Butler and Repatriation Commission (Veterans' entitlements)
[2023] AATA 2765
•29 August 2023
Butler and Repatriation Commission (Veterans' entitlements) [2023] AATA 2765 (29 August 2023)
Division:Veterans' Appeals Division
File Number: 2022/3618
Re:Sandra Butler
APPLICANT
AndRepatriation Commission
RESPONDENT
DECISION
Tribunal:Deputy President J Sosso
Date:29 August 2023
Place:Brisbane
The decision under review is affirmed.
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Deputy President J Sosso
Catchwords
VETERANS’ ENTITLEMENTS —War Widows Pension—Passive Smoking—Kind of Death—Acute Myeloid Leukaemia—Death and Defence Service—Applicable Statement of Principles—Decision Affirmed
Legislation
Administrative Appeals Tribunal Act 1975 (Cth)
Veterans’ Entitlements Act 1986 (Cth)
Cases
Bringinshaw v Bringinshaw (1938) 60 CLR 336
Collins and Repatriation Commission [2008] AATA 351
Hill v Repatriation Commission [2009] FCAFC 91; (2009) 177 FCR 434
Kowalski and Repatriation Commission [2009] AATA 853
Repatriation Commission v Hancock [2003] FCA 711
Repatriation Commission v Smith (1987) 15 FCR 327
Willman and Repatriation Commission [2007] AATA 1480Secondary Materials
Cross on Evidence (Australian 3rd Ed)
Statement of Principles concerning Ischaemic Heart Disease No. 2 of 2016
Statement of Principle concerning Acute Myeloid Leukaemia No. 72 of 2015REASONS FOR DECISION
Deputy President J Sosso
INTRODUCTION
Mrs Sandra Butler (the Applicant) seeks review of a decision by the Repatriation Commission (the Respondent) made on 8 February 2022 affirming a Determination of 17 August 2021 which rejected the Applicant’s claim for a war widow’s pension under s 70(1) of the Veterans’ Entitlements Act 1986 (Cth) (the Act).
The Applicant married Mr Geoffrey John Butler (the veteran) on 19 August 1994 – Exhibit 1 T16 pp. 52, 63. The veteran served in the Royal Australian Air Force (RAAF) from 28 May 1985 until 5 November 1995 - Exhibit 1 T16 p. 62. After his discharge the veteran transferred to the Reserves until he was entirely discharged from the RAAF on 2 January 2001. It is not contested that the veteran’s eligible defence service under the Act was the period between 28 May 1985 and 5 November 1995.
After completing secondary schooling in 1973, the veteran worked in a number of civilian jobs, including, for a number of years, as a bank clerk. In a document dated 24 October 1984 and headed “Advice to Recruiting Officer – Groundstaff”, a positive recommendation was given for the veteran to be accepted into the RAAF in a clerk capacity due to his experience in that field and having “the maturity to cope with the required training course” – Exhibit 2 ST1 p. 127.
A Statement of Service issued by the Department of Defence on 11 October 1988, noted that the veteran was then serving in the Administrative Support Squadron, RAAF Amberley, Queensland – Exhibit 1 T31 p. 142. Further, the veteran’s ADO Service Record reports that he served in RAAF Clerical and as a Clerk 1 – Exhibit 1 T31 p. 139.
The veteran’s Medical Examination Records indicate that he did not smoke cigarettes – Exhibit 1 T30 pp. 137, 143.
It is the Applicant’s contention that the service rendered by the veteran was as a pay clerk, which confined him mostly to office duties. This was at a time when smoking was permitted, including in living and social areas. It is further contended that the veteran was constantly exposed to tobacco smoke which resulted in passive inhaling – Exhibit 1 T14 p. 38, T16 p. 67.
The Tribunal was provided with statutory declarations from the veteran’s son Mr. David Butler (deposed on 15 January 2019) and the Applicant (deposed on 11 January 2019) in support of this contention.
David Butler deposed as follows – Exhibit 1 T16 p. 68:
I remember my father coming home from work (when he was in the Air Force) his uniform consistently reeking of stale cigarette smoke. I used to sympathise greatly with him being a non-smoker and having to work in an environment where smoking was not only the norm, but encouraged amongst peers.
The Applicant provided a similar account – Exhibit 1 T16 p. 69:
Geoff used to complain constantly about the smoking habits of his Air Force work colleagues and how the workplace…would be just a haze of cigarette smoke. I recall how the smell of second hand cigarette smoke would so permeate his uniform, that the odour would transfer to other clothes when placed in the laundry basket…
The Tribunal was also provided with a Witness Statement of Mr. Jonathan Welch, dated 28 January 2020 – Exhibit 1 T16 p. 70. Mr. Welch served in the RAAF between 1966 and 1986 and recounted how prevalent smoking was in base clerical administration offices during that period.
The Tribunal accepts the accuracy of these accounts, and proceeds on the assumption that the veteran worked in an environment in which he was exposed to passively inhaling cigarette smoke.
It is not contested that, at the time of his death, the veteran had the following accepted conditions – Exhibit 3 A3 p. 11, R4 pp. 41 – 42:
(a)L5/S1 Lumbar Spondylosis;
(b)Tinnitus;
(c)Sensorineural Hearing Loss;
(d)Fracture L1 Vertebral Body; and
(e)Crush Fracture L1.
The veteran’s cirrhosis of the liver was not accepted as being service-related – Exhibit 1 T8 pp. 19 – 23.
The veteran passed away on 28 November 2018 at the Sunshine Coast University Hospital. The cause of death in the veteran’s Death Certificate is stated to be – Exhibit 1 T16 p. 61:
“1(a) Gram negative bacteraemia (b) Acute myeloid leukaemia 2. Ischaemic heart disease, cirrhosis, rheumatoid arthritis”.
The duration of gram negative bacteraemia was stated to be two days, and acute myeloid leukaemia as three months.
On 16 August 2021, the Applicant lodged a claim for the war widow’s pension – Exhibit 1 T16 pp. 48 – 60.
On 17 August 2021 the Applicant’s claim was rejected on the basis that the veteran’s death was not service-related – Exhibit 1 T17 pp. 72 – 76. In reaching this decision, the Delegate provided the following reasons – Exhibit 1 T17 pp. 73 – 74:
Mrs Butler has contended that the veteran’s death was caused by exposure to second-hand smoke leading to ischaemic heart disease.
The opinion of the DVA Medical Adviser is –
‘Terminal illness: gram negative bacteraemia
Primary cause of death: acute myeloid leukaemia
Diagnosis: acute myeloid leukaemia
SOP: acute myeloid leukaemia
ICD: 205.00
Onset: estimated 28/08/2018 as 3 months prior to death
Comment: 4 April 2019 – Acute myeloid leukaemia (AML) is a blood and bone marrow cancer. I note the veteran had a long-standing refractory anaemia with ringed sideroblasts (RARS), which is a subtype of myelodysplastic syndrome (MDS) characterised by ineffective blood cell production resulting in fatigue, reduced exercise tolerance, bleeding and increased risk of infection. The natural history of myelodysplastic syndrome is to eventually transform into AML. According to the death certificate the veteran passed away from an infection as a result of immune compromise associated with AML. I do note that ischaemic heart disease is noted on the death certificate as a contributing illness (as well as the claimant contention of passive smoking), however an echocardiogram performed in 2016 did not report evidence of cardiac ischaemia.
Comment: 13 May 2019 – based on the additional information, whilst the veteran had stents inserted into his coronary arteries sometime in 2018, there is no indication that he was experiencing symptoms or signs of ischaemic heart disease in the period leading up to death. It does not appear that IHD contributed to death. The initial medical opinion is unchanged.’
Acute myeloid leukaemia
In considering the relationship between the veteran’s death from acute myeloid leukaemia and his service, I have used Statement of Principles, Instrument No 34 of 2016 that sets out the factors known to contribute to this condition.
Exposure to second-hand smoke
Exposure to second-hand smoke is not a causal or aggravating factor identified in the Statement of Principles. In the opinion of the RMA, it is not supported by sound medical scientific evidence. As such, I am unable to relate exposure to second-hand smoke to acute myeloid leukaemia in this case.
I am satisfied that none of the factors contained in the Statement of Principles apply to Mr Butler’s case…
Having considered all of the evidence I am unable to relate Mr Butler’s acute myeloid leukaemia to his service.
I am therefore reasonably satisfied that his death is not service related.
The Tribunal was also provided with the two Contracted Medical Adviser’s (CMA) reports, and the Delegate has accurately set out the findings of the CMA – Exhibit 1 T9 pp. 24 – 25, T11 p. 30.
On 18 August 2021 the Applicant’s representative, Mr. Bill Fletcher, requested a reconsideration of this Determination on the grounds that the Delegate had “misread the contention” – Exhibit 1 T18 pp. 77 – 78.
Mr. Fletcher contended as follows – Exhibit 1 T18 pp. 77 – 78:
The contention is not that Mr Butler died as a result of ischemic heart disease, rather the contention is, based on the cardiologist’s latest report, is that Mr Butler’s Ischemic Heart Disease, significantly contributed to his death, and that his exposure to passive smoking during his service, was the causation of that ischemic heart disease…(emphasis in original)
Mr Fletcher attached to his reconsideration request a letter from Dr Peter Larsen, Interventional Cardiologist, dated 27 May 2021, in which Dr Larsen opined as follows – Exhibit 1 T18 p. 78:
I have reviewed Geoff’s case file. There is no doubt that his underlying coronary artery disease had a material impact on his health prior to him passing away. He had a significant heart attack in June 2018. A weakened heart in the context of his other comorbidities certainly would have been a contributor to his death from sepsis. Sepsis is an infection that has spread to the blood and his heart would have needed all the strength that he could muster to fight the infection. (emphasis in original)
On 8 February 2022, the Veterans’ Review Board (VRB) affirmed the Determination of 17 August 2021- Exhibit 1 T24 pp. 96 – 108.
In a lengthy and comprehensive decision, the VRB dealt with the key question, namely what was the veteran’s “kind of death”. The VRB outlined the views of the CMA, as well as the opinion of Dr Larsen, quoted above. The VRB, in finding that the “cause” of the veteran’s death was acute myeloma leukaemia, gave the following reasons – Exhibit 1 T24 pp. 106 – 107:
13. In weighing the evidence relating to the cause of your late husband’s death we note that case law, relating to consideration of cause of death, makes it clear that there is a distinction between a terminal event and cause and causes of death. Further, a medical condition which merely affects the time of death but does not play any role in the pathological changes leading to death is not a medical cause of death.
14. In assessing the evidence relating to the cause of death in that material available, we acknowledge that Dr Larsen was your late husband’s treating cardiologist and that his opinion may well be factually correct however it did fail to shed any light on whether and how the IHD may have significantly contributed to the sepsis. On the other hand, we noted that the opinions of the CMA in both of his reports outlined above both of which were based on comprehensive analysis of medical evidence relating to the development of your late husband’s acute myeloma leukaemia between 2013 and 2018 and has particular regard to the Sunshine Coast Hospital admission notes dated 27 November 2018 within 24 hours of your late husband’s death. Based on these reports, we preferred the evidence in both CMA reports and consequently found that the cause of your late husband’s death was acute myeloma leukaemia.
The VRB then dealt with the question of connection to service – Exhibit 1 T24 p. 107:
15. In assessing whether your late husband’s death is connected to his service, we are required to rely on the relevant Statement of Principles Instrument No. 72 of 2015 concerning acute myeloma leukaemia.
16. Having carefully reviewed the material available, we note that there is no evidence in the material on which any factor in the relevant Statement of Principles could be raised which means that we cannot be reasonably satisfied that on the material available on this occasion that your late husband’s death is connected to his service.
On 25 April 2022, the Applicant lodged an application for review with the Tribunal – Exhibit 1 T2 pp. 3 – 10.
ISSUES
In determining whether the Applicant is entitled to a widow’s pension under s 70(1) of the Act, the following issues require resolution:
(a)what was the veteran’s “kind of death”?;
(b)does the evidence before the Tribunal raise a connection between the veteran’s “kind of death” and his eligible defence service?; and
(c)whether there is in force a Statement of Principles (SoP) that upholds the veteran’s “kind of death” was, on the balance of probabilities, caused by his defence service?
THE LAW
Part IV of the Act provides, inter alia, for pensions for members of the Defence Force and their dependants.
The term “defence service” is defined, inter alia, by s 68(1) to mean continuous full-time service rendered by a member of the Defence Force on or after 7 December 1972 and before the “terminating date”. The terminating date as defined by s 68(1) is 7 April 1994.
It is not disputed that the veteran rendered defence service as defined by s 68.
Subsection 70(1) provides, inter alia, that where the death of a member of the Forces was defence-caused, the Commonwealth, subject to the Act is liable to pay:
“(c) in the case of the death of the member – pension by way of compensation to the dependants of the member”.
In determining if the death of the veteran was defence-caused, the applicable standard of proof is prescribed by s 120.
There is no evidence before the Tribunal that the veteran rendered operational service (s 120(1)) nor that he rendered either peacekeeping service, hazardous service or nuclear test service (s 120(2)). Accordingly, the applicable standard of proof is prescribed by s 120(4), namely to a decision-maker’s reasonable satisfaction.
Section 120B provides that the standard of “reasonable satisfaction” is to be assessed in certain cases by reference to SoPs.
Attention must be given to the operation of s 120B(3) which provides that in applying s 120(4) to determine a claim, the decision-maker is to be reasonably satisfied that, inter alia, the death of a person was defence-caused, only if:
(a)the material raises a connection between the death of the person and service rendered by the person; and
(b)there is in force a SoP;
that upholds the contention that the death of the person is, on the balance of probabilities, connected with that service.
Subsection 120B(4)(c) refers to “the kind of death met by the person”.
The Tribunal accepts that an anterior step before deciding whether a death is defence-caused, is the task of determining the “kind of death” of the particular veteran. This matter was expressly dealt with by Mansfield and Stone JJ in Collins v Repatriation Commission [2009] FACFC 90 (‘Collins’) as follows:
42. In any claim under the VE Act, there are generally three fundamental and logically separate though often inter-related questions. The first is to determine the nature of the injury, disease or death of the veteran. That is anterior to, and distinct from, the second question, namely the relationship of the injury, disease or death to the service of the veteran. The third question is to determine the extent of the entitlement to benefits under the VE Act in respect of the…injury, disease or death.
Their Honours also explained that the word “death” refers to “the nature of the condition which causes the death” or “the medical cause or causes of the death” – at [44]. The decision about the “kind of death” suffered by a veteran, is not made by applying ss 120, 120B or any SoP under s 196B(2). It “is made independently of them” – at [47].
Thus, in Repatriation Commission v Codd (2007) 95 ALD 619 (‘Codd’), the veteran was killed at a level crossing in a collision with a train. The post-mortem listed the cause of death as “multiple injuries including brain damage”. The veteran had rendered operational service and accepted conditions of chronic eczema, labile hypertension and had infected tonsils. The veteran also suffered from alcohol dependence and abuse. The Tribunal found that the kind of death was a road accident and, as there was no relevant SoP, determined the issue in accordance with s 120(1) and (3).
In rejecting that the “kind of death” of the veteran was a road accident, Gordon J gave the following reasons – 625 - 627:
[31] The phrase ‘kind of death met by the person’ in s 120A(4) asks a causative question. It is not a question about whether the death was slow, fast or the like. It asks ‘questions of medical causation’ about the cause of death and does so in a particular context – the VE Act and, in particular, Pt VII of the VE Act...
[32] The notion of ‘causing’ has been said to be one of common sense...
[33] The answer to the question of causation posed by s 120A(4)...requires identification and examination of the purpose for which the question is being asked. The purpose or reason for asking the question is not at large. The nature and scope of the purpose for asking the question is to be found in the VE Act...the purpose for which the question in s 120A(4) is being asked, is to be found in s 120A(3)....one identifies the nature and purpose of the causal question in s 120A(4) (the ‘kind of death met by the person’) by reference to the matters identified in s 120A(3) – a hypothesis connecting a veteran’s death with circumstances of that veteran’s service...
[35] What then is the purpose for which the question in s 120A(4) about the kind of death met by the person is being asked? As a matter of statutory construction the answer is that the purpose is to ascertain whether or not there is a SoP which addresses the question of the reasonableness of the hypothesis about the connection between the cause of death of the veteran and the circumstances of the service.
[36] The ‘kind of death met by the [veteran]’ that is to be identified requires examination of the causal connection between the death and the circumstances of the service. In particular, it requires examination of the relevant hypothesis that is said to provide the causal link between death and service. In the present case, the hypothesis was that the death was war-caused and that cause, or at least one of the causes of death, was the veteran’s ‘service related alcohol habit [,] the effects of which [had] impaired his concentration and contributed to the fatal collision’...
[40] In the present case, the kind of death met by the veteran was not death by road accident but death from (in the sense of arose out of, or was attributable to) alcohol dependence or alcohol abuse.
It is also the case that there may be more than one medical cause for a veteran’s incapacity or death – Collins at [51] per Mansfield and Stone JJ.
Further, in reaching a conclusion on the “kind of death” the Tribunal is not bound by terminology used in the Death Certificate. The Tribunal must consider the medical evidence presented and reach an independent conclusion based on that evidence in the context of the specific inquiry mandated by the Act – see generally, Willman and Repatriation Commission [2007] AATA 1480 at [23] and Hill v Repatriation Commission [2009] FCAFC 91; (2009) 177 FCR 434 (Hill) [61]/445.
Mansfield and Stone JJ in Collins also dealt with medical conditions which hasten the death of a veteran, but which do not otherwise play any real role in the pathological changes leading to the death of a veteran:
82 Those provisions support the conclusion that the inquiry about the death or the kind of death for the purposes of the VE Act is, in essence, a question of fact about the medical cause or causes of the death. It does not support the proposition on behalf of Mrs Collins that there is 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 the death…
84 For those reasons, 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. The medical cause or causes of death are to be determined by the relevant decision-maker on the evidence. That is what the Tribunal did. In our judgment, it committed no error of law in doing so.
THE HEARING
A Hearing was convened in Brisbane on 13 July 2023.
The Applicant was represented by Mr Fletcher and the Respondent by Mr Dube. The parties appeared remotely.
The only person called to give evidence was Dr Kenneth Hossack, Consultant Cardiologist. Dr Hossack also appeared remotely and was subject to cross-examination.
CONSIDERATION
Kind of death
As previously indicated, the first question to be determined is what was the veteran’s kind of death.
As was explained above, there may well be more than one cause of death for a veteran. In Collins, Mansfield and Stone JJ made the following observations:
51 There may be more than one medical cause for a veteran’s incapacity or death. Repatriation Commission v Law (1980) 147 CLR 635 (Law) recognised that. In that case, the veteran had died as a result of carcinoma of the lung (nine months) with myocardial infarction (three years) as a contributory cause. That was not in issue. That finding did not attract adverse judicial comment. The hypothesis presented by the widow of the veteran was that, as a result of his war service, the veteran had taken up smoking, which had led to the onset of his carcinoma and so to his death. The issue was whether, in terms of s 101 of the Repatriation Act 1920 (Cth), his death had arisen out of or was attributable to his war service. Section 101 was generally to the same effect as s 8(1)(b) of the VE Act and s 47(2) of that Act generally was to the same effect as s 120(1) of the VE Act. That Act was repealed and replaced by the VE Act: see s 3 of the VE Act. For present purposes, it is sufficient to note the similarity between the relevant wording of s 101 referred to and s 8(1)(b) of the VE Act: see also per O’Loughlin J in Doolette at 492, and the absence of any suggestion in the judgment of Aickin J (with whom Gibbs CJ, Stephen and Mason JJ agreed) that there could not be multiple medical causes of death.
52 The High Court upheld the decision of the Full Court of this Court (Bowen CJ, Brennan and Lockhart JJ): Repatriation Commission v Law (1980) 31 ALR 140. Their Honours at 151 said of the expression "attributable to":
It seems clear that the expression "attributable to" in each case involves an element of causation. The cause need not be the sole or dominant cause: it is sufficient to show "attributability" if the cause is one of a number of causes provided it is a contributing cause. Under s 101(1)(b), it is sufficient to show "attributability" if a member’s war service is a contributing cause to the incapacity or death in respect of which the claim is made.
That passage, of course, relates to the issue of whether the death was "war-caused", but it was a question considered in relation to each of the medical causes of the death of the veteran.
53 That passage was adopted, and applied, by O’Loughlin J in Doolette. That case concerned a claim by the widow of a veteran for a pension under the VE Act, following his death. The veteran had died following a myocardial infarction, to which his condition of diabetes mellitus type 2, first diagnosed in 1954, had been a significant contributing factor. The hypothesis put forward to connect the death to the veteran’s service was that the veteran’s death was war-caused because the diabetes was war-caused, either through stress experienced during war service, or by that stress leading to obesity which in turn produced diabetes, or by that stress aggravating a latent condition of diabetes. The fact that the veteran had suffered stress during his operational service was not in dispute.
54 His Honour said at 492 that:
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.
Although the Tribunal had properly considered that the medical cause of the death included the diabetes, it was satisfied beyond reasonable doubt that no reasonable hypothesis existed connecting the veteran’s death to his war service. That conclusion was not shown to have resulted from any error of law on the part of the Tribunal.
The Respondent contends that the actual cause of death of the veteran was an infection (sepsis) as a result of immune compromise associated with acute myeloid leukaemia (AML) – Exhibit 3 R4 para 4.12 p. 44.
Conversely, the Applicant, contends that the medical evidence she obtained supports the contention that due to the veteran’s passive smoking exposure whilst rendering service, he developed Ischaemic Heart Disease (IHD) which in turn was a significant contribution to his death from sepsis – Exhibit 3 A3 paras 4.3, 4.5 p. 12. In particular, reliance is placed on the letter of Dr Larsen of 27 May 2021, which is referred to above – Exhibit 1 T18 p. 78.
The Respondent, in turn, primarily places reliance on the report of Dr Hossack of 16 January 2023 – Exhibit 3 R3 pp. 32 – 40. In addition, as previously noted, Dr Hossack gave evidence at the Hearing. Dr Hossack was briefed with all of the extant relevant medical evidence, including the reports of Dr Larsen and the records of Ocean Wave Medical and Sunshine Coast University Hospital – Exhibit 3 R3 pp. 34 – 35.
Dr Hossack was asked to list the veteran’s medical conditions at the time of his death, and he gave the following answer – Exhibit 3 R3 para 5.1 pp. 35 – 36:
i.Gram-negative septicaemia due to a psedudomonas species organism and a Morganella species organism.
This condition was a complication of the acute myeloid leukaemia. Mr Butler presented with this condition on 27 November 2018. Antibiotics were initially given but as the clinical condition deteriorated active treatment was withdrawn.
ii. Acute myeloid leukaemia complicating a Myelodysplastic syndrome.
The acute myeloid leukaemia had been present for three months. Mr Butler had received three cycles of chemotherapy. The acute myeloid leukaemia was complicated by febrile episodes and had been complicated by an episode of presumed cellulitis resulting in admission to hospital on 15 November 2018 and discharged from hospital on 22 November 2018. The acute myeloid leukaemia complicated a Myelodysplastic syndrome which had been present for approximately ten years.
iii. Rheumatoid arthritis.
This had been present for at least ten years.
iv. Hypothyroidism.
Present years.
v. Alpha 1 – antitrypsin deficiency.
Recent diagnosis.
vi. Osteoporosis.
Present three to four years.
vii. Hepatic cirrhosis.
Uncertain.
viii. Coronary artery disease.
Present four months.
At the Hearing, Dr Hossack gave a helpful explanation of the meaning of gram-negative septicaemia - Transcript (Tr.) 13.7.2023 p. 15:
So the deceased on his final admission to hospital was found to have an infection in his bloodstream due to two different organisms. One organism was a pseudomonas and the other was a morganella species. The statement gram-negative refers to the pathology of those organisms and they have a negative staining quality to them. Both of the infections with the pseudomonas and morganella species are very serious infections and in many people are lethal infections because of the effects that they have on the body. In particular, the pseudomonas produces chemicals or toxins as a result of the infection, and these toxins have effects on the cardiovascular system. The first effect that they have is on blood vessels, and they dilate blood vessels; that means the blood vessels become larger. And as a result of the blood vessels becoming larger, the blood pressure falls. The blood vessels also become leaky, and so that the fluid within inside the blood system leaks out into the tissues around the blood vessels, and this further compounds the problem of low blood pressure. When low blood pressure occurs, a number of the body’s functions cease or are severely impaired. This is particularly so of kidney function and liver function, and also it can affect the cardiovascular system. So this infection, the gram-negative septicaemia, causes low blood pressure, leaking of fluid out of the blood vessels, and in addition, the toxins have a direct effect on the heart muscle cells. These are the cells that cause the heart to squeeze and pump blood around the body. The effect on the heart muscle cells is the same for all blood - all heart muscle cells irrespective of whether a person has a history of high blood pressure, high cholesterol, a history of stents, or a normal heart. All of these cells are affected by the toxins, and they cause the heart to function less efficiently and pump less blood around the body. The - so that the infection, irrespective of whether or not a person has coronary artery disease, is a severe infection and, in many cases, fatal, irrespective of whether a person has coronary artery disease…
Dr Hossack then gave the following opinion about the veteran’s coronary condition immediately prior to his death – Exhibit 3 R3 para 5.1 p. 36:
Mr Butler presented with an acute coronary syndrome in June 2018. He underwent coronary angiography which documented severe single vessel coronary artery disease. This was treated successfully with two drug eluting stents placed in the left anterior descending coronary artery. The angiogram demonstrated mild disease in the circumflex and right coronary artery. A resting 12 lead electrocardiogram showed no evidence of an acute myocardial infarction. An echo cardiogram performed on 26 June 2018 showed normal left ventricular function.
Dr Hossack was then asked to give his opinion on the “kind of death” suffered by the veteran. His response was blunt and unequivocal – Exhibit 3 R3 p. 36:
In my opinion, Mr Butler died as a result of Gram-negative septicaemia. The Gram-negative septicaemia was a direct consequence of the acute myeloid leukaemia. As a result of acute myeloid leukaemia Mr Butler had markedly reduced mechanisms to deal with infection. In particular, he had a very low white cell count and a low haemoglobin. The Gram-negative septicaemia caused toxins to be produced which result in a marked lowering of blood pressure.
It would be my opinion that there was no contribution to Mr Butler’s death from ischaemic heart disease.
Subsequently, Dr Hossack expanded on why he was of the opinion that the veteran’s heart condition had no contribution to his death – Exhibit 3 R3 para 5.3 pp. 36 – 37:
It would be my opinion that ischaemic heart disease made no contribution to the cause of Mr Butler’s death. I am of this view because the diagnosis of ischaemic heart disease was made following presentation with an acute coronary syndrome in June of 2018. Dr Larsen noted that there was small troponin rise when Mr Butler presented. (T6)
The remainder of the coronary arteries showed hemodynamically insignificant coronary heart disease. In his report (T 18) Dr Larsen comments that Mr Butler had a weakened heart. On 26 June 2018 Mr Butler underwent an echocardiogram which showed normal heart ventricular function and no evidence of any regional wall motion abnormalities. The ejection fraction was 58%, This is not consistent with a ‘weakened heart’. The investigations following the presentation with the acute coronary syndrome in June 2018 do not support the contention that there was any demonstrable damage to the left ventricle in terms of cardiac function. Furthermore, when Mr Butler presented with a febrile illness on 15 November 2018, a specific comment was made that there were no symptoms of an acute coronary syndrome suggesting that the treatment that Mr Butler had received from Dr Larsen was working appropriately and there was no evidence of cardiac de-compensation. Specifically, during that admission to hospital a number of entries are made, indicating that Mr Butler was able to lie flat. (T32) In my opinion, had Mr Butler experienced significant cardiac damage sufficient to cause impairment of heart function then it would be unusual for him to be able to lie flat without symptoms.
In my opinion, Mr Butler died solely as a result of the hemodynamic consequences of a Gram-negative septicaemia. He died as a result of being unable to mount a successful response to an infection from a psedumonas and Morganella species.
Dr Hossack disagreed with Dr Larsen’s opinion that IHD was a contributor to the veterans’ death from sepsis. Instead, Dr Hossack opined that the lethal infection was a consequence of acute myeloid leukaemia – Exhibit 3 R3 para 5.4 p. 37.
Under questioning from Mr Dube at the Hearing, Dr Hossack gave helpful plain English testimony on why he was of the opinion that the veteran’s heart condition did not contribute to his death – Tr. 13.7.2023 pp. 16 – 17:
So prior to the development of the myeloid leukaemia, Mr Butler had presented to hospital with a condition that’s called an acute coronary syndrome. That is a condition where a person experiences chest pain, and there may or may not be changes in the ECG and there may be a change in a component of the blood called troponin. And when the troponin is elevated, that indicates that there has been some degree of damage to the heart muscle. Now in the particular case of the deceased, the rise in the troponin was very small. But nevertheless, Dr Larsen undertook an angiogram which demonstrated a narrowing in the artery running over the front of the heart. This was a significant narrowing, and Dr Larsen felt it was appropriate to insert stents; and this was done with a good result. The records indicate that the echocardiogram, which is a measure which measures heart function, was completely normal. And that would indicate to me that the procedure that Dr Larsen undertook was very successful and prevented any damage, any significant damage, occurring to the left ventricle as a result of the narrowed artery and as a result of the acute coronary syndrome. Furthermore, when Mr - when the deceased presented on the final admission, the admitting doctors noted that there was no evidence of an acute coronary syndrome, indicating that, despite the fact that the deceased was very sick, the heart, at the time of presentation, was performing satisfactorily. And there was no evidence to indicate that there were any problems with the stent that Dr Larsen had inserted. I disagreed with Dr Larsen’s opinion that he - that, because of the heart disease that he treated, this may have contributed to the death. But in my opinion, the heart disease did not contribute to the death, and in my opinion, a person who’d never had stents put in would not have survived given the severity of the infection and the myeloid leukaemia.
Dr Hossack was then cross-examined by Mr Fletcher.
Mr Fletcher asked Dr Hossack whether the records of the Sunshine Coast University Hospital supported the proposition that the veteran’s cellulitis of the lower right leg was the cause of the infection and not AML. In response, Dr Hossack opined as follows – Tr. 13.7.2023 p. 17:
So my opinion would be that a person with a normal haematological system and no acute myeloid leukaemia would have been able to defend against that cellulitis in the leg, and would have overcome the cellulitis and would not have developed a septicaemia. So I think the issue is this, the deceased did not have a normal immunological system because of the acute myeloid leukaemia, and as a result of that abnormal immunological system they succumbed to an infection.
Next, Mr Fletcher referred to the fact that the veteran had received, prior to his death, 15 chemotherapy treatments and 12 blood transfusions, and Dr Hossack gave the following opinion – Tr. 13.7.2023 p. 18:
I think the infection was due to a combination of factors, but the underlying problem was the acute myeloid leukaemia, so that in order to treat the acute myeloid leukaemia he required chemotherapy, and that indirectly contributes to the development of a septicaemia.
Dr Hossack testified that the blood flow through the veteran’s heart was normal or sufficient in the time immediately leading to his death – Tr. 13.7.2023 p. 18.
Mr Fletcher also referred Dr Hossack to a report of Dr Larsen of 26 June 2018 in which Dr Larsen noted that the veteran “will need to stay on aspirin indefinitely” – Exhibit 2 ST4 p. 467. Reference was also made to a report of Dr KK Lim of 13 August 2018 in which Dr Lim noted that aggressive “cardiac risk factor control was recommended as he has 40% RCA stenosis” - Exhibit 2 ST4 p. 470. Dr Hossack’s response was as follows – Tr. 13.7.2023 pp. 18 – 19:
It’s normal practice following a stenting procedure to place a person on drugs that prevent clotting, and one of the drugs that is used is aspirin, and there are other drugs that are used. When I read the medical reports I formed the opinion that the doctors were concerned about giving the deceased too much blood‑thinning medicine, because of the problems with his platelets as a result of the myelodysplastic and subsequently myeloid leukaemia problem. The fact that aspirin was prescribed does not indicate that the deceased was more susceptible to gram‑negative septicaemia effects than a person with a normal heart. So that the use of aspirin was part of the management of his coronary artery disease and stenting, but does not indicate that there was a predisposition of his heart to adverse effects from a gram‑negative septicaemia.
Finally, Mr Fletcher asked Dr Hossack questions regarding an exercise ECG test which was performed on the veteran whilst he was a patient awaiting a stenting procedure. The questions were as follows – Tr. 13.7.2023 pp. 19 – 20:
DEPUTY PRESIDENT:..Thank you Mr Fletcher?---The other point I would make is that the echocardiogram done following the stenting procedure showed normal left ventricular function, and that is a very positive finding…
MR FLETCHER:…Basically the echocardiogram we spoke to previously, Doctor, would you say then that an echocardiogram not necessarily spells out everything that you need to know and therefore an exercise stress test would certainly prove beyond doubt that there was an issue there?---The exercise stress test was performed prior to the stenting procedure. Do you agree with that?
No, I do not, Doctor. It was carried out on ---? What date do you think---
No. I don’t think Doctor. It’s on 28 June at Nambour Hospital. ST4 page 476. 477 will allude you to that?---And what was the date of the angiogram?
26 June, two days prior?---I don’t think – I don’t think the exercise test indicates a cardiac problem…
When Mr Dube addressed the Tribunal, he specifically referred to the report of Dr KK Lim, Cardiologist/Electrophysiologist dated 28 June 2018 – Exhibit 2 ST4 pp. 476 -477.
Mr Dube pointed out that the report was written on 28 June 2018, but that it is noted therein that the veteran was admitted to the Sunshine Coast University Hospital on 25 June 2018 having been transferred from the Nambour Hospital Emergency Department and discharged on 27 June 2018. During that period, he underwent an exercise stress test which “was positive for ST depression and chest pain on exertion”. Dr Kim noted – Exhibit 2 ST4 p. 477:
Interventional cardiologist Dr Peter Larsen performed coronary angiography on the 26th June 2018 which showed mid LAD stenosis requiring 2 drug eluting stents at the same time.
The Tribunal’s attention was also drawn to a hospital report dated 26 June 2018 which sets out in detail the exercise ECG test. The following matters are noted – Exhibit 2 ST4 p. 480:
…The patient exercised for 04:14 minutes on the Bruce protocol achieving a maximum heart rate of 116 bpm (72% age predicted maximum HR) and a maximum blood pressure of 112/60 mmHg. The test was ceased due to chest discomfort…
As will be seen from the extracts of the cross-examination of Dr Hossack, there was some confusion about the actual date of the exercise ECG. The Tribunal accepts that it was performed on 26 June 2018 and not 28 June 2018, and prior to the veteran’s coronary procedure which was performed by Dr Larsen. The Tribunal accepts the submissions of Mr Dube on this point – Tr. 13.7.2023 p. 25.
The Tribunal found Dr Hossack to be a very impressive witness. He answered all of the questions asked of him directly and in a way that demonstrated his experience in and expertise in the field of cardiology.
The Respondent relies on the evidence of Dr Hossack, and contends that his evidence is consistent with – Exhibit 3 R4 para 4.14 p. 45:
(a)the cause of death in the Death Certificate;
(b)the CMA opinions quoted above;
(c)the pathology results in the veteran’s GP records, which indicate longstanding refractory anaemia with ringed sideroblasts which is a percussor to AML; and
(d)contemporaneous hospital records documenting the medical issues experienced by the veteran at the time of his death.
With respect to Dr Larsen’s opinion that the veteran’s IHD contributed to his death, the Respondent contends – Exhibit 3 R4 para 4.15 p. 45:
(a)Dr Hossack specifically ruled out IHD as a contributor to the veteran’s death; and
(b)there is no corroborating evidence, including in Dr Larsen’s summonsed records that the veteran was experiencing symptoms or signs of IHD in the period leading up to his death, nor that IHD played any real role in the pathological changes leading to the veteran’s death.
Conversely, the Applicant contends that the cause of the veteran’s sepsis was cellulitis in the right leg, which in turn was contributed to by IHD – Exhibit 3 A3 para 5.2 p. 13.
The Applicant’s reasons for this contention are set out at some length in the Applicant’s Statement – Exhibit 3 A3 pp 10 – 26.
The Tribunal has been presented with conflicting medical evidence. The Applicant relies on Dr Larsen whilst the Respondent relies on Dr Hossack as well as the CMA opinions of 4 April and 14 May 2019. The Tribunal has no reason to doubt either the qualifications, experience, or professionalism of these medical practitioners.
The Tribunal had the benefit of receiving not only a very detailed report from Dr Hossack, but also listening to his testimony. As the Applicant did not call Dr Larsen to give evidence, the Tribunal did not have benefit of either listening to Dr Larsen nor his opinion being tested in cross-examination.
It is the case that Dr Larsen has the benefit of being the treating doctor and had first-hand experience of the veteran. In some instances where there is conflicting medical evidence, that first-hand experience can be determinative when a decision-maker has to choose which medical expert is best placed to make a diagnosis.
In this matter, though, it is clear to the Tribunal that Dr Hossack’s evidence should be preferred. This is not just because he prepared an extremely well-reasoned and detailed report and gave testimony, but also because his report comports with the medical evidence presented to the Tribunal. The conclusions reached by Dr Hossack are consistent with the medical evidence.
Dr Hossack was unequivocal in both his report and testimony that IHD had “no contribution” to the death of the veteran. Of critical importance is that Dr Hossack gave a detailed and compelling explanation of why he formed that opinion – Exhibit 3 R3 para 5.3 pp. 36 – 37. That explanation is set out above, and it is not necessary to quote it again.
Having listened to Dr Hossack’s testimony, it is tolerably clear to the Tribunal that not only did Dr Hossack not resile from this opinion, but he gave sound and medically based reasons for reaching that conclusion. The Tribunal is required to determine, on the balance of probabilities, what “kind of death” the veteran suffered – Repatriation Commission v Hancock [2003] FCA 711 at [11].
Mr Dube drew the Tribunal’s attention to Collins and Repatriation Commission [2008] AATA 351, a decision of Senior Member McCabe (as he then was) and Member S Frost. This decision was appealed to the Federal Court and then the Full Federal Court, and at every level of appeal the reasoning of the Tribunal was upheld.
Collins involved a claim for the war widow’s pension. The primary issue in contention was the “kind of death” suffered by the veteran. It was not contested that the veteran in Collins suffered from IHD, the real issue was how IHD contributed to the veteran’s death. The Tribunal reached the following conclusion (at [22]):
…we have the evidence of both experts, Dr Butler and Professor O’Rourke, that ischaemic heart disease hastened, but was not the cause of, the veteran’s death. What caused his death was the pulmonary embolism, which occurred as a consequence of the motor axonal neuropathy which the veteran had suffered for many years. While the veteran may have died when he did – rather than some hours or days later – because he had ischaemic heart disease, it is not correct to say that the ischaemic heart disease was the cause, or even one of the causes, of his death. The cause of death was the pulmonary embolism. In the language of ss 120 and 120A of the Act, the ‘kind of death’ met by the veteran was ‘death by pulmonary embolism’. (emphasis in original)
As Mansfield and Stone JJ found in Collins (at [82]) the task of a decision-maker is to determine, as a question of fact, what was cause or causes of death of a veteran. The fact that a condition hastens the time of death of a veteran is not a medical cause of death. The task of a decision-maker is to ascertain if a medical or conditions has or have resulted in pathological changes leading to the death of a veteran.
Framed in this manner, the evidence does not support, on the balance, that the veteran’s IHD was the cause of his death, or one of the causes of his death. Indeed, the evidence does not even support the proposition that the veteran’s IHD condition hastened his death.
The evidence supports, on the balance, that the veteran’s kind of death was an infection (sepsis) resulting from immune compromise associated with acute myeloid leukemia.
Does the material raise a connection between the veteran’s death and his defence service?
The next task of the Tribunal is mandated by s 120(3)(a) of the Act, namely being reasonably satisfied that the material before the Tribunal raises a connection between the death of the veteran and some particular service rendered by the veteran.
The Respondent drew the Tribunal’s attention to the following observations in Kowalski and Repatriation Commission [2009] AATA 853 at [39]:
Contrary to the submissions of Mr Kowalski it is not sufficient for him to identify an SoP that raises an apparent connection to defence service. What must be first ascertained is whether, on the material before me, I am reasonably satisfied that the material upholds a connection between Mr Kowalski’s condition of GORD and his service. Then, that connection must be considered by reference to the applicable SoP. These two tasks are mandated by paragraphs (a) and (b) of s 120B(3) of the Veterans’ Entitlements Act.
What constitutes “reasonable satisfaction” was dealt with by the Full Federal Court in Repatriation Commission v Smith (1987) 15 FCR 327. His Honour, Beaumont J quoted this passage of Dixon J in Bringinshaw v Bringinshaw (at 334):
…it is enough that the affirmative of an allegation is made out to the reasonable satisfaction of the tribunal. But reasonable satisfaction is not a state of mind that is attained or established independently of the nature and consequence of the fact or facts to be proved. The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are consequences which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal. IN such matters ‘reasonable satisfaction’ should not be produced by inexact proofs, indefinite testimony, or indirect inferences. [Emphasis added]
His Honour then quoted the following passage from Cross on Evidence (at 335):
In ordinary civil cases, it is usually expressed as involving the ‘preponderance of probability’, the ‘balance of probabilities’ or the ‘preponderance of evidence’. It might be argued that the last of these seems to involve no more than the preponderance of the evidence produced by the proponent of an issue over that produced by its opponent. It is more common, however, to regard all of these terms as synonymous, and as connoting not really relative preponderance over the evidence of the opponent but satisfaction of a prescribed level of probability. The possibility of a contrary finding does not prevent a finding reached on that standard from being appropriate. It is not enough for a plaintiff to fail that his account ‘may not be correct’.
His Honour observed that s 120, when requiring the Tribunal to be reasonably satisfied before it makes is decision, was “intended to introduce the standard of proof required in civil litigation”. Beaumont J then made this observation (at 335):
…the Tribunal erred in adopting the Bishop test. Instead, it should have asked itself whether on the facts of the case, it was, persuaded on the civil standard. There is, in this connection, a distinction of substance to be drawn between the probabilities on the one hand and mere possibilities, even if they are real as distinct from fanciful, on the other…
The Respondent accepted that the material raises a connection for AML and contended that the SoP for ischaemic heart disease would only need to be applied if IHD was accepted as a “kind of death” suffered by the veteran Exhibit 3 R4 paras 4.20 p. 46, 4.30 p. 47.
The Tribunal accepts that the concession with respect to AML is properly made, having regard to the legal principles set out above, and proceeds accordingly.
The Tribunal also agrees that as IHD is not a “kind of death” suffered by the veteran it is neither necessary nor appropriate to apply SoP No. 2 of 2016 – Ischaemic Heart Disease (Balance of Probabilities).
Is there a SoP in force that upholds the contention?
Acute myeloid leukaemia
It is not contested that the relevant SoP for AML is SoP No. 72 of 2015 – Acute Myeloid Leukaemia.
The Factors that must exist before it can be said, on the balance of probabilities, death from AML is connected with the circumstances of the veteran’s service are set out in s 9.
Two factors are potentially relevant:
(1) smoking at least 15 pack-years of cigarettes, or the equivalent thereof in other tobacco products, before the clinical onset of acute myeloid leukaemia, and:
(a) smoking commenced at least ten years before the clinical onset of acute myeloid leukaemia; and
(b) where smoking has ceased, the clinical onset of acute myeloid leukaemia has occurred within ten years of cessation.”
(10) having a disease from the specified list of autoimmune diseases before the clinical onset of acute myeloid leukaemia.”
Schedule 1 defines “pack-years of cigarettes, or the equivalent thereof in other tobacco products” as:
a calculation of consumption where one pack-year of cigarettes equals twenty tailor-made cigarettes per day for a period of one calendar year of 7 300 cigarettes. One tailor-made cigarette approximates one gram of tobacco or one gram of cigar of pipe tobacco by weight. One pack-year of tailor-made cigarettes equates to 7.3 kilograms of smoking tobacco by weight. Tobacco products mean either cigarettes, pipe tobacco or cigars smoked alone or in any combination.
As explained previously, it is not contested that the veteran was not a smoker during the period he rendered service. The contention put forward by the Applicant is that the veteran was a passive smoker in that he worked constantly in a closed work environment which was covered in a “haze of smoke” – Exhibit 1 T16 p. 69.
Unlike some other SoP’s, SoP No. 72 of 2015 does not contain a factor which envisages a veteran being exposed to a smoke-filled environment. Factor 1 is specifically limited to a person who voluntarily engages in smoking tobacco. In these circumstances, it is clear that Factor 1 cannot be relied upon by the Applicant.
Turning to Factor 10, Schedule 1 lists as one of the autoimmune diseases, rheumatoid arthritis. It will be recalled that rheumatoid arthritis is not one of the veteran’s conditions accepted as being related to his service.
The veteran had been receiving treatment from a number of specialists for his various conditions, including rheumatoid arthritis. One of the treating Rheumatologists was Dr Ken Maguire. In a report dated 14 June 2018, Dr Maguire noted that the veteran had been diagnosed as suffering from rheumatoid arthritis since November 2012 – Exhibit 2 ST5 p. 497. Accordingly, the Tribunal is reasonably satisfied that at the time of his death the veteran was suffering from rheumatoid arthritis.
Unfortunately, s 10(1) of SoP No 72 of 2015 provides that the existence in a person of a factor referred to in section 9 must be related to the relevant service rendered by the person.
There is no evidence before the Tribunal that the veteran’s rheumatoid arthritis was related to his eligible service.
Accordingly, as there are no Factors in s 9 that are applicable to the veteran, SoP No. 72 of 2015 cannot be relied upon by the Applicant.
DECISION
The decision under review is affirmed.
I certify that the preceding 103 (one hundred and three) paragraphs are a true copy of the reasons for the decision herein of Deputy President J Sosso
......[sgn]..................................................................
Associate
Dated: 29 August 2023
Date of hearing: 13 July 2023 Advocate for the Applicant: Bill Fletcher- ESO Maroochy RSL Counsel for the Respondent: Ben Dube Solicitors for the Respondent: Sparke Helmore
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