Mee and Repatriation Commission
[2005] AATA 1131
•16 November 2005
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2005] AATA 1131
ADMINISTRATIVE APPEALS TRIBUNAL )
) No Q2002/1075
VETERANS' APPEALS DIVISION ) Re HENRY MEE Applicant
And
REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Deputy President Don Muller Date16 November 2005
PlaceBrisbane
Decision The Tribunal:
1. Affirms the decision of the Repatriation Commission, dated 11 December 2001, to refuse a claim by Henry Mee for disability pension for adhesive capsulitis of the right shoulder.
2. Sets aside that part of the decision of the Repatriation Commission, dated 4 December 2001 which refused a claim for Henry Mee for disability pension for post traumatic stress disorder and in substitution determines that Henry Mee suffers from post traumatic stress disorder and that it is a war-caused disability within the meaning of those terms in section 9 of the Veterans’ Entitlements Act 1986, with effect from 28 October 2002.3. Affirms that part of the decision of the Repatriation Commission dated 2 May 2002, which continued disability pension at 100% of the General Rate.
.................SIGNED.............................
D.W. MULLER
DEPUTY PRESIDENT
Administrative
Appeals
Tribunal
ADMINISTRATIVE APPEALS TRIBUNAL )
) No Q2002/1075
VETERANS’ APPEALS DIVISION ) Re HENRY MEE Applicant
And
REPATRIATION COMMISSION
Respondent
CORRIGENDA [2005] AATA 1131
Tribunal Deputy President Don Muller Date17 November 2005
PlaceBrisbane
I DIRECT that in paragraph 29 of the Tribunal’s reasons for decision, s24(1)(d) should be amended to read s.24(1)(b).
….SIGNED.……………… D.W. MULLER
DEPUTY PRESIDENT
CATCHWORDS
VETERANS’ AFFAIRS – post traumatic stress disorder – war-caused – decision set aside – ceased remunerative work and continues to not work for a combination of reasons which include non war-caused factors – not eligible for intermediate or special rate – decision affirmed
Veterans’ Entitlements Act 1986: s9, 23, 24
REASONS FOR DECISION
Deputy President Don Muller 1. Henry Mee, the Applicant, claims that he suffers from service-related disabilities of post traumatic stress disorder (PTSD) and adhesive capsulitis of the right shoulder. He also claims that he should be paid disability pension at the Special Rate pursuant to section 24 of the Veterans’ Entitlements Act 1986 (the VEA).
2. These three claims were rejected by the Respondent on the following dates:
(a)On 4 December 2001, the Repatriation Commission refused Mr. Mee’s claim for PTSD.
(b)On 11 December 2001, the Repatriation Commission refused a claim for adhesive capsulitis of the right shoulder.
(c)On 2 May 2002, the Repatriation Commission continued disability pension at 100% of the General Rate.
3. On 31 July 2002, the Veterans’ Review Board, affirmed the three decisions.
4. By application dated 28 January 2003, Mr. Mee applied to this Tribunal for a review of the above decisions.
5. At the hearing, which began on 18 August 2005, Mr. Mee was represented by Mr. Clutterbuck of counsel, and the Repatriation Commission was represented by Mr. Stoner.
6. Mr. Clutterbuck informed the Tribunal that Mr. Mee was not pursuing the review in relation to adhesive capsulitis of the right shoulder.
7. Consequently, the Tribunal affirms the decision of the Repatriation Commission dated 11 December 2001, to refuse a claim for disability pension for adhesive capsulitis of the right shoulder.
8. On 18 August 2005, the Tribunal received into evidence the following written material, among other items:
(a)The section 37 statement
(b)The reports of two psychiatrists
(c)Various statements from former Army colleagues
(d)Various statements from former senior officers
(e)Mr. Mee’s service medical records
9. The Tribunal heard lengthy oral evidence from Mr. Mee.
10. After Mr. Mee had completed his oral evidence, it was agreed between the parties that Mr. Mee should be re-examined by Dr. Mulholland, psychiatrist, with Dr. Mulholland having full access to the transcript of Mr. Mee’s oral evidence, including the cross-examination.
11. When the matter was resumed on 22 September 2005, Mr. Stoner conceded that Mr. Mee is suffering from PTSD and that his PTSD is war-caused within the meaning of that term in section 9 of the VEA, with effect from 28 October 2002.
12. Consequently, the Tribunal sets aside that part of the decision of the Repatriation Commission dated 4 December 2001 which refused Mr. Mee’s claim for pension for PTSD and in substitution determines that Henry Mee suffers from PTSD which is war-caused, with effect from 28 October 2002.
13. The only matter left for determination by the Tribunal is whether the rate of disability pension payable to Mr. Mee should remain at 100% of the General Rate, or whether it should be increased to the Intermediate Rate provided for in section 23 of the VEA, or to the Special Rate provided for in section 24 of the VEA.
14. The relevant parts of the VEA are:
“23 Intermediate rate of pension
(1) This section applies to a veteran if:
(aa)the veteran has made a claim under section 14 for a pension, or an application under section 15 for an increase in the rate of the pension that he or she is receiving; and
(aab)the veteran had not yet turned 65 when the claim or application was made; and
(a)either:
(i)the degree of incapacity of the veteran from war-caused injury or war-caused disease, or both, is determined under section 21A to be at least 70% or has been so determined by a determination that is in force; or
(ii)….; and
(b)the veteran’s incapacity from war-caused injury or war-caused disease, or both, is, of itself alone, of such a nature as to render the veteran incapable of undertaking remunerative work otherwise than on a part-time basis or intermittently; and
(c)the veteran is, by reason of incapacity from war-caused injury or war-caused disease, or both, alone, prevented from continuing to undertake remunerative work that the veteran was undertaking and is, by reason thereof, suffering a loss of salary or wages, or of earnings on his or her own account, that the veteran would not be suffering if the veteran were free from that incapacity; and
(d)section 24 or 25 does not apply to the veteran.
(2)Paragraph (1)(b) shall not be taken to be fulfilled in respect of a veteran who is undertaking, or is capable of undertaking, work of a particular kind:
(a)if the veteran undertakes, or is capable of undertaking, that work for 50 per centum or more of the time (excluding overtime) ordinarily worked by persons engaged in work of that kind on a full-time basis; or
(b)in a case where paragraph (a) is inapplicable to the work which the veteran is undertaking or capable of undertaking – if the veteran is undertaking, or is capable of undertaking, that work for 20 or more hours per week.
(3) For the purpose of paragraph (1)(c):
(a)a veteran who is incapacitated from war-caused injury or war-caused disease, or both, to the extent set out in paragraph (1)(b) shall not be taken to be suffering a loss of salary or wages, or of earnings on his or her own account, by reason of that incapacity:
(i)if the veteran has ceased to engage in remunerative work for reasons other than his or her incapacity from that war-caused injury or war-caused disease, or both;
(ii)if the veteran is incapacitated, or prevented, from engaging in remunerative work for some other reason; or
(iii)if the veteran has been engaged in remunerative work on a part-time basis or intermittently for reasons other than his or her incapacity from that war-caused injury or war-caused disease, or both; and
(b)where a veteran, not being a veteran who has attained the age of 65 years, who has not been engaged in remunerative work satisfies the Commission that he or she has been genuinely seeking to engage in remunerative work, that he or she would, but for that incapacity, be continuing so to seek to engage in remunerative work and that that incapacity is the substantial cause of his or her inability to obtain remunerative work in which to engage, the veteran shall be treated as having been prevented, by reason of that incapacity, from continuing to undertake remunerative work that the veteran was undertaking.
24 Special rate of pension
(1) This section applies to a veteran if:
(aa)the veteran has made a claim under section 14 for a pension, or an application under section 15 for an increase in the rate of the pension that he or she is receiving; and
(aab)the veteran had not yet turned 65 when the claim or application was made; and
(a)either:
(i)the degree of incapacity of the veteran from war-caused injury or war-caused disease, or both, is determined under section 21A to be at least 70% or has been so determined by a determination that is in force; or
(b)the veteran is totally and permanently incapacitated, that is to say, the veteran’s incapacity from war-caused injury or war-caused disease, or both, is of such a nature as, of itself alone, to render the veteran incapable of undertaking remunerative work for periods aggregating more than 8 hours per week; and
(c)the veteran is, by reason of incapacity from that war-caused injury or war-caused disease, or both, alone, prevented from continuing to undertake remunerative work that the veteran was undertaking and is, by reason thereof, suffering a loss of salary or wages, or of earnings on his or her own account, that the veteran would not be suffering if the veteran were free of that incapacity; and
(2) For the purpose of paragraph (1)(c):
(a)a veteran who is incapacitated from war-caused injury or war-caused disease, or both, shall not be taken to be suffering a loss of salary or wages, or of earnings on his or her own account, by reason of that incapacity if:
(i)the veteran has ceased to engage in remunerative work for reasons other than his or her incapacity from that war-caused injury or war-caused disease, or both; or
(ii)the veteran is incapacitated, or prevented, from engaging in remunerative work for some other reason; and
(b)where a veteran, not being a veteran who has attained the age of 65 years, who has not been engaged in remunerative work satisfies the Commission that he or she has been genuinely seeking to engage in remunerative work, that he or she would, but for that incapacity, be continuing so to seek to engage in remunerative work and that that incapacity is the substantial cause of his or her inability to obtain remunerative work in which to engage, the veteran shall be treated as having been prevented by reason of that incapacity from continuing to undertake remunerative work that the veteran was undertaking
.
28 Capacity to undertake remunerative work
In determining, for the purposes of paragraph 23(1)(b) or 24(1)(b), whether a veteran who is incapacitated from war-caused injury or war-caused disease, or both, is incapable of undertaking remunerative work, and in determining for the purposes of section 24A whether a veteran who is so incapacitated is capable of undertaking remunerative work, the Commission shall have regard to the following matters only:
(a)the vocational, trade and professional skills, qualifications and experience of the veteran;
(b)the kinds of remunerative work which a person with the skills, qualifications and experience referred to in paragraph (a) might reasonably undertake; and
(c)the degree to which the physical or mental impairment of the veteran as a result of the injury or disease, or both, has reduced his or her capacity to undertake the kinds of remunerative work referred to in paragraph (b).”
15. Mr. Mee has the following war-caused disabilities:
·Haemorrhoids
·Anxiety Neurosis
·Otitis Externa
·Irritable Colon Syndrome
·Lumbar Spondylosis
·Cortical Atrophy of Brain
·Solar Skin Damage
·Diabetes Melitis
·Post Traumatic Stress Disorder
16. Mr. Mee has the following disabilities which are not war-caused.
·Mixed Astigmatism
·Incipient Presbyopia
·Lumbar Intervertebral Disc Herniation
·Chronic Bronchitis
·Seborrhoeic Dermatitis
·Male Pattern Alopecia
·Aches in Knees
·Bilateral Sensori-Neural Hearing Loss
·Hearing Loss (No incapacity found)
·Bilateral Tinnitus
·Adhesive Capsulitis of the Right Shoulder
17. Mr. Mee produced two written statements, exhibits 4 and 5, and he gave oral evidence about his work history. He made the following points, among others:
·Henry Mee was born at Athlone, Republic of Ireland, on 26 November 1939.
·After leaving school he obtained a job with Dunlop in England, as an inspector of works.
·He migrated to Australia in 1964.
·After arriving in Australia he worked for a time in a hotel in Melbourne and then obtained a job in a factory.
·He enlisted in the Australian Regular Army as an infantryman, commencing on 7 June 1965.
·He did his basic and corps training at Kapooka, Ingleburn and Canungra.
·He served in South Vietnam for 12 months from 20 April 1966 until 20 April 1967.
·Upon his return from Vietnam he became a weapons instructor at Kapooka. He also trained recruits in the art of camouflage and concealment.
·He was discharged from the Army on 16 October 1968.
·After being discharged from the Army he worked as a truck driver for about six months. He was sacked from that job because he would loose his temper and some days not turn up for work.
·He then worked for the Ingham Chicken company. He only lasted three months before being sacked for the same reason that he was sacked from the truck driving job.
·He then went to work in the bush on a property at Warren, New South Wales called Butterdones Stud Park. He was sacked from that position and moved to several more properties in New South Wales.
·He then moved to South Australia and worked for the Wool Stores in Adelaide. He did not last for more than three months when he was sacked again.
·He then worked on several properties in outback South Australia where he was always let go after a few months.
·He worked as a stockman at the Adelaide abattoirs for about eight months.
·He was “in and out of Daws Road for about two years”. (Daws Road is the Military Hospital in Adelaide.)
·He was unemployed for long periods. He suffered from “nerves and anxiety”.
·He then moved to Victoria where he managed several farms. He was usually sacked after a few months. He managed a poultry farm for nine months.
·He was admitted to Heidelberg Military Hospital “several times”.
·He moved to Queensland in 1986 where he worked part time for the Australian Security Company on the Gold Coast for about a year before being sacked.
·He then worked for Checkmate Security, Wackerhut Security and Group Four security each for short periods of time before being sacked from each.
·He then worked for Serco Gardner until he had to retire because of ill health in 1999. (Serco had the contract for managing Army Firing Ranges.)
·His last job was as a range officer at the Greenbank Army Base. He retired from that job because of his bad shoulder. He was unable to manipulate the heavy remote control units. He also had to issue the ammunition. He was also having trouble with his diabetes.
·All the jobs he held after he got out of the Army he was sacked from or walked out of them. He was on Social Security for long periods of time between jobs.
·Since his discharge from the Army and during his working life he has often had periods of blackouts. He has left home and gone bush living off the land and has only returned home to his family after a week or ten days of this.
·He has lost most of the 13 jobs through drinking, mood swings, bad temper and losing control, bad health and not being able to remember things.
·He has often gone on drinking binges two or three times per year.
18. The essence of Mr. Mee’s claim for disability pension above the General Rate is that he has been virtually unemployable ever since he was discharged from the Army because of his war-caused disabilities.
19. The material placed before the Tribunal indicates that Mr. Mee applied for a Service Pension on 13 October 1981, in Victoria on the basis of his unemployability and that he was granted the pension on 29 April 1983 with effect from 2 May 1983.
20. The material also shows that on 27 January 1993, Mr. Mee claimed to the Department of Veterans’ Affairs that “owing to my disability it is approx 16 years since I last worked I am unable to remember the names or addresses of past employers”.
21. However, Mr. Mee and his wife were investigated by the Special Investigations Unit of the Repatriation Commission in August 1998 and the report filed on 20 August 1998 contains the following:
“Mr and Mrs Mee applied for Service pension on 13 October 1981, in Victoria, on the basis of Mr Mee’s permanent unemployability. His Service pension application showed that they had no money and were paying Housing Commission rent.
After various medical checks and consultation with the Department of Social Security, Veterans’ Affairs eventually granted a service pension on 29 April 1983, with effect from 2 May 1983.
From May 1983 to date, they have continually received Service pension on the basis of Mr Mee’s permanent unemployability and completed numerous statements to the effect that neither of them have ever worked.
Veterans’ Affairs recently became aware that Mr Mee was working as a security guard for Chubb Security. Enquiries were made to Chubb and it was found that Mr Mee was working as a security guard since, at least, December 1993. Mee was working under the name of Harry James Mee and working 30 to 40 hours per week. It was also learned that Mrs Mee was working as a cleaner at Garden City Shopping centre.
On 13 August 1998 a search warrant was executed at the Mees rented home at 23 Dayana Street Marsden Q 4132. Evidence found on the premises clearly indicates that Mee has worked as a Security Guard since 1983 at least; and Pearl Mee has been employed since at least 1989.
Amongst the evidence gained by the Search Warrant were statements to Veterans Affairs under the name of Henry Mee to the effect that he had not worked for seventeen years; and statements to the State government compensation board and various employers, under the name of Harry James Mee, that he had worked for the past 16 years in the Security Industry.
I have studied the Department of Veterans’ Affairs files and the information obtained under Search Warrant and I find that:
1.Mr Mee is not and never has been Permanently Incapacitated under the Act,
2. Mr and Mrs Mee made a false statement on their original application for Service pension to the effect that Mr Mee was not working and was not capable of working, when in fact, he was employed at the time of that application and has been in employment since then, and
3. Both Mr and Mrs Mee are not entitled to payment of Service pension.
I therefore exercise my power under Section 56E and cancel their Service pension.
Directions
1. I direct that Service pension payments made to Mr and Mrs Mee be terminated immediately, and
2. I direct that total Disability pension payments made to Mr and Mrs Mee be withheld to commence recovery of their debts to the Department of Veterans’ Affairs immediately.”
22. In March 1999, Mr Mee made a claim for a disability support pension from Centrelink. In support of his claim he said the following:
·He was working 38 hours per week.
·“I am only working because I don’t receive a pension I am too sick to work”.
·“Once I receive the Disability Support Pension I will be ceasing employment as I am too sick to work”.
23. Mr. Mee ceased working for Serco Gardner on 21 May 1999, on the grounds of “ill health”.
24. Mr. Mee gave an inflated history to his examining medical practitioners. In February 2000, in connection with his PTSD claim, he told Dr Matthews that while in Vietnam he had seen disembowelled women, girls raped, people blown to bits, friends killed, and a badly charred child who had been thrown into a fire by the Viet Cong and that he had dug up dead bodies (folio 97) – but in his oral evidence he resiled from those accounts. He also claimed to have come into contact with Agent Orange which he claimed was used to spray flies and mosquitoes. I regard this claim to be absurd.
25. I take the view that Mr. Mee was a witness of very low credibility. I cannot be satisfied that he was telling the truth about his work history.
26. In any event the following matters are clear.
·Mr. Mee has not been seeking to engage in remunerative work since mid 1999.
·Mr. Mee ceased work in 1999 because he had a bad shoulder and because he wanted to receive a pension.
·Mr. Mee also became entitled to receive the service pension, irrespective of his medical condition, when he turned 60 years of age in November 1999.
·At the date of his application for an increase in disability pension 25 May 2001, he had been out of the workforce for two years and he was 61years old. Both factors would have had an effect on his capacity to work.
27. I am satisfied that Mr. Mee ceased work at a time when he was capable of working 38 hours per week and that he ceased work for a combination of reasons which included non-service related factors such as bad shoulder, age and eligibility for service pension.
28. I am also satisfied that he continues to remain out of the work force for the same reasons plus the fact that he has now not worked for about six years.
29. He does not satisfy the provisions of sections 23(1)(b), 23(1)(c), 24(1)(d) nor 24(1)(c).
30. The decision to continue Mr. Mee’s disability pension at 100% of the General Rate is affirmed.
I certify that the 30 preceding paragraphs are a true copy of the reasons for the decision herein of Deputy President Don Muller
Signed: .....................................................................................
R. Link, AssociateDate/s of Hearing 18.8.05, 22.9.05, 14.11.05
Date of Decision 16 November 2005
Counsel for the Applicant Mr Clutterbuck
Solicitor for the Applicant Aylward Game Solicitors
Respondent Mr. J. Stoner, departmental advocate
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