Cribb and Repatriation Commission [2010] AATA 84 (5 February 2010)

Last Updated: 5 February 2010

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2010] AATA 84

ADMINISTRATIVE APPEALS TRIBUNAL )

) No 2008/4481

VETERANS' APPEALS DIVISION		)
	Re		Elaine Cribb

Applicant

And

Repatriation Commission

Respondent

DECISION

Tribunal

Senior Member Jill Toohey

Date 5 February 2010

Place Sydney

Decision

The decision under review is affirmed.

..............................................
Senior Member

CATCHWORDS

VETERANS' APPEALS – war widow’s pension – operational service – cause of death - whether condition was war-caused - non-Hodgkin’s lymphoma direct cause of death – not related to service - amended death certificate - whether ischaemic heart disease contributed to death - ischaemic heart disease affected treatment for non-Hodgkin’s lymphoma but did not contribute to death in the relevant sense - decision under review affirmed.

Veterans’ Entitlement Act 1986

Collins v Repatriation Commission [2009] FCAFC 90

Re Blyth and Repatriation Commission (1982) 4 ALN N147

Repatriation Commission v Cooke (1998) 90 FCR 307

Repatriation Commission v Hancock [2003] FCA 711

Repatriation Commission v Law (1980) 31 ALR 140

REASONS FOR DECISION

5 February 2010	Senior Member Jill Toohey
Background

1. Mr Kingsley Cribb served in the Royal Australian Air Force between 12 November 1943 and 28 September 1948. He died on 4 April 2006. His widow, Mrs Elaine Cribb, seeks review of a decision to refuse her application for a war widow’s pension.
2. Mr Cribb’s service is eligible service within the meaning of the Veterans’ Entitlement Act 1986 (the Act). Because he served overseas during World War II, the whole of his service is operational service for the purposes of the Act.
3. Mr Cribb’s death certificate gave the cause of his death as non-Hodgkin’s lymphoma. In her application to the Repatriation Commission (the Commission) and before the Veterans’ Review Board (VRB), Mrs Cribb conceded that her husband’s non-Hodgkin’s lymphoma was the direct cause of his death and was not related to his service. However, she maintained the ischaemic heart disease from which he had suffered for some years, and which she said was related to his service, contributed to his death.
4. The Commission and the VRB rejected Mrs Cribb’s application essentially on the ground that the evidence did not support a finding that her husband’s ischaemic heart disease contributed to his death; in particular, his death certificate made no mention of ischaemic heart disease.
5. On 2 November 2009, an amended death certificate for Mr Cribb was issued, giving the cause of his death as:
   • (I) Non-Hodgkin’s lymphoma, 15 months
   • (II) a) Ischaemic heart disease, more than 10 years

b) Hypertension, more than 10 years

6. Mrs Cribb says it is possible that her husband was exposed to secondary radiation from Hiroshima when he was in Japan for 12 months from April 1946 but she concedes that none of the factors in the Statement of Principles for non-Hodgkin’s lymphoma is made out. She also concedes that her husband’s hypertension was not related to his service.
7. Mrs Cribb contends that the amended death certificate and other medical evidence support the conclusion that ischaemic heart disease was related to his service and caused, or contributed to, her husband’s death.
8. By s 13 of the Act, Mrs Cribb will be entitled to a widow’s pension if her husband’s death was “war-caused”. It will be “war-caused” if it satisfies any of the criteria in s 8(1) of the Act, in particular if it “arose out of, or was attributable to” his service.

The issue

9. I have to decide:

(i) what was Mr Cribb’s cause of death (ss 120A(2) and (4) of the Act refer to ‘kind of death’)

(ii) if ischaemic heart disease caused, or contributed to, Mr Cribb’s death, whether there was a connection between that kind of death and his war service.

10. The cause of death is a preliminary question of fact to be determined on the balance of probabilities based on the medical diagnosis and other evidence: Repatriation Commission v Hancock [2003] FCA 711; Collins v Repatriation Commission [2009] FCAFC 90; Repatriation Commission v Cooke (1998) 90 FCR 307.

The family’s evidence

11. Mr and Mrs Cribb married in 1957 after he had been discharged from service. Mrs Cribb understands from his family that he did not smoke before he enlisted at the age of 18. He worked as a shop assistant and was poorly paid, and his family were strict Methodists and smoking and drinking were prohibited.
12. Mrs Cribb says that service was a stressful, uncertain time for her husband who had a nervous disposition. During their marriage he smoked about five cigarettes each day and smoked a pipe until he retired in 1985 when he gave up both. Mrs crib says he told her he smoked to help him relax and to cope with wartime and service conditions.
13. Mrs Cribb’s son, Stephen Cribb, and her daughter, Patricia Bentley, have provided written statements supporting her claims. They recall their mother complaining about their father’s smoking and they learned only quite recently that he spent about 12 months after he returned from overseas in an institution where he had electroconvulsive therapy. They believe he was traumatised by his service and that his health was badly affected.
14. The Commission does not dispute these claims and I have no reason to doubt them.
15. The Commission accepts that Mr Cribb’s smoking would meet the relevant factor in the Statement of Principles for ischaemic heart disease.
    

What caused Mr Cribb’s death

16. It is not in dispute that Mr Cribb had coronary artery disease. The condition was diagnosed in 1992 when he spent ten days in hospital.
17. On 26 October 2006, Dr Kah Kin Low, who was Mr Cribb’s doctor from 1992, reported that Mr Cribb had a history of hypertension and coronary artery disease and was diagnosed with a high grade non-Hodgkin’s lymphoma in January 2005. Dr Low reported that Mr Cribb did not respond to chemotherapy and radiotherapy and died “as a result of his non-Hodgkin’s lymphoma.”
18. After the Commission and the VRB rejected Mrs Cribb’s application, her advocates sought further medical opinions. Their inquiries led to the reports referred to below and, ultimately, to the amended death certificate being issued.
19. On 13 June 2007, Dr Phillip Rowlings, specialist in haematology, responded to a letter from Mrs Cribb’s advocate which asked whether her husband’s chances of surviving the lymphoma would have been better were it not for the heart disease. Dr Rowlings stated that, because of his history of heart disease, the initial treatment of Mr Cribb’s non-Hodgkin’s lymphoma was “somewhat limited” and that:

[c]ertainly, a younger patient, without heart disease, would have been treated more aggressively at the beginning and [the chance] of going into remission and surviving would have been greater ...

20. Dr Rowling concluded:

However, the separation of age versus cardiac status in someone near eighty and treating this disease is difficult and I don’t think I can make any further comment than that.

21. On 31 July 2009, Dr Robert Porter, acting Director of Clinical Services at Mater Hospital where Mr Cribb died, wrote to Mrs Cribb to say that he had reviewed Mr Cribb’s records. Dr Porter said the heart disease which her husband had for probably ten years or more before his death could be included in a “revised” death certificate as a “Significant Condition ... contributing to the death but not related to the disease or condition causing it”.
22. On 18 August 2009, Emeritus Professor Saxon White, of the University of Newcastle and of the Cardiovascular Department at John Hunter Hospital, gave a written opinion based on documents provided to him by Mrs Cribb’s advocate. He concluded there was “reasonable doubt” that Mr Cribb’s death certificate accurately reflected all the factors which contributed to his death. He stated:

In my opinion it would be hard to refute the reasonable postulate that ischaemic heart disease had a significant influence on Mr Cribb initially receiving sub-optimal radiation/chemotherapy for his non-Hodgkin’s lymphoma, and therefore his chances of remission and a longer life.

23. On 22 August 2009, Dr Allan Darroch, a General Practitioner, responded that it was “disappointing” that the role that Mr Cribb’s hypertension, heart and vascular disease played in his death was not recorded:

We can speculate that he suffered a myocardial infarct or some other major vascular event that ended his life or that years of smoking contributed to his succumbing to terminal pneumonia but what we can say with certainty is that his heart disease was a major contributing factor to the failure of treatment that led to his death ... his options were reduced by his cardiac disease ... and he [was given] a less effective form of chemotherapy that ultimately failed to do the job. I think that a direct connection is clearly established and that heart disease should be listed as a contributing factor to his death.

24. By letter dated 29 September 2009 Dr Porter wrote to the Registrar of Births, Deaths and Marriages asking that Mr Cribb’s death certificate be altered to show that contributing factors relating to the cause of his death were ischaemic heart disease and hypertension.
25. The amended death certificate was issued on 2 November 2009.

Contentions

26. Mrs Cribb contends that the “uncertainty” surrounding her husband’s death certificate makes it likely that ischaemic heart disease played a major role in his death and was possibly its direct cause. At the very least, she says, it hastened his death by making the treatment for his non-Hodgkin’s lymphoma less effective.
27. The Commission does not dispute that Mr Cribb’s heart disease was a contributing factor in his death in the sense that he was treated less aggressively that he might otherwise have been. The Commission concedes the possibility that more aggressive treatment may have helped but says that is speculation only.
28. The Commission maintains that the evidence supports the conclusion that the cause of Mr Cribb’s death for the purposes of the Act was non-Hodgkin’s lymphoma and, to the extent that his heart disease played a part, it was not sufficient to amount to a kind of death for the purposes of the Act.

Consideration

29. The Commission contends, and I accept, that one can only speculate as to whether more aggressive treatment would have prolonged Mr Cribb’s life and, if so, by how long. The medical evidence does indicate that he would have lived longer but not by how much. The reports do not suggest that Mr Cribb would not have died of non-Hodgkin’s lymphoma or that it was not the direct cause of his death. I note, from Dr Rowling’s letter dated 13 June 2007 that his age was also a factor in his treatment.
30. However, even allowing that, with more aggressive treatment, Mr Cribb’s death would not have occurred when it did, I am not satisfied that his death was attributable to ischaemic heart disease for the purposes of the Act.
31. In Repatriation Commission v Law (1980) 31 ALR 140, the High Court said [at 151] of the expression “attributable to”:

It seems clear that the expression "attributable to" in each case involves an element of causation. The cause need not be the sole or dominant cause: it is sufficient to show "attributability" if the cause is one of a number of causes provided it is a contributing cause. ... it is sufficient to show "attributability" if a member’s war service is a contributing cause to the incapacity or death in respect of which the claim is made.

32. In Collins (above), the Federal Court considered whether, if a medical condition contributes to the death of a veteran only be affecting its timing, the Tribunal erred in concluding for the purposes of the relevant provisions of the Act that the kind of death does to include that medical condition. The Court said (at 47) that the term “kind of death” in ss 120A(2) and (4) of the Act refers to “the medical cause or causes of death”. Further, (at 82 to 84):

Those provisions support the conclusion that the inquiry about the death or the kind of death for the purposes of the VE Act is, in essence, a question of fact about the medical cause or causes of the death. It does not support the proposition on behalf of Mrs Collins that there is a legislative intention that any medical condition which hastens the time of death of a veteran by a measurable period, even a short one, where in medical terms another medical condition is clearly the medical condition which accounts for the pathological changes leading to death, is itself a medical cause of the death.

33. The Court thought it would be “surprising” if Parliament intended to incorporate such a proposition into the Act without expressly saying so and concluded:

For those reasons, we do not consider that as a matter of law any medical condition which may affect the time of death of a veteran by a measurable period, but does not otherwise play any real role in the pathological changes leading to the death (which are medically ascribed to another medical condition), is a death (that is a medical cause of death) or a kind of death under the VE Act.

34. The medical evidence does not support a finding that Mr Cribb’s heart disease played any real role in the pathological changes leading to his death. It cannot be said he would not have died of the lymphoma with more aggressive treatment. It cannot even be said that it would have made any appreciable difference other than to the timing of his death.

Conclusion

35. For the reasons set out above, I find that the cause of Mr Cribb’s death was non-Hodgkin’s lymphoma. His ischaemic heart disease may have hastened his death but I am not satisfied that it was a cause of death within the meaning of the Act.
36. The decision under review is affirmed.

I certify that the 36 preceding paragraphs are a

true copy of the reasons for the decision

herein of Senior Member Jill Toohey

Signed: ...............................................................................

Diana Weston Associate

Date of Hearing 20 January 2010

Date of Decision 5 February 2010

Representative for the Applicant Jim Treadwell, Legatee

Representative for the Respondent Nigel Bunn, Department of Veterans’ Affairs