Grasser and National Disability Insurance Agency

Grasser and National Disability Insurance Agency [2024] AATA 188 (13 February 2024)
Division:NATIONAL DISABILITY INSURANCE SCHEME DIVISION
File Number: 2020/8586
Re:Bettina Grasser
APPLICANT

AndNational Disability Insurance Agency
RESPONDENT

DECISION
Tribunal:Senior Member P J Clauson AM
Date:13 February 2024
Place:Brisbane

Pursuant to section 43 of the Administrative Appeals Tribunal Act 1975 (Cth), the Tribunal affirms the decision under review not to grant the applicant access to the National Disability Insurance Scheme on the basis that the Tribunal is not satisfied that the applicant meets either the “disability requirements” under section 24 or the “early intervention requirements” under section 25 of the National Disability Insurance Scheme Act 2013 (Cth).
.................................[SGD]..............................
Senior Member P J Clauson AM
Catchwords
NATIONAL DISABILITY INSURANCE SCHEME – application for access – major depressive disorder – fibromyalgia – golfer’s elbow – plantar fasciitis – permanency – whether the effects of an impairment are permanent – whether there are known, available and appropriate treatments likely to remedy an impairment – available treatment – full engagement with treatment – whether further investigations are required to determine permanency of impairments – degree of permanancy – decision under review affirmed.
Legislation
National Disability Insurance Scheme Act2013
National Disability Insurance Scheme (Becoming a Participant) Rules 2016
Cases
FBJV and National Disability Insurance Agency [2021] AATA 913
Mulligan v National Disability Insurance Agency [2015] FCA 544
National Disability Insurance Agency v Davis [2022] FCA 1002
National Disability Insurance Scheme v Foster [2023] FCAFC 11
Secondary Materials
NDIS Operational Guidelines - Access
REASONS FOR DECISION
Senior Member P J Clauson AM
13 February 2024
INTRODUCTION

The applicant is 52 years old. She lives on an 18-acre hobby farm with her two daughters and is a landscaper by trade. In 2017, she injured her ankle at work and she stopped working in 2018 due to pain effecting her elbows and heels.[1] She thereafter came into receipt of the Disability Support Pension (DSP) and is now looked after by her eldest daughter.[2]
[1] SM6, Report of Mr Ponnaren Pak dated 4 June 2019.
[2] TB21: Applicant’s Statement of Lived Experience.
In July of 2020 she made an application (the Access Request) to the National Disability Insurance Agency (the respondent) to become a participant in the National Disability Insurance Scheme (the Scheme).[3]
[3] Tb42: Respondent’s Statement of Facts, Issues and Contentions at [1].
In August 2020 the respondent decided to refuse the applicant access to the Scheme, and she subsequently sought an internal review of this decision.
In December 2020 the respondent, pursuant to section 100(6) of the National Disability Insurance Scheme Act 2013 (Cth) (NDIS Act), notified the applicant that they affirmed their earlier decision to refuse access (the decision under review).[4]
[4] T Documents, T2.
The applicant subsequently applies to the Administrative Appeals Tribunal seeking a review of this decision.[5]
[5] T Documents, T1.
ISSUES BEFORE THE TRIBUNAL
To be approved for access to the Scheme, an applicant must meet all criteria under one of the following sections of the NDIS Act:
·the disability requirement (section 24); and
·the early intervention requirement (section 25).
The position of the respondent
The respondent is satisfied that the applicant has a disability attributable to the following impairments (the accepted impairments):
·Major depressive disorder
·Fibromyalgia;
·Plantar Fasciitis; and
·Golfer’s Elbow.
The respondent does not accept the accepted impairments are permanent because it is not considered that:
(a)the applicant has completed all treatment options recommended to her by treating medical professionals; and
(b)the applicant has demonstrated full engagement with all recommended treatments.
The respondent does not accept that the applicant has a substantially reduced functional capacity in any of the functional domains listed at section 24(1)(c).
The respondent accepts that the accepted impairments effect the applicant’s capacity for social and economic participation.
The respondent does not accept the applicant is likely to require NDIS support for her lifetime because the supports recommended by her treating practitioners are more appropriately provided by community and other government systems of support.
The respondent does accept that early intervention supports are likely to reduce the applicant’s future support needs and improve her future capacity.
The position of the applicant
The applicant states that the accepted impairments are permanent because numerous doctors and specialists have determined that her condition is permanent, and the impairments have been chronically impacting her for over four years.[6]
[6] TB21: Applicant’s Statement of Lived Experience dated 9 November 2023
She maintains that she has utilised health care and mental health plans through GP referrals for the last four years and submits that she therefore requires NDIS to pay for any further treatments that she seeks.[7]
[7] Exhibit 1, TB23.
The applicant states that she has substantially reduced functional capacity in all domains of communication, social interaction, learning, mobility, self-care and self-management.
Further, that she requires NDIS support for her lifetime because:[8]
·she continually has to revisit past negative issues which cause her to relapse;
·she wishes to be able to look forward but feels unable to; and
·she believes that she will not be able to move forward without support from the NDIS for the remainder of her life.
RELEVANT LEGISLATIVE FRAMEWORK
Section 24: The Disability Requirements
Section 24(1)(a): A person meets the disability requirements if:
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.
[8] Exhibit 1, TB21.
Section 24(1)(b): the impairments are, or are likely to be, permanent
“Permanency” of an impairment is discussed at Rules 5.4 to 5.6 of the National Disability Insurance Scheme (Becoming a Participant) Rules 2016 (the Access Rules) and paragraph 8.2 of the NDIS Operational Guidelines - Access (the Access Guidelines).
Rules 5.4 to 5.6 state:
When is an impairment permanent or likely to be permanent for the disability requirements?
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).
Paragraph 8.2 of the Access Guidelines states:
“…where there is a possibility of medical treatment to treat the prospective participant’s condition, and the treatment has some prospect of success, the NDIA should not conclude the impairment is permanent but should wait until the outcome of the treatment is known.”
Section 24(1)(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
Relevant to the above (the functional domains) is rule 5.8 of the Access Rules as follows:
When does an impairment result in substantially reduced functional capacity to undertake relevant activities?
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.
Section 24(1)(e): the person is likely to require support under the National Disability Insurance Scheme for the person's lifetime
Section 8.5 of the Access Guidelines relevantly state:
The purpose of this requirement seems to be to distinguish that subset of people with serious and permanent disabilities who are intended to be the beneficiaries of funded supports…
When considering this criterion, the NDIA does not need to be satisfied that the support/s required for the person's lifetime meet the reasonable and necessary criteria. The reasonable and necessary criteria are relevant to whether funding is provided, not whether a person meets the disability requirements.
Section 25(1)(a): 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
Section 25(1)(c): the CEO is satisfied that provision of early intervention supports for the person is likely to benefit the person by:
….
(3) Despite subsections (1) and (2), the person does not meet the early intervention requirements if the CEO is satisfied that early intervention support for the person is not most appropriately funded or provided through the National Disability Insurance Scheme, and is more appropriately funded or provided through other general systems of service delivery or support services offered by a person, agency or body, or through systems of service delivery or support services offered:
(a) as part of a universal service obligation; or
(b) in accordance with reasonable adjustments required under a law dealing with discrimination on the basis of disability.
CONTENTIONS AND EVIDENCE
The Tribunal is provided with a substantial volume of submissions including medical reports and statements of lived experience as well as the oral evidence of the applicant and various witnesses.
The evidence as considered to be relevant by the Tribunal is summarised below.
Evidence of Ms Rosalie Milner
Ms Rosalie Milner, Clinical Psychologist, commenced treatment of the applicant in 2013. In a report she states that she commenced treatment with the applicant to address her issues in respect of a new relationship.[9]
[9] SM2: Report of Ms Rosaline Milner dated 6 November 2019.
Ms Milner states that the applicant reported growing up in a household with domestic violence and that she was involved in a car accident at the age of 17. After the accident, the applicant said that she had in engaged psychological treatment and found this beneficial
The applicant reported that sometime later her relationship of ten years ended, and that she then went on to marry a man she described as having mental health issues. In 2013 she entered into a new relationship, and this too subsequently deteriorated.
The applicant considered that she had experienced some distress around the loss of her relationship and trauma in regard to the car accident, but she did not believe that she had experienced any chronic pain or was suffering a diagnosable disorder at that time.
In 2016, the applicant reported that she was experiencing worsening pain in her body, and that she was starting to gain weight which made her pain worse. Ms Milner observes that the applicant’s mental state began to deteriorate as her pain increased and that this impacted her ability to work.
Ms Milner diagnosed the applicant with adjustment disorder with mixed anxiety and depressed mood, severe and chronic. She stated this “developed secondarily to the pain and inflammation that developed in her body and was further exacerbated by problems with the workcover process and financial concerns due to being unable to return to work”.
Ms Milner treated the applicant with EDMR therapy and management around food and alcohol consumption to reduce inflammation and help the applicant lose weight.
Ms Milner considered that the applicant’s prognosis was unclear and that, if the applicant could return to work in a capacity of light duties, her psychological symptoms would improve significantly.
Evidence of Dr David Barraclough
Dr Barraclough, Rheumatologist, diagnosed the applicant with fibromyalgia in 2015.[10] He reported that she was seeing a psychologist and states “apart from keeping stress levels as far down as practical, I cannot suggest anything more to be done at present”.
[10] T Documents, T3: Report of Dr Barraclough dated 28 April 2015.
He recommended that the applicant engage in ongoing antidepressant use, ongoing psychology involvement and ongoing activity.
Evidence of Dr Samantha Wijekoon
Dr Samantha Wijekoon, Psychiatrist, started treatment of the applicant in September 2018. At the time, she considered that the applicant presented with adjustment disorder with an anxious/depressed effect and referred her for care coordination with local mental health services.
In 2019 Dr Wijekoon observed that the applicant’s symptoms were more consistent with depression and confirmed a diagnosis of major depressive disorder.[11] She considered that the applicant has a pre-existing depression in the context of the car accident when she was 17 years old, childbirth complications with her daughters and issues with her ex-husband.
[11] SM7: Report of Dr Wijekoon dated 7 November 2019.
Dr Wijekoon reported that the applicant had persisted to work at her previous job despite her physical injuries, which had caused her condition to deteriorate even further. Also, that the applicant was subsequently experiencing pain from the physical work she did on her farm because she was not able to afford someone else to maintain the property.[12]
[12] SM9: Report of Dr Wijekoon dated 11 June 2019.
She stated that the applicant has physical health concerns which may hinder her mental health recovery, and that her future capacity may depend on her physical health issues.
Dr Wijekoon stated that the applicant’s mental health prognosis was good and that the applicant was co-operative with treatment and therapy. She reported negative prognostic factors in regard to the applicant’s physical health and pain issues.
In her report of January 2020,[13] Dr Wijekoon stated that she was not able to assist the applicant in her applications for DSP and NDIS because she did not consider that she had enough evidence to establish that the applicant had a permanent condition.
[13] SM9: Report of Dr Wijekoon dated 30 January 2020.
Evidence of Dr Ponnaren Pak
In 2019 Dr Pak, Orthopaedic Surgeon, diagnosed the applicant with left tennis elbow and mild bilateral plantar fasciitis.[14] He considered that she had “not the worst plantar fasciitis that I have seen” and that she gained some relief from wearing an orthotic.
[14] T Documents, T4: Report of Dr Ponnaren Pak dated 20 May 2019.
He stated that her left elbow warrants an arthroscopic tennis elbow release and that her right elbow is atypical of tennis elbow and would require further examination.
Evidence of Dr Mehdi Sanati Pour
Dr Sanati Pour, General Practitioner, has treated the applicant since 2019 and supported her Access Request to the Agency. In the Access Request, Dr Sanati Pour states that the applicant’s primary disability is major depression with other disabilities of fibromyalgia, golfer’s elbow and plantar fasciitis.[15]
[15] T Documents, T9.
He considered that the applicant’s disability of major depression is acquired due to injury and adds “but depression exacerbated by injury”.
In 2019 Dr Sanati Pour listed the following medical conditions:
·Depression – Major – since 2012. Active.
·Adjustment disorder (chronic) with depressed mood – since 2019. Active.
·Fibromyalgia – diagnosed 2015. Inactive.
·Golfers Elbow – diagnosed 2018. Inactive.
·Plantar fasciitis – diagnosed 2018. Inactive.
He referred the applicant for light physiotherapy to assist with her fibromyalgia pain.
In his letter dated 21 April 2021, Dr Sanati Pour states that the applicant’s major depression and fibromyalgia are “chronic and permanent and impact significantly on her ADLs and reduce her functional capacity”.[16]
[16] SM9: Report of Dr Sanati Pour dated 21 April 2021.
Evidence of Ms Bronwyn Todd
Ms Bronwyn Todd, Councillor, has treated the applicant in her capacity as a mental health and AOD worker. In June 2020 Ms Todd informed the applicant that she would be required to start paying a $10 appointment fee for their sessions which were previously free of charge.[17]
[17] SM3: Email from Ms Bronwyn Todd to Ms Emily Frankel dated 11 June 2020, page 113.
Ms Todd stated that the applicant said she would not be able to pay, and that she would consequently not be continuing treatment. Ms Todd reported that she then offered the applicant a referral for an AOD-specific councillor, free of charge, and that the applicant advised that she would prefer a “full package” option.
Ms Todd considered that she did not feel that the applicant always took on board the suggestions she made each week. She referred the applicant to Care Coordinator Ms Emily Frankel to try and facilitate her continued treatment.
In her referring email she stated that Ms Frankel had done a “huge amount” to support the applicant, although “we can give her all the strategies under the sun but she has to be willing to do the work”.
Evidence of Ms Emily Frankel
Ms Emily Frankel, Care Coordinator, in response to Ms Todd’s referral considered that there was not much the clinic could do for the applicant if she chose to discontinue counselling.[18]
[18] SM3: Email from Ms Emily Frankel to Ms Bronwyn Todd dated 12 June 2020.
Ms Frankel reported that she strongly encouraged the applicant to prioritise her mental health and wellbeing and to continue her treatment with Ms Todd. On reflection of her “very frank” discussion with the applicant she stated:
“However, I have to wonder if Tina just isn’t ready to engage in counselling at the moment”.
Two months later Ms Frankel saw the applicant for treatment and stated that the applicant had admitted to recommencing her drinking. Ms Frankel also stated that she noticed a significant deterioration in the applicant such that she was unable to participate in any meaningful treatment or come up with strategies to help herself.[19]
[19] SM3: Email from Ms Emily Frankel to Ms Bronwyn Todd dated 17 August 2020.
She further stated that she attempted to reflect to the applicant how her drinking affected her mental health; however, the applicant did not agree with her and attempted to rationalise her use.

Ms Frankel stated that she was at a loss as to how to further support the applicant further and that she was consequently considering discontinuing the applicant’s treatment at the clinic after her next review.
Evidence of Dr Richard Kwiatek
Dr Kwiatek, Rheumatologist, treated the applicant in June 2021. He assessed her as presenting with the pain sensitisation syndrome of fibromyalgia interacting with issues of depression, complicated by issues around bilateral lateral humeral epicondylitis starting some five years prior.
He considered that the applicant’s primary complaint was “global pain”, followed by her “mental health” including mood and anxiety issues. On examination he weighed the applicant as somewhat overweight at 90 kilograms and reports “Screening general medical examination was unremarkable.”
In August 2021 he stated that the applicant confirmed that pain remained her worst complaint and that it limited her the most. He reported that applicant asked him for a letter to say that the fibromyalgia component of her presentation was permanent so that she could access the NDIS.
He considered that there may still be a chance for her improvement with further interventions, in particular a trial of Milnacipran as an SNRI which has a modest chance of helping patients with fibromyalgia syndrome, especially if they are overweight.
In his letter of November 2022, Dr Kwiatek confirmed that the applicant had no further pharmacological treatments available to her as she was unable to tolerate trials of low dose Naltrexone, Melazepam and Memantine. He thus concluded “consequently, there are no further pharmacological options here”.[20]
[20] TB17 at page 70.
Dr Kwiatek further concluded that the applicant was in that cohort of fibromyalgia patients where no medications were of benefit. He stated that:
“Non-medication approaches need to be emphasised, using a multimodal approach (physical, psychological and social, including lifestyle factors), realising that complete cure is unlikely to ever occur. Resilience neds (sic) to be supported and developed.”
Dr Kwiatek considered that in addition to the program outlined above, the applicant should participate in a self-management course in a group setting to help finetune her self-management skills. He referred her to the Bridges and Pathways, an organisation specialising in the self-management of fibromyalgia, to seek some assistance in managing the symptoms of her condition.
Dr Kwiatek further considered that she would almost certainly to some extent have fibromyalgia related symptomatology for the rest of her life but could not say to what degree.
Evidence of Mr Gary Stretton
Mr Gary Stretton, Occupational Therapist, conducted a functional capacity assessment of the applicant in May 2022 and produced a subsequent report.[21]
[21] TB40: Report of Mr Gary Stretton dated 4 July 2022.
Mr Stretton considered that Ms Grasser was able to independently perform tasks in all areas of functional capacity relevant to her Access Request:
(a)Mobility – Observed to mobilise independently and safely. She owns a walking stick that was not prescribed to her.
(b)Communication – No issues in expressive and receptive communication. Reported some concentration difficulties and needing things repeated due to cognitive fatigue.
(c)Social interaction – Used to enjoy socialising and now avoids it due to persistently low mood and fear and panic symptoms. Has a network of friends in the local community,
(d)Learning – Reports difficulty in learning new things due to “brain fog”. Attempted to return to study in recent years and found unable to manage.
(c)Self-management – Independently able to complete all self-management activities paced according to pain levels and whether assistance available. Does grocery shopping with assistance from her daughter.
(e)Self-care – Independent; some assistance may be required on a “particularly bad pain day” from her daughter.
Regarding her self-management, the applicant considered it her priority to drive into town each day and obtain food scraps from local businesses to feed her animals. This involves loading empty wheelie bins onto the back of her trailer and later unloading full bins with, where possible, the help of her daughters.
Tasks such as mowing, watering plants and whipper snipping will be left until the applicant has the motivation, when her level of pain will allow her to do it or if the task becomes urgent. If a task does become urgent the applicant will ask her daughters for help or engage paid assistance.
Mr Stretton observed that the applicant’s functional performance in daily living tasks was impacted by her fluctuating pain and depressed mood. He recommended that she pace herself by spreading out her activities each week and considered that she already does this.
In regard to the treatment of fibromyalgia, Mr Stretton stated that the applicant has trialled various medications aimed at symptom reduction and she reports that none have assisted her. He stated that the only other known treatment for fibromyalgia is physical exercise.
The applicant reported that her function is affected by a “brain fog” related both to pain and depressed mood, which impacts her ability to remember appointments and their details. Mr Stretton noted that she was involved in disputes regarding NDIS access and a Workers Compensation claim at that time, and that these were inherently stressful.
Mr Stretton considers that the applicant was receiving assistance from Statewide Disability Services, a Victorian government service, with her disputes.
Evidence of Dr Peter Ashkar
Dr Peter Ashkar, Forensic Psychologist and Clinical Neuropsychologist, assessed the applicant in May 2022 for a little over two hours via teleconferencing to assess her emotional/psychiatric functioning, functional capacity and disability support needs.
He conducted follow-up testing in August 2022 to complete some of the relevant questionnaires and a subsequent report was provided for the purpose of this application.[22]
[22] TB41: Report of Dr Ashkar dated 29 August 2022.
Dr Ashkar interviewed the applicant and stated that she reports having ceased her medications and psychology treatment with Dr Wijekoon. Instead, she had started engaging in some Tai Chi and physiotherapy and that she found both helpful.
Dr Ashkar’s evidence was that the applicant described herself as “very physically limited” with pain and mobility issues, and that she says she struggled in her day-to-day life of caring for her animals, collecting food scraps from town, picking up her daughter from school, feeding the animals and doing some word games and watching TV.
He reported that the applicant stated that she requires assistance with her day-to-day life to help cook meals, assist with maintenance around her property, to have a chat, ensure her family has food, put up rails and ramps and to help the applicant function in society.
Further, that the applicant explained that she was limited financially and required funding from the Agency to continue with her psychological treatment.
Dr Ashkar stated that the applicant consistently performed within normal limits of cognitive testing and demonstrated appropriate levels of attention and concentration in the tested area of Emotional/Psychiatric and Personality Functioning.
It was in the latter testing that Dr Ashkar reported an excessive number of infrequent responses and considerably more than somatic symptoms described by people with genuine medical problems. There were unusual combinations of responses that were associated with non-credible reporting of somatic and/or cognitive symptoms, and strongly associated with non-credible memory complaints.
In this regard Dr Ashkar stated:
“This pattern of responding is very uncommon even in individuals with severe medical and psychological difficulties. Her over-reporting of symptoms was so extreme that it was not possible to interpret her profile.”
At the hearing, Dr Ashkar clarified his observations as follows:[23]
“This doesn’t mean to say that she’s doing it deliberately or deliberately trying to appear disingenuous, but she is simply reporting symptoms to an extent, a number and degree that are implausible. And we know this because her responses are compared to literally thousands and thousands and thousands of other people with various psychiatric conditions.”
[23] Transcript of Proceedings, page 11, lines 13 – 18.
Dr Ashkar considered that the applicant’s extreme over-reporting of symptoms was attributable to her personal vulnerabilities, which likely stem from childhood difficulties, and subjective sense of distress rather than a deliberate attempt to feign or malinger her difficulties.
Dr Ashkar stated that he was not able to test the stability of the applicant’s underlying personality structure due to her extreme over-reporting of symptoms and considered that further investigation was needed by way of psychometric testing to uncover the applicant’s underlying personality structure.
He made his recommendations in the context of being supported by the applicant’s medical history and observed behaviours on assessment and considered that further testing would assist in understanding the applicant’s current symptoms and capacity to engage in other treatments.
Dr Ashkar understood that the applicant had engaged in little, if any, evidence-based treatment that addressed her underlying personality structure. He accepted that this is a “hypothesis” that needs to be tested and further considered and that with management of her pain and other conditions the applicant’s Depressive Disorder can be alleviated.
It is on this basis that Dr Ashkar concluded that the applicant had a favourable prognosis for treatment and that it cannot be said that she has a permanent disability.
Evidence of Dr Gerald Purchase
The applicant was referred to Dr Gerald Purchase, Clinical Psychologist, under a mental health care plan in 2021. In September 2021 he wrote a letter summarising his treatment thus far of the applicant for the purpose of this application.[24]
[24] TB9: Letter from Dr Gerald Purchase dated 6 September 2021.
Dr Purchase stated that he had treated the applicant with techniques specifically aimed at managing her pain and reducing her depression and anxiety. He considered that she had applied herself to the treatment diligently and found that, at best, the techniques were helping her manage her pain and distress.
In a letter of 2022 Dr Purchase commented on the report produced by Dr Ashkar.[25] He described Dr Ashkar’s report as thorough and comprehensive, and requiring further nuance for a fuller understanding of the applicant’s mental state.
[25] TB24: Letter from Dr Gerald Purchase dated 9 November 2022.
Dr Purchase addresses the applicant’s extreme over-reporting as considered by Dr Ashkar. He considered that the applicant is “by nature an intense woman” who often does too much such as caring for her animals each day, which often leads to heightened pain. Further, that he expects that the applicant would have difficulties answering a questionnaire requiring specific answers to complex issues.
He considered that he would be reluctant to label the applicant’s “intensity” as a Personality Disorder. He understood that one of the main reasons the applicant applied to the Agency is to give her some certainty in managing her future.
Evidence of Ms Bettina Grasser
The applicant stated that her primary disability is major depression and that this is “conjoined” with fibromyalgia. Further, that her golfer’s elbow and plantar fasciitis are “all part of fibromyalgia”.[26] She does not consider her impairments individually and submitted that they all interrelate.[27]
[26] Transcript of Proceedings, page 21, line 15.
[27] TB28: Applicant’s Response to Statement of Issues.
She submitted that the most significant part of her illness is the mental disorder and the fibromyalgia. She stated that she is impacted the most by her mental disability more than her physical disability and the associated mental state, fatigue and chronic pain.[28]
[28] TB4: Applicant’s Statement of Lived Experience.
In supporting the permanency of her condition the applicant stated as follows:
“Over the past 2 years approximately we have been able to manage my chronic
illnesses much more satisfactory. I continually have to revisit past negative issues
which usually cause me to relapse. I wish to be able to look forward but feel I am
unable to do this, or when I do, I get kicked back once again. I believe I will not be
able to move forward without the support from NDIS for the remainder of my life,
as I have been attempting to for many years now. Numerous doctors and
specialists have determined that my condition is permanent and truly does appear
so after being so chronic for the past 4 plus years…Fibromyalgia to date has NO known cure. It can only be acknowledged, accepted and then managed.”
Further, that she has exhausted all treatments available to her as follows:[29]
“I have over these years, like I said, been proactive and really persisted in asking my GP and doctors for referrals to many of these specialists…
I have over-utilised the mental plans, the EIP, any of the plans I can get through the doctors…and it still is not enough”.
[29] Transcript of Proceedings, page 17, lines 20 – 28.
The applicant believes that her fibromyalgia is secondary to her depression and stated that fibromyalgia impairs her through a chronic pain coinciding with her mental health issues.[30] She considers that she is undertaking ongoing management with physical exercise at home and attending Tai Chi classes.
[30] TB23: Applicant’s response to the report of Dr Ashkar dated 9 November 2022.
At the hearing the applicant told the Tribunal that she has not undergone any of Dr Pak’s suggested treatments for her plantar fasciitis because, since seeing Dr Pak, she has improved and considers it self-managed.
In regard to her functional capacity the applicant considered that there is “some effect” of her impairments in all the functional capacity domains and that the stronger two are social interaction and mobility.[31]
[31] Transcript of Proceedings, page 39, lines 3 – 5.
The applicant’s daughter described the increased assistance she and her sister have been providing with housework, maintaining the outside of the house and feeding the animal over the years due to their mother’s condition. The applicant, her daughter says, has become a “hermit at home”.[32]
[32] TB10: Impact Statement of the applicant’s daughter.
The applicant submitted that she is financially limited in the treatment that can access and the assistance she can afford to help around her farm. She stated that the public mental health care system is “helpful but very limited” and that she struggled to afford treatments such as massages and Tai Chi.
She stated that, with more assistance, she will be able to more consistently manage her exhaustion and depression and continue to manage her weight which helps with her physical conditions.[33]
CONSIDERATION
Section 24: Disability Requirements
[33] TB24: Applicant’s Statement of Lived Experience dated 9 November 2022.
24(1)(a): Disability attributable to physical and psychosocial impairments
The evidence establishes that the applicant has a disability attributable to the accepted impairments of major depressive disorder, fibromyalgia, golfer’s elbow and plantar fasciitis.
Section 24(a)(b): Permanency
The Tribunal must be satisfied that, on the evidence before it:
(a)there are no known, available and evidence-based treatments likely to remedy the accepted impairments; and
(b)no require further medical treatment or review is required for their permanency or likely permanency to be demonstrated.
Major Depressive Disorder
The applicant seeks access on the basis that her primary disability is major depression. In her assessment report, Ms Milner stated that she had treated the applicant since some six years prior and considered that the applicant’s depression is secondary to her physical pain condition.
Dr Ashkar similarly considered that the applicant’s depressive disorder appeared to be a secondary reactive response to her underlying medical conditions and pain. He also stated that further investigations into the applicant’s mental condition are required, and the Tribunal observes that this finding is consistent with the evidence of Ms Milner and Ms Wijekoon.
In contemplating the applicant’s physical recovery, Dr Wijekoon stated that the applicant has a positive mental health prognosis and that her future capacity may depend on her physical health issues.
The Tribunal is presented with professional, persuasive evidence in this regard and considers that the applicant’s depressive disorder is likely secondary to her physical symptomology or at least so inextricably linked that it cannot be distinguished for the purpose of deliberating its treatment and respective permanency.
Fibromyalgia
The evidence establishes that the applicant has been recommended known and evidence-based treatments for her fibromyalgia including medications, counselling, Tai Chi, physiotherapy, hydrotherapy and weight management.
The question for the Tribunal is therefore if the treatments are:
(a)“available” to the applicant; and
(b)are likely to “remedy” her impairments.
The Tribunal refers to National Disability Insurance Agency v Davis and the relevant findings of Mortimer J as follows: [34]
·“Available treatment” contemplates “what treatments an individual can, in reality, access” including their financial capacity to access a treatment.
·“Remedy” should be understood to mean something approaching a “removal” or “cure” of an impairment.
·“Permanency” asks if the impairments are enduring in nature and require supports provided and/or funded under the Scheme on an ongoing basis.
[34] FCA 1002 (Davis) at [130] – [138].
In her submissions the applicant reported improvements in her symptoms with physical exercise and weight loss. She stated that physiotherapy helped her, and that Tai Chi is assisting her greatly.[35]
[35] TB23: Response to Psychologist Report of Dr Ashkar by the applicant dated 9 November 2022.
The applicant also submitted that she is limited in her capacity to access treatments such as Tai Chi and physiotherapy classes by both her financial circumstances and her energy and pain levels. In this regard, she stated:
“Each day I plan to work on some form of physical activity, but this is dependent on each day’s mental and physical capacities and daily priorities.”
The Tribunal accepts that a treatment may not be considered “available” to a particular applicant where they are financially limited from accessing the treatment. The Tribunal does not necessarily consider a treatment unavailable where the applicant prioritises a different, preferred activity.
The Tribunal accepts the evidence of the applicant that she must prioritise the tasks she wants to do according to her pain and energy levels and refers to the recommendation of Dr Stretton that the applicant should pace her herself and spread out her activities each week.
The Tribunal refers the evidence of Dr Purchase that the applicant often does “too much” such as her daily farm duties and that this often leads to heightened pain. Further, that the applicant’s daughter states in her evidence that her mother has “pushed herself too much” around their property and “would end up in bed in pain”.[36]
[36] TB18: Statement of the applicant’s daughter, dated 4 November 2022.
The Tribunal also refers the submissions of Ms Todd and Ms Frankel, and that they consider the applicant demonstrated a reluctance to engage in counselling and participate in her recommended treatments a meaningful way.
In respect of her financial circumstances including whether she can afford her medical appointments the applicant states that “all treatments as discussed are what I need NDIS funding for”.[37] However, she also considers that “I am not requesting funding to treat my impairment. I am requesting funding to assist me to manage my disability and support me to lead a life that is as independent as possible.”
[37] TB23: Response to Psychologist Report of Dr Ashkar by the applicant dated 9 November 2022.

The evidence does not establish financial circumstances of the applicant such that the Tribunal can be satisfied that the treatments that are recommended to her can be considered financially unavailable.
Further, the evidence demonstrates that the applicant chooses to prioritise her physical energy to engage in her farming hobbies as indicated by her daily trips into town for food scraps and caretaking tasks for her animals, and that this choice can increase her pain.
In regard to the referral to Bridges and Pathways for treatment, the Tribunal considers that the applicant is on a waiting list and accepts the position of the respondent that, pursuant to rule 5.6 of the NDIS Rules, this further treatment is required before a determination of permanency can be made.
The Tribunal further contemplates the meaning of “permanency” of an impairment in the decision of Mulligan v National Disability Insurance Agency:[38]
“Although an impairment may…be responsible for or related to a disability, the threshold in s 24 revolves around the severity and permanency of the effects of the impairments experienced by a person, so as to justify the provision of the “reasonable and necessary supports” to which participants may be entitled…”
(Tribunal emphasis)
[38] [2015] FCA 544 (Mulligan) at [52].
The respondent, in this regard, refers to FBJV and National Disability Insurance Agency as follows:[39]
“the Rules do not require that the treatments would be likely to ‘cure’ the impairment. …
an impairment is ‘permanent’, or likely to be permanent, for the purpose of determining access to the NDIS, when there is no known, available and appropriate evidence-based clinical, medical or other treatments that would be likely to cure or relieve the impairment. This necessarily includes easing the impact or effects of the impairment.”
(Tribunal emphasis)
[39] [2021] AATA 913 (FBJV) at [117].
Applying the findings in Mulligan, the Tribunal accepts that, notwithstanding the applicant may be considered to have symptoms of her impairments such that a diagnosis is satisfied, the degree of severity and permanency of those impairments that she experiences may not be such that she can satisfy the contemplated threshold of “permanency”.
Dr Kwiatek considers that the applicant will likely have some degree of fibromyalgia-related symptoms for her lifetime and that the question before the Tribunal is “to what degree”. Dr Kwiatek stated in his report that “clearly she should keep herself as physically active as possible”.[40]
[40] TB7: Report of Dr Kwiatek dated 8 June 2021.
The Tribunal regards the opinion of Dr Kwiatek that there may still be a chance for her improvement in the applicant’s condition which is best addressed with self-management techniques alone.
It is noted that the respondent agrees with the applicant that Dr Kwiatek’s opinion carries the most weight in the expert medical evidence provided when considering the assessment of her fibromyalgia condition. The Tribunal agrees with both parties on this point and in this regard.
The evidence establishes that the applicant is affected by fibromyalgia symptoms of pain, fatigue, anxiety and secondary depression and physiological symptoms. The evidence further establishes that the applicant has previously engaged in recommended approaches of exercise, physiotherapy, pacing, meditation and Tai Chi and reported remedial effects on her physical and physiological symptoms.
The applicant is also referred for further psychiatric investigations for underlying issues that complicate her functioning and the Tribunal accepts the evidence that, in accordance with rule 5.6, her impairments therefore require this further review for permanency or likely permanency to be demonstrated.
The Tribunal accords with the respondent that the impacts of the applicant’s fibromyalgia and major depression symptoms may be eased with engagement of treatments recommended to her, and further investigations are required, such that it cannot yet be satisfied that the applicant’s fibromyalgia and major depression are permanent impairments.
Golfer’s Elbow and Plantar Fasciitis
Dr Pak has recommended that the applicant seek treatment of tennis elbow release and injections into her elbows and feet. The applicant states that she has not engaged in this treatment because this pain is managed, the conditions have improved and therefore surgery unnecessary.
In her evidence the applicant reported that her feet have improved dramatically since she started using inner soles for her plantar fasciitis. She confirmed that both her golfer’s elbow and plantar fasciitis are adequately managed with her own processes.
The Tribunal, on the evidence, finds that the treatments recommended by Dr Pak are available to the applicant and that she has chosen not to engage with them on the basis that the effects of both conditions are managed and no further treatment is required.
The Tribunal does not consider there is sufficient evidence to demonstrate that either the applicant’s golfer’s elbow or plantar fasciitis have such a degree of severity and permanency such that section 24(1)(b) of the NDIS Act is satisfied.
CONCLUSION
On the evidence before it, the Tribunal cannot be satisfied that the applicant has completed all known, available and appropriate evidence-based treatments recommended to her by treating medical professionals in respect of her major depressive disorder, fibromyalgia, golfer’s elbow and plantar fasciitis.
The evidence establishes that the applicant has not fully engaged with the treatments she has undertaken, and that these treatments would be likely to ease the effects and impacts of her impairments.
Accordingly the Tribunal is not satisfied that the applicant’s impairments are or are likely to be permanent in accordance with the requirement under section 24(1)(b) of the NDIS Act. This aspect of permanency, or likely permanency is a mandatory criterion of the disability requirements under section 24(1).
It is also a mandatory criterion of the early intervention requirements.[41]
[41] Section 25(1)(a)(i) NDIS Act.
Therefore pursuant to section 43 of the Administrative Appeals Tribunal Act 1975 (Cth), the Tribunal affirms the decision under review not to grant the applicant access to the National Disability Insurance Scheme on the basis that the Tribunal is not satisfied that the applicant meets either the “disability requirements” under section 24 or the “early intervention requirements” under section 25 of the National Disability Insurance Scheme Act 2013 (Cth).
I certify that the preceding 138 (one hundred and thirty-eight) paragraphs are a true copy of the reasons for the decision herein of Senior Member P J Clauson AM
………………………[SGD].…………………..
13 February 2024
Associate

[2024] AATA 188

13 February 2024

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