Musgrove and National Disability Insurance Agency (NDIS)
[2024] ARTA 952
•18 December 2024
Musgrove and National Disability Insurance Agency (NDIS) [2024] ARTA 952 (18 December 2024)
Applicant/s: Mr Christopher Musgrove
Respondent: National Disability Insurance Agency
Tribunal Number: 2023/5827
Tribunal:General Member Gooch
Place: Adelaide
Date:18 December 2024
Decision: The Tribunal affirms the decision under review pursuant to subsection 105(a) of the Administrative Review Act 2024.
General Member Gooch
Catchwords
National Disability Insurance Scheme – reviewable decision of Chief Executive Officer – becoming a participant – access request – whether applicant meets the access criteria – whether applicant meets the disability requirement – whether applicant has impairments which are, or likely to be permanent – whether impairment or impairments result in substantially reduced functional capacity – whether need for support for lifetime – requirements not satisfied – reviewable decision affirmed
Legislation
Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (Cth) Schedule 16, item 24.
National Disability Insurance Scheme Act 2013 (Cth), ss 3, 4, 18, 20, 21, 22, 23, 24, 25, 27, 209
National Disability Insurance Scheme Amendment (Getting the NDIS Back on Track No. 1) Act 2024 Items 14, 126 and 138 of Schedule 1
National Disability Insurance Scheme (Becoming a Participant) Rules 2013 (Cth); rr 5.1, 5.4, 5.8, 6.8, 6.9
National Disability Insurance Scheme (Getting the NDIS Back on Track No. 1) (NDIS Supports) Transitional Rules 2024 Schedules 1 and 2
Cases
Drake and Minister for Immigration and Ethnic Affairs (No. 2) 1979 2 ALD 634
Foster and National Disability Insurance Agency [2025] ARTA
Garcia Albiol and National Disability Insurance Agency [2024] AATA 496
National Disability Insurance Agency v Davis [2022] FCA 1002
National Disability Insurance Agency v Foster (2023) 295 FCR 521
Secondary Materials
Disability Care and Support – Productivity Commission Inquiry Report Overview and Recommendations No. 54 31 July 2011
National Disability Insurance Agency Guidelines, Applying to the NDIS – Pre-Legislation Changes, 14 October 2024
Reasons for Decision
This matter involves a review of a decision by the National Disability Insurance Agency (‘the Agency’) to reject an application by Mr Christopher Musgrove to join the National Disability Insurance Scheme. (‘the NDIS’).
Mr Musgrove is a 50-year-old man, living alone in his own home in the small country town of Carisbrook. Mr Musgrove sustained a left L5/S1 disc herniation with left leg radiculopathy in a workplace incident in 2018.
On 1 March 2023 Mr Musgrove applied to the Agency for access to the NDIS with a view to accessing support services at home.
Mr Musgrove’s application was refused by the Agency at first instance and again upon internal review. On 9 August 2023 Mr Musgrove applied to the Administrative Appeals Tribunal (‘the AAT’) for review of the Agency’s internal review decision (‘the decision under review’).
From 14 October 2024 the AAT became the Administrative Review Tribunal (‘the Tribunal’). Under the transitional provisions in the Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (the Transitional Act), applications for review to the AAT that were not finalised before 14 October 2024 are taken to be applications for review to the Tribunal. The Transitional Act gives the Tribunal the authority to continue and finalise any aspect of the review not already completed by the AAT. This decision and statement of reasons is made by the Tribunal.
A hearing was held on 18 December 2024 and was conducted by telephone due to Mr Musgrove’s limited access to technologies.
At the hearing Mr Musgrove was self-represented. The Agency was represented by Ms Allen, of Counsel, instructed by Maddocks Lawyers.
For the reasons set out below, the Tribunal affirms the decision under review.
THE LEGISLATION RELEVANT TO THE APPLICATION
The statutory provisions relevant to this review are found in the Administrative Review Tribunal Act 2024 (‘the ART Act’), the National Disability Insurance Scheme Act 2013 (‘the NDIS Act’) (as amended), and the National Disability Insurance Scheme (Becoming a Participant) Rules 2016 (the Rules) made under Section 209 of the NDIS Act in fulfilment of the permission in Section 27 of the NDIS Act.
10.The Agency also issues Operational Guidelines to assist staff in the administration of the NDIS Act. These are policy documents without legislative force. The guidelines relevant to this review are the NDIS- Applying to the NDIS Guidelines (‘the Access Guidelines’).
11.The NDIS Act does not provide legislative authority to the Operational Guidelines. The Tribunal is not bound to follow these Guidelines and will not do so where they are inconsistent with the NDIS Act. However, in Re Drake and Minister for Immigration and Ethnic Affairs (No. 2) the Federal Court held that a Tribunal should take into account relevant government policy where it is not inconsistent with the provisions or objects of the legislation. Therefore, to the extent that they are relevant to this review and not inconsistent with the legislation, the Tribunal will have regard to the Access Guidelines.
NDIS BACKGROUND
12.The NDIS scheme was modelled on recommendations made following a 2011 inquiry by the Productivity Commission into disability care and support in Australia.
13.The report produced by the Productivity Commission inquiry (‘the report’)[1] proposed an insurance-based scheme to provide support to people with a disability. A three-tier system was envisaged:
[1] Disability Care and Support – Productivity Commission Inquiry Report Overview and Recommendations No. 54 31 July 2011, 10-21
a. Tier 1 would provide cover for all Australians against the costs of support in the event they acquired a significant disability in their lifetime;
b. Tier 2 would provide general information, community engagement and referral services to local services; and
c. Tier 3 would provide funding for individualised supports tailored to specific needs for a limited group of people whose disability resulted in significantly reduced functional capacity (‘scheme participants’). This group was estimated to comprise about 410,000 people across Australia.
14.The report recommended one agency to oversee the scheme with responsibility for assessing and funding participants and supports on the basis of an objective assessment using a common set of eligibility criteria and a common assessment process.
15.The report recognised that access to and use of the scheme would need to be managed carefully by the Agency in order to ensure the scheme’s financial sustainability.
16.In July 2013 the NDIS Act came into effect with the Agency created to manage the scheme.
17.The objects of the NDIS Act envisage a scheme which (among other things) gave effect to Australia’s obligations under a number of international Conventions, promoted choice and control for participants, supported the independence, social and economic participation of people with disability and provided ‘reasonable and necessary’ supports for participants to assist them with that participation.[2]
[2] Section 3 NDIS Act
18.Section 4 of the NDIS Act sets out the ‘general principles’ to be applied in administration of the Act. These principles reflect (among others) the rights of people with a disability to self-direction, choice, participation in social and economic life and to the maintenance of their privacy and dignity.[3]
[3] Section 4 NDIS Act
19.As both an objective and a principle (at paragraph 3(3)(b) and subsection 4(17)), it is noted that regard is to be had to the need to ensure the financial sustainability of the scheme.
20.More recently Parliament has chosen to pass the National Disability Insurance Scheme Amendment (Getting the NDIS Back on Track No. 1) Act 2024, which tightens the way NDIS funding may be utilised.
ACCESS TO THE SCHEME
21.Part 1 of Chapter 3 of the NDIS Act deals with applications (such as Mr Musgrove’s) for access to the scheme. It includes a number of threshold criteria a person must meet in order to become a scheme participant.
22.Once a person makes a request to the Agency to become a participant of the scheme, the NDIS Act provides the CEO (or their delegate) must decide whether the applicant meets the access criteria.[4]
[4] Sections 18 and 20 NDIS Act.
23.Section 21 of the NDIS Act provides that a person meets the access criteria if:
·The person meets the age requirements set out in section 22 (ie that they were aged under 65 years of age at the time of application)[5];
[5] Section 22 NDIS Act
·The person meets the residence requirements set out in section 23 (ie at the time of consideration, the person resides in Australia and, along with other options, is an Australian citizen)[6]; and
[6] Section 23 NDIS Act
·The person meets the ‘disability requirements’, the ‘early intervention requirements’ or both.[7]
[7] Sections 24 and 25 (respectively) NDIS Act
The Disability Requirements
24.Section 24 provides:
(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 NDIS supports 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 NDIS supports under the National Disability Insurance Scheme for the person’s lifetime, despite the variation.
(3) For the purposes of subsection (1), an impairment or impairments that are episodic or fluctuating may be taken to be permanent and the person may be taken to be likely to require NDIS supports under the National Disability Insurance Scheme for the person’s lifetime, despite the episodic or fluctuating nature of the impairments.
(4) Subsection (3) does not limit subsection (2).
Note 1: the time at which a requirement in this section needs to be met is the time the matter falls to be determined. For an access request, that time is the time of considering the request (see paragraph 21(1)(c)).
Note 2: National Disability Insurance Scheme rules may be made in relation to this section under subsection 27(1).
25.The requirements of section 24 of the NDIS Act are cumulative such that all criteria must be met before the person can be said to meet the disability requirements.
The Early Intervention Requirements
26.Section 25 deals with access to the scheme on the basis of the ‘early intervention requirements’ as follows:
(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 to which a psychosocial disability is attributable and that are, or are likely to be, permanent; or
(iii)Is a child who has development 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’s impairment 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; and
(d) the CEO is satisfied any early intervention supports that would be likely to benefit the person as mentioned in paragraphs (b) and (c) would be NDIS supports for the person.
There then follow statements as to eligibility arising from fluctuating and prescribed conditions which are not relevant to this matter.
27.The Rules set out further matters to be considered in determining when an impairment might be permanent and deciding the significance of any reduction in functional capacity. I will discuss those Rules below.
THE DECISION UNDER REVIEW
28.In affirming its original decision on 12 July 2023 the Agency was satisfied that Mr Musgrove:
·Met the age and residence criteria; and
·Had a disability attributable to a physical impairment as a result of chronic lumbar pain with left leg radiculopathy.
29.The Agency was not satisfied, however, that Mr Musgrove met all of the mandatory ‘disability requirements’ in section 24 of the NDIS Act, or the ‘early intervention requirements’ in section 25 of the NDIS Act. In dispute at the time of the decision under review were the following mandatory criteria:
Disability Requirements:
·Subsection 24(1)(b)– that Mr Musgrove’s impairments in respect of his chronic lumbar pain and radiculopathy are, or are likely to be, permanent.
·Subsection 24(1)(c) – that Mr Musgrove’s impairments result in a substantial reduction in his functional capacity to undertake relevant activities;
·Subsection 24(1)(d) – that Mr Musgrove’s impairments affect his capacity for social or economic participation;
·Subsection 24(1)(e) – that Mr Musgrove is likely to require NDIS supports for his lifetime; and
Early Intervention Requirements:
·Subsection 25(1)(a) – that Mr Musgrove’s impairments in respect of his chronic lumbar pain and radiculopathy are, or are likely to be, permanent.
·Subsection 25(1)(b) & (c) – that early intervention will reduce Mr Musgrove’s future support needs and improve or prevent deterioration of his functional capacity.
·Subsection 25(3) – that the NDIS is the most appropriate support system to fund early intervention services for Mr Musgrove.
30.In the Agency’s updated Statement of Facts, Issues and Contentions however, the Agency advised it had changed its view such that it was now satisfied that Mr Musgrove’s physical impairment did affect his capacity for social and economic participation as set out in subsection 24(1)(d).
ISSUES
31.At the hearing Mr Musgrove was asked if he maintained his application on the basis of both the disability and the early intervention requirements. The Tribunal accepts that Mr Musgrove, as an unrepresented applicant, did not have sufficient understanding of those requirements to make any election.
32.The issue before the Tribunal therefore remains whether Mr Musgrove meets the access criteria under either section 24 of the NDIS Act (the ‘disability requirements’) or under section 25 of the NDIS Act (‘the early intervention requirements’). This is a question of fact to be determined on the basis of evidence available to the Tribunal.
33.In considering these issues the Tribunal must decide:
a. Whether Mr Musgrove’s impairments arising from his chronic lumbar pain and radiculopathy are, or are likely to be permanent;
b. Whether those impairments result in substantially reduced functional capacity to undertake relevant activities;
c. Whether Mr Musgrove will require NDIS supports for his lifetime as a result of his impairments; and/or
d. Whether Mr Musgrove meets the early intervention criteria in section 25 of the NDIS Act.
THE TRIBUNAL’S JURISDICTION
34.Having regard to the decision under review, relevant sections (99, 100 and 103) of the NDIS Act and Section 12 of the ART Act, I am satisfied the Tribunal has the appropriate jurisdiction to review this decision.
THE EVIDENCE
The Medical Evidence
35.The Joint Tender Bundle provided to the Tribunal included:
a. a number of medical reports which have been produced as part of Mr Musgrove’s previous workers compensation claim. The Tribunal considers these reports are useful to provide general information about Ms Musgrove’s workers compensation injury, diagnosis and related history of previous treatments and recommendations. Given their age, these reports have little to add in relation to Mr Musgrove’s current situation.
b. reports and responses to targeted questions from Mr Musgrove’s current GP and previous physiotherapist; and
c. a Functional Capacity Assessment by Mr Elliott Mate, Occupational Therapist.
Historical Records
Independent Impairment Assessment by Associate Professor Shashjit Varma (Psychiatrist) 15 March 2021[8]
[8] SD2
36.Dr Varma did not give in-person evidence to the Tribunal.
37.Mr Musgrove attended on Dr Varma for an assessment of any psychiatric impairment arising from his workers compensation injury.
38.Relevant to this matter the history Mr Musgrove gave as to the injury sustained and the impact on his function appears to be consistent with current reporting:
a. He injured his back in 2018 as he descended from a forklift at work, feeling immediate sharp shooting pain in the lower back;
b. He initially continued to try to return to work on light duties but had significant ongoing pain exacerbation;
c. His injury diagnosis, L5S1 disc injury, was not made until about a year after the injury;
d. Mr Musgrove continued to work 1-2 days of light duties a week until his employment was terminated for lack of light duties.
e. His pain limited tolerances at the time of assessment included sitting for 20 minutes, walking a distance of 3-4 blocks, lifting limit of 2kg, difficulty in bending (including tying shoelaces and reaching to the bottom drawer of his fridge) and limited local driving (15 minutes).
39.Mr Musgrove does not claim access to the NDIS for any psychosocial impairment, and indeed, Dr Varma felt the mild adjustment disorder Mr Musgrove had developed was already in remission at the time of this assessment in 2021.
Report of Mr David Wallace, Neurosurgeon, 16 December 2019[9]
[9] SD4
40.Mr Wallace did not give in-person evidence to the Tribunal.
41.Mr Wallace reported Mr Musgrove’s history of injury as set out above.
42.Mr Musgrove reported difficulty in bending to reach into the oven, his refrigerator or his dishwasher. He had difficulty with vacuuming due to pain and was unable to use his lawn mower for more than 10 minutes at a time without increased pain in his back and left leg.
43.On examination Mr Wallace noted reduced sensation in the left L5 and S1 distribution and a slight left foot drop in repose.
44.Mr Wallace was of the view Mr Musgrove was unfit for heavy physical work and at best was capable of part-time light duties.
45.Mr Wallace recommended treatment with a back brace and analgesic and anti-inflammatory medication. He suggested that in the long-term Mr Musgrove may have to proceed to some form of surgical intervention such as a discectomy or fusion.
46.Mr Wallace referred Mr Musgrove to Mr John Cunningham.
Report of Mr John Cunningham, Orthopaedic Surgeon dated 15 November 2020[10]
[10] SD5
47.Mr Cunningham did not give in-person evidence to the Tribunal.
48.Mr Cunningham considered Mr Musgrove’s MRI demonstrated a very mild disc bulge and mild lateral recess stenosis on the left at L5/S1.
49.It was his opinion that surgery was not indicated at that time. He did, however, recommend an epidural injection to see if this assisted with Mr Musgrove’s pain.
Impairment Assessment Report of Mr Roy Carey, Orthopaedic Surgeon dated 22 February 2021[11]
[11] SD8
50.Mr Carey did not give in-person evidence to the Tribunal.
51.Mr Carey saw Mr Musgrove to assess total permanent impairment for the purpose of his workers compensation claim. He found Mr Musgrove a ‘genuine witness to his complaints with no embellishment’.
52.The history recorded of Mr Musgrove’s injury, subsequent diagnosis and treatment reflected that provided to all other treating practitioners.
53.Mr Carey noted Mr Musgrove was taking Celebrex and Lyrica and had previously attended physiotherapy and hydrotherapy. Mr Musgrove was receiving no other treatment at that time. No surgery had been recommended and Mr Musgrove advised he was ‘not keen’ on pursuing the epidural injection suggested by Mr Cunningham in 2020.
54.Examination confirmed limited forward flexion, with muscle spasm observed, and reduced sensation reported in the left leg.
55.As to capacity Mr Carey noted work capacity of 1-2 hours a day, a lifting limit of 2kg, difficulty sleeping, difficulty in undertaking any domestic activities requiring bending or reaching below the knees. Vacuuming was noted to be completed in short bursts only due to pain.
56.Mr Carey felt Mr Musgrove’s presentation was consistent with the workplace injury described and anticipated Mr Musgrove would continue to experience discomfort into the foreseeable future.
57.On the basis of the examination Mr Carey assessed Mr Musgrove’s whole person impairment at 5%.
Report of Dr Kamaljit Mann dated 14 April 2021[12]
[12] SD6
58.Dr Mann did not give in-person evidence to the Tribunal.
59.This report was not addressed to any particular person but may have been intended for the compensation payer.
60.The report gave a history of the work injury, current capacity for work (light duties/office work) and plan for future treatment including analgesia, physiotherapy/swimming, neurosurgery follow-up (including possible cortisone injections) and GP follow up.
61.It was noted that Mr Musgrove had no current capacity for pre-injury duties due to his ongoing symptoms.
Recent Medical Reports
Report of Lai Fong Low, Physiotherapist dated 3 April 2023[13]
[13] T6
62.Ms Low did not give in-person evidence to the Tribunal.
63.This report was produced at the request of the NDIA. Ms Fong was the physiotherapist who had provided treatment to Mr Musgrove as part of his workers compensation claim. Ms Fong treated Mr Musgrove from 31 December 2018 to 14 July 2020 under workers compensation and then on three occasions between 16 August 2021 to 13 October 2021 paid for by Mr Musgrove.
64.Ms Fong noted that after 19 months of treatment Mr Musgrove’s improvement had plateaued with continued limitation in walking capacity, back exertion (including bending down to touch below his knees) and reduced ability to manage house chores such as vacuuming and mowing.
65.Ms Fong noted that Mr Musgrove’s hydrotherapy treatment had been interrupted by COVID-19 shutdowns and that Mr Musgrove’s pain had been exacerbated by driving to his sessions. She was aware Mr Musgrove had purchased an above ground pool in order to be able to exercise at home.
66.At the time of the report she understood Mr Musgrove was due for surgery for a lung lesion and that his application to the NDIS was for home help for a short period after his lung surgery.
Report of Dr Mann, GP, dated 9 February 2024[14]
[14] SD 10
67.This report was prepared by the GP to respond to targeted questions posed by the NDIA. Unhelpfully there is scant detail provided in Dr Mann’s responses.
68.Dr Mann noted that:
a. Mr Musgrove’s symptoms were variable with no significant improvement. Mr Musgrove had reported to Dr Mann that his symptoms were deteriorating.
b. No recent scans had been undertaken as Dr Mann felt there was ‘no indication’ for these. Despite Mr Musgrove reporting deterioration in his symptoms Dr Mann was of the view Mr Musgrove’s pains were ‘stable’.
c. Past treatment was noted to have included regular and as required analgesia and physiotherapy.
d. Mr Musgrove had not been referred to any pain management clinic for review, but had relied on consultations with his GP, Dr Mann. In Dr Mann’s view Mr Musgrove had not required significant amounts of analgesia since sustaining his injury.
e. Dr Mann deferred to physiotherapy reports which indicated physiotherapy had not resulted in a ‘significant outcome’ for Mr Musgrove’s condition but had only maintained Mr Musgrove’s pain and function.
f. Dr Mann advised Mr Musgrove had been deemed not appropriate for neurosurgical interventions to that point.
g. Currently Mr Musgrove’s condition was treated with simple analgesia (unspecified) and self-exercises for his back.
h. As to future treatment Dr Mann felt review by a pain clinic might be of use and if symptoms deteriorate it might be useful for Mr Musgrove to undergo further scans and a neurosurgical review.
i. Considering functional activities relevant to the Act Dr Mann was of the view Mr Musgrove had no impairment for self-care, communication, social interaction, learning or cognitive capacity but had some degree of limitation with respect to mobility and home duties, particularly with respect to heavy duties such as lawn mowing or changing bed sheets.
Report of Lai Fong Low, Physiotherapist, (18.01.2024) in response to targeted questions
69.Ms Low noted that:
a. She had not treated Mr Musgrove since 14 July 2020 (noted later in her report to be 16 August 2021) when his workers compensation approved treatment plan had expired. She could not provide any information about his current condition.
b. Mr Musgrove had suffered a left L5/S1 disc herniation displacing/compressing the S1 nerve root.
c. Treatment given to Mr Musgrove included manual therapy, electrotherapy and an exercise programme. Mr Musgrove also had a gym/swim membership approved by WorkSafe.
d. To the best of Ms Low’s knowledge Mr Musgrove had not participated in a pain management programme. She was of the view there was no indication for this at the time she was treating Mr Musgrove.
e. Ms Low treated Mr Musgrove twice a week until COVID-19 lockdowns, with a few treatments recommencing after lockdown lifted. She was aware Mr Musgrove’s gym membership was also impacted by COVID-19.
f. Ms Low was of the view Mr Musgrove had a period of physical and functional improvement following treatment. Although he reported episodes of pain exacerbation, overall he reported his pain had been reduced with treatment.
g. Most recently Mr Musgrove had reported his function had deteriorated significantly, particularly in relation to everyday tasks. Ms Low was of the view further physiotherapy now was unlikely to remedy or lessen the impact of Mr Musgrove’s condition.
h. Ms Low was unaware of any further treatment options Mr Musgrove had available to him.
i. In her view Mr Musgrove’s ability to communicate, learn, and self-manage is unaffected by his condition.
j. She noted that on Mr Musgrove’s report his mobility was significantly affected by pain, which created difficulty in completing many household and self-care tasks. Mr Musgrove reported walking with a major limp, having difficulty weight bearing on his left leg, difficulty walking up and down hills or steps, difficulty with garden chores, a driving limit of 15-30 minutes, limited sitting, walking and standing capacity and a lifting limit of 2 kg.
k. Ms Low was of the view Mr Musgrove’s limited mobility could impact his opportunities for social interaction.
Report of Mr Elliot Mate, Occupational Therapist, dated 27 May 2024
70.Mr Mate attended the hearing to give oral evidence in relation to his report. His report documented an assessment of Mr Musgrove’s functional capacity conducted by Mr Mate at Mr Musgrove’s home. The purpose of the assessment was to consider Mr Musgrove’s capacity to manage activities relevant to section 24(1)(c) – namely, communication, social interaction, learning, mobility, self-care and self-management. In assessing these activities Mr Mate considered Mr Musgrove’s ability to complete separate ‘tasks’ as set out in the Access Guidelines at that time.
71.Mr Mate’s assessment incorporated an interview with Mr Musgrove and direct observation of Mr Musgrove’s function while performing or simulating performance of various tasks. His conclusions about each activity area are set out below:
Communication
72.Mr Mate’s conclusion about this activity was based on Mr Musgrove’s self-report and on Mr Mate’s direct observation during the assessment.
73.Mr Musgrove confirmed he was able to read and write and use phones, email and the Internet. He was able to respond appropriately to Mr Mate’s questions and follow instructions without needing repetition or rephrasing. Although Mr Musgrove reported that sometimes his concentration is impaired by pain, it was Mr Mate’s opinion that overall Mr Musgrove retained full capacity to communicate independently without supports.
Social Interaction
74.Mr Mate’s conclusion about this activity was based on Mr Musgrove’s self-report and Mr Mate’s direct observation.
75.Mr Musgrove reported that his social network had reduced since ceasing work and moving to Carisbrook, but that he was able to have regular chats and social interaction with his neighbours, occasional chats with his sister and frequent interaction in the community. He was able to manage his behaviour and emotional regulation within social settings without assistance.
76.Mr Mate observed Mr Musgrove managed appropriate communication and interaction throughout the assessment and was of the view Mr Musgrove had no need for support with the activity of social interaction.
Learning Activities
77.Mr Mate’s conclusion about this domain was based on Mr Musgrove’s self-report.
Mr Musgrove reported that although his pain could sometimes impair his concentration and memory, he utilised strategies to assist in recalling information (such as writing things down and re-reading information). Mr Musgrove confirmed he was able to learn new things, such as how to find his way to a new location, if necessary.
Mr Mate concluded Mr Musgrove retained his capacity to learn independently without supports.
Mobility
Mr Mate’s conclusion about this domain was based on Mr Musgrove’s self-report and Mr Mate’s direct observation.
Mr Musgrove was observed mobilising around his home and yard areas independently without the use of walking aids. He was observed using his front stairs (4 steps) and rear steps (2 steps) in a safe and controlled manner, without the use of the handrail, albeit with a limp.
Mr Musgrove reported the intensity of his pain (and hence his limp) increased after walking distances longer than 100 to 200m. To manage this Mr Musgrove took regular rest breaks before recommencing his walk. Mr Musgrove reported being able to walk around 300m at a time before needing to rest. He regularly walks to a creek that is about 500m from his home and needs to rest once each way. On the way back he often uses a tree branch as a walking stick.
Mr Musgrove was observed to be able to reach overhead and low storage areas but reported an exacerbation of his pain when he did so. He advised that to limit his pain he attempts to store things in mid-range cupboards, so he avoids having to reach or bend.
Mr Musgrove was able to transfer independently from sit to stand in a variety of situations, including bed to stand, chair to stand, toilet to stand (using a rail) and car to stand. It was noted that in his lounge Mr Musgrove chooses to sit in an office chair rather than on his lounge so that he can push off the arms when he rises.
Mr Musgrove reported his lifting tolerances are limited to about 2.5kg. He was observed to be able to lift household items such as pots and pans and basket of washing (although it was noted he used small baskets for laundry to limit the load he must carry).
Mr Musgrove reported that he can drive his car but experiences increased pain after about 20 minutes. He will generally not drive more than 40-60 minutes at a time.
In Mr Mate’s assessment Mr Musgrove had developed appropriate strategies to enable him to maintain his independence in mobilising. It was recommended Mr Musgrove obtain a proper single point walking stick for his longer, community-based walks as a safer option to chance-found sticks. Mr Mate was of the view Mr Musgrove required no other support to assist him in mobilisation.
Self Care
Mr Musgrove advised that he was independent with toileting, cleaning his teeth and shaving.
He was observed to use modified methods for independently completing other self-care tasks:
a. Mr Musgrove used a grab rail in his shower to get in and out of the cubicle safely and when washing himself. Mr Musgrove reported he suffers increased pain when bending to wash his feet or twisting to wash his back. On occasion he must lie down after a shower to relieve his pain.
b. Mr Musgrove reported sitting on his bed in order to be able to dress himself and using a stool to rest his feet on when clipping his nails.
c. Mr Musgrove reported using his lighter pans for cooking (as the heavier pans cause pain), keeping his meals simple without the need for a lot of preparation, and sometimes resting during and after cooking. Mr Mate suggested a kitchen perching stool may help Mr Musgrove when preparing meals and suggested the use of store bought frozen meals for those days Mr Musgrove was unable to cook.
d. Mr Musgrove reported that he shops regularly so that he only has to carry small loads at a time. He uses the trolley to lean on while shopping. Similarly he washes laundry in small loads so as to only have to carry and hang small loads.
e. Mr Musgrove reported he must complete his home cleaning tasks in short bursts of about 15 to 20 minutes at a time before resting. On some days he is simply unable to do any cleaning because his pain was too high. Mr Mate considered Mr Musgrove’s accommodations to be very practical and suggested they should continue. He opined that continuing to complete home care tasks, although difficult, would assist Mr Musgrove to maintain his physical abilities.
Mr Mate noted Mr Musgrove’s reduced capacity for bending and twisting as a result of pain and reduced range of motion in his lumbar spine. Mr Musgrove reported reduced lifting capacity (no more than 2.5kg) and pain-limited sitting and standing capacity of between 15-20 minutes. Driving capacity was similarly limited.
Nevertheless, it was Mr Mate’s opinion that by modifying the manner in which he completes domestic tasks Mr Musgrove had largely maintained his independence in completing self-care activities.
Mr Mate was of the view Mr Musgrove’s home and garden were maintained to a high standard despite Mr Musgrove’s impairment.
Self Management
Mr Musgrove confirmed to Mr Mate that he is independent with regard to all self -management activities. He is able to make decisions independently, manages all his medical appointments and finances without assistance and does not require any support in this domain.
THE ORAL EVIDENCE
Mr Musgrove’s Evidence
94.Mr Musgrove had difficulty in giving his evidence freely to the Tribunal as he did not fully understand what information was important. To ensure the best available evidence was obtained, the Tribunal used targeted questions to elicit as much relevant information as possible. Mr Musgrove’s evidence was given clearly in a straightforward manner.
Mr Musgrove was asked to comment on his ‘statement of lived experience’ submissions set out at SD1 and SD3 of the tender bundle.
Addressing SD1 which sets out events in a ‘typical’ day, Mr Musgrove advised the Tribunal that constant pain from his back injury is his biggest issue. This pain is mostly located in his lower back and down into his left leg, but sometimes, particularly if he does more than he should, the pain travels through to his neck. He rates the pain as ‘unbearable’ after about 15 minutes of any sustained position or activity.
Along with the pain Mr Musgrove experiences ‘tightness’ in his back muscles. He feels his muscles are working harder than they should due to his disc injury and advises that if he does not stop and stretch to relieve the tightness, his muscles will spasm. This is very uncomfortable and will lead to him being unable to function effectively for a few days. He tries very hard to avoid the spasms.
In order to manage his pain Mr Musgrove breaks his daily activities up into smaller periods. He notes that his sleep is usually disturbed by pain and that after about 4 hours in one position he will wake and have to move. He wakes early due to pain and has to get out of bed to move around and stretch. After a couple of hours of moving around he will need to go back to bed. His daily routine is based around changing his activity frequently and ensuring he alternates between movement, stretching and resting. Housework is completed in small, manageable bursts of about 10 to 15 minutes at a time. Until recently Mr Musgrove has also had some assistance from his neighbour to complete some of his heavier household tasks.
Mr Musgrove advised the Tribunal he always tries to include an outdoor walk in his day, often to the local creek area. He feels it is important to keep up his exercise and even though he finds going up and down hills more difficult (and will often use sturdy sticks he finds as a support) he believes the exercise helps to strengthen his muscles. Mr Musgrove estimates he can walk about 3 blocks at a time before he needs to stop, stretch and rest. He does not use any walking aids within his home;
100.With reference to the statement of lived experience he had submitted earlier[15] Mr Musgrove confirmed that he continued to have limits on the times he could participate in activities. These included approximately 15 minutes of walking, standing and sitting, 15 to 30 minutes of driving and a 2kg lifting limit. He advised he needed to carry shopping in small amounts and had difficulty hanging out washing. Instead he uses a clothes horse and completed his washing in small loads. He noted he walked with a limp that favoured his left leg. Mr Musgrove found changing sheets difficult but on occasion was able to manage changing the fitted sheet. He sometimes had help from his neighbour. Mr Musgrove has a ride on mower which he is able to tolerate for about 10 to 15 minutes at a time. Mr Musgrove felt that his condition had not deteriorated in the last few years because he stays within his limits.
[15] SD3
101.Mr Musgrove gave evidence about the treatment he had received over the years, particularly in relation to the treatments the Agency has identified as possibly outstanding[16]:
[16] A1[19]
Medication
102.Mr Musgrove’s evidence around his medication was confusing at times. Initially Mr Musgrove advised he was taking Celebrex (a prescription anti-inflammatory) once a day, Panadeine (paracetamol and codeine) two tablets twice a day and esomeprazole (Nexium) once a day. Mr Musgrove did not believe he was prescribed the Nexium for reflux but rather to ‘increase his magnesium levels’.
103.Mr Musgrove agreed he had been prescribed Lyrica but believed he had been told not to take it anymore as it was bad for his liver. He advised that sometimes he did take Lyrica but that it left him ‘feeling like a zombie’.
104.Later, in response to some clarifying questions Mr Musgrove advised the Tribunal that his doctor had stopped prescribing him Panadeine and that he had been advised to only use Nurofen instead. He advised the Tribunal he still had some boxes of Panadeine left over which he was trying to finish off. He did not find the Nurofen very effective against his pain.
105.Mr Musgrove’s evidence in relation to medication use was that he had been tried on a range of medications by his doctor with variable success. He could not remember all their names and expressed frustration with his GP’s failure to help him further. Mr Musgrove felt he wasn’t being listened to by his GP and indicated a desire to change doctors. It was Mr Musgrove’s opinion that his medication was not useful and that he would like to explore other options.
Physiotherapy
106.Mr Musgrove advised that he finished attending physiotherapy when his physiotherapist felt she could no longer help him. He advised that sometimes he would leave physiotherapy in worse pain than when he arrived and at that point he did not see the value anymore. His physiotherapist had then referred him to hydrotherapy which he tried for a while.
107.Hydrotherapy was held at a pool located half to an hour’s drive away and on some days he was unable to travel there due to pain. He said there were other times when he would have to pull over to the side of the road and rest on the way home because of his pain. Mr Musgrove ceased going to hydrotherapy and purchased an above-ground pool so that he could exercise at home. He acknowledged he was only able to do this in the warmer months.
108.Mr Musgrove did not believe that further physiotherapy would be of assistance.
Back brace
109.Mr Musgrove confirmed that he had obtained a back brace shortly after Dr Wallace’s recommendation and had been using it consistently since. He estimated he used it around 5 days out of 7 and that it did help for short periods and with certain tasks.
Epidural Injection
110.Mr Musgrove agreed that Dr Cunningham, Orthopaedic Surgeon, had recommended an epidural spinal injection to see if this could significantly reduce Mr Musgrove’s back pain.
111.When asked why he had not proceeded with this treatment Mr Musgrove advised that he was not keen and his understanding was any pain relief would only be temporary. He believed he would not be able to have more than 3 injections in total. He explained that he did not see the point in getting used to having no pain when he would then go back to having pain again.
112.He had not been back to Dr Cunningham to obtain any updated information on this.
Surgery
113.Mr Musgrove agreed that Dr Wallace and Dr Cunningham had suggested he may need to consider back fusion surgery or a discectomy if his condition deteriorated. He noted that he was not very keen on the idea of surgery and would need to be very impaired before he would consider that. It was his recollection that his surgeon had suggested that surgery had only a 30% success rate and that Mr Musgrove should only consider it if he was unable to get out of bed.
Pain Clinic attendance
114.It was Mr Musgrove’s belief that he had attended a pain clinic held at the hospital in a near-by town. He said that he found it too difficult to drive there and back, particularly when he was in pain, so although he was meant to attend weekly he only went three times in two months.
115.When questioned about what sort of service was involved in this pain clinic Mr Musgrove advised that it was supervised by a physiotherapist and he was required to do exercises with equipment in an attempt to strengthen his leg muscles. He said the exercises were too much for him so he simply stopped going. He advised he did not at any time see a doctor or discuss pain management strategies.
Neurosurgical review
116.Mr Musgrove advised that he has not been referred to another specialist and that as Dr Cunningham is a 2 ½ hour drive away he would find it very difficult to get there for a review.
Commentary on Medical Reports
117.Mr Musgrove was asked about the report of Dr Mann in which Dr Mann recorded Mr Musgrove’s condition as ‘stable’ and not requiring significant amounts of analgesia.
118.Mr Musgrove agreed that his condition remained stable if he made sure he ‘stayed within his limits’.
119.Mr Musgrove advised the Tribunal that he was not present when Dr Mann completed his report to the NDIA and he had not been consulted on any of the questions asked by the NDIA.
120.Mr Musgrove did not agree that his medication regime was useful or that Dr Mann had listened to him in relation to finding medication that worked. He advised he had tried a number of different medications at his doctor’s recommendation and was now just working his way through left over boxes of these. He felt neither the Panadeine nor Nurofen was helping him. He indicated he wished to find another doctor who he felt might listen to him and work with him to find better pain relief options.
121.In relation to the physiotherapy reports of Ms Low, Mr Musgrove’s oral evidence indicated agreement with the information she had provided. He disagreed with the commentary about his lung surgery and application to NDIS for short term assistance only, explaining that although a lung lesion was suspected to be cancer, on further scans no lesion was visible and surgery did not proceed. He confirmed he sought NDIS assistance on an ongoing basis due to his back pain.
122.Mr Musgrove advised he had read the report of Mr Elliot Mate and that there was nothing in the report that he felt needed to be corrected. He agreed with being able to manage his communication, social interaction and self-management without supports. He would prefer some help with his heavier home duties.
123.Mr Musgrove agreed, on questioning by the Agency, that he had been given the contact details of a local service, Interreach, which might be able to provide him with home help on an ongoing basis. He had not contacted them prior to the commencement of the hearing but indicated his intention to try after Christmas.
124.After the hearing reconvened after lunch, Mr Musgrove advised the Tribunal he had made contact with Interreach and had been advised someone would be in contact with him after the Christmas period to assess him for service.
Evidence of Mr Elliot Mate, Occupational Therapist (provided under affirmation)
125.Mr Mate advised the Tribunal he was a qualified Occupational Therapist who has been practising for 7 years. He advised he also had some 3 years additional experience as a disability support worker.
126.Mr Mate was directed to his report dated 27 May 2024 and confirmed that:
a. The report contained his professional opinion based on the facts he had recorded, which facts he believed to be true;
b. to the best of his recollection there were no corrections that needed to be made to the report;
c. the evidence he gave would be in accordance with the Australian Occupational Therapy Professional Code of Conduct and his obligations to the Tribunal.
Mr Mate advised that when undertaking a Functional Capacity Assessment his methodology included:
a. Reading the letter of referral/instruction with accompanying medical documents;
b. Visiting the applicant in their home environment;
c. Interviewing the applicant about their medical history, social history, conditions, symptoms, treatments (current and prior) and any current supports they are receiving.
d. Conducting functional observations and assessments of the applicant’s task performance in the applicant’s own environment.
Relevant to Mr Musgrove’s condition, Mr Mate stated that:
a. The primary diagnosis was chronic lumbar pain with left leg radiculopathy;
b. Mr Musgrove described constant pain in his lower middle back with numbness and reduced sensation from the anterior of his left hip extending down to his left foot. Mr Musgrove rated this pain as ranging from six out of ten on a good day to ten out of ten on a bad day.
c. Mr Mate did not recall or record Mr Musgrove advising of neck pain;
d. Mr Musgrove advised that bad days usually occurred when he had done too much, and that repetitive bending, twisting, lifting or reaching tasks were particularly likely to cause exacerbation in his pain.
e. On the day of the assessment Mr Musgrove advised Mr Mate that he rated his pain at six out of ten.
Mr Mate took photographs throughout the assessment, partly to confirm his reporting and partly to help him remember when writing his reports. He confirmed that in his view the house was maintained exceptionally well, clean, organised and tidy, and the gardens and lawn were all well maintained also.
Mr Mate then verbally confirmed to the Tribunal his observations of Mr Musgrove’s task completion and his opinions as to functional capacity as set out in his report (and detailed in paragraphs [70 ] to [ 93] above).
Mr Mate observed that it was to Mr Musgrove’s credit that he had found ways to modify the way he completed tasks so that he could remain as independent as possible. Mr Mate gave as his opinion that any difficulty completing tasks was solely a result of Mr Musgrove’s injury and that he, Mr Mate, did not observe any signs of contributory deconditioning in Mr Musgrove.
Mr Mate concluded his evidence by confirming that he had identified some community-based services which might be able to assist Mr Musgrove in completing some of his difficult domestic tasks (such as HACC - Home and Community Care Program for Younger People) and for provision of assistive equipment (such as Victorian Aids and Equipment Program and State-wide Equipment Program).
Mr Mate remained of the view that Mr Musgrove was essentially independent in all relevant domains of communication, social interaction, learning, mobility, self-care and self-management, albeit some tasks were more difficult for him.
At the conclusion of Mr Mate’s evidence Mr Musgrove agreed that Mr Mate’s evidence was in line with his experience of the assessment. He did not wish to seek any clarification from Mr Mate.
Evidence of Ms Thompson, Case Manager of NDIA (given under affirmation)
Ms Thompson gave evidence to the Tribunal that she had personally phoned Interreach, the community organisation in Mr Musgrove’s town contracted to operate the HACC scheme.
As a result of her enquiries Ms Thompson believed domestic cleaning and garden maintenance services were offered by Interreach and were likely to be available for a person of Mr Musgrove’s age, medical conditions and impairments. He would need to make contact for assessment.
CLOSING SUBMISSIONS
In closing the Agency maintained its view that Mr Musgrove did not meet the access requirements on the basis that:
a. The evidence did not satisfy the requirement that impairments were permanent. The Agency maintained their position that there were some treatment modalities (further physiotherapy, pain clinic referral and epidural injections) which had potential to reduce Mr Musgrove’s pain sufficiently to improve his function. The Agency argued that it was not possible for the Tribunal to be satisfied the impairments were permanent until these treatments had been tried. It was their submission ‘remedy’ should be given its ordinary dictionary meaning of ‘easing’ or ‘alleviating’ pain.
b. The evidence did not satisfy the requirement that Mr Musgrove’s impairment must ‘substantially reduce his functional capacity’ as anticipated by the Act. Whilst acknowledging Mr Musgrove’s very real difficulties, the Agency’s position was that these did not meet the high threshold of ‘substantially reduced functional capacity’ as required by the NDIS Act.
c. The evidence did not satisfy the requirement that NDIS supports were required for Mr Musgrove’s lifetime where there was evidence other services may be available to assist. It was not the role of the NDIS to step in where other community services could be utilised instead. Equipment recommendations were not specialised items and were widely available commercially.
d. Finally, the evidence did not support a finding that early intervention criteria were met, due in part to the permanency issue and in part to the fact that intervention is not likely to reduce support needs over time or alleviate Mr Musgrove’s impairments.
In response Mr Musgrove expressed his frustration that it seemed he was disabled enough to not be able to work anymore but not disabled enough to qualify for the NDIS. He agreed that the intent of his application was to obtain some assistance at home so that he could maintain his function for as long as possible. He expressed his belief that if he pushed himself too much he would end up in a wheelchair.
CONSIDERATION
ARE THE ACCESS CRITERIA MET
Section 21 of the NDIS Act provides that a person meets the access criteria if the CEO is satisfied the person meets the age, residence and disability requirements.
As the task before the Tribunal is to stand in the shoes of the CEO in relation to the decision under review, it is now the Tribunal who must reach the required level of positive satisfaction that the access criteria are met.
The Age and Residence Requirements
It is not in dispute between the parties that Mr Musgrove meets the age and residence criteria set out in sections 22 and 23 of the NDIS Act.
He was under 65 years of age at the time his application to the NDIA was made and he was a resident citizen of Australia at the time the application was considered. I accept and find these criteria are met.
The Disability Requirements
I will firstly consider the disability requirements set out in section 24 of the NDIS Act. As noted above, these are cumulative in nature and must all be met in order for Mr Musgrove’s application to succeed.
Section 24(1)(a) – Does Mr Musgrove have a disability attributable to a relevant impairment?
The Agency has accepted that Mr Musgrove has a disability attributable to a physical impairment, namely chronic low back pain with left leg radiculopathy[17]. The Tribunal also needs to be satisfied of this fact.
[17] Respondent’s Statement of Facts, Issues and Contentions (A1) [15]
There is no definition of disability or impairment in the NDIS Act but the Access Guidelines suggest that in thinking about disability the Agency will consider whether there is any reduction or loss in a person’s ability to do things (across all life domains) because of an ‘impairment’. An impairment is said to be a ‘loss of or significant change to the body’s function, your body’s structure or how you think and learn’.[18]
[18] Applying to the NDIS Guidelines p6
Medical evidence before the Tribunal[19] sets out the history of Mr Musgrove’s workplace injury on 12 November 2018, sustained while operating a forklift.[20] The relevant diagnosis was of a L5/S1 disc protrusion and tear, with some impact on the S1 nerve root observed on imaging. Mr Musgrove reported continued low back and left leg pain and stiffness which was said to impact on his ability to mobilise, drive and lift.[21] These reports have been consistent throughout the history of Mr Musgrove’s condition.
[19] SD4, SD5, SD8
[20] SD2 to SD11
[21] SD8
On the basis of the medical evidence, I am satisfied and find that as a result of Mr Musgrove’s chronic low back pain with left leg radiculopathy he has a disability attributable to a physical impairment.
The Agency has properly conceded this criterion is met.
Section 24(1)(b) – Is Mr Musgrove’s physical impairment permanent?
Section 24(1)(b) provides that a relevant impairment must be permanent, or likely to be permanent, before eligibility to access the scheme will be established.
In National Disability Insurance Agency v Davis (Davis), Mortimer J explained that the critical consideration for this section is that it is the impairment, not the cause of the impairment or the underlying medical diagnosis, which must be permanent.[22]
[22] National Disability Insurance Agency v Davis [2002] FCA 1002 (Davis) [86]
In considering whether Mr Musgrove’s chronic low back pain based physical impairment is permanent the Tribunal must also apply the relevant access Rules which include the following:
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 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.
In Davis, Mortimer J considered the meaning of ‘permanent’ in relation to sections 24 and 25 and formed the view that in the context of the Act the best interpretation to be applied would be ‘enduring’. She re-iterated that the descriptor should be applied to the impairment, not the causative medical condition, and that in considering whether medical treatment might ‘remedy’ the condition (as set out in Rule 5.4) the proper enquiry would be to ask whether available treatment might result in ‘something approaching a removal or cure of the impairment.’ It was not sufficient, in her view, for proposed further treatment to simply relieve or improve the impairment. [23]
[23] Davis [136]
In Davis Mortimer J also expressed the view that ‘available’ should be understood as meaning available to a particular individual – to construe it to mean available in Australia would vary little from ‘known’.[24]
[24] Davis [138]
154.This introduces a subjective element in assessing any proposed, alternative treatment options which allowed Mortimer J to find a potential treatment identified for Ms Davis was not ‘available’ because it was not affordable for Ms Davis.
The Agency’s position
In this matter the Agency contends the Tribunal does not have sufficient evidence before it to be positively satisfied that Mr Musgrove’s impairments are permanent.[25] They contend that the medical evidence submitted identifies a range of treatments which it appears Mr Musgrove has not pursued and which may make a significant difference to his pain and therefore his level of impairment.
[25] A1 [19]
The Agency contends that, in line with Rule 5.6, it is simply not possible to know whether the impairment is permanent until Mr Musgrove has exhausted his available treatment options.
157.The potential treatments the Agency has identified as ‘available and appropriate evidence-based clinical, medical or other treatments’ include:
a.) Optimised and targeted medication. The Agency contends Mr Musgrove’s evidence is that his pain medication is not very effective and that he would like to seek the opinion of another doctor. It is suggested that better pain management may assist in improving Mr Musgrove’s pain-limited function;
b.) Physiotherapy treatment. The Agency contends that it appears physiotherapy was of assistance in improving and maintaining physical and functional capacity. Since ceasing physiotherapy, reports suggest that Mr Musgrove’s condition has deteriorated, his pain has increased and his function has decreased. It is argued that resumed physiotherapy may assist Mr Musgrove to regain his lost function;
c.) Lumbar spinal brace. The Agency notes a lumbar spinal brace was recommended by a consulting neurosurgeon in 2019 but that it was unclear whether this has been tried by Mr Musgrove[26];
[26] A1 [19.3]
d.) Epidural injection. The Agency notes a 2020 recommendation by an orthopaedic surgeon that Mr Musgrove try epidural injection for pain relief. The Agency further notes there is no evidence this was pursued and that in the report of Mr Carey, neurosurgeon, dated 22 February 2021 it is noted Mr Musgrove was ‘not keen’ on this option[27];
[27] A1 [19.3]
e.) Attendance at a pain clinic. The Agency notes a recommendation by Mr Musgrove’s General Practitioner, Dr Kamaljit Mann, (in a response to targeted questions dated 9 February 2024) that review by a pain clinic may be helpful[28] ;
[28] A1 [19.4
f.) Further neurosurgical review. Dr Mann also suggested Mr Musgrove might benefit from a further neurosurgical review[29];
[29] A1 [19.4]
g.) Spinal surgery. The Agency notes a possible recommendation by a neurosurgeon in 2019 that surgical intervention (by way of lumbar discectomy and/or fusion) could be considered. This has not been pursued to date.[30]
[30] A1 [19.3]
158.Mr Musgrove’s evidence about these treatment options is set out in paragraphs [102] to [116] above.
159.Under the Rules an impairment is permanent (or likely to be so) only if there are no known, available and appropriate evidence-based clinical, medical or other treatments that would be likely to remedy the impairment.[31] The Rules contemplate that there may be occasions in which determination about the permanency of an impairment could be made until medical treatment has been completed and a further review undertaken.[32]
[31] Rule 5.4
[32] Rule 5.6
160.It is apparent from the evidence of Mr Musgrove that the functional limitations and impairments he experiences largely arise from his experience of chronic lumbar pain. The modifications he has made in completing activities and tasks are primarily designed (and developed by his experience) to avoid exacerbation of this pain beyond a manageable level.
161.If treatment were available that might result in a reduction in that pain experience, it would seem reasonable to expect that the impairment arising from that pain might also improve. In that case the Tribunal could not be satisfied Mr Musgrove’s impairment is permanent as required by the Act.[33]
[33] Rule 5.6
162.I have considered the treatments the Agency has identified as possibly outstanding and make the following findings in light of the available evidence:
a. Optimised and targeted medication and referral to a pain clinic: I consider these two options sit logically together.
It is Mr Musgrove’s evidence that to date he has relied on his GP for pain relief recommendations and has not been happy with the results. Presently he is ‘finishing off’ boxes of medication from previous prescriptions and has flagged his desire to find another GP for a second opinion on medication. It also appears from his 2024 report that Dr Mann has a different view of the significance of Mr Musgrove’s pain experience. It may be that a different doctor, particularly a pain specialist, might have a different view and different recommendations. On the basis of this I am not satisfied that pain medication options for Mr Musgrove have been optimised and that there are no alternatives that might remedy his pain and therefore his impairment.
A logical source for up-to-date pain management strategies would seem to be a specialist pain clinic. This is a treatment option Dr Mann has identified as potentially beneficial but has not progressed. Although Mr Musgrove believes he has attended a ‘pain clinic’ at the nearby hospital, it is apparent from his description (a physio run exercise program to strengthen his legs) that this was not a pain clinic, as generally understood, involving a multi-disciplinary treatment program headed by a pain specialist. Although no evidence was provided as to availability of pain clinics for Mr Musgrove, I believe they are available in Victoria, including in some of the larger regional centres which are more accessible for Mr Musgrove.
b. Physiotherapy treatment: I accept the evidence of Ms Low that physiotherapy at this late stage is unlikely to result in marked improvement of Mr Musgrove’s condition. Mr Musgrove continues to utilise the stretches and exercises given to him by Ms Low as a means of maintaining his function. I do not have any evidence to suggest physiotherapy would remedy Mr Musgrove’s impairments in the manner envisaged by Mortimer J in Davis.[34] I do not accept the Agency’s submissions that it is enough for the treatment to ‘ease’ symptoms.
[34] Davis [85]
c. Lumbar Spine Brace: I accept Mr Musgrove’s evidence that he has and continues to utilise a spinal brace with some limited benefit.
d. Epidural injection: Mr Musgrove has a fixed view that this treatment would provide short term relief only and is limited to 3 injections only. He therefore considers the treatment is not worth pursuing. I do not accept Mr Musgrove’s view. His specialist orthopaedic surgeon felt the treatment offered potential relief for Mr Musgrove and, without more, I find I cannot be satisfied of permanence while this treatment remains untested.
e. Further neurosurgical review and/or surgery. Mr Musgrove last consulted a neurosurgeon as part of his workers compensation claim in 2019 and an orthopaedic surgeon in 2020. Future surgery was flagged as a possibility should Mr Musgrove’s condition deteriorate. Currently Dr Mann, GP, agrees that should Mr Musgrove’s condition deteriorate it would be reasonable for Mr Musgrove to attend a neurosurgeon for further review. Dr Mann is of the view, however, that Mr Musgrove’s current circumstance does not justify a neurosurgical review (with a view to surgery) at this time. (This is a view Mr Musgrove agrees with). I accept this evidence.
163.In summary, on the basis of my findings as to appropriate, available, evidence-based treatments, I find that there are treatments that Mr Musgrove could still pursue that might remedy his pain and therefore his impairment (pain clinic, optimised medication and epidural injections). As such I cannot be positively satisfied that Mr Musgrove’s impairments are, or are likely to be, permanent.
164.Permanency of impairment is a mandatory criterion for both the disability and the early intervention requirements. As I have found Mr Musgrove’s impairment can’t be considered to be permanent, it follows that I must therefore find that Mr Musgrove does not meet either the disability requirements (per section 24(1)(b)) or the early intervention requirements (per section 25(1)(a)(i)).
165.Having reached a conclusion as to the permanency of Mr Musgrove’s impairments it is not necessary for me to consider the other criteria.
166.If I were required to do so, however, the evidence before me would lead to a finding Mr Musgrove does not meet the requirement of substantially reduced functional capacity, or the requirement for NDIS supports for his lifetime.
167.For completeness I will briefly explain why below.
Section 24(1)(c) – Do Mr Musgrove’s impairments result in substantially reduced functional capacity?
168.In considering Mr Musgrove’s functional capacity I have relied on the evidence provided by Mr Mate, Occupational Therapist in his functional capacity assessment report, and at hearing.
169.I note this was evidence which Mr Musgrove accepted without correction.
170.Rule 5.8 provides 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.
171.Mr Mate did identify some specific difficulties for Mr Musgrove, but his overall conclusion was that Mr Musgrove remained functionally independent in all domains relevant to the NDIS Act.
172.The threshold for ‘substantially reduced functional capacity’ as contemplated by the NDIS Act is necessarily high. As discussed by Senior Member Collins in Albiol and NDIA[35] the NDIS was not intended to support every person with a disability, but rather a relatively small sub-group within that category. This was central to the operation of the scheme to ensure its financial sustainability.
[35] [2024] AAT 496 [68-69]
173.There is no doubt that Mr Musgrove’s function is impaired as a result of his pain. It is clear that there are some individual tasks that are too difficult for him to complete reliably (garden maintenance and changing his bed clothes)[36] and that he has to frequently modify his approach when undertaking other tasks.
[36] In NDIA and Foster [2023] FCAFC 11 [93] (Foster) the Court held that a person will not be deemed to have substantially reduced functional capacity simply because one task is unable to be completed without assistive technology. The Tribunal was instead required to assess the degree to which the person could participate in the activity as a whole. An inability to manage bed changing therefore does not mean Mr Musgrove could not manage the whole activity of self-care.
174.Overall, however, I am satisfied on the basis of the report of Mr Mate that Mr Musgrove retains independent capacity with respect to all the activity areas relevant to the NDIS Act.
175.I therefore would find Mr Musgrove does not meet the requirement in section 24(1)(c).
Do Mr Musgrove’s impairments affect his capacity for social or economic participation?
176.The Agency does not dispute that Mr Musgrove’s impairments affect his capacity for social or economic participation.
177.Having regard to the assessment of Mr Mate it is clear that Mr Musgrove is limited in his ability to sustain activities or fixed positions for any length of time. It was Mr Mate’s observation that Mr Musgrove must alter his position or activity regularly, particularly sitting, standing and walking.
178.This inability to maintain any one activity for any length of time would likely hamper Mr Musgrove’s ability to maintain employment, and indeed did so during his workers compensation claim when he was unable to maintain a work return.
179.I therefore agree with the Agency and find that Mr Musgrove’s impairments affect his capacity for social or economic participation. This criterion is met.
Does Mr Musgrove require NDIS supports for his lifetime as a result of his impairments (section24(1)(e))?
180.Mr Musgrove advised the Tribunal that he wished to access the NDIS so he could obtain assistance with domestic cleaning and garden maintenance.
181.Ms Thompson of the NDIA gave evidence to the Tribunal that she had contacted a local community organisation, Interreach, and had been advised that service was likely to be able to offer cleaning and gardening services to a person in Mr Musgrove’s circumstance.
182.This service was part of the Home and Community Care for Young People program that Mr Mate had identified as a possible source of local assistance for Mr Musgrove.
183.In Foster the Court held that ‘the focus of section 24(1)(e) is on whether a prospective participant is likely to require support under the NDIS, or whether those support needs are most appropriately met by other systems.’
184.In this circumstance it appears that there are other local community-based systems which are available, and more appropriate, for Mr Musgrove to access and as a result he would not require NDIS services for his lifetime.
Are the early intervention requirements met?
185.As I have found that Mr Musgrove’s impairments are not permanent, the Early Intervention Requirements are not met and I do not need to consider any other part of section 25 of the Act.
CONCLUSION
186.The Tribunal acknowledges that as a result of his chronic low back pain Mr Musgrove suffers from a painful condition which impacts his life and his capacity for daily activities.
187.However, on the totality of the evidence before it, the Tribunal has found that Mr Musgrove’s impairment cannot yet be said to be ‘permanent’ in the manner contemplated by the NDIS Act.
188.As permanency of impairment is a foundational requirement for both the disability requirements in section 24 of the NDIS Act and the early intervention requirements in section 25 of the NDIS Act, Mr Musgrove does not at this time meet the access criteria under section 21 of the NDIS Act to become a participant in the NDIS.
189.As I have reached the same conclusion as the decision under review I will affirm that decision.
DECISION
190.The Tribunal affirms the decision under review pursuant to subsection 105(a) of the Administrative Review Act 2024.
Applicant representative: Self-represented
Respondent Counsel: Ms Allen
Respondent Solicitors: Maddocks Lawyers
0
1
0