate Endep very well. Dr Small reports that Ms Davis has also tried Lyrica, antidepressants, and analgesics, and that the specialists did not want to start her on opiate medication “given her young age”.[61] The rheumatologists told Ms Davis there was nothing more they could do for her, so she was discharged from the Pain Clinic #1 in May 2015.[62]
[61] Refer Exhibit A5 at page 3.
[62] Refer Transcript Day 1 at P-52.
In August 2016, Ms Davis was reviewed by a specialist neurosurgeon, Dr Machar, and an MRI was performed on her spine. The MRI shows disc bulges at every level of the lumbar spine. Dr Annie Chen, a neurosurgery Registrar, reviewed the MRI radiology, and upon discussing it with the consultant, Dr Alex Adamides, formed an opinion that there was no neurosurgical intervention that was likely to benefit Ms Davis, “in light of all of her other comorbidities in terms of improving her chronic pain symptoms”. Dr Chen also states in her report, “I have advised Karen that we would normally encourage weight loss and strengthening exercise”. Ms Davis gave evidence that this accords with her recollection.

A nerve conduction study was completed in February 2017 showing that Ms Davis’s nerve conduction was normal, and that she had bilateral carpal tunnel syndrome.
Ms Davis confirmed at the hearing that she was discharged from the neurosurgical clinic in April 2017.[63]
[63] Ibid.
Ms Davis confirmed that she had attended a chronic pain management clinic on 3 March 2016 at St Albans Medical Service (Pain Clinic #2). A specialist pain medicine physician and consultant anaesthetist from this clinic issued a report dated 3 March 2016, stating as follows:
This lady has significant chronic pain, which is exacerbated by her morbid obesity. Given the extensive management of the medical obesity clinic and the recommendation for surgery, which was subsequently refused by the patient as she wanted to try more conservative measures, and the failure of those measures, there is really little we can achieve here at the chronic pain management clinic. I took a long time explaining to Karen that medical management of pain, especially in patients with severe obstructive sleep apnoea, is more weighted towards risk than benefit. I have mentioned to her the concepts of tolerance, sedation, osteoporosis, and respiratory compromise and sudden death. With regard to weight loss, I realise that Karen has had that looked at extensively and no doubt failed numerous attempts to lose weight. In the end, she stormed out of the consultation saying she’s heard this for 30 years and a number of other comments.
At the hearing, Ms Davis described this physician as “extremely rude”, “attacking” and “not a very nice person”.[64] This led to Ms Davis being referred to a different pain management clinic at Western Health (Pain Clinic #3) in August 2018. Ms Davis explained to the Tribunal that it took a while for her to get on the waiting list with Western Health.[65]
[64] Ibid at 1 P-53
[65] Ibid at P-54.
In Pain Clinic #3, Ms Davis confirmed that she was assisted by occupational therapists with advice about how to do some practical tasks – light gardening being one of them.[66] She was shown different ways of moving and how to hold a weight or a broom.[67] Ms Davis said she did not find this assistance beneficial on the whole. She said it was impractical to use the suggested pacing strategy of doing something for one minute, and then sitting for the next.[68] Ms Davis suffers from hip pain, which is aggravated if she repeatedly transfers from a standing to a sitting position intermittently.
[66] Ibid.
[67] Ibid.
[68] Ibid.
Dr Small states that the treatment for Ms Davis’s spinal arthritis was the same as the treatment for the osteoarthritis in her knees, “plus an emphasis on movement”.[69] Dr Small states that Ms Davis does her stretching exercises, used “pick-up” sticks in her home to minimise her bending, and used a swivel (office) chair to move from side to side while seated.[70] Dr Small suggested that the two main components of her treatment for spinal arthritis were the mobile scooter, and having someone help her with her home and gardening maintenance.[71] The Tribunal notes that Dr Small appears to describe treatments to minimise further deterioration of Ms Davis’s existing medical conditions, rather than treatment which is likely to remedy those conditions.
[69] Refer Exhibit A5 at page 3.
[70] Ibid.
[71] Ibid.
Dr Machart opines that the only worthwhile treatment for Ms Davis is weight loss.[72] He states in his report dated 15 September 2021 that “without weight loss, attempting to treat a degenerative condition in skeleton is not going to be beneficial” and that “improvement is not possible without substantial weight loss”.[73] Dr Machart opines that Ms Davis would benefit from “obesity surgery” and states that this is outside of his area of speciality.[74] Dr Machart opines that in the meantime, Ms Davis is faced with chronic pain management and he recommended the “cessation of narcotic analgesics (Targin)”.[75]
[72] Refer Exhibit R3 at page 6
[73] Ibid.
[74] Ibid.
[75] Ibid.
In Dr Machart’s second report, he opines that weight loss is likely to improve Ms Davis’s back condition to a “substantial degree”.[76] Dr Machart explained that excessive weight causes strain on spinal segments, particularly when affected by spondylarthrosis. Dr Machart opines that by removing this “aggravating factor”, it is expected to “improve, if not cause, resolution of the existing symptoms”.[77] Dr Machart states that “exercising, in conjunction with weight loss” would be beneficial.[78]
[76] Refer Exhibit R4 at page 2.
[77] Ibid.
[78] Ibid.
Ms Ferguson came to a view following her independent assessment of Ms Davis, that a lack of history of allied health intervention suggested that she has “not had the rehabilitation or interventions appropriate to her declining independence”, which may be the result of her declining mental health, or because her decline may not have been as evident until after her daughter had moved out of Ms Davis’s home.[79]
[79] Refer Exhibit R6 at pages 17-18.
Putting aside the treatments of weight loss and exercise, for a moment, based on the evidence referred to above describing the various medical and allied health treatments undertaken by Ms Davis to date, the Tribunal is otherwise satisfied that there are no known, available, and appropriate evidence-based clinical, medical, or other treatments that are likely to remedy her impairments involving loss of or damage to her musculoskeletal, movement-related, and sensory functions. The Tribunal considers that, consistent with Dr Machart’s medical opinion as referred to in [‎84], the treatments Ms Davis is likely to be of potential benefit from are those likely to result in weight loss.
The Tribunal will return below, commencing at paragraph [‎97], to a detailed consideration of the issue of weight loss through dietary control and exercise.
Impairment to cardiovascular function
At the hearing, Ms Davis confirmed that during 2009, she had regular six-monthly reviews in a sleep disorders clinic.[80] Ms Davis’s last review with Dr Rodriguez was in September 2011 where he commented that she “is going very well with CPAP” and he transferred her to the CPAP clinic.[81] Ms Davis gave evidence that she did not attend the clinic after this time.
[80] Ibid.
[81] Ibid.
When asked why she had not chased this up, Ms Davis said that she should have done so and that there are “a lot of things in life we should do”, “but the thing is that the waiting list I know is about two years”.[82] Ms Davis added, “so when you’re sitting there waiting for something for two years and you’re just cruising along, I didn’t think to follow that up, but I have followed up the latest referral”.[83] Ms Davis gave evidence that she had not heard anything back from the clinic since Dr Small wrote to the clinic in May 2020.[84]
[82] Refer Transcript Day 1 at P-38.
[83] Ibid.
[84] Ibid.
In May 2015, a medical report by another sleep physician, Dr Frankel, records that Ms Davis’s OSA is “symptomatically controlled”.[85] Ms Davis said she saw Dr Frankel due to requirements to keep her driver’s licence.
[85] Report by Dr Frankel dated 19 May 2015.
Following Dr Kronborg’s independent assessment of Ms Davis in March and April 2021, the doctor opines that based on Ms Davis’s clinical history of chronic pain, this was likely to be the cause of “spontaneous arousals” which had frequently fragmented Ms Davis’s sleep. Dr Kronborg suggested that improved pain control, and improved control of her underlying conditions contributing to pain, should help her to “better her sleep quality” and (to reduce her) daytime sleepiness. Dr Kronborg also suspected that Ms Davis may be “undertreating” her “sleep disordered breathing”, because her CPAP machine was more than 12 years old, and it was possible that it no longer provided adequate pressure. Dr Kronborg also recommended that the acquisition of a new mask would ensure that an air leak was not an issue.
Dr Kronborg opines that if Ms Davis has an appropriate contemporary machine programmed at “10cm H20” pressure, “one would not expect Karen to have any functional impairment secondary to her sleep disordered breathing”.[86] Dr Kronborg also considers that significant weight loss by Ms Davis may lead to an improvement of her sleep disordered breathing, but she stated that this was difficult to predict.[87]
[86] Refer Exhibit R5 at page 2.
[87] Ibid.
NDIA’s counsel put to Ms Davis that Dr Rodriguez had told her that there were some issues about Ms Davis’s sleep hygiene and that potentially, a loss of weight might have assisted her. Ms Davis said that “every doctor” she saw had said that losing weight would be of assistance to her and that she had tried to do so.[88]
[88] Refer Transcript Day 1 at P-37.
Putting aside the treatments of weight loss and exercise for a moment, based on the sleep studies, medical and other evidence referred to above, the Tribunal is satisfied that there are no known, available, and appropriate evidence-based clinical, medical, or other treatments that are likely to remedy Ms Davis’s impairments involving loss of or damage to her cardiovascular function (arising from OSA). Consistent with Dr Rodriguez and Dr Kronborg’s medical advice to Ms Davis, the Tribunal considers that a treatment likely to be of potential benefit to Ms Davis is weight loss.
The Tribunal will proceed to consideration of the issue of weight loss through dietary control and exercise.
Achieving weight loss as a treatment
The NDIA contends that if Ms Davis were to achieve weight loss that it would, or would likely, improve her conditions of Spondylarthrosis, Osteoarthritis, Shoulder Condition and OSA. The NDIA contends that the impairments arising from those conditions are not “permanent”, because Ms Davis has not undertaken all known, available, and appropriate treatments to achieve weight loss. The NDIA contends, on the medical evidence, that the undertaking of such treatments would be likely to remedy those impairments. The NDIA contends that Ms Davis has not fully engaged in intervention by a dietician nor with a diet specifically designed for her by a dietician.[89]
[89] Refer NDIA’s Closing Submissions at [104].
Dr Machart opines in his report dated 15 February 2021 that the nature and extent of the contribution made by Ms Davis’s Obesity to her conditions and functional capacity are “substantial and major”.[90] Dr Machart opines that without morbid obesity, the severity of Ms Davis’s degenerative condition would be less likely to cause incapacity, and it could be treated by standard orthopaedic means, such as a knee replacement.[91] Dr Machart considers that Ms Davis would more than likely be “fit for reasonably good community functioning” if she were to successfully lose weight.[92]
[90] Refer Exhibit R3 at page 7.
[91] Ibid.
[92] Ibid.
Ms Davis agrees that losing weight would be beneficial to her. She states that her obesity has exacerbated her knee and spinal issues, along with her OSA.[93] Dr Small states in her medical report dated 1 June 2020 that Ms Davis’s morbid obesity had caused her diabetes and was “accelerating the osteoarthritis in her knees and total length of her spine”.[94]
[93] Refer Exhibit A2 at [31] to [37].
[94] Refer Exhibit A4 at page 2.
Ms Davis states that she finds it very difficult to manage her weight, due to her Colitis. At the hearing, Ms Davis gave evidence that her weight was the result of taking medication for her Colitis.[95] In Ms Davis’s Witness Statement, she states that when she was first diagnosed with Colitis in 1987 (when Ms Davis was in her mid-twenties), she was between a size 12 and 14. She states that she was prescribed with steroid medication, increased to a size 22 and has not been able to lose the weight since that time. At the hearing, Ms Davis said when she was diagnosed in 1987, she was “put on a huge amount of Prednisolone, I think it was well over 100milligrams”, her face “blew up like Moonface” and she started to gain weight.[96] She referred to having experienced “diarrhoea for weeks or months”.[97]
[95] Refer Transcript Day 1 at P-15.
[96] Refer Transcript Day 1 at P-30.
[97] Ibid.
Ms Davis states that her weight has been stable for the last 18 years. Ms Davis gave an example of the difficulty she had experienced in losing weight, namely, she was hospitalised in 1997 for three weeks, “was mainly nil by mouth” and only lost about half a kilogram. Ms Davis states that she has seen many dieticians over the years, and she no longer benefitted from them.
Ms Davis states that:
(a)she has attended a Medical Obesity Clinic, and has seen an endocrinologist (Dr David O’Neal who she saw one year ago, but his practice has now “moved too far away”);
(b)had participated in regular exercise (swimming);
(c)had taken medication, Duromine, to manage and lose weight; and
(d)she has tried several diets, including Weight Watchers, Jenny Craig, Paleo diet and the 5:2 (intermittent fasting) diet.[98]
[98] Ibid at P-61.
In relation to the dietary programs, at the hearing, Ms Davis gave evidence that she undertook:
(a)the Weight Watches program “many years ago” and had very little memory of it;[99]
(b)the Jenny Craig program in 1988 or 1989 and that she had a “massive colitis flare-up” when she was doing it, which put her in hospital for a week;[100]
(c)the 5:2 diet in about 2016, but she said she found it “very hard to stick to” and that she had “headaches every day”; [101] and
(d)the Paleo diet from February to May 2018. Ms Davis said she lost about three kilograms on this diet. At this time, she was swimming three days per week. However, Ms Davis said she had a minor bowel flare up. She said she was required to increase her medications to bring it back under control.[102]
[99] Ibid at P-30.
[100] Ibid.
[101] Ibid at P-31.
[102] Ibid at P-30 and P-31.
At the hearing, Ms Davis said she has tried taking Duromine when she was 18 years old to lose weight, which she described as “relatively successful” at that time. She said she had tried it again a few years ago, and it was “not successful at all”.[103] She said this medication gave her heart palpitations, made her feel “very ill”, made her “almost suicidal” and she did not lose any weight on this medication.[104]
[103] Ibid at P-31 and P-61.
[104] Ibid.
Dr Small states that Ms Davis had consulted Dr Lang in March 2016 and that he did not recommend gastric surgery.[105] Dr Small states that “there would be severe risks in doing gastric surgery in someone with Ulcerative Colitis”.[106] Dr Small confirmed that Ms Davis was on the waiting list for gastric surgery, “so as to ask more questions”.[107] Dr Small explained that bariatric surgery was “removed from Western Health services”, which is why Ms Davis did not see anyone.[108]
[105] Refer Exhibit A7 in her report dated 22 September 2020.
[106] Ibid at page 2.
[107] Ibid.
[108] Ibid.
At the hearing, when Ms Davis was asked why she had not taken up the recommendations by a number of medical professionals to have bariatric surgery, Ms Davis said, “because of the complications that are associated with having bariatric surgery”.[109] Dr Jakobovits’s states as follows:[110]
In my opinion the applicant may be a candidate for bariatric surgery, although an expert opinion from a bariatric surgeon would seem appropriate. The surgery would be subject to significant complications in view of her comorbidities.
As she does not want to have an operation, I would not be recommending it.
[109] Ibid.
[110] Refer Exhibit R7 at [14].
Ms Davis states she has seen a psychologist for her Obesity. At the hearing, Ms Davis elaborated upon this by giving evidence that she saw a counsellor at Cairnlea Medical Centre for “anxiety, depression, weight loss”. Ms Davis said she made an appointment, and the counsellor would not be available or would cancel it. Or the counsellor would make the appointment for when Ms Davis was at university and Ms Davis would have to cancel and reschedule it. Ms Davis said, “And it became more anxiety and depression fuelling than it was relieving, so I gave up on that”.[111] Ms Davis said she had about five sessions in total with the counsellor in about 2015 “at a guess”.[112]
[111] Refer Transcript Day 1 at P-34.
[112] Ibid.
Ms Davis said she had contacted a psychologist “during Covid” by telephone, but that she did not gel with that psychologist. Ms Davis said she has not given up her search and said, “I need to find a psychologist that I can have a good rapport with”.[113]
[113] Ibid.
The NDIA contends that Ms Davis’s degenerative conditions (of Spondylarthritis, Shoulder Condition and Osteoporosis), are not permanent because those conditions would improve if Ms Davis lost weight by undertaking surgery or by dieting.[114] The NDIA also contends that Ms Davis’s Morbid Obesity and OSA were not permanent, because weight loss by undertaking surgery or by dieting, is a “known, available and appropriate treatment, that would remedy (cure or substantially relieve) the impairments”.[115] As explained above at paragraph [‎32] and [33], the Tribunal’s task is to focus on the impairments, rather than conditions.
[114] Refer NDIA’s SFIC at [56] to [61].
[115] Ibid at [90] to [96].
In response, Ms Davis contends that weight loss through dietary control is not an available or appropriate treatment in her case, because the amount of weight she would need to lose to gain improvement of her (physical and sensory) impairments is significant. Ms Davis relied upon Dr Small’s evidence to the effect that Ms Davis would need to lose at least 20kg. Dr Marchant also considered that Ms Davis would need to lose more than 20kg. Ms Davis highlights that she has been unsuccessful in trying to lose weight previously and has never able to achieve weight loss in the vicinity of 20kg. Ms Davis also relied upon the evidence given by Dr Jakobovits to the effect that the only way for her to maintain weight loss, was through bariatric surgery, which Ms Davis is not prepared to have because of the risks involved on account of her comorbidities. The risks associated with bariatric surgery in Ms Davis’s circumstances are considered in further detail in paragraphs [119] to [125] below.
Upon consideration of the medical evidence, the Tribunal is satisfied that Ms Davis’s impairments involving loss of or damage to her musculoskeletal, movement-related, and sensory functions, are each likely to be improved if Ms Davis was to achieve significant weight loss in the vicinity of 20kg. The Tribunal accepts Dr Machart’s evidence as referred to in paragraph [‎85] that, in effect, such improvement is likely to be substantial. The Tribunal is not satisfied that treatments intended to achieve weight loss would, or are likely to, remedy her impairment relating to cardiovascular function arising from her OSA on the basis of Dr Kronborg’s evidence (see paragraph [‎93]), which the Tribunal accepts, that it may do so, but it was difficult to predict.
Following the independent OT assessment of Ms Davis, Ms Ferguson made the following recommendations:
Recommendations:
Karen’s GP has been supportive in providing evidence of Karen’s physical and medical challenges, but a lack of history of allied health interventions suggests that Karen has not had the rehabilitation or interventions appropriate to her declining independence. This may be a result of Karen’s mental health status (lack of motivation) or the impact of her decline may not have been as evident until her daughter moved out of home.
The author of this report believes the following recommendations could be considered.
The development of a health care plan with referrals to Allied health specialists to include
• A comprehensive mobility assessment – referral to a Community Health Centre for a physiotherapy plan with the possibility of supervised hydrotherapy and a self-managed weight management regime.
• Exercise physiologist – to introduce a light daily maintenance program – for pain management and weight reduction.
• Physical support/assistance to implement a daily exercise regime.
• Assistive technology assessment – a seating assessment, an environmental access assessment and personal activity of daily living aids . e.g. cutting aids, bed aids, use of non-slip mats, cooking supports, tilting kettle. A referral to a Community Health Centre Occupational Therapy service may offer this assessment.
• Pain management education and participation in a weekly program where she can receive support and ideas shared by others.
• In home care – for regular (weekly) home care cleaning.
• …
• Mental health outreach program – to enhance her confidence, improve herself image and encourage her to engage in relevant support services.
• Psychologist – cognitive assessment and guidance in understanding her emotional intelligence limitations and learn new coping strategies.
These supports may reduce Karen’s longer-term future support needs. Motivation and compliance require a cognitive capacity and both these characteristics are currently impacted by her pain and subsequent depression and anxiety. The author of this report believes that engaging in these recommended support services may offer her some emotional support and help minimise her feelings of being alone and not understood. Engaging in supports also provides a more comprehensive capacity to assess her overall needs, offer intervention strategies, and monitor her progress.

The Tribunal acknowledges that Ms Davis’s commitment to achieving weight loss in the past, if viewed with no regard as to the expense, has been suboptimal. For instance, if money were not object, perhaps Ms Davis should have:
(a)pursued an ongoing and consistent exercise regime under the guidance and supervision of an exercise physiologist, personal trainer, physical therapist and/or physiotherapist, and when she was met with difficulties relating to her swimming regime, temporary modifications should have been adopted by her to continue exercising through home-based exercise program;
(b)undertaken an ongoing supervised and tailored dietary program to avoid any Colitis flare ups or issues associated with her sugar levels in light of her Diabetes Type-II condition; and/or
(c)sought ongoing support and counselling from a psychologist to assist to deal with what appear to be significant psychological barriers to Ms Davis remaining compliant and motivated with a tailored weight-loss exercise and dietary regime.
In relation to paragraph [‎113(c)], the Tribunal notes that Ms Ferguson in her report, refers to “motivation and compliance” requiring a cognitive capacity and in Ms Davis’s case, Ms Ferguson considered that those characteristics are currently impacted by Ms Davis’s pain and subsequent depression and anxiety.
The cost of engaging exercise psychologists, as well as physiologists (which the Tribunal regards as being critical to any prospect of Mr Davis achieving weight loos), personal trainers, physical therapist and/or dieticians, on a regular and intensive basis, can quickly become cost prohibitive once the session allocations under the relevant Medicare-funded health care plans have been exhausted, or if it becomes difficult to find health professions who agree to charge the Medicare scheduled fee.
Ms Davis’s weight is very high. Dr Small gave evidence about the care that must be taken while Ms Davis is mobilising, due to a risk of further deterioration to her already fragile and degenerated musculoskeletal structures. Dr Small stressed the importance of Ms Davis using assistive technology, such as a motorised scooter, to prevent further deterioration of her musculoskeletal issues. Mr Machart acknowledged that Ms Davis’s Osteoarthritis in her knees made it difficult for her to engage in weight loss activities. For those reasons, the Tribunal considers that particular meticulous care must be taken to ensure that any weight-loss exercise undertaken by Ms Davis is carefully supervised, so that it assists her without harming her.
For these reasons, the Tribunal considers that given Ms Davis’s current bodily and medical state, and in particular, the advanced stage of her Obesity, musculoskeletal degeneration, and her chronic pain, she requires closely supervised, intensive and sustained dietary control and exercise programs, consistent with the recommendations by Ms Ferguson. Based on these matters, the Tribunal considers that the maximum number of funded sessions available to her under the Medicare scheme, is insufficient to conclude that Ms Davis has available to her, given her strained financial circumstances, the level of allied and other health services required by her to safely, and conservatively (that is, without bariatric surgery), stand any real prospect of achieving weight loss in the vicinity of 20kg. Ms Davis gave unchallenged evidence about her limited financial means. Her income is limited to the DSP and has been for a long time. She only has approximately $10,000 left in her superannuation fund, and she is paying rent under a “shared ownership scheme”.[116] The Tribunal infers from these facts that it is likely that Ms Davis was, and still is, unable to afford to have access to a closely supervised, intensive and sustained dietary control and exercise programs.
[116] Refer Exhibits A1 and A2.
The Tribunal considers that closely supervised, intensive and sustained dietary control and exercise programs are both appropriate treatments for Ms Davis’s impairments involving her physical and sensory impairments. However, the Tribunal is not satisfied that those treatments are “available” to Ms Davis, on account of her financial position. The Tribunal is satisfied that Ms Davis would not be able to afford such programs, if they were delivered at an intensity required to maintain Ms Davis’s safety, and to stand any real prospect of achieving significant weight loss by her.
In relation to bariatric surgery, Ms Davis contends that bariatric surgery is not an appropriate treatment option because of the associated “serious” risks and complications, particular to her, if she were to undertake this operation. Ms Davis also contends that there is no certainty as to whether such surgery would result in substantial weight loss, and that several medical experts had not recommended such surgery in her case. At the hearing, Ms Davis elaborated further on her reasons for not wanting to have bariatric surgery including that one risk of such surgery, was death. Ms Davis said that it would not involve a single surgery, but instead, follow up surgeries would be involved, such as skin removal and “skirt” removal.[117]
[117] Dr Jakobovits gave evidence that it would be a one-stage procedure. The Tribunal does not consider this to be in conflict with Ms Davis’s evidence because Ms Davis was referring to follow up cosmetic procedures to remove excess skin after weight loss has been achieved.
The independent gastroenterologist called by the NDIA, Dr Jakobovits, gave evidence about the risks of bariatric surgery at the hearing, as follows (emphasis added in bold):[118]
Ms Rhodes: And you say the surgery would be subject to significant complications. What are those complications that you're referring to?
Dr Jakobovits: Well, firstly, the complications are the potential risk of any operation, but in someone who is her size, venous thrombosis, pulmonary embolism, infection of the wound, the operation she would presumably have would be some sort of gastric reduction procedure, and a leak from the surgery, which would create, you know, intra-abdominal sepsis would be a disaster. And, in fact, one of the unfortunate things about asking me is that I see quite a lot of patients in medical panels who are suing their surgeon, and gastric leaks are incredibly common. I mean, I don't think they are, but I'm just seeing one end of the spectrum. But, they're not - what I'm saying that it's a risky procedure with subsequent potential complications.
[118] Refer Transcript Day 1 at P-122.
Dr Small agreed that such surgery could cause Ms Davis’s Colitis to flare up and that such complications could be “horrendous” and result in death.[119] Dr Jakobovits opined that provided that Ms Davis “was keen”, she did not have any major medical issues and her Colitis was in remission, his approach would be to refer her to a bariatric surgeon for advice about whether gastric sleeve surgery was indicated. Dr Jakobovits said that the bariatric surgeon would work with a multidisciplinary team consisting of a psychiatrist, dietician, physician and perhaps an endocrinologist to undertake a “holistic assessment of what's going on and what the risks and benefits are”.[120] Dr Jakobovits did not provide an opinion as to whether Ms Davis was a candidate for gastric sleeve surgery.
[119] Refer Transcript Day 2 at P-64.
[120] Refer Transcript Day 3 at P-123.
The NDIA contends that Rule 5.6 of the Access Rules applies in this case. This rule provides as follows:
An impairment may require medical treatment and review before a determination can be made about whether the impairment is permanent or likely to be permanent. The impairment is, or is likely to be, permanent only if the impairment does not require further medical treatment or review in order for its permanency or likely permanency to be demonstrated (even though the impairment may continue to be treated and reviewed after this has been demonstrated.
The Tribunal acknowledges that Dr Jakobovits has indicated his approach would be to refer Ms Davis off to seek advice from a bariatric surgeon if the circumstances referred to in the above paragraph were met. However, Dr Jakobovits nevertheless acknowledged that there were risks with this type of surgery that would need to be taken into account as detailed above in paragraph [‎120]. Dr Jakobovits gave evidence that “gastric sleeving” was the same as a “gastric reduction”. He explained the procedure as follows: “…you actually slice off about two-thirds of the stomach…Yes. So, with a staple line, and therefore you're left with a much smaller stomach. But, it does require stapling across this whole area, and … the potential risk of a leak”. When questioned about whether the risks of gastric sleeving had reduced over the last five to 10 years, he responded, “the risks are always decreasing but they're certainly not eliminated”.[121]
[121] Ibid.
The Tribunal also notes the opinion provided by Dr Machart reference to concerns about Ms Davis undergoing an anaesthetic (albeit for the orthopaedic surgery) on account of her Obesity – see paragraph [‎66].
The Tribunal finds that bariatric surgery is not an appropriate medical treatment for Ms Davis based on medical evidence referred to in paragraphs [‎120] to [‎124] above and due Ms Davis’s concerns about the risks involved in gastric sleeving which would involve the removal of two-thirds of her stomach. The Tribunal considers Ms Davis’s concerns to be reasonably held, given Dr Jakobovits indications of the risks and complications that may arise, the advanced state of Ms Davis’s Obesity and her fear about whether she could safety undergo a general anaesthetic (a concern shared by Dr Machart). The Tribunal does not consider that Rule 5.6 applies in the circumstances of this case.
As mentioned above, Ms Davis has tried to use the medication, Duromine, previously to achieve weight loss. This was successful when Ms Davis was much younger. More recently, however, this medication has proven unsuccessful due to the side effects experienced by Ms Davis as referred to above in paragraph [104]. The Tribunal accepts Ms Davis’s evidence in this regard and is satisfied that Duromine is not an appropriate treatment remaining as an option for Ms Davis. The NDIA contends that Ms Davis had not tried any other type of weight loss medication. However, there was no evidence before the Tribunal that other weight-loss medication had been recommended to Ms Davis by her treating health professionals, nor did the NDIA specify what other weight-loss medications might be available on the market for her to try.
There is no medical evidence before the Tribunal recommending surgical intervention to address any of Ms Davis’s impairments involving musculoskeletal, movement-related, sensory, or cardiovascular functions. Specifically, Ms Davis has been examined by neurosurgeons who did not recommend any neurosurgical interventions in light of her comorbidities.[122] In Dr Machart’s opinion, he does not consider that Ms Davis should undergo surgical treatment on her knees given the current state of her Obesity, for the reasons set out in paragraph [‎66].
[122] Refer Letter Dr Chen, neurosurgery Registrar dated 18 January 2017 at page 2.
The NDIA contends that it is open to the to find that Ms Davis had not “fully engaged with treatment at a pain management clinic”.[123] Ms Davis has attended three different pain clinics and help her to manage the pain, but it has not led to the substantial alleviation of her pain, and she was ultimately discharged from the clinic. The Tribunal is satisfied that Ms Davis has exhausted this treatment option.
[123] Refer NDIA’s Closing Submissions at [272].
Finally, the Tribunal also accepts that Ms Davis is unable to take anti-inflammatory medication for her Osteoarthritis in her knees, due to her Colitis.
In all those circumstances, the Tribunal is satisfied that there are no known, available, and appropriate evidence-based clinical, medical, or other treatments that would be likely to remedy her impairments which involve loss of or damage to her musculoskeletal, movement-related, sensory, or cardiovascular functions. For this reason, the Tribunal finds that those impairments are “permanent” and that accordingly, Ms Davis satisfies the second criterion under subsection 24(1)(b) of the NDIS Act.
Impairments to digestive function
At the hearing, Ms Davis confirmed that she was first diagnosed at the Queen Victoria Hospital with Colitis in 1987, when she was about 25 years of age.[124]
[124] Refer Transcript Day 1 at P-40.
Dr Small states that “severe flareups” of this condition consist of significant bleeding and mucus coming up from the bowels, as well as severe abdominal pains, heartburn, fatigue, and bloating.[125] Dr Small refers to Ms Davis having experienced “mild, moderate and severe flareups” over the past 33 years, including severe flare ups in 2014, 2016 and 2018 requiring her to defer university studies in those years and a moderate flare up in 2020. Dr Small states that Ms Davis had mild to moderate flare ups every few months.[126] Dr Small states that it “takes months” to bring those flare ups under control, “despite many drugs and enemas”.[127]
[125] Refer Exhibit A7 (Dr Small’s report dated 22 September 2020) at page 1.
[126] Ibid.
[127] Ibid.
Ms Davis states that she sees a gastroenterologist at Western Health every six months and has a colonoscopy for polyp removal, approximately every two years due to her Colitis, as well as checking for bowel cancer.[128]
[128] Refer Ms Davis’s Witness Statement at [65] and [67].
At the hearing Ms Davis was asked about the medication she took for her Colitis. She gave evidence that she has been prescribed 4mg of Salofalk daily for this condition, but that she only took 1.5mg daily.[129] When asked why she took less than the prescribed dosage, Ms Davis told the Tribunal she has “a low tolerance for drugs”,[130] citing an example that she had to request not to have too much anaesthetic when having the colonoscopies, because they had struggled to bring her out of the anaesthetic.[131] Ms Davis expressed concerns that the Salofalk could affect the liver and pancreas, and said, “…so why wouldn’t I just take what I need to keep the disease under control?”.[132]
[129] Refer Transcript Day 1 at P-16.
[130] Ibid.
[131] Ibid.
[132] Ibid at P-17
At the hearing, Ms Davis confirmed that during the 10 or 11 years between being diagnosed with Colitis and a flare up she experienced in 1997, she had been on Prednisolone or other steroid medication.[133] Ms Davis said that back then, she was “pretty much” taking the doses of medication that had been prescribed by “the medicos”.[134] During cross-examination, Ms Davis was taken to a notation made by her general practitioner on 24 November 1997 stating that Ms Davis had experienced, “quite a severe exacerbation of bloody diarrhea over the last three weeks, mainly due to her poor compliance to medications recently”.[135] Ms Davis said she did not recall this and thought she had been compliant with all her medications back then.[136]
[133] Refer Transcript Day 1 at P-25.
[134] Ibid at P-40.
[135] Ibid.
[136] Ibid at P-41.
Ms Davis confirmed that she saw Professor Yeoman, Director of Gastroenterology, who had confirmed that by February 1998, this particular episode was back under control and that thereafter, a pattern emerged where when Ms Davis had a flare up, she was on a high dose of steroids and she would gradually wean off of them.[137]
[137] Ibid.
In late-1998, the medical records show Ms Davis was reviewed by Dr Kronborg, gastroenterologist, and in his letter to her general practitioner, referred to possible options of surgery and the use of drugs such as Azathioprine or Imuran, an immunosuppressant medication. Ms Davis confirmed she took this medication, and stopped taking the oral steroids, in about the end of 1998 or early 1999.[138] Ms Davis confirmed that she had some flare ups during 1999, but they were mostly settled using topical treatments (that is, enemas).[139]
[138] Ibid.
[139] Ibid.
In April 2001 and August 2003, colonoscopies were performed, and it was reported that Ms Davis’s Colitis was quiescent or inactive.
On 7 March 2011, Dr Maqboul, Gastroenterology Registrar at Western Health, states in a letter that Ms Davis had reported that her last colonoscopy was two years prior, and that “her symptoms are quite well controlled”.[140] The Registrar also noted as follows: “Interestingly, Karen has been very concerned about the side effects of the medication and is therefore predominantly self-managing the doses of these”.[141] A further colonoscopy performed in July 2011 was recorded as normal, with random biopsies recorded as showing some non-specific colitis of a mild degree.
[140] Refer Hearing Tender Bundle at page 404.
[141] Ibid.
Thereafter, Ms Davis was reviewed by a gastroenterologist annually. In a letter by a gastroenterologist to her general practitioner, they state that Ms Davis had been “feeling well with no symptoms to suggest active disease” and that she had reported normal bowel function.[142] The gastroenterologist also notes: “She says that since she has been on the naturopath’s glutamine, her bowels have been well behaved. She is currently on a minimal dose of immunosuppressive treatment with Imuran, 50mg daily…”.[143] Further, the gastroenterologist stated as follows, with which Ms Davis, at the hearing, said that “this sounded like her”:[144]
Karen wants to wean off this medication by herself. I advised her against this given her previous frequent flares requiring Prednisolone to induce remission. She says she will give it a try anyway.
[142] Refer Report by Dr Quach (Gastroenterologist) dated 19 March 2012.
[143] Ibid.
[144] Ibid; Transcript Day 1 at P-43.
In the next review of Ms Davis in March 2013, no symptoms were recorded to suggest active colitis at that time. In the review in April 2014, occasional diarrhea was recorded but otherwise, Ms Davis had reported feeling well. A further colonoscopy was performed in May 2014 showing inactive colitis.
Ms Davis experienced a flare up of this condition in September and October 2014. In a letter dated 1 December 2014, a gastroenterologist comments that it was unfortunate Ms Davis was not seen by the casualty department.[145] Instead, the letter records that Ms Davis was seen by Dr Small reporting symptoms of abdominal discomfort and bowel movements up to 6 to 10 times per day with rectal blood, and that she was given a course of antibiotics, Keflex and Flagyl. Ms Davis was also given a three-week course of Prednisolone, but this was stopped due to “high sugars”.[146] At about this time, Ms Davis was diagnosed with Type II diabetes. The gastroenterologist reported that she still had intermittent “PR blood” and about four to five bowel movements per day.[147] The gastroenterologist referred to having discussed with Ms Davis recommencing the immunosuppressant medication, Imuran, but that Ms Davis was “extremely unkeen”.[148] The specialist commented that Ms Davis needed to return to the casualty department if her symptoms flared up. The gastroenterologist also states that she was trying to organise an urgent colonoscopy for Ms Davis.
[145] Refer Letter by Dr Lachal dated 1 December 2014.
[146] Ibid.
[147] Ibid.
[148] Ibid
The colonoscopy took place three months later on 14 January 2015, showing moderate inflammation, from the rectum to the descending colon secondary to the left-sided ulcerative colitis.[149]
[149] Colonoscopy Report of Dr Pham dated 14 January 2014.
In March 2015, Dr Lachal, gastroenterologist, states in her letter to Dr Jaberi that Ms Davis had previously been on Azathioprine but had taken herself off it.[150] The gastroenterologist refers to having increased the dose of Salofalk which appeared to have “done the trick” and that Ms Davis was, at that time, “completely well with no GI symptoms”.[151]
[150] Letter by Dr Lachal to Dr Jaberi dated 16 March 2015.
[151] Ibid.

Following a further review with the gastroenterologist in September 2016, following another flare up at that time, concerns were raised by the specialist about the impacts of Ms Davis not complying with the doctor’s advice. Specifically, the gastroenterologist states as follows in her letter dated 12 September 2016:
…this is indeed a flare and I would like to increase her Salofalk to start with 4 g daily. She is aware she can take all 8 tablets of the 500 mg dose in one go…it is likely that we will need to call upon azathioprine and I do wonder about her compliance down the track. At this stage she is unkeen but is aware that this is likely going to be needed… It is important to try and get her into clinical and endoscopic remission, as looking through her history it’s likely that Karen has been grumbling along for some time with incomplete disease suppression due to predominantly, from what I can see, a problem with compliance issues.[152]
[152] Letter by Dr Lachal to Dr Jaberi dated 12 September 2016.
During cross-examination, Ms Davis accepted that she had started to push back on advice from the medical professions, because she had “seen what Prednisolone had done” and had “fought with [her] weight ever since”.[153] She said she did not want to take any more medication that would “help” her put on more weight. She said she was going to take “the level of medication that’s just going to work for [her]” and not “overdosing”.[154]
[153] Refer Transcript Day 1 at P-45.
[154] Ibid at P-29.
In March 2017, following a further review of Ms Davis, Dr Nalankilli, gastroenterologist, states, in his letter, that Ms Davis was “not keen to try immunomodulators at that point” and that she had not had any flares requiring steroid therapy.[155] The specialist stressed to Ms Davis the importance of controlling the inflammation as best as possible and preventing further complications.
[155] Refer Letter by Dr Nalankilli to Dr Jaberi dated 8 March 2017.
In June 2017, the gastroenterologist reports good results from the suppositories that she had recommended Ms Davis use, and in fact, so much so, that Ms Davis had taken herself off of them and the enemas. The specialist recommended that Ms Davis recommence the suppositories and enemas.[156]
[156] Refer Letter by Dr Nalankilli to Dr Jaberi dated 13 June 2017.
Thereafter, the reviews took place annually once more. In August 2018, there were no flare ups reported and in January 2019, and again in 2021, colonoscopies were performed on Ms Davis, showing that the disease was quiescent or inactive.[157] Ms Davis confirmed that she had not “disengaged” from the gastroenterology clinic at Western Health and explained that with the Covid-19 pandemic, it was hard to get appointments. She said Dr Jakobovits had told her that the results of the colonoscopy performed on 17 March 2021 had shown that her lower dose of medication is maintaining the disease well.[158] Ms Davis said she had not been back to the gastroenterology team to discuss those results and was waiting for an appointment to do so.[159]
[157] Refer Exhibit TDH1 for the Colonoscopy Report dated 17 March 2021.
[158] Refer Transcript Day 1 at P-46 and Exhibit THD1.
[159] Ibid.
The evidence above leads the Tribunal to be satisfied that while there have certainly been compliance issues arising in relation to Ms Davis following the advice of her specialists, Ms Davis is a person who is required to manage a complex suite of medical conditions she has been suffering from for some many decades. In that context, the Tribunal gained an impression that Ms Davis has developed a reasonable understanding over the years in relation to how best to balance her medications, in light of her various comorbidities, and how to prevent, as much as possible, further flare ups of her Colitis by avoiding certain foods. The Tribunal accepts that Ms Davis was faced with a challenge of needing to balance the recommended treatment for the management of this condition which included the use of steroid medications. Those medications had side effects including Ms Davis’s past experience being that they caused her to gain significant excess weight. The Tribunal considers that Ms Davis’s reluctance to continue to use that medication, unless from time to time it became necessary to do so, was reasonable in her circumstances.
Based on the medical and other evidence referred to above describing the various medical and allied health treatments undertaken by Ms Davis to date, the Tribunal is satisfied that there are no known, available, and appropriate evidence-based clinical, medical, or other treatments that are likely to remedy her impairments involving loss of or damage to her to digestive function. Ulcerative colitis was described as a “chronic disease” by Dr Jakobovits at the hearing. It is a condition that Ms Davis has had for 34 years and which she continues to be reviewed by specialists under the supervision of her general practitioner. It was clear on the evidence that the severity of Ms Davis’s Colitis has fluctuated significantly as the decades have passed, with this condition being a relatively settled state at the moment. However, Ms Davis’s Colitis still exists and flare ups are likely to happen again based on past history. Rule 5.5 of the Access Rules provides that an impairment may be permanent notwithstanding that the severity of its impact on the functional capacity of the person may fluctuate or there are prospects that the severity of the impact of the impairment on the person’s functional capacity may improve. This provision is particularly relevant in relation to impairments arising from a condition such as ulcerative colitis.
For those reasons, the Tribunal finds that the impairment involving loss of or damage to Ms Davis’s digestive function, is “permanent”.
Impact
Under the third criterion under subsection 24(1)(c) of the NDIS Act, the Tribunal must consider whether it is satisfied that Ms Davis’s permanent impairments result in “substantially reduced functional capacity” to undertake one or more of the activities of communication, social interaction, learning, mobility, self-care, or self-management.
Rule 5.8 of the Access Rules provides as follows (emphasis added in bold):
5.8 An impairment results in substantially reduced functional capacity of a person to undertake one or more of the relevant activities—communication, social interaction, learning, mobility, self-care, self-management (see paragraph 5.1(c))—if its result is that:
(a) the person is unable to participate effectively or completely in the activity, or to perform tasks or actions required to undertake or participate effectively or completely in the activity, without assistive technology, equipment (other than commonly used items such as glasses) or home modifications; or
(b) the person usually requires assistance (including physical assistance, guidance, supervision or prompting) from other people to participate in the activity or to perform tasks or actions required to undertake or participate in the activity; or
(c) the person is unable to participate in the activity or to perform tasks or actions required to undertake or participate in the activity, even with assistive technology, equipment, home modifications or assistance from another person.
One of the prescribed activities under subsection 24(1)(c) is “mobility”. In paragraph 8.3 of the NDIS Operational Guidelines, the term “mobility” is defined as follows:
Mobility: this means the ability of a person to move around the home (crawling/walking) to undertake ordinary activities of daily living, getting in and out of bed or a chair, leaving the home, moving about in the community and performing other tasks requiring the use of limbs;
The Tribunal does not consider this definition of “mobility” in the Operational Guidelines to be inconsistent with the provisions of the NDIS Act or the Access Rules and considers it is appropriate to apply that definition in this case.
Ms Ferguson’s OT assessment of Ms Davis’s functionality in the area of mobility was described as follows:[160]
[160] Refer Exhibit R6.
…[Ms Davis] ambulates around the outside of her home without mobility aids, using garden furniture as props and she is at significant risk of tripping and falling.
The common living area is on the south side of the home and opens onto a covered patio– there is only one wide brick step, the width of the door, which Karen is able to manage by relying on the use of props (a bench) to support her when accessing this area. She enters the door by transferring side on and shuffling herself through the door frame relying on props to stabilise her.
Karen uses furniture and benches as props for all of her indoor mobility.
Outdoors she walks from a range of seats she has positioned around the home.
…
Participant Reported:
• She has difficulty in getting out of bed due to pain and restricted range of hip and knee movement making it difficult to move and stand without using furniture for support. She rolls on her side to get into bed and sits on the side of the bed holding a cupboard door frame as a prop to pull herself up off the bed.
• She experiences pain in her lower back, shoulders, neck and knees and reduced range of movement making it difficult for her to get in and out of a chair and in and out of her car. She is unable to use her lounge as it is too low, and she lacks the strength in her lower limbs to push up off the lounge. The lounge is a standard seat. As she cannot use her lounge she has purchased an egg chair to sit in to watch TV as it is higher, has a frame for her to push up from her arms on and a lower frame to push her feet against which assists her when standing up.
• Karen is unable to independently use stairs at all. She can climb 1-2 steps (maximum) using a handrail and both hands walking sideways, then becomes breathless and fatigued. She becomes fearful and anxious, so she avoids using stairs.
• She experiences fatigue and shortness of breath on movement of more than steps.
• She experiences feelings of exhaustion first thing in the morning due to disturbed and inadequate amount of sleep. She wakes up feeling fatigued – this affects her lowered energy and her balance.
• She has reduced motivation to be physical due to constant feelings of lethargy – a side effect of insufficient sleep and her medication.
• She uses a Pride Go Go, a four-wheeler mobility scooter once she leaves her home. The scooter remains stored in the back of her car for her to use for shopping and appointments. She is unable to transfer it out of her car without assistance, so has to wait to ask for assistance. The weight of the scooter is 35kg fully assembled. The weight of the battery is between 7-8 kg which she struggles to lift into the car, but she completes this task then sits in the driver’s seat and recovers from shortness of breath.
• She has had falls in the past but not had a fall in the paste year. She has become more mindful of her mobility limitations and avoids uneven surfaces and is more conscious of her safety since living alone.
Observed:
•          Fatigues upon any exertion.
•          She cannot lift the scooter in or out of the car without assistance.
• She is at risk of further damaging her back and knees when participating I this activity.
•          She is very determined to have independence outside her home.
Ms Davis gave evidence that some days she could not straighten up for the whole day, but for “the majority of the days” she is able to “straighten up at about lunch time”, although she said she “is not pain free”.[161] The Tribunal accepts Ms Davis’s evidence she is required to “furniture walk” to mobilise within her house or she uses a rail in the bathroom that runs along the bathroom wall. The Tribunal accepts that she does not use the upper level of her two-storey house, because she cannot go up and down the stairs. The Tribunal accepts that Ms Davis is unable to stand for long periods. The Tribunal accepts Ms Davis’s evidence that she uses a shower chair when she is showering.
[161] Refer Transcript Day 1 at P-19.
Ms Davis states that she owns and drives a Mitsubishi Outlander. The Tribunal is satisfied that when Ms Davis in the community, that she is unable to walk long distances and uses a mobility scooter to move around in the community, for instance, when she goes shopping.[162] The Tribunal accepts that Ms Davis is unable to bend to pick things up and needs to use a “pick up” stick for this purpose. The Tribunal accepts that Ms Davis cannot use her lower limbs to squat or kneel due to her knee issues from the Osteoarthritis. The Tribunal is satisfied that Ms Davis is substantially limited in being able to undertake tasks involving her upper limbs such household chores requiring her to lift heavy objects or to raise her arms above her head. The Tribunal accepts Ms Davis’s evidence that she was unable to change the bottom sheet on her bed for four months, because does not have the capacity to lift her mattress to remove and replace the sheet without another person being there to assist her to do so.
[162] Refer Transcript Day 1 at P-28.
Taking those matters into account and the evidence of Ms Ferguson as referred to in paragraph [‎35] and [‎157], the Tribunal concludes that Ms Davis is unable to “participate effectively or completely” in the activity of “mobility” without the use of assistive technology or equipment such as a mobility scooter (which the Tribunal does not consider to be a commonly used item), or without home modifications.
For those reasons, the Tribunal finds that Ms Davis’s permanent impairments which involve loss of or damage to her musculoskeletal, movement-related, sensory, and cardiovascular functions have resulted in her having a substantially reduced functional capacity to undertake the activity of mobility. The Tribunal does not consider it necessary to proceed to determine whether this is also the case in respect of the other five prescribed activities or in relation to her other impairment involving a loss of or damage to her digestion function.
Accordingly, the Tribunal is satisfied that the criterion in subsection 24(1)(c) of the NDIS Act has been met by Ms Davis, in the circumstances of this case.
Capacity for social and economic participation
The fourth criterion under subsection 24(1)(d) of the NDIS Act requires the Tribunal to consider whether Ms Davis’s permanent impairments affect her capacity for social or economic participation. The NDIA concedes that this requirement is met in respect of the impairment caused by Ms Davis’s degenerative conditions in her spine, knees, and shoulders, but not in relation to her OSA.[163]
[163] Refer NDIA’s Closing Submissions at [413] and [414].
Based on the finding made in paragraph [‎‎160] and [161], the Tribunal is satisfied that Ms Davis’s permanents impairments to her musculoskeletal, movement-related, and sensory functions affect her capacity for social or economic participation. The reason for this is that those impairments affect the degree to which Ms Davis is able to ambulate in the community, and use her arms while doing so, including undertaking a simple task such as shopping (constituting one example of economic participation).
Accordingly, the Tribunal is satisfied that the criterion in subsection 24(1)(d) of the NDIS Act has been met in the circumstances of this case.
Requires lifetime support
The fifth and final criterion in subsection 24(1)(e) of the NDIS Act requires the Tribunal to consider whether Ms Davis is likely to require support under the NDIS for her lifetime.
The Tribunal has found that Ms Davis has permanent impairments which involve loss of or damage to her musculoskeletal, movement-related, and sensory functions. The Tribunal is satisfied on the evidence from Ms Davis and corroborated by the medical evidence that those impairments are debilitating. The only chance of any improvement to those conditions appears to lie in Ms Davis achieving significant weight loss, which she has attempted to achieve, unsuccessfully, over the previous three decades. Ms Davis’s medical conditions of Spondylarthrosis, Osteoarthritis and Shoulder Condition are all degenerative in nature and Dr Small expects the level of Ms Davis’s impairments to her musculoskeletal, movement-related, and sensory functions to worsen over time, as do the other medical experts called by the NDIA to give evidence in this proceeding.
For these reasons, the Tribunal is satisfied that Ms Davis is likely to require support for her lifetime under the NDIS for her permanent impairments which involvement the loss of, or damage to, her musculoskeletal, movement-related, and sensory functions.
CONCLUSION
The Tribunal concludes that Ms Davis has met each of the five mandatory criteria set out in s 24(1) of the NDIS Act and qualifies for access to the NDIS.
The Tribunal sets aside the Decision Under Review and in substitution, decides that Ms Davis’s access request is granted.

I certify that the preceding 170 (one hundred and seventy) paragraphs are a true copy of the reasons for the decision herein of Member K. Parker.

......................[Sgd]..........................
Associate
Dated: 14 January 2022

Date of hearing: 17, 18 and 19 May 2021

Date last submission lodged: 2 July 2021

Counsel for the Applicant: Ms Georgina Rhodes

Solicitors for the Applicant: AED Legal Centre

Counsel for the Respondent: Ms Alexandra Darcy

Solicitors for the Respondent: Ms Sarah Wise, NDIA

[2022] AATA 40

14 January 2022

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