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Administrative Appeals Tribunal of Australia |
Last Updated: 1 August 2003
ADMINISTRATIVE APPEALS TRIBUNAL )
VETERANS' APPEALS DIVISION |
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Re |
MARIE MCCARTHY |
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And |
REPATRIATION COMMISSION |
Tribunal |
Dr M E Thorpe, Member |
Decision
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The Tribunal sets aside the decision under review and in its stead decides that the death of the veteran, Mr K. McCarthy, was war-caused and that the Applicant is entitled to a war widow's pension with effect from 4 April 2001. |
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VETERANS' AFFAIRS - War Widow's pension - Adducing cause of death - Whether a Statement of Principles instrument allows for more than one kind of death
LEGISLATION
Veterans' Entitlement Act 1986 - section 8
Statement of Principles concerning Malignant Neoplasm of the Prostate, No 84 of 1999
AUTHORITIES
Repatriation Commission v Smith (1987) 15 FCR 327 at 335
Langley v Repatriation Commission (1993) 30 ALD 8 at 18
Doolette v Repatriation Commission (1990) 21 ALD 489 at 492
Benjamin v Repatriation Commission (2001) 70 ALD 622 at 634
Etheridge v Repatriation Commission (1998) 51 ALD 175
Repatriation Commission v Bey (1997) 79 FCR 364
Byrnes v Repatriation Commission (1993) 177 CLR 564
Repatriation Commission v Deledio (1998) 83 FCR 82
East v Repatriation Commission (1987) 16 FCR 517
Repatriation Commission v Bull (2001) 66 ALD 271
Bushell v Repatriation Commission (1992) 175 CLR 408
31 July 2003 |
Dr M E Thorpe, Member |
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1. This is an application to the Administrative Appeals Tribunal ("the Tribunal") by Mrs Marie McCarthy ("the Applicant") for the review of a decision of the Repatriation Commission dated 23 July 2001 which was affirmed by the Veterans' Review Board ("the VRB") on 28 March 2002, that Mr Keith McCarthy's (the "Veteran") death was not war-caused within the meaning of section 8 of the Veterans' Entitlement Act 1986 ("the Act").
2. The Applicant gave oral evidence at the hearing in this matter in Sydney on 22 May 2003. Oral evidence was also given by Dr Burns, Respiratory Physician, and Dr Breslin, Thoracic Physician. Mr Mark Vincent represented the Applicant and Mr Jim Marsh from the Department of Veterans' Affairs represented the Repatriation Commission ("the Respondent").
3. The following documents were placed in evidence before the Tribunal:
FINDINGS OF FACT
4. The Tribunal finds the following:
* that the Applicant is a "dependant" of the deceased Veteran as defined in section 11(i) of the Act;
* that she was the Veteran's de jure wife - a marriage certificate was not available. The Applicant stated in the hearing that the date of marriage was 27 November 1947;
* the Veteran served in the Australian Army ("the Army") from 2 March 1942 to 11 September 1942; and in the Royal Australian Air Force from 12 September 1942 to 19 October 1945;
* the Applicant lodged a valid claim on 2 May 2002 (T1);
* the standard of proof in relation to whether the Veteran's death was war-caused is that of reasonable hypothesis (subsections 120(1) and (3) of the Act). The standard in relation to cause of death is that of reasonable satisfaction (subsection 120(4) of the Act). This standard equates to acceptance on the balance of probabilities as stated in Repatriation Commission v Smith (1987) 15 FCR 327 at 335.
5. The cause of the Veteran's death was certified at T12, p67:
(a) Carcinoma of Prostate (Advanced) - Years
(b) Metastases Carcinoma Prostate to Bones - Years
(c) Deep Vein Thrombosis Right Leg - Months
6. The Veteran had the accepted disability of chronic bronchitis. The issue before the Tribunal was whether the chronic bronchitis contributed to or caused his death from pneumonia. The Applicant contended that the chronic bronchitis led to the development of pneumonia that caused the death of the Veteran.
7. The Respondent argues that the cause of death was malignant neoplasm of the prostate and that there was no factor linking either smoking or chronic bronchitis to that disease.. The Respondent therefore contends that the relevant Statement of Principles ("SoP") is Instrument No 84 of 1999 (SoP 84/1999) dealing with malignant neoplasm of the prostate.
8. The Applicant submits that the Veteran's chronic bronchitis contributed to the pneumonia present at the time of the Veteran's death, and that that pneumonia was a material contribution to his death.
EVIDENCE OF THE APPLICANT
9. The Applicant confirmed her date of marriage as 27 November 1947. She stated that her husband gave up smoking in 1974 but that he still had a cough over the years. The Applicant estimated that the prostate cancer was diagnosed in about 1994. She confirmed that the Veteran was admitted to Warners Bay Hospital on 30 October 2000, very weak but still able to walk, and that he died on 5 December 2000.
10. Some information was provided by the Applicant about the Veteran's breathing in the last week of his life. It was apparent to the Tribunal that his breathing had become laboured and that material described as " grey matter" (T18, p93) was coming to his mouth on exhaling.
11. The Respondent accepted that the Veteran was in some form of respiratory distress. The Tribunal acknowledges that Mr Vincent did not pursue this line of questioning further as it was causing the Applicant some distress.
12. The Respondent questioned the Applicant about a lifestyle questionnaire that the Veteran had completed (T8). The Applicant confirmed that the Veteran had ceased swimming due to a hearing problem and that he had been playing sport two or three times a week. She conceded that he was on no particular medication for his bronchitis.
DOCUMENTARY MEDICAL EVIDENCE
13. Dr Burns, in his report dated 2 December 2002 (Exhibit A2) was of the opinion that, as the Veteran's FEV1/VC ratio was normal (T7, p30), his condition was therefore simple chronic bronchitis rather than chronic obstructive bronchitis. He went on to state that people with chronic bronchitis are readily susceptible to recurrent infections such as bronchitis and pneumonia. Dr Burns considered it likely that the Veteran did die of pneumonia, but he was uncertain whether it was orthostatic pneumonia or simple pneumonia, and admitted that, in his experience, the type of pneumonia was usually an autopsy finding. On the facts, Dr Burns considered that it was more likely that the Veteran had suffered from simple pneumonia and that he was predisposed to this from his chronic bronchitis.
14. Dr Breslin, in his report dated 21 February 2003 (Exhibit R3) considered that the Veteran had quite mild chronic bronchitis. Dr Breslin was of the opinion that the Veteran had developed orthostatic pneumonia as a terminal event and that it is an almost invariable terminal event in widespread malignancy where the death occurs because of the malignancy. Dr Breslin stated that there was no evidence that the chronic bronchitis had made a significant contribution to the Veteran's death, and that his orthostatic pneumonia was due to his debility and cachexia and not to his chronic bronchitis. In summary, he submitted that the pneumonia was an accompanying terminal event.
CONCURRENT MEDICAL EVIDENCE
15. Dr Burns stated that he believed that the Veteran had died because he had cancer of the prostate, but that the terminal event in his life, the mechanism of death, was pneumonia. He could not therefore understand why that was not put on the Veteran's death certificate. He believed the type of pneumonia that the Veteran had had hastened his death by a few days.
16. Dr Breslin confirmed his opinion that the chronic bronchitis the Veteran suffered from was very mild. He proposed that, as the Veteran was in hospital for six weeks before he died, he had developed a hospital acquired pneumonia, and not a simple pneumonia.. Dr Breslin concluded that the Veteran was in the terminal phase of his illness at this time and was not coughing effectively because he was debilitated, sick and dying of malignancy. He considered that the Veteran's mouth and airways would have been colonised anyway, whether or not he had chronic bronchitis from his debility, and the fact that he did develop his orthostatic pneumonia right at the end illustrated that it was a hospital acquired event.
17. Dr Burns drew Dr Breslin's attention to the clinical notes of GP Dr Darroch, of Swansea Medical Centre. The clinical notes describe the Veteran as having a daily cough, particularly in the morning and a shortness of breath on moderate exertion. They also state that he had antibiotics about once a year. Dr Burns concluded that there was therefore documentary evidence of chronic bronchitis. Dr Breslin did not agree.
18. The Tribunal asked Dr Burns to theorise how the Veteran's life may have been extended if he had not had chronic bronchitis. Dr Burns replied with the following:
"Well, I think he was going to die fairly quickly but ... It was going to be some other mechanism other than just the presence of cancer. ... He could have had a number of mechanisms that would have carried him off but none of them would have occurred if he hadn't had advanced cancer ... but I believe that ... it was pneumonia that carried him off ...".
19. Dr Breslin contended that people die of cancer because the cancer cells take over and consume the resources of the body, not because they contract anything significant like pneumonia. He stated that the Veteran was dying of his prostate cancer at the time of his admission on 31 October, before there was any evidence of pneumonia. The pneumonia occurred right at the end and there was only evidence of it in the last few days. The Veteran was considered to be terminal and not for resuscitation, and he was considered so before he contracted pneumonia.
20. Mr Vincent questioned Dr Burns on the degree by which the chronic bronchitis might have shortened the Veteran's life. Dr Burns replied: "I believe the mechanism of his death on that day was pneumonia in a debilitated person. If he hadn't developed the pneumonia then he might have died from something else within the next few days ... - it was a matter of days ..."
21. Dr Breslin agreed with Dr Burns that the Veteran would have died within hours to a day or two, and stated that the Veteran would have then died from prostate cancer. He did not believe that the Veteran had to have to pneumonia to die, but that he could have died by another mechanism. The mechanism he proposed was inanition.
22. Mr Vincent questioned Dr Breslin on his comment that "the chronic bronchitis was a by-stander in this man's pneumonia and not the primary reason for his developing pneumonia.": Dr Breslin replied, stating:
"... chronic bronchitis predisposes you to pneumonia but this man didn't have to have chronic bronchitis to get this pneumonia. He was colonised, I'm sure, by organisms that he acquired during the debilitating six weeks that he was in hospital before he died and any contribution from the chronic bronchitis towards the pneumonia I consider to be de minimus".
23. The Respondent questioned Dr Breslin about the symptoms of orthostatic pneumonia and whether a moist chest and an intermittent cough, suffered by the Veteran in the final days, are consistent with orthostatic pneumonia. Dr Breslin replied "They're not diagnostic but they're consistent."
24. The Respondent then questioned Dr Burns. Dr Burns refused to accept Dr Darroch's notes as they suggested that there weren't any recurrent respiratory infections. Dr Burns refused to accept the notes because Dr Darroch had also stated in them that the Veteran was receiving antibiotics once a year. Dr Burns asserted that most normal people don't receive antibiotics once a year and therefore the Veteran must have been subject to recurrent infections which did require antibiotics.
25. Mr Vincent questioned Dr Burns on the differences between orthostatic and simple pneumonia. Dr Burns explained that orthostatic pneumonia involved the pooling of secretions at the back of the lungs. He pointed out that the Veteran had secretions in the bronchial tree and that he believed that there was an infection in the lung predisposed to by an inability to cough up secretions and by the presence of organisms in the lung. He stated that there was reasonable clinical evidence of pneumonia, and not just a pooling of secretions. Mr Vincent asked Dr Burns about the time frame for the development of orthostatic pneumonia. Dr Burns informed Mr Vincent that in his experience orthostatic pneumonia was something that evolved over a period of days, rather than minutes or hours.
SUBMISSIONS
26. Mr Vincent contended that it was clear that the operative cause of the Veteran's death was pneumonia. Mr Vincent stated that the pneumonia was present for a matter of days before death and that its contribution was no longer de minimus, as was proposed by Dr Breslin. Mr Vincent had anticipated discussion about "acceleration" and referred to Langley v Repatriation Commission (1993) 30 ALD 8 and Doolette v Repatriation Commission (1990) 21 ALD 489. He argued that there had been an acceleration by the pneumonia and admitted that this was only for a period of days. He quoted the following authorities. Langley at page 18:
"But a veteran may contract a disease which on the medical evidence he would likely to have contracted in any event; and it may be that because of his war service the contraction of the disease has been accelerated. The period of the acceleration may be little or considerable."
O'Louglin J. in Doolette at page 492:
" ... if death is hastened because of the accelerated progress of a disease, which acceleration was itself caused by a war-caused condition, the proper conclusion would be that death was attributable to war service ..."
27. Mr Vincent stated that there existed a difference in views between Dr Burns and Dr Breslin as to the type of pneumonia suffered by the Veteran. He contended that Dr Burns had offered a plausible explanation why it would be broncho-pneumonia and that the broncho-pneumonia was consequent to the chronic bronchitis, a war-caused disability. He stated that Dr Burns had in fact offered a possibility of causation sufficient to support a reasonable hypothesis. Mr Vincent noted that Dr Breslin was of the alternative view that the chronic bronchitis made no meaningful contribution at all to either the terminal pneumonia nor to the Veteran's death.
28. The Respondent submitted that the death certificate (T12, p67) made no mention of pneumonia or chronic bronchitis as the cause of death and so contended that there was no argument that the cause of death was metastatic carcinoma of the prostate. The Respondent accepted that the terminal event within that condition of metastatic carcinoma was pneumonia, but stated that the pneumonia was merely the inevitable result of the terminal stages of the illness.
29. The Respondent, in reference to the proposed contribution to death by the chronic bronchitis and subsequent pneumonia, contended that the question of the "kind of death" suffered by the late Veteran fell for determination under the reasonable satisfaction test under subsection 120(4) of the Act, that is, the ordinary civil standard. The Respondent relied for these propositions on the decision of the Full Federal Court in Benjamin v Repatriation Commission (2001) 70 ALD 622 at page 634:
"55 The first question for the tribunal will be how to characterise the psychiatric problems exhibited by the veteran. If the tribunal is satisfied that the symptoms constitute an injury or disease, the second question will be whether there is an SoP in force in respect of the disease. The diagnosis of that disease, and the determination of whether or not there is an SoP in force in respect of that kind of disease, falls for determination according to the standard of proof laid down in s 120(4). The characterisation of a disease (or injury or death in an appropriate case), for the purposes of determining whether or not an SoP is in force in respect of that kind of disease (or injury or death), is separate from the question of whether a claim relates to the operational service rendered by a veteran within s 120(1). The standard of proof laid down by s 120(1) has no application to the former question."
DETERMINATION OF KIND OF DEATH
30. The Respondent submitted that the kind of death was clearly and uniquely carcinoma of the prostate or malignant neoplasm of the prostate as described in SoP 84/1999. The SoP defines death from malignant neoplasm of the prostate in paragraph eight:
"death from malignant neoplasm of the prostate" in relation to a person includes death from a terminal event or condition that was contributed to by the person's malignant neoplasm of the prostate;
"terminal event" means the proximate or ultimate cause of death and includes:
a) pneumonia; ...
31. The Respondent touched briefly on some of the legislative history, which led to the introduction of that definition of "terminal event". The Respondent referred to Etheridge v Repatriation Commission (1998) 51 ALD 175. In that case the terminal event was pneumonia and the argument there was simply a legal one that the pneumonia was caused indirectly by an alcoholism habit. The Commission in Etheridge accepted that the alcoholism was war-caused but it also argued that the Tribunal's task was to consider the terminal event, namely the pneumonia, in the context of the SoP of alcoholism. The Tribunal decided that because of the way the SoPs were then framed, there was no SoP for pneumonia, so it was possible to look at pneumonia at large. It also stated that pneumonia did not have to be addressed in the context of the SoP for the condition that caused it, i.e. in the context of the SoP for alcohol dependence or abuse.
32. The Respondent concluded from Etheridge that the Repatriation Medical Authority obviously took issue with that decision and amended the SoPs accordingly. He submitted that the amended SoP for ischaemic heart disease, and the explanatory note that has subsequently been tabled (Exhibit R4), makes it quite clear that the purpose of the amendments was to avoid the situation that occurred in Etheridge where the cause of death was decided outside of the SoP regime.
33. The Respondent continued by stating at the hearing:
"So if the Tribunal is reasonably satisfied that the kind of death here was metastatic carcinoma, that includes pneumonia that was caused by that condition and therefore that is the applicable SoP and that applicable SoP cannot be met."
34. The Respondent contended that the chronic bronchitis made no contribution at all to the Veteran's death. He drew attention to the fact that the Veteran was under no medication for chronic bronchitis in the terminal stages of his illness, nor in the preceding years except for that one off, isolated incident. The Respondent also noted that Dr Breslin had indicated that the Veteran's spirometry was an extremely good result.
35. The Respondent contended that the Clinical Notes from Warners Bay Private Hospital (T15) indicated no suggestion of any concern about chronic bronchitis. He stated that it was clear that the Veteran was in the final palliative stages of his illness. The Respondent pointed out that Dr Breslin had formed the opinion that the bronchitis was of no consequence, no significance at all and was nothing more than a by-stander in terms of the fatal illness.
36. The Respondent considered Dr Burns' offer of a reasonable hypothesis of causation between the chronic bronchitis and the Veteran's death. The Respondent deduced that for the hypothesis to be reasonable, the hypothesis must find some support in the material.
37. Exploring the meaning of "reasonable hypothesis' further, the Respondent considered East v Repatriation Commission (1987) 16 FCR 517. The Respondent submitted that the Full Court in East stated that a hypothesis requires more than a possibility - it requires evidence pointing to it. The Respondent also referred to Repatriation Commission v Bey (1997) 79 FCR 364, where the Federal Court affirmed that a reasonable hypothesis involves more than a mere possibility and should be pointed to by the facts, even though not proved upon the balance of probabilities. The Respondent submitted that in accordance with Repatriation Commission v Bull (2001) 66 ALD 271, the Tribunal must consider the whole of the material and not just part of it in forming its opinion as to reasonableness.
38. The Respondent contended that the hypothesis Dr Burns had proposed was "not reasonable because of the absence of material pointing to it even though it might not be able to be described as impossible, tenuous or ridiculous".
39. Mr Vincent in reply submitted that because of the enabling legislation there can be more than one kind of death. He opposed the Respondent's proposal that the pneumonia was effectively locked into SoP 84/1999 and that that Instrument alone did not provide for more than one kind of death.
40. Mr Vincent contended that the explanatory notes to SoP 84/1999 (Exhibit R4) showed that the pneumonia was not locked into that SoP in two ways:
(i) Clause six of the explanatory notes makes the comment "... death from a specific injury or disease includes terminal events or conditions caused by or contributed to by that injury or disease", meaning that there can be more than one kind of death; and,
(ii) Mr Vincent disputed the Respondent's characterisation of the explanatory notes for SoP Instrument No 37 of 1998 and stated that it simply clarified the position and did not over-ride or overcome Etheridge's case.
41. Mr Vincent submitted that the explanatory notes provided for a contribution ie. not a sole cause. He drew the Tribunal's attention to clause eight in SoP 84/1999 and the definition of "death from malignant neoplasm of the prostate" which, he pointed out, "... includes death from a terminal event or condition that was contributed to by the person's malignant neoplasm of the prostate".. Mr Vincent concluded that this allows the possibility that there may be other things contributing to death.
42. In response to the Respondent's reference to the Bey case, Mr Vincent referred to the High Court decision in Byrnes v Repatriation Commission (1993) 177 CLR 564. There, the High Court noted that the admonition to look at the whole of the material that comes from Bushell v Repatriation Commission (1992) 175 CLR 408 was in a circumstance where the hypothesis relied on the whole of the material.
FINDINGS AND CONSIDERATIONS OF THE ISSUES
43. The Tribunal is satisfied on the balance of probabilities that pneumonia was present at the time of death of the Veteran. The Tribunal is also satisfied that the pneumonia was present over a matter of a few days rather than hours or minutes. It notes Mr Vincent's argument that the pneumonia was sufficient to hasten death, because of the accelerated progress of the disease, and that this acceleration (aggravation) was sufficient to afford a contribution by the pneumonia to the terminal event (death). It also notes that the Respondent did not dispute the duration of the pneumonia, but rather the cause basis of the hypothesis.
44. The Tribunal finds that the Applicant had an accepted war disability of chronic bronchitis and that the relevant SoP for that disability is Instrument No 73 of 1997 (SoP 73/1997).
45. The Tribunal notes that Dr Burns' evidence was that the pneumonia was a broncho-pneumonia consequent to the chronic bronchitis and thus was the basis of a reasonable hypothesis that the pneumonia contributed to the Veteran's death. Dr Breslin took another view, namely the pneumonia was an orthostatic pneumonia, acquired as a hospital infection and not related to the chronic bronchitis.
46. The Tribunal finds that there is sufficient material before it that points to a hypothesis connecting death with chronic bronchitis.
47. The Tribunal notes that, as opposed to Etheridge, there is a SoP in place here for chronic bronchitis (SoP 73/1997) to be linked with pneumonia, and that the question here is whether or not the hypothesis proposed by Dr Burns is reasonable.
48. Both parties agree that the Veteran died because he had cancer of the prostate. If he had not had cancer he may not have died. Both parties agree he had pneumonia as a terminal event. The Tribunal notes this diagnosis was not included on the death certificate and the attending Geriatrician's offer to apply to have "pneumonia" included. Nothing hangs on the omission of pneumonia from the death certificate, as it is agreed by the parties that it was present at the time of death.
49. The Tribunal understands that, in summary, Mr Vincent argues that the pneumonia accelerated death from cancer of the prostate and that there can be more than one kind of death within an SoP, and that the Respondent contends that pneumonia was encompassed by the "terminal event" provision of the SoP for malignant neoplasm of the prostate.
50. The Tribunal notes that there are two SoPs before it, namely for chronic bronchitis (SoP 73/1997) and for malignant neoplasm of the prostate (SoP 84/1999) and that pneumonia must be considered under both to decide by which disease it was caused.
51. The Tribunal does not find that SoP Instrument No 37 of 1998 (concerning ischaemic heart disease) when applied to SoP 84/1999 prevents a contribution by another disease to death. In other words, the Tribunal is satisfied that SoP 84/1999 allows for more than one kind of death.
52. The Tribunal finds that the Veteran satisfied the requirements of SoP 84/1999, including death from pneumonia as part of that SoP. As the Veteran's malignant neoplasm of the prostate was not related to war service, there is no entitlement to a war pension if this is found to be the cause of his death.
53. The Tribunal finds that the Veteran had pneumonia as a terminal event. Looking at all the material, the Tribunal notes that there are different diagnoses for the type of pneumonia. These diagnoses are clinical diagnoses as there are no x-rays or other investigations to assist the pathological basis of the pneumonia. The Veteran may have had orthostatic pneumonia, but at the same time it is not possible to say that he did not have broncho-pneumonia. Although Dr Burns considered the Veteran to have had broncho-pneumonia, based on all of the material it is not possible to know with certainty the type of pneumonia.
54. The Tribunal considers it reasonable that the Veteran had broncho-pneumonia as a terminal event. The pneumonia was only present for a matter of days, but sufficient to satisfy the requirement for acceleration of death - this is not contested.
55. The source of the pneumonia could have been stasis (hypostatic) and it could also have been from the chronic bronchitis. This is a matter of opinion between doctors, with no certain way of knowing. The Tribunal therefore considers it was reasonable to attribute the pneumonia to the chronic bronchitis.
56. Moving on to consider step four of the course a tribunal is to take in respect of the death of a person related to service, as laid down by the Federal Court in Repatriation Commission v Deledio (1998) 83 FCR 82. The Tribunal has to decide whether it is satisfied beyond reasonable doubt that the Veteran's death did not arise from a war-caused injury or disease. The Tribunal determines that the death was due to malignant neoplasm of the prostate, a non-caused war injury. The Tribunal also determines that there may be more than one cause of death and that, in this instant, it is not satisfied beyond reasonable doubt that the pneumonia subsequent to the Veteran's chronic bronchitis, which was a war-caused disease, did not accelerate (contribute to) his death.
DETERMINATION
57. The Tribunal sets aside the decision under review and in its stead decides that the death of the Veteran was war-caused and that the Applicant is entitled to a war widow's pension with effect from 4 April 2001.
I certify that the 57 preceding paragraphs are a true copy of the reasons for the decision herein of Dr M E Thorpe, Member
Signed: C. Gregson
Associate
Date of Decision 31 July 2003
Counsel for the Applicant Mr Mark Vincent
Solicitor for the Applicant Dibbs Barker Gosling
Advocate for the Respondent Mr Jim Marsh
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