Nika & National Disability Insurance Agency
[2021] AATA 2127
•6 July 2021
Nika and National Disability Insurance Agency [2021] AATA 2127 (6 July 2021)
Division:NATIONAL DISABILITY INSURANCE SCHEME DIVISION
File Number(s): 2019/6512
Re:Etleva Nika
APPLICANT
AndNational Disability Insurance Agency
RESPONDENT
Decision
Tribunal:Deputy President F Meagher
Date:6 July 2021
Place:Brisbane
The Tribunal affirms the decision under review pursuant to paragraph 43(1)(a) of the Administrative Appeals Tribunal Act 1975 (Cth).
......................[SGD]......................
Deputy President F Meagher
Catchwords
NATIONAL DISABILITY INSURANCE SCHEME – access criteria – whether applicant meets disability requirement – complex facture of left leg – chronic post-traumatic musculoskeletal pain – adjustment disorder with anxiety and depressed mood – post-traumatic stress disorder – whether impairments substantially reduce functional capacity – whether impairments affect applicant’s capacity to undertake social interaction, mobility and or self-care – whether applicant likely to require support under NDIS for lifetime – whether early intervention requirements met – decision under review affirmed
Legislation
National Disability Insurance Scheme Act 2013 (Cth) ss 3, 4, 13, 21, 24, 25, 27 209
National Disability Insurance Scheme (Becoming a Participant) Rules 2016 (Cth) r 5.8
Cases
G v Minister for Immigration and Border Protection (2018) 266 FCR 511
Mulligan and National Disability Insurance Agency (2015) 149 ALD 408
Mulligan v National Disability Insurance Agency (2015) 233 FCR 201
Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355
Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634
Secondary Materials
‘Access to the NDIS Operational Guidelines’, National Disability Insurance Agency (Web Page, 6 July 2021) < cl 8.3
Explanatory Memorandum, National Disability Insurance Scheme Bill 2013 (Cth)
Explanatory Statement, National Disability Insurance Scheme (Becoming a Participant) Rules 2016 (Cth)
REASONS FOR DECISION
INTRODUCTION
This is a decision about whether Ms Etleva Nika (the Applicant), 45 years old, meets the access requirements to become a participant in the National Disability Insurance Scheme (the NDIS).
On 21 September 2018, the Applicant made an application to become a participant in the NDIS by way of an Access Request Form stating that her disabilities were ‘[c]hronic post traumatic musculoskeletal pain and adjustment disorder with anxious and depressed moods…’.[1] The Applicant subsequently included complex fracture of the left leg and PTSD as disabilities for the purpose of requesting access to the NDIS.
[1] Exhibit 1, T4, 47 and 50.
On 13 May 2019, that application was refused as set out in a decision of a delegate of the National Disability Insurance Agency (the Respondent) on the basis that the Applicant did not meet the disability requirement nor the early intervention requirements necessary to access the NDIS. [2]
[2] Ibid T6, 57.
The Applicant requested review of that decision on 17 June 2019.[3] On 13 September 2019, the internal review decision affirmed the original decision on the basis that, as regards the complex fracture of the left leg, the delegate was not satisfied that the Applicant had substantially reduced functional capacity, or psychosocial function, to undertake communication, social interaction, learning, mobility, self-care and/or self-management (the decision under review). As regards the mental health conditions generally, the delegate made no finding in relation to diagnosis but was not satisfied that the conditions were permanent for the purposes of the NDIS Act. Further, the delegate was not satisfied that the early intervention requirements were alternatively met because given the long standing nature of the impairments, providing support now would not be considered early intervention and supports now would not be likely to reduce the Applicant’s future need for disability related supports.[4]
[3] Ibid T7, 59.
[4] Ibid T2, 4.
On 8 October 2019, the Applicant made an application for review of the decision under review to the NDIS Division of the Administrative Appeals Tribunal.
The application was heard by video hearing by the Tribunal in Brisbane on 28, 29 and 30 September 2020. The Applicant had legal representation for the duration of the hearing process. Closing submissions were provided respectively as follows: by the Applicant on 1 October 2020, the Respondent on 9 October 2021 and in reply by the Applicant on 15 October 2020.
BACKGROUND
The Applicant was involved in a motor vehicle accident on her way to work in June 2005 which led to injuries including compound fractures of her tibia and fibula and right ankle, and ongoing pain. The brakes on the vehicle she was driving failed and she crashed into a metal barrier.
Since June 2005, the Applicant has undergone numerous surgeries on her legs for injuries resulting from the accident and was referred to a psychologist in October 2005, with psychological treatment continuing until around 2009. She was also, as part of her rehabilitation, referred to a physiotherapist and consulted a psychiatrist.
Prior to the accident, the Applicant lived alone in an apartment. After the accident she was assisted by her sister and her parents who came from Albania to help and support her. Her mother remains living in Australia, although her father has returned to Albania. The Applicant’s mother no longer lives with her, although lives in a unit nearby. Other members of the Applicant’s family, including her brother and sister-in-law also live nearby.
The Applicant met her husband in 2013, they married in September 2014, and moved in together in 2015. The Applicant and her husband built a house together, to which she contributed the proceeds of her compensation claim. They moved into that home in May 2017. The Applicant’s husband works as a project manager, and prior to COVID 19 travelled internationally for work three to four nights per week, during which time the Applicant lived alone.
Since the accident the Applicant has worked as a business manager at several schools. In 2016 the Applicant’s pain exacerbated, and on 9 May 2016 she was referred to Dr Graham Rice, Psychiatrist, Pain Medicine Psychiatry. According to the closing submissions of the Respondent, which were, in this regard, accepted and adopted by the Applicant, the referral to Dr Rice was to help the Applicant understand the link between pain and mood, and how to handle stressors differently so that they did not cause anxiety and influence her pain tolerance.[5] Low doses of medication were given to help both mood and pain.[6]
[5] Respondent’s Outline of Submissions (in closing) dated 9 October 2020, [16]; Exhibit 1, T3L.
[6] Exhibit 1, T3L.
On or around 11 July 2016, the Applicant commenced a return to work program at a state primary school, initially working three hours per day for three days per week. That was progressively upgraded such that by May 2017 she was working in a permanent position as business manager of the school. At the time of the hearing the Applicant was working five hours per day four days a week (not Wednesdays).[7] The Applicant remains subject to a Work Restrictions and Approved Reasonable Adjustments Plan.
[7] Respondent’s Outline of Submissions (in closing) dated 9 October 2020, [17].
LEGISLATION
The objects of the National Disability Insurance Scheme Act 2013 (Cth) (the NDIS Act) are set out in section 3 and include to give effect to Australia’s responsibilities under the Convention on the Rights of Persons with Disabilities established at the United Nations Headquarters in New York on 13 December 2006,[8] and facilitate the development of a nationally consistent approach to access to, and planning and funding of, supports for people with disability.[9] The NDIS Act also states that, in giving effect to the objects of the Act, regard is to be had to the need to ensure the financial sustainability of the NDIS.[10]
[8] [2008] ATS 12, ratified by Australia on 17 July 2008.
[9] NDIS Act s 3(1)(f).
[10] Paragraph 3(3)(b).
There are general principles guiding actions under this act as set out in section 4 of the NDIS Act and they relevantly include that people with disability be:
·supported to participate in and contribute to social and economic life to the extent of their ability;[11]
·able to receive the care and support they need over their lifetime and that there be certainty around this;[12]
·supported to pursue their goals and maximise their independence;[13]
·supported to live independently and to be included in the community as fully participating citizens;[14] and
·able to undertake activities that enable them to participate in the community and in employment.[15]
[11] Subsection 4(2).
[12] Subsection 4(3).
[13] Paragraph (4)(11)(a).
[14] Paragraph (4)(11)(b).
[15] Paragraph (4)(11)(c).
The provisions relating to access to the scheme are contained in Part 1 of Chapter 3 of the NDIS Act. Section 21 of the NDIS Act provides that for a person to meet the access criteria, they must meet the age and residence requirements in addition to either the disability requirement (section 24 of the NDIS Act) OR the early intervention requirements (section 25 of the NDIS Act).
The NDIS Act also provides, in subsection 209(1), that the Minister may make rules prescribing matters under the NDIS Act. Section 27 of the NDIS Act further states that the rules may prescribe circumstances in which, or criteria to be applied with respect to assessing whether, a person meets the disability requirements under section 24 or the early intervention requirements under section 25 of the NDIS Act. The relevant rules are the National Disability Insurance Scheme (Becoming a Participant) Rules 2016 (Cth) (the NDIS Access Rules).
There are also operational guidelines issued in relation to the access criteria under the NDIS Act, the ‘Access to the NDIS Operational Guideline’ (the Access Guideline).[16] The Tribunal must give consideration to all of the material before it which includes the existence, and content, of policy unless it is unlawful or unless its application would produce an unjust decision in the overall circumstances of the particular case.[17] Further guidance in relation to the application of policy is found in G v Minister for Immigration and Border Protection which is authority for the proposition that policy is one of all of the considerations that the Tribunal must take into consideration.[18]
[16] ‘Access to the NDIS Operational Guidelines’, National Disability Insurance Agency (Web Page, 6 July 2021) < Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634, 645.
[18] G v Minister for Immigration and Border Protection (2018) 266 FCR 511, 564 [266].
THE ACCESS CRITERIA
The parties accept that the Applicant meets the age and residence requirements.[19]
[19]Respondent’s Outline of Submission (in closing) dated 9 October 2021, [32].
The primary issues in dispute are whether the Applicant meets the following access criteria to become a participant in the NDIS:
(i)the disability requirements contained in section 24 of the NDIS Act; or
(ii)the early intervention requirements set out in section 25 of the NDIS Act.
With respect to the disability requirements, section 24 of the NDIS Act provides:
Disability requirements
1A person meets the disability requirements if:
(a)the person has a disability that is attributable to one or more intellectual, cognitive, neurological, sensory or physical impairments or to one or more impairments attributable to a psychiatric condition; and
(b)the impairment or impairments are, or are likely to be, permanent; and
(c)the impairment or impairments result in substantially reduced functional capacity to undertake, or psychosocial functioning in undertaking, one or more of the following activities:
(i) communication;
(ii) social interaction;
(iii) learning;
(iv) mobility;
(v) self‑care;
(vi) self‑management; and
(d)the impairment or impairments affect the person’s capacity for social or economic participation; and
(e)the person is likely to require support under the National Disability Insurance Scheme for the person’s lifetime.
2For the purposes of subsection (1), an impairment or impairments that vary in intensity may be permanent, and the person is likely to require support under the National Disability Insurance Scheme for the person’s lifetime, despite the variation.
(Emphasis added)
With respect to the early intervention requirements, section 25 of the NDIS Act provides:
Early intervention requirements
1A person meets the early intervention requirements if:
(a)the person:
(i) has one or more identified intellectual, cognitive, neurological, sensory or physical impairments that are, or are likely to be, permanent; or
(ii) has one or more identified impairments that are attributable to a psychiatric condition and are, or are likely to be, permanent; or
(iii) is a child who has developmental delay; and
(b)the CEO is satisfied that provision of early intervention supports for the person is likely to benefit the person by reducing the person’s future needs for supports in relation to disability; and
(c)the CEO is satisfied that provision of early intervention supports for the person is likely to benefit the person by:
(i) mitigating or alleviating the impact of the person’s impairment upon the functional capacity of the person to undertake communication, social interaction, learning, mobility, self‑care or self‑management; or
(ii) preventing the deterioration of such functional capacity; or
(iii) improving such functional capacity; or
(iv) strengthening the sustainability of informal supports available to the person, including through building the capacity of the person’s carer.
Note: In certain circumstances, a person with a degenerative condition could meet the early intervention requirements and therefore become a participant.
2The CEO is taken to be satisfied as mentioned in paragraphs (1)(b) and (c) if one or more of the person’s impairments are prescribed by the National Disability Insurance Scheme rules for the purposes of this subsection.
3Despite subsections (1) and (2), the person does not meet the early intervention requirements if the CEO is satisfied that early intervention support for the person is not most appropriately funded or provided through the National Disability Insurance Scheme, and is more appropriately funded or provided through other general systems of service delivery or support services offered by a person, agency or body, or through systems of service delivery or support services offered:
(a)as part of a universal service obligation; or
(b)in accordance with reasonable adjustments required under a law dealing with discrimination on the basis of disability.
(Emphasis added)
In assessing whether a person meets the disability requirements or the early intervention requirements, section 27 of the NDIS Act provides:
National Disability Insurance Scheme rules relating to disability requirements and early intervention requirements
(1) The National Disability Insurance Scheme rules may prescribe circumstances in which, or criteria to be applied in assessing whether:
(a)one or more impairments are, or are likely to be, permanent for the purposes of paragraph 24(1)(b) or subparagraph 25(a)(i) or (ii); or
(b)one or more impairments result in substantially reduced functional capacity of a person to undertake, or psychosocial functioning of a person in undertaking, one or more activities for the purposes of paragraph 24(1)(c); or
(c)one or more impairments affect a person’s capacity for social and economic participation for the purposes of paragraph 24(1)(d); or
(d)the provision of early intervention supports is likely to benefit a person by reducing the person’s future needs for supports in relation to disability for the purposes of paragraph 25(1)(b); or
(e)the provision of early intervention supports is likely to benefit a person by mitigating, alleviating or preventing the deterioration of the person’s functional capacity to undertake one or more of the activities for the purposes of subparagraph 25(1)(c)(i) or (ii), or improving such functional capacity for the purposes of subparagraph 25(1)(c)(iii); or
(f)the provision of early intervention supports is likely to benefit a person by strengthening the sustainability of the informal supports available to the person, including through building the capacity of the person’s carer for the purposes of subparagraph 25(1)(c)(iv).
Rule 5.8 of the of the NDIS Access Rules outlines when an impairment results in ‘substantially reduced functional capacity’ to undertake relevant activities, as follows:
An impairment results in substantially reduced functional capacity of a person to undertake one or more of the relevant activities—communication, social interaction, learning, mobility, self-care, self-management (see paragraph 5.1(c))—if its result is that:
(a)the person is unable to participate effectively or completely in the activity, or to perform tasks or actions required to undertake or participate effectively or completely in the activity, without assistive technology, equipment (other than commonly used items such as glasses) or home modifications; or
(b)the person usually requires assistance (including physical assistance, guidance, supervision or prompting) from other people to participate in the activity or to perform tasks or actions required to undertake or participate in the activity; or
(c)the person is unable to participate in the activity or to perform tasks or actions required to undertake or participate in the activity, even with assistive technology, equipment, home modifications or assistance from another person.
The Tribunal is mindful that, as explained by Mortimer J in Mulligan v National Disability Insurance Agency (2015) 233 FCR 201 (Mulligan) if the deeming provisions in rule 5.8 of the NDIS Access Rules have been met, the person is taken to have a substantially reduced functional capacity, and if they are not met, the Tribunal is still required to determine whether the Applicant’s impairments otherwise result in substantially reduced functional capacity to undertake social interaction.
Clause 8.3 of the Access Guideline states than an impairment under paragraph 24(1)(c) of the NDIS Act results in a substantially reduced functional capacity if it affects a participant’s capacity to undertake one of more of the following activities:
The NDIA must be satisfied that an impairment results in substantially reduced functional capacity of a prospective participant to undertake one or more relevant activities (section 24(1)(c)).
The NDIA is required to consider whether any permanent impairment, or permanent impairments when considered together, result in substantially reduced functional capacity to undertake one or more of the following activities:
· Communication: includes being understood in spoken, written or sign language, understanding others and expressing needs and wants by gesture, speech or context appropriate to age;
· Social interaction: includes making and keeping friends (or playing with other children), interacting with the community, behaving within limits accepted by others, coping with feelings and emotions in a social context;
· Learning: includes understanding and remembering information, learning new things, practicing and using new skills;
· Mobility: this means the ability of a person to move around the home (crawling/walking) to undertake ordinary activities of daily living, getting in and out of bed or a chair, leaving the home, moving about in the community and performing other tasks requiring the use of limbs;
· Self-care: means activities related to personal care, hygiene, grooming and feeding oneself, including showering, bathing, dressing, eating, toileting, grooming, caring for own health care needs; or
· Self-management: means the cognitive capacity to organise one's life, to plan and make decisions, and to take responsibility for oneself, including completing daily tasks, making decisions, problem solving and managing finances.
The NDIA does not need to be satisfied that a person's impairment is 'serious', or more serious than another person's. Rather, access to the NDIS is based on a functional, practical assessment of what a person can and cannot do (see Mulligan and NDIA [2015] FCA 44 at [56]).
The NDIA will not need to consider whether a prospective participant's impairment results in substantially reduced functional capacity in relation to all of the relevant activities for every access request.
It is sufficient for a prospective participant to have substantially reduced functional capacity in relation to one activity (see Mulligan and NDIA [2015] FCA 44 at 67).
Which activity the NDIA will need to consider will depend on the circumstances and the evidence presented by the prospective participant.
For example, if a prospective participant has an impairment which results in substantially reduced functional capacity to undertake mobility, but otherwise has full cognitive capacity, it may not be necessary for the NDIA to consider whether the impairment results in substantially reduced functional capacity to undertake activities related to cognition.
(Emphasis added)
Clause 8.3.1 of the Access Guideline repeats the wording of rules 5.8(a), (b) and (c) of the NDIS Access Rules and also continues on to provide further guidance as follows:
An impairment results in substantially reduced functional capacity to perform one or more activities when:
· 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
· 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
· the person is unable to participate in the activity or to perform tasks or actions required to undertake or participate in the activity, even with assistive technology, equipment, home modifications or assistance from another person.
The following information provides further guidance in relation to determining when an impairment results in substantially reduced functional capacity:
By itself, reliance on commonly used items will not result in a substantially reduced functional capacity to participate effectively or completely in an activity. Commonly used items include glasses, walking sticks, non-slip bath mats, bathroom grab rails, stair rails, age appropriate child safety locks, simple adapted kitchen utensils and dressing aids.
In considering the role played by assistive technology, home modifications and equipment, the NDIA will consider specific needs arising from the prospective participant's impairment, and whether those needs are met (or need to be met) through the use of specialist disability aids and/or equipment.
Such items would generally be specifically designed to assist in increasing the functional capacity and participation of people with disability and be formally prescribed by a medical practitioner, specialist clinician or allied health professional such as an occupational therapist, physiotherapist or speech therapist.
When considering whether a person requires assistance from others to participate or perform tasks associated with an activity, the NDIA will have regard to whether a person's need for assistance is consistent with normal expectations of a person of a similar age. For example, children under the age of 2 will not necessarily have a substantially reduced functional capacity because they need assistance to provide for self-care needs.
A person will be considered to be unable to participate effectively or completely in an activity if they cannot safely complete one or more of the tasks required to participate in an acceptable period of time. Undertaking a task more slowly or differently to others will not necessarily mean a person cannot participate effectively or completely in an activity.
When considering whether a fluctuating or episodic impairment results in substantially reduced functional capacity to undertake relevant activities, the NDIA will consider the impact on the person's ability to function in the periods between acute episodes.
(Emphasis omitted)
ISSUES
THE DISABILITY REQUIREMENTS
Each of paragraphs (a) to (e) of subsection 24(1) of the NDIS Act need to be met in relation to one or more impairments to meet the access requirements on the basis of the disability requirements.
The Applicant contends that she has a disability that is attributable to:
a)complex fracture of the left leg;
b)chronic post-traumatic musculoskeletal pain;
c)adjustment disorder with anxiety and depressed mood; and
d)PTSD
The Respondent accepts that the Applicant has a disability attributable to the impairments of a complex fracture of the left leg, chronic post-traumatic musculoskeletal pain and adjustment disorder with anxiety and depressed mood, meeting the requirements of paragraph 24(1)(a) of the NDIS Act.[20] The Respondent does not accept that the Applicant has a diagnosis of PTSD.
[20] Respondent’s Statement of Facts, Issues and Contentions dated 15 July 2020 (RSFIC), [26]-[27].
The Respondent also accepts that the Applicant’s impairments of a complex fracture of the left leg, chronic post-traumatic musculoskeletal pain and adjustment disorder with anxiety and depressed mood are permanent within the meaning of paragraph 24(1)(b) of the NDIS Act.[21] Based on the evidence, the Tribunal is also satisfied that these impairments are permanent.
[21] Respondent’s Outline of Submission (in closing) dated 9 October 2021, [46].
The Respondent further accepts that the impairments affect the Applicant’s capacity for social or economic participation within the meaning of paragraph 24(1)(d) of the NDIS Act.[22]
[22] RSFIC, [41]; Respondent’s Outline of Submission (in closing) dated 9 October 2021, [117].
Based on the evidence led, the hearing was approached on the basis that the issues in dispute related to paragraph 24(1)(c) subparagraphs (ii), (iv) and (v) of the NDIS Act, relating to social interaction, mobility and self-care and section 25 of the NDIS Act.
The Applicant’s representative in opening submissions submitted the following:[23]
We would submit the applicant requires equipment, home modification and a significant level of assistance from other people, including her husband to participate effectively or completely in mobility, self-care and social interaction or perform tasks and actions associated with those activities. While we do believe that Ms Nika has substantially reduced functional capacity in relation to those three activities, we note it is sufficient for perspective to have substantially reduced functional capacity in relation to one activity, noting the case of Mulligan in the Federal Court.
[23] Transcript page 10 lines 28 – 35.
The Respondent’s Outline of Submission (in closing) dated 9 October 2021 (ROS) included the following:
48. The applicant does not contend that she has a reduced capacity to undertaking [sic] communication, learning and self-management.
49. The applicant’s submissions are limited to her reduced capacity in social interaction, mobility and self-care.
(Emphasis added; footnotes omitted)
The Applicant’s Response to the Respondent’s Outline of Submissions (in closing) dated 15 October 2020 (ARROS) state in response:
28. The Applicant does not admit paragraph 48 of the ROS. The Applicant has not admitted that she has no reduced capacity for communication, learning, or self-management.
The Tribunal notes that the question of whether the Applicant’s impairments result in substantially reduced functional capacity to undertake, or psychosocial functioning in undertaking, communication, learning and self-management were not ventilated before the Tribunal (other than to the extent to which they were touched upon by Ms Nancy Stephenson, Occupational Therapist, in her report commissioned by the Respondent dated 12 February 2020) and were not otherwise explored by either party, and accordingly the Tribunal does not consider them to have been in issue before it.
THE EARLY INTERVENTION REQUIREMENTS
Each of paragraphs (a) to (c) of subsection 25(1) of the NDIS Act need to be met to meet the access requirements on the basis of the early intervention requirements.
Similarly as in relation to paragraph 24(1)(b) of the NDIS Act, it is not in dispute that the Applicant’s impairments of a complex fracture of the left leg, chronic post-traumatic musculoskeletal pain and adjustment disorder with anxiety and depressed mood are permanent within the meaning of paragraph 25(1)(a) of the NDIS Act.[24]
[24] ROS, [46].
Therefore, the issues before the Tribunal in this matter are as follows:
THE DISABILITY REQUIREMENTS
Issue 1 – Does the Applicant have PTSD, such that it is a disability that is attributable to one or more intellectual, cognitive, neurological, sensory or physical impairments or to one or more impairments attributable to a psychiatric condition? (paragraph 24(1)(a) of the NDIS Act).
Issue 2 – If PTSD is a disability pursuant to paragraph 24(1)(a) of the NDIS Act is it, or is it likely to be, permanent? (paragraph 24(1)(b) of the NDIS Act).
Issue 3 – Do the Applicant’s impairments result in a substantially reduced functional capacity to undertake, or psychosocial functioning in undertaking the activities of social interaction, mobility and self-care? (subparagraphs 24(1)(c)(ii), (iv) and (v) of the NDIS Act).
Issue 4 – Is the Applicant likely to require support under the NDIS for her lifetime? (paragraph 24(1)(e) of the NDIS Act).
THE EARLY INTERVENTION REQUIREMENTS
Issue 5 – Is the CEO (or in this case the Tribunal standing in the shoes of the CEO) satisfied that provision of early intervention supports for the Applicant is likely to benefit her by reducing her future need for supports in relation to disability?
(paragraph 25(1)(b) of the NDIS Act).Issue 6 – Is the CEO (or in this case the Tribunal standing in the shoes of the CEO) satisfied that the provision of early intervention supports for the Applicant is likely to benefit her by mitigating or alleviating the impact of her impairment upon her functional capacity to undertake social interaction, mobility or self-care or prevent the deterioration of such functional capacity or improve such functional capacity or strengthen the sustainability of informal supports available to her, including through building the capacity of her carer? (paragraph 25(1)(c) of the NDIS Act).
THE EVIDENCE
The evidence before the Tribunal includes the following:
·oral evidence and statements of lived experience of the Applicant;
·oral evidence and statement of Jeffery Thomas, the Applicant’s husband;
·photographs;
·letters and/or reports and oral evidence from medical and allied health practitioners who have treated and/or examined and/or assessed the Applicant, namely:
oDr Graham Rice, Psychiatrist
oDr Curtis Staunton, General Practitioner
oMs Donna McCook, Physiotherapist
oMs Nancy Stephenson, Occupational Therapist
·summonsed material from the following medical practitioners relating to the assessment, diagnosis or treatment of the Applicant:
oDr Graham Rice, Psychiatrist
oDr Curtis Staunton, General Practitioner.
Also, before the Tribunal is material relating to the Applicant’s WorkCover claim including:
·decision of the Medical Assessment Tribunal dated 9 December 2008
·letters and/or reports from medical and allied health practitioners who have treated and/or examined and/or assessed the Applicant dated between 2005 – 2009, including:
oProfessor Ivor Jones, Consultant Psychiatrist
oDr David Hayes, Orthopaedic Surgeon
oMr Greg Farrugia, Psychologist
oMs Stephanie Johnson, Occupational Therapist
oMs Tertia Ferreira, Physiotherapist
oMr Barry Matthews, Podiatrist.
Evidence of the Applicant
The Applicant provided two statements of lived experience to the Tribunal, one undated[25] and one dated 5 June 2020.[26] In summary they set out the impact felt by the Applicant as a result of the accident including that she takes strong medication, balances her lifestyle very carefully to ensure that she can work and has been unable to follow her chosen career path as a result of the accident.[27]
[25] Exhibit 7.
[26] Exhibit 4.
[27] Ibid [9], [10], [11] and [14].
The Applicant’s statements of lived experience also set out the specific ways the Applicant claims to be impaired,[28] the limitations she says these impairments impose upon her[29] and the way she manages to work, including that she is subject to a Work Restrictions and Approved Reasonable Adjustments Plan.[30]
[28] Ibid [4] – [9].
[29] Ibid [12] and [13].
[30] Ibid [15].
The Applicant identifies the support she currently receives including, in particular, from her husband. That support encompasses assistance with shopping, kitchen cleaning, laundry, garden maintenance, rubbish disposal, household general maintenance, meal preparation, car cleaning, driving to and from appointments over 15 to 25 minutes away, and if possible driving to and from work, and additional care when her pain is aggravated.[31] The Applicant also receives assistance from her mother and CentaCare, and has a disabled parking permit.[32]
[31] Exhibit 4 [28], [31] and [32].
[32] Ibid [29], [33] and [34].
The Applicant sets out the support she says she needs and how that support would assist her to achieve her goals.[33] She says that other systems of support are inappropriate as CentaCare and other informal supports have been unsuccessful,[34] and reliance on her family, especially her husband, has a negative impact on them.[35]
[33] Ibid [35] – [38].
[34] Ibid [39].
[35] Ibid [40].
The Applicant also explains why she considers allied health and other therapeutic supports will assist in managing and maintaining her functional capacity and assist in preventing functional decline, which otherwise would increase the type and quantity of future supports.[36]
[36] Ibid [41] and [42].
The Applicant told the Tribunal that she currently works as a business manager at a local School.[37]
[37] Transcript page 18 lines 31 – 32.
The Applicant described having a motor vehicle accident in June 2005, arising through no fault of her own, from the failure of the brakes on the vehicle. She described her injuries and explained that she had a number of surgeries to her leg, that there were episodes of serious infection flowing from the surgeries and treatment, that she was at risk of losing her leg,[38] and unable to weight bear on it for three years.[39]
[38] Ibid page 21 lines 7 – 15.
[39] Ibid page 21 lines 33 – 34.
The Applicant was assisted upon discharge from hospital by family who had travelled from Albania. She continued to have treatment including orthopaedic surgery, psychiatry, psychology, physiotherapy and hydrotherapy under WorkCover, which she found difficult to deal with.[40]
[40] Transcript page 22 lines 28 – 37.
The Applicant explained that her current treatment consists of seeing a psychiatrist, Dr Rice, who she has been seeing since May 2016,[41] and that she has physiotherapy with Ms McCook once a fortnight.[42] She said that she had acupuncture, massages and used steam and sauna heat, which provided temporary relief, in the past.[43] She said she uses the heated pool at her gym.[44]The Applicant said that she now takes Targin, and in the past has been on extremely high doses of painkillers which she really disliked as they made it difficult for her to function.[45]
[41] Ibid page 22 lines 39 – 40.
[42] Ibid page 22 line 43.
[43] Ibid page 22 lines 44 – 46.
[44] Ibid page 23 line 46 – page 24 line 1.
[45] Ibid page 23 lines 9 – 29.
The Applicant told the Tribunal that she had met her husband since the accident, and that they had married six years before the hearing.[46] She said that her husband is very compassionate and really understood the effects of her injuries as she was bedridden for about four months from April 2016, when the pain, which had until then been confined to below her waist, started to spread up her spine to her back and arms.[47] The Applicant said that during that time she made concerted efforts to reduce her pain relief.
[46] Ibid page 23 lines 32 – 33.
[47] Ibid page 24 lines 27 – 40.
The Applicant explained that eventually she found Dr Rice, who she described as her ‘second saviour’ (after Dr David Hayes, her orthopaedic surgeon), because he prescribed the slow-release medication she now takes.[48]
[48] Ibid page 25 lines 1 – 6.
The Applicant gave evidence regarding her employment. She said she had to ‘write off’ 2016 due to her health, and after that she had a workplace assessment which made recommendations regarding adjustments she needed to have made to her workplace. She also said that she cannot work five days a week and that the school where she works is particularly suitable for her needs because it is small with accessible parking close to her ground floor office. She said she could only climb to the second floor once or twice a day.[49]
[49] Transcript page 25 line 9 – page 26 line 6.
In terms of physical impairments, the Applicant relied upon her statements of lived experience, but wished to expand upon them to impress upon the Tribunal the impact of the pain upon her, including providing examples of the changes she says she makes due to the pain, such as being unable to go to her wedding anniversary dinner the night before the hearing,[50] and the emotional toll those sorts of things take upon her. The Applicant stated that ‘this accident literally has burned a hole in my brain’.[51]
[50] Ibid page 28 lines 40 – 45.
[51] Ibid page 27 line 26.
In cross-examination the Applicant was asked about her work after the accident including relevantly after April 2016. In relation to the period after April 2016, the Applicant said that she started to return to work after four months[52] and progressively upgraded to her current roster which is five hours per day four days per week.[53] The Applicant stated that she had been assessed as having a standing tolerance of five minutes and a sitting tolerance of 45 minutes and uses a footstool to elevate her left leg.[54] After sitting for 45 minutes, the Applicant said that she typically gets up and does ‘a bit of a stretch’ and sits down again.[55]
[52] Ibid page 40 line 35.
[53] Ibid page 40 lines 37 – 38.
[54] Ibid page 40 lines 42 – 44.
[55] Ibid page 40 line 23 – page 41 line 10.
The Applicant told the Tribunal that after she and her husband married they decided to build a house, which, amongst other things, would help her ‘live a comfortable life’,[56] and that she put the rest of her compensation money towards it so that she did not feel a burden or indebted to her husband, and to ensure that she had some security.[57]
[56] Ibid page 41 lines 38 – 39.
[57] Ibid page 41 lines 42 – 46.
The Applicant explained that prior to the pandemic her husband worked away around three or more nights a week in New Zealand. In response to questions at the hearing she stated that when he was away she would make herself breakfast, shower and dress herself and drive to work. She said that after work she would go to her brother’s house which is halfway between her work and home, to spend time with her family, or rest. Further, she said that often her mother or sister-in-law would have cooked dinner, so she only went home to sleep. When asked whether she went to the gym after work, the Applicant said that she was usually too tired so just went on the weekends with her husband.[58]
[58] Transcript page 42 line 10 – page 43 line 28.
The Applicant was referred to [12] of her statement of lived experience,[59] and asked in particular about the distance she can walk and her need for a mobility aid. The Applicant stated that a mobility aid could include a walking stick or a wheelchair.[60] When asked why she had not told Ms Stephenson, the occupational therapist who assessed her on behalf of the Respondent, about her use of a wheelchair, she explained that it was something she had only lately started using to accompany her husband when for example, going to a large shopping centre.[61] The Applicant confirmed that at the time she was seen by Ms Stephenson she would only ‘rarely or occasionally use that walking stick’,[62] because up until recently the thought of using a wheelchair reminded her of the trauma she had experienced witnessing others using a wheelchair when she was going to hydrotherapy and how ‘painful and miserable’ she was at that time.[63]
[59] Exhibit 4.
[60] Transcript page 44 lines 5 – 6.
[61] Ibid page 44 lines 14 – 20; 8 – 12.
[62] Ibid page 44 lines 23 – 24.
[63] Ibid page 44 lines 24 – 34.
The Applicant was asked, in the context of the difficulties she says she experiences in walking on sand[64] and about going to the beach, and advised that her husband takes her very rarely in order that she may swim in the ocean.[65] On those rare occasions, the Applicant confirmed that she walks across the sand to get to the water.[66]
[64] Exhibit 4, [12(c)].
[65] Transcript page 44 lines 39 – 45.
[66] Ibid page 45 lines 1-3.
In terms of the two trips the Applicant has taken to Wales, she advised that during the 19 hour flight they were upgraded or able to share three seats which enabled her to elevate her legs.[67] She said that she was able to get up and move often enough to manage her sitting tolerance, albeit ‘with great difficulty at times’.[68] The Applicant explained that they caught taxis to the airport, she was wheeled, using a wheelchair, through the terminal including check-in, was able to take advantage of express lanes and had access to a lounge.[69]
[67] Ibid page 46 lines 18 – 23.
[68] Transcript page 46 lines 25 – 29.
[69] Ibid page 46 lines 13 – 19; page 66 line 45 – page 67 line 6.
The Applicant described undertaking the following activities whilst in Wales: ‘getting a cooked breakfast’, ‘going for a short stroll’, taking ‘a short drive to look at something’, going to an hotel gym for sauna, steaming, jacuzzi and pool, sightseeing, and that she and her husband had hired a car and ‘got together at one point’ with her husband’s childhood friends.[70]
[70] Ibid page 46 line 37 – page 47 line 6.
The Applicant told the Tribunal that her husband does the shopping and that she has not been able to do it consistently, although she has ‘been able to go in and grab milk or bread’.[71] The Applicant acknowledged that she had told Ms Stephenson that she can lift a shopping bag weighing three to four kilograms but says that she does not have to do shopping for items other than staples such as bread and milk, and that moreover she is not capable of doing more.[72]
[71] Ibid page 47 line 26.
[72] Ibid page 47 line 25 – page 48 line 7.
The Applicant was taken through a range of household tasks and stated that her husband does most of the cleaning duties, but that when he is away she can put an item in the dishwasher,[73] wipe the bench,[74] and wash up some items.[75] This confirmed the following statements in the Applicant’s statement of lived experiences:[76]
23. Jeff does my laundry when he is home including soaking, washing, hanging out and bringing in laundry. I do not have the standing, walking, changing direction, bending, squatting, lifting, pushing, pulling, or carrying capacity to undertake laundry independently. The support I require is high, and at least weekly.
a. Without this support these tasks would not be done, and associated issues with health and hygiene would arise.
[73] Ibid page 48 line 27.
[74] Ibid page 48 lines 29 – 30.
[75] Ibid page 48 lines 44 – 45.
[76] Exhibit 4.
However, she said that she is able to put on a small load of washing[77] and fold it.[78] The Applicant also acknowledged[79] that she had told Ms Stephenson that she could put on a load of washing and hang it out as set out as reflected in Ms Stephenson’s Functional Assessment Report dated 12 February 2020 (Ms Stephenson’s report).[80] However, the Applicant suggested that to do that was pushing herself, even if she was having a good day.[81] She submitted she is unable to do her ironing.[82]
[77] Transcript page 49 lines 19 – 20.
[78] Ibid page 49 lines 44 – 46.
[79] Ibid page 49 lines 32 – 34.
[80] Exhibit 37.
[81] Transcript page 49 lines 32 – 34.
[82] Ibid page 58 lines 17 – 18.
The Applicant said that her husband does the mowing, her mother does the gardening, and her husband takes out and brings in the wheelie bin. She acknowledged that she could carry lighter bags of rubbish but said that she could not push the wheelie bin to and from the kerb.[83]
[83] Ibid page 50 lines 5 – 38.
In relation to meal preparation, the Applicant told the Tribunal that her husband did all the cooking and froze meals for her to eat when he is away.[84] During cross examination she initially agreed that she could make a toasted sandwich and access the microwave and oven.[85] She was unable to tell the Tribunal whether she could sit on a stool and chop vegetables as she had not ‘done it’,[86] but was adamant that she was not capable of cooking dinners.[87] She submitted later, ‘I can’t and don’t make sandwiches’.[88]
[84] Ibid page 51 lines 31 – 33.
[85] Ibid page 51 lines 43 – 46.
[86] Ibid page 52 lines 13 – 16.
[87] Ibid page 52 line 21.
[88] Ibid page 52 line 47.
In relation to the use of the stool, the Tribunal observes that the report of Ms Stephenson (Occupational Therapist) states that the Applicant ‘has a kitchen stool which she can sit on to avoid long periods of standing when cooking’.[89] During cross-examination the Applicant was asked how long she could sit on the stool at a maximum. She responded ‘the maximum would have been probably five minutes. I never had the need to sit on the stool’.[90] During further cross-examination the Applicant was asked again about the reference to the use of the stool in Ms Stephenson’s report. She was asked whether she accepted what Ms Stephenson had written,[91] and it was put to her that she used the stool to avoid long periods of standing when cooking.[92] Her response was that ‘cooking would be boiling an egg’.[93]
[89] Exhibit 37, 18 [g].
[90] Transcript page 66 lines 29 – 35.
[91] Ibid page 68 line 30.
[92] Ibid page lines 35 – 36.
[93] Ibid page 68 line 36.
The Applicant, responding to a question from the Tribunal, explained that there are around three or four times per year when she is unable to climb the stairs to the upper level of her home for up to a period of two weeks. She said that when this occurs she will sleep downstairs but not take time off work because she has ‘committed to 10 weeks at work’.[94] The Applicant said that when she is bedridden her husband brings her breakfast in bed and if he is away her brother or her mother will help her, including by sleeping over.[95]
[94] Ibid page 55 line 7.
[95] Ibid page 55 lines 15 – 26.
In relation to driving, [33] of the Applicant’s statement[96] was put to her. It states as follows: ‘Jeff will drive me to appointments that are over 15 to 25 minutes away as I do not have the driving capacity to attend such appointments independently’.
[96] Exhibit 4.
She confirmed that she could not drive more than 25 minutes, but later acknowledged that she could travel to Moree (with a travelling time of about 5 ½ hours from her residence) as a passenger, but with frequent breaks.[97] She specifically agreed that her mother drove her to the Artesian springs in Moree.[98]. The Applicant also told the Tribunal that her husband drove her to work ‘during a 10 week term … once or twice maximum’.[99]
[97] Transcript page 56 lines 27 – 39.
[98] Ibid page 61 lines 9 – 18.
[99] Ibid page 57 lines 8 – 12.
The Applicant also explained that when her knee ‘gives’ she can fall over completely,[100] however agreed that she has not needed to go to the doctor for a fall since 2009.[101] However in re-examination the Applicant told the Tribunal that her most recent fall was just outside school at the start of the current term. In describing it she said, ‘I got caught in something and kind of, it was like, jumped and landed on my foot, you know, somehow. Sort of walking on the footpath and literally next minute, you know, I had this left foot which – anyway, it shocked me, actually, and was quite painful’.[102] She told the Tribunal that in the future she will need a whole knee reconstruction.[103]
[100] Ibid page 57 lines 41 – 42.
[101] Ibid page 58 lines 14 – 15.
[102] Transcript page 67 lines 24 – 35.
[103] Ibid page 57 line 33.
Paragraph 56 of the Applicant’s statement of lived experience is as follows: ‘My lived experience is that I require assistance in relation to social-interaction as a result of my impairment’. She explained this by distinguishing between work functions, in respect of which she said ‘you have to be like the others are in a sense that you have to interact, you have to sit, you have to you know, like, socialise’[104] which she often had to cancel, and family functions where she could ‘withdraw during periods and lie down on the bed’.[105]
[104] Ibid page 59 lines 35 – 36.
[105] Ibid page 59 lines 42 – 43.
The Applicant was referred to [(g)] of Ms Stephenson’s report[106] which reflects information provided to Ms Stephenson by the Applicant, including that she attends the gym five days per week. The Applicant stated that she did not in fact do that as she is too exhausted after a day of work but that she goes with her husband on the weekend.[107]
[106] Exhibit 37, 18.
[107] Transcript page 60 lines 25 – 28.
The Applicant was taken through the paragraphs in Ms Stephenson’s report regarding social interaction including in particular [9] which states as follows:
Prior to the injury, Ms Nika stated she had had an active social life. She had enjoyed studying full time, working part time on holidays and socialising with friends and family. She now spends most of her time at home associated with her ongoing pain, fatigue and reduced mobility, she continues to see her family and will often would [sic] in on the way home from work.
She now avoids invitations to social events unless they are well planned. Her social life is now limited to attending family celebrations usually at her brother’s or her mother’s home. She will rarely entertain at home. She tends to socialise with friends only when on school holidays as she rests on weekends during the school term.
The Applicant said that Ms Stephenson’s report was wrong in some respects – for example she cannot necessarily attend functions at the last minute whether or not they are well-planned.[108] She maintained that she had very limited social outlets outside her family,[109] however acknowledged that she had a recent impromptu visit from a friend[110] but said that she did not consider an impromptu visit to be socialising.[111]
[108] Transcript page 63 lines 10 – 13.
[109] Ibid page 63 line 38 – 39.
[110] Ibid page 63 line 44 – page 64 line 1.
[111] Ibid page 64 lines 11 – 15.
The Applicant explained that she had access to subsidised cleaning through the Queensland Aged Care Assessment Team linked to Centacare. The Applicant outlined the nature of the cleaning to include the bathroom, shower, toilet, dusting, vacuuming and mopping.[112]
[112] Ibid page 65 lines 13 – 35.
Evidence of the Applicant’s husband, Mr Jeffrey Thomas
Mr Thomas provided a statement dated 5 June 2020. In it he sets out that he has become the primary carer for his wife, the Applicant, whilst also working in a role that requires domestic and international travel on a weekly basis.[113] In his statement Mr Thomas explains the impact providing care for and assisting the Applicant has upon his own ‘personal, work, travel and social obligations and activities’.[114]
[113] Exhibit 5, [3].
[114] Ibid [4].
In relation to social interaction, Mr Thomas states that he drives his wife to the local gym and the beach to enable her to access the community and prevent social isolation. He says that this also enables her to undertake hydrotherapy as part of her rehabilitation. Mr Thomas states that due to the Applicant’s standing and walking limitations he needs to support and supervise her when she is away from home for extended periods of time. He says that he drives her to visit her immediate family for family celebrations, so that she can access the community and is not socially isolated.[115]
[115] Ibid [24] – [26].
With respect to mobility, Mr Thomas sets out:
·the household tasks he undertakes include grocery shopping, house cleaning, laundry, garden maintenance, disposal of the rubbish, car cleaning and, when home from work on the weekends, cooking and freezing meals for his wife for during the week when he is away;[116]
·that when the Applicant is bedridden due to her pain being aggravated, he will ‘prepare and bring all meals to her including snacks and drinks’, as ‘she cannot independently move around the house’;[117] and
·that he drives the Applicant to appointments more than 15 to 25 minutes away and that he drives ‘her to and from work when I’m not away for work, as this support reduces the impact of her physical and psychological impairments’.[118]
[116] Exhibit 5 [9] – [14], [16].
[117] Ibid [15].
[118] Ibid [17].
In relation to self-care, Mr Thomas states that he assists the Applicant with self-care including supervising his wife whilst in the shower to ensure that she does not fall or otherwise injure herself, ironing and preparing meals, including providing them to her when she is bedridden.[119]
[119] Ibid [19] – [22].
With respect to the support Mr Thomas states he provides for the Applicant in relation to mobility, self-care and social interaction, he submits that it is unsustainable for him as he works during the week and spends the majority of his weekends undertaking tasks to support his wife ‘for the week ahead’.[120]
Further, he states that the demand of these informal supports ‘is unsustainable, and formal supports are required to ensure [his] long-term well-being, physically and psychologically’.[121] He also is concerned that the extent of the support that he is providing will have an adverse effect upon his employment as he is ‘more fatigue to work after spending my time off doing the above tasks to ensure [the Applicant’s] health and safety’.[122]
[120] Ibid [27].
[121] Ibid.
[122] Ibid [18], [23], [27].
Mr Thomas states that he had known the Applicant for seven years and that they married in 2014. He states that he provided assistance to the Applicant as set out in his statements including for example with respect to groceries and laundry, and that the provision of such assistance was to his detriment with respect to his work. For example, he said that the level of care he provides his wife makes him fatigued, at risk of carer burnout and that it comes at a physical and mental cost. He explained that his job is a 60 to 70 hours a week job.[123] He also stated that the assistance he gives his wife places their relationship under ‘inordinate pressure’.[124]
[123] Transcript pages 70 – 72.
[124] Ibid page 72 lines 27 – 28.
Under cross-examination, Mr Thomas reiterated the amount of time spent on household chores over the weekend and agreed that a total of 19 hours spread over two days was ‘a fair representation…’.[125] He noted, in re-examination, that he undertakes some tasks concurrently, that is that they overlap.[126] Mr Thomas was unaware of how the Applicant washes plates when he is away.[127] He said that he drives the Applicant to appointments over 15 minutes away, conceding that occurred only when he is available.[128]
[125] Ibid page 83 lines 43 – 45.
[126] Ibid page 85 lines 26 – 36.
[127] Ibid page 76 line 5.
[128] Ibid page 79 line 24.
Mr Thomas said that he carefully supervises the Applicant in the shower in case she falls.[129] He confirmed both during cross-examination and re-examination that he had never seen the Applicant fall in the shower,[130] and further in re-examination that he had never seen the Applicant fall at all.[131]
[129] Ibid page 79 lines 30 – 34.
[130] Ibid page 79 line 36.
[131] Ibid page 85 lines 10 – 11.
When asked about whether the Applicant has and uses a walking stick, Mr Thomas advised that ‘she does have a walking stick, yes. She will fight not to use it but yes, she does’.[132] He said that he would accept that ‘she uses it as is – needs basis, yes’.[133]
[132] Ibid page 81 lines 31 – 32.
[133] Ibid page 81 lines 34 – 35.
In re-examination, Mr Thomas was asked whether the Applicant used any other mobility aids and stated that she will use a wheelchair. He said that it is in the back of his car, and that they use it whenever they go to a shopping mall.[134] In further cross-examination, Mr Thomas was asked again about the Applicant’s use of a wheelchair. Specifically, when asked for how long the Applicant had been using a wheelchair, Mr Thomas responded, ‘I mean she has had access to the wheelchair since I’ve known her, to be honest, yes. But she – I – I will generally push her to use a wheelchair’.[135] When asked whether he would accept that it’s only recently that the Applicant has used a wheelchair he replied, ‘No. She has had access to a wheelchair for a while’.[136] It was suggested to Mr Thomas that whilst the Applicant had had access to a wheelchair, she has only recently started using it he responded, ‘No. No. She has always used her wheelchair. Probably not as much as recently but has always had access to the wheelchair’.[137]
[134] Transcript page 85 lines 14 – 20.
[135] Ibid page 86 lines 8 – 10.
[136] Ibid page 86 lines 12 – 13.
[137] Ibid page 86 lines 16 – 18.
Mr Thomas, consistent with the Applicant, explained that when they travelled to Wales:[138]
·the Applicant used a wheelchair to access the airport;
·he and the Applicant went straight to lounges;
·that due to his platinum flyer status they had express outward immigration status and that he was able to get an extra seat so that they had three seats between the two of them, enabling the Applicant to elevate her legs during the flight; and
·he and the Applicant used taxis or Ubers to get to and from the airport.
[138] Ibid page 81 line 37 – page 82 line 23.
Evidence of Dr Curtis Staunton, General Practitioner
Dr Staunton, General Practitioner, provided three reports as follows:
·26 June 2019;[139]
·25 November 2019;[140] and
·9 June 2020.[141]
[139] Exhibit 1, T8 page 60.
[140] Exhibit 3.
[141] Exhibit 40.
Dr Staunton’s evidence primarily goes to the Applicant’s disabilities, including her claimed PTSD, and whether resulting impairments result in a substantially reduced functional capacity to undertake, or psychosocial functioning in undertaking, the activities of social interaction, mobility and self-care.
Turning to the report of 26 June 2019,[142] the Tribunal notes that it states:
I am the treating GP of Etleva Nika, aged 43 yrs. She has recently applied for support through the NDIS, and had her application rejected. I write to give further information with regards to her support needs.
As documented previously, Etleva was involved in a serious MVA on the 27/06/05. She sustained a complex facture of her L) leg, and a facture of the R) ankle. Her L) leg injury required multiple surgeries and extensive, protracted rehabilitation, which is ongoing. Due to the ongoing pain and movement deficits in the leg I believe that she would benefit from assistance particularly with regards to cleaning around her house. The ongoing disability related to her injury makes these tasks incredibly difficult and painful.
She has ongoing psychological impairment following the injury, with PTSD diagnosed by Dr. Rice (her treating psychiatrist).
[142] Exhibit 1, T8, 60.
In relation to ‘support required’ it states ‘none required’ with respect to each of activities of communication, social interaction, learning, self-care and self-management. With respect to ‘functional impairment’, it states, ‘No impairment’ except for with respect to self-care, regarding which it states: [143]
…some mild impairment related to PTSD symptoms and pain’. With respect to mobility, it states, ‘pain and restricted mobility, primarily L) leg but also some pain and weakness R) leg. Unable to perform cleaning activities such as vacuuming, mopping and shower cleaning without great difficulty in pain. Support required – Would benefit from assistance in funding cleaning help.
[143] Ibid.
The report of 25 November 2019 seeks to ‘more accurately document her impairments as per the information on the ‘External Review Application to the Administrative Appeals Tribunal’.[144] It states, inter alia, that the Applicant ‘has had significant ongoing effects in terms of chronic pain and mobility impairment, PTSD diagnosed on 9 December 2008 by the Medical Assessment Tribunal and adjustment disorder’. It enumerates the impairments Dr Staunton considers the Applicant suffers as follows:[145]
·primarily triggered in response to pain symptoms;
·severely increases when pain levels are more severe;
·activities that exacerbate the pain and her PTSD signs/symptoms; and
·symptoms occurring on a daily basis.
[144] Exhibit 3.
[145] Exhibit 3.
It also states with respect to PTSD, that it is a ‘permanent impairment. Likely to worsen over time in relation to worsening of ankle injury and pain’.[146] In that report Dr Staunton opines that ‘there are no evidence-based treatment options outside those already employed that are likely to remedy the impairments’. He notes in one part of the report that the ‘pain and associated PTSD and adjustment disorder may limit mobility effectively’.[147] Later in the report he states that the Applicant is ‘able to mobilise effectively with assistance’.[148] He notes limitations on sitting, standing and bending and states that the Applicant is unable to squat or rotate/change direction while mobilising. He notes that the ‘assistance required is primarily related to activities that significantly exacerbate the pain and impaired mobility e.g. vacuuming/mopping/house work’. He notes that ‘mobility is impaired following these activities due to the resulting increase in pain and swelling. Assistance with these activities would be required weekly’.
[146] Ibid.
[147] Ibid.
[148] Ibid.
Dr Staunton also considers that the impairments would have a significant impact on the Applicant’s ability to participate socially and in that regard, he stated including under the heading PTSD, ‘Unable to stand/leave the house for extended periods. Psychological symptoms secondary to PTSD significantly reduce ability to participate socially’. Dr Staunton concluded, ‘All impairments are lifelong and permanent. I believe that she will require lifelong support from the NDIS due to the significant, constant effect the impairments have. It is likely the impairments will deteriorate with time’.[149]
[149] Ibid.
The report dated 9 June 2020 (Annexure B), responsive to questions from the Applicant’s representative (see Annexure C), restates some of the earlier reports and confirms with respect to some of the matters referred to in paragraph 24(1)(c) of the NDIS Act.
Dr Staunton gave evidence that he started treating the Applicant on 12 June 2019 when she presented with ‘ongoing pain, leg pain, that was affecting her mobility and quality of life. And then, there was a discussion of the psychological conditions as well’.[150] Dr Staunton was asked whether the Applicant was presenting with PTSD as at 12 June 2019 to which he responded, ‘Yes. Yes, I believe so’.[151]. Dr Staunton confirmed that PTSD was still an active diagnosis at the time of his report in November 2019 and stated that the PTSD was triggered by ‘anything that would exacerbate the pain’.[152]
[150] Transcript page 92 lines 26 – 28.
[151] Ibid page 92 line 36.
[152] Ibid page 93 line 6.
When asked about the functional assessments reflected in his report (for example how long the Applicant could stand, when she experienced pain after sitting etc.), Dr Staunton explained that these assessments were made on the basis of ‘what either had [been] reported at the time in combination with you know, discussions with physios and OT’s. I mean obviously, it’s quite tricky for us, you know, it’s not really within our area to go and sort of go to people’s homes and do full…’.[153]
[153] Ibid page 93 lines 15 – 18.
Dr Staunton stated that the Applicant’s left ankle injury is permanent, that the Applicant has had ‘fairly extensive rehab done’[154] and, with respect to the degree of time-based degeneration referred to in his report of 25 November 2019,[155] stated that ‘physio and… Exercise physiology, that kind of thing. I mean, if you can strengthen something and strengthen the muscles that support the joint it should slow the degeneration of it’.[156]
[154] Ibid page 93 lines 20 – 23.
[155] Exhibit 3.
[156] Transcript page 93 lines 42 – 45.
During examination and cross-examination, there was extensive discussion about the psychosocial conditions, particularly PTSD. Dr Staunton was asked whether the adjustment disorder and PTSD were permanent. Dr Staunton replied, ‘Yes. Yes. When I had a review. I mean, it’s always sort of tricky, because I mean psychiatrists do a lot of analysis but I mean, I think so. Yes’.[157] Relevant to this the Tribunal was taken to the summonsed material of Dr Staunton,[158] specifically a list of the ‘active history’ as at July 2020, and Dr Staunton was asked to confirm whether that meant that as at July 2020 there was a history of PTSD, to which he responded, ‘Yes, to the best of our assessment, yes’.[159]
[157] Transcript page 93 lines 35 – 37.
[158] Exhibit 16.
[159] Transcript page 94 lines 25 – 30.
Under cross examination Dr Staunton acknowledged that if a psychiatrist made a diagnosis from a psychiatric point of view, he would accept it,[160] and that his report of 26 June 2019[161] had accepted the diagnosis of PTSD as being from Dr Rice.[162] The following extract of Dr Rice’s report of 29 May 2017[163] was put to Dr Staunton: ‘Ms Nika is suffering from chronic Post-Traumatic Musculoskeletal Pain and an Adjustment Disorder with Anxious and Depressed Mood’.[164] In response, Dr Staunton acknowledged that he would have to ‘look at everything through [sic] from Dr Rice to see whether he has made the diagnosis of PTSD…’.[165].
[160] Ibid page 98 lines 36 – 37.
[161] Exhibit 1, T8, 60.
[162] Transcript page 98 lines 26 – 35.
[163] Exhibit 1, T3L.
[164] Transcript page 98 line 42 – page 99 line 2.
[165] Ibid page 99 lines 4 – 6.
Dr Staunton also opined in oral evidence:
·‘assistance around the house et cetera would be helpful’;[166]
·in relation to whether the Applicant could access the community without assistance or supervision, that the answer was ‘probably no. I mean to some extent, yes, but no not…’;[167]
·assistance with cleaning was necessary as some of the movements when cleaning ‘significantly exacerbate the pain, so, obviously reducing them would be helpful’;[168]
·that five minutes was the duration for which the Applicant could drive;[169]
·walking aids may be required such as a walking stick,[170] and if required they would be needed for life;[171]
·aids such as rails were recommended in the bathroom and shower and that he was ‘not hundred percent sure with regards to cooking’;[172] and
·that the Applicant was unable to access the support she required from allied health services to the extent he thought it necessary from mainstream health services.[173]
[166] Ibid page 94 lines 5 – 6.
[167] Ibid page 94 lines 20 – 21.
[168] Ibid page 94 lines 39 – 40.
[169] Transcript page 96 line 27.
[170] Ibid page 96 line 31.
[171] Ibid page 96 line 37.
[172] Ibid page 97 lines 19 – 21.
[173] Ibid page 95 lines 17 – 22.
During cross-examination it became clear that Dr Staunton was unaware the Applicant had travelled to Wales in April 2017 and in April 2018, for three weeks each time.[174] He was unaware that the Applicant went to Moree to the artesian springs twice a year for two weeks.[175] He was also unaware that the Applicant might require a knee reconstruction.[176]
[174] Ibid page 104 lines 5 – 13.
[175] Ibid page 104 lines 15 – 24.
[176] Ibid page 98 lines 10 – 21.
Dr Staunton was taken to his report of 25 November 2019,[177] and clarified his statements regarding the Applicant’s inability ‘to shower, bathe, unable to prepare food, drink during those periods’ as being during ‘periods of significant pain’, but was unable to recall how often the ‘periods of significant pain’ would occur.[178] He confirmed that the Applicant could get herself in and out of bed and make breakfast and shower with adjustments. He clarified those adjustments to relate to time taken to undertake those tasks. He stated that the Applicant could dress herself and drive distances limited to in time – for example 15 minutes to work and, providing there had not been too much activity during the day, to visit the gym on the way home.[179] Dr Staunton confirmed that he would expect the Applicant to be able to make herself a light lunch and visit her family on the way home from work and, subject to there being a stool to sit on and the height of the benches, chop vegetables, make a cup of tea and light meals, wipe the benches, wash up dishes and put them in the dishwasher. He also confirmed that he would expect the Applicant to be able to brush her teeth independently.[180]
[177] Exhibit 3.
[178] Transcript page 100 lines 7 – 8.
[179] Ibid page 101 lines 5 – 6.
[180] Transcript pages 100 – 101.
Dr Staunton was unaware of the frequency with which the Applicant required a walking stick, although he stated he did not think it would be rarely.[181] He accepted that, with respect to other equipment – the shower chair and aluminium folding chair referred to in Ms Stephenson’s report,[182] the Applicant had been showering without them but questioned whether it was comfortable or effective.[183]
[181] Ibid page 101 lines 40 – 41.
[182] Exhibit 37, 25.
[183] Transcript page 105 line 30.
Dr Staunton was asked about the differences between his reports and explained that ‘it’d just be sort of to fill things out’,[184] and that he could not ‘100% recall’ the basis for his conclusions regarding social interaction in his first report.[185] He acknowledged that the discussions he and the Applicant had ‘play[ed] a role’ in the differences in the reports.[186]
[184] Ibid page 102 line 21.
[185] Ibid page 102 line 39.
[186] Ibid page 105 line 9.
Dr Staunton maintained that the Applicant is a high fall risk, acknowledging that she had never sought treatment from him with respect to a fall.[187]
[187] Ibid page 103 lines 20 – 39.
At the end of the cross-examination, Dr Staunton was asked whether he accepted the proposition in Ms Stephenson’s report that the Applicant ‘can manage self-care tasks of showering, grooming, toileting and dressing. She is slower to undertake the transfers and will hold onto fixtures while showering and grooming. She would sit to dress’. [188]
[188] Exhibit 37, 32.
Dr Staunton replied that he would accept that proposition with respect to the Applicant’s functional capacity.[189]
[189] Transcript page 106 lines 1 – 2.
In re-examination, Dr Staunton stated that he considered himself qualified to diagnose PTSD, and when asked whether he believes that the Applicant meets criteria for PTSD he gave a number of responses including:[190]
…it’s sort of – it’s a hard one, I suppose, because I mean, when – I mean, there’s certainly factors. I mean, I’ve just sort of taken a psychiatrist word for it. I mean, it’s tricky like anything, you know, we don’t sort of necessarily try to confirm diagnoses if it’s documented by specialist. But I mean, she, to my mind certainly meets criteria for it.
[190] Transcript page 106 lines 25 – 29.
When asked whether the Applicant still meets the criteria for PTSD, in the sense of whether it was something she had ‘maybe a couple of years ago and recovered’.[191] Dr Staunton stated, ‘I mean, to be honest, we don’t sort of do in-depth sort of psychiatry diagnostic things like every visit. I mean is there some suggestion that there is no longer a diagnosis of PTSD, is that what we are trying to discuss?’.[192] The question of the currency of a diagnosis of PTSD was not taken further with Dr Staunton.
[191] Ibid page 106 lines 35 – 37.
[192] Ibid page 106 lines 37 – 40.
Dr Staunton was also asked questions regarding accessing the community and reiterated that the Applicant may drive 15 minutes to the shops but is restricted in what she can do when she gets there including that he did not ‘think it would be a case of walking 100 m or so’.[193]
[193] Ibid page 107 line 7.
Dr Staunton was further asked about the differences in his reports. Specifically, in relation to his last report.[194] Dr Staunton explained that having the occupational therapist’s assessment ‘obviously allowed me to make a better assessment of things and try to write a better report’.[195]
[194] Ibid page 107 line 14 – 28.
[195] Ibid page 107 lines 25 – 28.
Evidence of Dr Graham Rice, Psychiatrist
The evidence of Dr Rice primarily goes to the Applicant’s impairments, with an emphasis on her mental health. Dr Rice, is a medical practitioner with a Bachelor of Medicine, Bachelor of Surgery and specialist qualifications in anaesthesia, psychiatry and pain medication,[196] and the only practitioner to give evidence at the hearing who has been treating the Applicant for more than two years and since the period when the Applicant stated that her condition deteriorated in 2016.
[196] Transcript page 110 lines 45 – 47.
There were several reports and documents prepared by Dr Rice before the Tribunal including:
·letter to Job Access dated 15 September 2016;[197]
·letter to Francie Jorgensen, Claims Manager, QSuper dated 29 May 2017;[198]
·Access Request Form completed by Applicant and Dr Rice dated 21 September 2018;[199] and
·report of Dr Rice to the NDIS dated 21 March 2019.[200]
[197] Exhibit 1, T3K,41.
[198] Ibid.
[199] Ibid T4, 47.
[200] Ibid T5, 55.
As contained in these reports and documents, Dr Rice diagnoses the Applicant as suffering from:
·chronic post trauma legs and spine pain and depressive illness with anxiety against background of chronic pain, gait alteration and reduced physical tolerance;[201]
·Post-traumatic Musculoskeletal Pain and an Adjustment Disorder with Anxious and Depressed Mood;[202] and
·chronic post-traumatic leg and spinal pain and left leg weakness.[203]
[201] Ibid T3K, 41.
[202] Ibid T3L, 43; T4, 47.
[203] Ibid T5, 55.
All of the letters refer to the Applicant’s conditions as being lifelong. The letter states that the Applicant’s ability to handle the pain and limitations, along with the adjustment disorder, are likely to fluctuate.[204] The Access Request Form notes that the structural changes to the Applicant are permanent and accordingly there is no other treatment likely to remedy the impairment. Importantly the Access Request Form identifies that the Applicant may require assistance only with respect to mobility and self-care. The Access Request Form in so far as it deals with self-care sets out as follows: ‘needs assistance from another person in the area of eating/drinking’ and ‘when bedbound needs food and drink brought to her’.[205] With respect to mobility, Dr Rice identifies that the Applicant ‘needs assistance from other persons: (physical assistance, guidance, supervision or prompting)… When pain is severe may need to remain bedbound and requires assistance with meals and drinks’.[206] This comment was further explored in cross examination as set out below.
[204] Exhibit 1, T3L, 55.
[205] Exhibit T4, 51 and 53.
[206] Ibid T4, 51 and 53.
For completeness, it is noted that Dr Rice wrote to the NDIS on 21 March 2019 restating some of his earlier opinions, noting with respect to limitations as follows: [207]
[207] Ibid T5, 55.
These are her estimations, and relate to physical function: -
·Standing: Five minutes,
·Bending: To mid calf,
·Squatting: Impossible,
·Sitting: Forty-five minutes,
·Mobility: Reduced for tasks such as mopping and
vacuuming, because rotation is limited due to
reduced power and inability to pivot without
losing balance.He states that the assistance requested is domestic assistance for mopping, vacuuming and for cleaning the bath and shower, as well as allied health assistance by way of monthly physiotherapy and fortnightly acupuncture, which he notes have limited funding under Medicare and her health fund.[208] He also states, ‘She has complied with treatment and made considerable effort to minimise the effect of her impairment’.[209]
[208] Ibid T5, 56.
[209] Ibid T5 ,55.
The Applicant became Dr Rice’s patient in May 2016 due to the exacerbation of her pain in April of that year. He gave evidence that the Applicant ‘never presented symptoms of PTSD to me. It’s one of those conditions that can – as I say, sometimes I think that was 2012 and that can be – and had ameliorated down to being an adjustment disorder with anxious and depressed mood’.[210]
[210] Transcript page 112 lines 20 – 24.
Dr Rice was asked about his notes of 30 May 2018 and explained that they stated the Applicant was socialising well with her family and from what he could see in his notes the same situation prevailed with respect to friends.[211]
[211] Ibid page 113 line 40 – page 114 line 2.
Dr Rice also explained that he noted the Applicant had cleaning assistance from CentaCare and that this was due to her reported, rather than observed, decrease in mobility.[212]
[212] Ibid page 114 lines 29 – 33.
Dr Rice was asked what future treatment he believed the Applicant would need. He advised:
…medical treatment, that she will need to persevere with the treatment she is using now, with some medication, some maintenance physiotherapy and she does get benefit from going to Moree to the hot pools, but that is something that she does under her own steam, rather than medically prescribed. Those are the treatments. She does – she reports getting benefit from going to physiotherapy, so it would help her to keep mobility as she ages, yes.[213]
[213] Ibid page 115 lines 34 – 40.
In relation to that treatment, Dr Rice noted that getting the Applicant to take medication had been something she had found very difficult, but that ‘we did get her onto some medications over time, with reduction in her pain, improvement in her mood and an ability to return to work, albeit on a part-time – on a reduced basis’.[214]
[214] Ibid page 115 lines 42 – 45.
Dr Rice advised that the treatments to which he had referred were available through the public or mainstream health system. Dr Rice was uncertain as to whether there was current availability of these treatments, but concludes ‘I think they are available, yes’.[215] He states that the medication is available on the PBS and that treatment with him is funded through Medicare. He also considered that those supports were more likely than not assist in preventing the Applicant’s deteriorating in the future.[216]
[215] Ibid page 116 lines 3 – 4.
[216] Ibid page 116 lines 14 – 15.
Of critical importance, Dr Rice was also asked about his response to the question in the Access Request Form as follows: 'In terms of mobility and motor skills, such as moving around the home, getting in and out of bed, leaving the home and moving about the community, does the person require assistance to be mobile?’
As he did not have a copy of the form before him Dr Rice sought clarification as to what he had specified on the form. He was told that the answer he provided on the form was, ‘Yes, when pain is severe, may need to remain bedbound and requires assistance with meals and drinks’.[217]
[217] Transcript page 116 lines 35 – 38.
Upon being advised of that, Dr Rice responded as follows:
So, you see, it’s a maybe. If pain is severe, if perhaps she’d over exerted herself and got some more pain, maybe then – and the pain had gone up and hadn’t been using the pain management strategy that she was using what had not used her medication as we had suggested and her pain went up, she might need some help but it’s a may be, it’s not a definite. [218]
[218] Ibid page 116 lines 40 – 44.
Dr Rice maintained that position under cross-examination, and furthermore stated he had no knowledge of the frequency with which the Applicant became bedbound. He stated, ‘No I don’t have any knowledge of the frequency and I think the most important word there is, “may”’.[219] He went on, ‘It’s not on a regular basis and it will depend upon her management of her pain with patient strategies, with use of medication and dealing with the stressors that might exacerbate her ability to cope with pain’.[220]
[219] Ibid page 118 lines 27 – 29.
[220] Ibid page 118 lines 28 – 33.
Dr Rice was asked whether he believed the Applicant needed assistance to access the community, for example to go grocery shopping or to go long distances. Dr Rice responded, ‘No, she is able to drive to Moree on her own, with her mother. She does the driving. She is able to go shopping, she is able to go to work, so she is able to mobilise on her own in the community’.[221] Dr Rice was asked whether the Applicant had told him that she driven herself to Moree. He responded, ‘Yes, she has driven herself to Moree. She told me on several occasions that she has been to Moree and does the driving’.[222] Dr Rice was asked whether there was a record of the Applicant driving five hours to Moree by herself, or of the Applicant being able to drive that far. [223] He responded, ‘I’ve made notes in her file she is going to Moree and she showed me pictures of Moree and I know she was with her mother and I know her mother, she does the driving….but how many stops she takes, how long she takes, I don’t know’.[224]
[221] Ibid page 116 line 46 – page 117 line 5.
[222] Ibid page 117 lines 7 – 12.
[223] Transcript page 117 lines 20 – 23.
[224] Ibid page 117 lines 21 – 25.
ii.Will these supports be for life?
iii.Are these supports available via the public/mainstream health system?
iv.Will these supports assist by mitigating or alleviating the impact of the impairment, prevent deterioration, improve functional capacity and/or strength the substantially of informal support?
b. Assistance (physical, guidance, supervision or prompting) from other people
i.If so, what assistive technology is required
ii.Will these supports be for life?
iii.Are these supports available via the public/mainstream health system?
iv.Will these supports assist by mitigating or alleviating the impact of the impairment, prevent deterioration, improve functional capacity and/or strength the substantially of informal support
We would be incredibly grateful for any clarification you can provide in relation to the above.
If you wish to discuss the matter, please do not hesitate to contact the writer.
Yours faithfully
[Applicant’s representative]
(Emphasis in original; errors in original)
Annexure D
The following is a copy of the letter from the Applicant’s representative to Ms McCook dated 28 May 2020:
Dear Ms McCook
Our Client: Etleva Nika
We advise that we represent the abovenamed on a pro bono basis in relation to her application for access to the National Disability Insurance Scheme (‘NDIS’).
We enclose our client’s authority for your records.
We have attended various case conferences with the National Disability Insurance Agency (‘NDIA’), who have indicated that further clarification is required in relation to our client’s treatment and symptoms.
We would be incredibly grateful if you could assist our ongoing efforts by providing your response to the following questions.
ROM / Functional Capacity
Based on your observed assessment, could you please advise our client’s Range of Motion or Functional Capacity in relation to the following:
1. Standing
2. Walking
3. Running
4. Jumping
5. Sitting
6. Bending
7. Pull/Pushing
8. Reaching
9. Squatting
10. Knelling
Could you please advise how the above finding impact/limit our client during her day. For example, how do our client’s limitation in relation to walking impact her throughout the work day, and how does she manage this?
Could you please advise our clients ongoing and future rehabilitation and treatment needs?
a. Are these supports available via the public/mainstream health system?
b. Will these supports be required for life?
c. Will these supports assist by mitigating or alleviating the impact of the impairment, prevent deterioration, improve functional capacity and/or strengthen the sustainability of informal support?
Social Interaction
In relation to interacting with others in social situations (e.g. phone, face to face, social media, group environments, accessing community environments), does our client require:
a. Assistive technology or equipment (other than commonly used items like glasses)
i.If so, what assistive technology, equipment or modifications are required
ii.Will these supports be for life?
iii.Are these supports available via the public/mainstream health system?
iv.Will these supports assist by mitigating or alleviating the impact of the impairment, prevent deterioration, improve functional capacity and/or strength the substantially of informal support?
b. Assistance (physical, guidance, supervision or prompting) from other people
i.If so, what assistive technology is require
ii.Will these supports be for life?
iii.Are these supports available via the public/mainstream health system?
iv.Will these supports assist by mitigating or alleviating the impact of the impairment, prevent deterioration, improve functional capacity and/or strength the substantially of informal support?
Mobility
In relation to the following mobility tasks, does our client require:
a. Assistive technology or equipment (other than commonly used items like glasses)
i.If so, what assistive technology, equipment or modifications are required
ii.Will these supports be for life?
iii.Are these supports available via the public/mainstream health system?
iv.Will these supports assist by mitigating or alleviating the impact of the impairment, prevent deterioration, improve functional capacity and/or strength the substantially of informal support?
b. Assistance (physical, guidance, supervision or prompting) from other people
i.If so, what assistive technology is required
ii.Will these supports be for life?
iii.Are these supports available via the public/mainstream health system?
iv.Will these supports assist by mitigating or alleviating the impact of the impairment, prevent deterioration, improve functional capacity and/or strength the substantially of informal support?
1. Walking
2. Moving around the home to undertake ordinary activities of daily living (cooking, cleaning, recreation)
3. Leaving the home
4. Driving or using public transport,
5. Moving about in the community
6. Performing other tasks requiring the use of her limbs (appropriate to her age)
Self-care
In relation to personal care and hygiene does our client require:
a. Assistive technology or equipment (other than commonly used items like glasses)
i.If so, what assistive technology, equipment or modifications are requiredf
ii.Will these supports be for life?
iii.Are these supports available via the public/mainstream health system?
iv.Will these supports assist by mitigating or alleviating the impact of the impairment, prevent deterioration, improve functional capacity and/or strength the substantially of informal support?
b. Assistance (physical, guidance, supervision or prompting) from other people
i.If so, what assistive technology is required
ii.Will these supports be for life?
iii.Are these supports available via the public/mainstream health system?
iv.Will these supports assist by mitigating or alleviating the impact of the impairment, prevent deterioration, improve functional capacity and/or strength the substantially of informal support
We would be incredibly grateful for any clarification you can provide in relation to the above.
If you wish to discuss the matter, please do not hesitate to contact the writer.
Yours faithfully
[Applicant’s representative]
(Emphasis in original; errors in original)
Annexure E
The following is a copy of the letter from the Ms McCook to the Applicant’s representative dated 9 June 2020:
Dear Ms Beevers
Re: Update as requested for Etleva Nika’s NDIS application – DOB: [redacted]
In response to your request – please find the details below.
ROM / Functional Capacity
A: Range of Motion or Functional Capacity in relation to the following: All physically observed unless otherwise stated.
1. Standing – 5 minutes
Clinically observed.
Work activities are sedentary primarily as a result with foot / let positioned on a stool.
Home activities are also limited with capacity – it is the same regardless of functional setting.2. Walking – 50 metres., @ 5 mins tolerable advised
Functional limitations will affect walking tolerance, sometimes requires an aid.
Balance and instability observed to be variable in entering. and exiting the clinic.
Clinically Observed.
Ms Nika advises : Walking is limited to and from work and parking is provided close to the site that she works. This also limits tolerance in the home.3. Running - Not appropriate for testing
4. Jumping - not appropriate for testing
5. Sitting - 45 mins advised by Eva
Tolerance is limited and there is a need to get up and move around.
Observation - Clinical wait times and discomfort in seated times through consultation has been observed summing up to @ 40 minutes.
Leg symptoms reportedly build with prolonged sedentary positioning requiring this.
This is therefore a consideration for both work and home-based activities in the same manner.6. Bending - To tolerance, able to reach toes.
Balance however can be compromised - and hence is minimised despite range through the spine available to perform this. This is a consideration for both work and home-based activities.7. Pulling/Pushing - low loads only manageable.,
Would not be able to tolerate pushing a trolley for any distance due to balance and pain issues.8. Reaching - Moderately good ROM available.
Occasional back pain in full range of extension and balance can be an issue. (Observed) Functional indications - This is a consideration for both work and home based activities.9. Squatting - unable to tolerate
10. Kneeling - unable to kneel.
B: How the above findings impact/limit our client during her workday.
Limitations have been previously provided in document dated 21/04.,
Further details are included as above. Regardless of functional setting whether in workplace or at home, the same limitations are provided. Functional recommendations that are practical for this presentation are outlined - as per a worksite recommendation that would be conducted for a client returning to work.
Standing - 5 minutes
Work activities are sedentary primarily as a result with foot / let positioned on a stool.
Home activities are also limited with capacity - it is the same regardless of functional setting.Walking - 50 metres., @ 5 mins tolerable.
Functional limitations will affect walking tolerance, sometimes requires an aid.
Walking is limited to and from work and parking is provided close to the site that she works.
This also limits tolerance in the home.Sitting - 45 mins
Tolerance is limited and there is a need to get up and move around. Leg symptoms build with prolonged sedentary positioning requiring this. T
his is a consideration for both work and home based activities in the same manner.Bending - To tolerance, able to reach toes.
Balance however can be compromised - and hence is minimised despite range through the spine available to perform this. This is a consideration for both work and home based activities.Pulling/Pushing - low loads only manageable., not able to tolerate pushing a trolley eg shopping poorly tolerated.
Reaching - Moderately good ROM available. Occasional back pain in full range of extension and balance may be an issue. Balance also a consideration. This is a consideration for both work and home based activities.
C: The client's ongoing and future rehabilitation and treatment needs
In agreement with the OT's recommendations in report dated 15/02/20 by Nancy Stephenson, assistance with domestic activities are appropriate. These are not available from the mainstream / public health system.
Clinical physiotherapy as outlined in my report from 21/04/2020 ongoing treatment is recommended to maintain functional tolerances and ability to remain at work, and to access the community to the extent that is available to her now.
These services required that offer the specificity for her presentation are not available from the mainstream / public health system.
a. Are these supports available via the public/mainstream health system?
With regards to the OT recommendations - I am in agreement with her recommendatons
With regards to the Clinical physiotherapy requirements - these are not available at the extent required or for the type of treatment required by the public health system.
Ongoing treatment is what is required to enable current functional tolerances to continue and support her abilities to maintain current levels of quality of life.
There are up to S EPC sessions per year available via medicare, however this is inadequate for the extent of injuries endured and associated ongoing symptoms.
It is a help, but is inadequate for the requirements of this particular presentation.
b. Will these supports be required for life?
I suspect this will be an ongoing requirement.
It has been continued since 2005 on an ongoing basis to achieve the same.
c. Will these supports assist by mitigating or alleviating the impact of the impairment, prevent deterioration, improve functional capacity and/or strengthen the sustainability of informal support?
These supports from attending and receiving clinical physiotherapy will and continue to assist in symptom management and the ongoing impact of the impairment. It makes working and functioning effectively in the community possible., prevents physical and functional deterioration and enables Ms Nika to remain in a functionally meaningful role in the workplace.
Ms Nika's capacity available for functional activities beyond her role at work remains limited as a consequence of the neurological pain and damage associated with her injuries, as such, the request also for home based assistance is reasonable as has been outlined in documentation provided.
Social Interaction
In relation to interacting with others in social situations (e.g. phone, face to face, social media, group environments, accessing community environments), does our client require:
a. Assistive technology or equipment (other than commonly used items like glasses)
i. Assistive technology, equipment or modifications required
Social engagement is limited by tolerances for driving (short distances) and walking tolerances. No assistive technology required.
ii. Will these supports be required for life?
No
iii. Are these supports available via the public/mainstream health system?
N/A
iv. Will these supports assist by mitigating or alleviating the impact of the impairment, prevent deterioration, improve functional capacity and/or strengthen the sustainability of informal support?
N/A
b. Assistance (physical, guidance, supervision or prompting) from other people
My support in the following section is to the report and findings from the OT which are very thorough and reasonable for this presentation.
i. If so, what assistive assistance is required
Yes: transportation support is needed when travelling. Support person needed for when issues with fatigue. Balance / fall risk is also present.
ii. Will these supports be required for life?
Yes
iii. Are these supports available via the public/mainstream health system?
No
iv. Will these supports assist by mitigating or alleviating the impact of the impairment, prevent deterioration, improve functional capacity and/or strengthen the sustainability of informal support?
Yes, improve functional and social tolerances. Ability to continue to work and attend appointments is an important aspect of Ms Nika's social engagement. Assistance with this to ensure ongoing participation in social and workplace engagements is important.
Mobility:
My support in the following section is to the report and findings from the OT which are very thorough and reasonable for this presentation.
a. Assistive technology or equipment (other than commonly used items like glasses)
i. If so, what assistive technology, equipment or modifications are required Walking aid is occasionally needed, pending fatigue and pain levels.
ii. Will these supports be required for life?
Yes, given time since injury - these will likely be required for life.
iii. Are these supports available via the public/mainstream health system?
Currently has own walking aids available.
iv. Will these supports assist by mitigating or alleviating the impact of the impairment, prevent deterioration, improve functional capacity and/or strengthen the sustainability of informal support?
Yes, enables continued functional capacity to engage in work and social activities. and optimise quality of life.
b. Assistance (physical, guidance, supervision or prompting) from other people
My support in the following section is to the report and findings from the OT which are very thorough and reasonable for this presentation.
i. If so, what assistive assistance is required
Assistance is required frequently to counteract issues of fatigue and pain associated with the injuries sustained and chronicity associated. As outlined above and complimentary reports, Ms Nika frequently requires other people to be with her while travelling, attending appointments etc., to ensure she is able to reach destinations required.
ii. Will these supports be required for life?
Yes
iii. Are these supports available via the public/mainstream health system?
No
iv. Will these supports assist by mitigating or alleviating the impact of the impairment, prevent deterioration, improve functional capacity and/or strengthen the sustainability of informal support?
Yes. As outlined above. Continued social engagement and ability to participate in meaningful workplace and social activities is important for her sense of being.
My support in the following section is to the report and findings from the OT which are very thorough and reasonable for this presentation.
1. Walking - limited to 50m, balance and fatigue are a factor. Walking aid is frequently required.
2. Moving around the home to undertake ordinary activities of daily living (cooking, cleaning, recreation). As above - these tasks can be challenging. Assistance for these tasks on a frequent basis is being sought
3. Leaving the home - is done with consideration of pain, fatigue, balance and tolerances. Hence having a person with her to assist is a critical component.
4. Driving or using public transport,
Able to manage short distances with driving to and from appointments. Public transport can be challenging due to presence of other people and the issues with balance, pace and distances having to walk between services and destinations. Assistance is required if it needs to be used.5. Moving about in the community
Limited tolerance as above. Same issues with ambulation distances, fatigue and pain. Support is frequently needed.6. Performing other tasks requiring the use of her limbs (appropriate to her age)
Unfortunately as a consequence of Ms Nika's injures, while she has some tolerance to a range of things this is very limited and exceeding this results in severe disabling pain. The capacity, tolerances and fatigue elements are substantive limitations. As such, she has very limited capacity to be functioning with her limbs to someone that is appropriate to her age.Self-Care
In relation to personal care and hygiene does our client require:
a. Assistive technology or equipment (other than commonly used items like glasses)
i. If so, what assistive technology, equipment or modifications are required - as per the occupational therapists report, requirements for aids in showers, railing for support, seating / balance support through the house. The report is thorough, I have. reviewed it and am in agreement with all suggestions.
ii. Will these supports be required for life?
There is no reason for a substantive improvement unfortunately given duration of the injuries sustained and chronic disablement - so yes.
iii. Are these supports available via the public/mainstream health system?
No
iv. Will these supports assist by mitigating or alleviating the impact of the impairment, prevent deterioration, improve functional capacity and/or strengthen the sustainability of informal support?
Yes
b. Assistance (physical, guidance, supervision or prompting) from other people
yes, home support is frequently required when lain levels are high and levels of fatigue are elevated
i. If so, what assistive assistance is required
Meal preparation, showering and bathing as outlined in the report provided by the Occupational Therapist., page 18. I am in agreement with all recommendations outlined.
ii. Will these supports be required for life?
As above - yes
iii. Are these supports available via the public/mainstream health system?
No
iv. Will these supports assist by mitigating or alleviating the impact of the impairment, prevent deterioration, improve functional capacity and/or strengthen the sustainability of informal support?
Yes, as outlined in the OT report - it is important for Ms Nika to maintain optimal functional capacity and the recommendations are appropriate.
Please let me know if you require any further information to clarify the above details.
Kind regards
Kind regards
[Donna McCook]
(Emphasis in original; errors in original)
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