Dzajkovska and National Disability Insurance Agency

[2023] AATA 3952

Dzajkovska and National Disability Insurance Agency [2023] AATA 3952 (29 November 2023)

Division:NATIONAL DISABILITY INSURANCE SCHEME DIVISION

File Number:          2021/2764

Re:Valentina Dzajkovska

APPLICANT

AndNational Disability Insurance Agency

RESPONDENT

DECISION

Tribunal:Dr L Bygrave, Member

Date:29 November 2023

Place:Melbourne

The decision under review is affirmed.

.............................[sgd]...........................................

Dr L Bygrave, Member

CATCHWORDS

NATIONAL DISABILITY INSURANCE SCHEME – access request – whether access criteria under section 24 or section 25 of the National Disability Insurance Scheme Act 2013 (Cth) are met – where Applicant’s disability is attributable to one or more impairments – where Applicant’s impairments are not, or are not likely to be, permanent – where impairments do not result in a substantially reduced functional capacity to undertake, or psychosocial functioning in undertaking, activities – where impairments affect capacity for social or economic participation – where Applicant is not likely to require support under the NDIS for her lifetime – where Applicant does not meet the early intervention requirements – decision affirmed.

LEGISLATION

National Disability Insurance Scheme Act 2013 (Cth)

National Disability Insurance Scheme (Becoming a Participant) Rules 2016 (Cth)

CASES

Madelaine and NDIA [2020] AATA 4025
Mulligan v National Disability Insurance Agency (2015) 233 FCR 201

National Disability Insurance Agency v Davis [2022] FCA 1002

SECONDARY MATERIALS

Applying to the NDIS (Operational Guideline) dated 28 September 2023

REASONS FOR DECISION

Dr L Bygrave, Member

29 November 2023

1. This matter is about an application made by the Applicant, Mrs Valentina Dzajkovska, to become a participant in the National Disability Insurance Scheme (the NDIS).

2. On 21 December 2020, a delegate of the Chief Executive Officer (the CEO) of the National Disability Insurance Agency (the NDIA) decided Mrs Dzajkovska did not meet the access criteria in sections 21–25 of the National Disability Insurance Scheme Act 2013 (Cth) (the Act) (the original decision). Mrs Dzajkovska subsequently requested an internal review and the NDIA affirmed the original decision on 22 March 2021 (the internal review decision).

3. On 2 May 2021, Mrs Dzajkovska made an application for review of the internal review decision to the NDIS Division of the Administrative Appeals Tribunal (the Tribunal). The Tribunal has jurisdiction to review the internal review decision under section 103 of the Act.

4. The matter was heard by the Tribunal in Melbourne in person on 30 October 2023. Mrs Dzajkovska attended and gave oral evidence at the hearing; she was represented by her husband, Mr Srecko Dzajkovski. The Respondent was represented by counsel.

   RELEVANT LEGISLATION

5. The objects and principles set out in the Act provide guidance on interpreting the statute.

6. The objects of the Act listed in section 3 include giving effect to Australia’s obligations under the Convention on the Rights of Persons with Disabilities done at New York on 13 December 2006[1] and facilitating the development of a nationally consistent approach to the access to supports for people with disability. Paragraph 3(3)(b) of the Act further states that, in giving effect to the objects of the Act, regard is to be had to the need to ensure the financial sustainability of the NDIS.

   [1] ([2008] ATS 12).

7. The general principles guiding actions under the Act are contained in section 4 and include affirming that people with disability and their families and carers should have certainty that people with disability will receive the care and support they need over their lifetime.

   The access criteria

8. The access criteria to become a participant in the NDIS are summarised in subsection 21(1) of the Act as follows:

   21 When a person meets the access criteria

   (1)  A person meets the access criteria if:

   (a) the CEO is satisfied that the person meets the age requirements (see section 22); and

   (b) the CEO is satisfied that, at the time of considering the request, the person meets the residence requirements (see section 23); and

   (c) the CEO is satisfied that, at the time of considering the request:

   (i)    the person meets the disability requirements (see section 24); or

   (ii) the person meets the early intervention requirements (see section 25).

   [emphasis in original]

9. It is not in dispute that Mrs Dzajkovska meets the age requirements in section 22 and the residence requirements in section 23 of the Act; therefore, the sole issue for consideration in this matter is whether she satisfies either the disability requirements in section 24 of the Act or the early intervention requirements in section 25 of the Act.

10. Section 24 of the Act states the criteria to meet the disability requirements as follows:

    24 Disability requirements

    (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 the person has one or more impairments to which a psychosocial disability is attributable; 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 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.

    (3) For the purposes of subsection (1), an impairment or impairments that are episodic or fluctuating may be taken to be permanent, and the person may be taken to be likely to require support under the National Disability Insurance Scheme for the person’s lifetime, despite the episodic or fluctuating nature of the impairments.

    (4)  Subsection (3) does not limit subsection (2).

    [emphasis in original]

11. The early intervention requirements are stipulated in section 25 of the Act as follows:

    25 Early intervention requirements

    (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 to which a psychosocial disability is attributable and that 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.

    (1A) For the purposes of subparagraph (1)(a)(i) or (ii), an impairment or impairments that are episodic or fluctuating may be taken to be permanent despite the episodic or fluctuating nature of the impairments.

    (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.

    [emphasis in original]

12. Subsection 209(1) of the Act provides for the Minister to make rules prescribing matters: the relevant rules for this matter are the National Disability Insurance Scheme (Becoming a Participant) Rules 2016 (Cth) (the Participant Rules), which form part of the legislation.

13. Operational Guidelines, which represent government policy, are written by the CEO of the NDIA: the relevant Operational Guideline is Applying to the NDIS (Access Guideline) dated 28 September 2023.

    EVIDENCE

14. In 2010 and 2012, Mrs Dzajkovska sustained injuries at her workplace and subsequently received medical treatment through workers’ compensation insurance, WorkCover. In 2018, Mrs Dzajkovska’s access to medical treatment through WorkCover ceased. She is seeking access to the NDIS to receive ‘conservative’ medical treatment (described by Mr Dzajkovski as an ‘early intervention program’) to prevent her conditions deteriorating and to postpone her need to have surgery.

15. The evidence before the Tribunal includes relevant reports from the following medical practitioners who have treated and/or assessed Mrs Dzajkovska.

    Dr Nisar Hussain (general practitioner) and Dr Shahin Habibian (general practitioner)

16. A report by Dr Hussain on 12 November 2018 set out the history of Mrs Dzajkovska’s injury as follows:

    Lower back pain triggered by lifting and repeated bending at work. MRI (May 2017) shows L3/4 and L4/5 disc bulge and mild canal stenosis at L4/5. Also showing severe bilateral facet joint arthropathy.

    Her previous MRI (July 2013) also shows disc bulge at L4/5 and grade 1 spondylolisthesis.

    She has had this condition in 2010 also as shown by her CT scan… [on] 15^th Oct 2010, though it was mild.[2]

    [2] Exhibit T-T9, 57.

17. Dr Habibian completed a NDIS ‘Supporting Evidence Form’ on 1 February 2021, which stated Mrs Dzajkovska’s primary impairment is ‘chronic low back pain, hip pain’ that she has had since 2013; she underwent a rehabilitation program and osteopath treatment; and the impairment is ‘high [sic] likely to be lifelong’.[3] Dr Habibian also stated Mrs Dzajkovska has had ‘depression’ since 2013, which is ‘another impairment that has a significant impact’ on her.[4] Dr Habibian stated Mrs Dzajkovska is taking antidepressant medication and opined the impairment is ‘high [sic] likely to be lifelong if the pain management would [sic] not effective’.[5] Dr Habibian noted that Mrs Dzajkovska needs assistance with mobility if she walks for ‘too long’, ‘sometimes’ needs assistance or support in terms of ‘language barriers English’, needs assistance with self-care including showering and dressing, and needs support from her husband to make decisions.[6]

    [3] Exhibit T-T1D, 17.

    [4] Ibid.

    [5] Ibid.

    [6] Exhibit T-T1D, 19-21.

18. Dr Habibian provided a medical letter addressed to the NDIS also dated 1 February 2021 that confirmed Mrs Dzajkovska has ‘depression’ and ‘chronic back pain’, and noted the following treatments are recommended:

    1.    Ongoing osteopathy/physiotherapy/chiropractor management for non pharmacological approach to her pain management

    2.    Ongoing counselling with psychologists and regular psychiatrist visits to review the medication and treatment plan

    3.    Regarding the chronic low back pain it is highly likely to benefit from hydrotherapy and professional gym sessions.[7]

    [7] Exhibit T-T22, 83.

19. In a second medical letter to the NDIA dated 19 March 2021, Dr Habibian clarified that Mrs Dzajkovska had seen Dr Terence Lim (pain specialist) and Dr Steven Ng (neurologist) regarding her ‘low back pain’ but did not have the ‘chance to complete the treatment and follow up with other specialist[s]’ because ‘WorkCover ceased’ funding ‘her treatment plan’.[8] Dr Habibian noted Mrs Dzajkovska had commenced seeing a neurologist at Austin Health.

    [8] Exhibit T-T24, 86.

    Dr Terence Lim (consultant in rehabilitation and pain medicine)

20. Dr Lim provided a written report dated 21 April 2014 in which he set out the history of Mrs Dzajkovska’s injury, his examination of Mrs Dzajkovska and diagnosis that Mrs Dzajkovska has ‘chronic or persistent back and right leg pain due to the development of central sensitisation following suffering back pain in a work-related incident’.[9] Dr Lim opined that Mrs Dzajkovska would benefit from attending a pain rehabilitation program.

    [9] Exhibit ST-S39, 169-171.

    Dr Steven Ng (neurologist)

21. Mrs Dzajkovska was referred to Dr Ng for opinion and management by Dr Habibian on 24 July 2017.[10] Dr Ng subsequently referred Mrs Dzajkovska for an MRI brain and whole spinal cord, and a nerve conduction study.[11]

    [10] Exhibit T-T3, 46.

    [11] Exhibits T-T4, 47; T-T5, 49-50.

22. In a report dated 3 November 2018, Dr Ng set out the history of Mrs Dzajkovska’s work injury, the MRI results of her lumbar spine performed on 26 May 2017 that showed ‘grade 1 spondylolisthesis of L4/5 without any nerve root compromise’ and referred to specialists (pain specialist, orthopaedic surgeon and neurosurgeon) who have seen Mrs Dzajkovska.[12]  Dr Ng provided a diagnosis of:

    ·chronic pain syndrome on the basis that Mrs Dzajkovska’s ‘symptoms and signs are out of proportion to the inciting event and radiological findings’; and

    ·lumbar spondylosis and radiculopathy as the ‘lumbar spine changes are largely degenerative’ and ‘she has symptoms suggestive of radiculopathy affecting L5/S1 sensory roots’.[13]

    [12] Exhibit T-T8, 53-54.

    [13] Ibid, 55.

23. Dr Ng recommended Mrs Dzajkovska undergo ‘further pain management and rehabilitation’, and have neurosurgical review of her ‘condition and latest MRI lumbar spine imaging’.[14] Dr Ng listed ‘other potentially useful treatment modalities such as epidural injection, Ketamine infusion, spinal stimulator, radiofrequency ablation…etc’.[15]

    [14] Ibid, 56.

    [15] Ibid.

    Dr Alexander Bryson (neurology consultant)

24. Mrs Dzajkovska was referred to Dr Bryson for neurological review by Dr Habibian. Dr Bryson wrote a medical letter on 1 March 2021 that provided a history of Mrs Dzajkovska’s medical conditions and noted he was seeking a follow-up MRI for her lumbar spine.[16]

    [16] Exhibit ST-S3F, 20.

25. At the request of the NDIA, Dr Bryson provided a further medical report dated 3 March 2022 in which he stated he had reviewed Mrs Dzajkovska once via telephone consultation and once via face-to-face consultation. Dr Bryson referred the NDIA to the Austin Pain Service regarding current treatment of Mrs Dzajkovska’s condition of chronic pain, and listed the treatments she had previously undertaken as including physiotherapy, occupational therapy, psychiatry, hydrotherapy, pain management program, chronic pain service, and pharmacological therapies. He stated that his ‘impression, based on the duration and characteristics of Mrs Dzajkovska’s pain despite these interventions, is that her symptoms are likely to remain a long-standing problem’.[17]

    [17] Exhibit ST-S9A, 50.

    Dr Naomi Elliot (consultant psychiatrist)

26. Dr Elliot wrote reports regarding Mrs Dzajkovska on 16 April 2018, 8 September 2020, 8 December 2020 and 8 April 2022.

27. On 16 April 2018, Dr Elliot provided a diagnosis of ‘major depressive disorder – mild to moderate severity’ and ‘pain disorder associated with a general medical condition’: she opined Mrs Dzajkovska’s ‘depressive symptoms fluctuate with the severity of her pain’ but she ‘consistently’ has ‘some degree of low mood, reduced motivation, reduced enjoyment out of daily life, sleep disturbance’.[18] Dr Elliot outlined Mrs Dzajkovska’s treatment plan, noting that her symptoms have not responded ‘significantly’ to antidepressant medication but ‘her sleep has improved with the use of a sedating antidepressant’.[19]

    [18] Exhibit T-T1A, 7.

    [19] Ibid, 8.

28. In a NDIS ‘Supporting Evidence Form’ completed on 8 December 2020, Dr Elliot stated: Mrs Dzajkovska’s primary impairment is ‘chronic back, hip, leg pain’; she also has ‘another impairment that has a significant impact, which is ‘depression secondary to chronic pain’; and treatment is ‘antidepressant medication to assist with pain/sleep/depression’.[20]

    [20] Exhibit T-T1C, 11.

29. On 8 April 2022, Dr Elliot provided a report answering questions from the NDIA about Mrs Dzajkovska. Dr Elliot outlined Mrs Dzajkovska’s impairments and provided a clinical view that she ‘has developed depression secondary to chronic pain’ and her depressive symptoms would ‘no longer exist’ if there was ‘a cure’ for her chronic pain as there is no history of depression prior to her back injury.[21] Dr Elliot referred to Dr Lim for statements about Mrs Dzajkovska’s physical treatment, but stated that she understood ‘all’ physical (surgical and medical) treatment options had been exhausted.[22]

    [21] Exhibit ST-S9B, 52.

    [22] Ibid, 53.

    Dr Georgina Georgiou (clinical psychologist)

30. Dr Georgiou provided a written report dated 3 September 2020 to support Mrs Dzajkovska’s application for disability support pension. Dr Georgiou reported that she had treated Mrs Dzajkovska since March 2017 (they had undertaken more than 34 therapy sessions) and outlined Mrs Dzajkovska’s ‘symptoms of severely depressed mood, poor energy, sleep disturbance…, poor concentration, social withdrawal, anxiety and inactivity’ that are ‘chronic’ and occurred following a physical work-related injury in 2012.[23] Dr Georgiou opined that Mrs Dzajkovska’s symptoms are ‘still current and she continues to struggle at a severe level’, and her psychiatric condition is considered fully treated and stable.[24]

    [23] Exhibit T-T14, 67.

    [24] Ibid, 67-68.

    Summonsed medical records from Austin Health

31. Summonsed records from Austin Health show that Mrs Dzajkovska was referred to the Austin Pain Service in 2020 for ‘low back pain’.[25]

    [25] Exhibit ST-S51, 338.

32. The following reports from Dr Esther Dube (specialist, pain clinic) outline Mrs Dzajkovska’s medical issues and planned treatments:

    ·On 28 April 2022, Dr Dube listed the issues as: ‘chronic mechanical back pain in the setting of a work-related injury with likely facet joint arthropathy, left-sided L4 radiculopathy, left foot pain, prolonged unemployment’. Dr Dube noted that Mrs Dzajkovska ‘continues to have good physical therapy and psychology’ and ‘the plan’ is for her to have ‘bilateral medial branch blocks L3, L4 and L5 and after that, potentially go forward with radiofrequency’.[26]

    ·On 13 April 2023, Dr Dube listed the issues as: ‘chronic mechanical lower back pain, left hip pain in the setting of known labral tear, left-sided mechanical knee pain’. Dr Dube reported that an x-ray of the left knee was organised and, regarding her back and hip:

    the diagnostic medial branches did not yield any benefit for her…mechanical back pain but through working with the allied health team she does feel like her back pain is better, but her left hip pain continues… She has been seen by Orthopaedic and the plan is for conservative management, and the definitive treatment would potentially be surgical.[27]

    [26] Exhibit ST-S55, 362.

    [27] Ibid, 349.

33. Ms Sarah Lang (physiotherapist) wrote a report on 2 February 2023 in which she stated that Mrs Dzajkovska had been attending physiotherapy with the Austin Pain Service for ‘several months’ and participating in a ‘bespoke hydrotherapy and land exercise program to address her persistent low back, left calf and anterior left hip pain’.[28] Ms Lang reported that Mrs Dzajkovska was ‘significantly deconditioned and found her ADLs [activities of daily living] very difficult due to pain’ but had:

    improved significantly over several months, rating her low back as 50% and her L [left] hip improved 30-40%. Calf pain improved 70%.

    Progress has been slow and steady due to her complex presentation…

    She continues to have significant weakness around her L [left] hip, however, I am confident she will continue to make gains with a conservative approach.[29]

    [28] Ibid, 351.

    [29] Ibid, 351-352.

1. A progress note by Ms Lang made on 6 February 2023 referred to the need for a ‘continued ex[ercise] approach’ to treatment as Mrs Dzajkovska was ‘still deconditioned in left hip region and fearful’, and seemed ‘reluctant to acknowledge gains’.[30] This note further stated Mrs Dzajkovska was ‘not interested in BPSM [biopsychosocial model] at this stage’ and ‘she thinks she has done pain management’.[31]

   [30] Exhibit ST-S51, 261.

   [31] Ibid.

2. Progress notes by Ms Lang on 24 April 2023 provided a ‘summary of issues’, treatments including an exercise plan and gym program, and a plan to discharge Mrs Dzajkovska after a further three physiotherapy sessions aiming to ‘build her self-efficacy’ for an independent exercise program.[32] In the summary of issues, Ms Lang included the statement: ‘Central sensitisation with hyperalgesia to pin prick and cold in her left lower limb… Most probably contributing to heightening pain response to organic changes.’[33]

   [32] Ibid, 241-242.

   [33] Ibid, 241.

3. The Austin Health records also include progress notes by Dr Michael Gurr (clinical psychologist) in 2022–2023. Dr Gurr recorded on 1 June 2022 that Mrs Dzajkovska has a history of treatment where she ‘found improvement with monitored exercise and massage but then went backwards as soon as sessions ceased’.[34] These notes also refer to Dr Gurr having discussions with Mrs Dzajkovska about pain education and Mrs Dzajkovska advising him on 1 February 2023 that ‘with ongoing exercise the frequency of pain is reducing’.[35]  

   [34] Ibid, 314.

   [35] Ibid, 264.

   Ms Phi-Van Houston (occupational therapist)

4. At the request of the NDIA, Ms Houston completed an occupational therapy assessment and evaluation of Mrs Dzajkovska. Ms Houston wrote a detailed report dated 25 November 2022 and gave oral evidence at the Tribunal hearing.

5. In her report, Ms Houston set out the background and assessment process that took place with Mrs Dzajkovska on her own at her home over a period of 2 ¾ hours; Mrs Dzajkovska’s medical history, diagnoses and current symptoms, and treatment history; and Mrs Dzajkovska’s general presentation and social and living situation.[36] Ms Houston recorded that Mrs Dzajkovska lives with her husband, their three adult children and her parents-in-law in a single-level, low maintenance house in Melbourne.[37]

   [36] Exhibit ST-S11, 64, 66-70.

   [37] Ibid, 70.

6. Ms Houston noted under ‘general presentation’ that, from a ‘functional capacity perspective’, she observed Mrs Dzajkovska had no difficulties with ‘communication in terms of thought processes or cognition during the assessment’, and was ‘able to transfer without difficulty off and on the couch and mobilise unaided and independently within her home’.[38] Ms Houston also recorded that:

   ·Mrs Dzajkovska reported postural tolerances of sitting – 30 minutes, standing – 5-10 minutes, walking 10-15 minutes, squatting – unable due to knee and hip pain, laying down – independent transfer in and out of bed, driving automatic car – 20-30 minutes.[39]

   ·Mrs Dzajkovska reported she:

   ois fully independent with personal care activities of daily living including dressing, showering, grooming and toileting, and does not use aids or equipment;

   ocan undertake some cooking and food preparation, but cannot bend to reach low cupboards and requires her children to assist with vacuuming; and

   ois independent with driving her automatic car for 20-30 minutes and receives assistance from her family to go shopping.[40]

   ·Mrs Dzajkovska reported that her ‘mental health/depression is aligned with her pain experience’.[41]

   [38] Ibid, 69.

   [39] Ibid.

   [40] Ibid, 70.

   [41] Ibid.

7. Ms Houston made the following observations:

   Based on clinical observations on the day of the assessment, and the evidence provided, my understanding is that the applicant has degenerative spinal changes, with or without radiculopathy, resulting in chronic pain syndrome.

   Whilst she does have pain, based on the applicant’s report and observations of demonstrated bed and chair transfers, and mobilizing within the home, the applicant remains independent with most of her ADLs [activities of daily living]. With the right equipment, eg. Upright stick vacuum (a standard household equipment) the applicant can undertake some spot vacuuming, with self-pacing strategy...[42]

   [42] Ibid, 72.

8. In her report and oral evidence at the Tribunal hearing, Ms Houston observed that ‘pain’ is a ‘self-limiting behaviour’ for Mrs Dzajkovska.[43] She noted that, due to fear of causing more pain, Mrs Dzajkovska is limiting herself by, for example, not going on walks or doing exercises. Ms Houston also set out that self-management strategies, such as task simplification/modification and self-pacing, could be used by Mrs Dzajkovska to assist her functional capacity.

   [43] Ibid, 75.

   Oral evidence of Mrs Dzajkovska

9. Mrs Dzajkovska provided credible and genuine evidence at the Tribunal hearing. Regarding treatments she has undertaken for chronic pain, Mrs Dzajkovska said she completed the pain rehabilitation program recommended by Dr Lim in 2014. However, regarding the treatments recommended by Dr Ng in 2018, she has only tried the epidural injection and had ‘blocks’. She said she has not undertaken any other treatments (for example, Ketamine infusion, spinal stimulator, radiofrequency ablation) because Workcover stopped funding for her medical treatments in 2018. Mrs Dzajkovska said she wants to continue with ‘conservative’ treatment to postpone her need for surgery.

10. Mrs Dzajkovska confirmed that she continues to see Dr Elliot for psychiatric/psychological review. She said Dr Elliot treats her depression rather than her chronic pain, but Dr Gurr (Austin Pain Service) had treated her for depression and pain.

11. Mrs Dzajkovska told the Tribunal that physiotherapy sessions undertaken with Ms Lang (Austin Pain Service) assisted to ‘maintain’, rather than ‘improve’, her levels of pain and activity. She said she was discharged from the Austin Pain Service in August 2023 and so no longer has access to physiotherapy or hydrotherapy services. Mrs Dzajkovska confirmed that she has home exercises to complete and said she is currently on a waitlist for physiotherapy through allied health services. Mrs Dzajkovska said she does not use a walking stick, require a stool in the shower or use other equipment; and she was able to travel overseas to Macedonia in 2022 and in 2023, although she used a wheelchair to access the plane. She said she previously would go out for a walk but has stopped this activity due to pain.

    CONSIDERATION

12. The sole issue for determination in this matter is whether Mrs Dzajkovska satisfies either:

    ·the disability requirements in section 24 of the Act; or

    ·the early intervention requirements in section 25 of the Act.

    Does Mrs Dzajkovska satisfy the disability requirements in section 24 of the Act?

13. To satisfy the disability requirements in subsection 24(1) of the Act, Mrs Dzajkovska must meet all the criteria in paragraphs 24(1)(a) to (e). I now consider these requirements.

    Paragraph 24(1)(a) – whether Mrs Dzajkovska’s disability is attributable to one or more impairments

14. Paragraph 24(1)(a) of the Act requires Mrs Dzajkovska to have ‘a disability that is attributable to one or more intellectual, cognitive, neurological, sensory or physical impairments’ or to have ‘one or more impairments to which a psychosocial disability is attributable’.

15. Impairment ‘is generally understood as involving the loss of or damage to a physical, sensory or mental function’.[44] The Access Guideline further states:

    To meet the disability requirements, [the NDIA] must have evidence your disability is caused by at least one of the impairments below

    -    intellectual – such as how you speak and listen, read and write, solve problems, and process and remember information

    -    cognitive – such as how you think, learn new things, use judgment to make decisions, and pay attention

    -    neurological – such as how your body functions

    -    sensory – such as how you see or hear

    -    physical – such as the ability to move parts of your body.

    You may also be eligible for the NDIS if you have a psychosocial disability. This means you have reduced capacity to do daily life activities and tasks due to your mental health.[45]

    [emphasis in original]

    [44] Mulligan v National Disability Insurance Agency (2015) 233 FCR 201 at [51].

    [45] Applying to the NDIS, 28 September 2023, 7.

16. I consider this means that a person has a disability within the meaning of paragraph 24(1)(a) of the Act where the evidence shows they have an impairment that is the cause of their reduction or loss of ability to perform an activity.

17. I am satisfied the evidence as set out at paragraphs 14–44 shows Mrs Dzajkovska has disabilities that are attributable to impairments arising from:

    ·chronic mechanical lower back pain, left hip pain in the setting of known labral tear, left-sided mechanical knee pain (these are the diagnoses in Dr Dube’s report dated 13 April 2023,[46] which is the most recent medical report before the Tribunal); and

    ·depression secondary to chronic pain.

    [46] Exhibit ST-S55, 349.

18. I further acknowledge the diagnosis by Dr Lim in 2014 that Mrs Dzajkovska’s chronic pain is due to the ‘development of central sensitisation’ and note this condition is also referenced in Ms Lang’s progress note dated 24 April 2023.[47]

    [47] Exhibits ST-S39, 169-171; ST-S51, 241.

19. I am satisfied Mrs Dzajkovska meets the requirement in paragraph 24(1)(a) of the Act.

    Paragraph 24(1)(b) – whether Mrs Dzajkovska’s impairments are, or are likely to be, permanent

20. The Participant Rules provide the following guidance to consider when an impairment is, or is likely to be, permanent:

    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.

    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).

    5.7 If 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.

    [emphasis added]

21. In the Federal Court decision of National Disability Insurance Agency v Davis, Mortimer J (as she then was) opined that ‘the word “remedy” should be understood to mean something approaching a removal or cure of the impairment’ and ‘the adjective “available” should be understood as directed at what treatments an individual can, in reality, access.’[48]

    [48] [2022] FCA 1002 at [136], [139].

22. For the purposes of paragraph 24(1)(b) of the Act and consistent with my findings at paragraph 50 above, I am satisfied Mrs Dzajkovska’s impairments are:

    ·chronic mechanical lower back pain, left hip pain in the setting of known labral tear, left-sided mechanical knee pain (physical impairments); and

    ·depression secondary to chronic pain (psychosocial impairment).

23. I now consider whether these impairments are, or are likely to be, permanent as required by paragraph 24(1)(b) of the Act and rules 5.4 – 5.7 of the Participant Rules.

    Chronic mechanical lower back pain, left hip pain in the setting of known labral tear, left-sided mechanical knee pain (physical impairments)

24. Based on the evidence regarding Mrs Dzajkovska’s physical impairments, I find that:

    ·Mrs Dzajkovska has not participated in all recommended treatments as set out in the report of Dr Ng on 3 November 2018. This was confirmed in the report of Dr Habibian on 19 March 2021 and Mrs Dzajkovska’s oral evidence at the hearing.

    ·Mrs Dzajkovska ‘improved significantly’ after ‘several months’ of participating in a ‘bespoke hydrotherapy and land exercise program’ with physiotherapist, Ms Lang from approximately November 2022 to April 2023.

    ·Mrs Dzajkovska’s oral evidence that physiotherapy and hydrotherapy treatment ‘maintained’ rather than ‘improved’ her pain and activity levels is not consistent with the written reports of Ms Lang.

    ·I prefer and place substantial weight on the objective, expert and credible reports of Ms Lang.

    ·The medical evidence is consistent with submissions made by Mr Dzajkovski that Mrs Dzajkovska is seeking to receive conservative treatment so as to postpone her need for surgery.

25. I am satisfied the medical evidence shows there are known, available and appropriate evidence-based clinical, medical or other treatments that would be likely to remedy Mrs Dzajkovska’s physical impairments.

    Depression secondary to chronic pain (psychosocial impairment)

26. Based on the evidence regarding Mrs Dzajkovska’s psychosocial impairment, I find that:

    ·Mrs Dzajkovska has engaged with treatment on a regular and consistent basis with Dr Elliot and Dr Georgiou. Treatment for Mrs Dzajkovska’s depression has included psychological counselling, psychiatric treatment and pharmacological review.

    ·Mrs Dzajkovska’s symptoms of depression are aligned with her experience of chronic pain.

    ·There is limited medical evidence that Mrs Dzajkovska has engaged with psychological treatment regarding her experience of chronic pain, although progress notes by Dr Gurr at Austin Health reference discussions about pain education.

    ·Further treatment is available to Mrs Dzajkovska regarding pain management, such as the biopsychosocial model proposed by Ms Lang.  

    ·Although Dr Lim and Ms Lang have opined Mrs Dzajkovska has central sensitisation, I find no medical evidence before the Tribunal that shows she has accessed any treatment for this condition.

27. In view of the reported association between Mrs Dzajkovska’s physical and psychosocial impairments, I also find that further treatment and associated improvement in her physical impairments would be expected to have a positive effect on her psychosocial impairment.

28. I am satisfied the medical evidence shows there are known, available and appropriate evidence-based clinical and medical treatments that would be likely to remedy Mrs Dzajkovska’s psychosocial impairment.

29. For the reasons set out above, I am not satisfied Mrs Dzajkovska meets the requirement in paragraph 24(1)(b) of the Act.

    Paragraph 24(1)(c) – whether Mrs Dzajkovska’s impairments result in a substantially reduced functional capacity to undertake activities

30. Paragraph 24(1)(c) of the Act requires Mrs Dzajkovska to demonstrate that her impairments result in substantially reduced functional capacity to undertake any of the activities listed in subparagraphs (i) to (vi); communication, social interaction, learning, mobility, self-care, and/or self-management.

31. Rule 5.8 of the Participant Rules states:

    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.

    [emphasis added]

32. Prior to considering the activities in subparagraphs (i) to (vi) of paragraph 24(1)(c) of the Act, I make the following observation in relation to the evidence about Mrs Dzajkovska’s functional capacity.

33. As set out at paragraphs 53–62 above in relation to paragraph 24(1)(b) of the Act, I find the evidence before the Tribunal shows there are known, available and appropriate evidence-based clinical, medical or other treatments that would be likely to remedy Mrs Dzajkovska’s physical and psychosocial impairments. It follows that Mrs Dzajkovska’s functional capacity in all or some activities may increase if she were to access these treatments.

34. I now consider the evidence as set out in Ms Houston’s occupational assessment report in relation to Mrs Dzajkovska’s functional capacity for each of the activities at subparagraphs 24(1)(c)(i)–(vi) of the Act. At the outset, I observe that Ms Houston’s report is the only occupational therapy assessment before the Tribunal. I have considered oral submissions by Mr Dzajkovski regarding Ms Houston’s evidence and note that I found Ms Houston’s written report and her oral evidence at the hearing to be professional, objective and credible.

    Communication

35. The Access Guideline states that communicating is:

    how you speak, write, or use sign language and gestures, to express yourself compared to other people your age. [The NDIA] also look at how well you understand people, and how others understand you.[49]

    [49] Applying to the NDIS, 28 September 2023, 9.

36. From a ‘functional capacity perspective’, Ms Houston reported ‘no observed difficulties with communication in terms of thought processes or cognition’ by Mrs Dzajkovska during the occupational therapy assessment she attended on her own. Ms Houston further observed Mrs Dzajkovska had ‘no difficulty communicating via her mobile phone’ and was able to ‘sort through’ documents ‘demonstrating no issue with reading in English’.[50]

    [50] Exhibit ST-S11, 73.

37. I am satisfied that Mrs Dzajkovska’s impairments do not result in her having a substantially reduced functional capacity to undertake communication as required by rule 5.8 of the Participant Rules.

    Social interaction

38. ‘Socialising’ is described in the Access Guideline as:

    how you make and keep friends, or interact with the community, or how a young child plays with other children. [The NDIA] also look at your behaviour, and how you cope with feelings and emotions in social situations.[51]

    [51] Applying to the NDIS, 28 September 2023, 9.

39. In relation to social interaction, Ms Houston opined that Mrs Dzajkovska is ‘pain focused’ and this ‘may be a barrier to her actively attempting to make new friends as she is likely to think that she is not able to engage socially due to her chronic pain’.[52]

    [52] Exhibit ST-S11, 73.

40. While the report of Dr Georgiou refers to Mrs Dzajkovska presenting with symptoms including ‘social withdrawal’,[53] I find no evidence before the Tribunal that shows Mrs Dzajkovska has a substantially reduced functional capacity for social interaction as required by rule 5.8 of the Participant Rules.

    Learning

    [53] Exhibit T-T14, 67.

41. The Access Guideline describes learning as:

    how you learn, understand and remember new things, and practise and use new skills.[54]

    [54] Applying to the NDIS, 28 September 2023, 9.

42. Ms Houston stated that Mrs Dzajkovska reported she had ‘difficulties with concentration due to pain’ and ‘needs reminding for appointments’; however, Ms Houston opined that this ‘afflicts us all as we age’ and Mrs Dzajkovska has ‘the capacity to learn new things as there is no cognitive impairment’.[55]

    [55] Exhibit ST-S11, 74.

1. I am not satisfied Mrs Dzajkovska has a substantially reduced functional capacity for learning as required by rule 5.8 of the Participant Rules.

   Mobility

2. Mobility is described in the Access Guideline as meaning:

   how easily you move around your home and community, and how you get in and out of bed or a chair. [The NDIA] consider how you get out and about and use your arms or legs.[56]

   [56] Applying to the NDIS, 28 September 2023, 9.

3. In the decision of Madelaine and NDIA, the Tribunal stated:

   …the threshold requirements to achieve functional capacity in relation to this activity are relatively modest. A person has functional capacity if they can move about their home, get in and out of a bed or a chair, and mobilise in the community. Movement in the home does not need to be achieved by walking; a person might even crawl from room to room. The Concise Oxford Dictionary defines mobile as movable, not fixed, free to move.

   The use of the phrase move around...to undertake ordinary activities of daily living in the [Access] Guideline is significant. It implies some expectation of how far a person needs to be able to move to undertake ordinary daily activities, say, getting to the bathroom to wash or toilet, getting to the kitchen to prepare food, perhaps getting to the front letterbox to collect mail. Implicit in this concept is that the distances involved will be relatively short.[57]

   [emphasis added]

   [57] [2020] AATA 4025 at [104]-[105].

4. Consistent with the decision in Madelaine and NDIA, I consider the ‘threshold requirements’ to achieve functional capacity in relation to mobility to be ‘modest’. I find the evidence of Mrs Dzajkovska, as reported to Ms Houston and at the Tribunal hearing, shows she can move about her home and access the community independently and without aids.

5. I am not satisfied Mrs Dzajkovska’s impairments result in a substantially reduced functional capacity in relation to mobility as required by rule 5.8 of the Participant Rules.

   Self-care

6. The Access Guideline describes self-care as including:

   personal care, hygiene, grooming, eating and drinking, and health. [The NDIA] consider how you get dressed, shower or bathe, eat or go to the toilet.[58]

   [58] Applying to the NDIS, 28 September 2023, 9.

7. Mrs Dzajkovska reported to Ms Houston that she is ‘independent with her showering and dressing, albeit slow when dressing the lower limbs’, is ‘able to stand to cook’ and sit to ‘prepare food’ but is unable to bend to reach lower cupboards/drawers, and requires the assistance of her family to go shopping and to vacuum the floors.[59]

   [59] Exhibit ST-S11, 77.

8. I am satisfied there is no evidence to show Mrs Dzajkovska’s impairments result in a substantially reduced functional capacity to undertake self-care as required by rule 5.8 of the Participant Rules.

   Self-management

9. Self-management is described in the Access Guideline as:

   how you organise your life. [The NDIA] consider how you plan, make decisions, and look after yourself. This might include day-to-day tasks at home, how you solve problems, or manage your money. [The NDIA] consider your mental or cognitive ability to manage your life, not your physical ability to do these tasks.[60]

   [60] Applying to the NDIS, 28 September 2023, 9.

10. Ms Houston reported that Mrs Dzajkovska ‘is considered to have the ability to make decisions and solve problems independently’ and there was ‘no reported difficulty with this domain’.[61] I note, in contrast, Dr Habibian reported on 1 February 2021 that Mrs Dzajkovska is ‘not able to make decision [sic] most of the time’ and she ‘needs support from her husband if available’.[62] In reconciling these different opinions, I find there is insufficient evidence before the Tribunal to show that Mrs Dzajkovska does not have the mental and cognitive ability to manage her life.

    [61] Exhibit ST-S11, 78.

    [62] Exhibit T-T1D, 21.

11. Weighing the available evidence, I am not satisfied Mrs Dzajkovska’s impairments result in a substantially reduced functional capacity to undertake self-management.

12. For these reasons, I am satisfied Mrs Dzajkovska’s physical and psychosocial impairments do not result in her having substantially reduced functional capacity to undertake any of the activities (communication, social interaction, learning, mobility, self-care, and/or self-management) as required by paragraph 24(1)(c) of the Act.

    Paragraph 24(1)(d) of the Act – whether Mrs Dzajkovska’s impairments affect her capacity for social or economic participation

13. Mrs Dzajkovska has not been employed since 2013 and is in receipt of the disability support pension. I therefore find that Mrs Dzajkovska’s impairments affect her capacity for economic participation.

14. I am satisfied Mrs Dzajkovska meets the requirement in paragraph 24(1)(d) of the Act.

    Paragraph 24(1)(e) – whether Mrs Dzajkovska is likely to require support under the NDIS for her lifetime

15. The Access Guideline states the following:

    You must be likely to need support under the NDIS for your whole life.

    NDIS supports are investments that help you build or maintain your functional capacity and independence, and help you work, study or take part in social life.

    Even if your needs go up and down over time, or happen episodically, [the NDIA] may still consider it’s likely you’ll need lifetime support under the NDIS.

    [The NDIA] consider your overall situation to answer this question.

    When [the NDIA] decide if you’ll likely need support under the NDIS for your whole life, [the NDIA] consider:

    -    your life circumstances

    -    the nature of your long-term support needs

    -    whether your needs could be best met by the NDIS, or by other government and community services.[63]

    [63] Applying to the NDIS, 28 September 2023, 11-12.

16. For the reasons set out in paragraphs 53–62, I am not satisfied Mrs Dzajkovska’s physical impairments and psychosocial impairment are permanent.

17. I am satisfied it would be inconsistent for me to make a finding that Mrs Dzajkovska, as a prospective participant, is likely to require support under the NDIS for her lifetime in circumstances where I find there are further treatments that may remedy her impairments. Therefore, I cannot find Mrs Dzajkovska will require support under the NDIS for her lifetime.

18. I am satisfied that Mrs Dzajkovska does not meet paragraph 24(1)(e) of the Act.

    Does Mrs Dzajkovska satisfy the early intervention requirements in section 25 of the Act?

19. Section 25 of the Act sets out the early intervention requirements. The Access Guideline explains the purpose of the early intervention requirements as follows:

    Early intervention is usually early access to support, to help reduce the functional impacts of your impairment.

    Early intervention can be for both children and adults. You won’t need these supports for your lifetime, so your treating professional or your early childhood partner will tell us how early intervention support could benefit you or your child.[64]

    [64] Applying to the NDIS, 28 September 2023, 12.

20. I now consider whether Mrs Dzajkovska meets the early intervention requirements.

    Paragraph 25(1)(a) – whether Mrs Dzajkovska has a permanent impairment

21. For the reasons I set out in paragraphs 53–62, I am not satisfied the following impairments of Mrs Dzajkovska are permanent:

    ·chronic mechanical lower back pain, left hip pain in the setting of known labral tear, left-sided mechanical knee pain (physical impairments); and

    ·depression secondary to chronic pain (psychosocial impairment).

22. It follows that I find the requirement in paragraph 25(1)(a) of the Act is not met.

    Paragraphs 25(1)(b) and (c) – whether the provision of early intervention support is likely to benefit Mrs Dzajkovska by reducing her future needs for supports in relation to disability

23. Paragraphs 25(1)(b) and (c) require the CEO of the NDIA to be ‘satisfied that provision of early intervention supports for the person is likely to benefit the person’ in various ways. Paragraph 25(1)(b) requires a state of satisfaction that the provision of early intervention supports is likely to benefit the person by reducing the person’s future needs for supports in relation to disability. Paragraph 25(1)(c) requires a state of satisfaction that the provision of early intervention supports is likely to benefit the person by mitigating or alleviating the impact of the person’s impairment, preventing the deterioration of functional capacity, improving functional capacity, or strengthening the sustainability of informal supports available to the person.

24. Paragraph 6.9 of the Participant Rules sets out the issues the CEO of the NDIA would consider in relation to whether the provision of early intervention supports is likely to benefit a person under paragraphs 25(1)(b) and (c) of the Act:

    6.9 In deciding whether provision of early intervention supports is likely to benefit the person in the ways mentioned in paragraphs 6.2(b) and (c) above, it is expected that the CEO would consider:

    (a)the likely trajectory and impact of the person’s impairment over time; and

    (b)the potential benefits of early intervention on the impact of the impairment on the person's functional capacity and in reducing their future needs for supports; and

    (c)evidence from a range of sources, such as information provided by the person with disability or their family members or carers. The CEO may also in some cases seek expert opinion.

25. Mr Dzajkovski has submitted that Mrs Dzajkovska is seeking access to an ‘early intervention program’ to provide her treatments and therapies and postpone her need for surgery. While the evidence of Ms Lang shows Mrs Dzajkovska’s pain improved with hydrotherapy and a land exercise program, there is no medical evidence before the Tribunal to show the potential benefits of early intervention on the impact of Mrs Dzajkovska’s impairments on her functional capacity and reducing her future need for supports.

26. I am not satisfied that early intervention supports will be likely to benefit Mrs Dzajkovska in the ways specified in paragraphs 25(1)(b) and (c) of the Act.

    Paragraph 25(3) – whether early intervention support most appropriately funded or provided through the NDIS

27. Subsection 25(3) of the Act operates in circumstances where, even if Mrs Dzajkovska meets subsections 25(1) and (2), she may not meet the requirements of early intervention support because the support is not most appropriately funded or provided through the NDIS and is more appropriately funded or provided through other general systems of service delivery or support services, such as through the health system.

28. I find no evidence before the Tribunal that shows Mrs Dzajkovska requires early intervention support that is most appropriately funded through the NDIS.

29. For these reasons, I find Mrs Dzajkovska does not meet the early intervention requirements in section 25 of the Act.

    CONCLUSION

30. As I find Mrs Dzajkovska does not meet the access criteria in either section 24 or section 25 of the Act, the internal review decision made on 22 March 2021 is affirmed.

    DECISION

31. The decision under review is affirmed.

I certify that the preceding 106 (one hundred and six) paragraphs are a true copy of the reasons for the decision herein of Dr L Bygrave, Member

................................[sgd]........................................

Associate

Dated: 29 November 2023

Date of hearing:	30 October 2023
Advocate for the Applicant	Mr Srecko Dzajkovski
Counsel for the Respondent:	Mr Chadwick Wong
Solicitors for the Applicant:	Minter Ellison