Allen and Repatriation Commission
[2009] AATA 418
•11 June 2009
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2009] AATA 418
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2007/0171
VETERANS’ APPEALS DIVISION ) Re MAXINA ALLEN Applicant
And
REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Ms Robin Hunt, Senior Member
Dr Saw Hooi Toh, MemberDate11 June 2009
PlaceSydney
Decision The decision of the Veterans’ Review Board dated 8 December 2006 is set aside and substituted is the decision that the veteran’s death was war-caused. The earliest date of effect is 2 September 2005. The matter is remitted to the Commission for determination of Mrs Allen’s pension entitlements.
...................[Sgd]....................
Ms Robin Hunt
Senior Member
CATCHWORDS
VETERANS’ AFFAIRS – war widow’s pension – kind of death – reasonable satisfaction – statement of principles – malignant neoplasm of the anal canal – reasonable hypothesis not disproved – reviewable decision set aside – war widow’s pension payable.
Veterans’ Entitlements Act 1986 (Cth) ss 8(1), 13(1), 120(1), 120(3), 120A, 196B(2)
Collins v Repatriation Commission [2008] FCA 1982
Doolette v Repatriation Commission (1990) 21 ALD 489
Hayes v Repatriation Commission [2005] FMCA 125
Re Martyn and Repatriation Commission [2006] AATA 895
Repatriation Commission v Codd (2007) 95 ALD 619
Repatriation Commission v Deledio (1998) 83 FCR 82
Repatriation Commission v Gorton (2001) 110 FCR 321
Repatriation Commission v Hancock (2003) 37 AAR 383
Repatriation Commission v Hill [2009] FCA 270
Repatriation Commission v Law (1980) 47 FLR 57
REASONS FOR DECISION
11 June 2009 Ms Robin Hunt, Senior Member
Dr Saw Hooi Toh, Memberintroduction
1. Mrs Maxina Allen seeks review of a decision that her late husband’s death was not war-caused within the meaning of section 8 of the Veterans’ Entitlements Act 1986 (‘the Act’). If she is successful and we are satisfied the death was war-caused, she will be entitled to receive a war widow’s pension.
2. Mrs Allen claims her late husband, Peter Allen, who was a veteran and saw operational war service with the Australian Army in the 1940s, developed a heavy smoking habit as a result of his war service and that this caused malignant neoplasm of the anal canal. She further claims that this disease caused or materially contributed to her late husband’s death.
3. Death will be taken as war-caused, pursuant to subparagraph 8(1)(b) of the Act, if:
The death of the veteran arose out of, or was attributable to, any eligible war service rendered by the veteran; …
issues
4. We must decide the ‘kind of death’ suffered by Mrs Allen’s late husband and whether this was war-caused.
the position of the parties
5. Mrs Allen contends that her late husband’s malignant neoplasm of the anal canal caused or materially contributed to his death and that his death was war-caused because he contracted the malignancy as a result of his smoking habit acquired through war service. The respondent denies the death was war-caused and contends that the kind of death suffered by the veteran was death from metastasised prostate cancer and progressive severe dementia leading to respiratory tract infection.
summary of our decision
6. We have found that Mr Allen’s death does qualify as war-caused. His smoking habit satisfied factor 5(a) of the relevant Statement of Principles concerning malignant neoplasm of the anal canal (Instrument No. 34 of 2002) (‘SoP 34 of 2002’). The respondent conceded Mr Allen’s smoking history and the relationship to service of his malignant neoplasm of the anal canal in accordance with the SoP. Medical opinions before us are that Mr Allen’s anal carcinoma did play a role in his death although whether it was a major cause of death is the subject of disagreement and there was evidence also of the possibility of metastasised prostate cancer and progressive dementia leading to respiratory tract infection being responsible for the death. There is no doubt that Mr Allen suffered a recurrence of an anal carcinoma before his death. We are satisfied that Mr Allen’s anal carcinoma was related to his service and was war-caused according to SoP 34 of 2002. We are not satisfied beyond reasonable doubt that Mr Allen’s war-caused anal carcinoma did not materially contribute to his death. This means his widow is entitled to a pension. Our full reasons are set out below.
consideration
7. The respondent agrees that Mrs Allen’s late husband rendered relevant service with the Australian Army from 4 November 1941 to 29 August 1945. There is also no doubt raised that Mr Allen was a veteran who married the applicant and died, leaving her as his widow.
8. If a veteran’s death was war-caused, then the widow is eligible for a widow’s pension pursuant to subsection 13(1) of the Act. We must determine whether the death was war-caused having regard to sections 120 and 120A of the Act. Taking these provisions together, we must first determine the ‘kind of death’ of Mr Allen and then the reasonableness of the applicant’s hypothesis connecting the death with the circumstances of his war service.
is there an sop about the kind of death claimed?
9. Mrs Allen claims malignant neoplasm of the anal canal caused or materially contributed to her late husband’s death. This condition is the subject of a SoP which governs the condition. The parties agree and we find that the relevant determination concerning malignant neoplasm of the anal canal is SoP 34 of 2002.
10. There are conflicting Federal Court authorities about whether we must test the kind of death against any SoP in force before we determine the kind of death. The requirement that we first determine the ‘kind of death’ that the veteran met is confirmed in Repatriation Commission v Hancock (2003) 37 AAR 383 (‘Hancock’), Repatriation Commission v Codd (2007) 95 ALD 619 (‘Codd’) and in Collins v Repatriation Commission [2008] FCA 1982 (‘Collins’).
11. According to the recent judgment of Cowdroy J in Repatriation Commission v Hill [2009] FCA 270 (‘Hill’), the first enquiry the tribunal should make is whether a SoP exists in respect of the ‘particular kind of …death’ suffered by the veteran. We have identified the applicable SoP concerning malignant neoplasm of the anal canal and also considered Mr Allen’s condition in accordance with the SoP prevailing at the date of our decision: See Repatriation Commission v Gorton (2001) 110 FCR 321.
12. We have endeavoured to take both steps, that is, consider the kind of death according to medical opinion and also according to the criteria set out in the SoP.
13. In the present case, the result of our deliberations about the role of the anal carcinoma in the kind of death suffered by Mr Allen will be no different whether we consider it against the SoP or on the basis of sound medical evidence and diagnosis as there is no controversy about whether he suffered the condition, only its role in his kind of death. As the respondent has conceded Mr Allen did suffer the condition according to factor 5(a) of SoP 34 of 2002, and this is the ground argued by the applicant, there is no doubt that Mr Allen suffered the condition both according to medical opinions based on clinical examination and diagnosis without reference to the SoP and also based on the criteria for the SoP.
diagnosis
14. There is no doubt that Mr Allen suffered from the disease which Mrs Allen claims caused his death. All the medical reports and opinions before us say that Mr Allen suffered from recurrent squamous cell carcinoma of the anus as well as prostate cancer and dementia.
Did Mr Allen suffer malignant neoplasm of the anal canal in accordance with the SoP?
15. The short answer is “Yes”. In applying SoP 34 of 2002, we have followed the reasoning of Cowdroy J in Hill that, the critical issue for our determination is the identification of the cause of the malignant neoplasm of the anal canal by reference to the relevant SoP. Paragraph 2(a) provides that the SoP is about malignant neoplasm of the anal canal and death from that malignancy and paragraph 2(b) provides what malignant neoplasm of the anal canal means.
16. Paragraph 8 of SoP 34 of 2002 contains the following definitions:
“(D)eath from malignant neoplasm of the anal canal” 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 anal canal.
…
“(T)erminal event” means the proximate or ultimate cause of death and includes:
(a) pneumonia;
(b) respiratory failure;
(c) cardiac arrest;
(d) circulatory failure; or
(e) cessation of brain function.
17. As can be seen, the definition of “death from malignant neoplasm of the anal canal” is inclusive of terminal events described, but such a terminal event is not essential to the SoP’s application. While Mr Allen did not suffer a terminal event of the kinds listed, there is no doubt he suffered from the disease. All the medical opinions before us accept that he suffered the condition but there is disagreement about the role of the condition in his death.
18. The respondent initially argued that no SoP factor can be satisfied. The applicant’s case is that factor 5(a) can be met:
(S)moking at least 10 pack-years of cigarettes or the equivalent thereof in other tobacco products, before the clinical onset of malignant neoplasm of the anal canal, and, where smoking has ceased, the clinical onset has occurred within 15 years of cessation; …
19. At the hearing, the respondent’s counsel conceded that, although there was very little evidence in relation to the smoking, the respondent was prepared to concede that the smoking history allowed that factor to be satisfied as to SoP 34 of 2002. The medical evidence before us records and makes observations about the role of Mr Allen’s suffering this condition. It follows that we find that Mr Allen did meet the description of this disease for the SoP. It follows that provided we are satisfied on the balance of probabilities that the anal disease did materially contribute to his kind of death, the requirements for his widow’s pension will be met.
the kind of death
20. There may be more than one medical condition that contributes to a particular death or that may expedite death. If one of these medical conditions is a cause of death and is relevantly related to service then that may be sufficient to establish entitlement to pension: See Selway J in Hancock at [8]-[9]. Also see Collins per Emmett J at [19].
21. The difficulty for our decision is that expert opinions furnished for the review disagreed about the cause of Mr Allen’s kind of death. We are dependent on the expert medical opinions before us and must find, on the balance of probabilities, what ‘kind of death’ Mr Allen suffered. In particular, this involves the role of malignant neoplasm of the anal canal.
22. Mr Allen’s death certificate states that several conditions played a role in his death. His widow does not claim that the other causes of death mentioned in the certificate were war-caused conditions and does not question whether they also played a role in the death.
23. The certificate of death is not conclusive evidence for our purposes but we note the certificate issued on 11 September 1996, nevertheless, reads that cause of death was:
(I) (a) Metastatic anal squamous cell carcinoma 4 months
(II) Metastatic prostrate carcinoma 5 years
Dementia 5 years
24. We note that malignant neoplasm of the anal canal is not a terminal event but is an underlying medical condition or disease. The same can be said for prostate cancer and dementia.
25. Clause 3 of SoP 34 of 2002 provides that there must be sound medical-scientific evidence that indicates that death from malignant neoplasm of the anal canal can be related to relevant service. Clause 4 provides that at least one of the factors in clause 5 must be satisfied subject to clause 6. Clause 6 contains a provision related to existence of the condition before service, which is not relevant to the present case. As the respondent has conceded factor 5(a), it can be said that a reasonable hypothesis has been raised connecting death from malignant neoplasm of the anal canal with the circumstances of the veteran’s service.
26. In his final days, Mr Allen suffered various serious diseases. Dr Derek Berg, a radiation oncologist at St Vincent's Hospital, saw Mr Allen on 11 March 1996 and reported in a letter to the referring doctor, Dr Tim Wilson, on the same date:
There are a couple of complicating factors with this patient. Firstly, he is obviously demented and compliance may be somewhat of a problem.
27. Dr Stephen Cooper, also a radiation oncologist at St Vincent’s, treating him in 1996, obtained a CT scan of the abdomen and pelvis and chest x-ray. Dr Ian V Benn reported the results to Dr Cooper on 14 March 1996 noting a patchy consolidation at the right lung base and sluggish function in the kidneys.
28. Dr Cooper wrote, on 22 April 1996, to the referring doctor, Dr Wilson, with a diagnosis of:
1. carcinoma of prostate stage B2
2. carcinoma of the anus
3. dementia
29. An undated copy of an unsigned certificate from Dr Cooper confirms that Mr Allen was under his care for an advanced carcinoma of the anus. Treatment was difficult because of previous radiation therapy for Mr Allen’s prostate cancer and his chronic confusional state in conjunction with bowel and anal disfunction produced profound nursing difficulties.
30. Dr Cooper prepared a report on 22 January 1997 for the Department of Veterans’ Affairs. He detailed that, at the time Mr Allen came under his care on referral from Dr Berg from Dr Wilson, he had:
1. Metastatic carcinoma of the prostate
2. T2N0 SCC of the anal verge
3. Dementia
31. He explained that in regard to his anal carcinoma, Mr Allen had been referred originally to one of his partners, Dr Graeme Morgan, in August 1991. He went on to say that treatment resulted in dramatic tumour regression but was unlikely to produce durable tumour control. He reviewed Mr Allen on 15 May, 27 June and 5 August 1996 and observed an excellent period of local control but noted there was a recurrence on his final visit. There was, however, no clear evidence of systemic metastatic disease from the anal carcinoma.
32. Dr Cooper said in his report that it was extremely difficult to differentiate the mixture of symptoms because of Mr Allen’s confusional state. It was necessary to rely on Mrs Allen’s descriptions. Then he says:
At that stage, there was no evidence to suggest that Mr Allen was dying from any visceral disease.
33. Three weeks before Mr Allen’s death on 25 August 1996, Dr Cooper thought the major medical issues related to Mr Allen’s profound dementing state. He had no doubt though that Mr Allen had metastatic prostatic carcinoma and local failure from his anal carcinoma. Ultimately, Dr Cooper concluded that he had no evidence of systemic metastatic anal carcinoma and could not attribute his death to this process.
34. Mr Allen was admitted to the Sacred Heart Hospice on 12 July 1996. The discharge summary dated 30 July 1996 notes that at that time he had Alzheimer’s dementia, cancer of the prostrate and cancer of the anus. A note filled in on a form which is entitled, ‘Patient’s Expectations of Care’, dated 9 August 1996, records that the patient’s expectations of care was were terminal care.
35. Well after these events, Professor John Henry Kearsley and Professor John Avery Levi were asked to give an opinion about Mr Allen’s death. Professor Kearsley provided three reports at the request of the applicant and gave oral evidence. In his report dated 21 May 2007, he observed that “it could be possible to make a case that metastatic anal squamous cell carcinoma materially contributed to Mr Peter Allen’s death. …the diagnoses of dementia and metastatic prostate cancer are undeniable; also undeniable is the presence of locally recurrent and squamous cell carcinoma.” He added:
From a clinical point of view, it is more likely that multiple lung metastases would originate from a squamous cell carcinoma of the anal canal, rather than prostate cancer.
36. In his report of 12 September 2007, Professor Kearsley wrote that there was good clinical evidence to suggest that the death was caused from complications arising from his locally advanced anal cancer, or by treatment of same. He added:
In my view, it is most likely that … Mr Allen died as a result of overwhelming sepsis which arose in the region where his anal cancer had been treated by radiotherapy.
37. Professor Kearsley similarly opined in his report dated 8 July 2008 that “it is clear to me that Mr Allen suffered from significant and severe infection of his perianal ulcer, and in my view, the severe infection was very likely to have resulted in septicaemia and Mr Allen’s death”. He remarked on the contemporaneous observation of the presence of offensive odour and the patient’s weakened state, noting that he was transferred to the Sacred Heart hospice because of increasing drowsiness, moist cough and fever.
38. When asked, at the tribunal hearing, to comment on Dr Cooper’s assessment, Professor Kearsley gave evidence that his interpretation of Dr Cooper’s comments was that the man’s demise was largely and solely the result of his locally recurrent anal cancer and the pain and the infection, and he did not think that metastatic anal carcinoma or metastatic anything would necessarily have been a major contributor to Mr Allen’s final passing away. He said that he reached this conclusion from reading all the clinical notes and the nursing notes, especially a nurse’s note which stated:
He had a lot of pain, he had an abscess in the anus, he had very offensive odour.
39. Professor Kearsley agreed under questioning that nowhere in the clinical notes was septicaemia identified. However, such odour would have arisen from septicaemia in his opinion.
40. He added that whether Mr Allen had profound Alzheimer-like condition or metastatic prostate cancer did not really change the fact that he was going to die and do very badly irrespective of his other conditions because of the nature of the locally uncontrolled anal cancer. Under cross-examination, the professor agreed that, in layman’s terms, this man died from his anal cancer, but not from his dementia and not from any effects of dementia or the prostate cancer. He told us he had tried to develop a picture of this particular patient. He developed a clinical picture of a man with severe intellectual problems who was occasionally agitated and had metastatic prostate cancer under reasonably good control but with horrendous locally uncontrolled anal cancer. He opined that the references to offensive odour indicated there was major infection there. He considered this was the natural history of a patient who has necrotic tumour with recurrence, adding that these lesions do become infected and at some time, the infection does spread from the local, soft tissues into the blood stream, into the patient’s systemic circulation. He explained his view that, as the patient had prior high dose radio-therapy this would have devitalised the tissues and made it easier for any infection to take-hold locally and also to spread from that area, causing septicaemia.
41. The professor held this opinion although Mr Allen was admitted to the Sacred Heart hospice with “continued degeneration with chest infection”. He was not sure what the term “chest infection” meant and whether the so-called chest infection was clinically significant or not.
42. Professor Levi, from the Department of Medical Oncology at Royal North Shore Hospital, provided a report dated 9 April 2008 and gave oral evidence. Professor Levi strongly disagreed with the opinion of Professor Kearsley. He gave evidence that, if he assumed that septicaemia was involved, as suggested by Professor Kearsley, and in particular looking at when Mr Allen was admitted to Sacred Heart hospice on 9 August 1996 with increasing confusion, moist cough and fever, and was asked to surmise that septicaemia occurred, then he would very strongly disagree because Mr Allen survived, without treatment, for more than two weeks thereafter. He told us that with septicaemia, you die within a week.
43. In response to questions, he agreed that Dr Cooper, when talking about pain management, would have been referring to pain from the back but also pain from the local anal cancer. Further, he agreed that any analgesics and morphine would have been dealing with both and that this could provide a mechanism as a depressant of the respiratory function. Nevertheless, Professor Levi persisted in his view that the dominant cause of death was Alzheimer’s and metastases prostate cancer.
44. Professor Levi thought that when Dr Cooper wrote that,
Whilst one cannot predict the local progression as far as his anal carcinoma is concerned, if it continues to survive many more months then it is likely that he will experience further local difficulties.
Dr Cooper was recognising that Mr Allen may not survive many more months on the basis of his other conditions. Professor Levi also thought Dr Cooper was making the point that if he continued to have further troubles with the anal lesion, Mr Allen would be at risk of other complications which would include infection but also bleeding and obstruction.
45. In Professor Levi’s opinion, as he set out in his report and confirmed at hearing, was that “Mr Allen died from a terminal infection most predominantly respiratory infection”. He further gave the written and oral opinion that “I certainly do not consider that the anal squamous cell carcinoma was an integral part of death”.
46. However, when asked what he might write as an ideal death certificate for Mr Allen, under cause of death, he did indicate that the anal carcinoma did play a part in Mr Allen’s death. He answered that he would have put progressive dementia as cause one, then metastatic prostrate cancer as cause two, and the likely anal squamous cell carcinoma as cause three. All three would have been included. When asked to clarify his position in terms of part one and part two conditions as is the usual format on death certificates, he then said part one would be progressive dementia and 2A prostate cancer and 2B anal cell cancer. He agreed that the last two conditions made a contribution to death. Nevertheless, Professor Levi was unequivocal in his report and in his evidence that the dementia was the major cause.
47. Taking the views of Professor Kearsley that the anal carcinoma was the main cause of Mr Allen’s death and the concession made by Professor Levi in oral evidence that the anal carcinoma did contribute to death, albeit in a minor way, we consider on balance that the anal carcinoma was part of the kind of death suffered by Mr Allen.
48. The kind of death is a matter of fact and degree where there have been multiple diseases that are capable of bringing about death and the patient is extremely frail and not expected to survive due to these multiple causes. Unfortunately, the matter of Mr Allen’s death is not the subject of unanimous opinion even though experts have been asked to consider the case.
49. As Selway J pointed out in Hancock, where it is obvious that the primary medical condition that caused death is that given on the death certificate, there may have been another medical cause, at least in the sense of a medical cause which expedited the death. It is necessary that both the primary and the other medical cause be considered. His Honour observed that:
(I)f one of these medical causes of death (or `kinds of death' to use the phrase in s 120A(2) and (4) of the Act) was itself caused by war service then this would be sufficient to establish an entitlement to a pension. So much is clear from the terms of s 9 of the Act (e.g. `was attributable to'): see Repatriation Commission v Law (1980) 31 ALR 140 at 151 and see O'Loughlin J in Doolette v Repatriation Commission (1990) 21 ALD 489 at 492.
50. Emmett J in Collins held a similar view to that of Selway J. At [21] His Honour said that the question of kind of death met by a veteran is a question of medical causation and might include contributing or underlying causes, citing Codd as an example.
51. We have decided to take the approach suggested by Selway and Emmett JJ. As the medical opinion before us is that there was more than one contributing medical condition to the kind of death of Mr Allen, we find, on balance, that Mr Allen’s kind of death did include recurrent squamous cell carcinoma of the anus. For greater emphasis, in view of the respondent’s submission by reference to the view expressed in Re Martyn and Repatriation Commission [2006] AATA 895, we further find that this was an integral part of his death. See also Hayes v Repatriation Commission [2005] FMCA 125.
52. As predicated by the Full Federal Court in Repatriation Commission v Deledio (1998) 83 FCR 82, we must follow further process. The first step in that process, set out at [97]-[98], is this:
The Tribunal must consider all the material which is before it and determine whether that material points to a hypothesis connecting the injury, disease or death with the circumstances of the particular service rendered by the person. No question of fact finding arises at this stage. If no such hypothesis arises, the application must fail.
53. The applicant's case proceeded on the basis that the kind of death met by the veteran was death by malignant neoplasm of the anal canal. The material presented to us drew a connection between the veteran’s operational service and his death by that malignancy, being the medical evidence set out and discussed above. The respondent also conceded that the smoking history of the veteran did satisfy factor 5(a) of SoP 34 of 2002. We therefore find that material before us points to the hypothesis and that it is manifestly reasonable.
54. Given our finding that at least one of the kinds of death met by the veteran was death by malignant neoplasm of the anal canal, and our positive finding as to the reasonableness of the hypothesis connecting that kind of death with the circumstances of the veteran’s service, the widow’s application will succeed unless we are satisfied beyond reasonable doubt that his death was not war-caused.
are we satisfied beyond reasonable doubt that the death was not war-caused?
55. As the kind of death is established to our satisfaction and the hypothesis is reasonable, it follows that Mr Allen’s death will be war-caused pursuant to section 120(1) unless we are satisfied, beyond reasonable doubt, that there is no sufficient ground for making that determination. In our view, after considering the medical opinions and evidence before us, nothing essential to the hypothesis is disproved beyond reasonable doubt and, applying the same standard, no fact contrary to the hypothesis is proved. Thus we find the death of the veteran arose out of, or was attributable to his eligible war service in accordance with section 8(1).
56. It follows, therefore, that we find Mr Allen’s death was war-caused pursuant to subsections 8(1) and 120(1) of the Act.
decision
57. The decision of the Veterans’ Review Board dated 8 December 2006 is set aside and substituted is the decision that the veteran’s death was war-caused. The earliest date of effect is 2 September 2005. The matter is remitted to the Commission for determination of Mrs Allen’s pension entitlements.
I certify that the 57 preceding paragraphs are a true copy of the reasons for the decision herein of Ms Robin Hunt, Senior Member and Dr Saw Hooi Toh, Member
Signed: .........................[Sgd].............................
Jennifer Wong, AssociateDate of Hearing 9 February 2009
Date of Decision 11 June 2009
Counsel for the Applicant Mr M Vincent
Solicitor for the Applicant Kemp & Co. Lawyers
Advocate for the Respondent Mr T O'Reilly, Department of Veterans' Affairs
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