Robertson and Repatriation Commission [2011] AATA 80 (11 February 2011)

Last Updated: 11 February 2011

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2011] AATA 80

ADMINISTRATIVE APPEALS TRIBUNAL )

) No 2008/3918

VETERANS' APPEALS DIVISION		)
	Re		Clara Robertson

Applicant

And

Repatriation Commission

Respondent

DECISION

Tribunal

Senior Member Jill Toohey Dr John Campbell, Member

Date 11 February 2011

Place Sydney

Decision

The decision under review is affirmed.

....................[sgd]..........................
Senior Member
CATCHWORDS

VETERANS ENTITLEMENTS – claim for widow’s pension – kind of death - excessive drinking following service during bombing raids in Darwin – whether atrial fibrillation a kind of death – decision under review affirmed

Veterans Entitlements Act 1986 ss 8, 13, 120, 120A

Repatriation Commission v Deledio [1998] FCA 391; (1998) 83 FCR 82

Repatriation Commission v Hancock [2003] FCA 713

Martyn and Repatriation Commission [2006] AATA 895

Hayes v Repatriation Commission [2005] FMCA 125

Nicolia v Commissioner for Railways (NSW) (1970) 46 ALJR 466, 467

Hill v Repatriation Commission [2009] FCAFC 91

REASONS FOR DECISION

11 February 2011	Senior Member Jill Toohey Dr John Campbell, Member
Background

1. Mr Frederick Robertson served in the Australian Army from October 1941 to March 1946, including in Darwin from June 1942 to March 1943 throughout which time it was bombed by the Japanese. The whole of his service is operational service for the purposes of the Veterans Entitlements Act 1986 (the Act).
2. Mr Robertson died in Maitland Hospital on 20 May 2005 at the age of 85. His widow, Clara Robertson, claims a war widow’s pension. She says that, as a result of events that occurred during his service in Darwin, her husband developed an alcohol habit which led to atrial fibrillation and, in turn, to his death.
3. The Repatriation Commission (the Commission) does not dispute that Mr Robertson had atrial fibrillation but says he died from cholecystitis and cellulitis, which led to septicaemia and pneumonia, conditions unrelated to his service.

Legislative framework

4. By s 13 of the Act, Mrs Robertson will be entitled to a widow’s pension if her husband’s death was attributable to his operational service: s 8(1)(b).
5. As Mrs Robertson’s claim arises out of her husband’s operational service, the standard of reasonable hypothesis applies: s 120 (1) and s 120 (3). We must find Mr Robertson’s death to be war-caused unless we are satisfied beyond reasonable doubt that there is no sufficient ground for finding that his death was war-caused. The steps to be followed in making our determination are set out in Repatriation Commission v Deledio [1998] FCA 391; (1998) 83 FCR 82.
6. A hypothesis connecting a veteran’s kind of death with service will be reasonable if it is upheld by a Statement of Principles (SOP) concerning that kind of death: s 120A (3).

The issues

7. We have first to determine Mr Robertson’s kind of death: Repatriation Commission v Hancock [2003] FCA 711 at [9]. The standard of proof is on the balance of probabilities: s 120 (4).
8. If we are satisfied that atrial fibrillation was a cause of Mr Robertson’s death, we must then determine if a reasonable hypothesis exists connecting that condition to his service.

Evidence of Mrs Robertson and her son

9. We should say at the outset that we accept without reservation the evidence of Mrs Robertson and her son, Mr Frederick Robertson. We accept Mrs Robertson’s claim that her husband returned from Darwin a different man. We accept her son’s evidence that his father told him his best man was killed at his side in Darwin and that he had witnessed atrocities by the Japanese army.
10. We accept that Mr Robertson drank to excess over many years and was frequently an angry and violent man. His son, who is now 67, describes an abusive, violent childhood and says his father was a bitter, angry man, paranoid about the Japanese and constantly on guard against air raids; in 1962 he had a nervous breakdown when he “saw” Japanese soldiers climbing over the walls at home. There can be no doubt that living with him would have extraordinarily difficult.
11. However, for the reasons set out below, we are not satisfied that atrial fibrillation caused or contributed to Mr Robertson’s death. We have no option but to find, on the evidence before us, that his death was not related to his service and that Mrs Robertson’s claim must fail.

What ‘kind of death’ did Mr Robertson suffer?

12. Mr Robertson’s death certificate states the cause of his death as follows:

Part 1

1. Septicaemia, days;
2. Pneumonia, days;

100. Cholecystitis, days;

4. Cellulitis, days.

Part 2

1. Atrial fibrillation, days/weeks

13. Where multiple medical conditions contribute to a veteran’s death, it is sufficient if one of those conditions is related to service: Repatriation Commission v Hancock [2003] FCA 711. However, a condition must be more than merely present: it must be an integral part of the kind of death: Hayes v Repatriation Commission [2005] FMCA 125 and see Martyn and Repatriation Commission [2006] AATA 895.
14. A death certificate is prima facie evidence of the cause, or causes, of death: Nicolia v Commissioner for Railways (NSW) (1970) 45 ALJR 465. However, medical evidence may support a finding that underlying or contributing causes not cited in the certificate in fact played an integral part in a person’s death: Hill v Repatriation Commission [2009] FCAFC 91 at para 61.
15. The Tribunal heard evidence from Associate Professor Richard Haber, consultant physician, and from Professor Michael O’Rourke, cardiologist, both of whom reviewed the clinical notes of Mr Robertson’s treatment in Maitland Hospital where he died. Neither disputes that Mr Robertson had atrial fibrillation when he was admitted to hospital and throughout this time there but they disagree as to the role it played in his death.

Dr Haber’s evidence

16. Dr Haber gave evidence that, despite the death certificate, he could find no evidence in the clinical notes of significant infection, in particular septicaemia. Had such infection been present, he would expect indicators such as raised temperature and raised white blood cell count whereas Mr Robertson’s white blood cell count was consistently normal and no raised temperature was recorded on his chart.
17. Dr Haber considered that Mr Robertson’s chest showed pleural effusion but not pneumonic changes and, in his view, the chronic cholecystitis noted was an incidental ultrasound finding and not a significant contributor to death.
18. On the other hand, Dr Haber said, there were a number of matters pointing to atrial fibrillation as the cause of Mr Robertson’s death: he was admitted with a two week history of shortness of breath, consistent with left ventricular failure. He also had rapid atrial fibrillation on admission which is well known to cause heart failure, and is commonly caused by excess alcohol, and which occurred throughout the time until he died, despite medication to control it.
19. Other signs of heart failure noted by Dr Haber were severe metabolic acidosis, raised jugular venous pressure, gross oedema in both limbs, and tenderness in the right hypochondrium due to congested liver, and an ECG showing signs of an old inferior infarction, and right bundle branch block which often occurs with heart attack and often causes atrial fibrillation.

Professor O’Rourke’s evidence

20. Professor O’Rourke disagreed with a number of Dr Haber’s observations and noted matters that he appeared to have overlooked. For example, Dr Haber referred to right bundle branch block when the notes clearly referred to left bundle branch block (although the Tribunal understands there is little, if any, clinical significance attached to this). Further, whereas Dr Haber had found no evidence of infection, septicaemia was in fact specifically referred to in notes made 18 May 2005, two days before Mr Robertson died.
21. In Professor O’Rourke’s view, Dr Haber placed undue weight on Mr Robertson’s heart rate of 150 pm on admission when it was in fact around 115-120 pm: high, but not especially notable, and not enough to cause heart failure, for most of the time he was in hospital. He also appeared to have overlooked Mr Robertson’s bilirubin levels which were several times about normal, indicating biliary obstruction associated with chronic cholecystitis.
22. In Professor O’Rourke’s view, there was no reason to doubt the clinical notes, which appeared to document proper and appropriate treatment and clinical signs consistent with diagnoses. He pointed to a range of matters in the notes that in his view supported the death certificate, such as that Mr Robertson’s right foot was noted to be hot and swollen, hallmarks of inflammation usually signifying infection, together with blood cultures showing raised CRP levels on the three successive readings.
23. Whereas Dr Haber considered the absence of certain signs to be clinically significant, Professor O’Rourke did not consider these inconsistent with the death certificate. For instance, although the notes did not record raised temperature, antibiotics can lower a person’s temperature, and Mr Robertson was noted on several days to be wrapped in blankets, and feeling hot and cold, indications of possible fever consistent with infection. The notes also recorded Mr Robertson having “cool, dry skin” on 8 May 2005, a sign of possible raised temperature.
24. Professor O’Rourke gave evidence that raised white blood cell count, the absence of which Dr Haber found significant, is not always present with infection. Further, that blood cultures can return negative results in a person on antibiotics.
25. Professor O’Rourke noted that Mr Robertson’s general practitioner, Dr Joshi, first noted his atrial fibrillation in 2002, after a bout of gastroenteritis; the condition was confirmed in 2003 and persisted, but no complications arose from it and it did not interfere with his life. There was nothing in Dr Joshi’s notes indicating that alcohol caused the atrial fibrillation.
26. Taking all these factors into account, while Mr Robertson’s atrial fibrillation persisted until his death, Professor O’Rourke did not consider it a factor in his deterioration or death. In his view, Dr Haber made a connection between its existence and Mr Robertson’s death that was not supported by the notes. His final illness was septicaemia with bilateral pneumonia and cellulitis of a limb together with abdominal problems related to cholecystitis and, possibly, subacute bowel obstruction.

Other medical evidence

27. Dr John Roberts and Dr Anthony Dinnen, psychiatrists, also gave evidence. Dr Dinnen did not express an opinion about the role of atrial fibrillation in Mr Robertson’s death, a matter he said was outside his area of expertise.
28. Dr Roberts gave evidence that atrial fibrillation played no part in Mr Robertson’s death. However, it is not an area he specialises in and he acknowledged that he had not read Mr Robertson’s clinical notes. We did not find Dr Robert’s evidence helpful and place no weight on it in determining Mr Robertson’s cause of death.

Conclusion

29. We found Professor O’Rourke particularly thorough and careful in his evidence. He had clearly reviewed and analysed the clinical notes in detail. He has extensive experience in cardiology and could explain the absence of signs considered significant by Dr Haber, and point to others which positively supported the death certificate. For these reasons, we prefer his evidence to that of Dr Haber.
30. Considering all of the evidence, we have on one hand the death certificate supported by clinical notes with no evidence to suggest they do not properly reflect Mr Robertson’s conditions and treatment, and Professor O’Rourke’s evidence. On the other hand is the evidence of Dr Haber.
31. In our view, the weight of the evidence supports the conclusion that Mr Robertson’s atrial fibrillation did not play an integral part in his death. As there is no evidence before the Tribunal to indicate any condition other than those in the death certificate led to his death, and as it is not contended that any other condition in his death certificate was service-related, it follows that Mrs Robertson’s claim must fail.
32. We affirm the decision under review.
    

I certify that the 32 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member Jill Toohey and Dr John Campbell.

Signed: ..........[sgd].....................................................................

Diana Weston - Associate

Date/s of Hearing 1 and 2 February 2011

Date of Decision 11 February 2011

Counsel for the Applicant Stephen Feredoes

Solicitor for the Applicant Andrew Kemp, Kemp & Co. Lawyers

Solicitor for the Respondent Timothy O'Reilly, Department of Veteran's Affairs