Schwartz and National Disability Insurance Agency

[2021] AATA 311

Schwartz and National Disability Insurance Agency [2021] AATA 311 (19 February 2021)

Division:National Disability Insurance Scheme Division

File Number(s):      2018/4212

Re:Wendy Schwartz

APPLICANT

AndNational Disability Insurance Agency

RESPONDENT

DECISION

Tribunal:Member I Thompson

Date:19 February 2021

Place:Adelaide

The reviewable decision is set aside and substituted for a decision that the Applicant meets the access criteria under s 24 of the NDIS Act.

......................[sgnd]..............................

Member I Thompson

CATCHWORDS

NATIONAL DISABILITY INSURANCE SCHEME – access to the scheme – disability requirements – complex medical history – decision set aside and substituted

LEGISLATION

Administrative Appeals Tribunal Act 1975

National Disability Insurance Scheme Act 2013

National Disability Insurance Scheme (Becoming a Participant) Rules 2016

CASES

Arnell v National Disability Insurance Agency [2019] AATA

Ditchfield v NDIA [2019] AATA 2121.

Mulligan v NDIA (2015) FCA 544

Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634

SECONDARY MATERIALS

Operational Guideline – Access to the NDIS

REASONS FOR DECISION

Member I Thompson

19 February 2021

INTRODUCTION

1. The applicant, Wendy Schwartz, made an access request to the National Disability Insurance Agency (NDIA) to become a participant in the National Disability Insurance Scheme (NDIS). 

2. Mrs Schwartz’s request for access to the NDIS specified her primary impairment as reflex sympathetic dystrophy in her left arm, with chronic pain and inability to use it for 14 years following a fracture.  Other impairments that were listed in the supporting evidence form were bronchiectasis, recurrent bowel obstruction and recurrent urinary infection.[1]

   [1] Exhibit F, T5, Access Request – Supporting Evidence Form dated 9 August 2017, p 24.

3. The NDIA declined the request by letter dated 31 October 2017.[2]  Mrs Schwartz sought an internal review of that decision which was subsequently affirmed by a delegate of the NDIA on 14 March 2018.[3] The NDIA was satisfied that Mrs Schwartz meets the age and residency criteria outlined in sections 22 and 23 of the National Disability Insurance Scheme Act 2013 (NDIS Act), however it was not satisfied that she meets the disability or early intervention requirements in sections 24 and 25 of the NDIS Act.

   [2] Exhibit F, T6, Access not met letter dated 21 October 2017, p 29.

   [3] Exhibit F, T2, Internal review decision letter dated 14 March 2018, p 6.

4. The NDIA delegate considered that Mrs Schwartz meets some, but not all, of the disability criteria in relation to her impairment of reflex sympathetic dystrophy with chronic pain and none of the criteria for early intervention. The delegate confirmed with Mrs Schwartz that:

   recurrent bowel obstruction and bronchiectasis are medical conditions with treatment options and will not be considered further in this review process. The supports and services you require for these impairments are most appropriately met by other health and mainstream services.[4]

   Reflex sympathetic dystrophy is now more commonly known as complex regional pain syndrome and is referred to in these reasons as CRPS.

   [4] Exhibit F, T2, Internal review decision letter dated 14 March 2018, p 6.

5. Mrs Schwartz applied to the Tribunal for a review of that decision. In her written application Mrs Schwartz referred to her ‘many serious medical complications’ and noted that her ‘medical history is very rare, and complications come quickly’. She commented that her:

   left arm was broken at head of radius 14 years ago now. The bone break healed, however from moment of impact the pain of the broken arm has and will never go. I have had all tests and there is no pain medication to help me. My brain will not accept it is broken. I cannot sleep at night due to many complications of numerous surgeries; the pain is simply 24/7.[5]

   [5] Exhibit F, T1, AAT application for review dated 26 July 2018, p 4.

6. Mrs Schwartz was 61 years old at the time of her application to become a participant in the NDIS. She is married, receives the Disability Support Pension (DSP) and has a long history of ill-health. She resides with her husband and he is her carer. They reside in their own home in suburban Adelaide.

   THE NATIONAL DISABILITY INSURANCE SCHEME (NDIS)

7. The NDIS provides supports for people with disability through coordination, strategic and referral services, funding to persons or organisations to enable them to assist people with disability to participate in economic and social life, and funding for reasonable and necessary supports for participants in the NDIS.

8. In order to qualify as a participant in the NDIS, an applicant must meet the criteria outlined in s 21 of the NDIS Act. In addition to age and residence requirements, a person must meet the disability requirements in s 24(1) or the early intervention requirements in s 25.

9. Mrs Schwartz has a complex medical history which includes CRPS of the left arm, bronchiectasis, depression, recurrent bowel obstruction, urinary infection, back and lower limb pain and abdominal pain, and bilateral cataracts. She had extensive treatment which was co-ordinated for many years through the Pain Management Unit at the Royal Adelaide Hospital using a multi-disciplinary approach for pain management with multiple trials and assessments of various medications, together with investigations and services through psychology and psychiatry.

10. In this case there is no dispute that Mrs Schwartz meets the age and residence requirements. Generally, the age requirements are met if the person was under 65 years old when an access request was made. The question is whether she meets the disability requirements under s 24, or the early intervention requirements under s 25 of the NDIS Act.

11. Disability requirements – Section 24 of the NDIS Act provides that a person meets the disability requirements if:

    (1)  A person meets the disability requirements if:

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

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

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

    (i)communication;

    (ii)social interaction;

    (iii)learning;

    (iv)mobility;

    (v)self-care;

    (vi)self-management; and

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

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

    (2) For the purposes of subs (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.

12. Early intervention requirements – Section 25(1) of the NDIS Act provides that a person meets the early intervention requirements if:

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

    (a)    the person:

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

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

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

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

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

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

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

    (iii)improving such functional capacity; or

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

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

13. S25(3) provides that even if a person meets the requirements in s 25(1), he or she will 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.

14. Mrs Schwartz will meet the access criteria to become a participant in the Scheme if she succeeds either under the disability criteria in s24 or under the early intervention requirements in s 25 of the NDIS Act.

15. It is important to note the comments of the Federal Court in Mulligan v NDIA:

    It is clear from the legislative scheme that the decision whether a person is or is not a participant is the threshold decision under the scheme, and the decision which enables access to most benefits and funding available under the NDIS.  However, what benefits and supports are provided, and how they are funded, is subject to a separate decision-making process.[6]

    [6] (2015) FCA 544 at [34] per Mortimer J.

16. The concept of impairment, rather than a definition of disability, is central to the threshold provisions such as s 24. The Federal Court went on to say in Mulligan at [56]:

    No decision maker needs to be satisfied a person’s impairment is ‘serious’, or more serious than another people.  No qualitative judgments in that sense are called for.  Rather, the legislative scheme is based on a functional, practical assessment of what a person can and cannot do.  Critically, the scheme makes detailed provision for that assessment, and it is enough for a person to have substantially reduced functional capacity in relation to one activity. 

17. Under s 209 of the NDIS Act the Minister has made rules about becoming a participant in the scheme. The National Disability Insurance Scheme (Becoming a Participant) Rules 2016 (NDIS Rules) are relevant to this case. The NDIS Rules form part of the legislation. Under r 5.8 the decision maker must assess the effect of a person’s impairment on the performance of each of the NDIS Activities that are set out in s 24(1)(c). If the result is any of the outcomes which are specified in r 5.8(a), (b) or (c) then the deeming effect of r 5.8 will apply.

18. The CEO of the NDIA has made operational guidelines for staff in exercising their functions under the NDIS Act. Unless there is good reason not to do so, the operational guidelines represent government policy and should be applied by the Tribunal.[7]  The Operational Guideline – Access to the NDIS includes details and guidance regarding the disability requirements (s 8) and the early intervention requirements (s 9) and will be referred to later in this decision.[8]

    [7] Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634.

    [8] Exhibit F, T12, Operational Guideline – Access to the NDIS, p 83.

    ISSUES

19. In her Statement of Facts, Issues and Contentions (SoFICs) Mrs Schwartz relies upon two impairments, namely CRPS and bronchiectasis, in support of her application.  The CRPS has resulted in loss of functional use of her left arm, with a frozen shoulder, restricted movement and a permanently clawed left hand with flexed deformity of the middle, ring and little fingers. She contends that the bronchiectasis is permanent and incurable. She accepts that part of the NDIA decision which found that her recurrent bowel obstruction was a medical condition that would not be considered further in the review process.[9]  Her SoFICs also asserts that she has continuing anxiety and depression which is associated with loss of function in her left arm and hand together with pain in her abdomen and left lower limb.

    [9] Exhibit B, Applicant’s Statement of Facts, Issues and Contentions, p 3.

20. The NDIA’s SoFICs note that while Mrs Schwartz suffers from numerous health conditions, her NDIS application relies on the two impairments of CRPS and bronchiectasis.  As such, the Tribunal’s determination should ultimately be confined to evidence about those two impairments.

21. Specifically, the NDIA accepts that Mrs Schwartz has CRPS in the left arm and that condition: is an impairment for the purposes of s 24(1)(a) of the NDIS Act; is (or is likely to be) a permanent impairment for the purposes of s 24(1)(b); and affects her capacity for economic participation for the purposes of s 24(1)(d).

22. The NDIA does not accept that Mrs Schwartz satisfies the disability requirements in s 24 of the NDIS Act or the early intervention requirements in s 25 of the NDIS Act. The NDIA contends that:

    ·the CRPS in Mrs Schwartz’s left arm does not result in a substantial reduction in functional capacity;[10]

    ·Mrs Schwartz is not likely to require NDIS lifetime support;[11] and

    ·early intervention support is not most appropriately provided through the NDIS.[12]

    [10] National Disability Insurance Scheme Act 2013 (Cth) s 24(1)(c).

    [11] National Disability Insurance Scheme Act 2013 (Cth) s 24(1)(e).

    [12] National Disability Insurance Scheme Act 2013 (Cth) s 25(3).

23. The NDIA’s SoFICs concedes that Mrs Schwartz was diagnosed with mild bronchiectasis that was stable from the year 2000; that it is a permanent impairment for the purposes of s 24(1)(b); and the bronchiectasis affects her capacity for economic participation for the purposes of s 24(1)(d) of the NDIS Act. However, the NDIA submits that the bronchiectasis:

    ·does not result in a substantial reduction in functional capacity for the purposes of s 24(1)(c);

    ·is not likely to result in Mrs Schwartz requiring the support of the NDIS for her lifetime;[13] and

    ·is not an early intervention support most appropriately provided through the NDIS.[14]

    [13] National Disability Insurance Scheme Act 2013 (Cth) s 24(1)(b).

    [14] National Disability Insurance Scheme Act 2013 (Cth) s 25 (3).

24. As a result of the NDIA concessions, ss 24(1)(a) and (b) were not in contention, which meant that a principal issue in dispute was whether Mrs Schwartz’s permanent impairments of CRPS and bronchiectasis together or separately led to a substantial reduction in her functional capacity.[15]

    [15] Respondent’s final submissions dated 29 September 2020, p 3, para 20.

    THE HEARING

25. The audio-visual hearing in the Tribunal took place over several days between July and October 2020.  Both parties were represented by counsel.

26. Mrs Schwartz gave audio-visual evidence from home.  The Tribunal received in evidence a vast quantity of documents which comprised numerous medical reports, medical notes, allied health reports, letters, forms and other documents.  They included over 550 pages of medical reports, letters, notes and hospital records which were generated between 2000 and 2020.  The documentary evidence was subjected to comprehensive analysis by counsel in their questioning of witnesses and in their submissions.  No stone was left unturned.

27. Mrs Schwartz relies on her conditions of CRPS and bronchiectasis for the purposes of her application to access the NDIS. Although she does not rely on other conditions, there is an intermingling of some of her health conditions which have an impact on her daily life.  Ultimately the focus in these reasons for decision lies in the two conditions of CRPS and bronchiectasis.

28. Mrs Schwartz provided a written statement prior to the hearing and gave oral evidence.  Her husband also gave evidence and provided a written statement dated 27 May 2019.  She called one other witness, an occupational therapist, Mr Manton.

29. The NDIA summonsed three medical practitioners; Dr Clothier, Dr Carter and Dr Herriot.  The NDIA arranged for an occupational therapist, Ms Welshe, to assess Mrs Schwartz. Ms Welshe provided a written report and gave evidence.

    CONSIDERATION

30. The Tribunal is satisfied on the evidence that the concessions by the NDIA regarding s 24(1)(a) and (b) of the NDIS Act are correct. The Tribunal finds that Mrs Schwartz has a disability which results from impairments caused by CRPS and bronchiectasis. The Tribunal finds that those impairments are permanent.

31. The next step is to decide whether Mrs Schwartz meets the requirements which are set out in s 24(1)(c), (d) and (e) of the NDIS Act.

    EVIDENCE

    Mrs Schwartz

32. In her statement of lived experience, Mrs Schwartz described the effects of CRPS:

    I suffer from permanent flexed fingers on my left hand.  This, in addition to the problems with my left arm leads to a complete loss of any functional use in my arm and hand.  The arm remains highly sensitive and I experience constant pain… My brain will never accept my broken arm pain.  Now, some fourteen (14) years later, it is still as if I am carrying a broken arm with the same pain, as well as complications from my frozen shoulder.[16]

    [16] Exhibit E, Statement of lived experience – Mrs Wendy Schwartz, undated, pp 188–189.

33. At the time of giving evidence Mrs Schwartz was 64 years old.  Married since 1994, she resides with her husband who is now her full-time carer and has been for about nine years.  She described the impact of injuries sustained from a fall onto ceramic tiles which occurred in August 2004 when she broke her left arm.  She said the pain in that arm has never ceased.  The arm has been constantly sensitive to touch to clothing, heat, cold, and water. Three fingers on her left hand have been permanently flexed since the fall.  She is right hand dominant.

34. In her statement Mrs Schwartz described the impact of her medical conditions on her daily life, and she was questioned in considerable detail about them in her oral evidence.  Mrs Schwartz told the Tribunal about her daily routine.  She does not sleep well and regularly goes to bed around 2:00AM, if not later, and on some days, she does not get out of bed until the afternoon.  She has problems with back spasms, and she cannot get into bed by herself.  She still has problems arising from a gall bladder operation seven years ago, which also lead to pneumonia while she was in hospital.

35. She has problems with self-care that include issues with showering, toileting and dressing.  Her husband does most of the preparation for meals and the cooking.  She generally does not access items above eye level and carrying things is not easy.  Her husband does most of the cleaning and she can only do some of the light tasks such as dusting and folding clothes by using her right hand.

36. She has difficulties with mobility, for example standing up from her lounge chair and getting out of bed and losing balance.  She uses pillows and a rotating action to pull herself up and get out of bed.  She is restricted with walking.  She avoids the external steps at the front of her house.  She finds carpets the easiest surface to walk on.  She said she is conscious about her balance and gets anxious about falling, particularly a fear of falling backwards.  She could not get up from a fall without nearby furniture to lean on.

37. Socially, Mrs Schwartz is affected.  Occasionally she attended meetings of the local neighbourhood watch group, and she used to enjoy outings with a carers group which included going out in a bus for meals and the cinema.  She enjoys weekly phone conversations with a friend and she also talks on the phone to her brother and sister.  Mostly, however, she tends to stay at home and avoid social and community activities.  Mrs Schwartz had finished working in 2002.  She stopped driving a car many years ago, and rarely drove prior to the fall in 2004.

1. Mrs Schwartz said the she has problems with concentration, and she gets distracted easily.  She said she has problems with her short-term memory, and she makes notes to help her to remember things.  Stress and anxiety add to these concerns and her worries are exacerbated by the distraction of living with chronic pain.  She finds little relief from the stress of constant pain and carrying out simple everyday tasks and activities require extra effort.  She commented that she suffers from breathlessness ‘which adds to further difficulties in performing everyday tasks’.[17]

   [17] Exhibit E, Statement of lived experience – Mrs Wendy Schwartz, undated, p 188.

   Mr Schwartz

2. Mr Schwartz provided a written statement which summarised his role as a full-time carer. The written statement provided details of the work that he does around the house; assisting Mrs Schwartz with her self-care, shopping and financial management, and attending appointments.[18]

   [18] Exhibit E, Statement of Neville’s Daily Care – Mr Neville Schwartz, undated, p 191.

3. Mr Schwartz gave evidence.  He is now 72 years old and a retiree.  Mr Schwartz’s last full-time work was in August 2009 and thereafter he ran his own business for two years from a warehouse working limited hours.  He stopped work altogether at ‘retirement age’ and when Mrs Schwartz was needing more assistance and care at home.  In 2009 he commenced receipt of a carers allowance and from September 2011 a carers pension.  Between 2004 and 2011 Mrs Schwartz was considerably more independent than she is now in various aspects of her daily activities including mobility, some shopping, various aspects of self-care and meal preparation.

4. Mr Schwartz told the Tribunal that he has some small breaks and time away from home.  They seem to comprise playing a round of golf, going to the football with his daughter, driving to the shops and back again, and attending to his own medical appointments.

5. It was suggested that some of the assistance which he gives Mrs Schwartz occurs out of expediency – that is, it is just as easy for him to step in and undertake tasks that she might otherwise do, though taking longer and encountering some physical impediments.  From his perspective, however, Mrs Schwartz has difficulty with various day-to-day activities, and he is anxious to ensure that she does not do anything that might cause her harm.

6. Mr Schwartz’s perspective is that the tasks which he undertakes, which he described in his written statement, are necessary because of the problems which Mrs Schwartz has with her arm, certain disabilities from her previous operations, illnesses including back spasm, and her problems bending over.

   MEDICAL EVIDENCE

   Complex Regional Pain Syndrome (CRPS)

7. In relation to the CRPS, the NDIA position was that there was no deterioration in Mrs Schwartz’s functional capability since 2008.  It was submitted that the evidence demonstrates that what she was functionally capable of doing in 2008, 2012, and 2016 is relevant because it demonstrates her current functional capacity.[19]  Hence, Mrs Schwartz’s capabilities twelve, eight and four years ago, and in between, were scrutinized in some detail.

   [19] Respondent’s final submissions dated 29 September 2020, p 9, paras 65–68.

8. After Mrs Schwartz injured her left elbow in a fall in August 2004, she attended the Emergency Department at the Queen Elizabeth Hospital.  X-rays showed a fracture of the radial head of her left arm.  She wore a sling and then she was encouraged to undertake elbow exercises.  The hospital recorded the presenting problem as deformity and swelling of the upper limb.  X-rays showed an un-displaced fracture head of the radius. Investigations, treatment and reviews commenced and continued for the next 16 years.

9. By early 2005,  Mrs Schwartz  was referred to the pain management unit of the Royal Adelaide Hospital and it was noted in a report to her general medical practitioner  that she was suffering from continuing pain and dysfunction through a painful shoulder, upper arm and lower arm with pins and needles, discolouring and changes in temperature, together with a frozen left shoulder and severe allodynia.  The report concluded that Mrs Schwartz was suffering from severe reflex sympathetic dystrophy of her left arm with a frozen shoulder together with psychological issues which related to the death of her mother.  A previous whiplash injury was also causing a problem.[20]

   [20] Exhibit D, Respondent’s Tender Bundle, Report of Pain Management Unit, Royal Adelaide Hospital dated 7 February 2005, p 17.

10. Dr Herriot is a consultant psychiatrist at the pain management unit, Flinders Medical Centre, and has a private practice.  In 2016 he was admitted as a fellow in the faculty of pain medicine which is part of the Australian College of Anaesthetists.  During his professional practice he has treated over 50 people with CRPS.  He managed the psychiatric treatment for Mrs Schwartz over many years commencing in the pain management unit at the Royal Adelaide Hospital in 2007.

11. CRPS was described by Dr Herriot as:

    [a] life altering condition that can make life extremely difficult for the patient and which can also be a challenge for the health care provider to successfully treat. It can have a devastating impact on those afflicted, both in terms of the individual’s ability to function as well as their psychological well-being. The pain and disability can create a vicious cycle of pain, isolation and depression. Despite being recognised since around the mid – 19^th century, the condition still remains somewhat enigmatic.[21]

    Dr Herriot told the Tribunal that Mrs Schwartz has complained of pain at a high level over a long period and it is, in effect, undiminished since the time of the fracture.

    [21] Exhibit E, Report of Dr Herriot dated 20 May 2019, p 9.

12. In evidence, Dr Herriot said that CRPS is a condition which is quite poorly understood even by some doctors.  He spoke about people who may have suffered a fracture from which generally they will recover and regain function.  However, a small number of people develop a pain syndrome with symptoms that are unusual and do not appear to make anatomical sense.  However, enough is now known about the condition that it can be diagnosed with a degree of reliability.  CRPS involves severe pain in the affected region.  It is also associated with changes in the autonomic nervous system which involves abnormality in temperature regulation varying between hot and cold so that the person may be sweating a lot or not at all in the affected area.

13. Dr Clothier is a rehabilitation physician at the pain management unit at the Royal Adelaide Hospital.  He had long-term involvement in the multidisciplinary treatment of Mrs Schwartz over many years commencing in April 2006.  In evidence he said that the cause of CRPS is largely unknown.  It may follow minor trauma or moderate trauma often after nerve injury and can result in a range of symptoms including pain and swelling, stiffness and sweating.  There is not one single test for a diagnosis of CRPS.  However, there are internationally recognised criteria for the diagnosis in accordance with several symptoms and signs.  He suggested that about 75% of patients recover from it and those who do not have varying degrees of problems.

14. A report from the orthopaedic outpatient department of the Royal Adelaide Hospital on 20 October 2005, written about 14 months after the closed fracture of the left radial head, confirmed that Mrs Schwartz’s problems were complicated by CRPS involving the left hand and elbow.  The report noted that Mrs Schwartz was complaining of pain and stiffness in her left shoulder and that she was having follow-up treatment including a cortisone injection.  Her left fingers were in fixed flexion over the ulnar digits, with the temperature reduced compared with the right hand and increased sensitivity and tenderness over the fingers.  There was reduced flexion in the left shoulder and left elbow.[22]

    [22] Exhibit D, Respondent’s Tender Bundle, Report of Dr Ng, Queen Elizabeth Hospital dated 20 October 2005, p 32.

15. A report from the orthopaedic clinic of the Royal Adelaide Hospital in July 2009 indicated that her left shoulder pain was being managed with cortisone injections and she was using Gabapentin for nerve related pain in the left arm.[23]  She had flexion contracture of the middle, ring and little fingers of the left hand with a limited extension and flexion of the elbow.  The orthopaedic clinic had previously been unable to offer any active intervention for the left upper limb difficulties.[24]

    [23] Exhibit D, Respondent’s Tender Bundle, Report of Dr Mooney, Queen Elizabeth Hospital dated 09 July 2009, p 96.

    [24] Exhibit D, Respondent’s Tender Bundle, Report of Dr Khalid, Queen Elizabeth Hospital dated 12 June 2008, p 92.

16. The hospital records include numerous notes and reports that Dr Clothier wrote as far back as March 2008.  In oral evidence, Dr Clothier confirmed that Mrs Schwartz has a diagnosis of left arm CRPS.  She has left shoulder adhesive capsulitis, commonly referred to as a frozen shoulder.  That condition is frequently part of CRPS.  In March 2010, Dr Clothier reported that her CRPS of the left arm and her adhesive capsulitis had been stable for the previous 18 months.[25]  By August 2012 Dr Clothier noted that Mrs Schwartz was complaining more regularly of pain in her left leg and Dr Clothier found it difficult to provide an explanation. He went on to comment that:

    the most likely explanation is that she has neuropathic pain because of her severe left upper limb complex regional pain syndrome.  There is no real evidence of sympathetic involvement of either the left upper limb or the left lower limb now, neither was there in 2009.  25% of patients with one limb affected by complex regional pain syndrome will develop more widespread pain and this is most likely the explanation.[26]

    [25] Exhibit D, Respondent’s Tender Bundle, Report of Dr Clothier, Royal Adelaide Hospital dated 01 March 2010, p 100.

    [26] Exhibit D, Respondent’s Tender Bundle, Report of Dr Clothier, Royal Adelaide Hospital dated 13 August 2012, p 113.

17. Dr Clothier told the Tribunal that he estimated that he had treated several hundred patients with CRPS.  In terms of the symptoms and their severity, Mrs Schwartz rates at the severe end of the scale of those CRPS patients because of severe sensitivity and contractures of the fingers.  She has problems gripping things, problems with grip strength, problems holding things and difficulties with the lack of power in her left arm.  Dr Clothier agreed that the day-to-day light touch converts into pain for Mrs Schwartz and when he last saw her in 2016, she was in constant pain.

18. In August 2006, early in the involvement of the pain management unit Dr Clothier pointed out that Mrs Schwartz:

    did not get pain relief in the middle and ring fingers and the associated part of the hand, indicating that her area of complex regional pain syndrome is more than just localised to the left ulnar nerve.[27]

    Dr Clothier explained it in terms of a central sensitisation process or a predominantly central mechanism rather than a peripheral process involving the ulnar nerve.  In turn, that may bear upon the severity of the condition.

    [27] Exhibit D, Respondent’s Tender Bundle, Report of Dr Clothier, Royal Adelaide Hospital dated 17 August 2006, p 67.

19. A document prepared for the hospital pain unit panel meeting in September 2006 referred to an ultrasound of Mrs Schwartz’s left elbow which showed left ulnar nerve atrophy at the level of the elbow.[28]  Dr Clothier told the Tribunal that this finding of peripheral nerve damage, which contributes to contractures, compounds the underlying problem in the limb as Mrs Schwartz’s overall presentation was more widespread than just the peripheral nerve.  Dr Clothier said that between mid-2012 and May 2016 his consultations with Mrs Schwartz were primarily in relation to her left leg and hip pain.  When he wrote a report on 13 August 2012,[29] he told the Tribunal the CRPS continued to be severe, with very severe tenderness to touch in the left-hand.

    [28] Exhibit D, Respondent’s Tender Bundle, Report of Pain Unit Panel meeting, undated, p 68.

    [29] Exhibit D, Respondent’s Tender Bundle, Report of Dr Clothier, Royal Adelaide Hospital dated 13 August 2012, p 112.

20. In terms of impairment of function, Dr Clothier said it made no difference whether the frozen left shoulder, adhesive capsulitis, is part of or secondary to the CRPS.  In Mrs Schwartz’s case it appeared that there was a problem with her left shoulder prior to the fall which resulted in the broken elbow in 2004.  Indeed, by March 2006, a neurology registrar reported that Mrs Schwartz’s left shoulder:

    has marked limitation in the range of movement secondary to pain and below her left elbow in an ulnar distribution she has evidence of reflex sympathetic dystrophy, including a blotched appearance of her skin, cold digits and her medial three digits are in a fixed contracture.[30]

    [30] Exhibit D, Respondent’s Tender Bundle, Report of Dr Leyden, Royal Adelaide Hospital dated 28 March 2006, p 52.

21. Dr Clothier’s last review of Mrs Schwartz at the pain management unit occurred in May 2016 when she was complaining of throbbing pains radiating from her hip through to her feet.  He was unable to identify causes of her pain.  An MRI was recommended; however, it appears that it did not occur.  In evidence, Dr Clothier recalled that her CRPS of the left upper limb was unchanged at that time and he noted that the way in which she carried her left arm and protected the hand had also not changed.  He agreed that the CRPS had remained relatively stable between 2012 and 2016.

22. In his report dated 27 November 2018,[31] Dr Clothier referred to his last consultation with Mrs Schwartz and noted that she had: a painful abdominal scar from surgery in 2013; throbbing leg pain; bowel problems; reduced lumbar spine movement; reduced straight leg raise; and a tense and tight abdomen.  She had a left L4/5 disc prolapse with persistent back and left leg pain.  She has degenerative changes in both hips.  He described the back and leg pain from the disc prolapse as significant.

    [31] Exhibit E, Report of Dr Clothier dated 27 November 2018, p 13.

23. During the years in which Dr Clothier treated Mrs Schwartz he noticed that she was very protective about her left arm and hand.  She held her arm close to her body.  Her arm and elbow were bent, fingers flexed, and she held her arm and hand in that way because of the CRPS and associated pain.  Dr Clothier said that, in his experience, people with CRPS avoid activity that causes pain.  The protection of the hand from touch can lead to less movement or use of the affected hand and arm and that can cause increased stiffness.  She does not use the left arm in a normal, bilateral fashion.  She doesn’t grip things with the left hand.  She does a lot of things right-handed rather than using both hands.  Dr Clothier did not consider that physiotherapy would have been beneficial, rather it could have been painful and self-exercising would be preferable.  Dr Clothier said the way in which people with chronic pain cope with it varies from person to person.  A lot of them do not exercise, they become unfit and suffer from mental health issues.

24. Dr Clothier told the Tribunal that Mrs Schwartz is at risk of falling as she cannot use the left upper limb to break a fall.  The CRPS is the predominant cause of her inability to undertake repetitive actions using her left arm.  The CRPS has an adverse impact on repetitive lifting because of difficulty she has picking things up.  It makes coordinated movements of the upper limbs more difficult.  That means there is a tendency to spill things, knock things over and increase pain.

25. In his report dated 27 November 2018, Dr Clothier wrote that Mrs Schwartz has always complied with recommendations together with investigations and treatments, however her condition has not responded to several of those treatments.  He added:

    Mrs Schwartz is only fit for sedentary based activities, she has limited function of her left upper limb, as well as significant back and leg pain from a disc prolapse.  She is unfit for activities requiring repetitive use of her left arm, repetitive bending or lifting.[32]

    As he had not seen Mrs Schwartz for two years beforehand, he was unable to comment presently on mobility, depression, memory and the impact on social interaction, learning and communication.  However, Dr Clothier reiterated that he was taking into account her difficulties with the left upper limb in assessing her fitness for only sedentary based activities.  Dr Clothier said that the CRPS had a major impact and was the predominant cause for Mrs Schwartz’s unfitness for activities requiring repetitive use of the left arm.  Questions about her capacity for bending repetitively relate to back and leg pain and he considered that the CRPS might only have a small impact and, even then, he was not sure about it.  In relation to repetitive lifting, Dr Clothier said that the CRPS contributed to a significant degree because Mrs Schwartz could not hold anything of substantial weight or grip things strongly.

    [32] Exhibit E, Report of Dr Clothier dated 27 November 2018, p 13.

26. Dr Clothier confirmed that he last saw Mrs Schwartz in 2016.  Her CRPS had not improved over the previous 10 years and he did not think it was likely that it would improve after 2016.  Dr Clothier thought that Mrs Schwartz was an honest and accurate historian and that she did not exaggerate her symptoms or the effects of her condition.

27. Dr Clothier was asked about a recommendation that he made in August 2006[33] for Mrs Schwartz to visit the Independent Living Centre, where she might obtain some adaptive aids, equipment and advice to assist her with her rehabilitation and enhance her independence.  He agreed that if she did not attend, she was not complying with the recommendation by health practitioners to do so.  Dr Clothier was referred to a report that he wrote on 21 October 2013,[34] which was after her critical illness with large bowel perforation and intra-abdominal sepsis following a cholecystectomy.  At that time, she had some continuing pain in the left leg and significant abdominal pain that was being treated by the surgeons at the Lyell McEwen Hospital.  The hospital separation summary from that period included a comment about self-care, namely that Mrs Schwartz could perform grooming tasks independently, toilet independently with the use of the toilet seat raiser and shower independently using a shower chair and handheld shower hose.[35]  He acknowledged those comments which were apparently attributable to a senior physiotherapist, a senior social worker and clinical nurse.  He also noted that the report did not specify whether those activities were carried out predominantly one-handed, or how much involved use of the left-hand or use of the right-hand, or bilateral use.

    [33] Exhibit D, Respondent’s Tender Bundle, Report of Dr Clothier dated 17 August 2006, p 67.

    [34] Exhibit D, Respondent’s Tender Bundle, Report of Dr Clothier dated 21 October 2013, p 118.

    [35] Exhibit D, Respondent’s Tender Bundle, Final Separation Summary, Modbury Hospital dated 05 September 2013, p 489.

28. Dr Clothier was questioned about strategies, treatment and techniques for pain management that Mrs Schwartz should be pursuing.  In Dr Clothier’s opinion, the appropriate strategy would be for her to pace her activities, use her left hand within the limits of tolerance, continue to take medication that she finds helpful, and to use distraction and relaxation techniques if she had found them useful before.  He noted that she was apparently still taking antidepressant medication and not nerve-related pain medication.  While noting that aerobic exercises are always important for general health, he considered that the exercises are unlikely to make any difference in view of the contractures of Mrs Schwartz’s fingers.

1. Dr Clothier told the Tribunal that the medications which Mrs Schwartz had taken over the many years of her involvement with the pain management unit had been of limited benefit.  He said that Lyrica, Gabapentin and Sodium Valproate were relatively ineffective most of the time.

2. The Tribunal accepts the evidence of Dr Clothier about CRPS, the history of Mrs Schwartz’s CRPS, the treatment which she received at the Royal Adelaide Hospital, and the progress and impact of that treatment.  Dr Clothier was a key member of the multi-disciplinary unit from 2005 which provided management and continuous oversight of Mrs Schwartz for her CRPS.

3. Reporting in September 2018, Dr Herriot described Mrs Schwartz’s numerous, painful conditions.  They included CRPS in her left arm following the radial head fracture in 2004, persistent severe pain in the left arm, limited functional use of the left arm and hand, and fixed flexion deformity of her middle, ring and little fingers of the left hand.  She has a frozen left shoulder.  She has suffered from recurrent small bowel obstructions with multiple past operations.  She has been advised against further abdominal surgery with the consequence that she could potentially die from a further recurrence of small bowel obstruction.  She continued to report severe pain and sensitivity at the site of her laparotomy scar on her abdomen where she had surgery in 2013.  She reported lower back pain, left leg pain which has required nerve root injections to the spine without much benefit, severe pain and sensitivity in the right finger, and bilateral cataracts associated with a condition called Fuchs dystrophy.  She has a history of bronchiectasis associated with shortness of breath.  In addition, she has described sleep disturbance, and subjective memory complaints.  Dr Herriot wrote that he was supportive of Mrs Schwartz’s application for NDIS assistance.  She was depressed as a result of the numerous symptoms and is on antidepressant medication.[36]

   [36] Exhibit E, Letter of Dr Herriot dated 11 September 2018, p 114.

4. Dr Carter has been a general medical practitioner for 25 years.  For the past 20 years she has been Mrs Schwartz’s primary GP.  She completed an evidence form in support of Mrs Schwartz’s request to access the NDIS.[37]  In that form she wrote that Mrs Schwartz’s primary impairment was reflex sympathetic dystrophy with chronic pain and an inability to use her left arm.  In a brief description of treatment Dr Carter wrote that Mrs Schwartz had previously received physiotherapy and she was a patient at the pain management unit of the Royal Adelaide Hospital.  There were no further treatment options.  Dr Carter wrote that Mrs Schwartz’s other impairments were bronchiectasis, recurrent urinary infection and recurrent bowel obstruction.

   [37] Exhibit F, T5, Access Request – Supporting Evidence Form dated 9 August 2017, p 24.

5. Dr Chan is a senior consultant in the pain management unit at the Flinders Medical Centre.  In a report written on 5 November 2019 he summarised Mrs Schwartz’s medical history and treatment regarding conditions of left arm CRPS following left radial head fracture in 2004 and resultant flexion contractures of third and fifth fingers, left shoulder and adhesive capsulitis, degenerative lumbar back pain and laparotomy scar neuralgia.

6. Dr Chan wrote in that report that Mrs Schwartz had undergone various management strategies from 2005, including multidisciplinary input with psychology, physiotherapy and several spinal interventions and trials with medication.[38]

   [38] Exhibit E, Response from Dr Chan, Flinders Medical Centre dated 5 November 2019, p 209.

7. Dr Chan wrote on 24 May 2019, following a review of Mrs Schwartz, that she had marked functional limitation involving limited use of the left arm and difficulty bending forwards.  In relation to the bending, Dr Chan wrote that:

   bending forward exacerbates her abdominal pain and results in significant bouts of nausea and vomiting.  This is thought to be a combination of the scar neuralgia, as well as her history of abdominal adhesions.[39]

   [39] Exhibit D, Respondent’s Tender Bundle, Report of Dr Chan dated 24 May 2019, p 131.

8. Following a review in the pain management unit on 29 October 2019, Dr Chan suggested that it was important that Mrs Schwartz use:

   her coping mechanisms and techniques taught through her long involvement with the CALHN PMU and not focusing on a curative solution for her 15 year history of left arm CRPS.[40]

   [40] Exhibit D, Respondent’s Tender Bundle, Report of Dr Chan dated 29 November 2019, p 138.

9. Dr Carter commented in evidence that for the previous 10 years or more she considered that Mrs Schwartz was consistently limited in the way in which she used her left hand.  Rather than holding things with the left hand she used it for supporting and balancing things.  In that sense, Mrs Schwartz has some function and use of the left upper limb.  There is reduction in function of her left hand and arm from the CRPS.  Dr Carter said that the CRPS is a constant source of pain for Mrs Schwartz.

10. Dr Carter said that she has noticed a deterioration in Mrs Schwartz’s health over the last few years – in the last three years or so after writing the report on 6 November 2017.[41]

    [41] Exhibit F, T7, Letter of Dr Carter dated 6 November 2017, p 31

    Bronchiectasis

11. In relation to the bronchiectasis, the NDIA’s final submissions contended that the medical evidence is not enough for the Tribunal to be satisfied that bronchiectasis is the cause of shortness of breath which Mrs Schwartz experiences.  This has significance, according to the submission, as Mrs Schwartz’s case is that her shortness of breath affects her capacity to undertake activities of mobility, self-care, self-management and communication.

12. Bronchiectasis was described in a document tendered in evidence as:

    a pathological diagnosis typically confirmed by radiology. Bronchiectasis is characterised by abnormal, irreversible bronchial dilatation or a fixed increase in airway diameter. Bronchiectasis is currently usually diagnosed by a chest high – resolution computed tomography.[42]

    That description was confirmed in evidence by Dr Carter.

    [42] Exhibit C, Bronchiectasis Guide for Primary Care, undated, p 35.

13. Mrs Schwartz was examined for possible bronchiectasis 20 years ago.  In a report dated 9 December 2000 a senior respiratory physician at the Queen Elizabeth Hospital, Dr Southcott, confirmed that Mrs Schwartz has mild bronchiectasis with symptoms of phlegm retention.[43]  Medication was prescribed, and the condition was subject to periodic reviews in the following months.  On 3 April 2001, Dr Southcott wrote that Mrs Schwartz had symptoms which were continuing.  They involved worsening breathlessness on exposure to perfumes, sprays and cleaning products.[44]  The last report from Dr Southcott on 28 July 2001 confirmed that the condition was stable.[45]  Dr Southcott also wrote that Mrs Schwartz has some episodes involving loss of breath followed by coughing to get her breathing back again.

    [43] Exhibit D, Respondent’s Tender Bundle, Report of Dr Southcott dated 9 December 2000, p 362.

    [44] Exhibit D, Respondent’s Tender Bundle, Report of Dr Southcott dated 3 April 2001, p 368.

    [45] Exhibit D, Respondent’s Tender Bundle, Report of Dr Southcott dated 28 July 2001, p 374.

14. Professor Bochner, a clinical pharmacology consultant, reviewed Mrs Schwartz’s history and treatment through the multidisciplinary service at the Royal Adelaide Hospital.  In a report dated 24 March 2010, Professor Bochner noted that Mrs Schwartz’s bronchiectasis had not been assessed for 10 years and it would be worthwhile for a review to be conducted by a thoracic physician.  She was reviewed in the Department of Thoracic Medicine at the Royal Adelaide Hospital and a report on 23 September 2010 confirmed that she has bronchiectasis which appeared to be relatively stable.  Mrs Schwartz provided an account which was described in the report as:

    … A history of a chronic productive cough… Coughing up plugs of mucus, sometimes associated with haemoptysis.  She says the mucus is often foul-smelling.  In terms of her breathing, she says if she rushes then she will get short of breath walking a short distance, however, if she takes her time, she generally does not have too much trouble.[46]

    [46] Exhibit D, Respondent’s Tender Bundle, Report of Dr Spizzo dated 23 September 2010, p 386.

15. Subsequent reports from the Department of Thoracic Medicine at the Royal Adelaide Hospital confirmed that Mrs Schwartz has bronchiectasis, normal lung function, a cough and shortness of breath on exertion.[47]  In a report dated 19 April 2011 the Senior Thoracic Registrar reported that Mrs Schwartz had consulted a physiotherapist at the hospital and she was provided with information about  a technique for sputum clearance.  It was noted that she was producing thumbnail sized plugs mainly in the morning but also during the day, that she is short of breath after walking 100 metres at a reasonable pace, there were no recent infections, and she was complaining of current ankle swelling.[48]

    [47] Exhibit D, Respondent’s Tender Bundle, Report of Dr Pradeen dated 17 December 2010, p 389.

    [48] Exhibit D, Respondent’s Tender Bundle, Report of Dr Dougherty dated 19 April 2011, p 397.

16. There was concern that Mrs Schwartz may have pulmonary hypertension and reviews continued into 2012 and 2013.  A report dated August 2011 from the Senior Thoracic Registrar recorded Mrs Schwartz completing a six-minute walk test which demonstrated a walking distance of 340 metres.[49]  A further report dated 30 July 2012 noted Mrs Schwartz had stable bronchiectasis and acute respiratory tract infection.[50]

    [49] Exhibit D, Respondent’s Tender Bundle, Report of Dr Pradeepan dated 9 August 2011, p 401.

    [50] Exhibit D, Respondent’s Tender Bundle, Report of Dr Karunarathine dated 30 July 2012, p 405.

17. In 2013, Mrs Schwartz was admitted to the Lyell McEwen Hospital because of sub-acute bowel obstruction.  At one point she became extremely unwell with hospital-acquired pneumonia which required management in the intensive care unit.  A registrar in the Department of Thoracic Medicine reported on 14 November 2013 that Mrs Schwartz was:

    still recovering from this terrible time in July and August.  She still finds that she is somewhat short of breath on walking upstairs.  She has significant chronic pain issues in her abdomen and across her chest since discharge.  Her bronchiectasis prior to this event had been stable with a cough that was only occasionally productive.  Pulmonary function testing today showed normal lung function as has been consistent with all her previous tests.[51]

    [51] Exhibit D, Respondent’s Tender Bundle, Report of Dr Viiret dated 14 November 2013, p 408.

18. By November 2014, the Department of Thoracic Medicine was content for the bronchiectasis to be treated by Mrs Schwartz’s general medical practitioner, noting that the bronchiectasis appeared to be stable and that subjectively Mrs Schwartz complained of very mild exertional dyspnoea and an occasional cough which was related to mucus plugging.[52]

    [52] Exhibit D, Respondent’s Tender Bundle, Report of Dr Tran dated 20 November 2014, p 410.

19. Dr Carter was questioned about her letter to the NDIA on 6 November 2017 in which she wrote: ‘she also has respiratory issues with shortness of breath and inability to shower herself due to exertional dyspnoea’.[53]  Dr Carter was asked about the reports up to November 2014 from the Thoracic Outpatient Unit of the Royal Adelaide Hospital when Mrs Schwartz was discharged.  Dr Carter suggested that the specialists appeared to be looking for other explanations for the dyspnoea, given that the lung function was normal but still there was reduced transfer of oxygen.  Dr Carter suggested that they did not find a reason, from a diagnostic viewpoint, for Mrs Schwartz’s dyspnoea.  Ultimately Dr Carter maintained that the main reason, among the multi-factorial considerations, for the shortness of breath is the bronchiectasis.  She denied that she did not have a basis for that viewpoint which was, in her opinion, in accordance with the diagnoses and comments made from time to time by the specialist medical practitioners at the Royal Adelaide Hospital.

    [53] Exhibit F, T7, Letter of Dr Carter dated 6 November 2017, p 31.

20. Dr Carter confirmed that over the many years that she has treated Mrs Schwartz there have not been any issues regarding the honesty, accuracy and reliability of the history which Mrs Schwartz has conveyed.  Dr Carter agreed that Mrs Schwartz has not exaggerated or embellished the symptoms of CRPS and bronchiectasis during numerous consultations.  Dr Carter also said that her medical notes do not record every symptom and issue discussed and examined during a consultation – they are notes, made to assist her in relation to principal issues and matters to follow-up.

21. More recently, Mrs Schwartz has also consulted a general medical practitioner much closer to her home than Dr Carter.  Medical notes from that general practitioner, Dr Azabakhsh were received in evidence.[54]  Dr Carter was referred to portions of those notes.  They included an entry on 30 October 2017 referring to episodes of shortness of breath related to exercise,[55] an entry on 3 September 2018 referring to sputum production,[56] and an entry on 27 November 2018 reporting that Mrs Schwartz gets puffed out more easily when taking a shower or walking for 50 metres.[57]  Another entry on 12 December 2018 referred to the presence of blood sputum, getting puffed out more easily, and a further reference to these problems occurring whilst taking a shower or walking for 50 metres.  It also noted that a recent spirometry was normal, and the chest CT scan was also normal.[58]  

    [54] Exhibit C, Medical notes of Dr Azarbakhsh, pp 20–34.

    [55] Exhibit C, Medical notes of Dr Azarbakhsh, p 25.

    [56] Exhibit C, Medical notes of Dr Azarbakhsh, p 29.

    [57] Exhibit C, Medical notes of Dr Azarbakhsh, p 29.

    [58] Exhibit C, Medical notes of Dr Azarbakhsh, p 30.

22. Various medications were continuing to be prescribed.  Dr Carter considered these notes indicated that the result of the consultations and examination was that shortness of breath was related to bronchiectasis, noting the bleeding and the mucus plugs  in addition to there being no mention of other potential causes, such as anaemia.

23. A respiratory and sleep physician, Dr Sulaiman, to whom Mrs Schwartz was referred, reported on 19 March 2019 that there was no evidence of significant bronchiectasis and no findings to suggest significant interstitial lung disease.  At that time, Mrs Schwartz was consistently taking Breo Ellipta with a significant reduction in the productive cough and mucus production, while the cause of an episode of severe chest pain could not be established.  A recent echocardiogram was normal.[59]

    [59] Exhibit C, Report of Dr Oakden-Raynor – X-ray of Thoracic Lumbar Spine dated 20 December 2018, p 10.

24. Dr Azabakhsh noted on 2 April 2019 that Mrs Schwartz was continuing to have attacks of chest pain.  He noted that the exertional dyspnoea worsened in the past three months.[60]

    [60] Exhibit C, Medical notes of Dr Azarbakhsh, p 31.

25. Mrs Schwartz was questioned about whether she had complained to Dr Carter since November 2014 about bronchiectasis, following the discharge from the Royal Adelaide Hospital.  She said it was a long period of time and both difficult and confusing to recall whether she had made any complaint.  However, she agreed that there was no management plan in place that she was aware of from November 2014 onwards.

26. Dr Carter was asked for her interpretation about Mrs Schwartz’s condition in November 2013, notably whether Mrs Schwartz’s breathlessness was or was not an aggravation of bronchiectasis, or rather a consequence of lack of physical fitness.  This followed the significant illness which she had suffered and noting a review by a cardiologist was not required at that time given that pulmonary function testing showed normal lung function.  

27. One year later, on 20 November 2014, a report from the Department of Thoracic Medicine, Royal Adelaide Hospital, noted pleasing results in relation to the respiratory issue.  The bronchiectasis appeared to be stable.  Mrs Schwartz was reported to be complaining of ‘very mild exertional dyspnoea on variable occasions and an occasional cough related to mucus plugging’.[61]  It was recommended that Mrs Schwartz be followed up by her general medical practitioner with the proviso that an echocardiogram may be worth repeating if there was a worsening of dyspnoea on exertion. The report noted that Mrs Schwartz was still having multiple, continuing complications and her deconditioning was severe. In evidence Dr Carter agreed that if she was concerned at that time or subsequently about a lack of stability in the bronchiectasis, she would have referred Mrs Schwartz to the Royal Adelaide Hospital.

    [61] Exhibit D, Respondent’s Tender Bundle, Report of Dr Tran dated 20 November 2014, p 410.

28. It was put to Dr Carter that Mrs Schwartz has not presented on any occasion since November 2014 for aggravation of bronchiectasis.  Dr Carter said that a person with bronchiectasis is more prone to getting chest infections.  In the following years she has provided Mrs Schwartz with several scripts to have at home for chest infections.  The emphasis is on preventing infection by making sure that Mrs Schwartz is up to date with vaccinations, with chest infections being swiftly treated through use of the prescribed medication, Breo Ellipta, to improve lung function and by doing her deep breathing exercises at home.

29. Dr Carter was questioned about the effects of Mrs Schwartz’s bronchiectasis over the past 20 years.  Dr Carter considered that Mrs Schwartz’s bronchiectasis was stable and well managed.  She accepted that it was mild in the sense that it is well controlled but still impacting Mrs Schwartz.  Dr Carter considered that Mrs Schwartz had told her consistently and on numerous occasions over this period about problems with coughing up mucus plugs and shortness of breath.

30. It was suggested to Dr Carter that Mrs Schwartz’s shortness of breath could be caused by severe deconditioning, problems with heart function, anaemia, chronic bronchitis, or laryngeal spasm provoked by anxiety.  While acknowledging that there could be several factors contributing to shortness of breath at various times, Dr Carter emphasised that her role requires her to look at each factor, investigate, test and try to work out what might be reversible.  In the end, Mrs Schwartz still has symptoms of bronchiectasis and they have persisted for 20 years.

31. Dr Carter said that the bronchiectasis is the cause or explanation for the poor transfer of oxygen, which is a reason for Mrs Schwartz’s fatigue and limits her capacity to go out.  According to Dr Carter bronchiectasis may lead to deconditioning as shortness of breath means it is harder to maintain fitness, walking distances may be reduced, muscles get weaker and thus there are a series of compounding factors which reduce the individual’s physical capacity.  There can also be adverse effects on her memory, and she takes extra time to express herself in conversation.

32. Dr Carter said that bronchiectasis is a constant condition involving a breakdown or damage in the small airways of the lungs.  Symptoms can vary and there may be a flareup if Mrs Schwartz has an acute infection which can then be treated with antibiotics.  However, there is no treatment for bronchiectasis comparable with, for example, using puffers for asthma.  Dr Carter has suggested to Mrs Schwartz that breathing exercises are useful to clear the mucus plugs.  Dr Carter agreed that when Mrs Schwartz is otherwise well, the effect of her bronchiectasis is shortness of breath, reduced capacity for exertion and talking in shorter sentences.  When Mrs Schwartz is unwell, Dr Carter says that she has sputum and it needs to be treated.  Dr Carter acknowledged that bronchiectasis can cause loss of sleep which, in turn, can cause problems with fatigue.

1. The Tribunal accepts Dr Carter’s evidence about the history of Mrs Schwartz’s bronchiectasis, the treatments and reviews that have taken place and the impact that it has on Mrs Schwartz.  Dr Carter has a detailed knowledge of Mrs Schwartz’s complex medical history and she has comprehensive knowledge of the multi-disciplinary assessments and reviews that have occurred over many years.  She has implemented treatments pursuant to the specialist, multi-disciplinary framework.

   Depression

2. Hospital records from the past 15 years included comprehensive details about treatment which Mrs Schwartz has received for depression.  For most of that time Dr Herriot was the psychiatrist in charge of her treatment and his notes, correspondence and reports were included in the documentary evidence.  In addition, Dr Herriot attended the hearing in person and gave evidence.  He is an experienced practitioner whose treatment of Mrs Schwartz was a component of the multidisciplinary program provided by the hospital’s pain management unit.

3. Initially Mrs Schwartz was referred for a consultation with a clinical psychologist in the pain management unit of the Royal Adelaide Hospital in March 2005.  It was reported that Mrs Schwartz was having significant difficulty with depression following her mother’s sudden death.[62]  The report also noted that Mrs Schwartz had said she was having difficulty with household tasks, general daily activities, problems with self-care including dressing and bathing, and she was relying on her husband for most household duties.  According to the report, Mrs Schwartz was describing difficulties which she was having with concentration, problems with memory and pain-related sleep disturbance.

   [62] Exhibit D, Respondent’s Tender Bundle, Report of Pain Management Unit, Royal Adelaide Hospital dated 31 March 2005, p 18.

4. Psychiatric assessment at the pain management unit by Dr Skinner in November 2005 confirmed significant depression following multiple stressors over the previous two years.  Impaired short-term memory and concentration were thought to be related to the depression and medication to manage the mood and the pain was continuing.[63]  This report reiterated that Mrs Schwartz was having difficulty with activities of daily living.  Changes to medication were monitored by Dr Skinner with reliance upon medication to manage both the mood and the pain.[64]  However by mid-2006, Dr Skinner reported that Mrs Schwartz’s depression was getting worse and there were continuing problems of forgetfulness and fatigue.[65]

   [63] Exhibit D, Respondent’s Tender Bundle, Report of Dr Skinner dated 30 November 2005, p 38.

   [64] Exhibit D, Respondent’s Tender Bundle, Dr Skinner dated 11 January 2006, p 44.

   [65] Exhibit D, Respondent’s Tender Bundle, Report of Dr Skinner dated 5 July 2006, p 61.

5. A neuropsychological assessment in September 2006 noted Mrs Schwartz’s complaints of poor memory, severe fatigue, chronic pain, dizzy spells and bowel obstruction.  The clinical neuropsychologist suggested it was likely that:

   … severe and chronic pain and depressed mood were detrimentally affecting lower-level abilities such as attention and working memory, which in turn affected a higher – level cognitive functions.[66]

   [66] Exhibit D, Respondent’s Tender Bundle, Neuropsychology Report dated 8 September 2006, p 74.

6. A report from September 2006 by the Royal Adelaide Hospital pain unit panel included a brief reference to major depression which Mrs Schwartz suffered in her childhood and adolescence.  In her evidence to the Tribunal, Mrs Schwartz strongly disagreed with that comment.  She asserted that she did not suffer major depression as a child.  She said that when her mother died in 2004, she suffered depression for which she was prescribed Zoloft and that was the first time that she used anti-depressants.

7. Dr Herriot took over from Dr Skinner and treated Mrs Schwartz at the Royal Adelaide Hospital pain management unit between 2007 and early 2017.  On his first consultation with Mrs Schwartz, he noted that she was already diagnosed with depression and he confirmed that diagnosis.  He confirmed that the medication that she was taking assisted her symptoms of depression helping her to feel calmer, less tearful and less easily upset.[67]  Subsequently Dr Herriot wrote numerous reports and letters in the following years regarding his reviews and treatment.

   [67] Exhibit D, Respondent’s Tender Bundle, Report of Dr Herriot, Royal Adelaide Hospital dated 13 September 2007, p 87.

8. In early 2008, Dr Herriot acknowledged that Mrs Schwartz’s CRPS was a chronic and permanent condition and medical interventions had resulted only in minimal improvement.[68]  He told the Tribunal that some medications prescribed for depression were also ineffective analgesic medication for the type of neuropathic pain which Mrs Schwartz has.  In that sense, there was a small degree of overlap as the antidepressant medication also provided a slight degree of relief for Mrs Schwartz’s pain.

   [68] Exhibit D, Respondent’s Tender Bundle, Letter to Commonwealth Financial Services from Dr Herriot dated 3 March 2008, p 90.

9. Professor Bochner, recorded her major complaints as short-term memory loss since 2004, continuing, chronic left upper limb pain, and fatigue.  In relation to impaired memory, Professor Bochner considered that the medication which she was taking can cause memory impairment although he did not recommend any changes at that time.[69]

   [69] Exhibit D, Respondent’s Tender Bundle, Report of Dr Bochner dated 24 March 2010, p 101.

10. A further neuropsychological review noted that memory remained as the major complaint and Mrs Schwartz was very distressed about it.  The clinical neuropsychologist found it difficult to draw firm conclusions about possible organic aetiologies for the cognitive difficulties.[70]

    [70] Exhibit J, Letter of Dr Herriot dated 20 May 2019, p 2.

11. In December 2013, Mrs Schwartz was continuing to report depression when she was reviewed by Dr Herriot.[71]  Medication continued for her depression and pain which was complicated and aggravated by the extremely painful laparotomy scar from surgery.  In December 2015, Dr Herriot recorded an array of problems which Mrs Schwartz was having.  They included throbbing sensations in both legs from hips to toes, numbness and tingling in both feet, episodic nausea, and bilateral cataracts.  Lignocaine patches were being used intermittently for the abdominal scar pain.[72]

    [71] Exhibit D, Respondent’s Tender Bundle, Report of Dr Herriot dated 2 December 2013, p 119.

    [72] Exhibit D, Respondent’s Tender Bundle, Report of Dr Herriot dated 14 December 2015, p 125.

12. Later, Mrs Schwartz was transferred to Dr Herriot’s care at the Flinders Medical Centre.  On 11 September 2018, Dr Herriot reported the results of his review and recorded that Mrs Schwartz:

    continues to report a number of pain sites, including what she described as “excruciating” pain and allodynia at the site of her laparotomy scar from surgery five years ago, pain secondary to her ongoing left arm CRPS since her left radial head fracture in 2004 as well as low back pain which has also been associated with left leg pain… She also continues to report depression secondary to the above difficulties as well as insomnia and subjective memory complaints.[73]

    At that time Mrs Schwartz had lost access to various services which had been provided to her by the regional Carers Association and she applied for equivalent services through the NDIS with a letter of support from Dr Herriot.

    [73] Exhibit D, Respondent’s Tender Bundle, Report of Dr Herriot dated 11 September 2019, p 137.

13. Dr Herriot referred Mrs Schwartz to Dr Chan, a senior consultant at the Flinders Medical Centre pain management unit, for consideration of further options for treatment.  On 29 October 2019 Dr Chan reported that the risk of neuromodulation therapy would be too great.    Dr Chan wrote to Mrs Schwartz's general medical practitioner following his assessment about neuromodulation therapy and ruled out further appointments.

14. In a letter dated 20 May 2019, Dr Herriot reported that the exhaustive treatment has included multidisciplinary care, psychology and psychiatry as well as multiple trials of various medications from 2005 onwards.  Dr Herriot noted that Mrs Schwartz has only reported ‘a very minor improvement in her pain levels, in the order of several percentage points only’. He noted that it is quite common for the symptoms of CRPS to respond poorly to treatment. He suggested that psychiatric treatment would continue:

    for the purpose of the ongoing prescription and monitoring of Mrs Schwartz’s antidepressant medication, which has been prescribed both for her symptoms of anxiety and depression, as well as her neuropathic pain symptoms, and also for the purpose of assisting Mrs Schwartz with pain management strategies.[74]

    [74] Exhibit E, Report of Dr Herriot dated 20 May 2019, p 9.

15. In evidence, Dr Herriot was asked about hospital records predating his consultations with Mrs Schwartz.  He acknowledged that it appeared that she was suffering depression at the time of the fall which led to the CRPS.  He said that Mrs Schwartz’s depression has been reasonably stable from 2007 through to the present time.  He considered that the depression is a consequence of her living with pain.  As a general observation, many patients will become depressed as a result of ongoing pain and in those cases the pain and the impairment seem to be the driver of the depression.  For Mrs Schwartz, her depression has been reasonably stable to the point where no changes in antidepressant medication have been made over a long period.  The antidepressant medication which she uses, Effexor (also known as venlafaxine), has been prescribed at a maximum dosage of 375 MG daily and it has stabilised at that level for many years.  Dr Herriot understood that Mrs Schwartz attributed about 10% reduction in her physical pain to that antidepressant medication.  Dr Herriot’s impression is that the CRPS has been the main cause of her depression.  However, he noted also that she has a history of pain at other sites, she has had a lot of problems with small bowel obstructions and she has suffered considerable bouts of ill-health.  While her depression is predominantly the result of CRPS, Dr Herriot considered that it also relates to her general health problems.

16. Dr Herriot was referred to a document about CRPS which included this comment:

    most people recover from CRPS but for some there is a range of ongoing symptoms that vary from minor to severe.  For a small group of people with CRPS, significant pain and disability persist for years.[75]

    He considers that Mrs Schwartz comes within the category of people with CRPS who have significant pain and disability that will last for years, and he expects the symptoms to persist into the future.  Dr Herriot considered that Mrs Schwartz’s CRPS was a reasonably severe condition.  He formed that view because of the contractures in her left hand, the persisting pain at quite a high level, and the difficulties with use of the left arm which also included sensitivity to touch.

    [75] Exhibit C, Better Health Complex Regional Pain Syndrome Information Sheet, undated, p 45.

17. In his oral evidence, Dr Herriot acknowledged that depression can result in fatigue.  He said that tiredness, sleep disturbance and loss of interest are consistent with symptoms of depression.  They are reasonably common symptoms for people with CRPS to the extent that the person is affected by depression.  He said that he found Mrs Schwartz to be an honest and accurate historian.  That is important because there is no objective test about the level of pain – a psychiatrist must rely on a patient’s description of symptoms and levels of pain.  He did not consider that Mrs Schwartz embellished her complaints and he did not see inconsistencies in the reports about her.  Dr Herriot considered that it is very common for patients with depression to have cognitive difficulties associated with poor concentration and problems with memory.  Dr Herriot was aware of Mrs Schwartz’s complaints over the years about problems with her memory.  He recalled that she had undergone formal testing by a neuropsychologist on a couple of occasions.

18. In response to questions about cause, Dr Herriot agreed that the cause of Mrs Schwartz’s depression may be multifactorial, however he had the impression that the CRPS has been the main driver of her depression.  When asked about a letter which Dr Herriot wrote on 11 September 2018, which was the first time Dr Herriot had seen Mrs Schwartz since 2016, he acknowledged her depression was stable, and that there was a degree of continuity in symptoms from the earlier period.  He said he would assess the depression in the moderate range, not severe.  His written report referred to depression secondary to the difficulties which were outlined in the report, including the laparotomy scar, the left arm CRPS, low back pain and left leg pain, bilateral cataracts together with insomnia and subjective memory complaints.[76]

    [76] Exhibit D, Respondent’s Tender Bundle, Report of Dr Herriot dated 11 September 2019, p 137.

19. In evidence about the letter which Dr Herriot wrote on 20 May 2019, he was referred to his comment about the cycle of pain, isolation and depression.  He agreed that the medical records prior to his first consultation with Mrs Schwartz indicate that she had depression prior to the CRPS.  He pointed out that factors influencing depression can change over time.  For example, a factor which may have been significant in 2004 may be less significant in 2018.  The factors change over time. In relation to the cycle, Dr Herriot spoke of a two-way relationship between pain and depression.  Chronic persisting pain can lead to depression and depression aggravates the experience with pain.  It is a bidirectional phenomenon.  He said that he was confident that the pain which Mrs Schwartz has had since the CRPS has been the main driver of her depression.  He acknowledged that other pain sites could be contributing to her depression.  He thought that Mrs Schwartz had consistently over the years described her pain from CRPS as constant and at the same level.

20. Dr Herriot thought that over the years that Mrs Schwartz has been receiving treatment she has developed some skills in managing her pain.

21. Dr Clothier reported that Mrs Schwartz has suffered significant depression.[77]  In his evidence to the Tribunal he considered that the CRPS wasn’t the cause of the depression, but it was a contributing factor.  He thought the cause could be multi-factorial.  The CRPS led to reduced function in the limb and pain which together contributed to her depression. 

    [77] Exhibit E, Report of Dr Clothier dated 27 November 2018, p 14.

    EVIDENCE ABOUT OTHER CONDITIONS

22. In addition to CRPS and bronchiectasis, Mrs Schwartz has other medical conditions which were described in a report by Dr Clothier.  In mid-2010 she developed significant left hip and leg pain.  There were degenerative changes in both hips and left trochanteric bursitis.  In 2013:

    Mrs Schwartz developed cholecystitis and sustained an iatrogenic large bowel perforation and the presence of dense adhesions and developed a number of complications including hospital acquired pneumonia, acute renal failure, and ended up with intra– abdominal collection and needed ICU management with ventilation, and had further surgery. Following the surgical issues of July 2013, Mrs Schwartz had issues of a painful abdominal scar and had benefit from transdermal Lignocaine patches.[78]

    When Dr Clothier last saw Mrs Schwartz in May 2016, she was having problems with throbbing leg pain, bowel problems, reduced lumbar spine movement, reduced straight leg raise, a tense and tight abdomen and CRPS of the left upper limb which was unchanged.  Dr Clothier noted that Mrs Schwartz had suffered significant depression and there were issues with her memory.

    [78] Exhibit E, Letter of Dr Clothier dated 27 November 2018, p 116.

23. Mrs Schwartz was admitted to hospital in 2013 for major bowel surgery.  She became unwell with hospital acquired pneumonia.  A report from the Royal Adelaide Hospital, dated 14 November 2013,[79] included a comment that Mrs Schwartz was very deconditioned after a long admission to hospital and required a period of rehabilitation.  Dr Carter was asked about that deconditioning and was unable to comment on whether Mrs Schwartz’s deconditioning was better or worse now than it was prior to the admission to hospital in 2013.  Mrs Schwartz is older, and she has other medical conditions affecting muscle strength.  Dr Carter considered the deconditioning is multi-factorial.  Dr Carter agreed with the proposition that breathlessness on exertion can occur sometimes as result of deconditioning.

    [79] Exhibit D, Respondent’s Tender Bundle, Report of Dr Viiret dated 14 November 2013, p 408.

24. Dr Herriot confirmed in September 2018 that Mrs Schwartz had suffered from recurrent small bowel obstructions which had required multiple operations.  He noted that she was advised against any further abdominal surgery and he noted that:

    the consequence of this situation is that she could potentially die from a further recurrence of her small bowel obstruction.  [She] continues to report severe pain and sensitivity at the site of her laparotomy scar on her abdomen (painful scar neuropathy) where she had surgery five years ago.[80]

    Problems with bowel obstruction were noted in the medical records and dated back, for example, to late 2005 when she was an inpatient in the Queen Elizabeth Hospital with a partial bowel obstruction.[81]  Another episode of bowel obstruction was reported by Dr Clothier on 1 March 2010.[82]

    [80] Exhibit E, Supporting letter of Dr Herriot dated 11 September 2018, p 1.

    [81] Exhibit D, Respondent’s Tender Bundle, Report of Dr Clothier dated 19 September 2005, p 30.

    [82] Exhibit D, Respondent’s Tender Bundle, Report of Dr Clothier dated 1 March 2010, p 100.

25. Dr Carter confirmed that Mrs Schwartz has had complications from surgery and recurrent bowel obstructions which have caused her quite severe abdominal pain.  Dr Carter confirmed that Mrs Schwartz has been referred to gastroenterologists for investigations of pain in her abdomen and trouble with bowel function.  Dr Carter confirmed that Mrs Schwartz has suffered from dizzy spells for the last 20 years.  The cause of those dizzy spells has been extensively investigated without a conclusive result.  Monitoring has continued in relation to blood pressure, and blood tests for anaemia.  She had an iron infusion in 2019.

26. Mrs Schwartz gave evidence about frequent vomiting.  Dr Carter agreed that frequent vomiting can lead to dehydration which in turn can result in fatigue, dizziness and confusion.  This could be related to the bowel obstruction which causes the vomiting.

27. In mid-2015 Mrs Schwartz was investigated for bilateral cataracts.  Surgery took place in February 2019 and December 2019.  Dr Carter thought that the surgery should help but she was not able to provide any evidence about it.

28. Mrs Schwartz has suffered from fatigue.   Royal Adelaide Hospital records on 5 July 2006 refer to a past history of chronic fatigue.[83]  A letter dated 24 March 2010 by Professor Bochner referred to a major problem that Mrs Schwartz has with fatigue and noted that she had been diagnosed in the past as having chronic fatigue syndrome.  Dr Carter acknowledged in evidence that Mrs Schwartz had been troubled by fatigue, but Dr Carter declined to describe it as chronic fatigue.[84]  Dr Carter agreed in evidence that Mrs Schwartz’s complaints about fatigue predate the CRPS in 2004.

    [83] Exhibit D, Respondent’s Tender Bundle, Report of Dr Skinner dated 5 July 2006, p 61.

    [84] Exhibit D, Respondent’s Tender Bundle, Report of Dr Bochner dated 24 March 2010, p 103.

29. Dr Chan included comments about Mrs Schwartz’s sleeping problems in his report written on 29 October 2019.  He noted that Mrs Schwartz had reported difficulty sleeping for many years.  At that stage he suggested to Dr Carter that she might discuss the use of melatonin to address the problem.[85]  Dr Carter told the Tribunal that the antidepressant medication, Effexor, also assisted with helping Mrs Schwartz to sleep.

    [85] Exhibit D, Respondent’s Tender Bundle, Report of Dr Chan dated 29 October 2019, p 138.

1. Mrs Schwartz gave evidence about toileting and hygiene.  The Tribunal accepts that evidence.  Mrs Schwartz’s back pain, urge incontinence and dizziness causes difficulties when toileting, and they are unrelated to CRPS and bronchiectasis.  However, the limitations caused by the CRPS in her left upper limb adversely affect Mrs Schwartz and while they cause some difficulty at home, they are more problematic for her when she is away from home and having to access public facilities.

2. The Tribunal is satisfied that Mrs Schwartz’s impairments of CRPS and bronchiectasis have resulted in a substantially reduced functional capacity in self-care within the meaning of s 24(1)(c)(iv) of the NDIS Act. The deeming provision in r 5.8(b) of the NDIS Rules do not apply, however the Tribunal is satisfied that Mrs Schwartz requires support and monitoring which is provided for her daily by Mr Schwartz.

   Section 24 (1)(c)(vi) – Self-management

3. It was contended for Mrs Schwartz that she has displayed memory loss since 2004 which is associated with her CRPS.  Examples of her difficulties with self-management were said to include her forgetfulness in relation to finances and paying bills, losing her train of thought and requiring prompting to recall information, assistance and placing items out as part of her routine in the mornings, and her inability to carry out a variety of domestic tasks unless she has assistance from her husband.  It was contended that she is unable to complete bilateral tasks or manual labour-intensive tasks.[193]

   [193] Exhibit B, Applicant’s Statement of Facts, Issues and Contentions dated 23 August 2019, p 10.

4. In closing submissions for Mrs Schwartz, reliance was based on Dr Carter’s evidence to the effect that the chronic pain and shortness of breath contribute to difficulties which Mrs Schwartz has with thought processes, for example getting overwhelmed about problems and feeling anxious because of chronic pain which makes it more difficult for her to make decisions.  Reliance was placed on evidence about minor forgetfulness, such as not remembering whether she has put sugar in her coffee, or not remembering where she had put reminder notes.

5. The NDIA submitted that Mrs Schwartz has not met this criterion.  It was suggested that any difficulties which she had with self-management were not attributable to either the CRPS or bronchiectasis.

6. The Operational Guideline refers to self-management as meaning:

   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.[194]

   [194] Exhibit F, T12, Operational Guideline – Access, p 98.

7. Mrs Schwartz told the Tribunal that she can use a laptop computer and a mobile phone.  She can move around the house independently and there are times when her husband leaves her alone at home when he goes out, for example, when shopping or going to the football or playing golf.  Mrs Schwartz watches TV by herself.  Generally, she will sit in her chair when she is alone.

8. Mr Schwartz told the Tribunal that Mrs Schwartz enjoys reading books, although her reading is impeded by problems with her eyesight.  He confirmed that she enjoys watching documentaries and history programs on TV. 

9. There are times when Mr Schwartz can have a break from his role as carer and he is able to leave Mrs Schwartz at home alone, for example for about four hours when he is away from home playing a weekly game of golf.  Generally, her sleeping patterns involve her going to bed late at night, often in the early hours of the morning and getting up in the early afternoon.

10. Mrs Schwartz told the Tribunal that she was managing household finances albeit in a reduced capacity.  Bill payments have now been organised through Centrepay and her husband has a monthly planner for their finances.  That is partly because of problems which she is having with her eyesight.  Mr Schwartz’s evidence was that nowadays most of the bills are dealt with by a direct deduction through Centrepay and other direct debits, which leaves only a few bills which are paid manually.  Together, they try to synchronise their various medical and associated appointments away from home.

11. In the supporting evidence form Dr Carter confirmed that Mrs Schwartz does need assistance with self-management as she needs help with activities of daily living because of her inability to use her left arm and hand.[195]  In a form signed and dated on 24 July 2018, Dr Herriot included self-management as an area of substantial, reduced functional capacity because of Mrs Schwartz’s left arm CRPS.[196]

    [195] Exhibit F, T5, Access Request – Supporting Evidence Form dated 9 August 2017, p 28.

    [196] Exhibit F, T9, Report of Dr Herriot dated 24 July 2018, p 33.

12. Evidence about memory loss has been discussed in the context of learning.[197]  Dr Herriot agreed that there was no objective evidence of memory decline.  However, he suspected that the cause of memory problems that Mrs Schwartz may have arises out of the chronic pain and depression.  Noting the results of the testing which Ms Welshe administered, Dr Clothier agreed that Mrs Schwartz appeared to have normal cognition.

    [197] National Disability Insurance Scheme Act 2013 (Cth) s 24(1)(c)(iii).

13. Dr Herriot was directed to notes that he made about a consultation with Mrs Schwartz on 22 February 2016.[198]  At that time, she discussed the prospect of further abdominal surgery and she told Dr Herriot that she did not want to go through it again.  Dr Herriot acknowledged in evidence that Mrs Schwartz had the capacity to weigh up the issue and appropriately make an important decision.  When he saw her again in 2018, he considered that her cognitive capacity was not diminished, and she continued to be able to demonstrate the capacity to solve problems.

    [198] Exhibit D, Respondent’s Tender Bundle, Queen Elizabeth Hospital handwritten notes, p 247.

14. In his first report, Mr Manton noted that Mrs Schwartz struggles with aspects of self-management through a loss of independence and an inability to complete activities of daily living.   He reported that she does not have the strategies to complete various tasks and lacks the appropriate tools to assist her.  In persisting without those strategies and tools, she puts herself at risk of causing further pain and damage to her body which is problematic as her body is also significantly deconditioned.[199]

    [199] Exhibit E, Report of Mr Manton dated 28 November 2018, p 103.

15. In his second report,[200] Mr Manton commented upon Mrs Schwartz’s role in managing certain aspects of family life including managing family finances, organising shopping lists and organising her own appointments.  Mr Manton noted that Mrs Schwartz can make decisions independently and does not require disability specific support.  However, her organisational capacity in relation to other activities of daily living was impaired.

    [200] Exhibit E, Report of Mr Manton dated 14 August 2019, p 139.

16. In her first report, Ms Welshe noted that Mrs Schwartz can make decisions independently in areas such as banking, healthcare and housing.[201]

    [201] Exhibit K, Report of Ms Welshe dated 15 March 2019, p 15.

17. During the assessment, Ms Welshe referred to Mrs Schwartz as demonstrating capacity for problem-solving on multiple occasions, a capacity for making decisions ‘based on reasoned rationale’, a primary role in managing household finances, and a collaborative approach to the sharing of domestic tasks in accordance with physical capabilities.[202]  Ms Welshe added that inside the house there was evidence of:

    planning and organisation to accommodate the difficulties she experienced, such as commonly used items located between hip and shoulder height in the kitchen, bathroom and hallway.[203]

    [202] Exhibit K, Report of Ms Welshe dated 15 March 2019, p 15.

    [203] Exhibit K, Report of Ms Welshe dated 15 March 2019, p 15.

18. The Tribunal accepts the closing submission for Mrs Schwartz that it is her capacity which is in issue and not the joint capacity with her husband for planning, decision -making and organisation.

19. The key consideration in the interpretation of this Operational Guideline is a person’s ‘cognitive capacity’, which relates to making decisions, taking responsibility and solving problems.  Mrs Schwartz is confronted daily with multiple health and functional problems which are significant.  They include and are not always confined to CRPS, bronchiectasis, back and lower limb pain, and abdominal pain.  She suffers from depression.  Nonetheless it seems clear from her evidence, together with the medical and allied health evidence, that Mrs Schwartz has considerable cognitive capability, which she uses to the best of her ability to adjust to and live within her compromised circumstances.  She is practical and resolute in setting about the tasks of daily living in ways which reflect, at the very least, both her own inclinations and interests, with compromises because of her impairments and functional limitations.

20. The Tribunal is not satisfied that the impairments which Mrs Schwartz has from CRPS and bronchiectasis have resulted in a significantly reduced functional capacity in self-management.

    Section 24(1)(c) – Summary

21. Section 24(1)(c) of the NDIS Act specifies that a person’s impairment results in a substantially reduced functional capacity in one or more of the specified activities. In this case, the Tribunal is satisfied that Mrs Schwartz meets the criteria in two of them, being mobility and self-care. Accordingly, the Tribunal concludes that Mrs Schwartz meets the requirements under s 24(1)(c) of the Act.

22. Before completing the discussion on this section, it is important to refer to a submission which the NDIA made about the way in which evidence of depression should be considered.  To a degree, it also related to the evidence about memory loss.

23. The NDIA’s final submission addressed the question of whether Mrs Schwartz’s depression and memory loss are secondary to her CRPS and whether they have an impact which can be taken into account in assessing her functional capacity to undertake activities in the areas of self-management, communication, learning and social interaction. The NDIA submitted that Mrs Schwartz was expanding upon her claimed impairments beyond those that she relied upon for the purposes of s 24(1)(a) of the NDIS Act. Accordingly, the NDIA submitted that the Tribunal should assess whether the memory loss and depression are caused by the CRPS.

24. The next step in the NDIA submission asserted that:

    if neither memory loss nor depression is caused by the CRPS, then those conditions play no further role in the determining if the CRPS has resulted in a substantial reduction in functional capacity.[204]

    Conversely, it was argued that if the Tribunal is satisfied that either or both of the conditions of memory loss and depression are caused by the CRPS, it would be necessary to determine if the memory loss or depression is an impairment[205] which is permanent[206] as precursors to consideration of the criteria in s 24(1)(c). Otherwise, it was contended that a curious result would follow if, for the purposes of s 24(1)(c):

    an applicant could rely on conditions that were not ‘impairments’ at all or not ‘permanent impairments’ simply by claiming that a condition was ‘secondary’ to a permanent impairment.[207]

    Key aspects of the history of depression and memory loss have been summarised earlier.

    [204] Respondent’s final submissions dated 29 September 2020, p 10, para 77(b).

    [205] National Disability Insurance Scheme Act 2013 (Cth) s 24 (1)(a).

    [206] National Disability Insurance Scheme Act 2013 (Cth) s 24 (1)(b) NDIS Act

    [207] Respondent’s final submissions dated 29 September 2020, p 3, paras 76–77.

25. Drawing upon comments of the Tribunal in Ditchfield v NDIA,[208] it was argued for Mrs Schwartz that the Tribunal must assess the impact of her impairments by considering all aspects of her ‘particular constitution’.  Unfortunately, her constitution has been compromised by several exceptional and serious comorbidities.  The submission for Mrs Schwartz rested on the proposition that the pain from the CRPS is the main cause of her depression, which was described as mild to moderate and which has changed over time – and includes depression following her mother’s death 2004.  Reference was also made to Dr Herriot’s evidence, in which he said that he suspected that her memory difficulties are a symptom of depression and chronic pain.[209]

    [208] [2019] AATA 2121 at [133].

    [209] Applicant’s final submissions dated 21 September 2020, paras 5.3.12–5.3.15, 5.5.

26. The Tribunal accepts the evidence given by Dr Herriot about the factors which contribute to the lengthy and consistent depression which Mrs Schwartz has endured.  That evidence is to the effect that the CRPS is the main driver, though not the only factor, in her depression.  Dr Herriot is an experienced psychiatrist with considerable knowledge and oversight of Mrs Schwartz’s mental health condition and treatment.  Clearly, Dr Herriot has sound reasons for considering that the CRPS is a significant factor in the CRPS.  It would be surprising if he thought to the contrary.  Equally, it would be surprising if he ruled out the various other sites of significant pain which have manifested themselves at various times over the past ten years, including the pain through reduced lumbar spine movement, degenerative changes in both hips, and severe abdominal sepsis.

27. Dr Clothier is not a psychiatrist; however, he is a rehabilitation physician of considerable experience and, like Dr Herriot, he has had long-term involvement in the pain management unit and its multidisciplinary management of Mrs Schwartz’s conditions.  Dr Clothier also considered that the depression was caused by factors of which one was the CRPS.

28. Accordingly, the NDIA raised an important question about the way in which evidence of conditions which may be secondary to CRPS should be assessed. However the Tribunal has made its findings on s 24(1)(c) and has been able to do so by reference to the functional impact of CRPS and bronchiectasis, not in reference to other conditions including depression, back pain, or abdominal problems. The substantial reduction in Mrs Schwartz’s functional capacity, in this instance, in mobility and in self-care, are essentially related to capabilities in daily activities which are largely physical in nature. The depression and memory loss have not been considerations in the conclusion that CRPS has led to a substantial reduction in Mrs Schwartz’s functional capacity. It has not been necessary to determine whether depression or memory loss is an impairment which is permanent.

    Section 24(1)(d) – Social or Economic Participation

29. The NDIA accepted that Mrs Schwartz has CRPS in the left arm which affects her capacity for economic participation for the purposes of s 24(1)(d) of the NDIS Act.[210] In addition, the NDIA conceded that Mrs Schwartz has mild bronchiectasis which affects her capacity for economic participation for the purposes of s 24(1)(d) of the NDIS Act.[211]

    [210] Respondent’s final submissions para 323

    [211] Respondent’s Statement of facts Issues and Contentions para 5.29

30. Section 8.4 of the Operational Guideline provides in part that:

    This disability requirement does not require a person's impairment to reduce, substantially reduce or affect to any particular degree their social or economic participation. Rather, the impairment merely needs to affect the person's social or economic participation. Therefore, people who retain substantial capacity for social or economic participation may still satisfy this disability requirement (see Mulligan and NDIA [2015] AATA 974 at [140]).[212]

    [212] Exhibit F, T12, Operational Guideline – Access, p 101.

31. Dr Carter considered that Mrs Schwartz is greatly affected socially.  She considers that Mrs Schwartz has limited social supports.  Having treated her for about 20 years, Dr Carter has observed Mrs Schwartz move from being an independent woman to needing someone to help her.

32. Mrs Schwartz’s last employment was in 2002 and she had worked previously in clerical positions.  In April 2008, Dr Herriot reported that:

    Mrs Schwartz is highly unlikely to ever again engage in gainful employment for which she is reasonably qualified. This incapacity is predominantly a result of her chronic pain disorder/complex regional pain syndrome.[213]

    [213] Exhibit L, Letter from Dr Herriot dated 7 April 2008, p 1.

33. The Tribunal finds that Mrs Schwartz meets the requirements of s 24(1)(d) of the NDIS Act as the impairments of CRPS and bronchiectasis affect her capacity for social and economic participation.

    Section 24(1)(e) – Whether the person is likely to require support under the NDIS for the person’s lifetime

34. Section 8.5 of the Operational Guideline is as follows:

    The NDIA must also be satisfied that the prospective participant is likely to require support under the NDIS for the rest of their lifetime (s24(1)(e)).

    If an impairment varies in intensity (for example, because the impairment is of a chronic episodic nature) the person may still be assessed as likely to require support under the NDIS for the person's lifetime, despite the variation (s24(2)).

    The NDIA is required to consider a prospective participant's overall circumstances and conclude that the person will require support under the NDIS for their lifetime. The purpose of this requirement seems to be to distinguish that subset of people with serious and permanent disabilities who are intended to be the beneficiaries of funded supports (Mulligan and NDIA [2015] AATA 974 at [153]).

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

    When considering this criterion, the NDIA does not need to be satisfied that the support/s required for the person's lifetime meet the reasonable and necessary criteria. The reasonable and necessary criteria are relevant to whether funding is provided, not whether a person meets the disability requirements (see Mulligan and NDIA [2014] AATA 374 at [53] and Mulligan and NDIA [2015] AATA 974 at [146]–[150]).[214]

    [214] Exhibit F, T12, Operational Guideline – Access, p 101.

35. Ms Welshe suggested in her first report that intervention from an occupational therapist under a chronic disease management plan, or advice from the Independent Living Centre about adaptive aids and equipment, would enable Mrs Schwartz to be more independent in self-care without the requirement of disability specific support.[215]  Those supports may assist in the short term.  Dr Carter said in evidence that support from a chronic disease management plan would not be enough for Mrs Schwartz as it would only give her access to five allied health consultations.  That would not be enough to help her.  The Tribunal accepts Dr Carter’s evidence insofar as it relates to supports that Mrs Schwartz requires in relation to the impairments arising out of her disability.  Those supports are required through the NDIS for her lifetime.

    [215] Exhibit K, Report of Ms Welshe dated 15 March 2019, p 19.

36. In evidence, Dr Carter stated that Mrs Schwartz will need ongoing, lifelong supports from the NDIS.  They would include equipment, more personal care at home and increasing assistance to help her to attend appointments in the community.  Dr Carter was also concerned that Mrs Schwartz might need support to maintain her involvement in the community.

37. In view of her comorbidities, it is likely that Mrs Schwartz will continue to access the health care system for medical advice and treatment for those other conditions, including further consultations with Dr Herriot.  However, the impact of her CRPS and bronchiectasis and their permanence support the conclusion that she will need access to NDIS supports for the care she will need.  As Dr Chan confirmed, after 15 years of treatment the multidisciplinary medical model of pain management was no longer able to provide a curative solution.[216]

    [216] Exhibit D, Respondent’s Tender Bundle, Report of Dr Chan dated 29 November 2019, p 138.

    CONCLUSION

1. Mrs Schwartz meets the age requirements under s 22 and the residence requirements under s 23 of the NDIS Act.

2. Mrs Schwartz meets the requirements under s24 (1)(a), (b), (c)(iv), (c)(v), (d) and (e) of the NDIS Act.

3. As Mrs Schwartz satisfies the disability requirements under s 24(1) of the NDIS Act, she therefore meets the access criterion under s 21 of the NDIS Act

   DECISION

4. The reviewable decision is set aside and, in substitution for such decision, there is a decision that Mrs Schwartz meets the access criteria under s 24 of the NDIS Act.

I certify that the preceding three hundred and sixty-five [365] paragraphs are a true copy of the reasons for the decision herein of Member Thompson.

................[sgnd]....................

Administrative Assistant Legal

Dated    19 February 2021  

Dates of hearing:  29 June 2020

1-3, 8, 10, 15-16 July 2020

3, 5, 14, 26, 28 August 2020

9 September 2020

2 October 2020

Applicant’s Representative:  Mr M Mills of counsel, instructed by Legal Services Commission of SA

Respondent’s Representative:                   Ms M Fisher of counsel, instructed by Mills Oakley Lawyers