Brown and Repatriation Commission

[2006] AATA 348

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2006] AATA 348

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No N2005/290

VETERANS' APPEALS  DIVISION		)
Re		EVE BROWN

Applicant

And REPATRIATION COMMISSION

Respondent

DECISION

Tribunal Senior Member, Mrs Josephine Kelly and Member, Dr Pat Lynch

Date12 April 2006

PlaceSydney

Decision The decision under review is affirmed.

[sgd]  Senior Member, Mrs Josephine Kelly

Presiding Member

CATCHWORDS

VETERANS’ APPEALS – widow’s pension – operational service – kind of death – hypothesis raised that kind of death was cardio-respiratory failure – kind of death determined to be Non-Hodgkin’s Lymphoma – Statement of Principles (SoP) not satisfied – decision affirmed.

LEGISLATION
Veterans’ Entitlement Act 1986 ss 6A, 8, 120 and 120A

CASELAW
Repatriation Commission v Hancock [2003] FCA 711 (16 July 2003)
Repatriation Commission v Deledio (1998) 83 FCR 82

REASONS FOR DECISION

12 April 2006   Senior Member, Mrs Josephine Kelly and
  Member, Dr Pat Lynch     

Background

1.      Mr Robert Brown served in the Australian Army (“Army”) between 1 October 1941 and 20 July 1943 and the Royal Australian Air Force (“RAAF”) between 21 July 1943 and 17 January 1946. This period is operational service pursuant to s 6A(1) of the Veterans’ Entitlement Act 1986 (“the Act”). He died on 29 June 2003, aged 82.  His widow, Mrs Eve Brown, seeks the review of decisions made by the Repatriation Commission and the Veteran’s Review Board, refusing her application for a war widow’s pension. 

Date of Effect

2.      The date of effect if Mrs Brown is successful would be 19 August 2003.

Issue

3.      This issue is whether Mr Brown’s death was “war-caused”. By the end of the evidence, Mr Vincent, who appeared for Mrs Brown said that the only issue was whether Ischaemic Heart Disease (“IHD”) contributed to Mr Brown’s death. He relied on the opinion of Dr Edwards that the kind of death was pneumonia secondary to Non-Hodgkin’s lymphoma on a background of IHD. He did not rely on IHD as a “kind of death” which had been proposed by Dr Garvey, who gave evidence in the case for Mrs Brown. However, as that evidence was before us we consider that we do need to address it.

Law

4. Death will be taken to be war-caused pursuant to s 8(1)(b) of the Veterans’ Entitlements Act 1986 (“the Act”), if:

The death of the veteran, arose out of, or was attributable to, any eligible war service rendered by the veteran; ..

5.      This is a claim relating to "operational service" made on or after 1 June 1994.  The death will be war-caused unless the Tribunal is satisfied to the contrary beyond reasonable doubt (see s 120(1), s 120(3) and s120A).

6.      Justice Selway held in Repatriation Commission v Hancock [2003] FCA 711 (16 July 2003) that two preconditions other than causation must be dealt with before step one of the methodology set out in Repatriation Commission v Deledio (1998) 83 FCR 82, is followed. There is no dispute in this case that Mr Brown was a veteran who has died and Mrs Brown is his widow.

7.      The next pre-condition is to identify, on the balance of probabilities, the “kind of death” the veteran suffered. There can be multiple medical conditions that contribute to a particular death in the sense of a medical cause that expedited the death. If a medical condition contributed to the death and is relevantly related to service then that is sufficient to establish entitlement to pension (see Hancock [2003] FCA 711 at [8]-[9]).

The “Kind of Death”

8.      The cause of death recorded on Mr Brown’s Death Certificate was:

(I)(a)  Cardiorespiratory exhaustion, 1 week

(b)  Progressive non-Hodgkin’s lymphoma, 9 months

(II)  Sepsis (chest/urinary), 1 week

9.      We had the before us written and oral evidence from Dr Garvey, General Surgeon, and Dr Rupert Edwards, Consultant Physician. We also had clinical notes from Dr Sammel, Cardiologist, Professor Steinbeck, Consultant Physician (who was treating Mr Brown for diabetes) and the Sacred Heart Hospice.

10.     The following is a relevant summary of Mr Brown’s medical history taken from the contemporaneous documents. In 1986 Mr Brown developed chest pain.  Investigations showed that he had coronary artery disease (“CAD”).  He underwent a coronary artery bypass graft at St Vincent’s Hospital on 31 October 1986. The CAD was on a background of longstanding hypertension and cigarette smoking. 

11.     In 1998 Mr Brown was diagnosed with Type 2 Diabetes Mellitus which was managed with diet alone. 

12.     In early 2000 Mr Brown developed exertional breathlessness and chest tightness. In May 2000 he was found to have atrial fibrillation. Dr Sammel, Cardiologist, suspected that his excessive alcohol intake may have been the major contributor to the condition. Dr Sammel advised Mr Brown to stop smoking cigars and abstain from alcohol. The doctor reviewed Mr Brown several times. He responded well to treatment. The last time Dr Sammel saw Mr Brown was in January 2003, when the doctor stated that Mr Brown had no ongoing cardiac symptoms and his hypertension was satisfactorily controlled, but noted the recent diagnosis of lymphoma with lytic lesions in his ribs. He wished to review Mr Brown in a year.

13.     In September 2002 Mr Brown had presented with multiple rib fractures.  Investigations showed lytic lesions in ribs, thoracic and lumbar spines, and left hip. He had a bone marrow and other tests and a biopsy which showed low grade lymphoma but no evidence of other metastatic cancer or high grade lymphoma. Dr Kwong, Consultant Physician and Rheumatologist consulted with Dr Tony Dodds.  He said:  “It was felt it is unusual for low grade lymphoma to produce multiple lytic lesions”. The decision was made to treat Mr Brown with radiotherapy and chemotherapy.

14.     In March 2003 further radiation was given for probable involvement of the brain linings at the base of the skull. Mr Brown had further chemotherapy at the end of May 2003 which made him very weak according to Mrs Brown, who was 77 years old. Two weeks later on 13 June 2003 he was admitted to respite care at the Sacred Heart Hospice. The admission notification letter that Mr Brown was “physically exhausting” his wife. He was so weak he was unable to perform his activities of daily living without assistance. He had had Nurses seeing him 3 times a week to help with showering. He also required help with toileting, getting up and down from his bed and from chairs. He had been incontinent “due to the long time it takes for him to get to the bathroom”. Mrs Brown reported that he had some delusions mainly at night time, and she had to sit him up, reorientate him to reassure him. He had mild dementia. The record concluded:

“We … hope that he may improve physically to allow to be discharged home again.  However it is obvious that his condition is poor, and this may not be possible”.

15.     The document headed “Patient’s Expectations of Care” dated 13 June 2003 included the following information which had been discussed with Mr Brown. His “expectations of care” were “Respite / Symptom control”, which included pain management. The answer to the question “A&E (Accident & Emergency) Transfer for Life-Threatening Events?” was “No”. The question about other specific life-prolonging measures was left unanswered. 

16.     Within two days of admission, Mr Brown had become more confused and required some sedation, had general lethargy and required assistance to sit up. He had become incontinent with both bladder and bowels. He required assistance to walk in a frame. His pain was uncontrolled with oxycodone and upgraded to morphine as required. 

17.     By the end of the first week Mr Brown was bedridden. There were ongoing complications of sedation and pain control with his increasing drowsiness and reluctance to move, even in bed. He developed increasing pain and required stronger analgesics. 

18.     On 26 June 2003 Mr Brown developed a cough with purulent sputum, which was later shown to be due to a chest infection and he developed a urinary infection due to E coli. On the same day a multidisciplinary team meeting determined:  “Patient is deteriorating.  For terminal care”.  Mr Brown’s condition had deteriorated to the extent that he could not longer swallow medication and the decision was taken not to subject him to parenteral antibiotics (that is, administration of drugs by any route other than the mouth or bowel). He died three days later.

19.     Dr Garvey considered it unlikely that non-Hodgkin’s lymphoma had killed Mr Brown because “there was no evidence of any metastatic spread of the lymphoma,” He favoured a diagnosis of cardio-respiratory failure due to IHD, secondary to cigarette smoking and Type 2 diabetes mellitus. He concluded that IHD and the diabetes “materially contributed to” Mr Brown’s death “and the facts of the case lead me to the conclusion that his death was war service-related”.  In his oral evidence, Dr Garvey said that he considered that the scattered crepitations (noises) in the lungs were more consistent with congestive heart failure than pneumonia because there was “no evidence of acute sepsis”. His basis for that assertion was that the white cell count was within normal limits whereas pneumonia would have a white cell response to fight the infection. He accepted that Mr Brown could have died of pneumonia and that the evidence of haemophilus influenza in the sputum and crepitations were consistent with pneumonia but said that that was “more a colonisation than a pneumonia” and that pneumonia takes days or weeks. 

20.     Tellingly, during his oral evidence when it was put to him that the major condition suffered by Mr Brown was lytic lesions causing him pain for which he was receiving morphine, Dr Garvey responded by talking about creating a hypothesis to link events surrounding death to previous service, the link being smoking. He relied on Mr Brown’s dying from cardio respiratory failure. He took the phrase “cardiorespiratory exhaustion” on the Death Certificate, which he said was “laymen’s terminology not medical”, to mean cardio respiratory failure.  It was this assumption upon which he formed his opinion of the cause of death. 

21.     Dr Edwards’s opinion was that Mr Brown died of overwhelming sepsis. He considered the death certificate was not a completely accurate reflection of that. He said that the non-Hodgkin’s lymphoma had reduced Mr Brown’s ability to fight infection and that treatment for that illness (chemotherapy, prednisone and radiation) similarly compromised his immune state.  In his opinion, a “more correct death certificate” might read:

Part 1  a)   Sepsis (chest/urinary)  1 week

b)   Progressive non-Hodgkin’s lymphoma   9 months

22.     In his written report Dr Edwards accepted that Mr Brown suffered from ischaemic heart disease (“IHD”) which became clinically apparent in 1986, but did not consider that it should be identified as a cause of death. He did not consider that diabetes mellitus should be identified as a cause of death.

23.     During his oral evidence, Dr Edwards agreed that there was no actual pathological cytology that connected the non-Hodgkin’s lymphoma to the osteolytic lesions and therefore the diagnosis linking the two was clinical without cytological confirmation. He also summarised his position as:

“the final cause of death was the “pneumonic process, the pneumonia, the infection. The underlying cause was the rapidly progressive malignant disease”.   

24.     His opinion that Mr Brown had pneumonia was based on the clinical finding in the days immediately prior to death, that is, that crackles were heard in both lungs, and the isolation of the causative organism in the sputum. He agreed with Dr Garvey that congestive heart failure causes noises in the lungs sometimes similar to those heard in pneumonia, but in this case “on complete examination of all the evidence that the pneumonic process was by far more likely responsible for those sounds”. 

25.     Dr Edwards described how “the septic process itself in somebody of this man’s advanced illness suppresses the bone marrow so that it actually can’t mount what would normally consider a fighting response to the infection. So in the process of dying, the absence of this white cell response I think is not crucial.” This evidence in our view refuted Dr Garvey’s reliance on the absence of a white blood cell response as indicating that Mr Brown did not have pneumonia.

26.     Dr Edwards said that the process of death was:

“progressive hypoxia, progressive inability to oxygenate the blood.  Without oxygen the vital organs can’t perform their duties” …  “so you develop a situation of multi organ failure in the presence of sepsis”. 

27.     When asked what his understanding was of the term “cardio-respiratory exhaustion” used in the Death Certificate, he said he did not know what it meant and that it tells him nothing. 

28.     During cross-examination, Dr Edwards said that a case can be made for including a Part II to the death certificate which put IHD “because it’s a significant underlying disease process that this man had”.  He had not written a death certificate for a number of years but thought that Part 2 of the certificate “are sort of contributing factors, factors that might be in the background, present for many years” … “leading up to the final illness”. To call something a Part 1 matter means “That these are the causes of death”. 

29.     We prefer the evidence of Dr Edwards to that of Dr Garvey. Dr Edwards’s evidence provides a coherent explanation of what happened to Mr Brown whereas Dr Garvey disregards critical evidence such as the osteolytic lesions, because there “is no firm evidence” linking them to the lymphoma, and is selective in his analysis, for example, arguing that the crepitations indicated congestive heart failure rather than pneumonia, with which they are also consistent. As we understand Dr Edwards’s evidence, the pneumonic infection was a complication of the non-Hodgkin’s lymphoma and its treatment. This is not a case of multiple “kinds of death”.  Accordingly, we find that the kind of death suffered by Mr Brown was “non-Hodgkin’s lymphoma”. This is in accord with the clinical decision of the palliative care team taken three days before Mr Brown died, that his condition was incurable. 

30.     There is a Statement of Principles (“SoP”) for Non-Hodgkin’s Lymphoma (No. 37 of 2003). It was accepted by the parties that the SoP was not satisfied in this case. Having considered the factors in the SoP, we agree that is so. There is no material before us that could uphold the SoP as required by s 120A(3) of the Act. Accordingly, it is unnecessary for us to proceed further. The case cannot succeed.

The Decision

31.     The decision under review is affirmed.

I certify that the 31 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member, Mrs Josephine Kelly and Member, Dr Pat Lynch

Signed: Miss Sacha Keady
  Associate

Date/s of Hearing  7 December 2005 and 9 March 2006
Date of Decision  12 April 2006
Counsel for the Applicant         Mr M. Vincent
Solicitor for the Applicant          Dibbs Abbott Stillman
Advocate for the Respondent   Department of Veterans' Affairs