Audrey McCallum and Repatriation Commission
[2014] AATA 323
•26 May 2014
[2014] AATA 323
Division GENERAL ADMINISTRATIVE DIVISION File Number(s)
2012/3502
Re
Audrey McCallum
APPLICANT
And
Repatriation Commission
RESPONDENT
DECISION
Tribunal Senior Member J Toohey
Date of decision
Date of reasons
26 May 2014
27 May 2014
Place
Sydney
The Tribunal affirms the decision under review.
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Senior Member J Toohey
CATCHWORDS - VETERAN’S ENTITLEMENTS – claim for war widow’s pension – ‘kind of death’ – oesophageal cancer – prostate cancer – evidence oesophageal cancer hastened veteran’s death – whether oesophageal cancer a medical cause of death – kind of death not war caused – decision under review affirmed
Legislation
Veterans Entitlements Act 1986 s 120(4)
Cases
Collins v Repatriation Commission [2009] FCAFC 90
Re Valerie FayDoolette v Repatriation Commission [1990] FCA 178; (1986) 21 ALD 489
Repatriation v Hancock (2003) 37 AAR 383
REASONS FOR DECISION
Senior Member J Toohey
These written reasons reflect the reasons given orally at the conclusion of the hearing on 26 May 2014.
Mrs Audrey McCallum claims a war widow’s pension following the death of her husband, Ian McCallum, on 19 August 2010.
Following concessions on both sides, there remains a single issue for determination, being whether oesophageal cancer was a “kind of death” for the purposes of the Veterans Entitlements Act 1986. That issue is to be determined to the reasonable satisfaction of the Tribunal: s 120(4).
Mr McCullough was diagnosed with oesophageal cancer on 5 August 2010, two weeks before he died. His death certificate lists his causes of death as:
(a)Cancer oesophagus, 2 weeks
(b)Cancer prostate, years
Mr McCallum’s records indicate that his prostate cancer had its onset in late 1999, that he remained relatively well until late 2005 when it was found to have metastasised. He was treated and seems to have done well until late July 2010 when a bone scan revealed widespread metastases and a Prostate-Specific Antigen (PSA) level which had increased from 10 to more than 2000. He was admitted to St Vincent’s Hospital where an endoscopy on 5 August 2010 revealed evidence of tumour ulceration, believed to be a new primary carcinoma.
Because of Mr McCallum’s frail condition, no biopsy was performed but there seems little doubt, and Professor John Levi, medical oncologist, gave evidence this morning that it is reasonable to assume, that he had oesophageal cancer. Evidence from Mr McCallum’s daughter, Claire Baistow, that he had been vomiting and having trouble eating in the last year of his life, suggests he may have had the condition for quite some time. Professor Levi thought it reasonable to say it had been present for several months but, in the absence of a biopsy, he could not say what its extent was.
Professor Levi gave evidence that Mr McCallum’s oesophageal cancer caused nausea and vomiting; it was debilitating and a contributing cause to his death in the sense that it was a factor associated with his decline. Professor Levi was clear, however, that while it aggravated the circumstances of the progression of the prostate cancer, it did not affect the progress of the prostate cancer itself.
Professor Levi said he found no evidence in the clinical records suggesting Mr McCallum’s oesophageal cancer was advanced to the point that it was in the terminal stage. He said that, without treatment, Mr McCallum would have died of oesophageal cancer at some point, possibly several months later, but absent the prostate cancer, he would not have died when he did. Professor Levi did not agree with the proposition that the nutritional deficiency that Mr McCallum would have suffered as a result of vomiting itself led to his death at that time.
It is well-settled that a veteran’s kind of death for the purposes of the Act is the medical cause of death: Collins v Repatriation Commission [2009] FCAFC 90. Further, that there can be more than one kind of death: Repatriation v Hancock (2003) 37 AAR 383.
There is no argument that prostate cancer was a kind of death in Mr McCallum’s case. There is no argument that oesophageal cancer hastened his death, and Professor Levi’s evidence is clear that it did so. The question is whether it was also a relevant medical cause of death for the purposes of the Act.
The decision of the Full Federal Court in Collins (above) is on all fours with the present case. The question there was whether ischaemic heart disease, which hastened the veteran’s death, was a relevant cause of death. If not, the claim had to fail because it was conceded that pulmonary embolism, found by the Tribunal to be the medical cause of death, was not war caused. It was acknowledged in the appeal that there was no authority which directly considered the precise point.
Upholding the decisions of the Tribunal and the primary judge, the Full Court said (at [84]):
… we do not consider that as a matter of law any medical condition which may affect the time of death of a veteran by a measurable period, but does not otherwise play any real role in the pathological changes leading to the death (which are medically ascribed to another medical condition), is a death (that is a medical cause of death) or a kind of death under the VE Act (emphasis added)
Professor Levi’s evidence - and his is the only expert evidence before the Tribunal other than the clinical records, which he has reviewed - is that Mr McCallum’s oesophageal cancer hastened his death in that it led to him vomiting, and his vomiting hastened his deterioration; it contributed to his decline and to his death. Professor Levi’s evidence was clear, however, that it had no effect on the pathology of the underlying prostate cancer from which he died. At the time he was admitted to hospital, Professor Levi said, Mr McCallum’s prostate cancer had metastasised widely throughout his body and led to his “huge” PSA levels; it was “unquestionably terminal” and would have progressed regardless of the oesophageal cancer.
Professor Levi’s evidence puts the relationship between Mr McCallum’s oesophageal cancer and his prostate cancer and his ultimate death squarely within the description by the Full Court in Collins. It affected the time of his death but played no real role in the pathological changes leading to his death. It follows that oesophageal cancer cannot be considered a medical cause of Mr McCallum’s death, and so a kind of death, the purposes of the Act.
For Mrs McCallum it is submitted that the Act is beneficial legislation, and that is unquestionably so. That is not to say that every proposition or outcome which might benefit a claimant can be supported. In Collins, the Full Court was clear (at [82]) that the context and purpose of the provisions of the Act concerning the cause or causes of a veteran’s death, and whether it is war-caused, do not evince
a legislative intention that any medical condition which hastens the time of death of a veteran by a measurable period, even a short one, where in medical terms another medical condition is clearly the medical condition which accounts for the pathological changes leading to death, is itself a medical cause of death.
Counsel for Mrs McCallum has referred to the decision of Justice O’Loughlin in Re Valerie Fay Doolette v Repatriation Commission [1990] FCA 178; (1986) 21 ALD 489 in which he said:
if death is hastened because of the accelerated progress of a disease, which acceleration was itself caused by a war-caused condition, the proper conclusion would be that death was attributable to war service
It is not clear to me how that decision helps Mrs McCallum. It does not seem to me to say anything very different from what the Full Court said in Collins.
It is true that Professor Levi’s reports of 11 March 2013 and 15 April 2013 used language that suggests that he might support a finding that oesophageal cancer was a medical cause of Mr McCallum’s death and could be considered as a separate “kind of death”. Having heard his oral evidence, I am satisfied those references reflect medical use of language and not the tests that the Tribunal must apply. Professor Levi’s evidence was unequivocal that oesophageal cancer played no part in the underlying disease that was the actual cause of Mr McCallum’s death.
I am not satisfied, on the evidence before me, that oesophageal cancer played any real role in the pathological changes leading to Mr McCallum’s death from prostate cancer. I accept that it hastened his death, possibly by some weeks, but the contribution that it made to his demise does not make it, of itself, a medical cause of death, or a kind of death for the purposes of the Act. As I am not satisfied that oesophageal cancer was a kind of death, the question whether it was war caused does not arise.
I affirm the decision under review.
I certify that the preceding 20 (twenty) paragraphs are a true copy of the reasons for the decision herein of Senior Member J F Toohey. .........................................
Associate
Dated 27 May 2014
Date(s) of hearing 6 March and 26 May 2014 Representative for the Applicant Mr Tim Saunders, Counsel Representative for the Respondent Mr Tim O'Reilly, Advocate
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