Baker and Repatriation Commission

[2002] AATA 1192

DECISION AND REASONS FOR DECISION [2002] AATA 1192

ADMINISTRATIVE APPEALS TRIBUNAL        Nº V2001/1149
VETERANS'     APPEALS       DIVISION
  Re:         GRACE ISABEL BAKER
  Applicant
  And:       REPATRIATION COMMISSION
  Respondent

DECISION

Tribunal:       G.D. Friedman, Member
Date:             19 November 2002
Place:            Melbourne

Decision:The Tribunal sets aside the decision under review and substitutes a decision that the death of the veteran was war-caused. 

(sgd) G.D. Friedman
  Member
VETERANS' AFFAIRS - veterans' entitlements - claim by widow - squamous cell carcinoma - death from pulmonary metastases - sub-hypothesis that carcinoma metastasised to lung - whether sub-hypothesis reasonable
Veterans' Entitlements Act 1986 ss8, 120(1), 120(3), 120(4), 120A(3)
Bushell v Repatriation Commission (1992) 175 CLR 408
Byrnes v Repatriation Commission (1993) 177 CLR 564
Cooke v Repatriation Commission (1997) 45 ALD 205
Jenkins v Repatriation Commission (1996) 41 ALD 540
McKenna v Repatriation Commission (1999) 86 FCR 144
Repatriation Commission v Bey (1997) 79 FCR 364
Repatriation Commission v Deledio (1998) 83 FCR 82
Repatriation Commission v Jenkins (1997) 45 ALD 266
Repatriation Commission v Yates (1995) 57 FCR 241

REASONS FOR DECISION

19 November 2002  G.D. Friedman, Member

1. This is an application by Grace Isabel Baker (the applicant), widow of Kenneth Thomas Baker (the veteran), for review of a decision of the Veterans' Review Board (VRB) dated 20 July 2001.  The VRB affirmed a decision of a delegate of the Repatriation Commission (the respondent) dated 28 September 1998, to refuse a claim for pension on the basis that the death of the veteran was not related to service. 

2. At the hearing of this matter on 26 July 2002 Ms J. Bornstein of counsel represented the applicant and Mr A. Hall, advocate with the Department of Veterans' Affairs, represented the respondent.

3. The Tribunal received into evidence the documents lodged under s37 of the Administrative Appeals Tribunal Act 1975 (T1-T10), together with two exhibits lodged by the applicant (Exhibits A1-A2) and one lodged by the respondent (Exhibit R1).
   BACKGROUND

4. The veteran was born on 14 November 1917. He enlisted in the Australian Army (the army) on 15 December 1941 and served in the South West Pacific Area. He was discharged on 24 January 1946. In accordance with s8 of the Veterans' Entitlements Act 1986 (the Act), the period constitutes operational service.

5. The veteran suffered from multiple skin cancers, which were of a non-melanotic nature.  The veteran died on 17 July 1998.  The cause of death was certified as pulmonary metastases 1 week, pelvic chondrosarcoma 2 years and pulmonary embolus 1-2 weeks.  

6. On 7 September 2001 the applicant sought review of the VRB decision by the Tribunal. 
   EVIDENCE

7. In a written statement dated 10 October 2001 (Exhibit A1) the applicant said that she met the veteran in 1937 and they married on 26 July 1941.  Five months later the veteran enlisted in the army and saw action in the South West Pacific Area.   The applicant said that the veteran had a fair complexion and had told her that he was sunburnt during his period of service.  She stated that he developed skin cancers on his head, face and foot, and that these first occurred in the late 1950s.  The applicant said that the veteran never smoked and was a moderate drinker of alcohol.  She stated that the veteran was diagnosed with chondrosarcoma in 1996 and received radiotherapy to the pelvis.

8. Dr R. Collins, consultant forensic pathologist, gave oral evidence and confirmed the contents of his written report dated 3 July 2002 (Exhibit A2).  He said that he had reviewed the histological sections prepared from the lesions removed from the veteran's right scalp in 1994 and his right calf in 1996.  He stated that a definitive assessment of the cause of death was not possible because of a lack of medical records, but that pulmonary metastases played a significant role.  After examining the light microscope slides of the lesions, he stated:

   4.        …I agree that they are relatively well differentiated squamous cell carcinoma although, in the sections provided, the lesions have not been completely removed and, therefore, a real potential still remains for local recurrence and/or metastases.

   Although lung metastases originating from a primary squamous cell carcinoma are not common, there is no doubt that they do occur, even following many years after identification of the original primary skin lesion.   It is my robust view, particularly having regard to the low grading of the pelvic chondrosarcoma, it is an entirely reasonable hypothesis that the lung metastases had originated from a primary squamous cell carcinoma of the skin and not necessarily only from the chondrosarcoma.   …
   It is apparent that the condition of squamous cell carcinoma has been accepted as a war caused condition in the late Mr. Baker and, therefore, if it is agreed there is a real possibility that the lung metastases were squamous cell in type with the primary lesion being skin, then there is an acceptable causal link between the late veteran's death and his war service.

9. In his report Dr Collins referred to the opinion of the pathologist who, when reporting on the original slides, noted the malignancy was grade 1-2, that is at the lower end of the spectrum for malignancy in these particular tumours.  Dr Collins stated:

   …
   The significance of such a grading in this case is that, whilst the biological behaviour of chondrosarcomas varies widely according to the degree of microscopic differentiation, well-differentiated low grade (grade 1) and intermediate grade (grade 2), grow slowly and rarely metastasise, where-as high grade (grade 3) tumours invade the local tissues early and are prone to distant metastases, particularly the lungs.  It is generally accepted that grade 1 tumours are indolent in their growth pattern and, whilst they may progressively enlarge, metastatic spread is not a feature, however uncontrolled local recurrence may eventually result in death.   …

In oral evidence Dr Collins explained that a malignancy might spread locally or via metastases such as through the lymph channels or the bloodstream, particularly as, in this case, the lesions on the scalp and the right leg were not completely removed.  Dr Collins noted that, in a report dated 31 May 2001, Dr M. Wolf stated that, although he did not believe the metastases were from the squamous cell carcinoma, it was possible but highly unlikely.  Dr Collins said that Dr Wolf's opinion was not complete because it did not take into account the low-grade chondrosarcoma, and therefore did not deal with the specifics of the case.  He also said that as a broad statement a very small percentage of squamous cell carcinoma metastasise to the lung rather than local lymph nodes, but special circumstances existed in this case.  There was incomplete removal of the squamous cell carcinoma, which meant that some of the lesions were still present and the pelvic malignancy was low-grade.  He said that, even if the lesions had been completely excised, the squamous cell carcinoma might have metastasised before the excision.

1. Dr Collins stated that squamous cell carcinoma is a malignancy arising from squamous type cells of skin which can arise in other organs once a malignancy develops and tends to grow and spread locally but can spread through the lymph system or bloodstream to various organs.  He agreed that the chondrosarcoma was at the low end of the malignancy scale, so that it was highly unlikely that a grade 1 chondrosarcoma would metastasise, although it could not be said that it would not or could not metastasise.  Dr Collins acknowledged that metastases from squamous cell carcinoma to the lung were rare, but not extraordinarily rare.

2. Professor R. Fox, Director, Department of Clinical Haematology and Medical Oncology, The Royal Melbourne Hospital, gave oral evidence and confirmed the contents of his written reports dated 8, 11 and 15 July 2002 (Exhibit R1).  In his report dated 8 July 2001, Professor Fox stated:

   …Lung metastases as a sequel of squamous cell or basal cell carcinoma are extraordinarily rare … I cannot remember having seen a patient with squamous cell carcinoma of the skin develop pulmonary metastases…
   In conclusion, it is not possible to hypothesise that his squamous cell and basal cell carcinomas led to his pulmonary metastases or hastened or contributed to his death.

Professor Fox told the Tribunal that in practice the occurrence of metastases through blood or lymph nodes, as suggested by Dr Collins, is extremely rare.  Similarly, he stated that in theory an incomplete excision might increase the possibility of metastases, but in practice this does not happen.

1. In cross-examination Professor Fox agreed that, while the possibility of lung metastases occurring from squamous cell carcinoma was extremely uncommon, he could not exclude it altogether.  He acknowledged that the views of eminent specialists might differ from time to time.  He said that the incomplete excision of the late veteran's squamous cell carcinoma was not taken into account in his report, but that did not alter his view.

2. In a report dated 18 October 1996, Mr P. Stalley, orthopaedic surgeon, stated that a biopsy showed grade 2 chondrosarcoma.  In a report dated 13 November 1996, Mr Stalley reported that the chondrosarcoma would be expected to metastasise given sufficient time.   
   CONSIDERATION OF THE ISSUES

3. The process of deciding whether the material before the Tribunal raises a reasonable hypothesis connecting a disease, injury or death to war service is laid down by the Federal Court of Australia in Repatriation Commission v Deledio (1998) 83 FCR 82 as a four-step process. The first step requires the Tribunal to consider all the material before it and determine whether that material points to a hypothesis connecting the condition with the circumstances of the particular service rendered by the veteran.

4. The second step requires the Tribunal to ascertain whether there is a relevant Statement of Principles (SoP) in force. 

5. Under the third step, if an SoP is in force, the Tribunal must then form an opinion whether the hypothesis raised is a reasonable one. Section 120A(3) of the Act provides that, for the purposes of s120(3), the hypothesis is reasonable if there is in force an SoP that upholds the hypothesis; that is to say, the hypothesis is consistent with the template to be found in the SoP. If the hypothesis fails to fit within the template, it will be deemed not to be reasonable and the claim will fail. Section 120(3) provides that, in applying s120(1), the Tribunal shall be satisfied, beyond reasonable doubt, if after considering all the material before it, the Tribunal is of the opinion that the material does not raise a reasonable hypothesis connecting the condition with the circumstances of the particular service rendered by the applicant. Under the fourth step, the Tribunal must make findings on questions of fact.

6. Ms Bornstein submitted that the material points to a hypothesis connecting the death with the circumstances of the particular service rendered by the veteran, and that the hypothesis fits within the template and is therefore reasonable. 

7. Ms Bornstein submitted, as a hypothesis, that the veteran suffered squamous cell carcinoma, which was attributable to his service; the squamous cell carcinoma metastasised to the lung; the veteran's death was the result of pulmonary metastases; and therefore, the veteran's death was attributable to the circumstances of his service.  She said that a reasonable hypothesis may include a sub-hypothesis (McKenna v Repatriation Commission (1999) 86 FCR 144) and that, in this case, the first sub-hypothesis is that the veteran suffered squamous cell carcinoma which was attributable to his operational service, and the second sub-hypothesis is that the squamous cell carcinoma metastasised to the veteran's lung and caused his death.

8. In relation to the first sub-hypothesis, Ms Bornstein said that in or about 1982 the respondent accepted the veteran's squamous cell carcinoma as war-caused. 

9. In relation to the second sub-hypothesis, Ms Bornstein submitted that, as the veteran rendered operational service and the Repatriation Medical Authority has not made an SoP for pulmonary metastasis nor given notice under s.196 of the Act of its intention to make an SoP, the standard of satisfaction established by s120(1) and (3) of the Act applies, and that the Tribunal must determine that the death of the veteran was war-caused unless it is satisfied beyond reasonable doubt that there is no sufficient ground for making that determination. She said that, where an SoP is inapplicable, the hypothesis is considered in accordance with principles laid down in Bushell v Repatriation Commission (1992) 175 CLR 408 and Byrnes v Repatriation Commission (1993) 177 CLR 564.

10. Ms Bornstein submitted that in applying s120(3) of the Act the Tribunal should find that a conflict of medical opinion is not sufficient to reject an hypothesis as unreasonable (Mason CJ, Deane and McHugh JJ in Bushell at p414), Einfeld J in Cooke v Repatriation Commission (1997) 45 ALD 205 at p211 and Lee J at p230). She said that the existence or otherwise of a reasonable hypothesis is not resolved by a choice between competing medical opinions, particularly when the hypothesis is advanced by an experienced practitioner in the appropriate field (Heerey J in Jenkins v Repatriation Commission (1996) 41 ALD 540 at paras 31 and 32).

11. Ms Bornstein said that, if there is a conflict between the opinions of Dr Collins and Professor Fox, the conflict is one of degree.  Dr Collins, while acknowledging that metastases of squamous cell carcinoma was rare, identified special circumstances such as the incomplete excision of the squamous cell carcinoma, that increased the likelihood that it would metastasise.  Ms Bornstein submitted that, while Dr Collins and Professor Fox agreed that metastases of squamous cell carcinoma are rare, in Dr Collins's opinion the special circumstances supported the hypothesis raised.  In Professor Fox's opinion, on the basis of his opinion that such metastases were extremely rare, the circumstances did not support the hypothesis, although he could not exclude metastases of the squamous cell carcinoma.

12. Ms Bornstein referred to Cooke in which Einfeld J said, at p211:

    …As was noted in Bushell, neither scant evidence nor lack of support would make unreasonable a hypothesis raised by the facts and propounded by an expert in the field.

She submitted that Dr Collins is an experienced forensic pathologist, and the hypothesis described by him is not fanciful, impossible, incredible or not too tenable or too remote or too tenuous (Foster, Lindgren, North JJ in Repatriation Commission v Jenkins (1997) 45 ALD 266 at p271). She said that the hypothesis is not irrational, absurd or ridiculous, nor is it contrary to proved scientific facts or the known phenomena of nature, and it satisfies the requirements laid down in Bushell and Byrnes.  Ms Bornstein said that the question for the Tribunal is not how supportive of the hypothesis the raised facts have to be, but whether the raised facts support the hypothesis, and in this case they do.

1. In Ms Bornstein's submission it is only when applying s120(1) of the Act that the question of proof arises. She said that there was no contest based on s120(1) of the Act. The case was not conducted by the respondent on the basis that, even if a reasonable hypothesis was found, the respondent had disproved a causal link with operational service beyond reasonable doubt.

2. Mr Hall submitted that pulmonary metastases arose shortly before the veteran's death, which occurred in 1998. He said that, under s8(1)(e) of the Act, aggravation (or clinical worsening) is applicable only to a condition which existed prior to or during service and made worse by service-related circumstances (Repatriation Commission v Yates (1995) 57 FCR 241). Mr Hall said that there was no evidence on which to find that the veteran's service aggravated his condition of pulmonary metastases because that condition did not arise until more than fifty years after his service.

3. Mr Hall submitted further that there was no evidence to support the contention that the veteran's squamous cell carcinoma, a war-caused disability, metastasised to the lungs.  He referred the Tribunal to Repatriation Commission v Bey (1997) 79 FCR 364 in which the Full Federal Court stated, at pp372-373:

   …This Court re-states the position established by East, Bushell and Byrnes.  A "reasonable hypothesis" involves more than a mere possibility.  It is a hypothesis pointed to by the facts, even though not proved upon the balance of probabilities.  That understanding of the expression gives force to the word "reasonable", is strongly supported by the history of the relevant provisions, and accords with the intention appearing in the Minister's second reading speech and with authority.

Mr Hall referred to the conclusion by Dr Wolff and submitted that Dr Wolff had sighted the histopathology reports relating to the excision of squamous cell carcinomas from the veteran's scalp in 1994 and right calf in 1996, so was aware that the squamous cell carcinomas were well-differentiated and low-grade.

1. Mr Hall noted that Dr Collins did not hold any opinion on whether chondrosarcoma or squamous cell carcinoma was more likely to metastasise to the lungs, and that lung metastases, as a result of squamous cell carcinoma, were rare.  Mr Hall said that considerable weight should be given to the evidence from Dr Wolff and Professor Fox, both of whom are practising oncologists with considerable experience in their field.  He submitted that Dr Collins, as a forensic pathologist, has no experience in the continuing management of patients suffering oncology disorders. 

2. The respondent argued that squamous cell carcinoma is an exceptionally common condition that metastasises in an extremely low percentage of cases, and that patients usually have a history of major immunosuppression disorder.  Mr Hall said that metastases usually occur in the lymph nodes, and that in this case there was no immunosuppression disorder and no metastases in the lymph nodes.  He stated that incomplete excision of the squamous cell carcinoma has not been shown to result in a higher incidence of metastasis than in instances of complete removal.  Mr Hall submitted that in the circumstances the hypothesis was too tenuous or remote to determine that pulmonary metastases arose as a consequence of squamous cell carcinoma.

3. In reaching its decision the Tribunal takes into account the written and oral evidence and submissions made at the hearing.

4. The Tribunal has considered each of the steps in Deledio.  In respect of the first step, the Tribunal finds, after taking into account all relevant material, the veteran suffered from squamous cell carcinoma, which was attributable to his war service.  He died as a result of pulmonary metastases.  Based on the documentation and the evidence by the applicant, the Tribunal finds that the material points to a sub-hypothesis connecting the pulmonary metastases with the circumstances of the particular service rendered by the veteran. 

5. In respect of the second step, the Tribunal finds that SoP Nº 45 of 1998 (revoked by Nº 43 of 2001 and amended by Nº 51 of 2001) concerning non-melanotic malignant neoplasm of the skin, which includes squamous cell carcinoma, was in force and is relevant.

6. In respect of the third step, the Tribunal notes that the respondent conceded that the veteran satisfied factor 5(g) of SoP Nº 45 of 1998: having a solar UV damage factor ratio of at least 1.1.  The respondent also conceded that the veteran satisfied factor 5(b) of Nº 43 of 2001 (as amended by Nº 51 of 2001): having a solar UV damage factor ratio of at least 1.1 for the affected area at the time of the clinical onset of non-melanotic malignant neoplasm of the skin.  And the Tribunal is not required to apply s120A to the first sub-hypothesis.

1. In relation to whether the sub-hypothesis that the squamous cell carcinoma metastasised to the lungs is reasonable, the Tribunal notes that there is no SoP for pulmonary metastasis. The Tribunal accepts the submission by Ms Bornstein that the standard of proof established by s120(1) and (3) of the Act applies, and that the Tribunal must determine that the death of the veteran was war-caused unless it is satisfied beyond reasonable doubt that there is no sufficient ground for making that determination.

2. The Tribunal accepts the submission by Ms Bornstein that the difference between the opinions of Dr Collins and Professor Fox is a matter of degree.  The two witnesses stated that metastases of squamous cell carcinoma are rare, with Professor Fox conceding that metastases are possible, although extremely unlikely.  Dr Collins concluded that in particular circumstances metastases are possible.  The Tribunal takes into account that both witnesses are experienced practitioners in their field.  Consequently, the Tribunal finds that the hypothesis is not obviously fanciful, or untenable or had not been raised by the material before the Tribunal (Cooke).  The Tribunal finds that the evidence of Dr Collins is credible and consistent, and his hypothesis is not fanciful, impossible, incredible or not too tenable or too remote or too tenuous (Jenkins).

3. Because Professor Fox could not exclude the possibility of metastases from squamous cell carcinoma, the Tribunal finds that, even though the possibility may be small, the raised facts support the sub-hypothesis, which is more than a mere possibility (Bey).  Therefore, the Tribunal finds that the sub-hypothesis that squamous cell carcinoma metastasised to the lungs satisfies the requirements set out in Bushell and Byrnes, and the veteran satisfies the third step from Deledio. 

4. In respect of the fourth step from Deledio, concerning whether the Tribunal is satisfied beyond reasonable doubt that the evidence before it demonstrates that the hypothesis cannot be sustained, the Tribunal is called upon to make findings of fact. There is no material before the Tribunal which establishes beyond reasonable doubt that there is no sufficient ground for determining that the death from pulmonary metastases arising from squamous cell carcinoma was war-caused. Therefore, the Tribunal finds that the fourth step is satisfied and the veteran's death was war-caused in accordance with s8 of the Act.
   DECISION

5. The Tribunal sets aside the decision under review and substitutes a decision that the death of the veteran was war-caused.

   I certify that the thirty-seven [37] preceding paragraphs are a true copy of the reasons for the decision of:
   G.D. Friedman, Member

   (sgd)       Catherine Thomas
                 Clerk

   Date of hearing:  26 July 2002

   Date of decision:  19 November 2002
   Counsel for applicant:                Ms J. Bornstein
   Solicitor for applicant:                  Williams, Winter & Higgs
   Advocate for respondent:            Mr A. Hall
   Solicitor for respondent:              Advocacy Section, Department of Veterans' Affairs