Mowjood and National Disability Insurance Agency
[2023] AATA 1759
•21 June 2023
Mowjood and National Disability Insurance Agency [2023] AATA 1759 (21 June 2023)
Division:NATIONAL DISABILITY INSURANCE SCHEME DIVISION
File Number(s): 2021/3801
Re:Sithi Mowjood
APPLICANT
AndNational Disability Insurance Agency
RESPONDENT
DECISION
Tribunal:The Hon. Matthew Groom, Senior Member
Date:21 June 2023
Place:Melbourne
The decision under review is affirmed.
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The Hon. Matthew Groom, Senior Member
Catchwords
NATIONAL DISABILITY INSURANCE SCHEME – access criteria – whether applicant meets disability requirement – rheumatoid arthritis – chronic pain – whether impairment is likely to be permanent – whether impairment substantially reduces functional capacity – whether applicant likely to require support under NDIS for a lifetime – decision under review affirmed
Legislation
National Disability Insurance Scheme Act 2013
National Disability Insurance Scheme (Becoming a participant) Rules 2016Cases
Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) to ALD 634
National Disability Insurance Agency v Davis [2022] FCA 1002
Pettit and National Disability Insurance Agency [2022] AATA 272
Secondary Materials
National Disability Insurance Scheme, Operational Guidelines
REASONS FOR DECISION
The Hon. Matthew Groom, Senior Member
INTRODUCTION
This matter involves a review of a decision of the respondent made on 26 May 2021 affirming an earlier decision not to grant the applicant access to the National Disability Insurance Scheme (NDIS).
BACKGROUND
The applicant is a 61 year old Australian citizen, who was born and raised in Sri Lanka and migrated to Australia in June 2002.
The applicant is married but lives apart from her husband who suffered a stroke in October 2018 and has since been living in a nursing home.
The applicant does not work and has no formal qualifications. She has been in receipt of a disability support pension since 2009.
The applicant made an application to become a participant in the NDIS on 24 February 2021. That application was initially based on a number of conditions including:
(a)rheumatoid arthritis;
(b)major depression and anxiety;
(c)fibromyalgia;
(d)L1/2/3 disc bulge;
(e)left carpal tunnel syndrome; and
(f)osteoarthritis.
On 15 March 2021 the respondent refused the applicant’s application for participation in the NDIS on the basis that the applicant did not meet the disability requirements set out in section 24 or the early intervention requirements set out in section 25 of the National Disability Insurance Scheme Act 2013 (Cth) (Act) (original decision).
On 7 April 2021 the applicant sought an internal review of the original decision. By letter dated 26 May 2021 the respondent advised the applicant that a decision had been made to affirm the original decision.
On 10 June 2021 the applicant made application to the AAT for a review of the internal review decision, which is the matter before this Tribunal.
A substantial hearing in relation to the matter was held on 4 April 2023 and on 2 and 3 May 2023. The applicant was represented by Ms Kelly of Counsel and the respondent was represented by Mr Wilson of Counsel. At the hearing, the applicant gave evidence with the assistance of a qualified interpreter.
LEGISLATIVE BACKGROUND
The legislative provisions relevant to the issues in dispute before the Tribunal are set out in the Act including, more specifically, the objects and principles set out in Part 2 of Chapter 1 together with sections 21 and 24 of the Act set out in Part 1 of Chapter 3.
The Tribunal has also had regard to the National Disability Insurance Scheme (Becoming a participant) Rules 2016 made under section 209 of the Act (Rules).
In addition, the Tribunal has also had regard to the Operational Guidelines - Applying to the NDIS (Guidelines). The Tribunal accepts that the Guidelines represent government policy in relation to the administration of the Act and that in making decisions in the present case, regard should be had to the Guidelines unless there is a cogent reason not to do so.[1] the Tribunal is satisfied that there is no cogent reason not to have regard to the Guidelines in the particular circumstances of this case.
[1] See Pettit and National Disability Insurance Agency [2022] AATA 272 and Drake and Minister for Immigration and Ethnic affairs (No 2) (1979) 2 ALD 634.
ISSUES
The issue for determination by the Tribunal is whether the applicant satisfies the eligibility criteria for access to the NDIS as set out in Part 1 of Chapter 3 of the Act.
During the course of the hearing Counsel for the applicant confirmed to the Tribunal that the applicant was presenting her claim for access based on chronic pain attributable to the applicant’s claimed rheumatoid arthritis condition and that the applicant was no longer seeking to pursue her claim for access based on her other previously claimed conditions. Counsel for the applicant also confirmed that the applicant was no longer seeking to pursue access under the early intervention provisions in section 25 of the Act. These concessions are consistent with the applicant’s closing submissions in the matter and the Tribunal has proceeded on this basis.
The applicant contends that she suffers substantially reduced functional capacity with respect to mobility and self-care as consequence of her impairments and that she is likely to require support under the NDIS for her lifetime.
The respondent has conceded that the applicant satisfies the age and residency requirements for the purpose of sections 22 and 23 of the Act. The respondent concedes that the applicant has previously been diagnosed with rheumatoid arthritis but does not concede the permanency requirement in section 24(1)(b) of the Act.
Therefore, as set out in the applicant’s closing submissions, the residual issues for determination by the Tribunal are:
(a)whether the applicant’s impairment which arises from rheumatoid arthritis, is or is likely to be permanent (section 24 (1)(b));
(b)whether the applicant’s impairment which arises from rheumatoid arthritis results in substantially reduced functional capacity to undertake mobility (section 24(1)(c) (iv)) and self-care (section 24(1)(c)(v)); and
(c)whether the applicant is likely to require support under the NDIS for her lifetime (section 24(1)(e)).
CONSIDERATION
The first issue for determination is whether the Tribunal is satisfied that the applicant’s impairment which she claims to be chronic pain arising from a rheumatoid arthritis condition is permanent or likely to be permanent for the purpose of section 24 (1)(b) of the Act.
The applicant gave evidence that she suffers from a disability caused by rheumatoid arthritis which she described as an autoimmune inflammatory condition that presents with multiple joint inflammation and that is a systemic and degenerative condition. The applicant claims to have suffered from rheumatoid arthritis since 2003. The applicant gave evidence that as a consequence of her rheumatoid arthritis she suffers whole-body pain and stiffness, pain and stiffness in her hands and joints, swelling on the joints of her fingers, shoulder and elbow pain and that she has difficulty focusing.
The respondent contends that there is insufficient evidence before the Tribunal for it to be satisfied that the applicant’s claimed underlying condition of rheumatoid arthritis and associated chronic pain is permanent or likely to be permanent for the purpose of the disability requirements.
The word “permanent” is not defined in the Act, however, Rules 5.4 to 5.7 provide that:
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.
There is a relatively limited amount of independent medical evidence before the Tribunal with respect to the applicant’s present prognosis for her claimed condition. This presents some difficulty for the Tribunal.
The Tribunal materials include a number of reports from the applicant’s current treating rheumatologist Dr Andrew Gibson. The applicant was first referred to Dr Gibson by the applicant’s former GP Dr Sonny Rueda in around May 2019. In a letter to Dr Rueda dated 19 September 2019, Dr Gibson noted, it would appear at least in part based on information provided by the applicant, that:
(a)in around 2004 the applicant had developed an inflammatory arthritis of the hands and had been referred to a rheumatologist whose name was not known;
(b)the applicant was given a diagnosis at around that time of rheumatoid arthritis and prescribed Plaquenil which the applicant considered to be unsuccessful;
(c)the applicant was subsequently transitioned to Prof Leech at Monash Medical Centre who agreed with the diagnosis initially and gave her methotrexate for many years, which may have given her some benefit;
(d)the applicant suffered breast cancer and her treatment was stopped;
(e)the applicant was subsequently seen again by Prof Leech who “thought on recent review there was no rheumatoid arthritis and discharged her five years ago”.
(f)Dr Gibson noted that he had tried to assess the applicant symptoms and he considered them “tricky” although he agreed that there were inflammatory clues with a lot of morning stiffness in the applicant’s neck, shoulder and knees. Dr Gibson noted that the applicant appeared to also have mechanical issues in her knees and thumbs.
(g)Dr Gibson noted that the applicant had previously been given naproxen which was “very effective” and by comparison Lyrica “had not done much”.
(h)Dr Gibson noted that in July the applicant’s full blood count was normal, B12 and iron normal, biochemistry normal as was her vitamin D. In May x-rays “only show mild degenerative change”. In May full blood count normal but ESR 33 and CRP 19. “Rheumatoid factor and CCP is negative”. “Uric acid is perfect”.
(i)Dr Gibson concluded that there was enough objective information to make a diagnosis of immune arthritis albeit seronegative and mechanical arthritis. He recommended treatment of leflunomide/Arava. Dr Gibson noted that Arava is a novel disease present medication which tends to work reasonably quickly showing benefit within four to eight weeks. Dr Gibson also suggested a full blood examination, liver function test and creatinine be performed every month for the first six months of therapy and then every two months thereafter.
The Tribunal materials include a further letter from Dr Gibson to Dr Rueda dated 21 April 2021 which among other conditions describes the applicant’s problem as including seronegative rheumatoid arthritis and notes a change in medication to Rinvoq. Based on Dr Gibson subsequent evidence at the hearing, the Tribunal understands Rinvoq to be a different class of medication to Arava that operates as an inhibitor of Janus kinase enzymes. Dr Gibson goes on to note in the letter that the applicant “is delighted….. Inflammatory markers have normalised and the rheumatoid is entering remission”. Dr Gibson goes on to note that the applicant’s ongoing lower back pain is osteoarthritis and that Rinvoq will not work for that condition. Dr Gibson also noted that the applicant had developed “a degree of rotator cuff of the left shoulder”.
The Tribunal materials also include a further report from Dr Gibson dated 15 June 2022 where he confirmed the following:
(a)Dr Gibson had initially diagnosed applicant with undifferentiated inflammatory arthritis on 19 September 2019. Dr Gibson noted that he had based his diagnosis on the strong inflammatory nature of the applicant’s symptoms in that she is worse at rest and better with movement. He also noted that she was worse in the morning but responded very well to anti-inflammatories.
(b)Dr Gibson noted that the applicant was negative for the rheumatoid factor and CCP antibodies but that she had objective evidence of inflammation. He noted that he did not pursue further imaging with an MRI to confirm the diagnosis due to costs.
(c)Dr Gibson noted that the applicant responded to his initial prescribed medication treatment of Arava which supported his diagnosis, as the medicine does not work on mechanical osteoarthritis.
(d)Dr Gibson noted the prior view reached by Prof Leech that rheumatoid arthritis was not the appropriate diagnosis and suggested that if it was important to understand the reason for Prof Leech’s view then Prof Leech would need to be approached to comment directly.
(e)Dr Gibson stated that when he described the applicant’s symptoms as “tricky” he was mainly referring to language barriers.
(f)He noted that with no rheumatoid factor or objective MRI there is always clinical doubt as to the correct diagnosis.
(g)Dr Gibson confirmed that at the end of 2020 the applicant was moved to a new prescribed medication treatment of Rinvoq which was “successful” and objectively measured such by the applicant’s inflammatory markers returning to normal.
(h)Dr Gibson noted that as rheumatologist he has focused on the applicant’s pharmacological treatment and not any broader treatment. Dr Gibson noted that the applicant’s GP had prescribed the applicant regular pain relief as well as a nerve pain killer and that the applicant has also had three physiotherapy sessions in 2022. He noted that he had not referred the applicant for physiotherapy and he did not know how it was going but that he understood that it had been “partially successful, at best”.
(i)Dr Gibson described the applicant’s response as being “excellent clinically and her compliance has been excellent”.
(j)Dr Gibson noted that the functional gains the applicant is expected to achieve as a consequence of her adapted treatment are improved function of the joints with respect to reducing pain, stiffness and swelling.
(k)Dr Gibson noted that rheumatoid arthritis is a lifelong disease for which there is no cure and that pharmacological treatments are trying to “slow down and dampen down inflammatory process”.
(l)Dr Gibson noted that with normal inflammatory markers the applicant is currently in laboratory remission however clinically she still has ongoing symptoms in the mornings in her hands and feet with respect to stiffness and pain and swelling.
(m)Dr Gibson noted that he understood the applicant has also suffered from other conditions and that to understand the applicant’s conditions holistically it may be appropriate to obtain further information from the applicant’s GP.
The Tribunal materials also include a letter from pain specialist Dr Gavin Weekes dated 6 October 2022. Dr Weekes confirmed that he has been reviewing the applicant for the purpose of her chronic neck and lumbar pain secondary to cervical and lumbar spondylosis.
In Dr Gibson’s evidence at the hearing:
(a)Dr Gibson confirmed his evidence consistent with his report of 15 June 2022.
(b)Dr Gibson explained that the basis of his diagnosis was the applicant’s strong inflammatory markers including that the applicant’s experience of pain and stiffness occurring at rest and in the morning.
(c)Dr Gibson told the Tribunal that he had seen the applicant approximately every six months and that in around November 2020 the applicant had a relapse in her hand, and he had moved the applicant across to Rinvoq. Dr Gibson confirmed that the applicant is currently on a combination of Rinvoq and Arava. Dr Gibson noted that the applicant had suffered a second relapse in around October 2021 but that as of April 2023 the applicant is currently in laboratory remission which means that the prescribed pharmacological treatment is effectively working in the management of the underlying condition but that she was still experiencing clinical symptoms.
(d)Dr Gibson noted that without pharmacological treatment, the condition can result in very severe symptoms and ultimately be fatal and that with appropriate pharmacological treatment the symptoms can be managed and the potential for normal life expectancy.
(e)Dr Gibson told the Tribunal that it is impossible to know why rheumatoid arthritis starts and how it develops.
(f)Dr Gibson noted that the applicant appeared to be fluctuating between remission and relapse.
(g)Dr Gibson noted that sometimes a person can go into full remission were effectively the underlying condition is resolved but that this is extremely rare which he put at less than 1% of cases.
(h)Dr Gibson emphasised that he is not a pain specialist and that the extent to which the current treatment is affecting the applicant’s experience of pain is a matter for the applicant’s treating pain specialist.
The respondent contends that, as a consequence of the applicant’s revised pharmacological treatment appearing to have had a positive impact on her rheumatoid arthritis condition, as reflected by her current laboratory remission, and in the absence of more detailed information from the applicant’s treating pain specialist in relation to the impact of that treatment on the applicant’s condition from a pain perspective, there is insufficient evidence before the Tribunal to support a conclusion that the permanency requirement in section 24(1)(b) of the Act is satisfied.
Counsel for the applicant submitted that while the applicant is currently in laboratory remission, the applicant’s condition should be recognised as a fluctuating condition by its nature as reflected in the applicant’s history of fluctuating between remission and relapse. Ms Kelly submitted that while the applicant’s adjusted pharmacological treatment has at times provided some relief or improvement in her symptoms, that treatment has not cured her underlying condition. Ms Kelly referred the Tribunal to the comments of her honour Justice Mortimer in National Disability Insurance Agency v Davis where her honour stated at [136] that:[2]
“The chosen descriptors must also be construed consistently with other language used in this section of the rules, and r 5.4 particular, including the requirement that the treatment “would be likely to remedy the impairment. In this context, “remedy” should be understood to mean more than just relieve or improve. That is because r 5.5 recognises that an impairment may be permanent notwithstanding the severity of its impact on a person may fluctuate, or there are prospects for improvement. These changes in the impacts of an impairment may occur because of, amongst other matters, treatment. Therefore, in r 5.4 the word “remedy” should be understood to mean something approaching a removal or cure of the impairment. That is consistent with the meaning I consider should be given to statutory phrase “permanent impairment”, as an impairment which is enduring and, while its impacts on a person from time to time my fluctuate, is not an impairment which is likely to be removed or cured.”.
[2] [2022] FCA 1002
Having considered the evidence, the Tribunal accepts the respondent’s contention on this issue. In order to be satisfied that the applicant meets the eligibility requirements for access to the NDIS, the Tribunal must be positively satisfied in respect of each of the requirements set out in section 24 and that includes the requirement that the impairment on which the applicant relies for access is, or is likely to be, permanent. The Tribunal must reach that level of satisfaction based on the evidence before it. As referenced earlier in these reasons, the Tribunal is concerned that there is a limited amount of information before it on which to make an assessment of the applicant’s current experience of her rheumatoid arthritis condition including the impact of the adapted pharmacological treatment and her prognosis for the future. The Tribunal accepts Dr Gibson’s evidence that the condition is lifelong and unlikely to be cured but it is clear from Dr Gibson’s evidence that an appropriate pharmacological treatment can materially impact a person’s experience of the condition and the impairments she suffers as a consequence. Dr Gibson has confirmed that the applicant is currently in laboratory remission with respect to her rheumatoid arthritis condition. Further, he made clear to the Tribunal that he was not in a position to provide a professional opinion on the impact of the adapted pharmacological treatment in respect of the applicant’s experience of pain symptoms that are attributable to her rheumatoid arthritis condition, although he appeared to accept that the applicant was continuing to experience some level of pain symptoms. The only information from the applicant’s current treating pain specialist was a very brief letter which referenced a review of the applicant’s “chronic neck and lumbar pain secondary to cervical and lumbar spondylosis” which on the face of it would appear to be a separate condition. There is no substantive information from the applicant’s current treating pain specialist as to the applicant’s current experience of pain symptoms attributable to her rheumatoid arthritis condition or the impact of her present treatment on that condition. The evidence before the Tribunal is further complicated by the apparent reference to the applicant’s previous treating practitioner, Prof Leech, being of a view that the applicant’s rheumatoid arthritis condition had resolved. There is no information before the Tribunal that provides an explanation for that apparent view, or that allows it to be tested in any way.
On the basis of the information before it, the Tribunal is not in a position to make a determination as to the extent of impact the applicant’s current treatment is having or is likely to have on her experience of chronic pain attributable to her rheumatoid arthritis condition. In the Tribunal’s view, the present case is distinguishable to the issue addressed by Justice Mortimer in Davis. The issue in the present case is not so much the grade or extent of likely improvement from treatment and whether that can be said to amount to something approaching a remedy or cure of the impairment but rather the lack of information on which the Tribunal is being asked to make a judgment regarding any improvement at all.
In the Tribunal’s view, the applicant’s present circumstances may well fall within the category of case intended to be captured by Rule 5.6 where an impairment may require further medical treatment and review before a determination can be made about whether the impairment is permanent or likely to be permanent. Certainly, more substantive information regarding the impact of the applicant’s present treatment is required. It would also be extremely helpful for a future decision-maker to understand the extent to which the applicant’s other conditions, on which she does not seek to rely for access into the scheme, are relevant to the attribution of the symptoms which she claims to suffer.
For these reasons, the Tribunal is not satisfied that the applicant’s chronic pain arising from her rheumatoid arthritis condition is permanent, or likely to be permanent, for the purpose of section 24(1)(b) of the Act.
Accordingly, the Tribunal is not satisfied that the applicant meets the eligibility requirements for access to the scheme.
DECISION
The decision under review is affirmed.
I certify that the preceding 35 (thirty-five) paragraphs are a true copy of the reasons for the decision herein of The Hon. Matthew Groom, Senior Member
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Associate
Dated: 21 June 2023
Date(s) of hearing: 4 April 2023, 2-3 May 2023 Date final submissions received: 16 May 2023 Counsel for the Applicant:
Ms Phillipa Kelly Solicitors for the Applicant: Villamanta Disability Rights Legal Service Inc. Counsel for the Respondent Mr Ben Wilson Solicitors for the Respondent: HWL Ebsworth Lawyers
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