Meeke and Repatriation Commission - [2002] AATA 1175

DECISION AND REASONS FOR DECISION [2002] AATA 1175

ADMINISTRATIVE APPEALS TRIBUNAL )

) No V2000/1564

VETERANS APPEALS DIVISION        )
           Re      WILLIAM MEEKE
  Applicant
           And    REPATRIATION COMMISSION
  Respondent

DECISION

Tribunal Mr J. Handley, Senior Member

Date31 October 2002
PlaceMelbourne

Decision      The decision under review is set aside in so far as it concerned assessment of pension rate and in substitution IT IS DECIDED the applicant has, at all relevant times, been entitled to pension at the special rate. The remainder of the decision under review is otherwise affirmed.
  .......Sgd. Mr J. Handley .....
  Senior Member
CATCHWORDS
Post Traumatic Stress Disorder - accepted as war-caused- applicant employed full time until 1999 - voluntary redundancy - whether war-caused injuries alone caused incapacity - whether entitled to special rate pension. Decision set aside.

REASONS FOR DECISION

31 October 2002 Mr J. Handley, Senior Member

The applicant applies to review a decision of the Veterans' Review Board ("VRB") made on 22 November 2000 to affirm a primary decision made on 11 February 2000 with respect to assessment of Disability Pension. The respondent previously assessed the applicant with an entitlement of 100% of the general rate with effect from 16 June 1999. The VRB also affirmed the primary decision rejecting the claims for dermatitis and osteoarthrosis of the right hip. However, it varied the diagnosis of osteoarthrosis of the knees and substituted a diagnosis of bilateral chondromalacia patellae. It otherwise affirmed the primary decision with respect to the knees that they were not war-caused.
The applicant has the conditions of Post Traumatic Stress Disorder ("PTSD"), sensori neural hearing loss of the left ear, bilateral pes planus, bilateral ingrown toenails, tinea, osteoporosis, osteoarthrosis of the left hip and a vascular necrosis of the head and neck of the left femur accepted as war-caused. The conditions which have been rejected as war-caused are asthma, dermatitis, lumbar spondylosis, bilateral chondromalacia patellae, and osteoarthrosis of the right hip.
Mr Thompson appeared as counsel on behalf of the applicant at the hearing and Mr Purcell appeared on behalf of the respondent. A number of persons gave evidence and a number of documents were received into evidence. The evidence of those persons and the documents will be referred to in these reasons.
The claim being advanced by Mr Meeke is essentially to recover special rate pension.
WIlliam Meeke
Mr Meeke is presently 55 years of age, having been born on 11 November 1946. He last worked in September 1999. Disability Support Pension was paid by Centrelink from May 2000 until February 2001, from which date the applicant qualified for and received service pension from the respondent.
Mr Meeke was a member of the Australian Army between 1967 and 1971. He served in Vietnam between September 1969 and June 1970. Prior to enlistment, the applicant completed an apprenticeship as a carpenter. Mr Meeke found some work when he returned to Australia, but obtained full-time employment with Alcoa in Geelong as a maintenance carpenter in 1973. He remained with that employer until employment ceased in September 1999.
The applicant said that he recalled after he returned to Australia from Vietnam that he was smoking and drinking heavily, he was irritable and he did not socialise with other persons. He recalled that those features of his personality were very different to the person that he was prior to enlistment. He recalled that at the commencement of employment with Alcoa, the work "seemed alright" but he had trouble engaging in tennis, cricket and football because of swelling in his knees. He associated that condition with a fall in Vietnam when he was a member of a construction gang. From that time he has suffered recurrent swelling of both knees, particularly after walking and running. Mr Meeke also noticed shortly after his return from Vietnam that he suffered from severe headaches.
In approximately 1985, Mr Meeke suffered a number of back injuries at work which caused incapacity and on return to work, he was given lighter duties as a cleaner. He held that position until 1995. He said that he thereafter had a "lot of trouble" with his back, whilst engaged as a cleaner.
The applicant also noticed that he was having considerable difficulty associating with other persons and was frequently verbally abusive. He said that he would argue "about anything" and persisting headaches caused him to be "aggro".
Until 1987 or 1988, Mr Meeke said that it was not well known at the workplace that he had served in Vietnam until a photograph of him and his son was published in a local newspaper. A story attached to the photograph referred to his service in Vietnam. Mr Meeke said that that photograph was fixed to a noticeboard at work, the photograph was defaced and the words "baby killer" were written under it. Thereafter, he said he was exposed to verbal jibes with frequent references to children having been killed in Vietnam. On one occasion, he recalled that a person at the workplace said to him "I suppose you killed plenty of people over there". In 1995, Mr Meeke was offered a job in the tool store at Alcoa. He said that physically he was able to cope with it, but he was having difficulty communicating with other persons. He said that he preferred to have his workplace tidy and arranged in a particular way and preferred also to work at his own pace. He said he was then continuing to have frequent arguments with workmates and also with management.
In approximately 1997, the applicant developed severe left hip pain, which was first treated in 1998 after he consulted Doctor Oliphant who was the company Doctor and also his own family Doctor. Thereafter, Mr Meeke was treated by Doctor Dunning in Geelong, who referred him to Mr Nye a neurosurgeon, who in turn referred him to Mr Hooper, an orthopaedic surgeon. A MRI examination was conducted and a diagnosis was later made of osteoporosis.
After returning to work, the applicant recalled an episode during morning smoko when a workmate approached him and said words to the effect of "when you die I'll be in the rifle party and I'll have live bullets and will fire them into the coffin". Mr Meeke said that he then approached his supervisor and told him that he had had "enough". At that stage, he recalled that his left hip was "killing" him and he then commenced a period of three months incapacity. On returning to work, he was given the job of cleaning the manager's office and conducting some safety inductions for employees and visitors. He said the latter job principally involved displaying a video of safety procedures and making identification cards for visitors. He said it was not a difficult job and there would only be two or three hours work per day for him to undertake. He said for the rest of each working day he would "do nothing" or, with permission, he would leave and go home early. He said that he became bored and he asked for a permanent, more meaningful position. Mr Meeke said that there were positions vacant at Alcoa for which he applied, but without success. He was offered early retirement redundancy in 1999, but rejected it because he wanted to work full-time. He then commenced a period of annual leave where he travelled to Vietnam. On return to work, he again applied for full-time employment, was refused and was then told that the redundancy package was still available should he wish to take it. He was told that the safety position that he held had been made redundant. Following a discussion with his wife, he decided to accept the redundancy package. He thereafter took all annual leave that was owing to him and finished employment in September 1999.
After he finished with Alcoa, Mr Meeke sought work through an employment agency of Centrelink in Geelong and applied for five or six positions each fortnight. A diary was kept as part of the requirement for qualification for Newstart Allowance. Mr Meeke said that his wife's brother-in-law offered him employment in a furniture manufacturing business in late 2000. He said that the business was made up of two related families, however because of conflict which occurred in the workplace - initiated by his abuse and arguments - there remains a permanent rift within the families. Mr Meeke said that he would not take advice and he had tried to "run the business for them".
Mr Meeke has also attempted voluntary work with the Vietnam Veterans' Counselling Service, but he found that it was "upsetting". He said the work mainly involved use of computers which was not difficult, but he was "bringing too much home". He participated in a PTSD clinic in Bellarine, but said that he wished that he had not undertaken it because it "opened a lot of wounds". He said that his relationship with his wife has been affected "greatly" and "things aren't real flash".
Mr Meeke also produced a photograph from the "Geelong advertiser" newspaper dated 26 April 1999, which depicts him and his brother at an Anzac Day service in Geelong. The photograph and the accompanying story was also attached to the noticeboard at the workplace. The last paragraph of the text of the story attached to the photograph (purporting to quote Mr Meeke) reads-
"But we did our duty and we are very proud of that, no one can take that away from us".
The text of that paragraph has been altered by hand and reads-
"But we did our duty and we are very proud of that. No-one can take that away from us but does this happen at Alcoa".
Against the photograph of Mr Meeke are the words "I really love Pauline Hanson as well as Denise Drysdale". The photograph of his face has been defaced and he is depicted as wearing an earing and a substance emanating from his mouth.
One or two days after the above photograph was attached to the noticeboard at work, a photocopy of a letter to the editor of a Geelong newspaper was also attached to the noticeboard. The letter was in response to the story attached to the photograph of the applicant and his brother, which essentially was about two brothers from Geelong serving in Vietnam at the same time. The letter to the editor queried that reference and the author of the letter spoke of other persons that she knew who were brothers, and also served in Vietnam simultaneously. In handwriting against the photocopy of that letter are the words "lier's bullshit Bill". It is assumed that the word "lier's" is a misspelling of the word "liars".
Since the applicant completed the PTSD clinic in Bellarine, he said that his alcohol consumption has increased considerably. Mr Meeke suffers from "road rage", where he described his behaviour whilst driving a motor vehicle as abusive, frequently blowing his horn and erratic driving in front of other people to "cut them off". He said that when he suffers these episodes he is of the belief that "no-one can drive as good as I can". He consumes considerable quantities of medication, including anti-depressants. Doctor Van Der Linden, the applicant's treating psychiatrist, increased his anti-depressant medication on the day prior to the hearing and also prescribed an anti-epileptic tablet because of "mood swings".
In cross-examination, Mr Meeke said that he did not know who was responsible for attaching the photographs and the letter to the editor to the noticeboard at work, however he had a "fair idea who did". He believed it was the same person who made the comments to him that bullets would be fired into his coffin at his burial. He said that he did not know why the person "Pauline Hanson" was referred to in one of the photographs, but assumed it was because he had a reputation as being a racist based on some of the comments and language that he had used at work. He said he had no idea why the person "Denise Drysdale" was referred to. Mr Meeke said that the conflict in the workplace was not because of his politics, but because he had served in Vietnam.
With respect to his injuries, which have not been accepted as war-caused, Mr Meeke said that he continues to have swelling and pinching type pain in his knees. Nonetheless, he is able to walk 3 or 4 kilometres which causes pain but which is relieved after rest. He said that the knee injuries would not affect his ability to work.
With respect to the condition of asthma, Mr Meeke understood that he suffered from bronchitis which he described as being intermittent. He said it causes shortness of breath when he climbs stairs or gradients or when walking, however that condition is not being treated and he regards it as being a minor problem.
With respect to his back injury, Mr Meeke said that he has had back pain since 1985 because of the workplace injury and for which he recovered workcover payments. He said he suffers severe pain on bending, stretching or standing for long periods and medication is consumed for the injury. He said that he was able to cope with the cleaning job for about 10 years despite the back injury, however he did not cease to undertake that work because of the back injury but rather because he was offered another job by Alcoa in the tool store. In that position, he said, he was able to sit and stand at will and there was less lifting and bending than was involved cleaning. He also regarded it as being a better job with an increased salary.
That work was undertaken until early 1998 when the applicant suffered a spontaneous fracture of his left hip, because of the condition of osteoporosis. He was incapacitated for three months and returned to work on lighter duties. It was then that he was offered the work in the safety training office. Mr Meeke was confident that by reason of his left hip having improved, he would have been physically capable of working 6 or 7 hours per day. However, he lived approximately 25 minutes drive from the workplace, but was having increasing difficulty coping with his PTSD and road rage. His left hip did cause him some pain and he was required to sell his motor vehicle and acquire an automatic car.
With respect to the applicant's earlier evidence earlier that he prefers to work at his "own pace", he said, by way of example, the importance to him of being able to take morning and afternoon smokos and a lunch break. It followed, he said, that he became irritable and upset when persons would ask for tools during these times. He said he was also upset when tools were lost, misplaced or not returned.
When working in the safety training office, he said, he became argumentative if he was required to induct more than 10 persons at a time, however he otherwise enjoyed the work. He said he became frustrated if he was required to work with persons who were of non-English speaking background because of the absence of interpreters and the only literature that he had available was printed in English. He said that he was eventually told that that position would become redundant, because computers would be introduced which would provide simulations of workplace safety that he was otherwise demonstrating. He was told that no other work could be made available for him and was adamant that Alcoa was not then downsizing. Mr Meeke said that he is aware that the computer simulations of safety demonstrations have not yet been introduced. He said he could not return to that workplace because he could not cope with the "hassles of fighting and bringing trouble home".
As to the applicant's frequent references to his irritability, he agreed that he had read a statement lodged in support of his application by Ms Rowena Pau (Exhibit D). The statement details a number of events that she has observed, having known Mr Meeke for 20 years - and summarised by her as-
"To sum Mr Meeke up, I would have to say …… his short fused, tactless, strict, dependent, harsh, sexist, difficult to live with, erratic, ignorant and prejudiced, making him a very complex man who goes from one extreme to the next in a heartbeat".
Mr Meeke agreed with those observations of him and said that it was a description of how he had been for many years and throughout his employment with Alcoa.
In re-examination, Mr Meeke said that he did not know of any other work that could be available for him at Alcoa. He said that when he was offered a redundancy package he was aware that the employer had frozen all available packages. He said the only other redundancy package offered was to another workmate who was then suffering from a terminal cancer. He re-affirmed that the workforce was stable and was not being downsized.
With respect to the employment undertaken with his wife's brother-in-law, Mr Meeke said that the work principally involved assembling outdoor pine furniture at a workshop in Geelong. Mr Meeke said that he "wanted to see if I could do the work". However, he found the workplace to be untidy, unkept and was a safety hazard. He said he worked a total of 6 hours over 2 days and he thereafter refused to work because of the state of the workplace.
In answer to some questions from me, Mr Meeke said that when he had become upset at the workplace, he would lose control and sometimes punch walls. He said that he would "swear and rant and rave and half the time I didn't know what I was saying". He said at home his verbal tirades were so bad that both his sons have recently left home and live elsewhere. He said at the workplace that he also used to throw tools and on one occasion a cup of coffee. He said these events occurred in the tool store. He recalled one occasion where he threw tools for one or two minutes and only stopped because "there was nothing else to throw". He said he was observed doing this by other workmates and recalled also there were occasions where he threw tools at workmates. He recalled that the tools thrown were spanners and whilst (fortunately) the tools did not strike the workmates, they were thrown back at him. Mr Meeke said that this behaviour is a consequence of his PTSD and he did not engage in behaviour of this type before he enlisted.
Mr Meeke said that he drank alcohol excessively until about 1997, at an average of 6 cans of beer per night and a bottle of whisky at weekends. He said he significantly cut back his consumption of alcohol after he commenced treatment from a psychologist but by reason of the PTSD course which he completed at Bellarine he resumed excessive drinking. Despite being advised not to consume alcohol, he continues to drink to excess and consumes prescribed medication. Mr Meeke said that he drinks alcohol because "he enjoys it", however he acknowledged that he becomes depressed having consumed alcohol.
Mr Meeke said that he could not understand why management at Alcoa would continue to employ him until 1999, despite his behaviour but believed that a package was offered because they "had had enough". He also understood that no other department at Alcoa would want to engage him.
At the present time, Mr Meeke spends most days at home "playing with a computer".
Brett Noonan
Mr Noonan is the senior shop steward with the Australian Workers' Union at the Alcoa Plant at Point Henry in Geelong. He wrote a letter which was received into evidence dated 10 May 2001 which, omitting irrelevant parts, reads as follows-
"I have known Bill Meeke for over ten years and over his last two years as an employee of Alcoa World Alumina-Australia. I had direct dealings with Bill in my role as Senior Steward for the Australian Workers Union. In my opinion and that of others that if asked to sum up his history within the company, I would have to say he was argumentative, troublesome, had problems with direct supervision and at times other crew members.
Towards the end of his employment he was placed in a role that involved less direct contact with supervision and upon his leaning (sic) the company position he had was picked up by others, I do not believe that the company was sorry to see him leave".

In evidence, Mr Noonan said that Mr Meeke had a well-known history of having difficulty with authority at the workplace because of his temper. He said that it is rare at Alcoa for persons to move between jobs, but having regard to his well known history, other departments were loathe to engage him. He said that the applicant has the "olympic record for using the "f" word in a minute". He said the applicant could not control his temper and he was aware of incidents at the workplace of him throwing tools. He said that he has attempted to calm Mr Meeke because he did not want members of his union being terminated.
Mr Noonan said that the work at Alcoa ceased because they were considering introducing a computerised safety program and the job that Mr Meeke held became redundant. He said in those circumstances, the employer was obliged to offer him a redundancy package.
Mr Noonan said that the applicant initially enjoyed work in the tool store because "he liked to be organised and to be in control". However, if tools were not returned properly or at all he "cracked the shits" and other persons would take offence at his behaviour. He was eventually given the safety-training job because it involved minimal contact with employees.
When asked how he would respond to an enquiry of a potential employer, Mr Noonan said that he would describe Mr Meeke as being a "good worker and to give him a go". He said that he would not "slag" Mr Meeke. He did say, however, that if Mr Meeke is unable to work at Alcoa with the wages and conditions that are available at that workplace, that he would not be able to work anywhere else.
In cross-examination, Mr Noonan said that he was aware that the applicant had a "fiery temper" when he was engaged as a cleaner and that insulting comments had been made to him. Mr Noonan was unaware whether the applicant had been offered the job as a cleaner by reason of his back injury or because of his temper. He thought that Mr Meeke was offered the job in the tool store because of his behaviour. He recalled that company managers had spoken to him about transferring Mr Meeke to the training job. He recalled that one of the reasons given was because of his hip injury. However, his temper and his behaviour were spoken of but they were not recorded on his file.
Mr Noonan said that he had never seen the applicant throw tools, but he had heard of it and had been called in on occasions to "sort it out". He said he preferred to become involved rather than allow the matter to be referred to management, because it would more than likely cause the applicant to be dismissed.
In terms of the employment generally, Mr Noonan said that Mr Meeke was "in a difficult position" because he was fit only for light duties. He said that his responsibility as a union officer was to ensure that the applicant achieved the "best possible exit arrangements". He said the union would have attempted to find him employment with Alcoa, but on balance "the easiest option for all was a package".
In re-examination, Mr Noonan said that despite the applicant's "physical problems" he could have been placed in another position at Alcoa, but it was his temper "that made it hard".
Jill Crookes
Ms Crookes is a qualified counselling psychologist practicing in Geelong. Mr Meeke was referred to her by the Vietnam Veterans' Counselling Service in 1996 and she continues to treat him.
Ms Crookes had no doubt that Mr Meeke suffers from PTSD by reason of his experiences in Vietnam. She noted that he had a number of difficulties in the workplace and in a social context. She observed that he was short tempered, had a short fuse, had low tolerance and had animosity towards his co-workers. Socially, she observed that he "stayed within the safety of his family and friends" and was not comfortable outside that environment. She noted that Mr Meeke was uncomfortable even when shopping and his house was like a fortress.
Ms Crookes was treating the applicant at or about the time that he was contemplating a redundancy package. She said that his feelings then were "mixed". On the one hand, the redundancy package offered him some financial security and he was pleased to leave the workplace because of the absence of daily confrontation. On the other hand, he felt shamed and was embarrassed about his behaviour. She noted that embarrassment was a prominent feature throughout her consultations with Mr Meeke.
In terms of the applicant's capacity to undertake work, she thought that he was unemployable and he would virtually be required to work in a sheltered environment, which she thought was implausible. She noted that a change in the time of a tea break at work would cause him upset. She noted that minor events frustrated him and "things have to be perfect for him to be calm".
Ms Crookes adopted her reports which were received into evidence and particularly the last paragraph of a report of 11 September 2001 where she recorded-
"given the history of the previous five years it is most unlikely that any improvement can realistically be expected; in fact, a further deterioration is the most probable outcome.
In view of this it is considered that Bill is unable to work for 8 or more hours per week. The demands of any workplace would be beyond his psychological capabilities and coping strategies".
In cross-examination, Ms Crookes said that Mr Meeke ceased drinking alcohol after he first commenced to consult her and he thereafter made progress, but with some relapses. She thought that his reduction in alcohol was encouraging because alcohol frequently is used by persons with PTSD as a management device. It followed, she said, that if he did reduce or cease drinking altogether it would indicate to her that he was coping with his symptoms.
Ms Crookes also referred to an episode at Crown Casino where Mr Meeke observed Vietnamese people, which caused him distress. He said that reaction was typical of persons who had served in Vietnam, yet she was also aware that he had travelled to Vietnam for a holiday. She explained that the holiday to Vietnam was part of "healing process" where he attempted to "confront the fears". She said the holiday was planned and he had other family members travelled with him. She said observing the Vietnamese people at the Crown Casino was unexpected and caused him to react.
She was also taken to the reports of doctors engaged by the respondent who observed that persons who are irritable did not necessarily suffer from PTSD. She said that part of the diagnosis for PTSD is the extremes in a person's reactions, the frequency and consistency. She said that Mr Meeke classically fitted the diagnosis of a person who does suffer PTSD. She also had a history from the applicant that his mother had observed that, prior to serving in Vietnam, he had not been an irritable or aggressive person and she believed the applicant to be a witness of truth.
Ms Crookes disagreed with opinions expressed elsewhere that the diagnosis of PTSD could only be made many years after service ended. She believed that it was capable of being clinically diagnosed within 12 weeks of the applicant observing atrocities in Vietnam.
Over the 5 years that she has been consulting Mr Meeke, Ms Crookes observed he has fluctuated but on balance she is of the opinion that it is unlikely that there will be any real improvement. She was of the opinion that the applicant was unable to work 8 hours per week and when asked why she had formed that opinion she said that she assumed that she must have been asked by the applicant's solicitor whether in fact he was capable of working more than 8 hours per week. She did have a history of the applicant being capable of working 2 or 3 hours per day when he was engaged in the safety training position but said that capacity was no longer relevant. She said that at September 2001 when she wrote her most recent report the behaviour of Mr Meeke was one of agitation and severe stress and she was then satisfied that he could not work for 8 hours per week. She noted that Mr Meeke would prefer to work but "there are things about him that hold him back".
William Meeke
Mr Meeke was recalled at the conclusion of the evidence of Ms Crookes (who together with Mr Noonan were interposed).
He said that between leaving work in September 1999 and commencement of disability support pension in May 2000 he lived from long service leave payments and other monies paid by his employer. He was also paid a job search allowance by Centrelink.
Whilst he was receiving job search allowance he was required to maintain a diary recording the job applications he had made. He recalled that he applied for employment with Hertz and Avis Rent-a-Car and with Benders Bus Service in Geelong. He applied for the latter job because he holds a heavy-duty licence and a bus licence. He said that he did not obtain interviews with either of those places.
The applicant reaffirmed that he does suffer from headaches, often on a daily basis. There were occasions he said where he took time away from work at Alcoa because of headaches and that all sick leave credits had been exhausted. Indeed, he estimated that in the year prior to ceasing work, he had had between 30 and 40 days away from work because of headaches. He also thought that the headaches were a "serious problem".
Mr Meeke said that his 2 sons left home when they were 18 and 22 years respectively. He said they left because of his temper and not because of his alcohol consumption.
The applicant agreed that he had not mentioned to doctors that he had punched walls, because he was embarrassed. He agreed that Mr Noonan and another union delegate had spoken to him at work about his temper. He said that representatives of Alcoa management had not spoken to him about throwing tools because they were not informed about that behaviour.
Mr Meeke again confirmed that Alcoa were unable to find him another position when the safety training position was reorganised. He said he knew of no employment vacancies available with "Kaal", a company related to Alcoa. Mr Meeke said that he was told by the Industrial Relations Manager that a redundancy package was being offered to him because of his conduct.
Mr Meeke said he asked the Industrial Relations Manager, the surname of whom he could not recall (but he did recall that person's first name as Brian), to put in writing the reasons for offering the package, but his request was refused. He said that the Manager said to him at the time, words to the effect "You know why we are offering you the package. There are not many people here who want you to work for them."
Mr Meeke said that he would be unable to work for 6 or 7 hours per day because of his headaches and said that if his last employment was offered again to him he did not know how many hours per day he would be able to undertake. He said however that he would be prepared to try.
In re-examination, Mr Meeke understood that his headaches were by reason of osteoporosis (an accepted disability) affecting his neck.
Warren Kemp
Dr Kemp gave evidence on the second day of hearing. He provided a report dated 12 December 2001, following a consultation arranged by the applicant's solicitor on 22 November 2001. Dr Kemp is a consultant rheumatologist.
He confirmed the findings upon examination as recorded in his report, namely that both elbow joints were normal, the hip joints and femoral necks were not deformed and there was no tenderness. He found a full range of movement of each hip, but some mild pain on external end range rotation on the right side. He found the knee joints were not deformed or swollen and there was no effusion. Both ankles and subtalar joints were normal, but he noted the applicant had bilateral flat feet with ingrown toenails, but no tenderness. Hand grips and sensation of each hand and arm were normal. He found a mild kypho-scoliosis but sacro-iliac joints were not tender. Cervical spine movement was normal within all ranges but some discomfort at the end of range of flexion. The thoraco-lumbar spine was slightly restricted with some discomfort in the lower back but there was no muscle spasm or tenderness. He obtained a history of the applicant suffering intermittent frontal and occipital headaches.
Dr Kemp concluded in this report:
"In my opinion both knee joints are clinically normal for a man aged 55 years. He may have some minor degenerative changes affecting the knee joints, but there are no objective clinical or radiological features of significant osteoarthrosis and he does not have the criteria for the diagnosis of chondromalacia patellae in either knee at the present time. Although he continues to have some intermittent pain in both hips and knees and the lower back and neck, these symptoms are mild and occur only after walking some distance and cause little disability. In addition, no significant incapacity is found on physical examination."

Dr Kemp then noted that the applicant ceased work in September 1999 "due to nervous symptoms associated with post-traumatic stress disorder and interpersonal problems with other employees and the musculo-skeletal pains were a relatively minor problem". He thought the applicant was fit for suitable light work for 20 hours per week on "physical grounds" however he noted:
"… the main problem is caused by his nervous symptoms and interpersonal problems and it is unlikely that he would be fit for eight hours each week due to the post-traumatic stress disorder. I would consider that his disability for work is caused by his accepted disabilities and the rejected disabilities do not prevent him from working.".
In evidence, Dr Kemp said that there was little wrong with the applicant's back and he noted – referring to x-ray reports he obtained – that radiological examination of 26 November 1999 did not report the presence of lumbar spondylosis.
On physical grounds, he thought the applicant was capable of working up to 20 hours per week however heavy work might precipitate spontaneous fractures because of the presence of osteoporosis.
Dr Kemp said that in his experience, persons with nervous symptoms sometimes amplify their symptoms. He acknowledged that he had examined the applicant on one occasion only and then for approximately one hour. On that occasion he said the applicant did not display any "overt" symptoms. He did not dispute the diagnosis of PTSD.
Dr Kemp thought that the applicant's headaches were probably related to his nervous symptoms, being muscle tension precipitating the headaches. He thought there was little defined in the applicant's cervical spine which might be responsible for headaches and there was no radiological finding of any cervical injury.
In cross-examination, Dr Kemp noted that Dr Oliphant, who presently treats the applicant, found that he was capable of working up to 20 hours per week (T documents page 73). He also thought that the opinion expressed by Dr Stone an occupational physician (page 159) was similar, although he did not agree with his conclusions as to capacity for employment. (In fairness, it appears that Dr Stone has confused the qualification with special rate with a former qualification for invalid pension under the Social Security Act.)
Paul Tomic
Mr Tomic is a rehabilitation counsellor employed by the Commonwealth Rehabilitation Service in Geelong. He has held that position since 1988. He wrote a letter on 8 June 2000 to Mr Adlam, a disability officer with Centrelink in Geelong. That letter is found at page 148 of the T documents. For reasons which he expressed namely "… depression, poor concentration, anger and a very short fuse which can lead to explosive behaviours", that a combination of those factors would "… make it extremely difficult for Bill to seek or maintain open employment."
In evidence, Mr Tomic said that he reached the above conclusions after speaking with Mr Meeke for one and a half hours and after consulting with his doctors. He said he considered whether the applicant was suited for retraining, but thought that having regard to a combination of his physical and psychological problems, it would be difficult for him to obtain employment for any sustained period. He thought the applicant could only work in a position where there was "low pressure" light duties, minimal contact with members of the public and other co-workers and in the presence of a sympathetic manager. He thought that positions involving this criteria were not commonly found. Additionally, he said that it was "one thing to obtain a job – the other side is to maintain it".
In cross-examination, Mr Tomic said that he did not discuss in any detail the applicant's prior employment with Alcoa but he was aware that he had been previously been employed for 26 years. He said he was aware that the applicant had received a redundancy payment and he had thought that the applicant had been employed as a carpenter throughout the period of his employment at Alcoa. Whilst acknowledging that there is widespread unemployment in Geelong he thought that the applicant's work skills as a carpenter would not necessarily cause him to have difficulty locating work.
Patricia Ann Meeke
Mrs Meeke is the wife of the applicant. She confirmed that she and Mr Meeke were married in October 1973 and had known each other for 2 years previously. She said her husband worked with Alcoa throughout their marriage.
Mrs Meeke said that her husband was first offered a package when he injured his back as a carpenter, however they agreed that he would not accept it because he would not be able to secure work elsewhere. She said he was again offered a package when he was employed as cleaner, but again they decided not to accept it. When he suffered the spontaneous fracture of his left hip whilst engaged in the safety induction job, she realised that he was only working a few hours per day, he was bad tempered and she and the children were unable to cope with him. She thought that he was then better off not working and she did not resist Mr Meeke agreeing to accept the package.
Mrs Meeke said she was aware of her husband's reputation at the workplace and his bad temper. She said there were social occasions at Alcoa where other workmates would ask her how she was able to cope with him. At home she said that he is frequently bad tempered and he would yell and scream. She said that she and the children would then "run for cover". She said she has never been assaulted by him, but she is aware that he has punched holes in the walls. She recalled an occasion where she noticed that a painting had been moved, but on examination it was covering a hole that he had punched in a wall. Presently, if the adult children come to visit her and notice that his car is parked in the driveway they do not stop but drive away.
Mrs Meeke said that she was aware that her husband had attempted to obtain employment since leaving Alcoa. She was relieved that he did not obtain employment at the rental car offices or with the bus company because of his road rage. She said that his conduct as a motor car driver is so extreme that as a passenger she sometimes feels as if she will vomit. She said that there are occasions when she is unable to reverse her car out of the driveway at home without him standing beside her and giving instructions.
Mrs Meeke said that she was aware that her husband had sought employment with her brother-in-law's furniture manufacturing business, however she did not want him to commence that work because she knew that there would be conflict. She thought that her husband was only capable of working if he was not under pressure, was able to work on his own and did not have someone "telling him what to do".
At home she said that she and her husband occupy separate rooms. She said they do not watch television together because if she speaks to him he complains that the program is being interrupted. She will no longer shop with him because it is "embarrassing".

In cross-examination, she said that it was a relief when her husband ceased work with Alcoa however she wondered later whether it would have been better off – for her – for him to have stayed at work during the day. She described her husband as having a "Dr Jekyl and Mr Hyde" personality. She said that she is frightened as a passenger in a motor vehicle being driven by him because of his road rage. She said that he frequently exclaims that other people cannot drive properly and he is frequently agitated, he screams at other drivers, he overtakes or menacingly stops behind persons.
Mrs Meeke was aware of a Proof of Evidence completed by Mr Virtue, one of the managers currently employed by Alcoa. She disputed the contents of it and said that her husband's former position as a carpenter was not made redundant nor was his position as a cleaner made redundant. She said her husband was moved between jobs at Alcoa because of his conduct in the workplace.
In re-examination, Mrs Meeke said that she travelled with her husband when he attended the interview with Dr Kenny as arranged by the respondent. She said that her husband was angry after the consultation, frequently exclaiming that he could not understand how the doctor could form an opinion when the examination was of short duration. She said that he drove home after the interview erratically, frequently overtaking other cars and was angry with other drivers. She then said that she would not ever travel with him to another psychiatrist's appointment.
Additionally, she said she would not attend appointments because he frequently forgets detail or "glosses over" issues, yet if she prompts or reminds him of detail he becomes upset "and it goes on for days at home".
Brian Virtue
Mr Virtue provided a Proof of Evidence dated 20 March 2002 and it was received into evidence. He is the "HR Business Partner" at Alcoa at its Anglesea office. Between 1996 and 2001, he was employed by Alcoa at Point Henry which was the location where the applicant was employed.
Mr Virtue said that the positions previously held by the applicant as a carpenter, as a cleaner and in the maintenance/tool depot were eliminated when contract employees were engaged and on each of these occasions the applicant was offered a redundancy package. He said that the last position worked by Mr Meeke as a safety induction officer was intended only to be temporary until such time as touch screen computers were introduced.
Mr Virtue said that the applicant had expressed interest in being paid a redundancy package however if he had indicated to Alcoa that he wanted to continue to work, attempts would have been made to find an alternative position for him.
In terms of the applicant's reputation, he said he "left a bit to be desired". He was known as having a short fuse however there were no "formal" complaints made about him. He was aware that his conduct in the tool workshop was "less than acceptable" but he did not know of any episode of the applicant throwing tools however he said that equally there would be occasions where conduct of this type would be "covered up".
Mr Virtue agreed that the applicant's conduct in the workplace was a factor in him being offered a redundancy package but equally he said the position that he had held had been made redundant.
In cross-examination, Mr Virtue said that Mr Noonan would not have been "making up" complaints that he received. He said that had he been informed about the applicant throwing tools at other workmates, he would have intervened and disciplinary procedures would have been invoked.
Mr Virtue said that he had heard claims of the applicant being angry, irritable, stressed and short fused, however he found him to be "pleasant" to talk with. Nonetheless, he said that it was possible that the applicant's reputation was a reason for him not being offered the opportunity to return to the maintenance workshop after the safety induction job was made redundant. He said the applicant had applied for other jobs at Alcoa and had been interviewed, but had not been selected. He said that persons who show "strong team tendencies" improve their chances of being employed and it was the policy of Alcoa that there were to be no enforced redundancies. He said that had he not expressed interest in accepting a redundancy package that "we would fit him in somewhere".
In re-examination, Mr Virtue said that Mr Meeke was considered for a position in the payroll department but because he did not have "sufficiently strong clerical background" he was not selected.
Barrie Kenny
Dr Kenny is a consultant psychiatrist who examined Mr Meeke at the request of the respondent on 27 April 2001 and provided a report 3 May 2001.
He concluded that the applicant was at least capable of working in a full time basis until 1999, when he then accepted a redundancy package.
In his report Dr Kenny said:
"I always have some reservations in this sort of situation though, about the extent to which the moodiness, irritability, irascibility et cetera is related to the post-traumatic stress disorder versus the person's basic personality."

Nonetheless, he accepted that Mr Meeke did have a "significant degree of post-traumatic stress disorder".

In cross-examination, Dr Kenny said that he was aware of the report of Ms Crookes, the psychologist. When asked to distinguish between his opinion of the applicant being "unemployable" as opposed to being "unfit for any employment", Dr Kenny explained that persons would be reluctant to employ Mr Meeke.
William Cooper
Dr Cooper is a specialist occupation and rehabilitation physician who examined Mr Meeke at the request of the respondent on 24 May 2001 and provided a report of the same date. It was his opinion that the applicant – given his physical restrictions – was capable of working for up to 20 hours per week. When asked whether the accepted disabilities alone prevented him from working more than 8 hours per week, Dr Cooper reported:
"I am of the opinion that as a whole person the level of his depression within the post-traumatic stress disorder is such that he would be unable from the nervous point of view to sustain more than 20 hours per week."

In cross-examination, Dr Cooper said that he thought the applicant was "over anxious" and it was relevant to consider the ability of the applicant to "get on with others". It was his opinion, that there was some light duty occupations in which the applicant could be employed, namely light seated process or bench assembly type work, inspection, machine operation or clerical work.
Conclusion And Reasons For Decision
Entitlement to special rate pension is determined by s. 24(1) and (2) of the Veterans Entitlements Act ("the Act") which reads as follows:
"(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)     the veteran is, because he or she has suffered or is suffering from pulmonary tuberculosis, receiving or entitled to receive a pension at the general rate; and
(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
(d)section 25 does not apply to the veteran.
(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."

It is not in dispute that the applicant does exceed a degree of incapacity of 70% and accordingly s. 24(1)(a) is satisfied. The applicant has not yet achieved 65 years of age and he is a person who has made a claim for increased pension under s. 15. The respondent concedes that the applicant has suffered a loss of remunerative income and part of sub-paragraphs (1)(b) and (c) are satisfied.
Whilst claims for acceptance of the condition of PTSD or pensions as a consequence of that condition are not uncommon at this Tribunal, it is rare in my experience, to become aware of a veteran who has suffered such profound consequences of PTSD, as was learnt of the applicant in these proceedings.
I was impressed with the evidence of Dr Kemp, who presented as a competent witness and gave a balanced assessment of Mr Meeke. Dr Kemp said there are few physical restrictions applicable to the applicant which would prevent him undertaking employment. Certainly he would be fit for lighter work only and then for approximately 20 hours per week, but with regard to the physical injuries only. That opinion is equally held by Dr Cooper.
However, the evidence in relation to the PTSD suffered by the applicant is overwhelming and I have no doubt that that condition, alone, is responsible for total incapacity. In order to comply with the language of s. 24, I am satisfied and find as a fact that the incapacity of the applicant by reason of his war-caused injuries alone prevent him from continuing to undertake remunerative work that he was undertaking. Further, the incapacity renders him incapable of undertaking remunerative work for periods aggregating more than 8 hours per week and by reason of that incapacity (consistent with the concession made by the respondent which I agree were properly made) the applicant is suffering a loss of salary or wages or earnings that he would not be suffering were he free of that incapacity. On the evidence of Drs Kemp, the physical injuries would not be responsible for incapacity.
In so far as s 24(2) is concerned, I am not satisfied that the veteran has ceased to engage in remunerative work for reasons other than his incapacity from war-caused injuries. Mr Meeke did apply for redundancy, but I am satisfied he had then reached a stage where his PTSD realistically rendered him incapacitated. A review of his employment history demonstrates a progressive reduction in his ability to cope, and consequently, his capacity to work.
In reaching these conclusions, I am impressed by the evidence of the applicant, the evidence of Ms Crookes and the documents read.
In the absence of any material which points to the applicant having a similar personality prior to Vietnam to the extent exhibited since he has returned, I would dismiss the suggestion of Dr Kenny that the applicant has in part exhibited features of a personality unaffected by his experience in Vietnam.
It is clear from the evidence that the applicant is a very difficult person to both live with and to have worked with. At a domestic level, his children prematurely left home and will now not visit the home if his car is observed in the driveway. He is frequently angry, irritable and domineering. He has become reclusive and isolated. He expects perfection from others, but cannot achieve it himself. He consumes alcohol to excess and is violent.
In the workplace, it is surprising that he was able to maintain employment with Alcoa for 26 years. Perhaps the size of the Alcoa and its structure permitted managers not having an intimate knowledge of his extreme behaviour which, in a smaller workplace would almost certainly have resulted in cessation of employment. He frequently demonstrated behaviour of a person who was obviously intolerant and obsessive. He attempted to assault workmates by throwing tools at them and was obviously disliked (refer photographs and associated comments placed on noticeboards and the comment made to him by another workmate where it was said that bullets would be fired into his coffin).
I acknowledge the evidence of Mr Virtue that employment opportunities for Mr Meeke were limited in 1999, but I find as a fact that Alcoa were, on the evidence heard from Mr Meeke and from Mr Noonan, not unhappy about him electing to accept a redundancy package. Whilst Mr Virtue professed little intimate detail of the applicant's erratic behaviour, there was nothing which demonstrated any belief on the apart of Alcoa that Mr Meeke was a valued and respected member of their workforce who they would have otherwise sought to retain. For the purposes of s.28 of the Act, particularly sub-paragraph (c), I am satisfied Mr Meeke has been, since September 1999, incapable of undertaking remunerative work.
The obsessive nature of Mr Meeke's personality was again demonstrated when he attempted to work for his wife's brother-in-law, but left on the second day of employment having attempted to direct his new employer about certain safety requirements at that workplace. The conflict which must have then occurred – despite the short period of employment – would seemingly have been extreme, because apparently the respective families no longer communicate. I accept that Mr Meeke did seek employment with rental car agencies and with a bus company in Geelong but fortunately – having heard the evidence of his road rage – that employment was not obtained. Mr Tomic said that despite poor employment opportunities in Geelong, the applicant's qualifications as a carpenter would not prevent him obtaining employment. Perhaps this is so, however, I would have thought the applicant's age and not having worked in carpentry would suggest otherwise. Realistically, even if Mr Meeke did obtain employment - any employment - no person could express any confidence that it would be sustained by him or that he would be tolerated by a potential employer.
Ms Crookes consulted with the applicant on 50 occasions as at 7 June 2000 (refer page 2 of her report of 8 June 2000) and on a number of occasions subsequently. She has observed the applicant in a clinical environment and is well qualified to express the opinions that she did by her reports. I therefore attach considerable weight to her opinions than the medico legal specialists, who gave evidence in these proceedings, who examined the applicant each on one occasion and then for a limited duration.
I was impressed with the evidence of Ms Crookes who provided a balanced and logical prognosis.
Additionally, I thought that the applicant did not seek to embellish or exaggerate his symptoms. Indeed, were it not for the persistence in the questioning of him, a considerable amount of the detail learned of him would never have been obtained.
I should also indicate in conclusion that this is another application where despite the best endeavours of the Tribunal to conduct these proceedings informally, that a hearing was convened where many persons were called to give evidence over 2 days. The determination of veterans' applications – particularly where the Repatriation Commission accepts that a veteran has PTSD caused by service – particularly by service in Vietnam – compels, in my view, an approach to resolution by either mediation or a structured informal conference where a veteran and the Commission may attempt resolution informally, without aggressive and sometimes robust adversarial practices. There have been some mediation conferences recently conducted at the Tribunal where resolution was achieved despite the issue giving rise to the dispute being the connection between service and injury and consequently, pension entitlement. It is hoped this trend will continue.
In all of the circumstances, and for the above reasons, I am satisfied that the decision under review should be set aside and the decision in so far as it concerns assessment of pension should be set aside. It is decided that at all relevant times Mr Meeke has been entitled to special rate pension.
I certify that the 116 preceding paragraphs are a true copy of the reasons for the decision herein of Mr J. Handley, Senior Member
Signed:         Katherine Navarro......................................
  Associate
Date/s of Hearing  5 March and 10 April 2002
Date of Decision  31 October 2002
Counsel for the Applicant        Mr Thompson
Solicitor for the Applicant         Geoffrey Tobin
Counsel for the Respondent    Mr Purcell
Solicitor for the Respondent    Department of Veterans' Affairs