Howard and National Disability Insurance Agency
[2019] AATA 2
•3 January 2019
Howard and National Disability Insurance Agency [2019] AATA 2 (3 January 2019)
Division: GENERAL DIVISION
File Number(s): 2018/1435
Re: KEN HOWARD
APPLICANT
And National Disability Insurance Agency
RESPONDENT
DECISION
Tribunal: R CAMERON, SENIOR MEMBER
Date: 3 January 2019
Place: Melbourne
The Tribunal affirms the decision under review.
.....................[sgd]...................................................
R CAMERON, SENIOR MEMBER
1.
Catchwords
NATIONAL DISABILITY INSURANCE SCHEME – whether the applicant meets the access criteria – various medical conditions - consideration of medical evidence – decision affirmed
Legislation
National Disability Insurance Scheme Act 2013 (Cth)
National Disability Insurance Scheme (Becoming a Participant) Rules 2016 (Cth)
Cases
Holmes v NDIA [2017] AATA 2750
Mulligan v NDIA [2015] FCA 544Pomeroy v NDIA [2018] AATA 387
REASONS FOR DECISION
R CAMERON SENIOR MEMBER
3 January 2019
INTRODUCTION
1.This is an application by Ken Howard for review of a decision made on 14 March 2018 by a Delegate of the Chief Executive Officer of the Respondent National Disability Insurance Agency (NDIA). The Delegate’s decision (the reviewable decision) affirmed an earlier decision that he did not meet the “access criteria” to become a participant in the National Disability Insurance Scheme (NDIS) under the National Disability Insurance Scheme Act 2013 (the Act).
RELEVANT FACTS AND BACKGROUND OF THE APPLICANT
2.The Applicant is currently 62 years of age. He is not working and is in receipt of the disability support pension.
3.The Applicant has three adult children, being a daughter with whom he currently resides, and two sons, one who is a pilot in Tennessee, USA and another son who resides in New South Wales.
4.The Applicant was a New South Wales policeman. According to his evidence, in the course of his duties as a New South Wales police officer he attended the scene shortly after the Granville rail disaster in 1977. He described it as the start of his emotional downfall. After eight years of service in the New South Wales police force, he resigned.
5.The Applicant’s wife unexpectedly committed suicide when his children were young and he was ultimately left to raise them on his own.
6.Since his police career, the Applicant has largely been self-employed, engaged in a variety of positions in the toy industry. These engagements have included designing toys and related board games. He has also provided some form of consultancy which took him to South Africa for the purposes of designing and building toy factories.
7.However, the Applicant’s post police force business ventures, whilst having some level of success, have ultimately not produced the gains that he had expected and he has no assets to speak of. He is solely dependent on the disability support pension for daily living and any other support that he can derive from friends and family which, as noted above, has particularly come from his daughter with whom he currently resides.
8.The Applicant was involved in a motor vehicle accident on 12 July 2018. He sustained injuries in that accident. Some assistance was provided to him from the Transport Accident Commission (TAC) of Victoria following that car accident by way of physiotherapy, gym and hydrotherapy remedies. He has also received assistance from TAC for additional sessions with a psychologist, Judye Margetts (Ms Margetts), who he has been consulting for over three years.
9.The Applicant suffers from a range of conditions that are relevant to this application that will be considered in detail further.
THE HEARING AND EVIDENCE BEFORE THE TRIBUNAL
10.The Applicant represented himself at the hearing before the Tribunal. It was apparent to the Tribunal that the experience was a difficult one for him. The Tribunal sympathises with the Applicant and the predicament he now finds himself in.
11.The Applicant gave oral evidence before the Tribunal.
12.The Respondent called Deirdre Richards (Ms Richards), an occupational therapist who had also provided a report dated 5 September 2018.[1] Ms Richards is a highly qualified and experienced occupational therapist of approximately 25 years standing. In preparing her report she was provided with, in addition to a letter of instruction, all the current reports prepared by healthcare professionals (that were in evidence before the Tribunal) that had been prepared prior to the end of July 2018. The report of Ms Richards was in evidence before the Tribunal.
[1] Page 21 of the Supplementary T documents.
13.Ms Richard’s report had been prepared after she undertook a personal assessment of the Applicant on 5 September 2018 at his home. She gave evidence that the assessment took two-and-a-half hours. During the course of the assessment she took a history from the Applicant as well as conducting a physical examination.
14.Unfortunately, after Ms Richards’ evidence had concluded and during the course of closing submissions, the Applicant contended that there were some aspects of her evidence that were incorrect, including that she did not examine his knee and shoulder and that in fact his condition on the day was opposite to what she described in her report. He even went so far as to say: “She is lying”. Regrettably, the Applicant did not put any of this to Ms Richards when she gave her sworn evidence. Indeed, he did not ask her any questions. It is surprising that he did not put such allegations to her when he had the opportunity to do so whilst she was on oath. Notwithstanding this, the Tribunal will have to do its best to make an assessment of Richard’s evidence in the circumstances.
15.The Tribunal observed the evidence given by Ms Richards and has no reason to doubt her integrity. She presented to the Tribunal as a conscientious healthcare professional who understood her role was to assist the Tribunal in every way, and not to be an advocate for the party calling her. The Tribunal considers that her report and her evidence were an accurate account in all respects, including the observations that she made of the Applicant when undertaking her assessment of him. Therefore, the Tribunal accepts her evidence.
16.There was significant documentary evidence before the Tribunal including in the documents lodged by the Respondent under s 37 (the T Documents).[2] Some of the documentary evidence does warrant specific mention in these reasons.
[2] The Tribunal does not intend in these reasons to identify every document that was in the evidence before it. However, they have all been considered by the Tribunal in preparation of these reasons.
17.There were four medical reports in evidence between 20 July 2015 and 22 July 2018 from Ms Margetts. Six reports were in evidence from the Applicant’s treating general practitioner Dr Sam Assad (Dr Assad) dated between 11 March 2017 and 27 September 2018. Reports from Orthopaedic surgeons, Mr Cornofu and Mr Edwards dated 19 June 2017 and 31 July 2018 were also in evidence. In addition, there was a report dated 29 March 2018 from Ms Rebecca Lincoln, an audiologist.
THE ISSUES BEFORE THE TRIBUNAL
18.The issues before the Tribunal centre around whether or not the Applicant satisfies the “access criteria” to become a participant in the NDIS. Those issues are capable of formulation following the key sections of the Act that establish the access criteria. They are:
a) Does the Applicant have a disability that is attributable to one or more intellectual cognitive, neurological, sensory, physical or psychiatric impairments within the meaning of section 24(1)(a) of the Act?
b) Are the impairment or impairments likely to be permanent within the meaning of section 24(1)(b) of the Act?
c) Have the impairment or impairments resulted in substantially reduced functional capacity to undertake relevant activities within the meaning of section 24(1)(c) of the Act?
d) Do the impairment or impairments, affect the Applicant’s capacity for social or economic participation within the meaning of section 24(1)(d) of the Act?
e) Is the Applicant likely to require support under the NDIS for his lifetime within the meaning of section 24(1)(e) of the Act?
f) Does the Applicant meet the early intervention requirements within the meaning of section 25 of the Act?
THE ACCESS CRITERIA
19.The “access criteria” are to be found in Part 1 (sections 22 to 25) of Chapter 3 of the Act. As was noted by Mortimer J in Mulligan v NDIA,[3] the access criteria in Chapter 3 of the Act are an essential component of the NDIS as conceived. These criteria are designed to impose a number of thresholds on access to the NDIS. Threshold provisions such as section 24 operate not on the concept of disability, but on the concept of “impairment”. There is no definition contained in the Act of either the terms “disability” or “impairment”. Indeed, it is the word “impairment” that appears throughout the relevant sections of the Act that require consideration in this application.
[3] [2015] FCA 544.
20.The threshold imposed by section 24 requires a consideration of the severity and permanency of impairments suffered by an applicant. This consideration is required so as to justify the provision of reasonable and necessary supports from the scheme as he or she may be entitled. Such provision being made after an assessment as prescribed by Part 2, of Chapter 3 of the Act, if the person is accepted as a participant under the NDIS.
21.In these reasons, the Tribunal does not intend to recite the relevant sections of the Act. However, the substance of the relevant sections will be referred to for their force and effect where appropriate.
22.Section 21 specifies that an applicant will meet the access criteria if the Respondent’s CEO is satisfied that such person meets:
(a)the “age requirements” specified in section 22; and
(b)the “residence requirements” specified in section 23.
(c)As well as either:
i.the “disability requirements” specified in section 24; or
ii.the “early intervention requirements” specified in section 25.
(The precise language of those sections is referred to for their full force and effect.)
23.The Respondent accepts that the Applicant meets the age requirements and the residence requirements under section 23.[4]
[4] This admission is contained in the Respondent's Statement of Issues, Facts and Contentions at paragraph 12 and in the reviewable decision itself (on page 6 of the T documents.)
24.The provisions of section 24, “Disability requirements”, occupy the dominant considerations of the Tribunal in this application. Section 24(1) provides that a person meets the disability requirements if:
a) The person has a disability attributable to one or more impairments as described therein; and
b) The impairments are likely to be permanent; and
c) The 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 impairments affect the person’s capacity for social or economic participation; and
e) The person is likely to require support under the NDIS for the person’s lifetime.
25.As is apparent from an examination of the language in section 24(1), it is necessary for the decision maker to be satisfied of each of those requirements. In other words, they are cumulative and if an applicant does not meet all of those requirements specified in section 24(1), they will not satisfy the disability requirement test for the purposes of applying section 21(1)(c)(i) of the Act. If an applicant fails the disability requirement test, they are not eligible to become a participant of the NDIS.
26.Section 25, “Early intervention requirements”, requires a person to have an identified impairment that is likely to be permanent. The Respondent’s CEO must be satisfied that the provision of early intervention supports for such person is likely to benefit them by reducing their future needs for support in relation to such disability. The CEO must also reach a state of satisfaction that such early intervention supports are likely to benefit the person concerned by: mitigating or alleviating the impact of the impairment upon their functional capacity to undertake various tasks, preventing deterioration of such functional capacity, improving such functional capacity or strengthening the sustainability of informal supports available to them.
THE CONDITIONS SUFFERED BY THE APPLICANT
27.The Applicant was found to have the following impairments:
a) Partial hearing loss;
b) PTSD, anxiety disorder and major depressive disorder;
c) Achilles tendinosis, as impacted following a motor vehicle accident in which the Applicant was involved on 12 July 2018;
d) Meniscal tear to the right knee; right hip injury; osteoarthritis; left elbow epicondylitis;
e) Essential tremors in both hands;
f) Fibromyalgia-pain in shoulders and upper arms;
g) Right shoulder tendinitis and subacromial bursitis;
h) Hypertension;
i) Migraine headaches; and
j) Fatty liver.
SECTION 24(1)(a) OF THE ACT-DISABILITY REQUIREMENTS
28.The Applicant contended that he had a disability within the meaning of section 24(1)(a) of the Act by reason of suffering from the impairments identified in the previous paragraph. He relied upon the reports of Dr Assad, Ms Margetts and the orthopaedic surgeons Mr Cornfu and Mr Edwards.
29.The Respondent’s position was that it accepted that the Applicant has a disability within the meaning of section 24(1)(a) of the Act attributable to:
a) PTSD, anxiety disorder and major depressive disorder[5];
b) Achilles tendinosis[6], as impacted following a motor vehicle accident in which the Applicant was involved on 12 July 2018 (however, the extent of such impairment is unclear but presently the impact of the mobility impairment is disabling.);
[5] The Tribunal accepts this contention which is established by reference to the several reports of Dr Assad and Ms Margetts concerning these conditions. It is also conceded by the Respondent in, amongst other places, paragraph 43 of its Statement of Facts, Issues and Contentions. This concession also draws upon the contents of Ms Richard's report at page 6 which refers to his "psychosocial impairments".
[6] The diagnosis of this condition is confirmed in the reports of orthopaedic surgeons Mr Cornofu of 19 June 2017 and Mr Edwards of 31 July 2018.
30.It also acknowledged that the Applicant suffered the hearing disability attributable to partial hearing loss impairment[7].
[7] Paragraph 46 of the Respondent's Statement of Facts, Issues and Contentions. It is also established by reason of the contents of the report of Rebecca Lincoln, audiologist, of 29 March 2018. Dr Assad also refers to this partial hearing loss condition as being permanent in his report of 19 March 2018. The Respondent’s Statement of Facts, Issues and Contentions at paragraph 3 also makes this concession.
31.Concerning the remaining conditions, the Respondent acknowledged that they were impairments but contended there was no evidence that the conditions had any impact on the Applicant’s functional capacity and therefore do not play a role in his disability. The issue of functional capacity is a matter for subsection (1)(c) of section 24.
32.There is evidence that the Applicant suffers from the remaining conditions in the evidence before the Tribunal. The report of Dr Assad of 19 November 2017 in particular identifies these conditions with a reasonable description. It was prepared by him to support an application for the disability support pension. However, that does not derogate from its probative value in this application. Relying upon the contents of that report, the Tribunal finds that the Applicant does have a disability with respect to those remaining conditions.
SECTION 24(1)(b) OF THE ACT-PERMANENCE OF IMPAIRMENT
33.The Applicant contends that each of the disabilities that he suffers from are, or are likely to be, permanent.
34.The Respondent concedes that the partial hearing loss is permanent. However, it contends the other conditions are either not permanent or the position with respect to them remains unclear.
35.In deciding whether an impairment is permanent or likely to be permanent for the purposes of the disability requirements of section 24(1)(b), the requirements of the National Disability Insurance Scheme (Becoming a Participant) Rules2016 come into play. The relevant rules are reproduced in full.
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).
5.7 If an impairment is of a degenerative nature, the impairment is, or is likely to be, permanent if medical or other treatment would not, or would be unlikely to, improve the condition.
SECTION 24(1)(C) OF THE ACT-SUBSTANTIAL REDUCTION OF FUNCTIONAL CAPACITY TO UNDERTAKE RELEVANT ACTIVITIES
36.To meet the requirements of this section, it is necessary for an impairment to result in a substantial reduction in functional capacity to undertake one or more of six specific activities. Those activities are communication, social interaction, learning, mobility, self-care and self-management. Rule 5.8 specifies when an impairment will result in a substantially reduced functional capacity to undertake the relevant activity. This rule is also reproduced in full.
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.
37.It was difficult to deduce from the Applicant’s submissions precisely which impairment he was relying upon to assert compliance with this section. For the purposes of these reasons and this analysis, the Tribunal considers the most appropriate approach to adopt is to treat him as contending that all his impairments have caused to a substantial reduction in capacity within the meaning of section 24(1)(c) of the Act (as applicable to one or more of the activities defined or identified in that subsection).
38.The contention of the Respondent was that the condition of Achilles tendinosis was the only condition for which there could definitely be a finding that there was a substantial reduction in his capacity. The reason for this was that the Respondent acknowledged, as a result of the examination and report prepared by Ms Richards, that the Applicant has a substantial reduction in mobility including distance, speed and standing and dynamic standing tolerance.
39.Ms Richards recorded several things in her report under the heading “Physical Functioning”. She noted that the Applicant ambulated with a walking stick and a CAM boot. His gait speed was reduced. He was able to walk over level surfaces for distances up to 30m, which was limited by bilateral ankle and heel pain and further restricted by the CAM boot. Ambulation over steep sloping, soft or uneven terrain posed increased difficulty for him. The stabilising support of a hand rail to negotiate steps and stairs was also required.
40.Ms Richards acknowledged with respect to this condition that pain in both ankles and heels was the primary limiting factor for all of the Applicant’s physical functioning. She recorded that the Applicant advised her that the pain he experienced was constant and increased in its intensity with increased levels of activity. Commensurate with this observation, the Applicant also advised her that his pain levels were exacerbated by standing, ambulating and increased levels of activity. This evidence provided by Ms Richards justifies a conclusion that the Achilles tendinosis condition of the Applicant has led to a substantial reduction in his functional capacity in terms of his mobility, within the meaning of section 24(1)(c)(iv) of the Act.
SECTION 24(1)(d) OF THE ACT-AFFECT ON THE APPLICANT’S CAPACITY FOR SOCIAL OR ECONOMIC PARTICIPATION
41.The Respondent, in its Statement of Facts Issues and Contentions, accepts that the Applicant’s mobility impairment and psychosocial impairment affects his capacity for social and economic participation within the meaning of this section.[8]
SECTION 24(1)(e) OF THE ACT - LIKELIHOOD TO REQUIRE SUPPORT UNDER THE NDIS FOR THE PERSON’S LIFETIME
[8] Paragraph 107 of the Respondent’s Statement of Facts, Issues and Contentions.
42.The application of this section of course requires the Tribunal to find, amongst other things, that the relevant conditions are permanent. Should such a finding be made then a consideration must be undertaken as to whether the lifetime support is required from the NDIS or whether support is more appropriately provided by another service that is available to the applicant in the circumstances.[9]
[9] The Respondent referred to two authorities: Holmes v NDIA [2017] AATA 2750 at [88] and Pomeroy v NDIA [2018] AATA 387 at [50] in support of this contention. The Tribunal agrees.
CONSIDERATION
43.The evidence will now be considered for each of the conditions suffered by the Applicant to determine whether they satisfy the requirements of section 24 of the Act and paragraphs 5.4, 5.7 and 5.8 of the Rules (where applicable).
Partial hearing loss
44.The evidence before the Tribunal concerning this condition consisted of a report prepared by an audiologist, Ms Rebecca Lincoln, addressed to Dr Assad on 29 March 2018. Attached to the report were “Audiometry” reports which show, amongst other things, pure tone results at various frequencies. Dr Assad, in his report of 19 March 2018, also reaches the conclusion that the condition of partial hearing loss is permanent and no future improvement is expected.
45.The Respondent calculated the hearing loss in each year by averaging the pure tone results at 500Hz, 1000Hz, 2000Hz and 4000Hz. The results were a loss of 17.5 dB in the right ear and 25 dB in the left ear. The Tribunal, having cross-checked these calculations, accepts their accuracy.
46.The condition is not remediable. Accordingly, it is a disability within the meaning of section 24(1)(a) of the Act. Given that it is not remediable it is an impairment that is permanent within the meaning of section 24 (1 (b) of the Act. (As noted earlier this was conceded by the Respondent.)
47.The Respondent contends that the measured level of hearing loss is slight or mild on a World Health Organisation classification. It therefore contends that the Applicant does not need support to communicate.
48.The Tribunal accepts this contention on the part of the Respondent. It does so firstly, because there was nothing in the audiologist’s report that indicated any support was necessary to enable the Applicant to communicate. Secondly, it accepts this contention based upon the Applicant’s own evidence. He stated he was wearing hearing aids when he gave evidence. In the course of the hearing, both in his submissions from the bar table and the evidence he gave from the witness box, the Applicant had no difficulty hearing anything that was being said at any stage of the proceeding. Had he not stated he was wearing hearing aids on the day, a casual observer would not have thought so.
49.Given this finding, the impairment suffered by the Applicant arising from his partial hearing loss does not result in a substantially reduced functional capacity (specifically for communication) within the meaning of section 24(1)(c) of the Act. As such, it does not affect his capacity for social or economic participation as required by section 24(1)(d) of the Act. He would not need lifetime support from the NDIS by reason of this impairment as required by section 24(1)(e) of the Act.
PTSD, anxiety disorder and major depressive disorder
50.The earliest written evidence revealing the diagnosis of these disorders is contained in a report from Ms Margetts to Dr Mahdi, who appeared to be the treating general practitioner of the Applicant on 20 July 2015. (It should be noted that Ms Margetts stated in that report that the Applicant’s first presented to her on 25 March 2015 having been referred for mixed anxiety and depression.) In that report, the author states that the Applicant was suffering from complex PTSD and Major Depressive Disorder with anxious effect. Tellingly, she states that such trauma in the past had not been treated. She further observed that the Applicant had been extremely compliant in therapy and had progressed well. She expressed the belief that it was essential for the Applicant at that time to continue with his therapy. She stated she would continue to treat him under the protocols provided by complex PTSD evidence-based therapy.
51.The Tribunal concludes that as at 20 July 2015 it was the opinion of Ms Margetts (who it will be recalled did not give evidence before the Tribunal) that the Applicant’s condition was treatable and that such treatment could lead to some improvement in his condition. How much improvement cannot be determined.
52.It would appear that the 20 July 2015 report of Ms Margetts was prepared for the purposes of assisting with the Applicant’s dealings with Centrelink, including the procurement of a disability support pension. After this report was prepared, no other reports emerged in evidence until 2017.
53.The next report in evidence that touches on this impairment was that of Dr Assad dated 11 March 2017. Once again, it was prepared for the purposes of a disability support pension as the author states that very fact. Further, he also states that the impairment rating was more than 20 points under the relevant tables used by Centrelink when considering an application for the disability support pension. He concludes, amongst other things, that this condition was long-term and chronic. He states that the condition had been fully treated with pharmaceutical medications and supportive counselling. He stated the outcome of such treatment was not great and that the “ups and downs in his condition” with future relapses are consistent with a bad prognosis.
54.Ms Margetts, in a four-page report of 13 November 2017, recorded the treatment that she had provided the Applicant. She stated that such treatment was likely to continue indefinitely. Additionally, she stated she had discussed the option of psychiatric treatment with the Applicant, including medication and psychoanalysis. She considered it would support the applicant to some extent but more likely than not the current issues would remain stable and continue indefinitely. The tenor of the report, whilst acknowledging that the conditions were likely to continue indefinitely, did not rule out the prospect of consulting a psychiatrist in the future. Once again, the report itself seems to have been written with a view to assisting the Applicant either obtain or continue to receive a disability support pension. Howeverm this does not limit or in any way qualify its use in this application.
55.Another one page report from Ms Margetts dated 13 November 2017 repeated the diagnosis and stressed that the Applicant would not recover from the condition. She confirmed that she had discussed psychiatric treatment with the Applicant and considered that medication and psychoanalytic treatment from a psychiatrist would support the Applicant to some extent. Notwithstanding this, she considered that what she described as the “current issues” would remain stable and continue indefinitely. The report further opined that it would be difficult for the Applicant to find a bulk-billing psychiatrist or other service to assist. It also stated that it was highly likely that he would be excluded because the system is geared toward adolescent, not aged clients. Whilst it did not say so in as many words, the report did infer that consulting a psychiatrist was, at the very least, a realistic treatment option.
56.Dr Assad produced another report on 19 November 2017. Again, it was obviously prepared in support of an application for a disability support pension. It recapped the contents of his earlier report in terms of both prognosis and treatment. There is no recommendation in that report that the Applicant be referred to a psychiatrist. It just referred to treatment by pharmaceutical medications and supportive counselling by using a psychologist. It does strike the Tribunal as surprising that, given the severity of this condition that Dr Assad identifies in that report, that he did not recommend a referral to a suitable psychiatrist with the intention of seeking to exhaust all possible treatment options.
57.Dr Assad’s report of 19 March 2018 described the “mental illness” of the Applicant as permanent.
58.Dr Assad also stated that the Applicant’s condition was permanent, irreversible and incurable, meaning significantly reduced function physically, mentally, emotionally and in mobility. There was also a description of his psychosocial disorder and mental state as being permanent, despite having had a lot of therapy over the last few years. However, he also recommended what he described as ongoing psychological counselling with Ms Margetts or another therapist. He did observe that there was a recommendation that the Applicant see a psychiatrist given his severe emotional and mental state. It referred to the fact that he was unable to find a suitable psychiatrist to bulk bill; it also recommended government assistance to enable this to occur.
59.Ms Margetts, in her report of 22 July 2018, expressed the opinion that this condition is permanent. She also highlighted the difficulty that the Applicant had in obtaining the support of a psychiatrist. She opined that if a psychiatrist were available it would not alter the permanency of the Applicant’s condition; it would only offer him additional management resources and the possibility of a medication management program.
60.Dr Assad, in a further report of 26 August 2018, stated that the Applicant had been referred to see a psychiatrist, Mr John Webber, who apparently refused to see him. Critically, he stated that to the best of his knowledge the Applicant has not been seen by a psychiatrist. Once again, there was reference to the inability to find a bulk-billing psychiatrist in the private sector, which causes difficulty for the Applicant as he cannot afford to pay a gap fee out of his pocket. He confirmed that, to the best of his knowledge, the Applicant had not seen a psychiatrist previously. The failure to see a psychiatrist also raises the question of whether treatment of this condition is or has been exhausted. In the July 2018 report of Ms Margetts, she observes that the Applicant continues to improve with his management of the permanent issues and past traumas from which he suffers. One cannot be certain therefore that if improvement were to continue that it may not be remedied.
61.When one considers the evidence available to the Tribunal and the prescription given by the Rules, it is not possible to say that there are no known, available and appropriate evidence-based clinical, medical or other treatments that would be likely to remedy this impairment. Regrettably for the Applicant, the fact that he has not been able to see a psychiatrist makes it very difficult for the Tribunal to be so satisfied. The language used in clause 5.6 of the Rules when considered in the context of the several mental health conditions with which the Applicant has been diagnosed requires their medical treatment and review from a competent specialist, as indeed has been recommended by Dr Assad and Ms Margetts, before a conclusion could be reached that the impairment is permanent or likely to be permanent within the meaning section 24(1)(b) of the Act as construed with the guidance provided by the relevant parts of clause 5 of the Rules. It would presumably only be when a psychiatrist has conducted the medical treatment and the review that a conclusion could be reached that there are no known, available and appropriate evidence-based clinical, medical or other treatments that would be likely to remedy the impairment.
62.In so far as it needs to be addressed, this affliction does appear only to affect social interaction as contemplated by section 24(1)(c)(ii) of the Act. The condition has limited, but probably not substantially reduced, the Applicant’s capacity to undertake social interaction. The Tribunal accepts on his evidence that it has limited him somewhat in engaging with those elements of society with whom he is not overly familiar. However, the evidence, including that of Ms Richards, not to mention his own evidence, indicates that he does have interaction with a broad range of people including family friends and such other circles including a church and even attending a gymnasium. The Tribunal acknowledges that this condition does, at times, create obstacles to him socially interacting and initiating contact with others. However, it does not affect the extent to which it can be fairly described as a substantial reduction in functional capacity.
63.Given the concession of the Respondent referred to is not necessary to further consider the application of 24(1)(d) of the Act.
64.In considering section 24(1)(e) of the Act, given the findings above that the Applicant’s PTSD, anxiety disorder, major depressive disorder require psychiatric review and treatment, it is impossible for the Tribunal to conclude in this application that the Applicant will require support under the NDIS for his lifetime.
Achilles tendinosis
65.The evidence before the Tribunal is that the Applicant has suffered from this complaint for some time. Indeed, his treating general practitioner described it as a “long-term” condition, from which he had been “suffering”.[10] In another report from Dr Assad dated 22 June 2018 he described the conditions, including this condition, as permanent, irreversible and incurable. It was said to have led to significantly reduced mobility on his part. This condition has been affected by a car accident on 12 July 2018, which has further restricted his movement and requires him to wear a CAM boot.
[10] The report of Dr Assad of 11 March 2017 is referred to. In his report of 19 March 2018 he described the condition as permanent.
66.Whilst the Tribunal acknowledges the assessment of Dr Assad, there are two reports from orthopaedic surgeons in evidence. The first report is from Mr Cornofu and is dated 19 June 2017. The second report is from Mr Edwards, dated 31 July 2018 and after the car accident.
67.Mr Cornofu noted that the Applicant has had issues with both of his Achilles tendons for as long as he can remember, although there was no specific injury at any point. He observed that there had been increasing levels of pain, treated with a cortisone injection within the last 12 months, with only minimal improvements. He discussed in the report the prospect of “surgical options” being entertained. He cautioned that the results of Achilles tendinitis surgery are “somewhat mixed”.
68.Mr Edwards made some recommendations, including good supportive shoes with bespoke insoles, physiotherapy, weight control, analgesics and anti-inflammatories. He then recommended a review if the problems do not resolve satisfactorily within 3 to 6 months. The review would require current investigations probably with a view to surgery.
69.Given the conclusions of both of the orthopaedic surgeons that surgery is an option, it is apparent that in the circumstances that the Applicant has not fully exhausted all available treatment options that could possibly remedy this impairment. It may require further medical treatment in review before a determination can be made about whether the impairment is permanent or likely to be permanent as contemplated by Rule 5.6. Therefore, when one considers the language used in the section, together with the test prescribed by Rules 5.4 and 5.6, it cannot be said that this impairment is permanent within the meaning of section 24(1)(b) of the Act.
70.The Tribunal observed above that this condition has substantially reduced the Applicant’s mobility to a level that satisfies the definition of a substantial reduction in functional capacity, as required by section 24(1)(c)(iv) of the Act.[11]
[11] A concession to this effect was also made by the Respondent, quite properly, at paragraph 84 of its Statement of Facts, Issues and Contentions.
71.The Tribunal notes the concession recorded earlier in these reasons, that the Respondent accepts that the impairment in his mobility caused by this affliction affects his capacity for social and economic participation as required by section 24 (1) (d) of the Act.[12]
[12] Paragraph 107 of the Respondent's Statement of Facts, Issues and Contentions is referred to.
72.However, given the earlier observations concerning this condition and the possibility of surgical intervention following further review it cannot be concluded that the Applicant is likely to require support under the NDIS for his lifetime as required by section 24 (1) (e) of the Act.
Meniscal tear to the right knee; right hip injury; osteoarthritis; left elbow epicondylitis
73.There is limited material before the Tribunal concerning this condition. The strongest evidence of it (if it can be described in those terms) is contained in the report of Dr Assad of 19 November 2017. It is said to have caused: “Painful and restricted mobility of all the joints involved”. This was said in the context of his description of a right hip injury, osteoarthritis and left elbow epicondylitis.
74.Ms Richards, in her report of 5 September 2017, observed that when she examined him, the Applicant demonstrated a normative range of motion and strength in his upper limbs, hips and knees. She also observed that the bilateral hip and knee active range of movement and strength were normal. Ms Richards, in her oral evidence to the Tribunal, said that the Applicant did not report the meniscal tear in the right knee at the time she conducted the assessment. She did not observe any injury or issue with the Applicant’s hip, given the range of movement or strength he exhibited when she conducted the assessment.
75.Given this evidence of Ms Richards from a recent examination, it is impossible for the Tribunal to conclude that this condition is permanent within the meaning of section 24(1)(b) of the Act.
76.Also, by reason of these findings, the Tribunal would have to conclude that there is no functional impact within the relevant sense required by section 24(1)(c) of the Act.
77.Similarly, given these findings, it cannot be said that the requirements of sections 24(1)(d) and (e) are satisfied.
Essential tremors in both hands
78.This condition is identified first in the report of 11 March 2017 from Dr Assad. He describes it as one of several conditions which are expressed to be in terms of “long-term chronic” and “associated with significant and not minimal impact on his working capacity”. That group of conditions identified in that report were described as being currently under treatment, without identifying what treatment was in fact being undertaken by the Applicant for this specific condition.
79.In the first part his report of 19 November 2017, Dr Assad has used identical wording to describe this condition and its treatment. He then has a separate sub heading “6-Essential Tremors” in which he simply states “Fine tremors of both hands. It started in 2011. Treated with propranolol”.
80.Ms Richards in her report did not observe such a condition at all. She also gave oral evidence to the Tribunal that she did not observe any tremors in the Applicant’s hands.
81.On the limited evidence available to the Tribunal, but particularly that of Dr Assad, the Tribunal is prepared to accept this condition is or is likely to be permanent, having been suffered by the Applicant since 2011. Whilst the description of the treatment by a drug is somewhat limited, it does appear that the treatment has largely succeeded, which is consistent with the fact that Ms Richards has not made any observations in her report concerning this complaint. Therefore, the Tribunal finds that the impairment has not caused a substantially reduced functional capacity, as required by the criteria contained in section 24(1)(c) of the Act.
82.Similarly, given these findings it cannot be said that the requirements of sections 24(1)(d) and (e) are satisfied.
Fibromyalgia-pain in shoulders and upper arms; right shoulder tendinitis and subacromial bursitis
83.This condition is identified by Dr Assad in his reports of 11 March and 19 November 2017. It is identified as one of several complaints affecting the functions and mobility of various joints. The treatment to the specific condition is not specifically identified in the reports. The Tribunal infers that there has been some treatment with anti-inflammatory agents and physiotherapy.
84.Whilst the Tribunal might be prepared to accept that this condition constitutes an impairment, the evidence indicates that the treatment that has been undertaken by the Applicant has had the effect of remedying such impairment. The evidence from Ms Richards, which identifies a normative range of motion in the Applicant’s limbs, is indicative of a resolution or successful treatment of such a condition. Therefore, the requirements of section 24(1)(b), (c), (d) and (e) of the Act are not satisfied with respect to this condition.
Right shoulder tendinitis and subacromial bursitis
85.This condition is also briefly identified in both reports of Dr Assad of 11 March and 19 November 2017. No specific treatment for the condition has been identified in those reports. On this limited material, the Tribunal accepts that it is an impairment within the meaning of section 24(1)(a) of the Act. However, given the limited material, it cannot be satisfied that the impairment is likely to be permanent or resulting in substantially reduced functional capacity as required by the remaining subsections of section 24 of the Act.
Hypertension and migraine headaches
86.These conditions are identified in the report of Dr Assad dated 19 November 2017. With respect to both conditions, a treatment program by the prescription of medication is identified[13]. Dr Assad does not conclude that the treatment has been unsuccessful.
[13] Dr Assad in his report of 27 September 2018 notes that the Applicant is prescribed IMIGRAN for this condition.
87.Ms Richards in her evidence to the Tribunal said that at the time she conducted the assessment, which it will be recalled included taking detailed instructions or history from him, the Applicant did not mention migraines to her. He did describe to her three episodes of a loss of central vision, which Ms Richards postulated could potentially be a symptom of migraines. She described it as a historical account. When questioned as to whether there was any reference to dizziness or like symptoms by the Applicant, she stated that there was no sign of it.
88.The Tribunal infers that where appropriate, the use of medication has resulted in satisfactory treatment of these conditions. (Indeed, in his report of 27 September 2018, Dr Assad states that the Applicant’s hypertension is controlled.) Assuming that these conditions constitute an impairment as required by section 24(1)(a) of the Act, on the evidence before the Tribunal, which is very limited, it is unable to find that such impairment is or is likely to be permanent. Furthermore, it is unable to find that these impairments have resulted in substantially reduced functional capacity. The Tribunal cannot find that they affect his capacity for social or economic participation; let alone that he is likely to require support under the NDIS for his lifetime, as required by the remaining subsections of section 24 of the Act.
Fatty Liver
89.Once again, there is limited evidence concerning this condition. The evidence that exists comprises the observations contained in the two reports of Dr Assad on 11 March and 19 November 2017. The first report simply identifies it as a condition and gives a global analysis of it and several others under the consideration of them being long-term and chronic. The report of 19 November 2017 does elaborate in more detail. This report states that its symptoms are indigestion and abdominal pain. It states that the condition started in July 2017 and has been treated with a weight loss program.
90.No details are provided as to when the Applicant undertook that weight loss program or the results achieved. There is insufficient evidence before the Tribunal to be able to categorically determine that it is an impairment as required by section 24(1)(a) of the Act.
91.Even if the condition does meet the requirements of an impairment (which is not concluded), given that treatment is identified, the Tribunal infers that, on the evidence before it, such impairment:
a) is not, or is not likely to be permanent as required by section 24(1)(b) of the Act; and
b) has not resulted in substantially reduced functional capacity as required by section 24(1)(c) of the Act; and
c) does not affect his capacity for social or economic participation (let alone that he is likely to require support under the NDIS for his lifetime) as required by subsections of section 24 (1) (d) and (e) of the Act.
92.Further, the condition is not addressed in any subsequent reports before the Tribunal.
Findings on section 24 - Disability requirements.
93.Given the analysis above concerning this section of the Act, the Tribunal concludes that the Applicant does not meet the disability requirements of section 24.
Section 25 - Early intervention requirements
94.The precise language of section 25 is referred to in its entirety for its full force and effect. It is necessary for such a person to have a permanent impairment and the CEO of the NDIA must be satisfied that the provision of early intervention supports for that person is likely to benefit them by reducing their future needs for such supports. That state of satisfaction on the part of the CEO will be of benefit to the person suffering from that disability.
95.The Tribunal refers to the findings made above, which are that it cannot conclude that the conditions are permanent as required by the relevant section.
96.Even if this conclusion that the conditions are not permanent as required by either section 24 or section 25 are wrong, the Tribunal cannot be satisfied that the provision of early intervention supports as contemplated by section 25 (in particular subsections (1)(b) and (c)) would have the effect required by those sections. There is simply insufficient evidence to enable it to reach such a conclusion.
97.The Tribunal cannot be satisfied that, support for the Applicant’s PTSD, anxiety disorder and major depressive disorder are most appropriately funded through the NDIS.
98.There is insufficient evidence to show that the provision of early intervention supports for the applicant would be likely to benefit him by reducing his future needs for supports in relation to the disability.
99.The Tribunal cannot be satisfied that the provision of early intervention supports is likely to benefit the Applicant by mitigating or alleviating the impact of his impairment in the relevant sense, prevent the deterioration of such functional capacity, improve such functional capacity or strengthen the sustainability of informal supports available to him.
CONCLUSION
Having considered all the evidence before it and having concluded that the Applicant has not satisfied either the disability requirements under section 24 of the Act or the early intervention requirements under section 25 of the Act, the Tribunal affirms the reviewable decision.
I certify that the preceding 100 (one-hundred) paragraphs are a true copy of the reasons for the decision herein of R. Cameron, Senior Member
.........................[sgd]............................................
Associate
Dated: 3 January 2019
Date of hearing: 3 October 2018 Applicant: Self-represented Advocate for the Respondent: Ms Liz Jehu Solicitors for the Respondent: National Disability Insurance Agency
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