Galea and National Disability Insurance Agency
[2022] AATA 2263
•14 July 2022
Galea and National Disability Insurance Agency [2022] AATA 2263 (14 July 2022)
Division:NATIONAL DISABILITY INSURANCE SCHEME DIVISION
File Number(s): 2021/3503
Re:Stephen Galea
APPLICANT
National Disability Insurance AgencyAnd
RESPONDENT
DECISION
Tribunal:Senior Member D Connolly
Date:14 July 2022
Place:Sydney
The decision under review is affirmed.
...............................[SGD].........................................
Senior Member D Connolly
CATCHWORDS
NATIONAL DISABILITY INSURANCE SCHEME – access criteria – disability requirements – chronic regional pain syndrome – meaning of “substantially” reduced functional capacity – whether impairments result in substantially reduced functional capacity – decision under review affirmed
LEGISLATION
National Disability Insurance Scheme Act 2013(Cth)
National Disability Insurance Scheme (Becoming a Participant) Rules 2016 (Cth)
CASES
Mulligan v National Disability Insurance Agency [2015] FCA 544
Rooney and National Disability Insurance Agency [2021] AATA 3523
Re Drake and Minister for Immigration and Ethnic Affairs (No 2) [1979] AATA 179; (1979) 2 ALD 634
SECONDARY MATERIALS
Operational Guideline – Applying to the NDIS
REASONS FOR DECISION
Senior Member D Connolly
14 July 2022
BACKGROUND TO REVIEW
Mr Stephen Galea (the Applicant), aged 48, seeks review of a decision made by the National Disability Insurance Agency (the Respondent) which affirmed an earlier decision to refuse his request for access to the National Disability Insurance Scheme (the NDIS) under provisions of the National Disability Insurance Act 2013 (Cth) (the Act).
The Applicant suffered a work-related injury to his right foot in August 2016 and was subsequently diagnosed with complex regional pain syndrome (CRPS). He has been diagnosed with other medical conditions; Dandy-Walker abnormality with mild communicating hydrocephalus[1], Wolff-Parkinson White syndrome[2] (which has been treated), Type 2 diabetes and obstructive sleep apnoea.[3] The Applicant sought access to the NDIS on the basis of the impairments caused by CRPS. He has not indicated that any impairments from his other diagnoses result in substantially reduced functional capacity.
[1] Dandy-Walker syndrome refers to a group of specific, congenital (present at birth) brain malformations and is a common cause of hydrocephalus, Basic Search (Dandy-Walker syndrome) - Results - Gale Health and Wellness accessed 21 April 2022.
[2] Wolff-Parkinson-White syndrome is characterised by attacks of rapid heart rate (tachycardia), Wolff-Parkinson-White syndrome - Better Health Channel accessed 21 April 2022.
[3] Hearing Bundle E2/5.
On 15 March 2021, a delegate of the Chief Executive Officer (CEO) of the Respondent determined the Applicant did not meet the access criteria set out in the Act. The Applicant subsequently requested an internal review and the internal reviewer confirmed the decision on 7 May 2021 (the internal review decision).
On 24 May 2021 the Applicant applied to the Administrative Appeals Tribunal (the Tribunal) for review of the internal review decision.
LEGISLATION
The NDIS was established under the Act. Its objectives are set out in section 3, include giving effect to Australia’s obligations under the Convention on the Rights of Persons with Disabilities and facilitating the development of a nationally consistent approach to the access to supports for people with disability.
The general principles guiding actions under the Act are set out in section 4 and include affirming that people with disability should have certainty that they will receive the care and support they need over their lifetime.
The access criteria
Subsection 21(1) of the Act provides as follows:
(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).
There is no dispute the Applicant satisfies the age requirements in section 22 and the residence requirements in section 23 of the Act. The issue for the Tribunal to decide is whether the Applicant satisfies the access criteria in either section 24 of the Act (the disability requirements) or section 25 of the Act (the early intervention requirements).
Section 24 of the Act states as follows:
(1)A person meets the disability requirements if:
(a)the person has a disability that is attributable to one or more intellectual, cognitive, neurological, sensory or physical impairments or to one or more impairments attributable to a psychiatric condition; and
(b)the impairment or impairments are, or are likely to be, permanent; and
(c)the impairment or impairments result in substantially reduced functional capacity to undertake, or psychosocial functioning in undertaking, one or more of the following activities:
(i)communication;
(ii)social interaction;
(iii)learning;
(iv)mobility;
(v)self‑care;
(vi)self‑management; and
(d)the impairment or impairments affect the person’s capacity for social or economic participation; and
(e)the person is likely to require support under the National Disability Insurance Scheme for the person’s lifetime.
(2)For the purposes of subsection (1), an impairment or impairments that vary in intensity may be permanent, and the person is likely to require support under the National Disability Insurance Scheme for the person’s lifetime, despite the variation.
The early intervention requirements are set out in section 25 of the Act. However the Applicant has not contended that he meets those requirements.
In Mulligan v National Disability Insurance Agency[4] Mortimer J held that “impairment” is generally understood as involving “the loss of or damage to a physical, sensory or mental function”. The assessment to be undertaken is functional and multi-faceted, and it requires a relatively high degree of precision.[5]
[4] [2015] FCA 544, at [51].
[5] Ibid, at [55].
As set out by the Respondent in their Statement of Facts, Issues and Contentions, not disputed by the Applicant:
A person’s functional capacity in one of the activities in s 24(1)(c) must be such so as to meet the description of “substantially reduced”. A mere reduction in functional capacity is insufficient, the reduction must be ‘substantial’. Whether or not the reduction is ‘substantial’, is essentially an evaluative judgment. But noting the “spectrum of impairments”, as Mortimer J has said, “[n]o decision-maker need be satisfied a person’s impairment is “serious”, or more serious than another person’s. The proper approach is to objectively consider what the person with their impairment can or cannot do.
The Minister may, under subsection 209(1) of the Act, make rules prescribing matters. The rules relevant to this matter are the National Disability Insurance Scheme (Becoming a Participant) Rules 2016 (Cth) (the Participant Rules), which form part of the legislation. Rule 5.8 is relevant and set out in my consideration of the evidence.
It is necessary to consider each permanent impairment separately and in combination with any other permanent impairment of the person, as well as each of the activities: communication, social interaction, learning, mobility, self-care and self-management. The assessment is of what the person can and cannot do, having regard to the contents and the deeming effect of Rule 5.8. The Tribunal must consider whether the impairment or impairments result in substantially reduced functional capacity to undertake one or more of the specified activities. However, the requirement is met if the impairment results in a substantially reduced functional capacity in only one of the specified activities.
The Operational Guidelines also assist in making decisions in accordance with the Act. Operational Guidelines represent government policy and should be applied by the Tribunal unless there is good reason not to do so.[6]
[6] Re Drake and Minister for Immigration and Ethnic Affairs (No 2)[1979] AATA 179; (1979) 2 ALD 634.
The Tribunal noted the Operational Guidelines referred to by the Respondent was updated shortly after the hearing. It wrote to the parties and directed that they provide any further comments relevant to the current guidelines which are set out below in my consideration of the evidence. I have taken into account those comments.
If I find the requirements of paragraph 24(1)(c) of the Act are met I must also consider whether the impairment or impairments affect the Applicant’s capacity for social or economic participation (paragraph 24(1)(d) of the Act). The requirement is met if the impairment affects his capacity in either category. If paragraph 24(1)(d) is met I must consider whether he is likely to require support under the NDIS for his lifetime (paragraph 24(1)(e) of the Act). The Applicant must meet these requirements to satisfy the disability requirements set out in subsection 24(1) of the Act.
ISSUES
The Respondent accepts and, based on medical evidence discussed below, I agree, that the Applicant has a disability that is attributable to one or more impairments, that is, CRPS of the right foot, and so paragraph 24(1)(a) is met.
There was a discussion at the hearing about the Applicant’s mention of a reported learning or intellectual disability. The Respondent made clear their understanding that the Applicant did not seek to rely on this impairment to meet the statutory criteria in section 24 of the Act. The Respondent made the point that if the Applicant did seek to rely on it, further clarification would be sought. It was noted there was limited evidence about any formal diagnosis or whether there had been a formal assessment of the Applicant’s functional capacity resulting from any intellectual or learning disability. The Respondent argued that, even if the Tribunal considers the evidence before it on this reported disability, it could not reach a level of satisfaction to find that section 24 is met on the basis of this disability. The Applicant’s support person at the hearing, Ms Williams, stated the Applicant’s learning difficulties are not relevant to the access criteria; the challenges were raised to give the Tribunal context.
However, in the Applicant’s closing submissions provided on 26 April 2022, reference is made to reports by Andrew Johnson and Andrew Hook, who both commented on the Applicant’s learning disability. Having regard to those reports I accept the Applicant attended Coreen School, which provides an alternative to mainstream learning for students who experience difficulties, to address his learning needs. However, I note it was again submitted the Applicant is not relying on this impairment to meet the eligibility criteria. Rather it gives context and assists in understanding the Applicant and the challenges he faced during the hearing. I have taken this into account. I have also taken into account that the experts who assessed the Applicant made it clear he was cooperative and obliging during assessments.[7]
[7] On 5 May 2022 the Respondent informed the Tribunal, having read the Applicant’s closing submissions, that they had no further comments to make.
The Respondent has however conceded, based on the reports of Dr Trudi Richmond, Rehabilitation and Pain Specialist,[8] that the Applicant’s impairment is, or is likely to be, permanent. Dr Richmond provided her reports at the request of the Respondent. I note in response to a question about the likely outcome of further treatment (pain focused psychology, exercise physiology, podiatry and physiotherapy for CRPS), Dr Richmond stated:
I think at this stage, it would be unreasonable to assume the Applicant will have significant improvement in function, the purpose of these treatments will be to prevent secondary deconditioning, mood deterioration and severity of pain flares with the aim of reduced hospital Emergency Department attendance... The aim of these treatments would be to prevent further deterioration.[9]
[8] Reports of Dr Trudi Richmond, Rehabilitation and Pain Specialist dated 17 December 2021 and 18 February 2022.
[9] Hearing Bundle E6/40.
Having considered Dr Richmond’s report, along with other evidence discussed below, I agree with the conclusion that the impairment is permanent and find paragraph 24(1)(b) of the Act is met.
The issue in dispute therefore is whether the Applicant’s impairment or impairments result in substantially reduced functional capacity to undertake, or psychosocial functioning in undertaking, one or more of the following activities: communication, social interaction, learning, mobility, self-care or self-management.
If I find that requirement is met, I must then consider whether the Applicant’s impairment or impairments affect his capacity for social or economic participation, and whether he is likely to require support under the NDIS for his lifetime.
The Applicant has not submitted that he meets the early intervention requirements in section 25 of the Act.
EVIDENCE
Evidence before the Tribunal
The evidence before the Tribunal is as follows:
·the “T-Documents” provided to the Tribunal by the Respondent after the application for review was made, which include evidence provided by the Applicant to the Respondent.
·The Hearing Bundle consisting of 234 pages, filed by the Respondent on 8 April 2022. The bundle includes a range of evidence including witness statements, expert reports, other medical reports and records, and summonsed medical records, discussed in detail below.
·The oral evidence provided by the Applicant and other witnesses at the hearing on 13 and 14 April 2022, held in Sydney with the parties and witnesses participating via videoconference. The Applicant was supported during by his sister, Ms Bernadette Galea (Ms Galea) and a family friend, Ms Angela Williams. The following other people gave evidence at the hearing:
·Dr Chaminda De Silva, the Applicant’s General Practitioner;
·Dr Trudi Richmond, Rehabilitation and Pain Medicine Specialist, for the Respondent; and
·Mr Glen Dwyer, Occupational Therapist, for the Respondent.
The Respondent provided an updated statement of facts, issues and contentions. The Applicant provided a response to that statement. Those statements are also included in the Hearing Bundle.
Evidence before the internal reviewer
The Applicant provided to the NDIA evidence that he was working for a spare parts business when he was injured at work in August 2016. A disc brake weighing about 10kg fell out of a box, onto his right foot. Imaging did not identify any fracture. He has since been diagnosed with CRPS. He has had various treatments including spinal injections, Ketamine infusion, physiotherapy and pharmaceutical treatments including Lyrica, Endep, and Nexium.[10]
[10] T5/87.
In support of his access request the Applicant provided a Supporting Evidence Form[11] completed by his treating doctor, Dr Chaminda De Silva, dated 16 April 2021, in which it is claimed the Applicant’s primary impairment, CRPS (right foot), is permanent but can be managed with continuous physiotherapy. Dr De Silva stated the Applicant needs assistance with mobility because he has chronic pain associated with CRPS and some days he is unable to walk. He stated the Applicant also needs assistance with social interaction because, without regular treatment and therapy, he will return to social isolation. He reported he needs assistance with showering/bathing, eating/drinking, overnight care, toileting and dressing and that his mother and sister do his housework, and drive him to appointments and to the pool for exercise. He stated the Applicant’s allodynia (pain due to a stimulus that does not normally provoke pain) impacts strongly on his ability to perform activities using his lower limb. He stated the Applicant is unable to perform activities requiring physical exertion or stamina, or to complete work related and living tasks that take more than 10 minutes. He indicated, without continuous physiotherapy, the Applicant would be unable to shower, dress, eat and toilet independently. Dr De Silva reported the Applicant does not need assistance with communication, learning or self-management.
[11] T16/112 – 118.
The Applicant also provided a letter of support from his sister, Ms Galea, dated 22 December 2020, stating the Applicant is in constant pain. She and her mother support him in all areas of life, including but not limited to house cleaning, gardening, grocery shopping, cooking and freezing meals, appointments, and driving. She stated he requires exercise physiology and osteopathy otherwise the pain increases and he needs to attend the hospital. She has accompanied him to the hospital on those occasions.
The Applicant provided a letter from Mr Shane Fewster, Osteopath, dated 4 December 2020, stating he provides the Applicant with treatment on a weekly basis and has done so since December 2019. The treatment consists of manual therapy, exercise prescription and pain management (CBT). The treatment is focused on self-management, functional capacity and pain relief. He stated, since undergoing treatment, the Applicant reports considerable improvement in his function and capacity to undergo activities of daily living.
The Applicant provided a letter from Mr Selim Vanlioglu, Physiotherapist, dated 4 September 2019, reporting the Applicant had shown improvement with physiotherapy and gym-based exercise physiology.
The Applicant also provided correspondence relating to his work-related injury and compensation including:
·a document from his former employer dated 1 November 2017 indicating he had been absent from work for over 52 weeks on Work Cover;
·documents from the insurance company EML concerning the Applicant’s treatment after sustaining the work-related injury, and his employment capacity;
·a chronic disease management plan completed by his GP in October 2018; and
·a document addressing team care arrangements dated 11 July 2019.
On 7 May 2021 the internal reviewer decided to confirm the decision not to grant the Applicant access, having formed the view they were not satisfied the Applicant’s impairment was permanent, noting there was evidence indicating the Applicant was being reviewed by a pain specialist every six weeks and was being encouraged to reengage with his psychologist and attend treatment to assist with managing pain. The internal reviewer also noted the Applicant was still undergoing treatment by his Osteopath, that his GP had indicated he was to be further assessed by a Neurologist, and that the Physiotherapist’s report indicated the Applicant was showing improvement with treatment. Accordingly, the internal reviewer was not satisfied the Applicant’s impairment was permanent and found therefore that he did not meet the disability requirements.
The internal reviewer considered whether the Applicant met the early intervention requirements stating:
(the) [e]vidence provided does not demonstrate the provision of early intervention supports is likely to benefit you by reducing future needs for support. Information provided does not address the supports you require or the outcomes that would be achieved in regard to your functional capacity and reducing your future needs.[12]
[12] T2/84.
Evidence provided with the review application
The Applicant applied for review of the decision on 24 May 2021. Ms Galea provided a statement, raising her concern that the internal reviewer did not understand that CRPS is a permanent condition. She provided a fact sheet from the National Institute of Neurological Disorders[13] explaining the condition as follows. It is associated with prolonged pain and inflammation following an injury to a limb. People with CRPS have changing combinations of spontaneous pain or excess pain, much greater than normal, following even mild touch. Usually, CRPS improves over time and eventually goes away for most people, but sometimes rare, severe or prolonged cases are profoundly disabling. The outcome is highly variable and can be chronic. Typical symptoms are unprovoked or spontaneous pain that can be constant or fluctuate with activity, changes in skin temperature, skin colour, swelling, changes in skin texture, abnormal sweating and nail and hair growth, stiffness in affected joints, wasting or excessive bone growth, and impaired muscle strength and movement.
[13] T1K/73.
Ms Galea asserted that the Applicant experiences difficulty with tasks involving prolonged standing, walking, bending, squatting and reaching above his head, and relies on domestic assistance. He cannot clean the bathroom or floors and requires assistance with gardening. She referred to a Return to Work assessment undertaken in April 2020 which recorded his tolerances and capacity. She acknowledged his self-care is independent but noted he uses a shower chair. She stated that, since the accident, his social life has stopped. She stated he has learning difficulties.
The Applicant provided a nerve conduction and EMG report dated 16 November 2018 indicating generalised sensory neuropathy.
The Applicant provided an Activities of Daily Living Functional Assessment report, dated 29 March 2019, prepared by Andrew Johnson, Occupational Therapist, who indicated he undertook a “brief physical functional capacity screening” and observed the Applicant in his home.[14] He reported that the Applicant’s main difficulties are pain, dizziness, reduced flexibility in his right foot and limited capacity to stand and walk. Mr Johnson opined that the Applicant’s difficulties in understanding/interpreting basic suggestions regarding work issues were suggestive of learning difficulties or cognitive impairment. At the time of the assessment the Applicant was not driving. He was independent in self-care but required a chair to shower. He needed to do his shopping online. He was able to prepare light meals but was supported by family who cooked for him. He could do some light housework but was assessed as needing assistance with house cleaning and yard maintenance.
[14] T1B/7.
The Applicant provided a Capacity to Earn report, prepared by Andrew Hook, Rehabilitation Counsellor, dated 16 July 2019.[15] Mr Hook recorded that the Applicant stated he occasionally used a walking stick and mobilised outside with crutches. He could not drive and had significant reduction in his tolerances for various activities. The Applicant reported to him that he attended Coreen School, which provides an alternative to mainstream learning for students who experience difficulties, to address his learning needs.
[15] T1E/33 – 50.
The Applicant provided a Functional Capacity Evaluation undertaken in June 2019, by Jane Bell, Physiotherapist, which was conducted for the purposes of determining his work and earning capacity in relation to his worker’s compensation claim.[16] Ms Bell reported that the Applicant had various limitations in a range of activities. She observed that he could sit for an unlimited period, had reduced tolerance for standing, stooping, walking and stair climbing, and declined to squat or kneel. He had some capacity to lift and carry.
[16] T1E/54 – 64.
The Applicant also provided an Initial Assessment report prepared by Alana Jones, Occupational Therapist, RTW Rehab, dated 27 April 2020, for the purposes of determining the Applicant’s rehabilitation needs and making recommendations to facilitate his occupational rehabilitation.[17] It was recorded that the Applicant had unpredictable and persistent pain in his foot, experienced referred pain and occasional foot swelling.
[17] T1C/17 – 29.
I note, since 2020, other assessments, discussed below, have been undertaken, with somewhat different results, and reflect the Applicant’s current functional capacity.
Summonsed material
The Applicant’s GP and Osteopath were summonsed to produce documents relating to the Applicant’s treatment and medical history. Various radiology results and medical reports, dating back to September 2016, were produced and filed, including from Dr Alister Ramachandran, Pain Physician, Dr David Manohar, Pain Physician, Dr Geoffrey Needham, Pain Physician, Dr Tim Ho, Pain Specialist, Dr Terry Kwong, Rheumatologist, Dr Sumana Gopinath, Neurologist, Dr Garth Nicholson, Professor of Neurogenetics, Mr David Young, Physiotherapist, Ms Alanna Finnan, Occupational Therapist, Ms Jane Bell, Rehabilitation Consultant and Mr Daniel Ka Chun Sit, Physiotherapist. This material is particularised in the index of the hearing bundle, under the heading Documents sourced under Summons. While the Tribunal has considered all of the summonsed material filed, Ms Finnan’s report became the subject of particular consideration and is discussed in more detail below.
Further evidence provided by to the Tribunal
The Applicant provided various statements of lived experience, repeating some of his claims set out above and adding the following information.[18] He stated the goal of treatment for CRPS is to relieve pain and manage symptoms. He has completed the following treatment: physiotherapy, exercise physiology, osteopathy, hydrotherapy, psychology, rehabilitation, podiatry, pain medicines and other treatment by pain specialists. Most recently he was having several sessions per week of exercise physiology, two sessions per week with the osteopath and podiatry every two months. His functional capacity depends on his pain levels. When pain is severe he cannot complete daily living activities. When he is not in too much pain he can walk to the shops, very slowly. However, when the pain is severe he cannot walk around his house. He stays in bed until he can move. This can take hours. He cannot use public transport due to the risk of falls. He can drive short distances. He uses a shower chair. He has basic reading and writing skills but cannot use a computer. He can learn simple tasks. He is socially isolated but his sister and mother support him with day-to-day activities and cook meals for him. He can mow the lawn and do small amounts of washing and cleaning when his pain levels are low. His sister helps clean and he pays someone to do more in-depth cleaning. He can manage his own finances, pay his bills, make his own appointments and manage his medications.
[18] E1/1 – 4, E3/7 – 8 and E4/9 – 12.
The Applicant provided a letter from Dr Aruna Karunarathna, Consultant Physician, dated 28 August 2021, stating that the Applicant still has some right leg pain which mostly responds to physiotherapy. It is exacerbated “on and off” and he goes to the Emergency Department for an NSAID injection. He confirmed the Applicant is driving. He thought the Applicant would benefit from a customised shoe to take the pressure off his right leg.
Dr Richmond provided reports at the Respondent’s request. Her first, dated 17 December 2021, reported that she examined the Applicant in person on 17 December 2021. He provided her with the following information. He completed his schooling at a special needs school and worked in various roles in warehousing, his longest employment being for approximately five years. He was not taking any medication as he has had multiple allergies and adverse reactions to medications.
Dr Richmond recorded that the Applicant reported the day of assessment was a typical day for his pain. He had gone for an hour walk prior to the appointment. He had shooting pain in his foot which was worse at night when his foot spasms. It also spasms if he sits for long periods. He reported allodynia with sheets and dripping water, swelling about once a month, nail changes, hair loss and erythematous changes (reddening of the skin) about four times a year. He reported mood changes about once a month but he has never been suicidal. He considered himself to be socially isolated, compared to his social life prior to the injury, and sees friends only once a week. He sees his mother and sister regularly. He drives locally.
Regarding the Applicant’s pain related interference, Dr Richmond reported the following:
He has a sitting tolerance of one hour. His pain is worse on sitting. His balance is impaired. He has been using the walking stick since the accident. He has a walking tolerance of 40 minutes at a reduced pace with a walking stick. He mobilises with a walking stick. He has not had any falls. His sleep is broken secondary to pain, waking about twice per night. He has difficulties falling back to sleep. He reheats prepared meals from his sister. He is able to do some light cleaning, with his sister and mother coming to clean. He is able to wash up and sweep. Some days he doesn't wash up each day. His sister cleans the bathroom. He attends the gym four times per week with the Exercise Physiologist. He was attending hydrotherapy when he could afford it and this was also impacted by COVID restriction. He walks in his street three times per day.[19]
[19] E5/16.
With respect to mobilising, Dr Richmond reported that the Applicant stated he mobilises but uses a mobility aid when outdoors. He does not require a walking stick indoors. He reported being able to go to the beach and walk for 10 to 15 minutes, holding on to someone, before needing to rest. He reported being able to drive approximately 20 kilometres, and travel as a passenger for 40 minutes. She did not observe any fatigue or breathlessness. She observed him transfer independently, from lying to sitting and sitting to standing. She formed the view he is a falls risk and would have difficulties walking up stairs independently, and would only be able to do so holding onto handrails. He would need to be accompanied on public transport. She formed the view his incapacity is attributed solely to his CRPS.
Dr Richmond provided a supplementary report dated 18 February 2022 in which she addressed the Respondent’s questions about further treatment options. She noted the Applicant reported decreased physical function and increased hospital presentations following ceasing treatment. His sister told Dr Richmond that his pain severity increases without treatment.
The Respondent requested that Dr Richmond comment on a report from Ms Alanna Finnan, Occupational Therapist, dated 25 September 2020.[20] Ms Finnan prepared the report for the Applicant, having been referred by his GP, for the purposes of determining the impact of his medical condition on his ability to drive. Both on and off road assessments were conducted. Ms Finnan reported that the Applicant:
[20] E42/213 – 220.
… had reduced mobility and significant pain for the last 3 to 3.5 years, however in the past 6 to 12 months, (he) experiences considerably less pain and improved mobility, such that he can now walk unaided and does not rely on pain medications. He reports that he still experiences some pain…however he has learnt to manage the pain and does not feel that it is exacerbated by any particular activities or movements. He reports that he engages in a rigorous daily exercise regime to maintain his right foot range of motion and mobility which includes long distance walking, swimming, exercise physiology and physiotherapy.
…
(The Applicant) lives alone and is looking forward to being able to return to driving so that he can drive himself to the shops, medical and rehab appointments, holidays and to his sister’s house…
…
Bilateral hip…knee…ankle… were tested for range of motion, strength and tone. Any pain reported by the client was recorded. Bilateral lower limb tactile localisation, kinaesthesia and coordination were also tested. No deficits were noted.
Particular attention was paid to the right foot, however (the Applicant) demonstrated full ROM and strength in all ankle ranges… No pain was reported during this testing.
Particular attention was also paid to the coordination, reaction time, sensation, proprioception and kinaesthesia of the right foot however no deficits were noted.
…
…(The Applicant) mobilises unaided indoors and outdoors and independently transfers off all surfaces. He reports that he walks 4 to 6 km a day for exercise. He reports he can run up to 100m and he can skip and jump.
…
(The Applicant’s CRPS) does not impact on his ability to drive a car…The OT driving assessment indicated that (his) medical condition does not impact on his ability to drive.[21]
[21] E42/213 – 220.
Dr Richmond compared Ms Finnan’s report with other medical evidence provided to her by the Respondent, summarised as follows:
·Professor of Neurogenetics, Garth Nicholson reported on 25 May 2017 that the Applicant walked with a walking stick and a boot, without which he could only walk slowly.
·Consultant Physician and Rheumatologist, Dr Terry Kwong reported on 18 June 2018 that the Applicant used a walking stick at home and crutches outdoors. He had no flexion in his right ankle and had an antalgic gait.
·Consultant Neurologist, Dr Sumana Gopinath reported on 26 September 2018 the Applicant had a normal gait, and normal tone and power in his lower limbs. On 28 November 2018 she reported that there was improvement in erythema and oedema and his gait was not antalgic.
·Physiotherapy Consultant, Gaetano Milazzo reported on 19 November 2018 the Applicant’s standing and walking was limited to 15 minutes each, he was avoiding stairs and his gait was slow and irregular. He was unable to perform any right ankle movements or stand independently on his right leg. The Applicant reported to Mr Milazzo that he usually used a walking stick.
·Physiotherapist, Daniel Ka Chun Sit reported on 18 January 2019 that the Applicant had limited range of movement in his right ankle.
·Physiotherapist, Jane Bell reported on 26 June 2019 that the Applicant was unable to participate in long beach or bush walks, and his symptoms were aggravated by standing, walking, stair use and cold weather. He declined to squat or kneel.
·Physiotherapist, David Young reported on 21 November 2019 the Applicant needed to be supervised at the gym as he might fall, that he could walk for 10 minutes, and 5 minutes without a stick, on a local street. He did not use steps. His sister did his shopping and cooking, visiting once a week. He had improved flexion in his ankle.
Regarding the discrepancies in the evidence of Ms Finnan and her own, Dr Richmond suggested it may be the Applicant had suffered a significant decline in function in the months following Ms Finnan’s examination, however, having considered the above reports, she noted there appeared to be gradual improvement in his range of movement and function over the years since the injury. She suggested another explanation is that the Applicant had overstated his impairments throughout his previous assessments.
At the request of the Respondent, the Applicant was to be examined on 9 February 2022, by independent Occupational Therapist, Glen Dwyer for the purposes of providing a functional capacity assessment. Mr Dwyer reported the following.[22] At the commencement of the assessment the Applicant experienced a “medical event”, stating his right lower limb had seized up. Mr Dwyer reported that the Applicant experienced a tremor in his right leg prior to the loss of function. The Applicant indicated this event occurred in a background of high anxiety and stress, leading up to the assessment. He told Mr Dwyer the only remedy when this occurs is being transported to hospital by ambulance, as the condition never resolves spontaneously or with medication on hand. He told Mr Dwyer this happens four times a year and the episode was “as bad as it gets”, but it is only this infrequent if he regularly attends treatment (exercise physiology, osteopathy and podiatry) and if he does not attend treatment regularly it occurs once a month.
[22] E7/49
With respect to the Applicant’s function between such events, Mr Dwyer reported that the Applicant and his sister indicated the Applicant is largely independent in his usual activities of daily living. He drives a car to local shops and amenities, prepares light meals, undertakes light house cleaning, completes small loads of laundry and small grocery shops, and mows his own lawn if he paces himself. His sister completes heavier house cleaning and provides pre-cooked meals for him to reheat.
The assessment was rescheduled to 2 March 2022. On 29 March 2022 Mr Dwyer reported the following.[23] The Applicant is independent in communication, social interaction and learning activities. With respect to mobility the Applicant is independent with mobilising in the community and able to access all essential local community services. At all times between acute episodes the Applicant does not require attendant care services in relation to mobility. However, the Applicant requires practical support with heavier household domestic tasks, such as mopping, scrubbing and heavier bulk laundry. He recommended the Applicant use a plinth, to raise the washing machine, and a trolley in the laundry. He acknowledged the Applicant experiences ongoing functional limitations, due to his CRPS, that impact, to varying degrees, his ability to carry out activities of daily living.
[23] E8/51-80
Mr Dwyer reported on “good days” and “bad days” and repeated that the Applicant indicated a bad day occurs rarely, on average four times a year. His mother and sister visit him regularly and support him by providing assistance with cleaning, washing his bed linen and providing pre-cooked meals.
Mr Dwyer’s report has various photographs of the Applicant in his home, a freestanding house with lawn but no garden beds. The Applicant is pictured sitting on his shower chair, bending to put laundry in a washing machine, with his lawn mower, in his kitchen reaching all cupboards, getting in and out of his car, sitting on his bed to put on his shoes, standing in his living room and vacuuming his floor with a stick vacuum cleaner.
With respect to mobility, Mr Dwyer reported that the Applicant mobilised around his home without assistance from another person or mobility aids and reported that he is able to mobilise in his community. The Applicant reported to him that he is able to walk for approximately 30 minutes before requiring a rest. He noted the physiotherapist, Mr Young, reported in November 2019 that the Applicant could lift up to five kilograms. The Applicant is able to drive to visit his GP and therapy providers, visit friends, walk around the shops and complete light grocery shopping. He reported the Applicant does not use walking aids but avoids rough, uneven surfaces. He drives independently, for up to 30 minutes. He does not use public transport. Mr Dwyer was of the view there was no, or minimal, falls risk based on his observations but accepted he is safer mobilising on a level surface.
With respect to self-care, Mr Dwyer reported the Applicant essentially manages all personal care tasks (showering, toileting and dressing) but needs assistance with heavier household domestic cleaning tasks. He made some suggestions for improving his capacity to grocery shop and undertake household cleaning.
Regarding communication, learning and self management activities, Mr Dwyer reported he did not consider the Applicant to have any reduced functional capacity in those domains.
I have also taken into account oral evidence provided at the hearing, the relevant parts of which are cited and discussed below.
After the hearing the Applicant made written closing submissions, making new allegations of fact. It was explained at the hearing that the closing submissions were the Applicant’s opportunity to sum up the evidence, clarify the issues and argue his position on those issues. I reminded the Applicant at the end of the hearing that the closing submissions were an opportunity to sum up the issues and his position. While I have considered the issues raised and the arguments set out in those submissions, I have not given weight to the new allegations of fact.
CONSIDERATION OF EVIDENCE
Does the Applicant’s impairment result in substantially reduced functional capacity?
The Tribunal must consider whether the Applicant’s impairment or impairments result in substantially reduced functional capacity to undertake one or more specified activities. This requires a detailed assessment of the effects of each permanent impairment on the person’s functional capacities. Each of the categories set out in paragraph 24(1)(c) must be considered in particular detail.
The timing of the Tribunal’s assessment
The Applicant has submitted that the various treatments he engages in help maintain his functional capacity and prevent further deterioration. He told the Tribunal that his current treatment regime is working and if he did not do it, his pain and foot would be a lot worse. In the Access request completed by Dr De Silva it is submitted that without treatment the severity of the Applicant’s pain will result in increased hospital admissions. The Applicant has stated that his treatment regime, engaged in for the past two years, consists of four sessions per week with the Exercise Physiologist and the Osteopath once a week. He also goes to the pool 3 times a week.[24] However he has expressed concern that he cannot afford this and the supports he would be seeking from NDIS are exercise physiology, osteopathy, podiatry and help around the house.[25] Mr Dwyer recorded that the Applicant stated he has difficulty affording the treatment he requires, and financial support (funded through NDIS) is a very high priority for him.[26]
[24] Transcript of Proceedings (13 April 2022), p. 15.
[25] Ibid, p. 29.
[26] E8/57.
Dr Richmond was of the view regular physical therapy will assist to maintain is level and range of movement.[27]
[27] Transcript of Proceedings (14 April 2022), p. 78.
The Applicant has expressed concern that his condition and functional capacity may change if he is unable to continue with this current treatment regime. I note Dr De Silva, his GP, had a different view about the treatment required to maintain his level of function. Dr De Silva said he thought the Applicant needed to see a physiotherapist about twice or three times a month, and the Exercise Physiologist at least “once a fortnight.”[28] He was less certain about osteopathy but stated if the Applicant says the osteopathic treatment helps his pain, then he would not stop him going. He did not think osteopathy could replace physiotherapy, because he was concerned about maintaining the Applicant’s muscle strength. He did not have a clear understanding of osteopathy. He indicated the Applicant had reported to him that his pain is well controlled when he maintains his treatment regime.[29]
[28] Transcript of Proceedings (13 April 2022), p. 42.
[29] Ibid, p.43.
I accept the Applicant is concerned that, if he is not able to maintain his current treatment, he may lose functional capacity. It appears however that his treating GP holds a different view about what he actually needs to maintain his level of function. I also understand he is concerned he may not be able to afford to continue with his current regime and it is for this reason that he is seeking supports from NDIS. However, paragraph 24(1)(c) of the Act requires me to consider the Applicant’s current functional capacity, not speculate on any future capacity diminished by an inability to maintain his current treatment regime.
Discrepancies in the evidence regarding the Applicant’s functional capacity
In his oral evidence the Applicant denied that his capacity to do things has improved over time but he has learned how to manage it.[30] However I note the medical evidence indicates the Applicant’s functional capacity has improved since he was injured in August 2016. For example, he is now able to drive, after Ms Finnan’s assessment in September 2020 confirmed that his medical condition does not impact on his ability to drive. I also note that while Professor Nicholson reported on 25 May 2017 that the Applicant walked with a walking stick and a boot, and Dr Terry Kwong reported on 18 June 2018 that the Applicant used a walking stick at home, according to Mr Dwyer who assessed him in March 2022, he no longer uses a walking stick indoors. I note that on 24 November 2018 Physiotherapy Consultant Gaetano Milazzo reported the Applicant’s walking limit was 15 minutes. However more recent evidence indicates his walking limit has increased to between 30 minutes and an hour. Dr Richmond noted there appeared to be gradual improvement in his range of movement and function over the years since the injury. Mr Fewster, the Applicant’s Osteopath stated the Applicant reports considerable improvement in his function and capacity to undergo activities of daily living since commencing treatment. For these reasons I give greater weight to the more recent evidence about the Applicant’s functional capacity.
[30] Transcript of Proceedings (13 April 2022), p. 9.
There are however discrepancies in the more recent evidence. Ms Finnan reported that in September 2020 the Applicant said he walks 4 to 6 km a day for exercise (the Applicant disputes telling Ms Finnan that he walks this distance), and that he reported engagement in a rigorous daily exercise regime to maintain his right foot range of motion and mobility, which includes long distance walking, swimming, exercise physiology and physiotherapy.[31] I note Dr Richmond’s oral evidence that there is a significant discrepancy with Ms Finnan’s assessment and her suggestion that, potentially, the Applicant overstated his capacity. She stated however, given his presentation on the day she assessed him, she does not believe he would be able to hop as recorded by Ms Finnan.
[31] The Applicant disputes the content of Ms Finnan’s report and in closing submissions noted that Ms Finnan did not observe him run, skip or hop.
Dr Richmond recorded that the Applicant reported in December 2021 that he could walk for approximately one hour, and that he had done this before his assessment, and this was a typical day. She recorded that he stated he goes for a walk 3 times a day. Mr Dwyer recorded that the Applicant reported he is able to walk for approximately 30 minutes before requiring a rest. Mr Dwyer observed and photographed a treadmill and stated in his oral evidence that the Applicant told him he walks on the treadmill.[32] In his statement of lived experience the Applicant said he can walk to the shops, very slowly. However, in his oral evidence the Applicant initially claimed he has not been able to walk to the shops.[33] When clarification was sought about the apparent inconsistency, he stated he can walk to the local shops if he wants a hamburger, about 400 to 500 metres away, and it takes about 10-15 minutes, but he needs to use a walking stick. He indicated he is able to walk for about 30 minutes with resting. When asked to compare this with his report to Dr Richmond, that he had gone for an hour walk, he claimed he did not go for an hour walk and he had his sister with him.
[32] Transcript of Proceedings (14 April 2022), p. 57.
[33] Transcript of Proceedings (13 April 2022), p. 9.
In his closing submissions the Applicant raised concerns about the categorisation of “bad days” as only being the days he goes to hospital. He considers “bad days” should include the days that he is confined at home to a chair or bed, unable to access food or go to the toilet. He questioned the reliance on Mr Dwyer’s assessment because it was only for 2.5 hours, in the morning when the Applicant is more functional, which did not provide a good insight into the Applicant’s challenges.
The Applicant also raised in his closing submissions concerns about classifying “good days” and “bad days” with any precision because, as Dr Richmond explained in her oral evidence, CRPS symptoms can vary day to day.[34] I accept this view. This is why it is important to consider the Applicant’s functional capacity overall, not just on particular days. The Applicant also raised the issue that it was Mr Dwyer who introduced the concept of “good days” and “bad days” and the Applicant does not limit his bad days to those when he needs to go to hospital.
[34] Transcript of Proceedings (14 April 2022), p. 79.
I note there are conditions where the impact of an impairment is fluctuating. Based on Dr Richmond’s evidence, CRPS is one of those conditions. I have considered the Operational Guidelines on fluctuating or episodic impairment, which currently states:
Your needs might go up and down each day or each month. Progressive Multiple Sclerosis (MS) can be a good example of this. We consider your ability over time, taking into account your ups and downs.
There is no legislative basis for excluding acute episodes. I must undertake a practical assessment of the effect of the Applicant’s impairment on his functional capacity to undertake the specified activities, taking into account that there are some days in the year when he suffers an acute episode for which he attends hospital, and some days when he needs to go to bed for several hours until the pain eases off.
I also note there is some discrepancy in the evidence regarding the frequency of “bad days” and “good days”. Dr Richmond reported that the Applicant informed her that the day of assessment was a “typical day” for his pain but approximately four times a year his foot becomes erythematous and once a month it swells. She noted he reported decreased physical function and increased hospital presentations following ceasing treatment but did not provide particulars about the periods during which he had ceased treatment, and the actual frequency of hospital presentations.
Mr Dwyer reported that the Applicant told him that a bad day occurs rarely, on average four times a year when receiving treatment and once a month if he is not.[35] However in his oral evidence the Applicant indicated he has acute episodes 3 or 4 times a week.[36] When the apparent discrepancy was raised with him, he said he does not always go to hospital during acute episodes. He then claimed a bad day is “every day”. I take this as an indication that he feels pain every day. When I asked the Applicant to describe a good day, he said it was when he can get out of bed and go for walks up and down the street and go to the shops and get his groceries. I note that he indicated to Dr Richmond he walks in this street three times a day. When I explained to him that Mr Dwyer had recorded that he indicated he had only four bad days a year he said: “(i)t’s 4 days I go to hospital a year, but every day is a bad day for me… I push through the pain as much as I can so I won’t have to go to hospital”.[37] I note however that Dr De Silva stated that the “only alternative … when he gets the severe pain is for him to present to the hospital” to have an injection.[38]
[35] E8/56 – 57.
[36] Transcript of Proceedings (13 April 2022), p. 8.
[37] Transcript of Proceedings (13 April 2022), p. 29
[38] Ibid, p. 40
This is consistent with Mr Dwyer’s evidence about the Applicant’s actions when he suffers an acute episode. When asked about the Applicant’s presentation at the two assessments, the first being when the Applicant had a medical event, the other a more typical day, Mr Dwyer said:
… it couldn’t have been more different… the first assessment in February, upon arriving at the applicant’s home, I was greeted by his sister Bernadette, out in the driveway, where she, I guess, gave me a very quick summary to say look, there’s been quite a bit of anxiety leading up to this assessment and he - Mr Galea is feeling like he’s perhaps having the onset of one of these events that he has involving his right lower limb. We went inside and we started the assessment, but it wasn’t very long after that, that - and he was sitting in his reclining chair with his footrest up. It wasn’t… long after that, that I did notice that there was a tremor in the right leg and he had advised me that he felt that this event where his leg seizes up was coming on and then just announced to me in a fairly matter of fact sort of way, that now it’s happened. And that once that happens there’s, sort of, nothing he can do except use his normal routine which is to call an ambulance and seek treatment and go to hospital and he received the treatment he received at hospital and that allows him to then continue on.
…
(Question - And the second assessment?) Yes, yes, so by way of very quick summary, he was - he didn’t move out of the chair in that first assessment. Okay. Second assessment, I think having benefitted from the time spent, and the discussion, and the [rapport] established in the first assessment, and look, he may attest to this himself but I felt that he was probably far more relaxed and I was not an unknown entity, I was a known person … that he’d met and talked to previously, so upon meeting him for the second time, it was quite different and he didn’t have the limitations that, or the experience, that he had the first time around. And look, we were able to conduct the assessment in a completely unrestricted manner which couldn’t have been any more different to the first assessment, but he was quite obliging and in all regards, I believe in both assessments he was informing me and being very honest and straight forward about what he was experiencing. That obviously was a very bad experience in the first assessment and obviously, quite a different set of circumstances in the second. I gathered that the day of the second assessment was an example of a typical day that does not involve one of those quite rare flare up, complete right leg seize up situations that he - I gather that he has several times a year.
…
Having seen both days, they couldn’t have been more different…
…
…I understood those - what I witnessed on 9 February to be, to occur about four times a year, that was him saying it, that was his sister saying it, that was me perhaps clarifying that that was the frequency. But I left there with no doubt that what I’d witnessed only happens about four times a year. [39]
[39] Transcript of Proceedings (14 April 2022), p. 54-56.
The Applicant told Mr Dwyer the only remedy when he has an acute exacerbation, such as the medical event which occurred when he first saw Mr Dwyer, is being transported to hospital by ambulance, as the condition never resolves spontaneously or with medication on hand. When asked about his most recent hospital visit the Applicant indicated it was on 31 March and prior to that, 2 months before, when he saw Mr Dwyer on 9 February.
When asked about the difference between a bad day, when the Applicant goes to hospital, and other bad days, he claimed he cannot do anything on the days he does not go to hospital. He spends 10 hours in bed and cannot even go to the toilet.[40] I am not satisfied those days occur frequently as this is inconsistent with the Applicant’s report to Dr Richmond and Mr Dwyer who both recorded that, on the day they assessed him, he reported he was experiencing typical pain and functioning.[41] I note Mr Dwyer understood those days to occur about four or five times a year.[42] I also note the Applicant’s evidence about his treatment regime suggests he is able to leave his home most days of the week.
[40] Transcript of Proceedings (13 April 2022), p. 9.
[41] E5/15, E8/55.
[42] Transcript of Proceedings (14 April 2022), p. 65.
I note Dr De Silva stated, in response to a question about whether not having regular treatment makes his pain worse, “(s)everal times he has told me that, that his pain - when he regularly goes to these people his pain is well controlled. But he has told me, when I do not like attend to my appointments, I feel my pain is coming back and it’s hard for me to manage.”[43]
[43] Transcript of Proceedings (13 April 2022), p. 43.
I do not accept the Applicant has bad days three or four times a week, where he is unable to get out of bed, such that he is not able to do anything, because he stated in his oral evidence that he sees the exercise physiologist four times a week, he goes to the pool three times a week,[44] and sees the osteopath once a week and this has been his exercise regime for two years. He also indicated he drives his car nearly every day, and at times for 30 minutes, twice a day, when he consults Dr De Silva, which he does about four to five times a month.[45] Considered overall, while I accept the Applicant may experience some pain every day, and that it may be worse at night as reported to Dr Richmond, and sometimes he needs to go to bed to rest and relax until it subsides and he might need assistance from a relative during those periods[46], I am satisfied the acute flare ups of the Applicant’s condition occur infrequently, every two or three months, about four to six times a year and I take this into account. I also accept his foot swells about once a month and this may impact on his functional capacity. However, for the reasons discussed below, I am not satisfied the impact of his pain is so severe three to four times a week such that he cannot mobilise or attend to his own self-care.
[44] Transcript of Proceedings (13 April 2022), p. 15.
[45] Ibid, p. 45.
[46] Transcript of Proceedings (14 April 2022), p. 56.
The Applicant’s functional capacity to undertake specified activities
Rule 5.8 sets out the matters that I must consider when determining whether the Applicant’s impairment results in substantially reduced functional capacity and states as follows:
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.
The Operational Guidelines state:
Your impairment substantially reduces your functional capacity if you usually need disability-specific supports to participate in or complete the (specified) tasks.
These disability-specific supports include:
·a high level of support from other people, such as physical assistance, guidance, supervision or prompting.
·assistive technology, equipment or home modifications that are prescribed by your doctor, allied health professional or other medical professional.
Mobility
The Operational Guidelines with respect to mobility currently state as follows:
Mobility, or moving around – how easily you move around your home and community, and how you get in and out of bed or a chair. We consider how you get out and about and use your arms or legs.
The evidence regarding his use of a walking stick has varied over time, which I accept may be a reflection of the improvement in his condition. Mr Dwyer’s evidence, the most recent evidence on mobility, establishes that the Applicant has reduced functional capacity and that his mobility is affected by his impairments. Mr Dwyer gave oral evidence that during the assessment in March 2022 the Applicant did not use any walking aids and walked fairly comfortably throughout the house and into his garage.[47]
[47] Transcript of Proceedings (14 April 2022), p. 57.
In 16 July 2019 Mr Hook recorded that the Applicant stated he occasionally uses a walking stick. The Applicant told Dr Richmond in December 2021 that he uses a walking stick to mobilise. She gave oral evidence that when she examined him he mobilised with a walking stick. However, in March 2022 he told Mr Dwyer that he does not use any walking aids.[48] Mr Dwyer did not see any walking aids during his assessment on 2 March 2022. He stated:
He didn’t use any (walking aids), and that was probably reflective of his pretty reasonable function which not only I observed but probably was held together [by] other evidence, he said, about how he really [prizes] - or regards, the treatment that he has, but also his own self-directed efforts in that regard and he talked to me about his walking that he does every day, which is sometimes outdoors or on his treadmill in the house. So that, for me, was consistent with someone who didn’t need a walking aid and didn’t use one when I saw him. I didn’t see one, it’s not to say there may have been one somewhere, but I certainly didn’t see one.[49]
[48] Ibid, p. 69.
[49] Transcript of Proceedings (14 April 2022), p. 56.
Ms Finnan reported that he walks unaided, although the Applicant disputes telling her this. Dr De Silva was asked whether the Applicant used a walking stick at his recent consultation and he said “I cannot recall that. I don’t think so, but I can’t recall 100 percent.” When asked if the Applicant usually uses a walking stick when he visits, Dr De Silva said “I don’t think so”. When asked if he has any issues with his balance or gait, Dr De Silva said:
He walks slowly. But you know, there are periods that, you know, he has problems walking because of when the pain gets worse. But there are days where he can walk, like you know, without a problem and the pain is not there.[50]
[50] Transcript of Proceedings (13 April 2022), p. 39.
I note the Applicant’s evidence that he consults Dr De Silva about once a month.[51] Dr De Silva stated at the hearing that, according to his history, he had seen the Applicant three or four times a month, most months, but sometimes only once such as in December 2021 and February 2022.[52] I am of the view that, if the Applicant used a walking stick every time he visited Dr De Silva, this is something Dr De Silva would recall. Accordingly, I am not persuaded the Applicant uses a walking stick whenever he is out of home. However, I accept he might use a stick when he walks for distances longer than his transfers from his car to the surgery.
[51] Ibid, p. 31.
[52] Ibid, p. 41.
Having regard to all the evidence, including the Applicant’s and Dr De Silva’s oral evidence at the hearing, and the reports from Mr Dwyer and Dr Richmond, I am satisfied the Applicant is able to walk around his home without relying on a walking stick. I am also satisfied he walks in his street two or three times a day, and sometimes to his local shops. Considered overall I accept the Applicant may use a walking stick intermittently when he walks in the street or to the local shops. However, I am satisfied a walking stick is a commonly used item. It is easily accessible and does not require any particular customisation or prescription.
Based on the Applicant’s oral evidence[53] and Mr Dwyer’s report I am satisfied the Applicant is able to complete the following activities. He is able to get in and out of bed and a chair, is independent with toileting, can dress himself, put on and take off shoes and can walk in and out of his shower. He is now able to mow his own lawn by mowing in stages and having breaks, as reported by Mr Dwyer. He is able to reach his kitchen cupboards, use his stovetop and prepare simple meals. While his sister and mother assist by preparing frozen meals for him, he is able to warm up those meals. He is able to drive for about 30 minutes. He is able to do some light supermarket shopping, take items off the shelf independently and use a trolley to take his groceries to his car, and put them away once he returns home. He is also able to take his wheelie bins in and out because they are on wheels.
[53] Ibid, pp. 11 – 15.
On the basis of Mr Dwyer’s report which includes photographic evidence, I am satisfied the Applicant is able to bend and squat to place clothes in the washing machine. I accept he may not be able to launder larger items such as bed linen, for which he gets assistance from his sister, the issue being that he finds it difficult to hang them out on a Hills Hoist.
I accept that the Applicant is not able to change his own bed linen because of the difficulty in lifting his mattress and putting the sheet underneath. This finding is supported by Mr Dwyer’s evidence that making a bed is reasonably demanding because “you need to semi squat down, and you need to actually lift a mattress to tuck it properly”.[54]
[54] Transcript of Proceedings (14 April 2022), p. 61.
On the basis of the Applicant’s oral evidence, while I accept the Applicant’s mother and sister assist the Applicant by preparing frozen meals, and he likes to have meals prepared in case his foot flares up, I am satisfied he is able to prepare simple meals as he can chop up and stir food and use an oven and a microwave.
The Applicant is able to use a stick vacuum cleaner to vacuum and do some basic cleaning in the kitchen such as wiping down surfaces, the table and the sink. He claimed in his oral evidence to hold the vacuum cleaner with two hands however the photographic evidence in Mr Dwyer’s report shows him vacuuming and holding the stick with only one hand.
There are different views about whether the Applicant is at risk of falling. Dr Richmond reported in December 2021 that “because of his condition he has a high risk of falls”,[55] whereas Mr Dwyer was not persuaded. When asked if he actually falls, or if he just fears falling, the Applicant told me that “(i)t’s a risk that I might fall because I’ve got nerve damage in my foot [that] controls my balance, my strength in my foot….I’m not going to risk mopping the floor to have an accident, because I don’t have much balance on my foot.”[56] I accept that the Applicant does not feel confident mopping in case he has an accident as he is concerned about his balance and fears falling, a concern shared by Dr Richmond.
[55] Transcript of Proceedings (13 April 2022), p. 41.
[56] Transcript of Proceedings (13 April 2022), pp. 15, 46.
The Applicant is able to drive to the pool three times a week to exercise in the pool and he makes his way around tiled wet areas by walking slowly, about two metres from the pool to his towel.[57] He walks in the pool for 30 minutes, three times a week.[58]
[57] Ibid, p. 48.
[58] Ibid, p. 21.
I note Dr Richmond’s oral evidence that, because of his CRPS, the Applicant’s symptoms may vary significantly from day to day and, as part of treatment for the condition, medical practitioners try to encourage people to normalise their function and do as much as they can for themselves.[59] This is consistent with the Applicant’s evidence that he tries to be independent, remain mobile, and continue with the exercise regime to reduce the likelihood of acute episodes.
[59] Transcript of Proceedings (14 April 2022), p. 77.
Having considered what the Applicant can and cannot do, I accept the Applicant has some limitations in his mobility because of his CRPS. I accept there are days when he suffers acute episodes and attends the hospital but I am satisfied these occasions are infrequent. While I accept he suffers other painful episodes from time to time when he goes to bed until the pain eases off, I am satisfied, in the main, he is able to independently move around his home and community, participate effectively and complete activities without assistive technology, equipment, other than a walking stick and a shower chair, or home modifications. I am of the view the evidence confirms that the Applicant is able to move around his home and can transfer in and out of a chair and bed, unaided, I accept he occasionally relies on a walking stick while outdoors, however I am satisfied this is a commonly used item. I am satisfied he is able to drive, for up to 30 minutes, to and from the shops and various appointments with therapists. He can complete light housework, such as vacuuming and wiping down kitchen surfaces, and complete some laundry. He can manage his grocery shopping by buying a small number of items at a time. He is able to prepare simple meals. He can reach his kitchen cupboards. He mows his lawn by pacing himself. He walks in his street most days and sometimes he walks to his local shops. While I accept that the Applicant has some limitations in mobility such as the duration and pace of walking, and difficulties on wet or uneven ground, and he receives some assistance from his family, with cooking, heavier laundry and domestic cleaning, I am not satisfied he needs a high level of support from other people. Considered overall, I am not satisfied the Applicant’s impairments result in a substantially reduced functional capacity in relation to mobility.
Self-care
The relevant Operational Guidelines indicate self-care includes the following:
personal care, hygiene, grooming, eating and drinking, and health. We consider how you get dressed, shower or bathe, eat or go to the toilet.
Mr Dwyer provided written, photographic and oral evidence confirming the Applicant uses a shower chair and I accept this. Mr Dwyer also stated that shower chairs are:
probably one of the first and most common…bathroom aids, that people might have if their mobility is compromised or they’re unsteady, or they’re frail….(A shower chair would be) one of the first types of simply basic…pieces of equipment in addition to things like grab rails that people might consider if they need that sort of support. There’s a lot of independent living - locations there, often chemists have equipment, basic equipment such as that, in stock.[60]
[60] Transcript of Proceedings (14 April 2022), p. 58.
He stated the Applicant’s shower chair was a standard style chair. On the basis of this evidence, I am satisfied his shower chair is a commonly used item.
I have considered the evidence regarding the Applicant’s consultations with the podiatrist to cut his toenails because he cannot do it himself. When asked whether the Applicant required this treatment, Dr De Silva stated CRPS affects the nerves and the blood flow, and this can cause changes.
On the issue Mr Dwyer stated:
I think there’s multiple reasons why a person may or may not be able to manage foot care generally, including cutting toenails. From a physical perspective, he can reach his feet, I think that was shown in some of the photographs in the assessment - in my report. But there’s various factors where people might be medically not advised to try and manage their own foot care… if you’ve got altered sensation in at least one lower limb, that potentially varies and might even be quite significant at times. I would say there’s a medical [contraindication] to trying to manage your own - because you can do damage and not realise you’ve done damage. I would say… physically he could reach his feet…But …there would be considerations from a medical point of view that he might need to see a podiatrist.[61]
[61] Transcript of Proceedings (14 April 2022), p. 62.
Dr Richmond indicated people living with CRPS commonly see a podiatrist to cut their toenails because the condition affects nails and causes a range of changes, and foot care is very important. There can be swelling and sweating so there is an increased risk of fungal infection which needs to be picked up early. She stated, for the Applicant, as he has allodynia to light touch, “it’s uncomfortable for someone to touch his toes…most of our patients will be seeing a podiatrist to give them adequate foot care.”[62]
[62] Ibid, p. 77.
I accept that the Applicant needs to visit a podiatrist every 10 weeks to have his toenails cut. Having regard to the medical evidence, I am satisfied that, while he might be able to do this physically, it is appropriate that his foot care is managed by a podiatrist.
The Applicant has argued that laundry and domestic cleaning should be considered under self-care activities because it relates to hygiene, defined by the World Health Organisation (WHO) as conditions and practices that help to maintain health and prevent the spread of diseases.[63] While the Respondent disagrees with this approach, for the purposes of this decision, given the WHO definition, I am prepared to accept that hygiene includes laundry and domestic cleaning.
[63] The Applicant’s response to the Respondent’s Statement of Facts, Issues and Contentions, undated.
I have considered the Applicant’s evidence that, while he is able to complete some of his laundry and lighter domestic cleaning, he needs assistance with heavy laundry and heavy domestic cleaning. Mr Dwyer reported that the Applicant was able to simulate laundry activities and there is photographic evidence of the Applicant squatting in front of his washing machine.[64] Mr Dwyer suggested the Applicant may benefit from a plinth in the laundry, raising the washing machine to assist access so that he does not need to squat. While he is not currently using a plinth, based on Mr Dwyer’s evidence about their common usage, I am satisfied this would be a commonly used item. In any case the Applicant is able to do some laundry currently without the aid of a plinth as indicated by Mr Dwyer’s oral evidence that he was able to load and unload the washing machine on the day of the assessment.[65]
[64] E8/60.
[65] Transcript of Proceedings (14 April 2022), p. 60.
With respect to heavier laundry such as bed linen, I accept the Applicant’s sister assists him with this. However, I note Mr Dwyer’s evidence that “I actually think, on the day of assessment, the function that was presented to me that he would be capable, even if it was just one at a time, taking a sheet out and hanging them on his clothesline…”[66]
[66] Ibid, p. 61.
Dr Richmond stated:
…what we actually teach patients to do is pace themselves, so just do small amounts of normal activity frequently rather than trying to, you know, say clean a house from top to bottom. Break that activity up, do a couple of minutes of this, have a rest, do a couple of minutes of something else. And break that activity up during the day. So, yes, could he wash sheets, I mean, from a functional capacity assessment he looks like he can, but would I say that he could clean his house from, you know, top to bottom in one day, I wouldn’t be recommending that.
Mr Dwyer opined the reason his family helps him to do the bulkier laundry is because it involves going out to the clothesline, as opposed to just putting them over the clothes horse inside the house, which he uses for most other items, and his family assist him in this way, not because it is essential but as a way of supporting him.
I note Mr Dwyer did not assess whether the Applicant was able to change his bed sheets. While respecting Mr Dwyer’s expertise, I am not persuaded he would be able to do this. I accept the Applicant’s family support him in this way, by washing his bed linen and remaking his bed, to assist him and also to protect him from experiencing pain or flare up.
With respect to heavier domestic cleaning I accept the Applicant’s family assists him with cleaning his bathroom and mopping his floors, in part to avoid the Applicant falling or injuring himself and as a way of supporting him.
Considered overall I am satisfied the Applicant may need some assistance with self-care such as going to the bathroom, infrequently, when his pain is so severe he goes to bed until the pain resolves. For the reasons given above I am not satisfied these exacerbations happen often as his evidence indicates he participates in a weekly exercise regime which would not be possible if he was bedridden on a regular basis.
Mr Dwyer recorded that the Applicant reported he is independent with toileting, showering (with the aid of a shower chair), transfers to and from the shower, grooming, dressing and eating. This is consistent with the Applicant’s oral evidence set out above so I accept this evidence. I accept he uses a shower chair but I find that is a commonly used item.
Considered overall, while I accept the Applicant consults a podiatrist for foot care, requires assistance with heavier laundry and domestic cleaning, uses a shower chair, and infrequently has the assistance of a relative with self-care when his pain is severe, I am not satisfied this means he is not able to participate effectively or completely in self-care activities, or to perform tasks or actions required to undertake self-care activities, without assistive technology, equipment (other than the commonly used shower chair) or home modifications. I am not satisfied he requires a high level of support from other people to undertake self-care.
I am not satisfied the Applicant’s impairments result in a substantially reduced functional capacity to undertake self-care.
Learning
The relevant Operational Guidelines with respect to learning state as follows:
how you learn, understand and remember new things, and practise and use new skills.
The Applicant has indicated he has a learning disability. His support person at the hearing stated it is not relevant to the access criteria; it was raised to give context. In closing submissions the Applicant clarified that the information gives context and assists in understanding the challenges he faced during the hearing. I accept the Applicant attended Coreen School because he had a learning disability. I note he does not seek to rely on this disability to meet the statutory requirements. He lived and worked with this disability before his injury resulting in CRPS. I am satisfied the Applicant’s impairment does not result in a substantially reduced functional capacity to undertake learning.
Communication
The relevant Operational Guidelines with respect to communication state as follows:
how you speak, write, or use sign language and gestures, to express yourself compared to other people your age. We also look at how well you understand people, and how others understand you.
The Applicant has not sought to rely on this activity to demonstrate that he meets the statutory requirements. With respect to this activity, having assessed the Applicant in person, Mr Dwyer noted the Applicant was able to communicate clearly in English and that there were no reported or observed deficits in this domain. Mr Dwyer noted he responded appropriately to all questions throughout the assessment. The Applicant has stated he has basic reading and writing skills but does not use a computer.
While I accept the hearing process may have been challenging for the Applicant, who was unrepresented but had the support of his sister and friend, and that he occasionally sought clarification regarding questions, I note he appeared to understand the questions, respond appropriately and express himself adequately. I note there is evidence indicating the Applicant attended a school providing an alternative to mainstream learning for students who experience difficulties, to address his learning needs, however there is no evidence before me to indicate he has communication deficits.
I am satisfied the Applicant’s impairment does not result in a substantially reduced functional capacity in communication.
Social interaction
The relevant Operational Guidelines with respect to social interaction state as follows:
how you make and keep friends, or interact with the community, or how a young child plays with other children. We also look at your behaviour, and how you cope with feelings and emotions in social situations.
The Applicant has indicated in his statement of lived experience that he has become socially isolated as a consequence of his impairments. I note however he continues to have regular contact with his sister and mother. There is also evidence that, while his social life has changed as a consequence of his impairments and he considers himself to be socially isolated, he told Dr Richmond he sees friends once a week.
While I accept his social life has changed as, for example, he is no longer able to go on long beach or bush walks, I am not satisfied there is evidence before me that the Applicant’s impairment results in substantially reduced functional capacity to engage in social interaction. The Applicant’s evidence indicates he has been able to maintain relationships with his sister, mother and friends, even if he sees his friends only once a week.
I am not satisfied the Applicant’s impairment has resulted in a substantially reduced functional capacity in social interaction.
Self-management
The relevant Operational Guidelines with respect to self-management state as follows:
how you organise your life. We 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. We consider your mental or cognitive ability to manage your life, not your physical ability to do these tasks.
Mr Dwyer has recorded that the Applicant lives alone in his own home which is unmortgaged. He noted the Applicant demonstrated no restriction in his ability to plan, solve problems and make decisions. He stated the Applicant manages all aspects of his household finances independently, pays his utility bills and budgets. In his statements of lived experience the Applicant has stated he can manage his own finances, pay his bills, make his own appointments and manage his medications.
There is no evidence before me to suggest the Applicant’s impairment results in a substantially reduced functional capacity to undertake self-management.
CONCLUSION
Based on the above findings, I find the Applicant’s impairments do not result in substantially reduced functional capacity to undertake any of the specified activities (mobility, self-care, communication, social interaction, learning, and/or self-management) as required by paragraph 24(1)(c) of the Act.
Accordingly, the Applicant does not meet a mandatory provision of the disability requirements and it is not necessary for me to consider whether his impairments affect his capacity for social or economic participation (paragraph 24(1)(d) of the Act), or whether he is likely to require support under the NDIS for his lifetime (paragraph 24(1)(e) of the Act).
DECISION
The decision under review is affirmed.
I certify that the preceding 134 (one hundred and thirty-four) paragraphs are a true copy of the reasons for the decision herein of SM Denise Connolly
..................................[SGD]......................................
Associate
Dated: 14 July 2022
Date(s) of hearing: 13 & 14 April 2022 Date final submissions received: 16 June 2022 Applicant: Self- Represented Counsel for the Respondent: Mr J Sproule Solicitor for the Respondent: Mr J Stavridis, HWL Ebsworth Lawyers
Key Legal Topics
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Administrative Law
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Statutory Interpretation
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