McFarlane and National Disability Insurance Agency

[2018] AATA 4727

McFarlane and National Disability Insurance Agency [2018] AATA 4727 (17 December 2018)

Division:NATIONAL DISABILITY INSURANCE SCHEME DIVISION

File Number:           2017/3849

Re:Jason McFarlane

APPLICANT

AndNational Disability Insurance Agency

RESPONDENT

DECISION

Tribunal:Dr L Bygrave, Member

Date:17 December 2018

Place:Sydney

The decision under review is affirmed.

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

Dr L Bygrave, Member

CATCHWORDS

NATIONAL DISABILITY INSURANCE SCHEME – access – whether applicant meets access criteria – fibromyalgia – chronic pain syndrome – whether applicant meets the disability requirements – whether applicant meets the early intervention requirements –meaning of disability – whether applicant’s impairments permanent – whether impairments result in substantially reduced functional capacity in one or more activities – whether applicant’s impairments affect capacity for social or economic participation – whether applicant likely to require support under the NDIS for his lifetime – benefit of early intervention support – whether support most appropriately funded or provided through NDIS – decision under review affirmed

LEGISLATION

National Disability Insurance Scheme Act 2013 (Cth) ss 3, 4, 21, 22, 23, 24, 25, 103, 209

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

CASES

Mulligan v National Disability Insurance Agency [2015] FCA 544

Re Drake and Minister for Immigration and Ethnic Affairs (No 2) [1979] AATA 179; (1979) 2 ALD 634

SECONDARY MATERIALS

National Disability Insurance Agency, Operational Guideline – Access to the NDIS

REASONS FOR DECISION

Dr L Bygrave, Member

17 December 2018

INTRODUCTION

1. Mr Jason McFarlane applied to become a participant in the National Disability Insurance Scheme (the NDIS) on 6 December 2016. In the NDIS access request form, Dr Samuel Nosike (general practitioner) listed Mr McFarlane’s disabilities as:

   1. fibromyalgia

   2. chronic pain syndrome

   3. lateral epicondylitis (bilateral arms)

   4. De Quervains tendonitis

   5. right wrist synovitis[1]

   [1] Exhibit T-T11, page 28.

2. On 3 January 2017, a delegate of the Chief Executive Officer (CEO) of the National Disability Insurance Agency (the NDIA) determined that Mr McFarlane does not meet the access criteria specified in sections 21–25 of the National Disability Insurance Scheme Act 2013 (Cth) (the NDIS Act).

3. Mr McFarlane requested an internal review and, on 21 June 2017, the NDIA affirmed the decision (the internal review decision).

4. On 2 July 2017, Mr McFarlane made an application for review of the internal review decision to the NDIS Division of the Administrative Appeals Tribunal (the Tribunal). The Tribunal has jurisdiction to review the internal review decision pursuant to section 103 of the NDIS Act.

5. The Tribunal initially heard the matter in Newcastle on 21 February 2018 so Mr McFarlane could attend the hearing and provide evidence in person. The Tribunal then adjourned the hearing to allow Mr McFarlane to seek further medical evidence. The Tribunal resumed the hearing in Sydney on 8 and 9 November 2018; Mr McFarlane attended these hearing days by telephone with the support of his disability advocate. Mr McFarlane had legal representation throughout the hearing process.

   RELEVANT LEGISLATION

6. The Parliament of Australia expressly provided objects and principles in the NDIS Act to give guidance on the interpretation of the statute. The objects of the NDIS Act are set out in section 3 and include:

   ·giving effect to Australia’s obligations under the Convention on the Rights of Persons with Disabilities done at New York on 13 December 2006 ([2008] ATS 12); and

   ·supporting the independence and social and economic participation of people with disability; and

   ·enabling people with disability to exercise choice and control in the pursuit of their goals and the planning and delivery of their supports; and

   ·facilitating the development of a nationally consistent approach to the access to, and the planning and funding of, supports for people with disability.

7. Paragraph 3(3)(b) of the NDIS Act also provides that, in giving effect to the objects of the Act, regard is to be had to the need to ensure the financial sustainability of the NDIS.

8. The general principles guiding actions under the NDIS Act are contained in section 4 and include:

   ·affirming that people with disability should be supported to exercise choice in the pursuit of their goals and the planning and delivery of their supports; and

   ·acknowledging and respecting the role of families, carers and other significant persons in the lives of people with disability.

9. Under subsection 209(1) of the NDIS Act, the Minister may make rules prescribing matters under the Act. Relevant to this matter, the National Disability Insurance Scheme (Becoming a Participant) Rules 2016 (Cth) (the Participant Rules) also form part of the legislation.

10. Operational Guidelines written by the CEO of the NDIA also assist staff to make decisions in accordance with the NDIS Act. Operational Guidelines represent government policy and should be applied by the Tribunal unless there is good reason not to do so: Re Drake and Minister for Immigration and Ethnic Affairs (No 2)[1979] AATA 179; (1979) 2 ALD 634.

    The access criteria

11. To become a participant in the NDIS, Mr McFarlane must satisfy the access criteria, which are summarised in subsection 21(1) of the NDIS Act:

    21 When a person meets the access criteria

    (1)       A person meets the access criteria if:

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

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

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

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

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

12. There is no dispute that Mr McFarlane meets the age requirements in section 22 and the residence requirements in section 23 of the NDIS Act. The issue in dispute, and therefore the issue for determination by the Tribunal, is whether Mr McFarlane meets the access criteria as set out in section 24 of the NDIS Act (disability requirements) or in section 25 of the NDIS Act (early intervention requirements). For completeness, I note the alternative access criteria, which are set out in subsection 21(2) of the NDIS Act, are not relevant to this matter.

13. Sections 24 and 25 of the NDIS Act state:

    24 Disability requirements

    (1)       A person meets the disability requirements if:

    (a)The person has a disability that is attributable to one or more intellectual, cognitive, neurological, sensory or physical impairments or to one or more impairments attributable to a psychiatric condition; and

    (b)The impairment or impairments are, or are likely to be, permanent; and

    (c)The impairment or impairments result in substantially reduced functional capacity to undertake, or psychosocial functioning in undertaking, one or more of the following activities:

    (i)     communication;

    (ii)    social interaction;

    (iii)    learning;

    (iv)   mobility;

    (v)    self‑care;

    (vi)   self‑management; and

    (d)The impairment or impairments affect the person’s capacity for social or economic participation; and

    (e)The person is likely to require support under the National Disability Insurance Scheme for the person’s lifetime.

    (2)       For the purposes of subsection (1), an impairment or impairments that vary in intensity may be permanent, and the person is likely to require support under the National Disability Insurance Scheme for the person’s lifetime, despite the variation.

    25 Early intervention requirements

    (1)       A person meets the early intervention requirements if:

    (a)The person:

    (i)     has one or more identified intellectual, cognitive, neurological, sensory or physical impairments that are, or are likely to be, permanent; or

    (ii)    has one or more identified impairments that are attributable to a psychiatric condition and are, or are likely to be, permanent; or

    (iii)    is a child who has developmental delay; and

    (b)The CEO is satisfied that provision of early intervention supports for the person is likely to benefit the person by reducing the person’s future needs for supports in relation to disability; and

    (c)The CEO is satisfied that provision of early intervention supports for the person is likely to benefit the person by:

    (i)     mitigating or alleviating the impact of the person’s impairment upon the functional capacity of the person to undertake communication, social interaction, learning, mobility, self‑care or self‑management; or

    (ii)    preventing the deterioration of such functional capacity; or

    (iii)    improving such functional capacity; or

    (iv)   strengthening the sustainability of informal supports available to the person, including through building the capacity of the person’s carer.

    Note:    In certain circumstances, a person with a degenerative condition could meet the early intervention requirements and therefore become a participant.

    (2)       The CEO is taken to be satisfied as mentioned in paragraphs (1)(b) and (c) if one or more of the person’s impairments are prescribed by the National Disability Insurance Scheme rules for the purposes of this subsection.

    (3)       Despite subsections (1) and (2), the person does not meet the early intervention requirements if the CEO is satisfied that early intervention support for the person is not most appropriately funded or provided through the National Disability Insurance Scheme, and is more appropriately funded or provided through other general systems of service delivery or support services offered by a person, agency or body, or through systems of service delivery or support services offered:

    (a)As part of a universal service obligation; or

    (b)In accordance with reasonable adjustments required under a law dealing with discrimination on the basis of disability.

14. The relevant Operational Guideline is the Operational Guideline – Access to the NDIS (the Access Operational Guideline); chapter 8 of the Access Operational Guideline is titled The Disability Requirements and chapter 9 is titled The Early Intervention Requirements.

    EVIDENCE

15. The evidence before the Tribunal comprises:

    ·Mr McFarlane’s written statements and his oral evidence on 21 February 2018;

    ·evidence from medical practitioners who have examined and/or treated Mr McFarlane;

    ·evidence from an occupational therapist; and

    ·expert medical evidence about fibromyalgia.

    The evidence of Mr McFarlane

16. Mr McFarlane is 36 years old and married with three children. He resides in the Newcastle area of New South Wales (NSW).

17. Mr McFarlane has lived with his ‘disability of fibromyalgia and chronic pain since 2008’.[2] In a written statement dated 20 December 2017, Mr McFarlane described his circumstances:

    I am suffering from chronic pain syndrome, fibromyalgia, tennis elbow, bilateral lateral epicondytis and De Quervain’s tensovitis. I have been dealing with these conditions for a long time. I am in extreme pain throughout my body and this makes it unbearable to perform most daily activities of everyday life.

    I currently have these conditions managed by my general practitioner, Dr Samuel Nosike. I understand from talking with him that I will have to deal with these conditions now for life. I believe I have tried all the treatments available to me. I am now taking medications daily to deal with the pain. I do not understand there to be any remedy for my impairments…

    The pain I am in makes it difficult for me to have any regular daily routine. I am in constant pain all the time, from when I wake up until when I go to sleep. The pain affects my ability to sleep. I am lucky if I get five hours of sleep each night, and on a bad night will only get two hours. This affects what I can do the next day. It is difficult to say what I would do on a typical day but I might watch television, do something on the computer or lay down after stretching. I also drive my children to and from school, this is only because I have no other option and I believe it makes the pain worse.[3]

    [2] Exhibit A8.

    [3] Exhibit A1.

18. Both in his written and oral evidence, Mr McFarlane explained how his conditions affect his ability to undertake activities of daily living such as dressing and showering, completing household chores and gardening, cooking and preparing food, and managing finances. He is reliant on his wife to assist him with these activities and to care for him. 

19. Mr McFarlane’s evidence is that he uses a wheelchair to mobilise outside his home. He is pushed in the wheelchair ‘ninety per cent of the time’ because the pain is ‘too great’ for him to push himself. He wears a ‘back brace, wrist brace, and elbow brace’ when he leaves the house to provide support and relieve pain.[4]

    [4] Exhibit A1.

20. At the Tribunal hearing on 21 February 2018, Mr McFarlane presented in a wheelchair wearing protective braces and his arms bandaged. He said that his conditions cause difficulties in all aspects of his life including problems with movement as well as an inability to concentrate and memory loss. He said his constant pain causes irritability and mood swings. He expressed frustration that, due to his conditions, he has not been able to work as a chef since November 2016. This frustration appeared to relate both to his enjoyment of cooking and his inability to provide financially for his family. Mr McFarlane said he no longer participates in social activities such as fishing, sport and church, and relies on his brother-in-law for social activities such as going to the movies. He stated that, in his view, he had undertaken all possible treatment options for his fibromyalgia and chronic pain. He acknowledged that hydrotherapy had previously assisted him but he could not currently afford this treatment.

21. Mr McFarlane is in receipt of disability support pension. His wife receives carer payment and carer allowance, and undertakes part-time employment to assist their family’s financial situation.

22. Mr McFarlane is seeking access to the NDIS for supports to assist him to self-care, self-manage and socialise.

    Evidence from Mr McFarlane’s medical practitioners

23. The following sets out the evidence by medical practitioners who have examined and/or treated Mr McFarlane.

    Dr Philip McManis

24. Dr McManis (neurologist) reviewed Mr McFarlane when he was 16 years old. In a report dated 16 September 1999, Dr McManis diagnosed Mr McFarlane with ‘muscular or musculoskeletal low back pain’ and recommended physiotherapy to improve the strength and flexibility of his lumbar spine.[5]

    [5] Exhibit ST-ST5, page 10.

    Dr Christo Brits

25. Surgery consultation notes written by Dr Brits (general practitioner) show he treated Mr McFarlane from 15 July 2009 to 22 May 2014. Mr McFarlane presented for ‘back pain’ from 15 July 2009 to 11 February 2010.[6] Dr Brits referred Mr McFarlane for medical imaging and specialist review, and treated the condition with pain medication and physiotherapy. On 10 June 2010, Dr Brits recorded Mr McFarlane ‘likely’ has fibromyalgia syndrome.[7]

    [6] Exhibit FST-FST9, pages 108-110.

    [7] Exhibit FST-FST9, pages 111-112.

    Dr Elizabeth Reyneke

26. Mr McFarlane was referred to Dr Reyneke (neurologist) who provided written reports dated 25 January 2010 and 10 March 2010. On 10 March 2010, Dr Reyneke reported that her investigations did not show ‘any sign of demyelination or structural abnormalities in either the brain or the spine…[and] nerve conduction studies…were entirely normal’; she concluded there was no evidence of a ‘significant underlying neurological disorder’.[8]

    [8] Exhibit ST-ST10, page 18.

    Dr Samuel Nosike

27. Dr Nosike has been Mr McFarlane’s general practitioner since 2015.

28. In a report dated 2 February 2017, Dr Nosike stated that Mr McFarlane has a ‘long-standing history’ of fibromyalgia and chronic pain syndrome, which has impacted on his activities of daily living and ability to maintain employment.[9] Dr Nosike further noted Mr McFarlane has had multiple interventions including analgesia, steroid injections and physiotherapy.

    [9] Exhibit T-T5, page 16.

29. On 19 October 2017, Dr Nosike opined it is probable that Mr McFarlane’s fibromyalgia ‘is a [c]hronic condition that we would have to manage for the rest of his natural life’.[10] Dr Nosike outlined Mr McFarlane’s support requirements as including modifications to his housing, mobility aids including a walking stick and back brace, community transport and assistance with activities of daily living, household chores and child care support.

    [10] Exhibit ST-ST3, page 5.

30. A patient health summary from Mr McFarlane’s medical centre printed on 8 November 2017 shows Mr McFarlane has taken pain medication regularly since 2009. From December 2016, Mr McFarlane has been medicated for his pain with Tramadol, Lyrica, and Endone and MS Contin (opioid analgesics).

31. In evidence to the Tribunal by telephone on 21 February 2018, Dr Nosike explained the process of diagnosing Mr McFarlane’s fibromyalgia and chronic pain syndrome, and the prescribed treatments he has undergone. Dr Nosike noted Mr McFarlane had tried conventional and neuropathic pain relief and physiotherapy ‘without much joy’, cortisone injections that ‘haven’t made much improvement’ and attended a pain clinic that did not appear to ‘make much difference’. Dr Nosike observed that his role was to manage Mr McFarlane’s pain and trial treatment options rather than cure his fibromyalgia. He opined that Mr McFarlane’s condition was chronic and will not ‘get better and go away’.

32. Following this oral evidence and reviewing Professor Barnsley’s report (summarised in paragraphs 35 to 40 below), Dr Nosike provided a further written report on 22 May 2018. Dr Nosike noted that Mr McFarlane had re-enrolled with the Hunter Integrated Pain Clinic (HIPS) and was accessing a pain psychologist and physiotherapy. Dr Nosike also stated:

    Like Prof Barnsley, I do not believe Jason McFarlane has reached maximum medical improvement and any improvement will be incremental and only over the next few years. However this is coloured by the knowledge that fibromyalgia treatment is often difficult and that even further interventions will not make much major difference to the patient’s overall health.

    Like Prof Barnsley, I also consider his prognosis is generally poor with only a 20-40% chance of improving sufficiently to return to work part-time.[11]

    [11] Exhibit A5.

    Dr Andre Loiselle

33. Dr Loiselle (neurologist) opined in a report dated 30 June 2015 that Mr McFarlane:

    …appears to have a chronic back and lower limb pain and sensory syndrome in the absence of convincing neurological examination abnormalities, and with extensive previous normal imaging. There are similar symptoms in the neck. The likelihood of MS [multiple sclerosis] would seem small.[12]

    [12] Exhibit T-T7, page 20.

34. In a further report on 18 August 2015, Dr Loiselle noted a neurological examination of Mr McFarlane was ‘essentially normal’ and concluded he had ‘chronic pain syndrome, with psychological factors impacting’.[13]  Dr Loiselle recommended Mr McFarlane’s condition be treated with pain medication.

    [13] Exhibit ST-ST11, page 19.

    Associate Professor Les Barnsley

35. Associate Professor Barnsley (consultant rheumatologist and musculoskeletal physician) assessed Mr McFarlane on 13 April 2018 for insurance purposes and provided a report dated 24 April 2018. This report set out Mr McFarlane’s medical history and current symptoms, treatment and function.

36. Based upon Mr McFarlane’s medical history and Associate Professor Barnsley’s clinical findings of multiple tender points, Associate Professor Barnsley concluded Mr McFarlane has ‘significant fibromyalgia although there are somewhat atypical features’.[14] At the hearing on 8 November 2018, Associate Professor Barnsley confirmed Mr McFarlane’s diagnosis of fibromyalgia but noted Mr McFarlane presented with ‘unusual’ features including pins and needles and spasms. Associate Professor Barnsley said these features, which would normally be associated with structural neurological function, were not explained by Mr McFarlane’s neurological investigations.

    [14] Exhibit A7, page 5.

1. Associate Professor Barnsley provided evidence about Mr McFarlane’s current treatment and further potential assessment and treatment options. In his report, Associate Professor Barnsley noted that Mr McFarlane had previously attended HIPS ‘but signed himself out as he felt too anxious to participate in the prolonged group session…his pain has improved somewhat with treatment, but it would appear that this treatment has primarily involved the avoidance of any undue exertion or activity’.[15]

   [15] Exhibit A7, page 3.

2. Associate Professor Barnsley recommended Mr McFarlane should:

   …undergo further multidisciplinary assessment including a physiotherapist, psychologist and exercise physiologist. In particular I believe that he requires the introduction of a graded exercise program and further education as to the non-damaging nature of the pain in fibromyalgia. However…I suspect that it is unlikely that further interventions will make a major difference to Mr McFarlane’s situation.[16]

   [16] Exhibit A7, page 6.

3. He concluded that he does not believe Mr McFarlane has ‘reached maximum medical improvement’ and there is still potential for him to ‘increase his activity to be somewhat less pain-focused’, although any improvement would be gradual over the next 12 to 18 months.[17]

   [17] Exhibit A7, page 6.

4. At the Tribunal hearing, Associate Professor Barnsley reiterated that further treatment was unlikely to change Mr McFarlane’s conditions and, based on the severity and duration of his symptoms and his limited response to medications, he appeared refractory to intervention. In cross-examination, Associate Professor Barnsley described the record of prescriptions taken by Mr McFarlane as an ‘impressive list’ of medications. He noted these medications include opioids, which can increase (rather than reduce) a person’s pain experience, cause cognitive impairment and affect a person’s mood, motivation and memory. Associate Professor Barnsley confirmed that Mr McFarlane described experiencing all of these symptoms.

   Dr Andrew Powell

5. Mr McFarlane was referred by Dr Nosike to HIPS in December 2016.

6. Dr Powell (specialist pain management physician at HIPS) reported on 2 March 2018 that Mr McFarlane attended HIPS for a pain education seminar in April 2017, and attended individual physiotherapy and psychology appointments at HIPS on 16 August 2017. Dr Powell recorded that this ‘review noted [Mr McFarlane’s] passive approach to pain management, prolonged resting, depression, anxiety and medications as possible perpetuators to his pain experience’.[18] Dr Powell wrote that, when HIPS contacted Mr McFarlane by telephone on 4 October 2017, Mr McFarlane reported an ‘increase of 30% in his activity, improving lower limb strength and more social connections’ and ‘felt he no longer needed HIPS support’.[19]

   [18] Exhibit A5.

   [19] Exhibit A5.

   Other medical reports

7. I also have had regard to multiple medical imaging reports and reports from radiologists showing Mr McFarlane undergoing guided injections for pain relief in relation to his elbow and wrist; physiotherapist reports from 2012 and 2016; and a report from a dietician in 2015 who undertook a review of Mr McFarlane’s diet.

   Evidence – occupational therapist

8. Ms Aimee Prosser, an occupational therapist, assessed Mr McFarlane in his home on 8 August 2018 and provided a written report dated 10 August 2018.

9. In her written report, Ms Prosser outlined the purpose of her assessment was to review Mr McFarlane’s current functional status to assist in determining his eligibility for acceptance to the NDIS. Ms Prosser reported Mr McFarlane’s functional assessment in relation to his physical function, transfer and mobility skills and activities of daily living. She also assessed Mr McFarlane’s psycho-social function and recommended supports to assist him.

10. Ms Prosser observed that Mr McFarlane mobilised with a ‘stiff legged gait and reduced active range of movement at his bilateral hips, knees and ankles’; he reported using a single walking stick with quad base to mobilise approximately 50 metres before he needed to sit.[20] Ms Prosser observed that Mr McFarlane was unable to stand unsupported or reach to the floor or above his head, and regularly altered his position while seated. Ms Prosser reported that Mr McFarlane told her he is independent with transfers (although this can take an extended period of time) and is able to drive an automatic motor vehicle (with some modifications) for 10 to 15 minutes. Ms Prosser’s report explained that Mr McFarlane’s physical function impacted on his activities of daily living and outlined the assistance he receives from his wife for showering, dressing, grooming, personal hygiene, eating and drinking. Ms Prosser recorded that Mr McFarlane’s wife undertakes all aspects of meal preparation, housework, laundry, shopping and banking.

    [20] Exhibit A10, page 3.

11. In terms of psycho-social assessment, Ms Prosser noted Mr McFarlane and his wife reported Mr McFarlane had ‘issues with perseveration’ and repeating himself when communicating and socialising.[21] He also experienced ‘reduced concentration and attention and poor short-term memory’ and ‘increased feelings of frustration and anger due to the ongoing losses to his function and mobility’.[22]

    Evidence about fibromyalgia

    [21] Exhibit A10, page 6.

    [22] Exhibit A10, page 6.

    Professor Ian Cameron

12. At the request of the NDIA, Professor Cameron (consultant physician in rehabilitation medicine) provided two written reports about fibromyalgia dated 3 January 2018 and 18 January 2018. These reports were based on a review of the scientific literature and I note Professor Cameron has not seen or examined Mr McFarlane. At the Tribunal hearing on 9 November 2018, Professor Cameron said he relied on the conclusions in his report dated 18 January 2018 and this is the report I refer to below.

13. Professor Cameron described in his report the central component of fibromyalgia as ‘generalised pain’ and contended that it is ‘open to conjecture’ as to ‘whether long-standing generalised pain is seen as an impairment’.[23] Although Professor Cameron stated that pain is a ‘sensory function’, he referred to a study by Fitzcharles et al that found it is ‘not possible to detect [tissue] damage to the body in people with fibromyalgia’ and, on this basis, he concluded that ‘there is no impairment’.[24]

    [23] Exhibit R2, pages 1-2.

    [24] Exhibit R2, page 2.

14. In his report, Professor Cameron outlined available treatment options for fibromyalgia. He noted there is strong evidence of effectiveness of aerobic or strengthening exercise to treat fibromyalgia, and weak evidence supporting the use of non-pharmacological treatments and pharmacological treatments. In relation to treatment options and whether fibromyalgia could be a ‘permanent’ condition, he made the following conclusions:

    Fibromyalgia cannot be regarded as permanent because it is responsive to treatment…and is likely to vary in intensity at different times due to a variety of factors…

    Fibromyalgia cannot be considered permanent in the same way as many health conditions, because the underlying impairment is pain and this varies considerably over time and in response to treatments and life situations.[25]

    [25] Exhibit R2, page 3.

15. At the Tribunal hearing, Professor Cameron reiterated that he does not view fibromyalgia as an ‘impairment’ because abnormal pain creates a change in the body’s ‘function but not structure’. In terms of available treatment for fibromyalgia, he also contended that a person with a chronic pain disorder such as fibromyalgia requires the support of health services to self-manage their condition, rather than assistance from other people to undertake their activities of daily living.

    Professor Geoffrey Littlejohn

16. Professor Littlejohn (rheumatologist) provided an expert opinion on fibromyalgia in a report dated 20 March 2018 following a request from Mr McFarlane’s legal representative and gave oral evidence on 8 November 2018. Professor Littlejohn has not examined Mr McFarlane.

17. In his report, Professor Littlejohn stated fibromyalgia is ‘characterised by the presence of widespread muscular and soft tissue pain and tenderness’.[26] He noted the condition of fibromyalgia is diagnosed by using a ‘compilation of common and characteristic clinical features’; these criteria ‘require the patient to have generalised pain and widespread tenderness reflecting the altered neurophysiology of the pain related nervous system that lies behind these critical clinical features’.[27]

    [26] Exhibit A4, page 2.

    [27] Exhibit A4, page 3.

18. Professor Littlejohn explained that fibromyalgia is diagnosed through a system of scoring:

    …firstly the number of painful or tender regions (widespread pain index), and secondly the degree of unrefreshed sleep, fatigue and cognitive symptoms, as well as the recent presence of headaches, lower abdominal pain or cramps and depression.[28]

    [28] Exhibit A4, page 3.

19. He explained these two items provide a score from 0 to 31 and a diagnosis of fibromyalgia is made when the score is at or above 12. Professor Littlejohn described fibromyalgia as a spectrum disorder, which means patients with fibromyalgia may have variability in their symptoms and may move in and out of ‘criteria diagnosis’.[29]

    [29] Exhibit A4, page 4.

20. Both in his report and at the Tribunal hearing, Professor Littlejohn explained that evidence-based treatment options for fibromyalgia include education about the nature of the condition and exercise programs, psychological management strategies, and drugs that modulate various aspects of the pain related nervous system. He noted that early treatment affects better outcomes than treatment initiated later in the course of the condition, and advised the person best placed to determine appropriate treatment may range from the general practitioner through to specialists who understand the diagnostic criteria and management strategies for fibromyalgia. Professor Littlejohn also opined at the hearing that opioid medication can increase a person’s experience of pain.

21. Professor Littlejohn disagreed with Professor Cameron’s view that a person with fibromyalgia would not require support for their lifetime. He described fibromyalgia as a ‘neurophysiological condition’ and explained that a percentage (a minority) of people with severe fibromyalgia are unlikely to have their impairments remedied by current evidence-based treatment and will require lifelong support, although this can only be decided once a person has attempted all treatment options.

    CONSIDERATION

22. In his evidence to the Tribunal on 21 February 2018, Dr Nosike stated that Mr McFarlane’s conditions of lateral epicondylitis (bilateral arms), De Quervain’s tendonitis and right wrist synovitis can be excluded from his application for the NDIS in view of his diagnosis of fibromyalgia. Dr Nosike also accepted that it is difficult to distinguish between the aetiology of Mr McFarlane’s fibromyalgia, which is defined as a generalised pain condition, and his chronic pain syndrome.

23. In view of Dr Nosike’s evidence, I only consider Mr McFarlane’s conditions of fibromyalgia and chronic pain syndrome in relation to the access requirements in sections 24 and 25 of the NDIS Act.

    The disability requirements

24. Subsection 24(1) of the NDIS Act is satisfied if Mr McFarlane meets all five requirements specified in paragraphs 24(1)(a) to (e). I now consider each of these requirements.

    Does Mr McFarlane have a disability within the meaning of paragraph 24(1)(a)?

25. Consistent with Mortimer J’s decision in Mulligan v National Disability Insurance Agency [2015] FCA 544 at [15] to [16], Chapter 8.1 of the Access Operational Guideline includes the following paragraphs:

    For the purposes of becoming a participant in the NDIS the focus of ‘disability’ is on the reduction or loss of an ability to perform an activity which results from an impairment.

    The term ‘impairment’ commonly refers to a loss of, or damage to, a physical, sensory or mental function.

    The narrower definition of ‘disability’ employed by the NDIS seeks to target those people with disability who have a significant impairment to their functional capacity. This functional definition of disability focuses on outcomes for people with disability that are in the most need (Explanatory Statement to the Becoming a Participant Rules).

26. The NDIA contended that Mr McFarlane’s fibromyalgia and chronic pain syndrome are not ‘impairments’ within the meaning of the NDIS Act. Relying on Professor Cameron’s report, the NDIA submitted that fibromyalgia is not an impairment because the ‘experience of pain does not represent “a loss of, or damage to, a physical, sensory or mental function”’.[30]

    [30] Respondent’s Amended Statement of Position dated 24 August 2018, paragraph 4.10.

27. The applicant’s legal representative submitted that Dr Nosike’s evidence shows that Mr McFarlane’s physical impairments cause ‘severe pain that hinders his movements at home and participation in society’ and he has a disability because ‘his physical impairments substantially restrict his ability to function’.[31]

    [31] Applicant’s Amended Statement of Position filed on 10 August 2018, paragraph 15.

28. There is no question that the medical evidence before the Tribunal in relation to Mr McFarlane’s diagnosis of fibromyalgia and chronic pain syndrome – and the medical evidence more generally about fibromyalgia – contained differences in nuance, emphasis and interpretation. There was also a fundamental difference of opinion between Professor Littlejohn and Professor Cameron about what constitutes ‘impairment’ within the meaning of the NDIS Act.

29. The following information set out in a study by Fitzcharles et al was accepted by both Professor Littlejohn and Professor Cameron in their oral evidence to the Tribunal on 8 and 9 November 2018:

    Prejudice and scepticism regarding the validity of FM (fibromyalgia)

    The knowledge that concrete abnormalities have been identified in the nervous system should provide confidence for the healthcare professional that FM is a valid condition and help to dispel the stigmatisation that has previously surrounded this condition. Although the exact cause of FM is unknown, abnormalities in pain processing have been identified at various levels in the peripheral, central, and sympathetic nervous system… Family studies support the concept of some genetic contribution to the expression of FM, although no specific gene has been implicated…

    Although physicians are more comfortable with a biomedical paradigm that prioritises diagnostics, the preponderance of evidence attesting to the validity of FM should provide reassurance…[32] [emphasis added]

    [32] Mary-Ann Fitzcharles, Peter A, Ste-Marie, Don L. Goldenberg, John X. Pereira, Susan Abbey, Manon Choiniere, Gordon Ko, Dwight E. Moulin, Pantelis Panopalis, Johanne Proulx and Yoram Shir, ‘Canadian Pain Society and Canadian Rheumatology Association Recommendations for Rational Care of Persons with Fibromyalgia. A Summary Report’. The Journal of Rheumatology 2013; 40:8, page 1391.

30. I am satisfied that the medical evidence shows Mr McFarlane has been diagnosed with fibromyalgia and chronic pain syndrome, and I find that these conditions affect his physical and mental function. I am also satisfied that Mr McFarlane’s experience of fibromyalgia is consistent with explanation in the study by Fitzcharles et al, in that his condition results in abnormalities in his pain processing. This is supported by Professor Littlejohn’s description of fibromyalgia as a neurophysiological condition.

31. Weighing all of the medical evidence, I find that Mr McFarlane’s fibromyalgia is an impairment that is consistent with the definition in the NDIS Act. I also accept that Mr McFarlane’s fibromyalgia and chronic pain syndrome significantly affects his physical, sensory and mental function; as aptly described by Professor Littlejohn, Mr McFarlane’s disability is the ‘output’ of his impairment. This finding is also sustained by Ms Prosser’s evidence detailing Mr McFarlane’s loss of function in relation to his capacity to mobilise and undertake activities of daily living.

32. I am therefore satisfied that Mr McFarlane’s conditions of fibromyalgia and chronic pain syndrome are a disability within the meaning of this provision.

    Are Mr McFarlane’s impairments permanent within the meaning of paragraph 24(1)(b)?

33. The Participant Rules provide the following guidance in considering when an impairment is permanent or likely to be permanent:

    5.4 An impairment is, or is likely to be, permanent (see paragraph 5.1(b)) only if there are no known, available and appropriate evidence-based clinical, medical or other treatments that would be likely to remedy the impairment.

    5.5 An impairment may be permanent notwithstanding that the severity of its impact on the functional capacity of the person may fluctuate or there are prospects that the severity of the impact of the impairment on the person's functional capacity, including their psychosocial functioning, may improve.

    5.6 An impairment may require medical treatment and review before a determination can be made about whether the impairment is permanent or likely to be permanent. The impairment is, or is likely to be, permanent only if the impairment does not require further medical treatment or review in order for its permanency or likely permanency to be demonstrated (even though the impairment may continue to be treated and reviewed after this has been demonstrated).

    5.7 If an impairment is of a degenerative nature, the impairment is, or is likely to be, permanent if medical or other treatment would not, or would be unlikely to, improve the condition. [emphasis added]

34. Mr McFarlane has undertaken treatment for his fibromyalgia and chronic pain syndrome. Based on the evidence before the Tribunal, I make the following findings of fact:

    ·Since 2009, Mr McFarlane’s treatment for fibromyalgia and chronic pain syndrome has consistently relied on pain medication. He has also periodically engaged with physiotherapy and hydrotherapy.

    ·Mr McFarlane did not actively engage with HIPS in 2017. Dr Nosike’s report on 22 May 2018 indicates he has begun to participate with the HIPS in 2018 but there is no evidence before the Tribunal about whether and how HIPS has assisted Mr McFarlane’s conditions of fibromyalgia and chronic pain syndrome.

    ·Associate Professor Barnsley, Professor Littlejohn and Professor Cameron were consistent in their opinions that:

    othe treatment of fibromyalgia is difficult;

    oexercise programs provide beneficial treatment for fibromyalgia; and

    oopioid medications increase symptoms of chronic pain.

    ·Mr McFarlane is not participating in an exercise program, apart from walking around his house.

    ·Since December 2016, Mr McFarlane has been taking regular and considerable doses of opioid medications.

35. Mr McFarlane made it very clear to the Tribunal that he believes he has participated in all evidence-based clinical and other treatments that could remedy his impairments. This view was also supported by Dr Nosike’s evidence to the Tribunal on 21 February 2018.

36. At the outset, I acknowledge that medical treatment of fibromyalgia is difficult; the evidence shows it involves balancing treatment and care with supporting a person to continue their activities of daily living. Nonetheless, I have the following concerns that arise from the evidence in relation to Mr McFarlane’s prognosis and history of participating in treatment.

37. First, the evidence shows Mr McFarlane has had minimal engagement in multidisciplinary pain assessment and management. In particular, I note that Mr McFarlane’s evidence to the Tribunal about his participation with HIPS (which he also reported to Dr Nosike and Associate Professor Barnsley) is not consistent with Dr Powell’s report dated 2 March 2018; Dr Powell noted that Mr McFarlane decided in October 2017 to not continue at HIPS because he no longer required support. Regarding these contrasting views between Mr McFarlane and Dr Powell, I prefer to place greater weight on Dr Powell’s evidence given his expertise as a specialist pain management physician. Based on the information in Dr PoweIl’s report, I cannot be satisfied that Mr McFarlane properly engaged with HIPS (or any other multidisciplinary assessment and management of his conditions) in or before 2017. I reiterate that Dr Nosike reported on 22 May 2018 Mr McFarlane had recently re-engaged with HIPS but note there is no evidence before the Tribunal regarding any outcomes for Mr McFarlane from this treatment.

1. Related to this, my second concern is the lack of evidence about Mr McFarlane participating in an exercise program that is designed to treat his fibromyalgia and chronic pain syndrome. There are some references to Mr McFarlane participating in hydrotherapy in the past, which he said provided him with some benefit. It may also be that an exercise program comprises part of the treatment Mr McFarlane is receiving at HIPS.

2. My final issue may be contentious but the evidence cannot be ignored. While I accept that Dr Nosike, as Mr McFarlane’s treating medical practitioner is prescribing medications based on a holistic diagnosis and assessment of Mr McFarlane, all three specialists on fibromyalgia (Associate Professor Barnsley, Professor Littlejohn and Professor Cameron) gave evidence to the Tribunal confirming that Mr McFarlane is taking opioid medications that can enhance his experience of pain. The implication from this evidence is that Mr McFarlane’s pain may in fact be exacerbated by the medications that are being prescribed to reduce his pain.

3. I have also considered Professor Littlejohn’s evidence that fibromyalgia is a neurophysiological condition and a small percentage of people diagnosed with fibromyalgia may not have their impairments remedied by treatment. However, I find that this conclusion can only occur once a person has tried all treatment options; in view of my findings in paragraphs 73 to 75 above, I am not satisfied that Mr McFarlane has attempted all treatment options.

4. Overall, I find the medical evidence shows there may be treatments to remedy Mr McFarlane’s impairments of fibromyalgia and chronic pain syndrome. I am not satisfied either of these impairments are permanent within the meaning of paragraph 24(1)(b) of the NDIS Act.

   Do Mr McFarlane’s impairments result in substantially reduced functional capacity to undertake one or more of the following activities: communication, social interaction, learning, mobility, self-care and self-management within the meaning of paragraph 24(1)(c)?

5. To comply with paragraph 24(1)(c) of the NDIS Act, Mr McFarlane must demonstrate that his impairments result in substantially reduced functional capacity to undertake any one of the activities specified in subparagraphs (i) to (vi).

6. Paragraph 5.8 of the Participant Rules provides:

   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.

7. Further guidance is set out in chapter 8.3.1 of the Access Operational Guideline:

   The following information provides further guidance in relation to determining when an impairment results in substantially reduced functional capacity:

   By itself, reliance on commonly used items will not result in a substantially reduced functional capacity to participate effectively or completely in an activity. Commonly used items include glasses, walking sticks, non-slip bath mats, bathroom grab rails, stair rails, age appropriate child safety locks, simple adapted kitchen utensils and dressing aids.

   In considering the role played by assistive technology, home modifications and equipment, the NDIA will consider specific needs arising from the prospective participant's impairment, and whether those needs are met (or need to be met) through the use of specialist disability aids and/or equipment.

   Such items would generally be specifically designed to assist in increasing the functional capacity and participation of people with disability and be formally prescribed by a medical practitioner, specialist clinician or allied health professional such as an occupational therapist, physiotherapist or speech therapist.

   When considering whether a person requires assistance from others to participate or perform tasks associated with an activity, the NDIA will have regard to whether a person's need for assistance is consistent with normal expectations of a person of a similar age.

   …

   A person will be considered to be unable to participate effectively or completely in an activity if they cannot safely complete one or more of the tasks required to participate in an acceptable period of time. Undertaking a task more slowly or differently to others will not necessarily mean a person cannot participate effectively or completely in an activity.

   When considering whether a fluctuating or episodic impairment results in substantially reduced functional capacity to undertake relevant activities, the NDIA will consider the impact on the person's ability to function in the periods between acute episodes. [emphasis in original]

8. I accept the reports of Ms Prosser and Dr Nosike, as well as the written statements and oral evidence of Mr McFarlane, describe in detail Mr McFarlane’s substantial reduction in functional capacity in the areas of mobility and self-care.

9. Ms Prosser’s psycho-social assessment of Mr McFarlane also included that he reported problems with communication, reduced concentration and poor short-term memory; however, there is no evidence of Mr McFarlane undergoing a formal cognitive assessment. In view of the limited evidence before the Tribunal, I cannot be satisfied that Mr McFarlane experiences substantially reduced functional capacity in relation to communication, social interaction, learning or self-management.

10. In relation to the activities set out in paragraph 24(1)(c) of the NDIS Act, I find that Mr McFarlane’s impairments result in substantially reduced functional capacity to undertake mobility and self-care.

    Do Mr McFarlane’s impairments affect his capacity for social or economic participation within the meaning of paragraph 24(1)(d)?

11. The evidence of Dr Nosike clearly shows Mr McFarlane has been unable to participate in employment since November 2016 due to his conditions of fibromyalgia and chronic pain syndrome. The evidence of Mr McFarlane and Ms Prosser also demonstrates that Mr McFarlane’s conditions affect his capacity to engage in social activities.

12. I am satisfied that Mr McFarlane meets the requirement in paragraph 24(1)(d) of the NDIS Act.

    Is Mr McFarlane likely to require support under the NDIS for his lifetime within the meaning of paragraph 24(1)(e)?

13. Chapter 8.5 of the Access Operational Guideline states the following:

    8.5 When is a person likely to require support under the NDIS for their lifetime?

    The NDIA must also be satisfied that the prospective participant is likely to require support under the NDIS for the rest of their lifetime (section 24(1)(e)).

    If an impairment varies in intensity (for example, because the impairment is of a chronic episodic nature) the person may still be assessed as likely to require support under the NDIS for the person's lifetime, despite the variation (section 24(2)).

    The NDIA is required to consider a prospective participant’s overall circumstances and conclude that the person will require support under the NDIS for their lifetime. 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 (Mulligan and NDIA [2015] AATA 974 at [153]).

    For example, if a person's support needs arise from a health condition and are most appropriately provided through another service system (i.e. the health system) then the person will not require support under the NDIS for their lifetime. Rather, the person will require support under the health system.

    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 (see Mulligan and NDIA [2014] AATA 374 at [53] and Mulligan and NDIA [2015] AATA 974 at [146]–[150]).

14. As set out in paragraph 77, I have not found that Mr McFarlane’s conditions of fibromyalgia and chronic pain syndrome are permanent because I find there are further treatments that may remedy his impairments.

15. I have also noted at paragraph 72, based on the medical evidence before the Tribunal, the difficulties associated with treating fibromyalgia and chronic pain syndrome. Professor Cameron’s evidence clearly stated that fibromyalgia and chronic pain syndrome are medical conditions that are most appropriately treated through the health system. In the absence of any evidence to the contrary, I accept Professor Cameron’s evidence.

16. This means that I cannot find that Mr McFarlane will require assistance under the NDIS for his lifetime. Therefore, he does not meet the requirement of paragraph 24(1)(e) of the NDIS Act.

    The early intervention requirements

17. The early intervention requirements are set out in section 25 of the NDIS Act. Chapter 9 of the Access Operational Guideline explains the purposes of the early intervention requirements as follows:

    Early intervention support is available to both children and adults who meet the early intervention requirements. The intention of early intervention is to alleviate the impact of a person’s impairment upon their functional capacity by providing support at the earliest possible stage. Early intervention support is also intended to benefit a person by reducing their future needs for supports.

18. I now consider whether Mr McFarlane meets the early intervention requirements.

    Does Mr McFarlane have a permanent impairment as set out in paragraph 25(1)(a)?

19. As set out in paragraph 77 of my reasons, I am not satisfied that Mr McFarlane’s conditions of fibromyalgia and chronic pain syndrome are permanent. It follows that I find the requirement in paragraph 25(1)(a) of the NDIS Act is not met.

    Will the provision of early intervention support benefit Mr McFarlane as provided in paragraphs 25(1)(b) and (c)?

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

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

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

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

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

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

22. The Access Operational Guideline at paragraph 9.3 states:

    9.3 Determining whether early intervention supports are likely to benefit the person

    The NDIA must be satisfied that the provision of early intervention supports (except for children with developmental delay) is likely to benefit the prospective participant by:

    ·     reducing the person's future needs for supports in relation to disability (section 25(1)(b)); and

    ·     achieving one or more of the following four outcomes:

    (i)     mitigating or alleviating the impact of the person's impairment upon the functional capacity of the person to undertake one or more activities (section 25(1)(c)(i)); or

    (ii)    preventing the deterioration of such functional capacity (section 25(1)(c)(ii));

    (iii)    improving such functional capacity (section 25(1)(c)(iii)); or

    (iv)   strengthening the sustainability of informal supports available to the person, including through building the capacity of the person's carer (section 25(1)(c)(iv)).

    When considering whether the provision of early intervention supports is likely to benefit the person, the NDIA should consider:

    ·     the likely trajectory and impact of the person's impairment over time (rule 6.9(a) of the Becoming a Participant Rules); and

    ·     the potential benefits of early intervention on the impact of the impairment on the person's functional capacity and in reducing their future needs for supports (rule 6.9(b) of the Becoming a Participant Rules); and

    ·     evidence from a range of sources, such as information provided by the prospective participant or their family members or carers. The NDIA may also in some cases seek expert opinion (rule 6.9(c)) of the Becoming a Participant Rules).

    When considering if a person is likely to benefit from early intervention supports, the NDIA may consider factors such as the time elapsed since the onset or diagnosis of the disability and whether there has been a recent, or impending, significant change in the person's impairment or disability.

23. There is no medical evidence before the Tribunal concerning potential benefits of early intervention on the impact of Mr McFarlane’s impairments on his functional capacity and reducing his future needs for supports. I find that there is insufficient evidence to be satisfied that early intervention supports will be likely to benefit Mr McFarlane in the ways specified in paragraphs 25(1)(b) and (c) of the NDIS Act.

    Is early intervention support most appropriately funded or provided through the NDIS in accordance with subsection 25(3)?

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

25. As set out in paragraph 88, I accept that Mr McFarlane’s impairments of fibromyalgia and chronic pain syndrome are health conditions that do not satisfy the disability requirements under the Act.

26. Accordingly, I find that Mr McFarlane does not fulfil the early intervention requirements to enable him to become a participant in the NDIS.

    CONCLUSION

27. As I am satisfied that Mr McFarlane does not meet access criteria in either section 24 or section 25 of the NDIS Act, I find the internal review decision made on 21 June 2017 is correct.

    DECISION

28. The decision under review is affirmed.

I certify that the preceding 101 (one hundred and one) paragraphs are a true copy of the reasons for the decision herein of Dr L Bygrave, Member

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

Associate

Dated: 17 December 2018

Date(s) of hearing:	21 February 2018; 8 & 9 November 2018
Solicitors for the Applicant:	Vaarzon-Morel Solicitors
Solicitors for the Respondent:	Sparke Helmore Lawyers