Kozul and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs

[2010] AATA 1010

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2010] AATA 1010

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2010/1308

GENERAL ADMINISTRATIVE DIVISION		)
Re		ZELJKO KOZUL

Applicant

And SECRETARY, DEPARTMENT OF FAMILIES, HOUSING, COMMUNITY SERVICES AND INDIGENOUS AFFAIRS

Respondent

DECISION

Tribunal Ms J L Redfern, Senior Member

Date16 December 2010

PlaceSydney

Decision The decision under review is affirmed.

..................[sgd]............................

Ms J L Redfern
  Senior Member

CATCHWORDS

SOCIAL SECURITY – pensions – disability support pension – whether conditions permanent – fully diagnosed, treated and stabilised – impairment rating – continuing inability to work – decision under review affirmed

Social Security Act 1991 s 94, Sch 1B

Secretary, Department of Social Security v Pusnjak (1999) 56 ALD 444

REASONS FOR DECISION

16 December 2010	Ms J L Redfern, Senior Member
BACKGROUND

1.      The Applicant, Mr Kozul, is a 55-year-old who sustained a work injury in 2003.  He was granted a disability support pension in March 2005 but after receiving a compensation payment, his pension was cancelled in April 2006 because of the imposition of a compensation lump sum preclusion period.

2.      In August 2009 Mr Kozul lodged a claim for disability support pension identifying injuries to his neck, head, shoulders and upper, middle and lower back.  He later made claims in respect of his lower limbs and psychiatric impairment associated with his injuries.

3.      The claim was rejected on the basis of a job capacity assessment which concluded Mr Kozul had permanent conditions but his impairment was insufficient to qualify for disability support pension.

4.      Mr Kozul’s claim was reconsidered and affirmed by an authorised review officer on 11 November 2009.  He unsuccessfully appealed to the Social Security Appeals Tribunal (SSAT), which affirmed the decision on 12 March 2010, and now seeks a review of the decision.

ISSUES

5.      The Secretary accepts that at the time of his claim, Mr Kozul had a physical, intellectual or psychiatric impairment but contends his impairment did not qualify Mr Kozul for a disability support pension under the legislative scheme.  The issues for determination are:

(a)      Whether Mr Kozul’s medical conditions have been fully diagnosed, treated and stabilised and therefore considered permanent under the Social Security Act 1991;

(b)      Whether Mr Kozul’s medical conditions can be assigned an impairment rating of at least 20 points under the Impairment Tables of the Social Security Act 1991; and

(c)       Whether Mr Kozul has a continuing inability to work due to these conditions.

LEGISLATION

6.      The relevant legislation is the Social Security Act 1991 (the Act) and the Social Security (Administration) Act 1999 (the Administration Act).

7.      To qualify for a disability support pension a person must have a physical, intellectual or psychiatric impairment, the impairment must attract a rating under the Impairment Tables of at least 20 points and the person must have a “continuing inability to work”.

8. The Impairment Tables are set out in Schedule 1B of the Act. According to the Introduction to Schedule 1B [at paragraph 2]:

These Tables are designed to assess impairment in relation to work and consist of system based tables that assign rankings in proportion to the severity of the impact of the medical conditions on normal function as they relate to work performance.  These Tables are function based rather than diagnosis based.

9.      The Introduction provides guidance to assessors in applying the Tables and states [at paragraph 5]:

The condition must be considered to be permanent.  Once a condition has been diagnosed, treated and stabilised, it is accepted as being permanent if in the light of available evidence it is more likely than not that it will persist for the foreseeable future.  This will be taken as lasting for more than two years.  A condition may be considered fully stabilised if it is unlikely that there will be any significant functional improvement, with or without reasonable treatment, within the next 2 years.

10.     Paragraph 6 of the Introduction provides as follows:

In order to assess whether a condition is fully diagnosed, treated and stabilised, one must consider:

what treatment or rehabilitation has occurred;

whether treatment is still continuing or is planned in the future;

whether any further reasonable medical treatment is likely to lead to significant functional improvement within the next two years.

In this context, reasonable treatment is taken to be:

treatment that is feasible and assessable ie, available locally at a reasonable cost;

where a substantial improvement can reliably be expected and where the treatment or procedure is of a type regularly undertaken or performed, with a high success rate and low risk to the patient.

It is assumed that a person will generally wish to pursue any reasonable treatment that will improve or alleviate impairment, unless that treatment has associated risks or side effects which are unacceptable to the person.  In those cases where significant functional improvement is not expected or where there is a medical or other compelling reason for a person not undertaking further treatment, it may be reasonable to consider the condition stabilised. 

11. Schedule 1B contains Impairment Tables which deal with particular impairments. The relevant tables for consideration in the present case are:

Table 3          Upper Limb Function

Table 4          Function of the Lower Limbs

Table 5.1      Cervical spine 

Table 5.2      Thoraco – lumbar – sacral spine

Table 6          Psychiatric Impairment

12. A person has a “continuing inability to work” if they cannot work as a result of the impairment independently of a program of support within two years and they cannot be retrained or retraining is unlikely to enable them to work within two years (s 94(2) of the Act). “Work” means work for at least 15 hours per week (s 94(5)). A person will be treated as able to work “independently of a program of support” if the Secretary is satisfied the person is unlikely to need such a program, is only likely to need it occasionally or is likely to need a program that is not ongoing (s 94(4)).

13. The relevant time to determine the question of entitlement is during the period 14 August 2009, being the date Mr Kozul notified Centrelink of his claim, and 13 November 2009, being 13 weeks after the claim (s 13 and subcl 4(1) of Sch 2 of the Administration Act).

THE EVIDENCE

14.     Mr Kozul made a claim for a disability support pension on 28 August 2009, which was accompanied by the medical report of Dr Todorovic, dated 25 August 2009.  Mr Kozul’s claim was assessed by Centrelink and in a Job Capacity Assessment report dated 4 September 2009 the assessor, Mr Nowzad Salih, assessed Mr Kozul’s spinal disorder at an impairment rating of 10 points under Table 5.2 but attributed no permanent impairment to the other injuries claimed.

15.     Mr Kozul provided documents to support his claim to the SSAT, being reports from Dr Gale dated 20 November 2009, Dr Mills dated 20 August 2003 and Dr Markson dated 1 August 2003, a letter from QBE Workers’ Compensation dated 22 August 2003, a referral letter from Dr Todorovic dated 13 October 2009 to Dr Pashu, consultant psychiatrist, and a schedule from Central Sydney Area Health Service apparently listing medical appointments or procedures between March 2007 and August 2010.  Mr Kozul relies on these documents, a report from Dr Todorovic dated 24 June 2010, a report from Dr Pashu dated 9 December 2009 and reports used in his workers compensation claim, being reports of Dr Mitchell (31 October 2005), Dr Thomas Ecker (27 August 2005), Dr Hitchen (16 November 2006), Dr Gale (23 August 2004) and a report from Dr Pillemer in respect in the examination undertaken on 12 January 2005.

16.     The Secretary relies on the Job Capacity Assessment reports of Mr Salih and Ms Kerri Stratford (dated 11 August 2010) and the documents and reports referred to in that report, some of which are referred to above. 

17.     The Secretary contends that during the period in question, the weight of medical evidence indicates Mr Kozul’s impairment to his lower limb was temporary, his other conditions were permanent, but only attracted a total impairment rating of 10 points and Mr Kozul had a work capacity of 15 to 22 hours per week.

18.     It is not disputed Mr Kozul had an accident at work in July 2003.  Mr Kozul was hit by a piece of plywood while on a building site.  The plywood hit him on the head and left shoulder.  He made a compensation claim, which was settled in March 2006.  Mr Kozul received a lump sum payment and was advised by his lawyer he could make an application for the disability support pension after the lump sum preclusion period had expired.

19.     Mr Kozul lives with his wife and two adult sons.  He told the Tribunal he can not undertake any work because of his injuries and does limited work around the house.  He walks every day and sometimes visits friends, but has been doing this less as he has become increasingly depressed and isolated.  He does some cooking and sometimes sweeps, vacuums, washes the dishes and uses the computer.

20.     Mr Kozul gave evidence he still had problems with his neck and could not rotate his neck without also moving his body.  He said he was taking painkillers, receiving pain management treatment and regularly exercising.  He was being treated by a physiotherapist for his various complaints.

21.     Mr Kozul told the Tribunal he had restricted movement and pain in his back, especially with twisting and bending.  He was taking painkillers, was treated for pain management and did exercises as recommended by his physiotherapist.  He was also receiving treatment for his left shoulder and arm.  Mr Kozul said he could not lift his arm without pain.  His left leg was also painful and he had problems with his knees.  Mr Kozul told the Tribunal he was being treated by Dr Giblin, orthopaedic surgeon, and was currently awaiting the results of x-rays.

22.     Mr Kozul gave evidence that his main problems were with his back, neck and depression.  He was being treated by Dr Pashu and she has prescribed medication which he is now taking.  He said he has no motivation and gets “no joy out of life”.

23.     Mr Kozul told the Tribunal, and provided a demonstration, that he had restricted movement in his neck, back, shoulder and leg, lacked strength in his arm and shoulder and experienced pain.

24.     It is Mr Kozul’s evidence that he does not believe he can work because of his physical and psychological disabilities.  Mr Kozul said he has problems bending, twisting, rotating his neck, lifting his arm and sitting down for long periods of time.  He does not know what type of job he could do as he has not worked since July 2003.  When asked whether he could do “light work” Mr Kozul responded that he did not know if he could do this.  He told the Tribunal that he had no enthusiasm or desire for retraining or rehabilitation.

25.     Ms Stratford also gave evidence to the Tribunal.  She is an occupational therapist and senior job capacity assessor with Medibank Health Solutions.  Ms Stratford completed the Job Capacity Assessment report dated 11 August 2010.  In preparing the report Ms Stratford received and reviewed the reports referred to above and the reports of Dr David Manohar dated 28 February 2008 and Dr Ben Teoh dated 10 April 2007.  She did not review the report of Dr Pashu.

26.     In summary, Ms Stratford concluded in her report that Mr Kozul had permanent impairment in his neck and upper limbs but in her opinion Mr Kozul had normal or nearly normal range of movement and she attributed a “nil” impairment rating to these conditions.  She also concluded Mr Kozul had permanent impairment to his back and rated his impairment as 10 points, representing a loss of a quarter of his normal movements, as well as back pain with physical activities, or alternatively a loss of half of normal range of movement.

27.     Ms Stratford considered the opinion of Dr Todorovic and Dr Teoh, but apparently not the report of Dr Pashu, and concluded that, even though she accepted there were symptoms of low mood, poor concentration and anger, these symptoms did not significantly impact on Mr Kozul’s ability to function and therefore should be rated as “nil” impairment.  She was of the view that Mr Kozul had work capacity of between the 15 and 22 hours per week.

28.     Ms Stratford recorded in her report, and confirmed in her evidence to the Tribunal, that she took into account “informal” testing or observation during her assessment.  Ms Stratford told the Tribunal that informal testing involved observation of activities undertaken during the course of the interview and assessment when the person being assessed was not conscious of the observation.  This included the manner in which the person sat in a chair, picked up items from the table or the floor and the way they rotated their neck or torso during discussion.  The assessor may deliberately place information in certain areas or conduct interviews in a manner that requires the person to twist or turn.

29.     Ms Stratford told the Tribunal that in the case of Mr Kozul, she observed a significantly different range of movement from the “informal” testing as opposed to the “formal” testing and recorded some of these observations in her report.  Her assessment was based on the medical reports reviewed and her observations during both formal and informal testing.

CONSIDERATION OF THE EVIDENCE AND DISCUSSION

30.     Mr Todorovic is the treating doctor of Mr Kozul.  He provided reports dated 25 August 2009 and 24 June 2010.  The report of 25 August 2009 accompanied Mr Kozul’s application for disability support pension.  The second report was in response to a request from Centrelink for an opinion.  These reports deal with all of the conditions complained of by Mr Kozul, with the exception of the injury to Mr Kozul’s left leg, which is a more recent complaint.

31.     Dr Todorovic’s report of 25 August 2009 identifies three conditions.  The first condition, which is said to have the “most impact”, is the diagnosis of “post traumatic mechanical derangement - neck, middle and lower back and head”.  Dr Todorovic notes difficulties with any strenuous or repetitive work involving Mr Kozul’s neck and back, especially twisting and bending.  The second condition identified is “post traumatic mechanical derangement - left and right shoulder and left subdeltoid bursitis”.  Dr Todorovic notes “pain in both shoulders - continuing, worsened”.  The third condition identified is “reactive depression” which is said to result in “decreased concentration”.

32.     Dr Todorovic does not give an opinion that assists in assessing Mr Kozul’s impairment in accordance with the Impairment Table.  However, in his report of 24 June 2010 Dr Todorovic notes these conditions are likely to persist for more than two years.  Each condition will be referred to separately in the reasons that follow.

33.     A number of the medical reports used for Mr Kozul’s workers compensation claim are also referenced.  Even though these reports were produced for different purposes, were some years before the relevant period in question and do not make any assessment about impairment or continued ability to work for the purposes of disability support pension, they are relevant because they were considered by the job capacity assessors, refer to objective evidence such as x-rays and CT scans and provide medical opinion about the status of Mr Kozul’s various conditions prior to his claim for the disability support pension.

Is Mr Kozul’s Neck Condition Permanent And What Is His Impairment?

34.     In his report dated 12 January 2005, Dr Pillemer stated:

I do not feel that symptoms are due to a cervical disc lesion, particularly in the presence of the relatively normal MRI scan, and I do not feel that there is any primary pathology in his shoulder....

Mr Kozul is a difficult patient to assess, as his presentation certainly suggests embellishment, because of the marked restriction of movement of the neck and shoulder.  However, it is my opinion that there are significant objective findings to indicate that he does have a genuine ongoing problem, as evidenced by the bell-shaped curve on testing with a Jaymar dynamometer, indicating maximal effort being used, as well as the sensory deficit in a distinct C7 nerve root distribution.

35.     Dr Pillemer also indicated that assessment of impairment for the purposes of Mr Kozul’s workers compensation claim is very difficult as at that time, no firm diagnosis had been reached.  He recommended that further investigations be carried out, but at that stage made an assessment of a whole person impairment of the cervical spine of 17%.

36.     In his report dated 16 November 2006, also for the purposes of Mr Kozul’s workers compensation claim, Dr Paul Hitchen, orthopaedic surgeon, noted that Mr Kozul’s neck range of motion was limited to about 20% normal range but, in his view, the “examination was characterised by exaggerated pain behaviour”.  Dr Hitchen concluded there was no orthopaedic diagnosis that could explain Mr Kozul’s symptoms and disagreed with the assessment of Dr Pillemer.  In his view, Mr Kozul was fit to do his normal job as a form worker on a full-time basis.

37.     The Job Capacity Assessment report of Mr Sahil dated 4 September 2009, being one of the reports on the basis of which Mr Kozul’s claim was rejected, concluded that even though Mr Kozul was experiencing neck pain, Mr Kozul’s movements were in the normal range. 

38.     Table 5.1 relevantly provides as follows:

TABLE 5.1     Cervical Spine

Rating           Criteria

NIL                Normal or nearly normal range of movement

FIVE              Loss of quarter of normal range of movement

TENLoss of half of normal range of movement and frequent/ constant neck pain or loss of three quarters of normal range of movement with infrequent neck pain.

39.     Impairment ratings in excess of 10 points deal with loss of movement at least three quarters of normal range of movement and constant neck pain.  There is no evidence Mr Kozul’s condition is at this level.

40.     Mr Sahil was of the view that Mr Kozul’s neck movements showed some restriction but his range of movement was nearly normal, and therefore assigned a “nil” impairment rating for this condition.  This finding is consistent with the Job Capacity Assessment report of Ms Stratford and the observations of the SSAT, which both conclude Mr Kozul had normal or nearly normal movement in his neck.  There is conflict between the opinions of Dr Pillemer and Dr Hitchen but both note there is no objective evidence to support significant impairment.  The Tribunal also notes that Dr Pillemer’s opinion expressed reservations because there was no firm diagnosis and his report and assessment is nearly five years before the relevant period for assessing impairment.

41.     There is no dispute this impairment is permanent and I accept the Secretary’s contention that the weight of evidence supports the finding there should be a nil impairment rating attributed to this condition.

Is Mr Kozul’s Back Condition Permanent And What Is His Impairment?

42.     Dr Thomas Ecker noted in his report of 27 August 2003 that the x-rays of Mr Kozul’s spine showed normal vertebral alignment, no compression lesion or destructive process but mild degenerative change in his thoracic spine.  The lumbar spine showed no significant abnormalities.

43.     Dr Gale reported a “minor thoracic scoliosis”, “minor anterolateral spondylitic lipping” but “no other abnormality” in Mr Kozul’s CT scan dated 23 August 2004.

44.     None of the other medical evidence used for Mr Kozul’s workers compensation claim conclude there is impairment to Mr Kozul’s middle and/or lower back and the only reports that make an assessment of his impairment are the Job Capacity Assessment reports dated 4 September 2009 and 11 August 2010.

45.     The impairment table for the middle and lower back is Table 5.2 which relevantly provides as follows:

TABLE 5.2     Thoraco - lumbar - sacral spine

Rating           Criteria

NIL                Normal or nearly normal range of movement

FIVE              Loss of one-quarter of normal range of movement

TENLoss of one-quarter of normal range of movement as well as back pain or referred pain:

with many physical activities and

with standing for about 30 minutes and
with sitting or driving about 60 minutes.

or

Loss of half of normal range of movement

TWENTYLoss of half of normal range of movement as well as back pain or referred pain:

with many physical activities and

with standing for about 15 minutes and
with sitting or driving about 30 minutes.

or

Loss of three-quarters of normal range of movement.

46.     The Tribunal notes that Mr Kozul’s range of movement, as observed and tested by the two job capacity assessors, is consistent with a finding of loss of one quarter of normal range of movement with back pain or, alternatively, loss of half of normal range of movement.

47.     There is no dispute this impairment is permanent and I accept the Secretary’s contention, and the findings of the SSAT, that the weight of evidence supports an impairment rating of 10 points attributed to Mr Kozul’s middle and lower back condition.

Is Mr Kozul’s Shoulder And Upper Arm Condition Permanent And What Is His Impairment?

48.     In his report of 20 August 2003 for Mr Kozul’s workers compensation claim, Dr Ross Mills, consultant physician in occupational medicine, noted that Mr Kozul had no loss of muscle bulk in his shoulder, but had “universal weakness of all shoulder muscles on isometric testing”.  He nonetheless concluded that at the time of his report, Mr Kozul was fit for his pre-injury work and had not sustained any percentage of permanent impairment (for the purposes of workers compensation assessment).

49.     Dr Pillemer reviewed x-rays, ultrasound and an MRI of Mr Kozul’s left shoulder and noted, amongst other things, some thickening and degenerative changes, but considered these matters were of “doubtful clinical significance”.  Dr Paul Hitchen was of a similar view.  Neither doctor made any assessment of impairment to Mr Kozul’s shoulder and upper arm.

50.     The relevant Impairment Table is Table 3 which relevantly provides as follows,

TABLE 3        UPPER LIMB FUNCTION

Rating           Criteria

NIL                Can use dominant limb effectively and/or

Demonstrable evidence of loss of strength, mobility, coordination, dexterity and/or sensation of upper limb which causes mild interference with hand function or manual handling

FIVEDemonstrable evidence of loss of strength, mobility, coordination, dexterity and/or sensation of non-dominant upper limb which causes moderate interference with hand function or manual handling

TENDemonstrable evidence of loss of strength, mobility, coordination, dexterity and/or sensation of dominant upper limb which causes moderate interference with hand function or manual handling

51.     The ratings for 15, 20 and 30 points involve significant interference with function or complete inability to use the upper limb.

52.     The Tribunal notes that both job capacity assessors and the SSAT found that a nil impairment rating for this condition was appropriate.  I accept Mr Kozul is experiencing pain in his shoulders and upper arms but there is no evidence to support greater restriction, other than Mr Kozul’s evidence.  I also accept that Mr Kozul has a tendency in formal testing and demonstration to exaggerate restrictions and therefore find that if there are restrictions on movement, they are limited to “mild interference with hand function and manual handling”.

53.     There is no dispute this impairment is permanent.  Dr Pillemer did suggest that further investigations should be undertaken.  However, this was nearly five years ago and there is evidence the condition has persisted for many years without improvement or deterioration.  I agree with the SSAT that this condition is likely to be permanent and accept the Secretary’s contention there should be a nil impairment rating attributed to this condition.

Is Mr Kozul’s Lower Limb Condition Permanent And What Is His Impairment?

54.     In a report dated 20 November 2009 to Dr Peter Giblin, Dr Adrian Gale notes

There is increased signal intensity in the posterior horn of each meniscus, which appears to extend to the peripheral margin of each posterior horn consistent with small degenerative linear peripheral tears.

55.     Dr Gale also noted a small lesion, which he reports is “highly suggestive of a slightly prominent lymph node”.

56.     Mr Kozul told the Tribunal he was obtaining treatment for this condition from Dr Giblin and that he did not yet know what the problem was with his legs and knees and how they were to be treated.

57. Neither job capacity assessors allocated an impairment rating to this condition as both assessors formed the view the condition was” not fully diagnosed, treated and stabilised. For an impairment to be assigned an impairment rating the condition must be “permanent”. This means the condition must have been diagnosed, treated and stabilised in order to form a view, based on the available evidence, that it is more likely than not the condition will persist for the foreseeable future (paragraph 5, Introduction to Schedule 1B). In the present case, Mr Kozul’s complaint in relation to his legs and, in particular, his knees, has not yet been fully diagnosed and is still being treated by Dr Giblin.

58.     As such, this condition is not permanent and I accept that the condition cannot yet be rated in respect of any functional impairment.

Is Mr Kozul’s Psychiatric Condition Permanent And What Is His Impairment?

59.     In his job capacity assessment report of 4 September 2009, Mr Salih considered this condition to be permanent, but nonetheless, assessed an impairment rating of nil points.

60.     Ms Stratford also considered the condition to be permanent and noted “the condition had the functional impact of causing sadness, loss of motivation [and] decreased concentration”.  She also assigned an impairment rating of nil points.

61.     In a report dated 10 April 2007, Dr Ben Teoh, consultant psychiatrist, reported as follows:

It is my opinion that his presentation is consistent with a diagnosis of an Adjustment Disorder with Depressed Mood (DMS IV diagnostic criteria).  His psychiatric condition is a result of the chronic nature of his pain and physical disability.

62.     Dr Teoh also reported:

It is my opinion that Mr Kozul’s psychiatric condition alone would not affect his capacity to perform his usual work duties as a carpenter.  I believe that his impairment would be more a result of his physical injuries.

63.     Mr Kozul is currently being treated by Dr Pashu, consultant psychiatrist.  In her report to Dr Todorovic dated 9 December 2009, Dr Pashu reported:

His mental status examination revealed an angry man who presented with symptoms of anxiety.  He was not psychotic and he was not suicidal.  He explained that he felt frustrated with his continuing pain and perceived poor treatment by various medical professionals.

Diagnostically Mr Kozul suffers from Chronic Pain Disorder and associated Generalised Anxiety Disorder.  I advised that he increase amitriptyline to 100mg at night and I plan to review his response in one month.

64.     While there is evidence Mr Kozul has been depressed for some time, there is also evidence his condition has not yet stabilised and Dr Pashu is still making an assessment of how best to treat his condition.  Mr Kozul asked the Tribunal to speak directly with Dr Pashu about her diagnosis, but despite several attempts to contact Dr Pashu, she was not available to give evidence.  The report of Dr Pashu is clear and there is no dispute Mr Kozul has depression.  The critical issue is that this condition has not yet been fully treated and stabilised sufficient to assign a rating under the Impairment Tables.  This is clear from Dr Pashu’s report and while neither party made such a request, I did not consider it necessary to adjourn the hearing to obtain further evidence from Dr Pashu on this issue.

65.     I agree with the findings of the SSAT that this condition is not “permanent” and, as such, cannot be rated under Impairment Table 6 at this stage.

Does Mr Kozul Have A Continuing Inability To Work?

66. Mr Kozul has a total impairment rating of 10 points in the relevant period and therefore does not satisfy s 94(1)(b) of the Act. There is no need to determine s 94(1)(c). Notwithstanding this, and in the event I am wrong on the impairment ratings, I have considered whether Mr Kozul has a “continuing inability to work” within the meaning of s 94(2) of the Act.

67.     I accept the contention of the Secretary that Mr Kozul does not have such incapacity.

68.     According to the report of Dr Todorovic dated 24 June 2010, Mr Kozul would be fit to work for 15 hours per week, “light, predominantly sedentary type duties”.  He would also be able to undertake a training activity that “doesn’t involve excessive pressure to his neck, back and shoulders.”  This is in conflict with the reports of Dr Mills and Dr Hitchen who both concluded Mr Kozul was fit for pre-injury work at the time of their respective reports.  However, both reports are well before the relevant period.

69.     A vocational assessment by Dr Robin Mitchell dated 31 October 2005 reported that suitable employment for Mr Kozul would be light subassembly work, light mechanical based work or a locksmith or car park attendant.

70.     Both job capacity assessors conclude Mr Kozul has work capacity with intervention, such as the services of a disability employment network member, of between 15 and 22 hours a week.  However, Ms Stratford concludes, correctly in my view, that an increase beyond this is unlikely given Mr Kozul’s lack of recent workforce history and conditioning.

71.     Mr Kozul gave evidence that he did some light housework, but told the Tribunal he has little enthusiasm for retraining and rehabilitation.  Mr Kozul was not open to the suggestion he could undertake light work and has apparently made no attempt to work or retrain since his accident.  Lack of motivation to work or retrain is not relevant to the consideration of “continuing inability to work” unless there is evidence this is attributable to an impairment: Secretary, Department of Social Security v Pusnjak (1999) 56 ALD 444. There is no medical evidence to support this.

CONCLUSIONS

72. During the relevant period for consideration Mr Kozul did not have impairments of 20 points or more under the Impairment Tables and as such was not eligible for the disability support pension under s 94(1) of the Act.

73.     For the reasons set out above, I affirm the decision under review.

I certify that the 73 preceding paragraphs are a true copy of the reasons for the decision herein of Ms J L Redfern, Senior Member

Signed:         .............[sgd]...................................................................
  Associate

Date of Hearing  5 October 2010
Date of Decision  16 December 2010
Appearance for the Applicant        Self-represented
Appearance for the Respondent    Ms R Prasad