Audet and Repatriation Commission
[2002] AATA 1220
•25 November 2002
DECISION AND REASONS FOR DECISION [2002] AATA 1220
ADMINISTRATIVE APPEALS TRIBUNAL )
) No N2001/104
VETERANS' APPEALS DIVISION )
Re VIRGINIA AUDET
Applicant
And REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Ms S M Bullock, Senior Member Dr J D Campbell, Member
Date25 November 2002
PlaceSydney
Decision The decision under review is set aside pursuant to section 43 of the Administrative Appeals Tribunal Act 1975 and in substitution therefor, the Tribunal decides that: 1. The death of Alfred Alexander Audet is war-caused pursuant to subsection 8(1)(b) of the Veterans' Entitlements Act 1986; 2. Mrs Virginia Audet is eligible for a War Widow's Pension from and including 12 October 1999.
..............................................
Ms S M Bullock Presiding Member
CATCHWORDS
VETERANS' AFFAIRS - Entitlement - War Widow's Pension - Reasonable Satisfaction - Cause of Death - Chronic Obstructive Airways Disease - Carcinoma of the Prostate
LEGISLATION
Veterans' Entitlements Act 1986 (Cth) ss 8, 11, 13, 120, 120B
AUTHORITIES
Repatriation Commission v Law (1981) 147 CLR 635
Repatriation Commission v Law (1980) 31 ALR 140
Langley v Repatriation Commission (1993) 43 FCR 194
Doolette v Repatriation Commission (1990) 21 ALD 489
Holthouse v Repatriation Commission (1982) 1 RPD 287
Repatriation Commission v Hayes (1982) 43 ALR 216
REASONS FOR DECISION
25 November 2002 Ms S M Bullock, Senior Member Dr J D Campbell, Member
This is an application for review to the Administrative Appeals Tribunal ("the Tribunal") from a decision of the Veterans' Review Board ("the Board") dated 30 October 2000 (T18) which affirmed a decision of the Repatriation Commission ("the Commission") dated 20 December 1999 (T2) that Mr Alfred Alexander Audet's death was not war-caused.
A hearing was held in Sydney before the Tribunal on 25 March 2002. Mrs Audet provided evidence as did Dr D Hull, General Practitioner, by telephone. Evidence was also provided by Dr M G Miller, Consultant Physician; Professor J Levi, Consultant Physician specialising in the field of medical oncology; and, Dr J Wong, Urological Surgeon. Mrs Audet was represented by Mr M Vincent of Counsel and the Respondent, the Commission, was represented by Ms P Hook, Departmental Advocate. The Tribunal took into evidence documents lodged pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 ("T Documents", T1 - T21) and the following exhibits:
Exhibit No. Description Date
A1 Report of Dr MG Miller, Consultant Physician 24 October 2001
A2 Extract from Shorter Oxford English Dictionary 1973, Third Edition – definition of "from"
R1 Referral letter to Professor J Levi, Consultant Physician & Medical Oncologist, Director of the Department of Medical Oncology, Royal North Shore Hospital; Report of Professor J Levi 12 November 2001 12 December 2001
R2 Clinical Notes from Dr J Wong, Urological Surgeon Various
R3 Medical Records from Strathfield Private Hospital concerning Mr A Audet Various
R4 Medical Records of Dr D Hull, General Practitioner Various
LEGISLATION
A decision in this matter requires consideration of the Veterans' Entitlements Act 1986 ("the Act").
Section 8 of the Act deals with war-caused death and states as relevant:
"8 War-caused death
(1)Subject to this section, for the purposes of this Act, the death of a veteran shall be taken to have been war-caused if:
(a)the death of the veteran resulted from an occurrence that happened while the veteran was rendering operational service;
(b)the death of the veteran arose out of, or was attributable to, any eligible war service rendered by the veteran;
(c)the death of the veteran resulted from an accident that occurred while the veteran was travelling, while rendering eligible war service but otherwise than in the course of duty, on a journey to a place for the purpose of performing duty or away from a place of duty upon having ceased to perform duty;
(d)in the opinion of the Commission, the death of the veteran was due to an accident that would not have occurred, or to a disease that would not have been contracted, but for his or her having rendered eligible war service or but for changes in the veteran's environment consequent upon his or her having rendered eligible war service; or
(e) the injury or disease from which the veteran died:
(i)was suffered or contracted while the veteran was rendering eligible war service, but did not arise out of that service; or
(ii)was suffered or contracted before the commencement of the period, or last period, of eligible war service rendered by the veteran, but not while the veteran was rendering eligible war service;
and, in the opinion of the Commission, the injury or disease was contributed to in a material degree by, or was aggravated by, any eligible war service rendered by the veteran, being service rendered after the veteran suffered that injury or contracted that disease; or
(f)the injury or disease from which the veteran died is an injury or disease that has been determined in accordance with section 9 to have been a war-caused injury or a war-caused disease, as the case may be;
Note: The effect of paragraph (f) is that, if the veteran has died from an injury or disease that has already been determined by the Commission to be war-caused, the death is to be taken to have been war-caused. Accordingly the Commission is not required to relate the death to eligible war service rendered by the veteran and sections 120A and 120B do not apply.
but not otherwise."
Section 11 of the Act deals with dependants, and specifically a dependant in relation to a veteran includes a widow.
Section 13 of the Act deals with eligibility for pension and as relevant, states:
"13 Eligibility for pension
(1) Where:
(a) the death of a veteran was war-caused; or
(b)a veteran has become incapacitated from a war-caused injury or a war-caused disease;
the Commonwealth is, subject to this Act, liable to pay:
(c)in the case of the death of the veteran—pensions by way of compensation to the dependants of the veteran; or
(d)in the case of the incapacity of the veteran—pension by way of compensation to the veteran;
in accordance with this Act."
As Mr Audet rendered eligible service, the applicable standard of proof is that in subsection 120(4) of the Act, which requires that the Tribunal decides such matters to its reasonable satisfaction. Subsection 120(4) of the Act states:
"(4) Except in making a determination to which subsection (1) or (2) applies, the Commission shall, in making any determination or decision in respect of a matter arising under this Act or the regulations, including the assessment or re-assessment of the rate of a pension granted under Part II or Part IV, decide the matter to its reasonable satisfaction.
Note: This subsection is affected by section 120B."
The Tribunal must also consider Mrs Audet's application for a Widow's Pension in light of section 120B of the Act which requires that the determination be made to a decision-maker's reasonable satisfaction in accordance with any Statement of Principles issued by the Repatriation Medical Authority ("RMA") or any relevant determination or declaration under the Act. The Tribunal considers that the relevant Statement of Principles is Instrument No 85 of 1999 concerning Malignant Neoplasm of the Prostate.
ISSUESThe issues to be determined in this matter are:
(a)What is the late veteran's cause of death;
(b)Whether or not Mr Audet's death was caused, contributed to, or aggravated by his eligible war service;
(c)Whether or not Mrs Audet is eligible to receive a War Widow's Pension.
BACKGROUND
10. The following information is provided by way of background and the information contained within is not disputed.
Mr Alfred Alexander Audet rendered eligible service in the Australian Army from 5 June 1941 until 16 February 1946 (T3, pp10,11).
Mr Audet had the accepted war-caused conditions of bronchial asthma, functional chest pain, bilateral sensorineural hearing loss and chronic obstructive airways disease. His non -accepted conditions are postural hypotension and death.
Sadly, on 11 October 1999, Mr Audet died in Strathfield Private Hospital, Strathfield in Sydney aged 84 years. The Death Certificate recorded the cause of death as:
"(I) Metastatic carcinoma of prostate 5 Years". (T12)
On 16 December 1999, Mrs Virginia Audet lodged a claim for a War Widow's Pension (T14). Mrs Audet contended that her late husband's accepted condition of chronic obstructive airways disease contributed in a significant way by bringing about his death prematurely (T14, p19).
On 20 December 1999, the Commission determined that Mr Audet's death was not related to service. The Commission found the cause of Mr Audet's death was metastatic carcinoma of the prostate. The Commission noted the supportive statements from Dr D Hull, General Practitioner and Dr J Wong, Urological Surgeon, that Mr Audet's chronic obstructive airways disease contributed to his death. The Commission's delegate referred to the Statement of Principles and while noting that Dr Wong had opined that chronic obstructive airways disease had contributed to Mr Audet's final demise because it weakened his ability to breath, this did not alter the delegate's view that the terminal events were the direct consequence of the progression of the late veteran's metastatic carcinoma of the prostate (T2,pD; T15, p25).
On 30 December 1999, Mrs Audet lodged an application for review to the Board. She noted that the Death Certificate was incorrect in its record of the cause of death (T16).
On 30 October 2000, the Board affirmed the Commission's decision (T18). The Board noted the opinions of Dr D Hull, General Practitioner, and Dr J Wong, Urological Surgeon, referring to the conditions contributing to Mr Audet's death being chronic obstructive airways disease, auricular fibrillation, metastatic carcinoma of the prostate and metastatic liver disease and liver failure. In the Board's view, while both doctors noted the contributory nature of the chronic obstructive airways disease, this did not point, in the Board's view, to any acceleration of the veteran's terminal condition due to that condition. The Board also noted from the clinical notes that oxygen made available to Mr Audet could not be tolerated, when in the Board's view, in the normal course, it may have been expected to assist his breathing problems associated with chronic obstructive airways disease (T18, p35).
On 24 January 2001, Mrs Audet lodged an Application for Review to the Tribunal (T1, pA).
EVIDENCE OF MRS VIRGINIA AUDET
11. Mrs Audet told the Tribunal that her husband always had difficulty with breathing. He had this problem when they married. He frequently had time off work because of bronchial asthma.
12. Mr Audet would use a broncho-dilator puffer to assist his breathing difficulties and would often have to stay in a bed. He would also take ventolin via a nebuliser. Mr Audet was a laboratory assistant at the University of Sydney and the Professor with whom he worked was very understanding about his absences due to his ill health.
13. Over the years, Mrs Audet noted that her husband's bronchial condition worsened and he was particularly bad in summer.
14. In relation to Mr Audet's prostate cancer, Mrs Audet could not recall when this was diagnosed. After the diagnosis, Mr Audet went into remission but became ill again. Prior to his final admission to Stathfield Private Hospital, Mr Audet had been sick in bed for approximately two weeks. Mr Audet tried to get out of bed, but during the fortnight prior to his admission Mrs Audet recalled that her husband's breathing was a real difficulty for him. Dr Hull, the General Practitioner, undertook home visits and told Mrs Audet that her husband had a breathing problem and that something was wrong with his chest. Mrs Audet had called Dr Hull because her husband's health was "so low". Mrs Audet also phoned Dr D Wong, Urological Surgeon. Following his hospital admission, Mr Audet's health quickly deteriorated and he died. Mrs Audet told the Tribunal that she now realises that her husband was dying when he was admitted to hospital. Mrs Audet stated that when Mr Audet was in hospital, she could not hear him breathing. She noted that her husband always had a cough and this was evident in hospital.
EVIDENCE OF DR D HULL, GENERAL PRACTITIONER
15. Dr Hull told the Tribunal that he had treated Mr Audet for approximately ten years. During this time he suffered from bronchitis and chronic asthma as ongoing problems. These conditions were intermittently quite severe. Mr Audet was treated with bronchial dilators in the form of various puffers and also was treated with ventolin via a nebuliser. Mr Audet was in fact under continuous treatment for asthma. Dr Hull reported that in the last two or three years of his life, Mr Audet increasingly consulted him. Dr Hull opined that the changes in Mr Audet's lungs were progressive.
16. While Mrs Audet had stated that her husband had pneumonia, Dr Hull stated that he did not think that Mr Audet went as far as suffering from pneumonia but he did have bouts of acute bronchitis superimposed on asthma and this then required specialist intervention.
17. In the last month or two of Mr Audet's life, he had bronchial problems and Dr Hull had to visit him at home especially in the two weeks before Mr Audet's final hospitalisation. Mr Audet's heartbeat was very irregular and he had marked shortness of breath. Mr Audet was admitted to hospital under the care of the Specialist Physician, Dr Swinburn, and the treating Urological Surgeon, Dr Wong. Dr Hull visited Mr Audet in hospital in the last days of his life, but he was not involved in his treatment at that time. Dr Hull noted that Mr Audet's health deteriorated very rapidly and he was very short of breath.
18. Dr Hull told the Tribunal that the reason for Mr Audet's hospitalisation was because of his severe shortness of breath with irregularity of heartbeat and swelling of his feet. Dr Hull observed that Mr Audet was very ill and very distressed with his breathing difficulties. Dr Hull noted that Mr Audet did not have oxygen when Dr Hull treated him. In relation to heart problems, there could be other causes for this, but given Mr Audet's history and knowing of his chronic obstructive airways disease, Dr Hull opined that this can contribute to the condition of "cor pulmonale" which is heart failure secondary to chronic lung problems. Dr Hull did not consider that Mr Audet was suffering from liver failure just before he was hospitalised.
19. Dr Hull is still of the very strong opinion as expressed in his letter dated 1 December 1999 (T13, p14-15), that it was Mr Audet's war-caused chronic obstructive airways disease and the terminal development of auricular fibrillation which were significant conditions that contributed to Mr Audet's death, but not related to the disease causing his death (T13, p15). Dr Hull stated to the Tribunal that Mr Audet had chronic obstructive airway disease for many years and that this can cause the development of a heart failure. Dr Hull noted Professor Levi's finding of Mr Audet developing bronchopneumonia in hospital. Dr Hull did not know what happened in the last few days of Mr Audet's hospitalisation. If Mr Audet did have bronchopneumonia, this would lend great support to Dr Hull's opinion that had he not had the chronic obstructive airways condition over many years, he would not have died with bronchopneumonia being the terminal event. Dr Hull opined that Mr Audet would have died of prostate cancer eventually, but it was not that condition which caused Mr Audet to be hospitalised in Strathfield Private Hospital. He was hospitalised because he required specialist attention for his breathing difficulties. Dr Hull noted that Mr Audet could have lived at least two or three weeks longer. Dr Hull concluded that the bronchopneumonia described by Professor Levi and Dr M G Miller, Consultant Physician, greatly sped up Mr Audet's death.
20. Dr Hull explained that the link between bronchopneumonia and chronic obstructive airways disease is that the lungs are in a debilitated state and highly prone to an infection. Accordingly, the Death Certificate is incomplete, Dr Hull opined. If Dr Hull had completed the Death Certificate, he would have noted that chronic obstructive airways disease was a contributing factor because it accelerated Mr Audet's death. Dr Hull further opined that there was a fatal contribution of factors of years of airways problems in addition to the prostate cancer.
21. Dr Hull opined that pneumonia is not necessarily a terminal event for carcinoma of the prostate and that usually the terminal event would be from the metastatic spread of the cancer.
22. Dr Hull reiterated that Mr Audet would not have died at that time if he did not have the chronic obstructive airways disease which had weakened his lungs. Without the pre-existing condition, Mr Audet would have lived longer. The debilitation to Mr Audet's lungs over ten years was significant in the contribution to Mr Audet's accelerated death. The Death Certificate was deficient in that it had not mentioned this far reaching condition.
EVIDENCE OF DR MG MILLER, CONSULTANT PHYSICIAN
23. Dr Miller prepared a report dated 24 October 2001 (Exhibit A1). Dr Miller had been present during Dr Hull's telephone evidence and stated that Dr Hull's opinion confirmed his own view. Dr Miller noted that Dr Hull was Mr Audet's treating local doctor and accordingly would be expected to know a great deal more about Mr Audet's treatment than any other doctor providing a medico-legal opinion. Dr Miller did however disagree with Dr Hull's belief that bronchopneumonia was not the cause of Mr Audet's death. Dr Miller stated that he considered that bronchopneumonia indeed was the cause of death. Dr Miller emphasised that, in his experience, bronchopneumonia is usually the determined cause of death and that heart failure was complicated, in Dr Miller's opinion, by bronchopneumonia. Dr Miller explained that at what point cancer kills a person is very hard to determine. This is so, because a patient is usually so debilitated and that death is either from a chest infection, which causes bronchopneumonia, or from heart failure.
24. Dr Miller noted that Mr Audet had atrial fibrillation, but this was not in Dr Miller's opinion, caused by the cancer of the prostate. Dr Miller noted from the medical evidence that Mr Audet had a heart complication, which he noted Dr Hull considered occurred about ten days before Mr Audet died. That was due to an atrial fibrillation developing. A differential diagnosis for heart failure could have been that Mr Audet's liver disease caused by the cancer then interfered with his plasma protein to a degree that he could have developed an ongoing chest infection, which caused shortness of breath. Dr Miller had seen the cardiograph taken in Strathfield Private Hospital which showed atrial fibrillation. There is no way to determine from that cardiograph whether there was cor pulmonale or not, because the characteristic of cor pulmonale is that there is strain on the heart because of the lungs.
25. There is no doubt in Dr Miller's mind that Mr Audet suffered a chest infection and Dr Miller agreed entirely with Dr Hull that this accelerated Mr Audet's death. Dr Miller thought that Mr Audet would have lived for months, had this event not occurred. Dr Miller reached this view particularly as he noted that Dr Hull had stated that it was not Mr Audet's cancer which put him into a hospital. Dr Miller opined that it was highly probable in the vicinity of 90 per cent, that it was the breathing difficulties, which caused or contributed to Mr Audet's death.
26. In relation to Professor Levi's report, Dr Miller stated that Professor Levi is a very experienced and highly respected Oncologist. Dr Miller did not question any of what Professor Levi opined in relation to the oncological side of Mr Audet's illness.
27. In relation to Professor Levi's discussion at page 5 of his report (Exhibit R1) of Mr Audet having "right sided bronchopneumonia", Dr Miller noted that this is a contradiction in terms as bronchopneumonia is always bilateral. There was evidence, in Dr Miller's view, that Mr Audet had a chest infection and that occurs with a consolidation in the right lung. Mr Audet may have had a consolidation in the right lung, which was pneumonia, but which was not bronchopneumonia, although Dr Miller stated that this is an academic point. In relation to Professor Levi's reference to Mr Audet's long history of asthma and chronic obstructive pulmonary disease that deteriorated slowly over a number of years, associated only with a moderate degree of impairment by late 1999, Dr Miller disagreed with this strongly. In this regard, Dr Miller noted that there was a blood oxygen saturation level of 90 per cent which indicates more than a mild or moderate chronic obstructive airways disease. There was another reading of 84 per cent. Noting Mrs Audet's history of her husband's chest and lung problems, and the evidence of Dr Hull, Dr Miller opined that Mr Audet had moderate to severe chest problems. Furthermore, noting Dr Hull's record of Mr Audet's MET's rating, of two to three, that indicates a very limited activity level.
28. Dr Miller disagreed entirely with Professor Levi's opinion that Mr Audet's cause of death was his metastatic carcinoma of the prostate. In Dr Miller's opinion, a number of factors contributed to Mr Audet's death. In this regard, Dr Miller considered that the development of pneumonia occurred because Mr Audet's lungs were damaged, because he had heart failure, because his liver was pressing on his diaphragm and because he was very weak and could not breathe. Furthermore, Dr Miller did not agree with Professor Levi's opinion that the development of atrial fibrillation and oedema was not due to a diagnosis of cor pulmonale but was rather associated with the deterioration of Mr Audet's condition in relation to his cancer of the prostate. Dr Miller opined that atrial fibrillation is caused by cardiac problems or acute infections or furthermore by underlying disturbances of the heart rhythm associated with other conditions which are not relevant to Mr Audet. Dr Miller opined that cor pulmonale is a potent cause of atrial fibrillation and Dr Miller was inclined to think that Mr Audet did have this. Dr Miller stated that his opinion in relation to the fibrillation was most certainly within the field of his expertise as a physician.
29. Referring to Mrs Audet's evidence that her husband always had a cough but by the time he was admitted to the hospital, he was unable to cough, Dr Miller stated that this evidence suggested that Mr Audet was deteriorating very rapidly. The reason he was unable to cough would have been due to a weakness and the fact that he had a very large liver which had been present for a long period of time. Dr Miller opined that the liver was not suddenly becoming acutely large, but had been doing so for months. This would put pressure on the diaphragm but would not, Dr Miller stated, be the reason why he was able to cough before and not able to cough after hospital admission. Mr Audet was unable to cough because of his weakness associated with the chest infection.
30. Dr Miller stated that it was not likely that liver metastases had anything to do with respiratory failure. Liver metastases would cause liver failure where bronchopneumonia and chronic obstructive airways disease and asthma would cause respiratory failure. Dr Miller noted that liver failure can cause heart failure indirectly as a patient may experience anaemia and that can contribute to an underlying heart disease or lung disease. Dr Miller concluded that the likely cause of Mr Audet's atrial fibrillation would have been something that happened approximately ten days prior to his death. The fact that he had a normal ECG in February 1999 would be evidence towards a cor pulmonale, a later complication.
31. In the final analysis, Dr Miller's view is that a chest infection developed later into bronchopneumonia and perhaps precipitated atrial fibrillation which was quite unassociated with his carcinoma of the prostate. Also to be taken into account was the debility associated with the radiotherapy superimposed on the fact that Mr Audet had underlying respiratory problems which were moderate to severe, and that this contributed and accelerated the development of his bronchopneumonia. Mr Audet was a man who had multiple causes for death of which chronic obstructive airways disease and asthma were factors contributing to it, following a chest infection which was almost certainly bronchopneumonia but could have been pneumonia. Mr Audet had heart failure and the probable cause of heart failure was the chest infection. It was certainly not a result of the carcinoma of the prostate, Dr Miller opined. Thus, Dr Miller concluded that the two main causes of Mr Audet's death were bronchopneumonia, which was the terminal event, and underlying carcinoma of the prostate. Referring to Dr Wong's statement in his Clinical Notes concerning Mr Audet's death, "secondary to respiratory failure/CCF/liver failure/CaP. mets" (Exhibit R2, p30), Dr Miller agreed that this would be a more accurate reflection of the causes of death which should have been recorded in a Death Certificate for Mr Audet.
EVIDENCE OF PROFESSOR J LEVI, CONSULTANT PHYSICIAN, MEDICAL ONCOLOGIST, DIRECTOR OF MEDICAL ONCOLOGY, ROYAL NORTH SHORE HOSPITAL
32.Professor Levi provided a report dated 12 December 2001 (Exhibit R1). Professor Levi opined that during the period of Mr Audet's last admission to the hospital there was a progression of metastatic disease of his liver. Mr Audet's terminal situation was determined by liver dysfunction and ultimate liver failure with associated oedema, ascites and pleural effusions. Later in evidence, Professor Levi withdrew his reference to marked ascites noting that the first reference to it occurred on 9 October 1999, where it was noted in the Strathfield Private Hospital Clinical Notes that there was a small amount of ascites. The absence of marked ascites did not cause Professor Levi to change his view because the issue of importance to him was that of liver failure. Professor Levi noted that the indicators of liver failure are jaundice and that the liver is hardened, irregular and enlarged. Mr Audet's inability to move around as reported in the Clinical Notes and defined by Dr Hull had nothing to do with the liver condition, Professor Levi stated, noting that in any event, these symptoms were new developments.
33.Professor Levi explained that in the context of the cause of Mr Audet's death being metastatic carcinoma of the prostate, his terminal event was right sided bronchopneumonia and finally death. Professor Levi noted that as the liver fails, it is unable to metabolise normally and there is a progressive accumulation of fluid in the abdomen which ultimately filtrates into the lungs as well as into the pleural spaces around the lungs. This process then leads to the development of ascites and pleural effusions which restrict the breathing capacity. When a person cannot breathe normally and with the terminal condition weakening the patient, there are no normal breathing reflexes. This situation leads to the development of bronchopneumonia and then death. Professor Levi opined that the ascites and the liver failure predisposed Mr Audet to pneumonia. His cerebral capacity to breathe was compromised. Another factor was the provision of pain-killing narcotics, which also caused a more central failure of Mr Audet's breathing capacity and other mechanisms.
34.In relation to whether or not bronchopneumonia was the proximate or ultimate cause of Mr Audet's death, Professor Levi noted it was present at the time of death and its presence was therefore part of death but was not the cause of Mr Audet's death. The cause of Mr Audet's death was that everything failed. The bronchopneumonia was due to an accumulation of secretions because Mr Audet could not breathe properly.
35.Professor Levi noted that there was no doubt that Mr Audet had chronic obstructive airways disease first diagnosed in the late 1970s and that he gradually deteriorated throughout the 1980s and 1990s. It was clearly a medical condition of significance to Mr Audet throughout that period of time and remained a condition of significance up to the time when Mr Audet developed metastatic prostate cancer. Once he developed metastatic prostate cancer, it became rapidly progressive and the chronic airways condition was no longer playing a role in Mr Audet's deterioration, Professor Levi opined. Professor Levi stated that it is a classical association for a patient not suffering from underlying chronic obstructive airways disease to nevertheless develop bronchopneumonia as a terminal event. Professor Levi opined that there was no evidence available to him to suggest that there was a further deterioration of Mr Audet's chronic obstructive pulmonary disease or airways disease following the progressive nature of the cancer of the prostate. The only way it would be possible to have assessed a deterioration of the chronic airways disease would be if further lung functions studies were undertaken. There was nothing in the clinical notes which indicated to Professor Levi that once Mr Audet went into the terminal phase of his disease, developing ascites and pleural effusions, that he did in fact have congestive cardiac failure.
36.In relation to the amended Death Certificate postulated by Dr Miller, Professor Levi agreed that bronchopneumonia was present as a phenomenon at the time of Mr Audet's death. However, it was not, in Professor Levi's opinion, the specific cause of death. The bronchopneumonia was part of the terminal sequence of events. Its presence was indicative of the overall failure of Mr Audet's body. In other words, Mr Audet was dying from all aspects of his prostatic cancer disease and bronchopneumonia was a part of it, but it was not specifically the cause of death. The fact that Mr Audet had a chronic obstructive lung disease, in Professor Levi's view, was inconsequential in that he would have suffered respiratory difficulties at that time of his death anyway because of the situation in which he was in. He did not agree that having a pre-existing lung condition would have made any difference.
37.Professor Levi opined that basically the respiratory system probably shut down around the same time as Mr Audet's heart and after that his brain. Professor Levi noted that as Mr Audet's body was shutting down, a variety of things happened including his inability to clear secretions from his lungs, which effectively blocked the airways and resulted in lung collapse. This then was shown in the x-ray picture of bronchopneumonia. Mr Audet had a multi-system organ failure and was dying because of his metastatic disease being so advanced that it effectively prevented his liver from functioning. When Mr Audet's liver was not functioning, then it was preventing other organs from functioning and hence the general shut down of the body system. There was a combination of factors all impacting upon Mr Audet's death.
38.Professor Levi did not agree with the description in Clause 8 of the relevant Statement of Principles concerning Malignant Neoplasm of the Prostate that indicated that death from malignant neoplasm of the prostate included death from a terminal event or condition that was contributed to by the person's malignant neoplasm of the prostate. Professor Levi preferred to conclude that there were terminal events in Mr Audet's case, which were part of the death process as distinct from causation of a death. Professor Levi stated that without liver failure arising out of the metastatic prostate cancer, all the other multi-system failures would not be happening.
39.Professor Levi did not know of Dr Hull's evidence that it had been because of his lung and breathing problems that Mr Audet was finally admitted to the hospital. He also did not know of Mrs Audet's evidence that her husband would often have to take off a week or so from work, particularly during summer, because of lung-related problems. This new evidence did not cause Professor Levi to change his opinion. He reiterated that he understood that Mr Audet clearly had his lung problems as a definite significant factor in his health. If nothing else had intervened, these problems would ultimately have been associated within developing further respiratory problem. But something did intervene and that was the carcinoma of the prostate and the bronchopneumonia occurred in the context of that condition because his body was shutting down. Whether or not Mr Audet had lung problems would not have caused his death to occur at a later time. Mr Audet would have, Professor Levi opined, died at the same time of liver failure, which was shutting down the multi-systems of the body.
40.Professor Levi noted that Dr Miller and Dr Hull disagreed with his opinion. Mr Audet would have developed bronchopneumonia, in Professor Levi's opinion, as a part of his terminal sequence of events whether or not he had chronic obstructive airways disease or not. Professor Levi emphasised that to try and make an issue of Mr Audet's chronic obstructive lung disease being a factor in speeding up his death was inappropriate and not correct. Professor Levi conceded that the time frame of life may have been extended somewhat if Mr Audet did not have chronic obstructive airways disease but only in the context that it could have been 24 hours later, but not much later. Professor Levi acknowledged that there was a two or three weeks period before Mr Audet's demise, where the lung condition might have impacted. Professor Levi concluded however that given all of the evidence, including that from Dr Hull and the hospital notes, it was not the lung condition which was significant in the causation of Mr Audet's death.
EVIDENCE OF DR J WONG, UROLOGICAL SURGEON
41.Dr Wong noted that he treated Mr Audet for his carcinoma of the prostate when he was in remission and then at the time of his 1999 admission to Strathfield Private Hospital, which Dr Wong had arranged. Dr Wong had examined Mr Audet on 2 September 1999 when he was managing. When Dr Wong saw Mr Audet again on 7 October 1999, he was very unwell. At that time, Dr Wong was not able to comment on Mr Audet's heart condition or whether he had atrial fibrillation. Dr Wong stated that Mr Audet was admitted to Strathfield Private Hospital as result of breathing difficulties, nausea and swelling and oedema of the lower limbs and not at that time because of his carcinoma of the prostate. Dr Wong informed the Tribunal that in hospital, he attended Mr Audet every day. He organised for Dr Swinburn, Consultant Physician, to look after Mr Audet because of his breathing difficulties.
42.Dr Wong opined that there was a combination of factors which caused Mr Audet's death. The factors were his carcinoma of the prostate and chronic obstructive airways disease. Dr Wong noted that before his death, Mr Audet had bronchopneumonia and ongoing chronic obstructive airways disease.
43.From the various tests undertaken over the course of Mr Audet's illness, Dr Wong noted that the carcinoma of the prostate was progressing slowly. Dr Wong stated that Professor Levi did not have all of the information and test results, for example, the PSA levels. If Professor Levi had had these results, particularly that of September 1999, he might have modified his opinion, because the PSA levels tested over time indicated a slow progression of the carcinoma of the prostate. Furthermore, Dr Wong opined that the most recent PSA test result indicated that the liver failure was not significant. Dr Wong noted that Mr Audet had low pulmonary reserves and liver failure. He was unable to shift the progress or improvement of these conditions. He was already compromised by these poor lung reserves and this was compounded further by the liver metastases. Dr Wong opined that it is not possible to say that liver failure as a part of the cancer of the prostate caused Mr Audet's death. The poor lung reserves accelerated his death.
44.Dr Wong stated that he has seen more deaths from prostate cancer then Professor Levi and could not agree with Professor Levi's conclusions in relation to Mr Audet. Mr Audet's sequence of events towards death was rare. The respiratory difficulties was partly due to his ascites.
45.From an ultrasound of the abdomen taken on 8 October 1999 (Exhibit R3, p58), Dr Wong opined that the results indicated that the degree of liver failure was not great. The CT scan of the abdomen and pelvis taken on 9 October 1999 (Exhibit R3, p59) confirmed Dr Wong's view that the degree of liver failure was not gross.
46.Dr Wong told the Tribunal he is convinced that Mr Audet would have lived much longer if not for his lung and breathing difficulties. Dr Wong reiterated that Mr Audet's liver failure and kidney failure were not so great as to cause his death at that time. Dr Wong concluded that Mr Audet would probably have lived for up to two years had it not been for these lung conditions.
SUBMISSIONS
47.Mr Vincent stated that Dr Hull and Dr Wong, who both treated Mr Audet, are convinced that Mr Audet's breathing difficulties severely affected him and contributed to his death. They are both of the opinion that Mr Audet would not have died when he did if not for the breathing difficulties as a result of his chronic obstructive airways disease. Dr Miller, who did not treat Mr Audet, was of a similar view. Professor Levi's opinion was based on his having examined medical documentation and not through any clinical association.
48.Mr Vincent submitted that the test in determining this matter is one of materiality and Professor Levi's opinion should be seen in that context. Much importance should be placed on the opinions of those doctors who were treating Mr Audet for some considerable time prior to his death and also at the time of the death when he was a patient in Strathfield Private Hospital. Dr Wong had opined that Mr Audet would have lived for another two years if not for his lung condition. The other opinions from Dr Hull and Dr Miller are that Mr Audet would certainly have lived longer, although they did not express a view as to it being years but rather in terms of months. There are three medical opinions which indicate a contribution to Mr Audet's death by his accepted condition of chronic obstructive airways disease. Professor Levi's view is a stance alone.
49.Mr Vincent submitted that Dr Wong clearly and cogently argued that the lung problems had a part to play in Mr Audet's death and indeed accelerated his death. This is a commonsense approach and should be relied on, Mr Vincent contended.
50.Considering Professor Levi's opinion, Mr Vincent submitted that in theory, the lung condition could contribute and conceptually it could make a difference, but Professor Levi was not prepared to support this opinion.
51.Mr Vincent submitted that medical evidence applies equally to subsections 8(1)(b) and 8(1)(f) of the Act. Referring to Repatriation Commission v Hayes (1982) 43 ALR 216, Keely J decided in the context of the Repatriation Act 1920 ("the 1920 Act") and considering the applicable provision, subsection 24(2)(a) of the 1920 Act, in regards to the use of the words "from which he died", there was nothing in those words which manifested any intention to require "a more strict test of causation" than if the words in subsection 24(2)(a) were "from which death resulted". Keely J stated (citing a passage from the judgment of Windeyer J in Commonwealth v Butler (1958) 102 CLR 465 at 479-80):
"Yet the application of the statute to the facts of this or any other case does not depend upon metaphysical speculation or the actual physiological circumstances accompanying death. It depends upon asking only whether death resulted from the injury (in this case from the occlusion of September 1955) in the ordinary acceptance of those words. The question obviously involves an idea of causal sequence. But it tends to misconception if the question that the Act postulates, namely 'did death result from the occlusion', be inverted to be 'was the occlusion the cause of death'. The inversion is merely linguistic; yet in its inverted form the question somehow seems more prone to attract to its answer expressions such as 'contributing factor', which are, it seems to me, only attempts to define or explain an abstract idea by phrases in which the same idea lurks. The words of the statute are more easily applied without exegetical glosses."
Keely J continued:
"I am not prepared to hold that the words 'the incapacity… from which he has died' in s 24(2)(a) could not, as a matter of law, apply to a case, where 'the ordinary answer of an ordinary man' (in the words of Windeyer J) would be that death has 'resulted' from incapacity in the left eye…"
52.Mr Vincent referred the Tribunal to the dictionary meaning of "from" in the Shorter Oxford English Dictionary 1973, Third Edition (Exhibit A2) at clause ten and 12 where the term is defined:
"10. Denoting derivation, descent, or the like; esp. 'noting progress from premisses to inferences' …
12. Denoting ground, reason, cause, or motive…"
The dictionary definition of "from" does not relate to directness as submitted by the Respondent, Mr Vincent opined. The Respondent has contended that the words "from which" as stated in subsection 8(1)(f) of the Act, require that the veteran died from a condition which is a more direct causal test then that expressed in the words "arose out of" or was "attributable to" and requiring a proximate relationship between the accepted disability and the veteran's death.
53.Mr Vincent submitted that the approach should be a commonsense one, noting the significant debilitation caused to Mr Audet by his accepted condition of chronic obstructive airways disease. This submission is based on the very strong opinions of treating doctors, Dr Hull, Dr Wong and by the medico-legal opinion of Dr Miller. Professor Levi's opinion deals with theoretical niceties, Mr Vincent contended. The Tribunal should however take into consideration the fact that the treating doctors are able to go beyond theoretical considerations.
54.Mr Vincent referred to the test in subsection 8(1)(f) of the Act noting that the Act is beneficial legislation and does not require the reconsideration of the cause or link when it has already been established. Thus, it is contended that Mr Audet's accepted condition of chronic obstructive airways disease contributed to the development of bronchopneumonia. Furthermore, pursuant to subsection 8(1)(f) of the Act, contribution to death by chronic obstructive airways disease, an accepted condition pursuant to section 9 of the Act, is taken to be war-caused without regard to section 120B of the Act.
55.Considering the relevant Statement of Principles concerning Malignant Neoplasm of the Prostate, Mr Vincent referred the Tribunal to Clause 8 and the definition of "terminal event" which 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."
Mr Vincent submitted that this Clause includes pneumonia but does not deny the possibility of multiple causes of death, which operated in Mr Audet's circumstances.
56.The Tribunal was further referred to Langley v Repatriation Commission (1993) 43 FCR 194 which found that if a disease contracted by a veteran is accelerated, whether that acceleration is little or considerable, the disease is worsened as a result of attribution to war service. In Doolette and Repatriation Commission (1990) 21 ALD 489, O'Loughlin J found that if death was caused because of the accelerated progress of a disease, and the acceleration was caused by a war-caused condition, the proper conclusion would be that death was contributed to by war service.
57.In the Applicant's Statement of Facts and Contentions, it is contended that in relation to the veteran's death being war-caused as required by subsection 8(1)(b) of the Act, for a death to be attributable to or arising out of war service, it is sufficient if the cause is one of a number of causes provided it is a contributing cause. It need not to be the sole or dominant cause, as discussed in the High Court decision Repatriation Commission v Law (1981) 147 CLR 635. The High Court noted with approval the Full Federal Court's decision in Repatriation Commission v Law (1980) 31 ALR 140 that the expression "arising out of" is satisfied by a less proximate causal relationship than the expression "caused by" or "resulting from". Furthermore it was noted that the expression "attributable to" involved an element of causation but it was sufficient if the cause was one of a number of causes provided, and that it was a contributing cause in the sense of contributing to the death of a veteran.
58.Ms Hook for the Respondent submitted that if there was no material difference between subsection 8(1)(b) and 8(1)(f) of the Act, as asserted by Mr Vincent, then why would the statute repeat the tests. Ms Hook submitted that the sections are different.
59.The Respondent contends that Mr Audet did not die from the accepted condition of chronic obstructive airways disease. There is a Statement of Principles concerning Malignant Neoplasm of the Prostate and this defines the terminal event. Ms Hook submitted that Mr Audet's General Practitioner, Dr Hull, is wrong in concluding that chronic obstructive airways disease contributed to death. Ms Hook submitted that the evidence not only from Dr Hull, but the other medical evidence is "all over the place" and confusing. In contrast, however, Professor Levi provided a clear clinical picture based on objective criteria and expert opinion. As an Oncologist, Professor Levi is well placed to provide an opinion, which the Respondent submitted the Tribunal should prefer. It is a medical issue which must be determined in this case, Ms Hook contended.
60.In relation to subsection 8(1)(f) of the Act, Ms Hook submitted that the Applicant has misconstrued the meaning of that subsection. Ms Hook accepted that subsection 8(1)(f) of the Act means that the accepted disability of chronic obstructive airways disease does not have to be determined afresh by the Tribunal, in accordance with the relevant Statement of Principles, before its contribution to Mr Audet's death could be considered. However, Ms Hook submitted that there is still a causal connection which must be established before it can be said that Mr Audet's death was war-caused. Subsection 8(1)(f) of the Act uses the words "from which" which requires connection to a particular disease or injury rather than to service "per se".
61.Ms Hook noted that a similar phrase to "the injury or disease from which the veteran died" appeared in subsection 24(2)(a) of the 1920 Act and was examined in detail by the Federal Court in Repatriation Commission v Hayes (supra). In that case, Keely J held that the Repatriation Review Tribunal had erred when it decided that the test was satisfied by finding that the incapacity "played some material part" in the veteran's death. Keely J held that it could be satisfied where "'the ordinary answer of the ordinary man'… would be that death has 'resulted' from incapacity…".
62.Ms Hook submitted that the phrase "from which the veteran died" contained within subsection 8(1)(f) of the Act is a more direct causal test than the phrases "arose out of, or was attributable to", and requires a proximate relationship between the accepted disability and the veteran's death.
63.On the balance of probabilities, Ms Hook submitted that the Mr Audet's accepted condition of chronic obstructive airways disease is not the injury or the disease from which he died. In this regard, Ms Hook relied on Professor Levi's report (Exhibit R1) in which he concluded that it was his opinion that Mr Audet's cause of death was metastatic carcinoma of the prostate and the bronchopneumonia was a terminal event in this context.
64.Accordingly, Ms Hook contended that subsection 8(1)(f) has no application in this case and the Tribunal must consider instead subsection 8(1)(b) of the Act. Referring to the relevant Statement of Principles concerning Malignant Neoplasm of the Prostate, Ms Hook noted the various factors and clause 8 which deals with death from malignant neoplasm of the prostate in relation to a person, which includes death from a terminal event. Ms Hook contended that there is no convincing evidence before the Tribunal that Mr Audet's malignant neoplasm of the prostate is related to his eligible war service on the balance of probabilities. In this regard, the evidence of Professor Levi should be preferred and the Tribunal should find that on the balance of probabilities, Mr Audet's chronic obstructive airways disease did not contribute to his death. Accordingly, Ms Hook submitted that the decision under review should be affirmed.
FINDINGS
The Tribunal has reached a decision in this matter, taking into account the oral and documentary evidence, the legislation and case law.
Mr Audet had as accepted war-caused conditions bronchial asthma, functional chest pain, bilateral sensorineural hearing loss and chronic obstructive airways disease. The Tribunal has in evidence a Death Certificate which states that the cause of Mr Audet's death is metastatic carcinoma of the prostate of five years duration (T12). There is conflicting medical evidence as to what is the cause of Mr Audet's death and a contention that the Death Certificate does not truly reflect the true cause of death. Professor Levi's opinion is that while Mr Audet was suffering from moderate intensity chronic obstructive pulmonary disease, his cause of death was determined by the development of metastatic carcinoma of the prostate associated with liver metastases, progressive liver dysfunction and failure resulting in obtundation and death. The bronchopneumonia which occurred in the two to three days prior to death related to metastatic carcinoma of the prostate and liver failure, Professor Levi opined.
Dr Hull, Mr Audet's treating General Practitioner, and Dr Wong, Mr Audet's treating Urologist, hold different views to that of Professor Levi. The treating doctors opine that there was a very strong contribution to Mr Audet's death by his chronic obstructive airways disease. Dr Wong, who arranged Mr Audet's final admission to hospital, stated that the admission was organised because of Mr Audet's breathing difficulties and not because of the carcinoma of the prostate. A further PSA test in September 1999, which Professor Levi did not have, indicated that the progress of the carcinoma of the prostate was in fact slower than asserted by Professor Levi. Dr Wong's opinion is that if Mr Audet did not have his breathing difficulties, he would have lived longer and in his view, up to two years. The question of liver failure and renal failure, Dr Wong did not, on his assessment and from objective clinical findings, consider as serious as asserted by Professor Levi. Furthermore, Dr Hull's opinion also contrasts with Professor Levi's statement of Mr Audet having only a moderate degree of impairment from his chronic obstructive airways disease. By late 1999, Dr Hull had opined that Mr Audet had a severe chronic obstructive airways disease and this view was also held by Dr Miller and Dr Wong. Dr Hull had opined that Mr Audet had cor pulmonale prior to death which was evidenced by oedema and atrial fibrillation. Professor Levi's view is that the atrial fibrillation was due to a deterioration of Mr Audet's condition related to the metastatic carcinoma of the prostate. Dr Miller's view was that Mr Audet's chronic obstructive airways disease contributed to his death by bronchopneumonia .
The Tribunal is not unused to conflicting medical opinions. In the circumstances of this case, the Tribunal must make its decision to its reasonable satisfaction based on all the available evidence. All of the medical opinion has been provided in a professional and objective manner. The Tribunal is persuaded however by the medical opinions of Mr Audet's long standing treating doctors, namely Dr Hull, his General Practitioner and Dr Wong, his Treating Urologist. Furthermore, Consultant Physician, Dr Miller, supports the opinions of the treating doctors.
While Professor Levi's opinion provides a theoretical rationale for the cause of Mr Audet's death, to that, in the Tribunal's view, must be applied the context and clinical framework. The valuable insight and opinion of treating doctors of long standing provide not only a theoretical basis but also clinical experience of the progress of Mr Audet's illness to eventual death.
On an appreciation of all medical evidence, the Tribunal finds that Mr Audet had severe chronic obstructive airways disease which led to his admission to Strathfield Private Hospital. While there was a presence of the carcinoma of the prostate including the metastatic consequences of this disease, the contribution of the chronic obstructive airways disease cannot be denied. As Dr Wong has suggested in light of objective medical testing not available to Professor Levi, while there had been progress of the carcinoma of the prostate, it had not been as rapid as opined by Professor Levi. Furthermore, it was not the consequences of the carcinoma of the prostate that caused Mr Audet's hospitalisation.
Both Dr Wong and Dr Hull are very clear that it was the breathing difficulties as a consequence of the chronic obstructive airways disease that precipitated Mr Audet's admission to hospital and this is supported by Dr Miller's opinion. It is also Mrs Audet's evidence that her husband was having severe breathing difficulties prior to his final admission to hospital. There is no doubt in the Tribunal's mind that there was a major contribution to Mr Audet's death by the carcinoma of the prostate, but the Tribunal considers that the death was accelerated by the chronic obstructive airways disease. The Tribunal considers that the contribution by the chronic obstructive airways disease is a material contribution. In such circumstances, where there is a material contribution to death by a condition caused by eligible war service, the Tribunal finds that whether or not the contribution is small or large, it does not detract from the Tribunal's findings that it is reasonably satisfied that Mr Audet's death is war-caused. As was stated in Holthouse v Repatriation Commission (1982) 1 RPD 287 at 288:
" The words '…has arisen out of, or is attributable to… ' require there to be a causal connection between the defence service and the incapacity or death. The words require that the defence service contribute in a material way to the incapacity or death. The connection need not be the sole, dominant, direct or proximate cause and effect. It is sufficient if there be a contributory cause or connection… "
In the Statement of Principles concerning Malignant Neoplasm of the Prostate, at Clause 8, a terminal event means the proximate or ultimate cause of death and includes pneumonia and respiratory failure. Death from malignant neoplasm of the prostate in its definition includes death from a terminal event or condition that was contributed to by the person's malignant neoplasm of the prostate. The Tribunal finds that the bronchopneumonia present at the time of Mr Audet's death in fact caused his death and the mechanism for this was via his chronic obstructive airways disease. Also contributing to his death was the malignant neoplasm of the prostate. Thus, pursuant to subsection 8(1)(b) of the Act, the Tribunal finds, that Mr Audet's death arose out of or was attributable to his eligible war service via the mechanism of his chronic obstructive airways disease. That this contribution may not have been be the sole or dominant cause cannot deny or disentitle Mr Audet from the contribution that the accepted chronic obstructive airways disease made to his loss of life.
The Tribunal has not found that subsection 8(1)(f) of the Act has application in this case, agreeing with the Respondent that subsection 8(1)(f) of the Act requires a more direct and causal relationship which seems to go against the material contribution of a number of factors to a veteran's death.
Accordingly, for all the reasons expressed above and in all of the circumstances, pursuant to section 43 of the Administrative Appeals' Tribunal Act 1975, the Tribunal sets aside the decision under review and substitutes its decision that pursuant to subsection 8(1)(b) of the Act, Mr Audet's death was caused by eligible war service and accordingly Mrs Audet is eligible for a War Widow's pension from and including 12 October 1999.
I certify that the 74 preceding paragraphs are a true copy of the reasons for the decision herein of Ms S M Bullock, Senior Member and Dr J D Campbell, Member.
Signed: .....................................................................................
Associate
Date of Hearing 25 March 2002
Date of Decision 25 November 2002
Representative for the Applicant Mr M Vincent of CounselSolicitor for the Applicant Ms M McCarthy, Vardanega Roberts, Solicitors
Representative for the Respondent Ms P Hook, Departmental Advocate
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