Baker and Repatriation Commission

Case [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…

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Baker and Repatriation Commission [2002] AATA 1192
Case
[2002] AATA 1192
Decision Date

CaseChat Overview and Summary

The matter before the Administrative Appeals Tribunal (AAT) was a review of a decision made by the Veterans’ Review Board (VRB) regarding the war-related cause of death of a veteran. The veteran had served in the Australian Army during World War II and had been diagnosed with multiple skin cancers and chondrosarcoma, ultimately dying from pulmonary metastases. The applicant, presumably the veteran's spouse or next of kin, sought to establish a causal link between the veteran's service and his death, arguing that the pulmonary metastases were a result of the veteran's skin cancer, which was linked to his service. The VRB had previously declined to find that the death was war-caused, a decision the applicant contested before the AAT.

The central legal issue before the AAT was whether the veteran's death from pulmonary metastases could be considered war-caused under the Veterans' Entitlements Act 1986. This required the AAT to determine if the evidence presented constituted a reasonable hypothesis connecting the veteran's death to his war service. The AAT had to apply the four-step process outlined in the Federal Court decision of Repatriation Commission v Deledio to assess the hypothesis. The steps involved considering all the material before the AAT, determining if there was a relevant Statement of Principles (SoP) in force, assessing if the hypothesis was reasonable, and making findings of fact if necessary. Given that there was no applicable SoP for pulmonary metastases, the AAT had to decide if the hypothesis could be sustained based on the evidence presented.

The AAT found that the evidence, including the expert testimony of Dr R. Collins, supported the hypothesis that the veteran's squamous cell carcinoma, which was accepted as war-caused, could have metastasised to the lungs and led to his death. Dr Collins' testimony indicated that while a definitive assessment was not possible due to the lack of medical records, it was reasonable to hypothesise that the lung metastases originated from the veteran's skin cancer, which was linked to his service. The AAT concluded that there was no material to establish beyond reasonable doubt that the hypothesis was not sustainable, thus satisfying the fourth step of the Deledio test. The AAT determined that the veteran's death was war-caused, and set aside the VRB's decision, substituting its own decision that the death was attributable to the veteran's war service.

The AAT's final order was that the decision under review by the VRB was set aside and replaced with a decision that the veteran's death was war-caused in accordance with the Act. The AAT's decision was certified as a true copy and signed by the Member, G.D. Friedman, on 19 November 2002. The applicant was represented by Ms J. Bornstein, counsel, and Williams, Winter & Higgs, solicitors, while the respondent was represented by Mr A. Hall, advocate, and the Advocacy Section of the Department of Veterans' Affairs, solicitors.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

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

Evidence

Evidence Before The Court

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

Decision

Reasons for decision

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 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 ClerkDate of hearing: 26 July 2002 Date of decision: 19 November 2002Counsel for applicant: Ms J. BornsteinSolicitor for applicant: Williams, Winter & HiggsAdvocate for respondent: Mr A. HallSolicitor for respondent: Advocacy Section, Department of Veterans' Affairs

Ratio Decidendi

Legal Principle Established

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