Pollock and Repatriation Commission

[2005] AATA 367

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2005] AATA 367

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No Q2004/578

VETERANS’ APPEALS  DIVISION		)
Re		ALBERT POLLOCK

Applicant

And REPATRIATION COMMISSION

Respondent

DECISION

Tribunal Senior Member BJ McCabe

Date27 April 2005

PlaceBrisbane

Decision The Tribunal affirms the decision under review.  

...........[Sgd]..........

BJ McCabe

Senior Member

CATCHWORDS

VETERANS’ AFFAIRS – Veterans’ entitlements – disability pension – application for pension at the special rate – osteoarthritis of the hip – prevented from working but not solely because of war caused injury – applicant does not satisfy ‘alone’ test – decision under review affirmed.

Veterans’ Entitlements Act 1986 ss 24

REASONS FOR DECISION

27 April 2005 Senior Member BJ McCabe        

Introduction

1.      Mr Albert Pollock is currently in receipt of a disability pension under the Veterans’ Entitlement Act 1986 (the VEA). His pension is paid at 80% of the general rate in respect of a number of accepted conditions, including osteoarthrosis of the right hip. He also suffers from osteoarthrosis of the left hip, although that condition has not been accepted. Mr Pollock asked the Commission to increase his pension to the special rate on the basis that he was prevented from continuing his work as a cane farmer because of his right hip condition. The Commission refused to increase the pension. The Veterans’ Review Board affirmed the decision. Mr Pollock has now asked the Tribunal to consider the matter.

2.      Mr Pollock is 82 years of age. That means the Tribunal must focus on the requirements of s 24(2A) of the VEA. Section 24(2A) applies to Mr Pollock because he had already turned 65 when the application was made on 22 May 2003: s 24(2A)(b).

3.      The Commission says in particular the applicant is unable to satisfy the “alone” test in s 24(2A)(d). I agree, for reasons I will explain.

The Material Before the Tribunal

4. The Tribunal was provided with the documents required under s 37 of the Administrative Appeals Tribunal Act 1975. The following documents were also tendered in evidence:

Exhibit 2 – Letter from Mr Pollock to David Chalk dated 29 November 2003

Exhibit 3 – Letters of Dr Lansky dated 28 June 2004 and 15 October 2004

Exhibit 4 – Notices of assessment for the years ended 1994, 1995 and 2000

Exhibit 5 – Cultivation agreement dated 6 January 2004

Exhibit 6 – Clinical notes of Dr Lansky.

5.      Mr Pollock gave evidence at the hearing. There were no other witnesses.

6.      The applicant was represented by Mr Chalk of the Far North Queensland Veteran and Ex Service Support Centre. Mr Stoner, a departmental advocate, represented the Commission.

The Legislation

7.      The “alone” test is set out in s 24(2A)(d). The sub-section provides:

24        Special rate of pension

(2A) This section applies to a veteran if:

(d) the veteran is, because of incapacity from war-caused injury or war-caused disease or both, alone, prevented from continuing to undertake the remunerative work ( last paid work ) that the veteran was last undertaking before he or she made the claim or application; …

8.      Mr Stoner pointed out the wording of the “alone” test applicable to older veterans was the same as that which applied to others under s 24(1), but there was no equivalent of the ameliorating provision in s 24(2)(b). Mr Stoner said the parliament intended to make it harder for older veterans to qualify for a VEA pension of this type when it passed the legislation introducing what was in effect a stricter test in 1994.

The Facts

9.      Mr Pollock has been a cane farmer in the Mossman area since 1949. He began by leasing a property. He purchased the property five years later, and subsequently purchased several other properties. He was assisted by farm labourers during most of that period, but he was always actively involved in heavy physical work until 1993.

10.     The applicant has been an active member of the industry for many years. He has participated in the executive of the local cane growers association and cooperative. He has served on the executive and boards of a range of other industry and government bodies.

11.     Mr Pollock started to experience difficulty with his right hip during the 1980s. He had a total hip replacement in 1998. He gave evidence that he was also experiencing some pain in his left hip during this period, although it was not nearly as bad as his right hip. He was taking pain medication constantly. His orthopaedic surgeon took an x-ray of both hips at the time of the right hip replacement. Mr Pollock said the doctor expressed the view he was confident the left hip “would see you out”, meaning that it would not require replacement.

12.     The right hip replacement was successful, and Mr Pollock resumed work on the farm. His left hip became more troublesome within two years of the surgery on his right hip.

13.     The applicant said he had increasing difficulty in the early 1990s performing the heavy physical work involved in running a farm. He says he could not continue with the work because of his right hip condition. While the hip replacement surgery had been a success in the sense that he could walk after the operation, he could not climb on and off a tractor or perform other physical tasks.

14.     Mr Pollock decided to enter into a cultivation agreement with his neighbours. A copy of the agreement was tendered in evidence (exhibit 5). The agreement provides for the neighbours to grow sugar cane on the applicant’s farm. They agreed to do all the work. They were to receive in return 90% of the gross payment from the mill after the harvest. Mr Pollock received the balance for his contribution of land. The agreement was signed in January 1994. It has been renewed and continues to operate today. The agreement did not apply to the crop grown in 1993.

15.     The document evidencing the agreement did not suggest Mr Pollock was under any obligation to provide advice or assistance to the neighbours as they grew crops on his property. The applicant said he was happy to do so, however: he pointed out one could not simply enter a property and plant a crop without a detailed knowledge of the land. It may have been an implied term in the agreement that the applicant would provide advice and assistance to the neighbours on how best to grow crops on the property. In any event, the applicant provided that advice and continues to do so. He does not do any of the physical work associated with running the property, and he agreed under cross-examination that his hip condition was not an impediment to providing his neighbours with the benefit of his extensive knowledge and experience.

16.     Mr Pollock decided to have his left hip replaced in 2003. He now requires the assistance of a walking stick, but he is mobile.

17.     The applicant and his wife built a retirement home at Newell beach about five years ago. They planned to retire there. They changed their minds because the applicant said he and his wife could not bear to leave the family farm. He does not have any superannuation, although Mr and Mrs Pollock have some investments that generate income.

18.     The applicant says he stopped actively working as a farmer and entered into the cultivation agreement because his right hip condition made it impossible for him to continue with the physical work. He says he continues to work in the sense that he provides advice and involves himself in the management of the property and the crops. This is contrary to the suggestion in his claim form lodged on 5 March 1997 that he ceased work in 1995 when he retired (T documents, p 37). He says his left hip was not a problem at that point, although he acknowledged it caused him pain that required him to take painkillers regularly.

19.     I note that Dr Lanskey suggested in his report dated 21 December 2004 that the applicant was prevented from continuing work because of osteoarthritis in the hips. I also note Dr Shepherd’s report dated 2 June 2003 that suggested Mr Pollock was keen to have his left hip seen to because it had been troubling him for some time, and because the procedure on his right hip was successful.

Consideration

20.     Mr Stoner argued the applicant had ceased remunerative work in 1993. The claim form supports that view. Mr Pollock was unable to explain why he had written that in 1997. (He repeated the assertion the following year in another claim form.) The applicant said he misunderstood what is meant by the expression “retire” and says he has not, in fact, retired because he continues to be involved in the farming process – albeit in the capacity of a consultant. In the alternative, Mr Stoner argued that if the applicant was continuing to work under an implied term of the cultivation agreement, that work is his last remunerative work. The applicant agreed his injuries were not an obstacle to carrying on the consulting work.

21.     I am satisfied the applicant retired after he entered into the cultivation agreement. That conclusion is supported by the claim form in the T documents. I do not accept the applicant ceased his active farming career after he entered into the cultivation agreement because of his right hip condition alone. I am reasonably satisfied after reading the medical evidence and hearing the applicant’s testimony that his left hip condition was becoming a problem at the time, not long after his right hip was settling down following the surgery. His left hip condition may not have been enough on its own to force him to stop work, but I am satisfied it played a part in his decision to retire.

22.     I suspect the applicant’s age may also have had a role to play in the decision to quite active farming. He was in his mid 70s, after all. But I do not need to reach a concluded view on that point in light of my view as to the contribution of the applicant’s left hip condition to his cessation of work.

23.     It makes no difference to the outcome of this case if I found the applicant continued remunerative work under an implied term in the cultivation agreement to provide advice and assistance. He has not been prevented from doing that by his right hip condition, or anything else.

Conclusion

24.     I have sympathy for the applicant. He fought for his country. He was (and remains) a pillar of his local community. But the legislation is clear. The applicant is unable to satisfy the requirements of s 24(2A). His application for an increase in the pension cannot succeed.

25.     The decision under review is affirmed.

I certify that the 25 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member B J McCabe

Signed:   Sam J Appleton

Associate:

Date of Hearing  7 March 2005
Date of Decision  27 April 2005
The applicant was represented by Mr David Chalk
The respondent was represented by Mr John Stoner, Departmental Advocate