Desai and National Disability Insurance Agency

Desai and National Disability Insurance Agency [2023] AATA 3004 (20 September 2023)
Division:NATIONAL DISABILITY INSURANCE SCHEME DIVISION
File Number(s): 2021/1847
Re:Seema Desai
APPLICANT

AndNational Disability Insurance Agency
RESPONDENT

DECISION
Tribunal:Senior Member P J Clauson AM
Date:20 September 2023
Place:Brisbane

Click here to enter decision.
...................................[SGD].....................................
Senior Member P J Clauson AM
Catchwords
NATIONAL DISABILITY INSURANCE SCHEME – request for access – disability criteria – early intervention requirement – chronic nociplastic pain – permanent impairment
Legislation
National Disability Insurance Scheme Act2013 (Cth)
National Disability Insurance Scheme (Becoming a Participant) Rules2016
Cases
National Disability Insurance Agency v. Davis [2022] FCA 1002
Secondary Materials
NDIS: Operational Guidelines – Becoming a Participant
REASONS FOR DECISION
Senior Member P J Clauson AM
20 September 2023
FACTUAL BACKGROUND

The applicant seeks, by way of application, a review of an internal review decision of the respondent of 2 March 2021 (the reviewable decision) pursuant to section 100(6) of the National Disability Insurance Scheme Act2013 (the Act) which confirmed a decision made on 5 November 2020 refusing the applicant’s request to have access to the National Disability Insurance Scheme (the Scheme).[1]
[1] T13, T-Documents.
The applicant’s application to this Tribunal was made within the statutory time limit.
ISSUES AND THE LEGISLATIVE FRAMEWORK
As this matter relates to the question of the applicant’s qualifications to access the Scheme, a consideration as to if the applicant’s circumstances fulfil the requirements of the legislation needs to be undertaken.
The first consideration is to establish if the applicant meets the criteria set out in section 21(1) of the Act to gain access to the Scheme.
The access criteria is met if the person can satisfy the CEO that:
(a)They meet the age requirement (section 22); and
(b)They met the residence requirement (section 23); and
(c)They meet the disability requirement (section 24); or
(d)They meet the early intervention requirement (section 25).
The respondent accepts that this application satisfies criteria set forth in sections 22 and 23 of the Act.
The issue before the Tribunal to be considered is therefore whether the applicant satisfies the disability criteria set out in the Act at section 24 or the early intervention criteria set out in section 25.
Relevantly, section 24(1) and (2) set out the disability requirements for an applicant to satisfy before access to the Scheme can be approved. The applicable section states:
(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 and 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.
Alternatively, section 25(1) to (3) sets out the early intervention requirements required for a person to satisfy in order to be granted access to the Scheme. The applicable section states:
(1) A person meets the early intervention requirements if:
(a) the person:
(i) has one or more identified intellectual, cognitive, neurological, sensory or physical impairments that are, or are likely to be, permanent; or
(ii) has one or more identified impairments that are attributable to a psychiatric condition and are, or are likely to be, permanent; or
(iii) is a child who has developmental delay; and
(b) the CEO is satisfied that provision of early intervention supports for the person is likely to benefit the person by reducing the person’s future needs for supports in relation to disability; and
(c) the CEO is satisfied that provision of early intervention supports for the person is likely to benefit the person by:
(i) mitigating or alleviating the impact of the person’s impairment upon the functional capacity of the person to undertake communication, social interaction, learning, mobility, self‑care or self‑management; or
(ii) preventing the deterioration of such functional capacity; or
(iii) improving such functional capacity; or
(iv) strengthening the sustainability of informal supports available to the person, including through building the capacity of the person’s carer.
Note: In certain circumstances, a person with a degenerative condition could meet the early intervention requirements and therefore become a participant.
(2) The CEO is taken to be satisfied as mentioned in paragraphs (1)(b) and (c) if one or more of the person’s impairments are prescribed by the National Disability Insurance Scheme rules for the purposes of this subsection.
(3) Despite subsections (1) and (2), the person does not meet the early intervention requirements if the CEO is satisfied that early intervention support for the person is not most appropriately funded or provided through the National Disability Insurance Scheme, and is more appropriately funded or provided through other general systems of service delivery or support services offered by a person, agency or body, or through systems of service delivery or support services offered:
(a) as part of a universal service obligation; or
(b) in accordance with reasonable adjustments required under a law dealing with discrimination on the basis of disability.
CONTENTIONS AND EVIDENCE
The applicant agitates in her application that the disability from which she suffers and upon which she relies to seek access to the Scheme is a chronic pain syndrome secondary to lumbar disc prolapse, spinal stenosis and sacroiliac joint dysfunction.[2]
[2] T1A.
The applicant stated that her chronic pain condition is permanent, significantly impacts her daily function, is degenerating over time and requires ongoing NDIS support for her lifetime to be managed.[3]
[3] T14.
The applicant further contends that intervention is crucial to prevent the deterioration of her condition, that she is no longer able to financially access the necessary supports she needs and that “all relevant therapies have been trialled to date”.[4]
[4] T15; T16.
The respondent does not accept, on the evidence available, that the applicant has a disability that is able to fulfil the access criteria of the Act at:
(a)Section 24(1)(b),(c) and (e) of the disability requirements; and
(b)Sections 25(1)(a) and 25(3) of the early intervention requirements;
and thus, cannot qualify to be admitted into the Scheme.
In addition to her written materials lodged with the Tribunal, the applicant provided oral evidence directly and was cross-examined by the representative for the respondent. She also relied on the oral evidence from a number of witnesses being her husband and friends, her Physiotherapist, her Myotherapist, her Chiropractor and a friend who was also a registered nurse.
The respondent provided the Tribunal with a substantial number of medical reports from the applicant’s treating professionals as well as written submissions. At the hearing they called an independent Rehabilitation and Pain Medicine Specialist and an independent Occupational Therapist to give oral evidence in respect of their assessments and subsequent reports of the applicant.
The hearing was conducted over three days and was successfully conducted using Microsoft Teams video-conferencing facilities.
The applicant told the Tribunal she had injured her back in 2011 whilst she was five months pregnant, when she fell on a wooden floor and landed on her coccyx after the heel of her shoe had given way.[5]
[5] R2.
She had complained of increasing chronic pain since that time and had consequently undertaken a number of treatments and therapies to address the chronic pain condition.
The applicant told the Tribunal that the disability acquired from the fall was permanent and had an effect on her functional capacity.
She claimed that it was difficult for her to arise in the mornings and that she was unable to get out of bed and prepare her twin children’s lunches and support them to ready themselves for school. This was “due to fatigue, drowsiness and often pain levels especially in the morning”.[6]
[6] Transcript of Proceedings, page 14, lines 38 to 40.
Her evidence was that she had to constantly change her position when sitting for long periods, as recommended by the Eastern Health Pain Management Program, which had been suggested by Dr Thomas as a result of his examination and report on her together with that from “various other professionals”.[7]
[7] Transcript of Proceedings, page 14, line 44.
She also stated that she had given up her permanent job in the public health industry post- COVID period as she found it not to be feasible driving an hour each way to and from her place of work.
The applicant stated, in addition to having her driving time restricted to no more than 10 or 15 minutes, that she was also reliant upon friends to pick her up and bring her home from social events and this also restricted her community access. She contended that this also restricted her ability to shop independently without the support of another party such as her husband. She said that she had a four-wheeled walker but then unless she has another person to help her get it in and out of the vehicle, she is unable to be independent.
The applicant also contended that she is effectively prevented from cooking as she cannot lift pots and pans or stir food consistently. She could do some chopping and sat to do that.
The applicant told the Tribunal that she had difficulty with showering and personal hygiene at times and had to seek her husband’s assistance to help clean her lower body area.
She stated that her social situation is restricted because of her inability to drive for any length of time and that her condition relevantly affected her showering, dressing, shopping, cleaning, meal preparation and cooking, sleeping, walking and exercise.
The applicant stated that she had done everything recommended in her pain management program: the exercise program, physiotherapy, chiropractic and hydrotherapy, but also that sometimes she could not get to her hydrotherapy to gain the benefit from it as she relied on friends to drive her.
The applicant stated that her lack of sleep had affected her driving to the extent she had, for safety reasons, stopped as she was getting drowsy behind the wheel.
The applicant told the Tribunal that she had suffered panic attacks because of the pain she was suffering and had suicidal ideation from that. She stated that she had injections and denervation, but that her condition had continued to deteriorate notwithstanding these treatments.
The applicant also suffers from morbid obesity, an as yet untreated hernia, and a psychosocial disorder which was mentioned but unsupported by any relevant evidence or report.[8]
[8] Transcript of Proceedings, page 72, lines 33 to 36.
The applicant contends that her impairment is permanent and satisfies section 24(1)(b) of the Act based upon the evidence she has provided to the Tribunal.
Contrary to the applicant’s assertion of permanency regarding her impairment, the respondent contends that the evidence before the Tribunal indicates that such permanency has yet to be established.
The respondent’s position is that it accepts that the applicant suffers from a pain condition but considers that other conditions of the applicant may well be relevant to the applicant’s disability and impairment beyond simply the presence of pain itself in the equation.
Evidence was provided by the applicant’s friend, Irene Pol, that she had seen how the applicant’s ability to engage in social interaction had ‘significantly diminished’ in the period since her fall.[9] Ms Pol stated that she and the applicant did not go out to socialise as much as they once did, that they now resorted to messaging and telephone contact and she would be much more likely to visit the applicant at home now than otherwise.
[9] Transcript of Proceedings, page 80, line 24.
Ms Pol stated that they would meet every three months or so now instead of monthly as they once did. Ms Pol also stated that she had observed the effect pain had inflicted on the applicant, stating “…you’ve really been laid low by the amount of pain that you’ve been in”.[10]
[10] Transcript of Proceedings, page 81, line 13.
The applicant’s friend, Ms Rekha Gupta, was also called as a witness and told the Tribunal that she had seen the functionality of the applicant ‘deteriorate a lot’ over the last six years.[11]
[11] Transcript of Proceedings, page 83, line 20.
Ms Gupta stated that she and her husband lived not far from the applicant, and that her husband would sometimes pick up the applicant’s children from school and do some shopping for her. She noted the applicant’s difficulty in “fulfilling tasks, bending and asking for help to attend appointments, and going to like a market also”.[12]
[12] Transcript of Proceedings, page 83, lines 36 to 37.
Ms Gupta also remarked that the applicant was using her walking frame, had difficulty to get in and out of the car unaided and needed another person’s assistance to fold up and place the walking frame in the car.
The statement was made by Ms Gupta that the applicant was undertaking pain therapy classes but did not know how much that was helping.
Ms Gupta’s evidence was that if her family were visiting the applicant’s home, they would make meals and bring them as the applicant was unable to cook and reliant on takeaway food nearly every day and they would do this two or three times per week.
She also told the Tribunal that when the applicant did go out on rare occasions, she had observed the applicant using her walking frame.
The Tribunal heard evidence also from Ms Alison Menogue, the applicant’s Myotherapist. Ms Menogue’s evidence was that the applicant was suffering from a hernia which was untreated. The hernia caused a lack of core stability derived from having a good abdominal wall “that’s definitely holding her back from improvement”.[13]
[13] Transcript of Proceedings. page 105, lines 1 to 2.
The hernia was impeding the applicant’s functional improvement by preventing her from engaging in exercises to build her core stability, together with creating difficulties in receiving her myotherapy treatment.
Ms Menogue, in response to a question from Mr Lessing, Counsel for the respondent, confirmed that the applicant would not be able to improve without that abdominal wall stability to support the pelvis and pelvic floor. The lack of strength from the abdominal wall makes stabilisation more difficult. She also stated the applicant had to lie on her side for myotherapy treatments because the hernia prevented her from lying flat on the table.
The applicant had attended Ms Menogue’s rooms for treatment since 2016 or 2017 and it would appear, rather than weekly, she attended when she reported that she was struggling with pain. She commenced pain management classes with Ms Menogue in early 2022.
Ms Menogue told the Tribunal in cross-examination that since 2018 or 2019 the applicant was able to reduce her level of strong pain medication ‘significantly’ through a combination of myotherapy and chiropractic therapy. Ms Menogue considered that the applicant still needed some pain medication, but also argued that manual therapy combined with rehabilitation were a better approach to relieve pain than manual therapy alone.[14]
[14] Transcript of Proceedings, page 106, lines 23 to 27.
Ms Menogue agreed that under cross-examination that the applicant’s capacity was impacted by her morbid obesity insofar as mobilising and endurance were adversely affected and she did state; “that’s always a factor with, you know, bad pain and function”.[15] She further agreed that there was at least a correlation between pain and obesity stating “… it does play a part”.[16]
[15] Transcript of Proceedings, page 106, lines 35 to 38.
[16] Transcript of Proceedings, page 106, line 43.
Ms Menogue also stated that she “had multiple patients that, yes, are in that similar situation but I also have patients that are in that obese category and, yes, are able to function fairly normally”.[17]
[17] Transcript of Proceedings, page 106, lines 38 to 40.
Ms Menogue was re-examined by the applicant regarding whether she would require more medication if she ceased myotherapy and the pain management program, and she conceded that in such circumstances the applicant’s management of pain would be quite difficult. Ms Menogue agreed that if limitations existed on the applicant’s participation in therapy and exercise, it would be as a result of the effects of chronic pain and not self-limitation or laziness.
Ms Menogue confirmed that the applicant normally did not miss her appointments but, as she relied on friends to drive her to appointments she was sometimes not able to attend.
The applicant also called Anita Van der Plujm, registered nurse and one of her friends of longstanding, whose evidence was that she had observed the applicant’s mobility and social interaction gradually decline since 2011. Her evidence was that in 2016 the applicant was still able to drive to her residence in the Mornington Peninsula, but was now unable to manage ten minutes driving. The one hour, 20 minutes to the Mornington Peninsula would be out of the question.
Ms Van der Plujm also commented upon the changes to the applicant participating in the mother’s group and cooking and entertaining for friends who would visit. She stated the applicant occasionally had some pain earlier but that her state of pain had become more limiting over time.
Ms Van der Plujm’s evidence was corroborative of the applicant’s own evidence to the Tribunal regarding the effect pain had wrought on her social interaction, childcare ability, cooking, driving and also outlined the medications and other programs the applicant had undertaken to treat her pain condition, including accommodation changes.
This witness also stated that they used to meet about two or three times weekly, but now only once every four or five months – the reasons being distance apart, the applicant’s inability to drive long distances and the demands of her medical appointments “and everything else”.
The applicant also called her husband, Moazzam Mohammed, to provide his affirmed statement of his lived experience and observations of the applicant’s condition.
Mr Mohammed’s evidence was that when he and the applicant married in 2003, her life was healthy and active. She was able to run the household, do all the chores normally associated with that status and enjoyed an active social life and outdoor activities. He told the Tribunal that since her injury, her condition had deteriorated and she has not had a pain-free day since.
He stated that before the injury she took no medication, but now took 10 different tablets each day for the pain in combination with any other treatments suggested by her doctors. He stated that she has difficulties with carrying her bags and picking up items around the house and if she does too much such as picking up a fork or cup of water, she will suffer great pain for the following couple of days.

He stated that she had incontinence problems that required him to assist her at times to clean herself, and that she would wear incontinence pads due to the risk of being unable to reach a lavatory because she could not walk fast enough to reach the facility on time.
He stated that the applicant also requires his assistance to dress every time she showers, clean the dishes and put out the washing. He stated she would have to leave these tasks until he was home after being out of the house for up to 12 hours a day.
Mr Mohammed told the Tribunal that he and the children were reliant and dependant on what the applicant was able to do, and she is unable to involve herself with the children’s activities and school functions and parties or go bike riding and enjoy other such activities with them.
He stated that the applicant tries to attend her appointments and if she cannot, because of pain, will attempt to reschedule them.
Mr Mohammed also confirmed that the applicant greatly values her friendships with others and not being able to see them face-to-face has had a huge impact upon her.
The applicant called her Chiropractor, Ms Charlotte Anderson, who said that she had treated the applicant since 2015, to provide evidence to the Tribunal.
Ms Anderson confirmed that evidence given by others that, in her opinion, the applicant’s condition had gradually debilitated with a “bit of an increase” within the last three years.[18]
[18] Transcript of Proceedings, page 129, line 2.
Ms Anderson spoke about how she monitored the applicant’s abilities to stand or sit for a period of time and how she coped with daily living activities such as childcare to assess whether her associated pain levels were worsening or not.
Ms Anderson’s opinion was that the applicant’s pain condition was not improving but worsening and agreed it likely to be permanent. She stated that the applicant required more care in recent times despite her engagement with clinical Pilates, hydrotherapy, a pain management clinic and a personal trainer. She stated further that; “her ability to function is definitely worse than it has been, even after enlisting more modalities to help”.
The applicant also elicited evidence from her Physiotherapist, Edwina Purnell, who stated that she had worked in pain management as part of her professional remit. She indicated that she known the applicant for just over 12 months through telehealth appointments and the Pain Management Program provided at Eastern Health.
Ms Purnell advised the Tribunal the Pain Management Program was an intensive therapy “designed for people who are willing to work with self-management strategies”, delivered over approximately six weeks in 15 three-hour group and on-on-one sessions.
The one-on-one sessions were used to check progress, monitor the regularity of exercise sessions and mindfulness, together with setting future goals for the applicant to strive for stepping along the exercise pathway.
Ms Purnell stated that a group review is conduct conducted at between three to six months after completion. It was noted that Ms Purnell stated that participants were also encouraged to engage in a pain support group in the community, run by volunteers.
She stated the pain management program was multidisciplinary, utilising the services of Physiotherapists, Occupational Therapists and Health Psychologists. The program involved evidence-based treatments such as graded exposure, pacing, exercise, mindfulness and biomechanics.
Ms Purnell told the Tribunal that the applicant was compliant with her exercise program, that she had missed some appointments reporting high pain levels or fatigue due to lack of sleep. Ms Purnell did note, however, that this was not an uncommon occurrence with patients and that “… we get a lot of clients who don’t attend appointments. They might not attend without notifying, or they might cancel with late notice, but it is just the nature of the people we see”.
Ms Purnell felt that the applicant’s mobility had improved slightly with regard to community access, shopping and social engagements with family and friends with the adoption of a four-wheeled walker, but that transfers on and off a bed or chair had not changed.
When the applicant asked Ms Purnell whether, in her opinion, her transfers and functionality were impacted predominantly by her pain, Ms Purnell responded in the following terms:
“Good question. I think it is difficult to say it is the predominant factor. I think there is no doubt you experience pain during your transfers, that your pain is severe and significantly affects you, but it is also impacted by your weight, which is - I wouldn’t be able to confidently comment which is more limiting…
I am just commenting that a lot of people of your size do struggle to the same difficulty level”.
Ms Purnell told the Tribunal that the clinic focused on the applicant’s lower back and pelvic pain as that was the number one area of pain affecting her daily life, sleep, mobility and ability to contribute to the household. COVID was stated to have resulted in the applicant having to participate in the pain program remotely, but this this saved the applicant from the difficulties associated with pain when entering and alighting from her vehicle. Nonetheless, Ms Purnell did comment that “from a physio perspective, of course I want to see people face-to-face and see how they are moving and see their facial expressions as they are exercising, that sort of thing, though it is a constant debate within our team of how we are going to move forward with the pain programs”.[19]
[19] Transcript of Proceedings, page 139, lines 40 to 44.
Ms Purnell, when asked about the duration of the program, conceded that it ran for eight weeks, that only limited functional gain could be achieved in that time and that if the applicant continued with these pain strategies; “then we would expect there to be further gains over time if they are able to manage with those strategies”.[20]
[20] Transcript of Proceedings, page 140, lines 11 to 12.
Ms Purnell opined the applicant’s pain was of a “nociplastic” type, which was less the result of an anatomical issue and more associated with a sensitised nervous system, stating:
“It doesn’t necessarily respond to what we expect it to respond to and further research is going on about that”.[21]
[21] Transcript of Proceedings, page 140, lines 24 to 26.
It was this witness’ view that the purpose behind pain programs was to enhance the life of the patient and was not necessarily looking for a solution. She stated that:
“Of course, if I can find little problem-solving things to reduce pain intensity, we are going to try it, but we are not expecting a magic wand”.[22]
[22] Transcript of Proceedings, page 140, lines 31 to 33.
When questioned by the respondent’s representative whether the applicant’s losing weight would improve the applicant’s function, Ms Purnell stated that:
“I would say yes; I think things would be a lot easier if Seema is ever able to lose some weight”.[23]
[23] Transcript of Proceedings, page 140, lines 36 to 37.
Ms Purnell also explained the relationship between mental health struggles and chronic pain, and that depression and anxiety may be a result of an individual not being able to manage their pain effectively. She considered the difficult and stressful circumstances the applicant was experiencing when her pain had commenced, brought on by carer stress over her twin children and living in a small apartment. Ms Purnell contended the applicant was not functioning as she should have been at the time because of pain, and her psychological stress has the potential to influence the longitude of her pain or “chronicity of her pain” as it was described.[24]
[24] Transcript of Proceedings, page 141, line 33.
She confirmed she had recommended a four-wheeled walker for the applicant who had purchased a model that suited her requirements, albeit it being somewhat heavy to handle and load and unload from the car. Its robust nature was necessary to accommodate weight and provide comfortable seating for the applicant.
Although reliant upon the walker for shopping and longer outings, Ms Purnell did agree that if the applicant did undergo substantial weight loss and her function improved, she may be able to walk without the aid of the walker – this being subject to the weight loss being “realistic”.
Ms Purnell also explained that, in her opinion, dependence upon a walker was generally developed by people who were unsteady on their feet, which was not the case with the applicant. She stated that the applicant utilised the walker for the purpose of managing pain symptoms and assistance with endurance when walking.
Ms Purnell also told the Tribunal that to assist patients undertake exercise and develop positive associations with movement, they recommend a “traffic light” principle. This is designed to help an individual to self-monitor their pain by recognising when they exercise if there is no increase in pain and they can continue (a green light), when there is a mild increase in pain and some reduction in movement may be required (amber light), and a red light when it is inappropriate to continue and they should rest. Thus, they are able to not exacerbate their pain and feel confident, therefore, to continue. The process, she agreed, required commitment, was gradual and required improvement from the person as well.
Ms Purnell was questioned as to whether the hernia from which the applicant was suffering would impede her home exercise program unduly. She stated that it could potentially interfere, but she did not think any of the applicant’s exercises would put too much strain on the abdominal wall and that the applicant would be able to competently manage.
Ms Purnell confirmed that how pain levels appeared in each individual sufferer could vary greatly, and it was a question of “perspective and just sometimes the idea of pain catastrophising, which we talk about in the clinic, and is on her report – the idea of rumination and of the pain sensation, and your ability to lift yourself out of that”.
When the applicant asked Ms Purnell during re-examination whether she considered her obesity to be the sole factor in her pain causation, Ms Purnell said she felt that obesity was a factor contributing to the applicant’s pain on a structural level but was not the sole cause of her pain.
Ms Purnell stated that it was not of the applicant’s fault she could not lose weight and that she saw many patients who suffered from obesity, as in the applicant’s case, which may be influenced by stress, sleep and genetics. She suggested that weight loss had the potential to improve her function and reduce her pain but this was not guaranteed.
Ms Purnell said she doubted that the applicant would return to the functional level of that she enjoyed prior to her injury and that she would have to always consider pain management:
“In some ways, and modify things”.
She added that; “with weight loss, there is a potential that it (function) may improve, but I don’t think it would be completely eradicated”.[25]
[25] Transcript of Proceedings, page 146, lines 10 to 11.
The Tribunal heard evidence from an independent Specialist Consultant in Rehabilitation and Pain Management, Dr Clayton Thomas.
Dr Thomas had prepared three reports relating to the applicant’s medical issues. The first dated 3 March 2022,[26] the second dated 5 May 2022[27] and the final report being dated 20 September 2022.[28]
[26] R3.
[27] R5.
[28] R7.
The evidence from Dr Thomas as to the efficacy of an online pain program versus a face-to-face program was that an online program generally can help a participant but, in his experience, more so in the sense of education and understanding of their conditions. He felt that participants learn some psychological management strategies, but that they did not have the personal mentoring of the physical activities and therapies which would assist them in how to move properly to establish the exercise program and show them how to physically manage aggravations of their own pain. He felt the online program was a compromise, because despite these limitations they were able to reach more people irrespective of the COVID restrictions applying during the applicant’s participation period.
Dr Thomas stated in his report that obesity created difficulties with diagnosis by impeding investigations, treatment options and responses to treatment. He confirmed in oral evidence that obesity can distort imaging and hamper a proper examination when attempting to feel underlying spinal structures, thus clouding the ability to establish what part of the anatomy may be affected. He also stated that it specifically hampers a person’s ability to “participate in a physical rehabilitation exercise regime” [29] and make progress past a certain point due to severe limitations in their endurance.
[29] R5.
Dr Thomas also considered that interventions such as cortisol and epidural injections are more difficult with obese patients and likewise for surgical procedures, particularly due to the issues of breathing well enough to survive surgery and an increased risk of post-operative infections.
Dr Thomas was asked about the question of up-to-date imaging being required to establish whether there may be organic aspects which are different to the chronic pain syndrome and may be relevant. Dr Thomas explained that simply because someone has chronic pain syndrome did not necessarily mean that there could not be an underlying physical problem, and that they could be presented together.
Dr Thomas explained the three different pain types as defined by the International Association for the Study of Pain to the Tribunal, these being:
(a)Nociceptive pain - caused by the common stimulators such as degeneration of joints and spinal disc bulges and ruptures and general trauma;
(b)Neuropathic pain - caused by the involvement of the central nervous system, bundled nerves or structure that has to be identifiable;
(c)Nociplastic pain - caused by central desensitisation. It is commonly referred to as Chronic Pain Syndrome, such as fibromyalgia. There is no structural underlying organic problem, but the pain seems intractable for the sufferer.
Dr Thomas’ view, as expressed in his oral evidence, was that the investigations he has outlined and recommended were to explore whether other examples of pain were existing in the applicant’s situation.
Dr Thomas was asked about his views on the use of the four-wheeled walker employed by the applicant. He expressed the view that in the short-to-medium term it may be acceptable, but that on a long-term basis it was not what his professional experience informed him was a good idea.
The applicant questioned Dr Thomas regarding his opinion as to whether her extensive number of medications would indicate that a patient would be attempting to manage significant pain. On this point, the Doctor considered that it may not necessarily be so and could vary from patient to patient.
He agreed that in his report he accepted that the applicant suffered from an organic pain syndrome, which was chronic as it was endured most days and was ongoing in nature. Further, that he advised that her pain primarily related to her lumbar spine and that her lumbosacral movements were approximately half that of the normal range.
Dr Thomas agreed that the applicant was suffering a permanent impairment which would require her to receive as much assistance as she was now required to have into the future.
He also agreed that the applicant had not indulged in self-limiting behaviour regarding her impairment, and that, as suggested to in report, she had completed a pain management course which she found helpful and undertaken a sleep apnoea study.
Responding to the applicant’s proposition that, in his first supplementary report,[30] he identified the tasks the applicant required assistance for were relating to her back involving bending, lifting, twisting, prolonged standing and walking and the applicant’s suggestion that help in these areas would assist in preventing further deterioration of her functional capacity, Dr Thomas explained his professional view to be that it would depend upon “what, if any, abnormality an MRI would show”.[31]
[30] R5 at point 14.
[31] Transcript of Proceedings, page 153, line 16.
Dr Thomas expressed the view that whether her capacity would deteriorate further in the absence of treatment would depend upon the specifics. He indicated that on a day-to-day basis, the applicant needed to remain active including a small amount of twisting, and that if these activities are avoided, her condition would become worse. Likewise, overdoing such activities would aggravate her condition. However, that while she needed to conduct such activities within her means and capacity, she should be required, and should be encouraged, to do activities involving twisting to an extent within her physical means.
When re-examined for the respondent, Dr Thomas was questioned regarding the scope for improvement by a “substantial” reduction in the applicant’s weight. It was his view that, on average, most patients of a successful bariatric surgery would expect to lose half their excess body weight.
The applicant’s excess body weight was 71 kilograms. Therefore, her loss could be expected to be 35 kilograms, taking her weight to 95 kilograms, and a BMI of about 40. Dr Thomas stated this would still leave her as morbidly obese. Whether she could achieve such a result was not within his purview but that of a Bariatric Surgeon, based upon their professional assessments. Dr Thomas was not sure, given her unsuccessful experience with bariatric surgery earlier, if they would do anything, but that would be up to the Bariatric Surgeon and also whether the applicant wished to participate in further bariatric surgery.
Dr Thomas’ summation was that the applicant’s pain condition was “likely to be permanent”, but that the suggested treatments of sleep referral, a pain management program and updated imaging with appropriate action would be likely “to have a significant impact on her functional capacity” and although such functional improvement is not quantifiable, it would be more than the minimal, and that any improvement would depend on whether she had bariatric surgery which would be her choice. However, if weight loss was not possible, then her circumstances were not likely to change.
He felt that successful bariatric surgery would improve function, but not necessarily her pain.
The final witness to give evidence to the Tribunal was Ms Phi-Van Houston, an independent Occupational Therapist specialising in adult rehabilitation and disability.
Ms Houston provided two reports relating to her assessment of the applicant: one dated 31 December 2021[32] and a further report dated 5 May 2022.[33]
[32] R2.
[33] R6.
Ms Houston told the Tribunal that on 31 December 2021, she conducted an in-person interview and assessment with the applicant and a walkthrough of the applicant’s residence, accompanying demonstrations by the applicant of certain “postures, movements, and transfers, for example out of her couch or bed transfers”.[34]
[34] Transcript of Proceedings, page 156, lines 33 to 34.
Ms Houston concluded that the factors contributing the most to the applicant’s observed limitations and functional capacity were chronic pain as the major barrier, followed by low endurance caused by lack of activity. Ms Houston noted the applicant had indicated her lack of activity being contributed to by the outbreak of COVID, which impinged upon her ability to undertake such programs as hydrotherapy and her general life activities.
It was the opinion of Ms Houston that the applicant’s symptoms of pain would be expected to fluctuate in response to physical activity and if someone has been inactive for a considerable period then begins physical activities, pain may increase as unused muscles become active and one would likely to feel some pain and aches as a consequence. She likened the process to a “bell curve” which would indicate an escalation, followed by a reduction gradually occurring as muscles became used to a more active and healthier routine.

Ms Houston also stated that as a person who carries a lot more weight, she would experience the onset of what could be called activity pain earlier than someone carrying less weight but that as she lost weight she would endure less pain.
Ms Houston was referred to her second report of 5 May 2022 in which she discussed how not all pain was harmful for a patient, and she then distinguished between the different reasons the applicant could be feeling the same types of pain.[35]
[35] R6.
The example she provided outlined that even when the applicant may be sitting down, she is still experiencing pain because she is not engaged in activity. However, by doing some activity, that helped to stimulate her circulation and benefitted her physiologically. The pain is her body communicating to her to exercise gradually but the injury is not made worse.
The witness also stated that there was a danger that the applicant’s condition of pain would “yo-yo” unless she accompanied her increasing activity cycle with proper guidance. She explained that inactive participants can be expected to experience pain when initially engaging with activity, and consequently require education about their pain and any impact on their ability to participate. A participant experiencing pain often withdraws from exercise before any meaningful improvements are made; thus, they will continue to experience the same pain of transitioning from inactivity to activity each time they attempt to re-engage with the program.
This stop-and-start approach prevents a participant from progressing beyond each threshold of the program through avoidance of the pain and thus leads to what she described as a “vicious cycle” leading to further inactivity. For the applicant, she said, this meant ensuring that she did not excessively increase activity during her engagement in a pain management program to the extent that the resulting pain discouraged her participation going forward.
Ms Houston felt it was important for the applicant and the improvement of her self-esteem to maintain her own routine and gain independence from others in the future. Ms Houston considered that a support worker, as requested by the applicant, would not benefit the applicant in the long-term as it would reduce the motivation she needed to become independent as reliance grew on the support worker doing daily tasks for her.
Ms Houston stated that the chores around the house, whilst mundane, are forms of activity that Physiotherapists and Occupational Therapists would work concurrently with to develop an individualised program that would spread the exercises out to a manageable level and avoid overworking the applicant’s physical capacity as it was gradually being rebuilt.
The applicant had attended the online pain management program via video; however, Ms Houston maintained her recommendation for an in-person participation as that would have helped the applicant create a new routine whereby she would go out to participate and interact with others in the program and limit her isolation at home.
Notwithstanding her reservations Ms Houston considered that the online program was still very beneficial to the applicant, who had gone from having nothing to something in place to manage her pain and difficulties would experience long-term benefits following the recommendations that came out of the program.
Ms Houston’s view was that the applicant’s four-wheeled walker was a temporary requirement to aid to her ability to mobilise, but with the necessary follow-through of the program recommendations, the applicant would improve her mobility, endurance and weight-loss to a point where she would no longer require walking frames and other mobility devices.
Ms Houston told the Tribunal that she attributed the applicant’s observed difficulties with transfers or bending to both pain and body weight, and that although the applicant attributed all her difficulties solely to pain, Ms Houston failed to agree.
Ms Houston told the Tribunal that she observed the applicant was unable to squat all the way to the floor to pick items up. She stated that these allowed an assessment of the level of joint mobility and a person’s ability to lift their own body weight; “these are the sorts of things we look at in terms of posture and in terms of movement throughout the assessment”.[36]
[36] Transcript of Proceedings, page 164, lines 45 to 46.
The applicant took issue with part of Ms Houston’s report that indicated Ms Houston had said that the applicant had been provided a walking stick. The applicant asserted that was not correct as she had never had one.
Ms Houston, whilst maintaining that what had been written was her recollection at the time, pointed out that, in any event, whether a walking stick had been provided or not the applicant did not require one. Her observations of the applicant bore that out, as the applicant was capable of moving around independently at the assessment.
Ms Houston confirmed in her evidence to the Tribunal that the applicant had queried her as to whether undergoing a pain management program would impact her chances of success in being approved for NDIS support.
Ms Houston felt that the question tended to raise the question of the applicant’s motivation “because it is a legitimate question from her part by participating in a program, does that mean if she gets better, she won’t need support, or if she doesn’t get better then she needs support? I guess that is where that comes in and the question shouldn’t even be asked, I suppose, in terms of looking at it because if it is managing pain, to learn strategies, to improve the situation and reduce the pain, then it should be, “great, when do I start the pain management program”?[37]
[37] Transcript of Proceedings, page 165, lines 40 to 46.
There was a question of whether, during the review, a dietician consultation had been discussed as the applicant disputed that it had been. Ms Houston confirmed the reference in page six in her report of 30 December 2021[38] where she stated that the applicant told her she had seen multiple dietitians in the past but had not found them helpful, having last engaged with a dietician some two years prior to the assessment giving rise to this report. She responded that a dietician would be part of the multidisciplinary approach of the pain management program.
[38] R2.
Ms Houston reported that the applicant could ascend and descend steps or stairs independently and at a reasonably good pace. She stated that although the applicant avoided using the 17 internal stairs to the second story of her home, she demonstrated using them using them more competently than what she reported and Ms Houston did not believe it was causing her any harm to use them once or twice in a day.
Ms Houston considered that the applicant indicated that if she encountered stairs on one day it would increase her pain the following day. She stated that with improvement in her lack of activity and joint mobility the applicant would engage with the stairs with less effort and pain.
It was Ms Houston’s view that the applicant’s pain would also vary based upon her weight – for example, at 90 kilograms or at her now weight which was greater than 137 kilograms.
Ms Houston stated that the applicant was not expected to run up or down numerous times but to use them with caution, and that apart from the question of pain, her fear that she may have a fall could be somewhat alleviated by some assistance from an Occupational Therapist or a Physiotherapist teaching her safer techniques.
Ms Houston also considered that the applicant would benefit from a perching stool in the kitchen to assist her while preparing meals. The applicant felt she could not use one as she could not get up onto a bar stool. Ms Houston explained that a perching stool did not require a position of sitting down but provided a resting style of support to half-sit, half-stand and thereby relieve some weight off the person.
Ms Houston did not believe that the chiropracting and myotherapy engaged in fortnightly by the applicant encouraged a dependency and took the view that they were part of the ongoing maintenance of the applicant’s treatment. However, she believed it was likely the applicant was receiving very similar treatments across isolated disciplines from practitioners who were not exchanging information as part of a cooperative process.
Ms Houston expressed concern that by the applicant was regularly attending treatment but not engaging in the post-treatment activity necessary to mobilise and thus benefit from the treatment. This piece meal approach of continuously seeking treatment only to experience a day or two of relief would not improve the applicant’s pain if she returned to a sedentary routine between treatments.
Ms Houston responded to the applicant’s weekly engagement of different cleaning services and meal services by suggesting that the applicant’s children may be incentivised to assist with cooking and chores around the house. Ms Houston also noted the time and flexibility the applicant had to pace herself while undertaking domestic duties since resigning from her work.
Ms Houston also believed the children’s involvement could contribute to family support and cooperation such as by cooking together as a family activity. Her view was that “there is always an expectation that when you are in a family, there are other people also contributing to the running of that household and that it is not just falling on one individual to do that, so I guess that is where all of that is taken into consideration”.[39]
[39] Transcript of Proceedings, page 171, lines 17 to 20.
Ms Houston discussed the role that body habitus played in impacting the applicant’s capacity for self-care with particular reference to “showering, dressing and cleaning up after toileting”,[40] as well as bending and transfers.
[40] Transcript of Proceedings, page 171, line 25.
Ms Houston’s opinion was that body habitus did contribute to the applicant’s difficulty as opposed to pain alone, and that it had placed her at a higher pain level than if she did not have the excess body habitus to contend with.
She stated it would affect her ability to reach down because
“when you are larger, it is going to be harder to actually reach…I am not saying that she doesn’t have chronic pain because of an injury that she sustained 10 or 11 years ago… I am saying that her weight contributes to that and is placing her in a higher pain level than it potentially would”.[41]
[41] Transcript of Proceedings, page 171, lines 27 to 42.
Ms Houston also considered that the applicant’s body habitus contributed to her demonstrated difficulty when transferring off the bed as she struggled to get out of bed and roll out because of her size. She concurred that Ms Desai’s hernia should be addressed as it too would impact upon her ability to move and the level of pain she experienced.
When cross-examined on the question of the applicant’s chiropractic and myotherapy practitioners working together, Ms Houston expanded upon her stated view to explain that her review of the reports simply did not disclose that they were working as part of a coordinated program and that the applicant was unable to undertake a coordinated program for her treatments during the COVID lockdown.
Further, Ms Houston, in response to a question from the applicant regarding fluctuating pain levels on a scale, agreed that pain levels can fluctuate and that, in general, pain levels are subjective and can differ between individuals. A pain level on a scale of eight out of ten for one person, may be four out of ten for the same type of pain for another person.
She noted however that if you do have pain, for example, at a nine or ten out of ten but take no meaningful steps to actually try and mobilise, stimulate blood circulation and get your joints moving, you are then reliant on medication to quell the pain and create a reliance that is not, in the long-term, in the best interests of a patient.
It is necessary in this type of matter for the Tribunal to step its way through the legislative path developed to establish an applicant’s eligibility to meet the disability requirements.
The Tribunal is required to be satisfied that all five of the criteria outlined in section 24(1)(a) to (e), or alternatively the criteria at section 25(1)(a) to (c) of the Act have been met and section 25(3) does not apply.
The respondent’s position
It is the respondent’s position that the applicant has impairments attributable to an organic pain syndrome, being an impaired range of movement in her back and impaired mobility such that section 24(1)(a) is satisfied. In regard to whether the applicant suffers from impairments secondary to lumbar disc prolapse, spinal stenosis and sacroiliac joint dysfunction (the spinal conditions), the respondent relies on the opinion of Dr Thomas that the spinal conditions are most unlikely to be contributing to the applicant’s presentation, and therefore contends that the applicant does not have an impairment arising from these conditions.
The respondent stated that if the applicant’s back impairment was attributable to one of the applicant’s spinal conditions, then any impairment arising as a result is not permanent given the recommendations for further investigation.[42]
[42] R4.
Dr Thomas considered that if, after further medical investigations and treatment, it was found the applicant did suffer from a permanent condition that it would likely be secondary to the applicant’s lumbar spine, chronic pain and obesity.
The respondent accepts that, based on the applicant’s statement of lived experience and the medical evidence available, the applicant might be said to have a reduced functional capacity in respect of her social interaction, mobility, self-care and possibly self-management, and is satisfied this meets the requirements of section 24(1)(d).
The respondent also accepts that the provision of early intervention supports as identified by Dr Thomas and Ms Houston are likely to be beneficial to the applicant by reducing her future needs for supports in relation to section 25(1)(b) and section 25(1)(c).
However, the respondent contends that none of the applicant’s impairments can be considered permanent under section 24(1)(b) or section 25(1)(a), that the applicant’s functional capacity is not substantially reduced in any of the six specified areas under section 24(1)(c) and the applicant is not likely to require support under the NDIS for her lifetime under section 24(1)(e).
Further, the respondent contends that section 25(3) applies and the applicant accordingly does not satisfy the early intervention requirements because the supports identified by Dr Thomas and Ms Houston are most appropriately provided through another service system, such as the health system and other government services.
The applicant’s position
The applicant’s position is that there is sufficient evidence before the Tribunal for it to be satisfied that she has a chronic pain condition that is permanent and that she meets each of the five essential criteria for section 24(1) to establish her eligibility to be accepted into the Scheme.
Further, that she is not precluded from access under section 25 by operation of section 24(3) because all personally researched and professionally recommended interventions have been “exhausted”, there are no other avenues of treatment left for early intervention and she is financially limited in the health care she can access.[43]
[43] A10.
The applicant called a number of witnesses in support of her contention that her pain condition has been persistent and deteriorating, resulting in negative impacts upon her mobility and social interaction. The applicant’s husband told the Tribunal of the impacts the applicant’s conditions impose upon her general life capabilities.
He told the Tribunal that he and his wife married in 2003 and that she was very active socially, had a wide group of friends, and enjoyed many outdoor activities such as trail walking and going to the beach and could do the cooking and cleaning and run their household.
The evidence of the applicant’s friends was broadly similar in the context of being observers assessing their friend’s condition over time. The evidence of these witnesses assists the Tribunal only insofar as to confirm that the applicant suffered pain which appeared to affect her function.
CONSIDERATION
The Tribunal considers that the evidence of the applicant’s medical and therapeutic practitioners and assessing professionals in this matter is more significant and relevant to assisting the Tribunal in its review deliberations and considerations.
The applicant’s chronic pain condition is accepted by the respondent and therefore accepted by the Tribunal. The Tribunal has therefore to decide if this condition:
Is, or is likely to be, permanent as required by sections 24(1)(b) or 25(1)(a)(i) of the Act; and
(i)Substantially reduces the applicant’s functional capacity for any of the activities in 24(1)(c); and
(ii)The applicant is likely to require support under the Scheme for her lifetime; or
(b)That early intervention supports are most appropriately funded though the Scheme.
Although a person may be diagnosed with a medical condition which may require continuing medical support, that circumstance alone does not ground a claim under the Act. The Tribunal must consider whether any impairments arising from the condition engender a permanency once all treatment options which are available have been applied to the impairment.
In assessing whether an impairment is permanent for the purposes of the Act, the National Disability Insurance Scheme (Becoming a Participant) Rules 2016 provide as follows:
5.4 An 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.
5.5 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, including their psychosocial functioning, may improve.
If it is apparent that the impairments do not require further treatment and review, the impairment can be considered permanent or likely to be so. It may well be that, notwithstanding this conclusion, an impairment may nonetheless, by its nature, require a degree of maintenance by way of treatment and review.
The applicant, whilst she suffers from chronic pain, is also afflicted by a number of other conditions which may contribute to her pain condition and her functional capacity should they remain untreated or partially treated.
These other conditions have been outlined in the material provided to the Tribunal, namely: the spinal conditions described at paragraph [50], morbid obesity, a possible sleep apnoea condition which was under investigation, an untreated hernia which was painful with functional impact and a psychosocial condition for which no professional reports were available.
It is necessary in assessing the permanency of an impairment that the whole of these matters is examined and a determination made as to whether any of these conditions require further investigation or medical treatment.
According to the applicant, it is her pain condition alone which is the sole cause of her reduced functional capacity, that is permanent and requires ongoing support for her lifetime such that the access criteria in both sections 24 and 25 of the Act are met. She is adamant that her body habitus has no bearing whatsoever upon her reduced capacity.
The Tribunal, in considering this matter, has to establish the permanency of the applicant’s secondary conditions and how those conditions may relate to her impairment.
The applicant began to suffer pain in 2011 after a fall. It is evident from the documentary evidence supplied and that of the witnesses before the Tribunal that extensive medical treatments and physical therapies have been applied in attempts to resolve the applicant’s pain issue. These have ranged from diagnostic imaging, pharmacological interventions and physical therapy, physiotherapy, chiropractic, myotherapy and an online pain management program. The applicant was then treated by Dr Chia who is a Pain Specialist and, although not called to provide evidence to the Tribunal, had various letters and referrals on file and available to the Tribunal.

Dr Chia had responded to the lawyers representing the respondent’s request for a medical report, with a report dated 5 October 2021[44] in which she made the observation that the applicant’s access to physiotherapy had been limited by COVID restrictions in that she had been taking her prescribed medications and that she could receive benefits from both.[45] In response to a question relating to the applicant’s prognosis regarding likely functional capacity, either with or without treatment, she stated that:
“Prognosis is steady and worsens with age and weight gain”.
and
“She is likely to decline fucntion [sic] if not providing [sic] treatment”.[46]
[44] Exhibit 1, ST1.
[45] Ibid page 2, paragraph 6(a).
[46] Ibid page 2, paragraph 6(b).
It is clear from Dr Chia’s report that looking holistically at the applicant’s circumstances, she considered that it would be of advantage to the applicant to, as part of her treatment regime, lose weight as it clearly impacts her functional capacity. Further, Dr Chia also emphasised that in the context of this answer, her function will not perhaps decline.
Dr Chia’s views are reflected in the evidence adduced both documentary and verbal from Dr Clayton Thomas, who in his reports extensively canvassed the applicant’s medical conditions, status and suggested remedial courses which, in his opinion, could serve to remedy some of the impacts of her incapacity.
Dr Thomas, in his March report,[47] observed that inter alia the applicant was morbidly obese and had lap band surgery in 2007. The Tribunal notes that this was unsuccessful as it apparently caused her difficulty in swallowing and was consequently removed in 2014 due to other complications associated with its implant.
[47] Ibid.
In his report of 3 March,[48] Dr Thomas noted that the applicant was 154 centimetres tall and weighed 130 kilograms and had a Body Mass Index (BMI) of 54.8. He stated that she had tenderness in the lower back but because of her morbid obesity “it was actually very hard to properly examine her”.[49]
[48] Ibid.
[49] Ibid, page 2; R3.
Dr Thomas that it was very difficult “to work out what her current symptoms stem from. I would accept that she has an organic pain syndrome”.
Throughout his reports, Dr Thomas references the applicant’s morbid obesity a number of times which the Tribunal accepts as a significant indication that, from a medically qualified pain and rehabilitation specialist’s view, requires primary attention to address the applicant’s currently impacted capacity. The Tribunal accepts that this view is clearly enunciated by Dr Thomas insofar as he states:
“She does have an impairment. The impairment relates to her lumbar spine. The impairment relates to her morbid obesity and the sequalae from that”.[50]
[50] R3.
Dr Thomas, in response to whether any of the applicant’s impairments would be attributable to obesity, stated:
“She will have a permanent impairment pending the recommendations above, likely to revolve around her lumbar spine, her chronic pain syndrome and obesity. Even with the best bariatric surgeries, she is likely to lose weight if successful but she is likely to still remain obese. Most people lose half their excess weight to achieve a BMI of less than 30. She will need to lose 59 kilograms, which is not feasible. In any case, an expert opinion by a bariatric surgeon would be appropriate”. [51]
[51] Ibid.
However in his May report Dr Thomas stated that the applicant’s morbid obesity:
“…creates difficulties in investigations, treatment options and response to
treatment. It creates difficulties with respect to any formal rehabilitation program. It does not otherwise relate to the degree of her chronic pain syndrome.
Dr Thomas’ March report[52] concluded that the applicant needs to have an MRI if she is able to fit into a large bore machine or alternatively, a CT scan, and that further future treatments required would be determined by the results from that examination. Dr Thomas further considered that the applicant required a sleep study performed to exclude sleep apnoea and that she should return to a Bariatric Surgeon to consider a sleeve gastrectomy.
[52] Ibid.
Dr Thomas also recommended a pain management program and that a contemporary MRI would be “to exclude any reversible cause for the right leg neurological symptoms”.
In respect to the applicant’s need for future support he stated:
“I think it more likely than not she will require support from the NDIS during her lifetime. It is likely that this will be required to assist with the domestic chores. The request, however, will be depending on the outcome of the treatment recommendations and further treatment and further treatment options”. [53]
[53] Ibid.
In his May report Dr Thomas was asked if the applicant would be likely to benefit from early intervention supports and to detail the relevant supports including how they would reduce the applicant’s future need for supports.
Dr Thomas did not list any specific supports or address the details of the question, but nonetheless stated:
“If the above treatment occurs then the requirement for long-term supports is likely to be reduced and, given her age, substantially reduced for a prolonged period of time”.[54]
[54] R5.
In a further question regarding early intervention supports Dr Thomas then went on to state that they:
“…may or may not have an impact on her overall impairment. It is likely to improve her ability to communicate, interact socially, learn to mobilise, self-care and self-manage”.
The Tribunal, in considering Dr Thomas’ evidence, has been presented with what would appear to be a dichotomy within that opinion for the Tribunal to attempt to interpret.
The evidence contained the reports of Dr Thomas concluded that the applicant is suffering from a permanent impairment of the spine and organic pain syndrome, that her pain is unlikely to improve over her lifetime and that she would likely benefit from early intervention support in improving her functional capacity.
However these appear to readily conflict with submissions within the same reports that the applicant’s future need for NDIS supports would be dependent on the outcome of treatment recommendations, further investigations and treatment options.
The Tribunal concludes that Dr Thomas’ evidence, when taken as a whole, indicates that the applicant’s impairments are permanent in such a way as to satisfy the relevant criteria of section 24(1) but does not adequately address the criteria of section 25 such that all treatment options have been explored, early intervention supports properly identified or addressed how they would likely reduce the applicant’s future need for supports.
The Tribunal’s conclusions have also been guided by the evidence of other professional therapists to whose evidence it has had access.
Ms Annelise Costelow, an Occupational Therapist retained by the applicant, conducted an in-home WHODAS assessment and face-to-face interview with the applicant on 10 July 2020 assisted by fellow Occupational Therapist Valeria Finarelli. Based on the assessment and interview conducted as well as other health professional reports, Ms Costelow prepared an undated report for the purposes of the applicant’s request to access the Scheme.[55]
[55] Exhibit 1, T10.
In her report she described the applicant’s pain condition and current treatment regime at that time, however the document was effectively what could be described as a status report on the applicant’s situation.
The evidence of Ms Charlotte Anderson, the applicant’s long-term treating chiropractor, agreed that being overweight can certainly impact the spine due to additional load-bearing and that weight loss would generally be expected to improve a person’s function. She also agreed that her treatment of the applicant was an ongoing process in which she would be consulted by the applicant on, for want of a better description, a needs basis as opposed to a set program.
Ms Anderson agreed that she had not undertaken a functional evaluation of the applicant in her home environment or observed her outside of the consulting room. She admitted that that type of assessment was outside of her remit and that she was only relying on the applicant’s self-reporting in this regard. She stated that the table of supports she prepared reflected what the applicant had told her.
The applicant’s radiology was carried out by Dr Martin Gallagher and a report prepared by him dated 17 October 2012,[56] in which he concluded that:
“Transitional anatomy. No disc herniation detected at any level. At L4/5 there is nominal mild left foraminal stenosis. I note that the patient’s symptoms are on the right”.
[56] Exhibit 1, T3.
The Tribunal accepts that Dr Gallagher’s report considered that any degeneration of the applicant’s spine was “nominal” – in other words, next to nothing. This would seem to be somewhat at odds with the view of Dr Chia, when she stated in her report[57] that:
“Due to the degenerative nature of her spine and her body habitus her impairment is considered permanent”.
[57] Exhibit 1, A2.
Dr Thomas, in March report, reviewed an MRI of the applicant’s spine imaged on 20 August 2015. He concluded that the only abnormality was a small disc protrusion at L2-L3 that was unlikely to be contributing to her current condition or chronic pain problem.
When cross-examined by the applicant on this report, Dr Thomas confirmed that he had diagnosed the applicant with an organic chronic pain syndrome, and that the pain primarily related to her lumbar spine.
However, he had also stated that the applicant would have a permanent impairment, and pending further recommendations and investigations, that it would likely revolve around her lumbar spine, chronic pain syndrome and morbid obesity. He also agreed under questioning that even with the best bariatric surgery outcome, she would still be obese. He agreed that as it was a permanent condition, she would require “as much assistance as you require now”.
In his evidence he told the Tribunal that there were three identified types of pain, namely: nociceptive, stemming from spinal degeneration; neuropathic, resulting from identifiable nerve impairment, and nociplastic, due to central desensitisation, commonly referred to as chronic pain, for example, fibromyalgia.
Dr Thomas confirmed that the investigations he supported were to explore whether other the applicant had other examples of pain present. It is the Tribunal’s view that these investigations are of a diagnostic nature and serve to indicate a gap in the knowledge about the applicant’s pain condition. They are part of a suggested ongoing treatment and review program for the applicant.
The respondent called an independent Occupational Therapist, Ms Phi Van Houston, who had conducted an assessment of the applicant in her home and provided a report dated 5 May 2022.[58]
[58] Exhibit 1, R6.
Ms Houston’s report suggested the applicant should improve her functional capacity in summary by adopting the following interventions:
Combined surgical intervention, nutrition and diet and other exercise programs designed to address obesity and physical conditioning;
Multi-disciplinary pain management program to address chronic pain and, as a subsequence, her obesity. These would be supported by an allied health team working together and a medication review.
Depending on the pain management program outcomes and follow-up associated with that, the applicant may require a “short period of individual 1:1, and discipline specific services, post the pain management, to help put in place an ongoing community-based program for her which she can self-manage in the long-term”.
Ms Houston also considered that the applicant’s impairment was permanent as she stated that:
“It is also important that the applicant understands that she will never be pain-free, but that the multi-disciplinary pain management program will teach her how to cope with pain generally”. [59]
[59] Ibid.
Ms Houston, in her report and evidence to the Tribunal, at no time suggested that the applicant’s pain condition could be remedied, but only that certain therapies and medical interventions could be undertaken by the applicant to effectively ease the impacts of the condition. However, on analysis, these interventions were not supports to be provided by the Agency. They were to be self-motivated and adopted by the applicant to help try and increase her capacity. They were also interventions which were provided of a medical and other therapeutic nature.
It is noted that the main medical intervention suggested outside the pharmacological interventions and therapist interventions currently in place was gastric sleeve installation which had previously been unsuccessful and subsequently removed in 2014. It would be a personal decision to be taken by the applicant upon advice from a qualified Bariatric Surgeon as to whether or not this process should be done, and it would be then up to the applicant herself to decide whether she would be prepared to have that undertaken.
The disability requirements of section 24(1) of the Act must be informed by the facts and available expert evidence in any circumstance.
Based on the historical evidence and the number of interventions undertaken by or performed on the applicant since the accident event in 2011, together with the opinions of both Dr Thomas and Ms Phi Van Houston that irrespective of any further suggested interventions her pain condition will persist, the Tribunal finds that the applicant’s accepted chronic pain condition is, or is likely to be, permanent and the requirement of section 24(1)(b) of the Act is met.
The applicant has produced evidence that her social interaction has been impacted by the impairments imposed by her disability insofar as she is unable to drive any distance which requires any longer than 10 to 15 minutes and is only able to endure a passenger journey for approximately 30 minutes. She is no longer able to visit friends with ease and socialise to the same extent as she was able to do so before the accident. The Tribunal finds that therefore the requirements of section 24(1)(c)(ii) of the Act have been met.
The evidence of both the applicant and the Occupational Therapist, Ms Houston, indicates that the applicant does suffer mobility issues from the impairment. She has difficulty engaging with stairs, shopping and bending and conducting household chores. She has bought a four-wheeled walker to help her with her limited outings. She has to rely upon others largely, to do her shopping. The Tribunal therefore concludes that the requirements of section 24(1)(c)(iv) are fulfilled.
The Tribunal also finds that the section 24(1)(c)(v) requirements are met insofar as the applicant requires assistance with self-care, as she needs some assistance showering and toileting, being restricted by pain from twisting and bending. She also requires some assistance with dressing at times.
The evidence indicates that the applicant will more likely than not require support under the National Disability Insurance Scheme for her lifetime as required by the Act at section 24(1)(e). Dr Thomas, in evidence, has indicated such a requirement and at a level suitable as to support her needs at the time of his reporting and giving evidence to the Tribunal.
The Tribunal finds that the evidence supports the view that the applicant’s impairments affect her capacity for social interaction insofar as she cannot enjoy outings, parties and other gatherings of a social nature because of the pain limitations from which she suffers. Her economic participation has also been adversely affected as she has had to relinquish her full-time employment and the security of a regular salary as a Social Worker and is now working from her home as a self-employed Support Coordinator.
The Tribunal, in reaching its decision, has considered the relevant sections of the National Disability Insurance Scheme (Becoming a Participant) Rules (the Rules) and the Operative Guidelines (the Guidelines) associated with the Act and to be read in conjunction with it.
The terms “permanent” and “remedy” in Rule 5.4 of the Rules in the context of the Act have recently been scrutinised as to their meaning when applied to the impairment or impairments of an applicant seeking access to the Scheme in the matter of National Disability Insurance Agency v. Davis.[60] Her Honour Mortimer J considered that the term “permanent” as referenced in section 24(1)(b) of the Act means “enduring”, and this interpretation reflected “the purpose and content of the legislative scheme, as a scheme to deliver lifelong support to persons with disability”.[61] It is clear to the Tribunal that in this matter the applicant is suffering impairments which, notwithstanding a long history of medical and therapeutic interventions, have “endured and shown no improvement in her capacities to undertake a number of critical life tasks”.
[60] [2022] FCA 1002.
[61] Ibid, page 22, at para. 85, lines 7 and 8.
The Tribunal has also had the insight of Her Honour’s observations that the descriptors in the Rules should be construed consistently throughout, particularly with regard to Rule 5.4 where it relates to a requirement “that the treatment would be likely to remedy the impairment”.
Her Honour expressed the view that the term “remedy” in this Rule should be interpreted as meaning more than “relieve” or “improve” and that should be interpreted to mean “something approaching a removal or cure of the impairment”. Her Honour then continued in considering the relationship of Rules 5.4 and 5.5 to state:
“That is consistent with the meaning I consider should be given to the statutory phrase “permanent impairment,” as an impairment which is enduring, while its impacts on a person from time to time might fluctuate, is not an impairment which is likely to be removed or cured”.[62]
[62] Ibid, page 35, paragraph 136.
Rule 5.6 states that an impairment may require medical treatment and review before a determination can be reached that an impairment is permanent or likely to be permanent. The section also states that the impairment meets the permanency requirements only if it does not require further medical treatment or review in order for that permanency to be demonstrated. It also notes, however, that an impairment which is permanent may continue to be treated and reviewed after permanency has been demonstrated.
As previously canvassed herein, it is clear to the Tribunal that the applicant has, since 2011, undergone regular and persistent medical treatments, pharmacological and therapeutic regimes without any notable improvement, let alone cure of the impairments from which she suffers. The Tribunal considers those suggested regimes promoted by the respondent’s witnesses are, on the evidence, best categorised as falling into the ongoing treatments and reviews as contemplated by Rule 5.6.
The Tribunal is satisfied that the applicant is therefore qualified to gain access as a Participant to the Scheme through section 24 of the Act and does not further contemplate the access criteria at section 25.
DECISION
Pursuant to section 43(1)(c) of the AAT Act, the Tribunal decides that the reviewable decision made on 2 March 2021 under section 100(6) of the National Disability Insurance Scheme Act 2013 (Cth) be set aside, and remits the matter for reconsideration in accordance with a direction that the Applicant meets the access criteria required by section 21 of the NDIS Act, namely:
(c)the age requirements in section 22,
(d)the residence requirements in section 23, and
(e)the disability requirements in section 24.

225.

I certify that the preceding 224 (two hundred and twenty-four) paragraphs are a true copy of the reasons for the decision herein of Senior Member P J Clauson AM.

...........................[SGD].........................
Associate
20 September 2023

[2023] AATA 3004

20 September 2023

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