Mifsud and National Disability Insurance Agency
[2023] AATA 2484
•11 August 2023
Mifsud and National Disability Insurance Agency [2023] AATA 2484 (11 August 2023)
Division: NATIONAL DISABILITY INSURANCE SCHEME DIVISION
File Number(s): 2020/5113
Re:Josephine Mifsud
APPLICANT
AndNational Disability Insurance Agency
RESPONDENT
DECISION
Tribunal:Deputy President Antoinette Younes
Date:11 August 2023
Place:Sydney
The Tribunal affirms the decision under review.
.................................[SGD].......................................
Deputy President Antoinette Younes
CATCHWORDS
NATIONAL DISABILITY INSURANCE SCHEME – access criteria – disability requirements – fibromyalgia – osteoarthritis – lumbar disk prolapse – chronic pain – whether the impairments are, or likely to be, permanent – whether the impairments result in substantially reduced functional capacity – whether the Applicant is likely to require support under the scheme – decision under review affirmed
LEGISLATION
Administrative Appeals Tribunal Act 1975 (Cth)
National Disability Insurance Scheme Act 2013 (Cth)
National Disability Insurance Scheme (Becoming a Participant) Rules 2016 (Cth)
CASES
Mulligan v National Disability Insurance Agency (2015) 233 FCR 201
National Disability Insurance Scheme Agency v Davis [2022] FCA 1002
Re Drake and Minister for Immigration and Ethnic Affairs (No 2) [1979] AATA 179
SECONDARY MATERIALS
National Disability Insurance Agency, Our Guidelines – Becoming a participant – Applying to the NDIS (Web Page) FOR DECISION
Deputy President Antoinette Younes
11 August 2023
BACKGROUND
On 21 August 2020, the Applicant lodged her application with the Tribunal seeking review of a decision of a delegate of the CEO of the National Disability Insurance Agency (the Respondent) dated 10 August 2020. That decision determined that the Applicant did not satisfy the requirements for access to the National Disability Insurance Scheme (the Scheme or NDIS) set out in sections 22 to 25 of the National Disability Insurance Scheme Act 2013 (Cth) (the Act). Specifically, the Applicant was found not to satisfy ss 24 and 25 of the Act.
In the Applicant’s access application, Dr Jun Wang, her General Practitioner (GP), listed the Applicant’s primary disability as fibromyalgia. The Applicant requested assistance for lawn mowing, garden maintenance, house cleaning, and meal preparation.
LEGISLATION
In order to become a participant in the NDIS, the Applicant must satisfy the access criteria set out in subsection 21(1) of the Act, as follows:
(1)A person meets the access criteria if:
(a) the CEO is satisfied that the person meets the age requirements (see section 22); and
(b) the CEO is satisfied that, at the time of considering the request, the person meets the residence requirements (see section 23); and
(c) the CEO is satisfied that, at the time of considering the request:
(i)the person meets the disability requirements (see section 24); or
(ii)the person meets the early intervention requirements (see section 25).
There is no dispute that the Applicant satisfies the age requirements and the residence requirements. The Applicant will meet the access criteria if she satisfies either s 24 (disability requirements) or s 25 (early intervention requirements).
Section 24 of the Act provides as follows:
(1)A person meets the disability requirements if:
(a) the person has a disability that is attributable to one or more intellectual, cognitive, neurological, sensory or physical impairments or the person has one or more impairments to which a psychosocial disability is attributable; and
(b) the impairment or impairments are, or are likely to be, permanent; and
(c) the impairment or impairments result in substantially reduced functional capacity to undertake one or more of the following activities:
(i)communication;
(ii)social interaction;
(iii)learning;
(iv)mobility;
(v)self-care;
(vi)self-management; and
(d) the impairment or impairments affect the person’s capacity for social or economic participation; and
(e) the person is likely to require support under the National Disability Insurance Scheme for the person’s lifetime.
(2)For the purposes of subsection (1), an impairment or impairments that vary in intensity may be permanent, and the person is likely to require support under the National Disability Insurance Scheme for the person’s lifetime, despite the variation.
Section 25 of the Act concerns the early intervention requirements.
There is no dispute that the Applicant meets the requirement that she has a disability that is attributable to physical impairments (s 24(1)(a)), and the requirement that the impairments affect her capacity for social or economic participation (s 24(1)(d)).
The Respondent however contends that the Applicant does not satisfy the balance of the disability requirements (ss 24(1)(b), (c) and (e)).
The Minister may, under subsection 209(1) of the Act, make rules prescribing matters. The rules relevant to this matter are the National Disability Insurance Scheme (Becoming a Participant) Rules 2016 (Cth) (the Access Rules), which form part of the legislation.
The NDIS Operational Guidelines also assist in making decisions in accordance with the Act. Operational Guidelines represent government policy and should be applied by the Tribunal unless there is good reason not to do so.[1] The relevant Operational Guideline is Our Guidelines – Becoming a participant – Applying to the NDIS (Operational Guideline).[2]
[1] Re Drake and Minister for Immigration and Ethnic Affairs (No 2)[1979] AATA 179.
[2] National Disability Insurance Agency, Our Guidelines – Becoming a participant – Applying to the NDIS, (Web Page) <>
The following relevant material is before the Tribunal:
(a)Respondent’s Statement of Facts, Issues, and Contentions (SOFIC), dated 14 February 2023;
(b)Report of Dr Nancy Jia, GP, dated 21 March 2023;
(c)Consolidated hearing bundle, containing the Application for Review, Internal Review outcome, and various clinical reports, as discussed below.
The above documents are marked Exhibits 1-4.
Dr Nancy Jia, GP, and Mr Glen Dwyer, Occupational Therapist (OT) gave evidence during the hearing.
ISSUES
The Respondent contends that the decision under review should be affirmed, as the Applicant does not satisfy ss 24(1)(b), (c) and (e)) or s 25 of the Act.
Applicant’s Evidence
In her Statement, the Applicant indicated that:
“My disabilities cause me severe and chronic pain. I feel pain all over my body from morning to night. Most nights the pain is so severe it keeps me from sleeping. I have always prided myself on being able to be independent and take care of my own life, however I have realized that this is no longer sustainable. I struggle with most daily tasks, such as cleaning, cooking, home maintenance, and shopping. I often have to leave dishes in the sink for days on end because I physically cannot wash them up. Bigger tasks such as vacuuming, mopping and garden maintenance are impossible for me. I try my best to keep my house clean and tidy, but my pain and weakness makes this an impossible task. Achieving even the smallest of tasks leaves me in unimaginable pain and fatigue. This makes me feel hopeless and very depressed.
The way I describe my pain is aching, numbness, and stiffness all over my body. My fibromyalgia and osteoarthritis cause me extreme pain and discomfort. The venous insufficiency I have causes me pain, itching, weakness and swelling in my legs. I have had many falls due to this condition. I feel scared to complete tasks around the house in case I fall and hurt myself and no one can come and assist me. I do not have a good range of motion or stability in my legs. Even getting out of bed in the morning and placing my feet on the floor causes me pain.
I spend most days at home and I do not access the community much. Sometimes my niece takes me out for coffee and I have some friends in my local community that I like to catch up with. At home I use a shower chair and take my time with my self-care because I am afraid of falling. I find it difficult to lift my arms above my head due to pain and limited movement. I find difficulty putting socks and shoes on.
When I access the community I often have to take breaks as I can only walk for 10 minutes before having to sit down.
When I was diagnosed with venous insufficiency I was advised by Dr Freeman to try compression stockings. I have been wearing compression stockings for over a year now and have not found them to be effective at all in treating my condition. I have not noticed any improvement or reduction in my pain and discomfort and there has been no improvement in my range of motion or strength in my legs. Venous insufficiency substantially reduces my functional capacity and the use of compression stockings does not alleviate the symptoms of this disability. This condition is permanent and I will have it for the rest of my life. The use of compression stockings will not remedy this condition.
If I am granted access to the NDIS I will be able to maintain my house and garden and feel safer in my home. My feelings of depression and hopelessness will alleviate. I will feel more independent and in less pain. If I am not granted access to the NDIS then I will continue to struggle every day. My independence will decrease even further and I will experience severe pain and fatigue from trying to complete everyday tasks. I fear that I will fall and really hurt myself if I continue to live unsupported”.[3]
[3] H36, 188-189, Ex 4.
In oral evidence, the Applicant stated:
“I’m in a lot of pain everywhere, all day. Even when I’m in bed. I – I can’t sleep. I take painkillers. They don’t help. I rub things on me. I have fibromyalgia. I have osteoarthritis. I have – my legs – I can’t even get out of bed in the morning. I – I – I can’t even role in bed, let alone get out of bed. Even at night, sometimes when I have to go to the bathroom, I really have to say, ‘I need to get up,’ because if I don’t get up, well, obviously I’m going to have an accident, but that’s hard even to get up. I – I – lot of – lot of things I can’t do anymore, and I’m much – I can’t – I can’t stand up for too long. I can’t sit down for too long. I’m always in pain. I’m always in tears. I’m so depressed with all these problems I have, and I just want some help.
TRIBUNAL: And what are you asking for in terms of help? Do you know what you’re asking for?
APPLICANT: Whatever help I can get, it would be much appreciated, whatever they can do for me. I can’t, like, do – scrub or anything, do the bathrooms anymore. I can vacuum but it’s hard for me to do. I try and take shortcuts but that’s even harder. Some days I can’t even get out of bed because my back – I have back problems that it opens up. I can – I can’t walk. I need help with the yard. I can’t do the yard anymore. I just need some help, whatever help I can get. I – I just say thank you and I’m appreciative, whatever they can give me.”[4]
[4] Transcript Day 1, 6-7 [40]-[45].
The Applicant gave evidence that she would like assistance from the NDIS in relation to meals because she cannot stand up to cook and does not have the finances to eat healthy foods. She relies on tinned and packaged foods. She could not recall if she had contacted Meals on Wheels.[5] She stated she can walk for five to ten minutes, then she needs to sit down. She expressed fear of falling as she had fallen in the past.[6] She indicated that she cannot “put [her] feet down of a morning, they’re so bad. [She] can’t even go from [her] bed to the ensuite, which is two steps, without – in pain, and … [she] grab[s] on”.[7] She uses a walking stick around the house, but is too embarrassed to do so outside.[8] She does her own laundry.[9] She has hand-rails at different places around her house installed by a disability service.[10] She gave evidence that she cannot use a vacuum cleaner and does limited floor washing. She takes the garbage out with great difficulty and attends to personal hygiene with pain and difficulty. She pays her bills when she goes to the shops or to the doctor, otherwise she pays her bills via telephone. She gets limited assistance with gardening and lawn mowing.[11]
[5] Transcript Day 1, 13 [30]-[45].
[6] Transcript Day 1, 17 [30].
[7] Transcript Day 1, 18 [10].
[8] Transcript Day 1, 19 [15]-[25].
[9] Transcript Day 1, 21 [10].
[10] Transcript Day 1, 21 [40]-[45].
[11] Transcript Day 1, 22 [5]-[40].
Counsel for the Respondent asked the Applicant, “in terms of when you do go out, you go to church, do you?” The Applicant stated:
“…when I go to church, I go with my niece. They take me to church. When they go, they take me to church. But everything else – they don’t live with me. They live far away from me and they have – everyone has got their own problems, and it’s a big family with kids and everything, so they’re – they’re not there for me, but I like to go to church with my family. Apart from that, I – I don’t go anywhere, just the shops and medical and, you know, doctors and tests and – or whatever I have to – to go”.[12]
[12] Transcript Day 1, 19 [30].
Clinical evidence
The Respondent contended that the clinical evidence before the Tribunal does not support a finding that the Applicant meets the access criteria.
Dr Eric Farmer
In a letter, Dr Eric Farmer of Campbelltown Vascular Laboratory reported on the Applicant’s Right Lower Limb Venous Duplex Study on 27 May 2019. Dr Farmer found incompetence in the calf which relates to inter-saphenous varices, but “no significant deep venous incompetence detected...[n]o incompetent perforators detected”.[13]
[13] Hearing Bundle, 42, Ex 4.
Dr Farmer also reported on a Left Venous Duplex Scan on 24 October 2019. The results of that study indicated incompetent lateral calf perforator and that the small saphenous and deep veins are competent.[14]
[14] Hearing Bundle, 54, Ex 4
Dr Jun Wang
The Applicant’s GP, Dr Jun Wang, completed the Applicant’s Access Request Form on 12 July 2019.[15] Dr Wang noted that at that stage, he had treated the Applicant for two years, and that her primary disability was fibromyalgia, which was being treated with analgesia and “fibromyalgia medications”.
[15] Hearing Bundle, 43-50, Ex 4.
In response to the question as to whether there was any other treatment that was likely to remedy the impairment, Dr Wang noted physiotherapy and rheumatologist review.
Dr Wang observed that the Applicant did not require assistance to mobilise because of her disability. Similarly, Dr Wang did not consider that the Applicant required assistance with communication, social interaction, learning or self-management. However, he did consider that the Applicant required assistance from another person with self-care with respect to meal preparation and taking care of her lawn and garden, as well as assistance in cleaning her house.
Dr Wang referred the Applicant to Dr Loretta Rozario, Rheumatologist, for investigations relating to the Applicant’s “numerous musculoskeletal complaints”.
In a letter dated 7 April 2020, Dr Wang noted that the Applicant had been suffering from significant chronic pain in both knees, legs, ankles, feet, wrists, elbows and shoulders.[16] He further observed that the Applicant had low back pain and left breast pain. Dr Wang noted that the Applicant had difficulty walking, she needed to use a walking stick, she had difficulty getting in and out of bed, and had poor quality sleep. He states that the pain has a significant impact on the quality of the Applicant’s life.
[16] Hearing Bundle, 60, Ex 4.
Dr Wang provided a further letter dated 22 May 2020, reiterating his earlier remarks.[17]
[17] Hearing Bundle, 61, Ex 4.
Dr Loretta Rozario
In her report dated 30 October 2019, Dr Rozario observed the results of the Doppler study. The Doppler study revealed the presence of osteoarthritis in the cervical spine at C5/C6, L3/4 and L4/5 as well as Achilles tendinitis and plantar fasciitis.[18] Dr Rozario recommended review by a vascular surgeon for varicose veins and incompetent perforators and Panadol Osteo for osteoarthritis and plantar fasciitis, which was said to be causing the Applicant musculoskeletal pain.
[18] Hearing Bundle, 55, Ex 4.
Dr Rozario noted that the Applicant was very keen to get support from the NDIS for “appropriate meals at a low cost and for help with lawn mowing”. Dr Rozario noted her advice to the Applicant that her symptoms are due to degenerative joint disease along with Achilles tendinitis and plantar fasciitis. Dr Rozario observed that she had not made any further appointments to review the Applicant.
In a report dated 28 May 2020, Dr Rozario noted that she had reviewed the Applicant. The Applicant asked Dr Rozario if her condition is permanent, to which Dr Rozario answered in the affirmative.[19]
[19] Hearing Bundle, 62, Ex 4.
The Tribunal accepts the Respondent’s position that Achilles tendinitis and plantar fasciitis do not form a part of the present application.
Dr Anthony Freeman
On 16 January 2020, Dr Anthony Freeman, Vascular and Endovascular surgeon, wrote to Dr Wang, noting that the Applicant “is troubled by discomfort, itch and oedema likely in part related to venous insufficiency in both legs”.[20]
[20] Hearing Bundle, 56, Ex 4.
Dr Freeman discussed an initial treatment plan, namely, to trial the Applicant on below the knee Class II compression stockings. Dr Freeman expressed the view that he was reasonably confident that this would provide some relief to the Applicant.
Dr Freeman asked the Applicant to return in three months to check on progress.
Dr Edward Chow
In a letter dated 3 March 2020, Dr Chow, Consultant Physician and Cardiologist, conveyed his support for the Applicant’s NDIS application.[21] He stated that the Applicant was known to have a history of hypertension, mild coronary artery disease, and that she gets shortness of breath with exertion.
[21] Hearing Bundle, 59, Ex 4.
The Tribunal observes that hypertension and coronary artery disease do not form a part of this application, and any attendant impairments and disabilities cannot be considered.
Dr Nancy Jia
Dr Nancy Jia provided a report dated 20 September 2021 in support of the Applicant’s NDIS application.[22]
[22] Hearing Bundle, 187, Ex 4.
Dr Jia noted that the Applicant had previously made an application to the NDIS for access in 2018. At that time, she reportedly suffered from chronic joint pain in her upper limbs, spine and lower limbs due to osteoarthritis and fibromyalgia. Dr Jia considered that since that time, the Applicant’s symptoms had been stable and difficulties with activities of daily living remained. Dr Jia expressed the view that there had been some confusion with regards to the Applicant’s chronic venous insufficiency condition. She observed that this condition compounded her existing symptoms of osteoarthritis, although it was “less important as an individual condition”.
In a subsequent report dated 21 March 2023, Dr Jia noted that the Applicant experiences chronic pain as a symptom of the permanent condition of fibromyalgia and widespread osteoarthritis, both of which cause her “impairments in her everyday living, which are all permanent”. Dr Jia stated that “…[w]ithout NDIS funding and support, Ms Mifsud’s Fibromyalgia and Osteoarthritis will no longer be stabilised, and will deteriorate to the point of becoming entirely reliant on the assistance of others”.[23]
[23] Ex 2.
Dr Jia gave evidence at the hearing. She summarised her clinical engagement with the Applicant as follows:
“I have in her past medical history, so we’ve got tension headache, lateral epicondylitis, right rotator-cuff tear, trigeminal neuralgia, some subacromial bursitis. This is sort of all that I’ve documented in that first year in 2021 that I’ve slowly accumulated…
….Aside from that there is a history of high blood pressure, osteoarthritis, some significant degenerative disease which is also a type of osteoarthritis of her cervical spine, of her lumbar spine. She does also have a goitre, which is a thyroid issue. She’s got some left Eustachian tube dysfunction and an ENT risk and we found that there was a small benign mass, sort of, in that palate area. She fell at some point; a right elbow injury, some infections, (indistinct), some cellulitis, some urinary tract infections, high cholesterol, and then over the last 12 months there was a lot of foot problems. So, there was a calcaneal spur, plantar fasciitis, some Achilles tendon and this – and bursitis, and recently she also had a bit of elevated fasting glucose. She is at that age where we’re trying to do a lot of the cardiovascular risk as well, so trying to prevent a cardiovascular risk from increasing”.[24]
[24] Transcript Day 2, 53, [25]-[45].
Dr Jia discussed the Applicant’s reliance on microwaveable foods. She gave evidence and explained her reasons, including limited resources, for not referring the Applicant to a pain specialist/clinic, or a respiratory physician. Dr Jia expressed her support for the Applicant’s NDIS request.
Counsel for the Respondent asked Dr Jia what conditions are still currently active and causing problems. Dr Jia stated:
“…the main condition that is still active that is causing me the greatest concern is the amount of arthritis she has.
…
So, anyone sort of at the age of about 60 will have a little bit of arthritis, but not – generally not to the extent that we see in [the Applicant]. So, it reflects on – arthritis is a gradual degenerative disease and the extent that she has it does imply that she’s probably been developing it for a little time far before her current age. So, the imaging shows that she’s got the degenerative disease in her neck, which means that when she moves her neck it’s very painful and there’s very – so, there’s a decreased range of motion. The arms, so her shoulders, she’s got right and left shoulder degenerative – it’s degeneration, or arthritis, but also compounding that there’s tendonitis and bursitis as well. Those are a little bit more, I guess, less sort of what you would say, I guess, permanent because you can relieve bursitis and tendonitis with the appropriate physiotherapy but more – but to the point where it’s combined with her joint, her joint degradation, it doesn’t look like there’s ever going to be an actual sort of cure”.[25]
[25] Transcript Day 2, 54, [15]-[35].
Dr Narainraj Kamalaraj
Dr Narainraj Kamalaraj, Rheumatologist, provided a report addressed to the Tribunal, dated 17 February 2022.[26]
[26] Hearing Bundle, 185, Ex 4.
Dr Kamalaraj indicated that he had personally confirmed the diagnosis of fibromyalgia, which although is not a degenerative disorder, it results in significant functional impairment, particularly physically and mentally. Dr Kamalaraj noted that there are no known evidence-based treatments that can provide a remedy (i.e. cure or substantially relieve), rather, they can help reduce symptoms.
Dr Kamalaraj expressed the opinion that fibromyalgia is a poorly understood chronic pain syndrome with very few meaningful treatment strategies, and that the Tribunal should recognise the severe, chronic, progressive debilitating nature of fibromyalgia, particularly in the Applicant’s case. He indicated that the Applicant’s fibromyalgia causes her cognitive disturbance, including memory impairment, concentration difficulties, fatigue and difficulty learning new information.
Dr Kamalaraj considered that the Applicant’s mobility was primarily affected by her fibromyalgia, which was amplifying her chronic lower back pain and her shoulder pain. He believed the pain was limiting her ability to self-groom, dress and clean after attending the bathroom.
Ms Susan Pordage
A report of Ms Susan Pordage, Occupational Therapist dated 9 October 2020 noted that whilst in some instances the Applicant required the assistance of equipment or to adopt a modified technique, she was independent with respect to basic activities of daily living.[27] These activities of daily living included communication, walking for around 100 meters, self-care activities, bathing, toileting and dressing.
[27] Hearing Bundle, 178-181, Ex 4.
Ms Pordage reported that transfers were completed with difficulty due to back stiffness, stating that sometimes the back pain was so severe, that the Applicant can hardly move and can only lie on her back. Ms Pordage noted that this particularly occurred if the Applicant sits for extended periods or on overexertion.
Mr Glen Dwyer
Mr Glen Dwyer, Occupational Therapist prepared a report dated 7 July 2022 at the request of the Respondent.[28]
[28] Hearing Bundle, 190-225, Ex 4.
Mr Dwyer observed the following:
·Medical reports indicate that the Applicant’s conditions are associated with long-term impairment and that “treatment is aimed to reduce the [Applicant’s] symptoms however, is unlikely to have any significant impact on her functional incapacities arising from her medical conditions.” He stated that “[b]ased on review of the medical evidence, [he has] assumed that Ms Mifsud’s functional incapacities arising from her medical conditions are likely to persist without any significant change in the foreseeable future”.[29]
·The Applicant was independent in areas of communication, social interaction, learning activities and self-management.
·Although there are difficulties, particularly in the domains of mobility and self-care, the Applicant described a reasonably active life, with a close group of friends, and using her car to access the community to attend to activities such as grocery shopping.
·The Applicant required the support of handrails in places such as in the toilet, shower and on her sloped driveway. However, she was able to complete essential transfers independently, such as chair transfers, bed transfers, toilet transfers, shower transfers and car transfers.
·The Applicant would experience difficulties with heavier activities, such as those involving frequent bending and lifting, prolonged standing, sitting and the like.
[29] Hearing Bundle, 196, Ex 4.
Mr Dwyer recommended the following pieces of equipment:
(a) Long handle sponge,
(b) Long handle toe washer,
(c) Dressing stick,
(d) Perching stool,
(e) Lightweight dustpan and brush,
(f) Extension to existing handrail in the front yard and grab rail at the post on the porch.[30]
[30] Hearing Bundle, 213, Ex 4.
Mr Dwyer also supported commercial assistance with respect to heavy household cleaning tasks and lawn mowing, as well as garden maintenance. He also suggested that the Applicant keeps a selection of pre-prepared frozen meals for days when she is unable to manage the demands of meal preparation. As at the time of his report the Applicant was 66 years of age, Mr Dwyer noted that the Applicant could be eligible for Aged Care services with respect to meals, house cleaning and gardening.
In oral evidence, Mr Dwyer confirmed that the Applicant presented with an element of pain and slowness to her mobility. He observed that the Applicant was able to walk for about ten minutes.[31]
[31] Transcript Day 1, 31 [10].
In relation to Dr Kamalaraj’s comments in his report dated 17 February 2022 that the Applicant’s “mobility is affected primarily due to her fibromyalgia amplifying her chronic low back pain, and also her shoulder pain which limits her ability to self-groom, dress and clean after attending the bathroom”, Mr Dwyer noted that:
“My – my assessment did give different information, or did result in a different outcome, I suppose, to what was articulated in the report of Dr Kamalaraj, and I – I can’t speak to the full reasons as to why Dr Kamalaraj has perhaps made certain conclusions, but I would make the observation that the other OT report that was provided – and that’s by Susan Pordage – I think concluded with very, very similar information to mine, which there’s no doubt that the overlay of – of – of pain is – is always there to a certain extent, and I can obviously see Ms Mifsud now and she’s probably feeling quite uncomfortable just sitting and – I mean, I would normally invite – in my assessment, that if you need to move around, Ms Mifsud, if you need to stand up and help yourself to relieve some pain symptoms, I – I would recommend that in the assessment. I would recommend it now as well for you. But in terms of Dr Kamalaraj, look, yes, I think that report – look, that report actually stood out from the rest of, I think, the entirety of the evidence, and by that, I mean what conclusions I draw, what – drew, what information I saw elsewhere, the information I obtained from Ms Mifsud as well and my own observations, and then looking at the other OT report was quite consistent. So Dr Kamalaraj’s report was different, I guess, in the reach as to what difficulties were articulated in his report..
Mr NESBETH: Sure. In the report, he also says:
Her fibromyalgia causes cognitive disturbance, including memory impairment, concentration difficulty and fatigue.
Mr DWYER: Yes.
Mr NESBETH: Now, I suspect you would agree with the fatigue point, but in terms of memory impairment and concentration difficulty, did you – did that accord with your observation, or is that in a similar camp to what you were just describing in terms of being different?
Mr DWYER: Look, I think it’s a – it’s a bit like – if you talk about pain, okay, and you just say someone experiences pain, well, that could mean a lot of different things. That could be one out of 10 pain or it could be 10 out of 10 pain, so – and they’re very different things. So I think just generally mentioning that there – I think calling it a cognitive deficit is probably – I wouldn’t describe it that way. That’s almost something the way – language you would use when there are specific cognitive perhaps, you know, impairments related to a head injury or brain injury. I don’t think it’s incorrect to suggest that chronic pain can impact concentration, and when chronic pain is quite strong, it can be distracting, but I think the use of language perhaps in Dr Kamalaraj’s report describing it as cognitive deficits and memory specifically is perhaps – I mean, I just felt it was perhaps an overreach compared to what I observed. I do think those things can impact on a person, but from an OT’s perspective – and maybe this is something that I don’t know if you get the opportunity in this tribunal to speak with Dr Kamalaraj, and that would be good if you could because he would be able to answer from his perspective. But whether it’s a difference between a medical perspective and a – and an occupational therapist perspective could be different. For me, I don’t worry about labels so much as to whether they want to call it cognitive deficit, whether they want to call it memory impairment or concentration deficit. What matters to me is functional ability. Does – whatever we want to call it, whatever label anyone wants to call it, does it impair someone’s ability or stop someone’s ability of doing something or does it still allow them to do it? So in coming full circle to your question about toileting and being able to deal with toileting, no, she can manage that herself independently, and I gathered that, unless that has changed between when I saw her and now. That was the information that Ms Mifsud had told me, that’s the information that the other OT had seen and that’s the information that I accepted as being correct. So if – if a person is able to do something then they’re able to do it, even if in the background there is a bit of chronic pain that might be impacting on some of those factors that he alludes to in his report.
…
I found Ms Mifsud to be very stoic, very independent, a proudly independent person, and is someone who does manage her own life, manages her own bank account, manages her finances, albeit there are some financial difficulties around aspects of trying to meet her needs with services. But that’s a different issue to having the capacity to manage your own affairs, you know, sort of finances and the like. So I – I – there’s no point in me saying perhaps I disagree with him. It’s better just to say that I concluded differently in those areas, and I believed that the rest of the evidence would be more suggestive and consistent with perhaps my conclusions and the other – and Susan Pordage’s conclusions in that regard as well. I think he sort of stands a bit alone in some of those suggestions and recommendations”.[32]
[32] Transcript Day 1, 33-35.
In relation to the conclusions drawn by Ms Pordage, Mr Dwyer noted that he and Ms Pordage “nearly concluded very, very similar – we concluded into the same categories, mostly, and that was around the heavier domestic activities and gardening activities ”.[33]
[33] Transcript Day 1, 35, [45].
Mr Dwyer noted that the Applicant has transitioned from under 65 years old to over 65 years old, and as such, there are services available to the Applicant. He noted community-based supports that can assist with heavier household tasks and gardening activities. He also referred to Local councils being a good resource to work out what might be available in the Applicant’s area.[34]
[34] Transcript Day 1, 36, [30]-[45].
In conclusion, Mr Dwyer noted:
“I think that [the Applicant] need[s] is in that area of the heavier household support and the gardening support, and I think that if [she] got that sort of support, it would help preserve [her] function for still being able to do all those things that [she] really want to do for [herself], like [her] own personal care and going to the toilet and, you know, managing [her] own sort of more personal and private activities”.[35]
[35] Transcript Day 1, 41, [5].
The Applicant noted that she had made attempts to get assistance, but was told that they are full, but there was also a suggestion to wait until the outcome of the Tribunal’s review. She noted that:
“I have had an assessment from aged care a few years ago. They came up to my place, actually, what I can remember, and she said, ‘Yes’ – it was – it was a husband and wife team, actually, ‘Yes, we will get back to you, blah, blah, blah’. They never did. When I did get in touch with them again, she said, ‘Okay’ – you know, I told her that I’m waiting for this and she said, ‘Okay, see what happens and then we will see from – we will take it from there’”.[36]
FINDINGS and REASONS
[36] Transcript Day 1, 38, [15]-[20].
Section 24(1)(a) – disability attributable to an impairment
It is not in dispute that the Applicant suffers from a number of clinical conditions. On the evidence, the Tribunal is satisfied that the cardiac complaints, Achilles tendonitis and foot complaints do not form part of the application. They are, however, conditions that have some impact on the Applicant’s functional capacity. The conditions which form part of the application, are fibromyalgia, osteoarthritis, lumbar disk prolapse and chronic pain, but they are not necessarily distinct conditions.
Section 24(1)(b) – permanence of impairment
Rules 5.4 to 5.7 of the Access Rules states:
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.
The Operational Guideline provides guidance in relation to s 24(1)(b) of the Act, namely:
Your impairment will likely be permanent if your treating professional gives us evidence that indicates there are no further treatments that could relieve or cure it.
Your treating professional will tell us or be asked to certify if there are medical, clinical or other treatments that are likely to remedy your impairment. We need to understand whether there are treatments which are [NDIS (Becoming a Participant) Rules rr 5.4, 6.4]:
· known and available
· appropriate for you and your impairment
· evidence-based – that is, there’s proof they are likely to be effective.
…
If you’re still undergoing or have recently had treatment, we’ll need to wait until you know the outcome of the treatment before we can decide your impairment is likely to be permanent [NDIS (Becoming a Participant) Rules rr 5.6, 6.6].
…
For degenerative impairments, or those that get worse over time, we consider them permanent if treatment isn’t likely to help or improve the impairment’s effects [NDIS (Becoming a Participant) Rules rr 5.7, 6.7.]
62.Relevantly, in National Disability Insurance Agency v Davis,[37] Justice Mortimer considered the meaning of ‘permanent’ in s 24(1)(b). At [80], reflecting the language of the legislation and contrary to the rules emphasised above at r 5.7 of the Access Rules, the adjective ‘permanent’ attaches to the impairment. In Davis, her Honour held that ‘the correct meaning of “permanent” in s 24(1)(b) is “enduring”’.[38] This meaning reflects the purpose and context of the legislative scheme, as a scheme intended to deliver lifelong support to persons with disability.[39] Her Honour stated that the critical point is that “permanent” is used as an adjective in s 24(1) to the noun “impairment” (or in the plural, “impairments”). The focus of the text, consistently with the purposes of the Scheme, is on whether the impairments experienced by individuals (rather than the cause of the impairments or the specific diagnoses which might be applied to a medical condition) have an enduring quality so as to fit within the conceptual emphasis of the scheme.
[37] National Disability Insurance Agency v Davis [2022] FCA 1002.
[38] National Disability Insurance Agency v Davis [2022] FCA 1002 [85].
[39] National Disability Insurance Agency v Davis [2022] FCA 1002 [85].
An ‘impairment’ within s 24 ‘is generally understood as involving the loss of, or damage to a physical, sensory or mental function’. Mortimer J in Mulligan v National Disability Insurance Agency,[40] observed with respect to s 24(1)(a):
[40] Mulligan v National Disability Insurance Agency (2015) 233 FCR 201 at 212 [51].
“Some general observations should be made about these matters. The term “disability” is used in the Act, and in s 24, as a descriptive concept for the overall effect of a person’s impairments on that person’s abilities to participate in all aspects of personal and community life. Threshold provisions such as s 24 operate not on the concept of disability, but on the concept of an impairment, which…is generally understood as involving the loss of or damage to a physical, sensory or mental function”.
The central question for the Tribunal is whether the impairment(s) experienced by the Applicant (rather than the cause of the impairments or the specific diagnoses made about a medical condition) has, or have an enduring quality, so as to require supports funded and/or provided under the Act on an ongoing basis.
Sections 29 and 30 make clear, that the intention of the scheme is that once a person meets the access requirements, then subject to certain specific exceptions, the person will remain supported by the NDIS through their lifetime.
Dr Rozario observed the presence of osteoarthritis as well as Achilles tendinitis and plantar fasciitis, which she considered to be permanent. However, Achilles tendinitis and plantar fasciitis do not form a part of the present application.
67.The Tribunal observes that Dr Rozario’s report on 28 May 2023 is very brief. Relevantly, her statement that the conditions are permanent is made without any explanation about what has been explored, recommended, or the reasons for the conclusions reached. As such, the Tribunal gives limited weight to her opinions and conclusions.
68.Dr Freeman noted that the Applicant “is troubled by discomfort, itch and oedema likely in part related to venous insufficiency in both legs”. Dr Freeman discussed an initial treatment plan, namely, to trial the Applicant on below the knee Class II compression stockings. Dr Freeman expressed the view that he was reasonably confident that this would provide some relief to the Applicant. In response to a question, which asked what treatment has been undertaken to improve the Applicant’s impairment, Dr Freeman states that ‘Ms Mifsud had some relief with compression stockings’. He notes that he does not anticipate any further treatment. In response to the question as to whether the Applicant’s impairment(s) cause her functioning capacity to be substantially reduced, he says no to all the criterion insofar as the venous insufficiency is concerned.
Dr Chow noted that the Applicant has a history of hypertension, mild coronary artery disease, and that she gets shortness of breath with exertion. However, hypertension and coronary artery disease do not form a part of this application, and any attendant impairments and disabilities cannot be considered.
Dr Kamalaraj confirmed the diagnosis of fibromyalgia. He makes general observations that fibromyalgia results in significant functional impairment, particularly physical and mental function, and that there is no known evidence-based treatment that can provide a remedy (i.e. cure or substantially relieve), rather they can help reduce symptoms. He considered that the Applicant’s mobility was primarily affected by her fibromyalgia, which was amplifying her chronic lower back pain and her shoulder pain, which he believed was limiting her ability to self-groom, dress and clean after attending the bathroom. It is difficult to see, based on Dr Kamalaraj’s observations, how the Applicant’s degeneration in her cervical and lumbar spine, ankles and feet give rise to any impairment. Additionally, Dr Kamalaraj makes no reference to the Applicant’s osteoarthritis or lumbar disc prolapse, which makes it difficult to see whether he considered if the Applicant’s conditions were relevant to his assessment.
Dr Nancy Jia of Myhealth Mccarthur Square provided a report dated 20 September 2021 in support of the Applicant’s NDIS application.[41]
[41] Hearing Bundle, 187, Ex 4.
Dr Jia noted that the Applicant had previously made an application to the NDIS for access in 2018. At that time, she reportedly suffered from chronic joint pain in her upper limbs, spine and lower limbs due to osteoarthritis and fibromyalgia. Dr Jia considered that since that time, the Applicant’s symptoms had been stable and difficulties with activities of daily living remained. Dr Jia expressed the view that there had been some confusion with regards to the Applicant’s chronic venous insufficiency condition. She observed that this condition compounded her existing symptoms of osteoarthritis, although it was “less important as an individual condition”.
73.In her oral evidence, Dr Jia focused on the Applicant’s osteoarthritis. Dr Jia gave evidence concerning the Applicant’s treatment and conditions. The Tribunal gives some weight to the Respondent’s submissions that Dr Jia came across as “something of an advocate” and that “she was pleased that she had an opportunity to advocate for one of her patients”.[42] However, the Tribunal does not agree with the submissions that Dr Jia was “overstepping the boundaries to some extent insofar as her speciality as GP was concerned, in terms of attempting to, it would seem, diagnose reasons for shortness of breath and those types of things”.[43] The Tribunal is of the view that it would be inappropriate for the Tribunal to make any comments about Dr Jia’s clinical management of the Applicant, as that is a matter for expert evidence and a specialised Tribunal. What is correct is that Dr Jia chose not to refer the Applicant to a respiratory physician or pain specialist/clinic, where a thorough assessment of the Applicant’s conditions could be undertaken. Relevantly, r 5.6 of the Access Rules states:
[42] Transcript Day 2, 75, [15]-[20].
[43] Transcript Day 2, 75, [15]-[20].
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).
The Tribunal is satisfied on the evidence that it is not known at this stage what will come of potential specialist inquiries, assessments or investigations. On balance, the Tribunal is not satisfied that the Applicant’s impairments do not require further assessments, medical treatment or review in order for their permanency or likely permanency to be demonstrated. As such, the Tribunal is not satisfied that the Applicant’s impairments are, or likely to be permanent.
The Tribunal is satisfied that the evidence does not support a finding that the Applicant’s impairments are permanent, as contemplated.
Therefore, the Tribunal finds that s 24(1)(b) of the Act is not met.
Section 24(1)(c) – substantially reduced functional capacity
In relation to the issue of substantially reduced functional capacity, the Tribunal observes that r 5.8 of the Access Rules provides that in certain circumstances, a person will be taken to have substantially reduced functional capacity where someone is unable to participate effectively or completely in an activity without home modifications.
Rule 5.8 of the Access Rules states that 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 — if its result is that:
(a)the person is unable to participate effectively or completely in the activity, or to perform tasks or actions required to undertake or participate effectively or completely in the activity, without assistive technology, equipment (other than commonly used items such as glasses) or home modifications; or
(b)the person usually requires assistance (including physical assistance, guidance, supervision or prompting) from other people to participate in the activity or to perform tasks or actions required to undertake or participate in the activity; or
(c)the person is unable to participate in the activity or to perform tasks or actions required to undertake or participate in the activity, even with assistive technology, equipment, home modifications or assistance from another person.
The Operational Guideline is relevant to this issue. Among other things, the Operational Guideline states:
Your impairment substantially reduces your functional capacity if you usually need disability specific supports to participate in or complete the above tasks [NDIS (Becoming a Participant) Rules rr 5.8(a), (c)].
These disability-specific supports include:
· a high level of support from other people, such as physical assistance, guidance, supervision or prompting [NDIS (Becoming a Participant) Rules r 5.8(b)].
· assistive technology, equipment or home modifications that are prescribed by your doctor, allied health professional or other medical professional [NDIS (Becoming a Participant) Rules r 5.8(a)].
In the Applicant’s Access Request Form, Dr Wang focussed on fibromyalgia, which was treated with analgesia and other medication. He identified that the Applicant required assistance with respect of meal preparation, lawn/garden maintenance and house cleaning. However, he did not consider that the Applicant required assistance to mobilise or required assistance with communication, social interaction, learning or self-management. In his subsequent report, dated 7 April 2020, Dr Wang noted that the Applicant had difficulty walking, she needed to use a walking stick, she had difficulty getting in and out of bed, and had poor quality sleep. Dr Wang makes reference to the pain having a significant impact on the quality of the Applicant’s life. However, this report contradicts his earlier observations in the Applicant’s Access Request Form and does not offer any further explanation.
Dr Kamalaraj indicated that the Applicant’s fibromyalgia causes the Applicant cognitive disturbance, including memory impairment, concentration difficulties, fatigue and difficulty learning new information. However, this is inconsistent with the conclusions of Dr Wang and Mr Dwyer. Mr Dwyer gave extensive evidence about his conclusions, namely that although there are some limitations such as in the domains of mobility and self-care, the Applicant is independent in the areas of communication, social interaction, learning, and self-management. The Tribunal observes that although chronic pain could impact concentration levels, it would be without basis to elevate this to the extent to which Dr Kamalaraj had concluded.
In his report, Mr Dwyer describes his observations in relation to transfers; he comments that the Applicant can complete chair and car transfers independently. He also identifies limitations, such as bed transfers using a walking stick, toilets using the grab rails and raised toilets, and grab rails in the shower as well. He however states that typically the Applicant does not use a walking stick in the community, although she uses shopping trolleys and pseudo-walking aids from time to time as well.
As outlined earlier, there are divergent opinions in relation to the Applicant’s level of impairment. For the reasons explained earlier, there are issues with the reports of Dr Wang, Dr Kamaraj, Dr Rozario, and Dr Jia. The Tribunal prefers the tested evidence of Mr Dwyer, who provided a comprehensive report, and his oral testimony was highly persuasive. What is consistent is the opinion of Mr Dwyer and Ms Pordage (and to a degree Dr Freeman), who essentially concluded, and the Tribunal finds that although the Applicant has certain limitations, she is however independent in performing mobility tasks, self-care, communication, socialising, learning and self-management.
The Respondent acknowledged, and the Tribunal finds, that although the Applicant has a level of impairment in relation to mobility and that she might need to use mobility aids and hand/grab rails, the totality of the evidence does not support a conclusion that her capacity is substantially reduced.
The Tribunal is satisfied on the evidence that the Applicant’s difficulties in mobility do not give rise to substantially reduced functional capacity.
In light of the above, the Tribunal finds s 24(1)(c) of the Act is not met.
Section 24(1)(e) – support under the NDIS for the person’s lifetime
As the Tribunal was not satisfied that the Applicant’s impairments are permanent, the Tribunal finds that she will not require support under the NDIS for her lifetime pursuant to section 24(1)(e) of the Act.
Therefore, it follows that the Applicant does not meet the requirement in s 24(1)(e) of the Act.
Moreover, the Tribunal is satisfied that the evidence indicates that although the Applicant would benefit from support with tasks including heavier domestic chores, gardening maintenance and meals, the diagnosed conditions are also health conditions that are most appropriately treated and provided for through the health system, rather than the NDIS.
Section 25 – early intervention requirements
There is no evidence before the Tribunal to suggest that early intervention supports are likely to reduce any future need for supports. It follows that s 25(1)(b) of the Act is not met, and therefore the early intervention requirements is not met.
CONCLUSION
In conclusion, the Tribunal finds that the Applicant does not meet ss 24(1)(b), (c) and (e), and the early intervention requirements in s 25 of the Act.
DECISION
The Tribunal affirms the decision under review.
I certify that the preceding ninety-two (92) paragraphs are a true copy of the reasons for the decision herein of Deputy President Antoinette Younes.
................................[SGD]...................................
Associate
Dated: 11 August 2023
Date of hearing(s):
4 and 5 July 2023
Applicant:
By video
Counsel for the Respondent:
Mr M Nesbeth
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