Cannon and Repatriation Commission
[2003] AATA 394
•30 April 2003
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2003] AATA 394
ADMINISTRATIVE APPEALS TRIBUNAL )
) No N2002/41
VETERANS' AFFAIRS DIVISION ) Re ERIKA CANNON Applicant
And
REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Dr M.E.C. Thorpe, Member Date30 April 2003
PlaceSydney
Decision The decision under review is affirmed.
……………………………….
Member
CATCHWORDS
Veterans’ Affairs – defence service – whether veteran’s death was contributed to, or aggravated by, defence service – cause of death – primary hypertrophic cardiomyopathy – whether SoP satisfied – decision affirmed
Administrative Appeals Tribunal Act 1975 s37
Veteran’s Entitlement Act 1986 ss 70(1), 70(5), 120(4), 120B, 196B(14)
Statement of Principles No. 20 of 1998
Roncevich v Repatriation Commission [2002] FCA 1458
Repatriation Commission v Law (1980) 31 ALR 140Lees v Repatriation Commission [2002] FCAFC 398
REASONS FOR DECISION
April 2003 Dr M.E.C. Thorpe, Member 1. This is an application by Mrs E. Cannon (the Applicant) who is the widow of the late veteran, Mr A. Cannon (the Veteran). Mrs Cannon is appealing a decision by the Repatriation Commission (the Respondent) on 3 January 2001 which rejected a claim that the death of her husband from hypertrophic cardiomyopathy was service related.
2. At the hearing, the Applicant was represented by Mr R. Sherlock. Ms J. Jagot represented the Respondent. Dr Miller gave oral evidence. The Tribunal had before it the documents lodged in accordance with section 37 of the Administrative Appeals Tribunal Act 1975 and the following exhibits:
Exhibit Document Date A1 Statement of Mrs E. Cannon 15 March 2002 A2 Report of Dr Miller 9 January 2003 A3 Decision of the Repatriation Commission for Mr Cannon 29 November 1996 A4 Decision of the Repatriation Commission for Mr Cannon 24 February 1998 A5 Applicant’s Statement of Facts and Contentions 7 April 2003 A6 Extract from the 15th Edition of “Harrison’s Principles of Internal Medicine” (2001) pp 1362-1363 2001 R1 Respondent’s Statement of Facts and Contentions 16 December 2002 R2 Respondent’s Amended Statement of Facts and Contentions 19 March 2003 R3 Report of Dr Hall 15 July 2002 R4 Departmental Minute by Dr Zwatrzka 1 November 2002 R5 Supplementary Report of Dr Hall 12 March 2003 R6 Report of Professor O’Rourke 20 March 2003 R7 Lifestyle Questionaires completed by Mr Cannon 18 April 1997 and 7 July 1999 Background
3. Mr Cannon served in the Australian Army from 23 June 1982 to 11 August 2000 (T9 p36). This period constitutes defence service in the Act. During this time Mr Cannon served in the infantry. At the time of his death he had reached the rank of Corporal.
4. In respect of the veteran’s defence service, subsection 120(4) of the Veterans’ Entitlement Act 1986 (the Act) applies and the standard of proof is the reasonable satisfaction of the Tribunal. Since his claim for pension was lodged after 1 June 1994, s.120B of the Act applies and the decision maker is to assess to its reasonable satisfaction whether the veteran meets the criteria in accordance with any Statement of Principles (SoP) issued by the Repatriation Medical Authority (RMA).
5. The veteran’s death occurred on 11 August 2000. The post-mortem performed on the veteran showed that the cause of death was hypertrophic cardiomyopathy (T5 p24). Prior to this date, the veteran had not been diagnosed with this disease. Further, there is no evidence that prior to this date the veteran suffered any of the symptoms of hypertrophic cardiomyopathy. It is noted, however, that an X-ray on 19 July 1996 revealed that the veteran was suffering from “mild cardiomegaly” (T3 p6D).
6. Mrs Cannon lodged a claim with the Repatriation Commission on 20 December 2000 stating that the veteran’s death from hypertrophic cardiomyopathy was defence caused (T5). The Respondent denied this claim on 3 January 2001 on the grounds that there was no reasonable connection with defence service (T6). Mrs Cannon appealed to the Veterans’ Review Board (VRB) on 29 January 2001. On 5 November 2001, the VRB affirmed the decision that the veteran’s death was not defence caused (T12). The Applicant appealed to this Tribunal on 14 January 2001.
Evidence: The Applicant
7. Although the Applicant did not give oral evidence at the hearing, the Tribunal had before it her statement dated 15 March 2002 (Exhibit A1). In this statement the Applicant described the veteran’s alcohol intake from 1987 until 2000.
8. The applicant met the veteran in 1987 while working at Glenquarie Tavern in Macquarie Fields. During this time, she observed that:
“He usually drank between four and six schooners each afternoon. He also came to the tavern each Saturday. He would be there when we opened at 10am and would still be there when I left at 6pm. I estimate that he drank between fifteen and twenty schooners during the eight hours I was serving.
9. The applicant and the veteran married in 1993. The applicant states during this time his level of alcohol intake continued to be high:
“I estimate that during the early 1990s his drinking pattern was to drink two cans of rum and coke whilst driving home from work each day, stop for a drink at a bar and drink two or three large bottles of beer each evening at home. During weekends he drank more heavily, up to twenty schooners a day.”
10. Further, the Applicant stated that the veteran drank very heavily at the time of his knee operations in the mid 1990s in order to cope with the considerable pain:
“He began to mix panadol forte with alcohol and to drink more to ease the pain and to help him sleep … He drank on his way home at the tavern. He bought two bottles of Bundaberg UP Rum each week, one on Thursday and one on Saturday, and also a carton of full strength Toohey’s beer every Saturday. He also bought beer on the way home during the week, and continued to drink rum and coke from cans in the car on his way home from work. When he was away from work he would start drinking a 7’o’clock in the morning.
11. The Tribunal also notes Mrs Cannon’s statement that her husband’s alcohol consumption began in the Army as part of the social life and gradually became heavier over time. All of the veteran’s army friends were heavy drinkers and she avoided barbeques with those friends due to the very heavy alcohol consumption which took place.
Medical Evidence
12. Medical reports were available from Dr G. Miller (Exhibit A2), Dr G. Hall (Exhibits R3 and R5), Professor O’Rourke (Exhibit R6) and Dr Nelly Zwatrzka (Exhibit R4). Dr Miller also gave oral testimony before the Tribunal.
(a) Diagnosis
13. The Doctors agreed that the cause of death was primary hypertrophic cardiomyopathy (“HCM”).
14. The evidence from Dr Miller was that this condition is usually inherited but not always and that it may be present but not clinically evident. Sudden death occurs in about 8% of cases. Dr Miller’s evidence was that alcohol is not a contributing factor to HCM, but that alcohol can cause dilated cardiomyopathy. The post mortem examination showed the cardiomyopathy was HCM (T5 p24-26) and Dr Miller agreed that there is a difference in the appearance of the heart muscle between HOCM and alcoholic (dilated) cardiomyopathy.
15. This was in keeping with the reports produced to the Tribunal by Dr Hall and Professor O’Rourke who both agreed with the diagnosis of HCM. The Tribunal, therefore, accepts that the cause of death was cardiomyopathy.
16. Dr Hall stated that the veteran had suffered from primary hypertrophic cardiomyopathy as laid down in the SoP. He also stated, however, that alcohol cardiomyopathy is a secondary cardiomyopathy (Exhibit R3 p2). It is also a dilated cardiomyopathy and quite different pathologically as in the applicant’s case. There was, however, no evidence in either the post mortem or any other examination of any alcohol condition related to the onset of the disease.
17. Professor O’Rourke noted the autopsy at Westmead Hospital showed hypertrophic cardiomyopathy. In answer to the question by the Respondent:
“In your opinion, could alcohol intake, as defined in paragraph 5(y) of the SoP cause a condition of dilated cardiomyopathy alone or could such alcohol intake also cause or worsen an hypertrophic cardiomyopathy?”
Professor O’Rourke stated:
“Alcohol is associated with causation of dilated cardiomyopathy and not of hypertrophic cardiomyopathy. Alcohol does not worsen hypertrophic cardiomyopathy.” (Exhibit R4)
(b) Relevance of cardiomegaly
i. Dr Miller
18. Dr Miller, in evidence, stated that he believed the veteran had cardiomegaly in 1996. On the balance of probabilities, he stated that the first manifestation of the HCM appeared on the chest X-ray taken 19 July 1996 (T3 p6D). This X-ray stated:
“There is mild cardiomegaly. Pulmonary vascularity is within normal limits and the lungs appear clear”.
Dr Miller noted that the X-ray request was for an AP and LAT X-ray of the chest. Dr Miller said a PA X-ray of the chest was likely to be more diagnostic of cardiac enlargement. He said that with this chest X-ray finding he would have performed an ECG and, pending results, referred the patient to a cardiologist for an echocardiogram which would be diagnostic.
19. Dr Miller also said that it was possible that poor inspiration by the patient could be responsible for the appearance of mild cardiomegaly on the chest X-ray. Dr Miller said the absence of any symptoms was quite in keeping with HCM. Any treatment would be for symptoms, if present, and to decrease the risk of cardiac arrythymias known to be associated with HCM.
20. Under cross-examination, Dr Miller said that the consumption of alcohol would not have materially changed the clinical cause of the HCM and that HCM would have run its own course, irrespective. He disagreed with Professor O’Rourke’s report where Professor O’Rourke concluded that the X-ray finding in 1996 was not of clinical significance. When questioned about the absence of cardiac signs when medically examined, in particular at the time of dental surgery requiring anaethesia, Dr Miller said the absence of cardiac signs does not change the diagnosis.
21. Dr Miller also discussed possible treatment options and referred to Harrison’s Principles of Internal Medicine (Exhibit A6).
ii. Dr Hall
22. Dr Hall reported (Exhibit R3) that the condition becomes worse in the affected person over the elapse of time. The time when worsening occurs is not always evident clinically. Sudden death is the commonest clinical event.
23. In his supplementary report (Exhibit R5) Dr Hall referred to questions asked by the Respondent and replied as follows:
“The Radiologists report of mild cardiomegaly in July 1996 could possibly have been the first manifestation of hypertrophic cardiomyopathy.
However radiologists reports on the size of the heart are not always correct and they need to be substantiated by other tests as in this case.”
24. He then noted that he was unable to say on the balance of probabilities that the chest X-ray manifested the clinical onset of HCM.
iii. Professor O’Rourke
25. Professor O’Rourke reported that the AP projection when taking a chest X-ray accentuates the heart size (Exhibit R6). He stated that
“With the AP projection the pressure of apparent mild cardiomegaly is of no significance. Even with a PA film, as Dr Hall has opined, this is a very nonspecific finding and is usually of no relevance”.
26. He did not believe the finding of mild cardiomegaly on an AP chest X-ray was of real clinical significance.
iv. Dr Nelly Zwatrzka
27. Dr Nelly Zwatrzka, in her Departmental Minute 1 November 2002 (Exhibit R4), considered that the mild cardiomegaly on the chest X-ray could have been indicative of a poor inspirational effort and that the veteran had the chest ausculated and no cardiac signs were present. She was satisfied that the condition was not clinically evident and that since it could not have been diagnosed earlier, no management was possible.
Submissions by the Applicant
28. Mr Sherlock, for the applicant, submitted that the relevant SoP was No. 20 of 1998 concerning cardiomyopathy and that the veteran satisfied the criteria in this SoP. In particular, Mr Sherlock referred to factor 5(y) stating that the veteran’s death from cardiomyopathy was associated with his defence service because Mr Cannon had consumed at least 300kg of alcohol (contained within alcoholic drinks) within any 10 year period before the clinical worsening of his cardiomyopathy.
29. Mr Sherlock submitted that the veteran’s drinking habit was associated with his defence service for two reasons. Firstly, he stated that drinking was part of the socialisation process for members of the army. In support of this statement he relied upon the Applicant’s statement (Exhibit A1). Secondly, he stated that the veteran had begun drinking heavily in order to cope with the pain and difficulty he suffered due to his left knee injury which was accepted as being defence caused in 1996 (Exhibit A3). In support of this submission he relied upon both the Applicant’s statement (Exhibit A1) and the Lifestyle Questionnaires completed by Mr Cannon in 1997 and 1999. In the 1997 questionnaire Mr Cannon noted that he drank “excessive amounts of alcohol to try and numb the pain”.. Further, in the 1999 questionnaire Mr Cannon stated “I get drunk to try and help me sleep and dull the pain which results with no sex”.
30. On the issue of clinical onset, Mr Sherlock submitted that the X-ray taken on 19 July 1996 revealed the existence of cardiomyopathy. For this submission, Mr Sherlock relied upon the evidence provided at the hearing by Dr Miller who stated that the finding of cardiomegaly in 1996, in addition with the post-mortem findings of 2000, indicated that cardiomyopathy was most likely present in 1996 or earlier. As a result, it was the submission by the applicant that death from cardiomyopathy in 2000 was the result of a clinical worsening of the disease. Finally, Mr Sherlock submitted that the high level of alcohol consumption by Mr Cannon, caused by his defence service, contributed to this disease and his death.
31. Further, in relation to clause 6, Mr Sherlock submitted that it did not apply in this case because there was no question of whether the veteran’s cardiomyopathy had arisen from his defence service.
Submissions by the Respondent
32. The Respondent did not dispute that SoP No. 20 of 1998 was the relevant SoP for the purposes of the Applicant’s claim. Despite this, the Respondent did not agree that the terms of this SoP were satisfied.
33. In relation to the veteran’s level of alcohol intake, the Respondent did not dispute the likelihood that the veteran had consumed the 300kg of alcohol (contained within alcoholic drinks) required by clause 5(y) of the SoP. What the Respondent did dispute was that this level of consumption was linked with the veteran’s defence service. It was the Respondent’s submission that at most there was a tenuous link between the veteran’s service and his alcohol consumption. In response to the Applicant’s arguments, the following was submitted. On the issue of socialisation, Ms Jagot submitted that service was simply a background in which the veteran’s drinking took place and that it was the veteran’s choice to participate in social activities where heavy drinking took place. She referred the Tribunal to Roncevich v Repatriation Commission [2002] FCA 1458 in support. On the issue of the knee injury, Ms Jagot stated that the causal relationship was not satisfied because although Mr Cannon had a well established drinking habit by 1997 there was no evidence of the aetiology of the drinking habit. Further, she suggested that Mr Cannon’s high levels of alcohol intake had begun well before his knee problems began.
34. In support of these submissions, Ms Jagot referred to s196B (14) of the Act which requires a connection between the injury, disease or death of the person, and the particular service rendered by the veteran. Her submission was that subparagraphs (b) and (d) of s 196B(14) required a causal connection, as explained (by analogy) in Repatriation Commission v Law (1980) 31 ALR 140. Repatriation Commission v Law (at 151) refers to a distinction between a cause and something which should be regarded as being part of the circumstances in which the cause develops. Ms Jagot also referred to Roncevich v Repatriation Commission [2002] FCA 1458 in rejecting the contention that s120B(3) of the Act was satisfied by means of a connection between Mr Cannon’s drinking habit and left knee injury and submitted that this was insufficient to satisfy s70(1) by reason of s70(5)(a).
35. The Respondent also submitted that the veteran’s death from hypertrophic cardiomyopathy did not constitute a clinical worsening of the disease in his circumstances. Firstly, Ms Jagot emphasised the fact that Mr Cannon was asymptomatic. There were no clinical observations of cardiomyopathy prior to his death despite the veteran participating in extensive surgery (over approximately 12 occasions). On the significance of the X-ray in 1996, Ms Jagot emphasised the fact that this was not a diagnosis of cardiomyopathy nor was it indicative that the veteran was necessarily suffering from cardiomyopathy at the time. It is noted that the Respondent does not dispute that clinical onset did occur, however, it is their submission that this took place at death. Dr Zwatrzka was relied upon for this proposition (Exhibit R4).
36. Finally, in the event that the Tribunal found that factor 5(y) was satisfied, the Respondent submitted that clause 6 still negated the Applicant’s claim on the basis that there was not a material contribution to, or aggravation of, the veteran’s cardiomyopathy during or before his service. Ms Jagot stated that the former is not satisfied because there is no causal relationship between the veteran’s cardiomyopathy and his defence service as defence service was not an operative cause of the disease. The Respondent relied upon the evidence of Dr Miller, Dr Hall and Professor O’Rourke for this claim. The Tribunal was referred to Roncevich in this respect and to section 70(5) of the Act. Further, Ms Jagot submitted that there was no aggravation because even if a disease becomes worse during service there must still be a causal connection.
Findings and Consideration
37. The Tribunal accepts that Mr Cannon died from cardiomyopathy. The Tribunal also accepts, as agreed by the parties, that death was due to hypertrophic cardiomyopathy. The issue before the Tribunal, therefore, is whether the hypertrophic cardiomyopathy, which was the relevant cause of Mr Cannon’s death, was due to his defence service.
38. Section 120B requires the decision maker to assess to its reasonable satisfaction whether the circumstances of death meet the requirements of any SoP issued by the Repatriation Medical Authority.
39. There is no dispute that the relevant SoP is No 20 of 1998 concerning cardiomyopathy. The following aspects are relevant:
Basis for determining the factors
3. On the sound medical-scientific evidence available, the Repatriation Medical Authority is of the view that it is more probable than not that cardiomyopathy and death from cardiomyopathy can be related to relevant service rendered by veterans or members of the Forces.
Factors that must be related to service
4. Subject to clause 6, at least one of the factors set out in clause 5 must be related to any relevant service rendered by the person.
Factors
5. The factors that must exist before it can be said that, on the balance of probabilities, cardiomyopathy or death from cardiomyopathy is connected with the relevant circumstances of a person’s relevant service are:
…
(y) for men, drinking at least 300kg of alcohol (contained within alcoholic drinks) within any 10 year period before the clinical worsening of primary or secondary cardiomyopathy;
…
Factors that apply only to material contribution or aggravation
6. Paragraphs 5(y) to 5(zv) apply only to material contribution to, or aggravation of, cardiomyopathy where the person’s cardiomyopathy was suffered or contracted before or during (but not arising out of) the person’s relevant service; paragraphs 8(1)(e), 9(1)(e) or 70(5)(d) of the Act refers.
40. The Tribunal must consider whether the factors prescribed in the SoP exist before it can be said, on the balance of probabilities, that death from cardiomyopathy was connected with the circumstances of the person’s relevant service.
Factor 5(y)
41. As noted above, Mr Sherlock considered factor 5(y) to be satisfied. Ms Jagot submitted that paragraph 5(y) is subject to paragraph 6 of the SoP which provided that the paragraph applied only to material contribution to, or aggravation of, cardiomyopathy where the person’s cardiomyopathy was suffered or contracted before or during the relevant service. She submitted that regardless of whether factor 5(y) is satisfied (and this was not conceded), factor 6 is not.
42. In order to satisfy factor 5(y), the Tribunal must first be satisfied that Mr Cannon drank at least 300kg of alcohol (contained within alcoholic beverages) within any ten year period before the clinical worsening of primary or secondary cardiomyopathy, and that the alcohol consumption was related to any relevant service. The parties agreed that Mr Cannon satisfied the requirement of drinking at least 300kg of alcohol (contained with alcoholic beverages). Ms Jagot did not concede that the required period was satisfied.
Factor 6
43. The Tribunal is mindful that in making the requisite connection with service section 70(5) must be satisfied. It was Mr Sherlock’s submission that the deceased’s drinking habits were connected with defence service, firstly as part of the socialisation process and secondly to enable him to cope with the pain from his service-related left knee injury. Ms Jagot disputed this and in doing so, referred to ss 196B(14) and 70(5) of the Act. She maintained that service simply provided a background to Mr Cannon’s drinking habits and that simply choosing to drink alcohol in such quantities was not sufficient to connect it with service.
44. In regards to the veteran’s knee injury, Ms Jagot submitted that the injury to Mr Cannon’s left knee resulting from a motor vehicle accident was not connected with his defence service. The motor vehicle accident was prior to Mr Cannon’s first injury to the knee in 1984 but his knee condition was sufficient to restrict his duties as follows:
Not fit running, (physical training) at own pace, limited drill, no prolonged marching, BFT run exempt.
45. The Tribunal notes, however, Mr Sherlock’s advice that the respondent has accepted disabilities regarding arthritis in Mr Cannon’s left knee and bilateral sensorineural hearing loss with tinnitus. These claims resulted in payment of the evidence was that it was during the mid 1990’s, at the time Mr Cannon had two operations to his knee, that he began to mix panadol forte with alcohol and to drink more to ease the pain. Mr Sherlock, however, argued that the pain went back a lot longer than the mid 1990's.
46. If it finds that the veterans alcohol consumption was connected with the injury to his left knee accepted as being service related, it may be open to the Tribunal to be satisfied that the consumption of alcohol is related to service.
Clinical worsening
47. On the issue of clinical worsening, Ms Jagot referred the Tribunal to Lees v Repatriation Commission [2002] FCAFC 398 where the Full Court confirmed (at [13]-[15]) that “clinical onset” occurs:
either when a person becomes aware of some feature or symptom which enables a doctor to say the disease was present at that time, or when a finding is made on investigation which is indicative to a doctor of the disease being present.
48. Dr Zwatrzka focused on the concept of “clinical onset” preceding “clinical worsening” (Exhibit R4). In other words, it was her opinion that it was not possible to have a clinical worsening unless there was a clinical onset.
49. The medical evidence was that the cardiomyopathy was present prior to death. In particular, the fact that at death the heart weighed 620g with a massively enlarged concentric left ventricular hypertrophy indicated that the disease was long standing. It is noted that at page 1362 of Harrison’s Principles of Internal Medicine (Exhibit A6) that “unfortunately, the first clinical manifestation of the disease may be sudden death”.. The Tribunal is, therefore, faced with the situation where the disease was present and there were no features of symptoms indicating to indicating to a doctor that the disease was present.
50. There was a debate before the Tribunal on whether a chest X-ray taken in 1996 was or was not an indication of cardiomegaly. Harrison’s Principles of Internal Medicine (Exhibit A6) notes that chest roentgenography may be normal, although a mild to moderate increase in the cardiac silhouette is common with HCM.
51. As indicated by Dr Miller the main way to diagnose HCM is through use of an echocardiogram. This was not done. The Tribunal must, therefore, decide to its reasonable satisfaction, whether the chest X-ray report from 1996 indicating mild cardiomegaly was an investigation which was indicative to a doctor that HCM was present.
52. If it finds that the heart was enlarged and indicative of HCM, as the clinical onset, the Tribunal can be satisfied that the subsequent death of the applicant amounts to clinical worsening of the disease.
Hypertrophic Cardiomyopathy
53. The Tribunal has thus far given consideration to the first portion of this factor, namely the drinking of at least 300kg of alcohol within a ten year period before the clinical worsening of HCM. The Tribunal has also given consideration to the submissions on whether the veteran’s alcohol consumption was connected with his service. Before making any conclusion on either, the Tribunal must first address the matter of primary and secondary cardiomyopathy.
54. The definition of cardiomyopathy in the relevant SoP includes both primary and secondary cardiomyopathy. Primary cardiomyopathy arises in circumstances where there is no obvious or known cause, and it is not part of a disease affecting other organs. Secondary cardiomyopathy arises in circumstances where it is the result of a known agent, disease process or condition. Both of these types may be further broken down into the categories of dilated, restrictive or hypertrophic.
55. The applicant argued, in effect, that Mr Cannon suffered from secondary hypertrophic cardiomyopathy and that the cardiomyopathy was secondary to alcohol as required by factor 5(y). The respondent conceded that there was no doubt Mr Cannon’s cardiomyopathy was suffered or contracted on service. Ms Jagot argued, however, that paragraph 6 of the SoP specified a further qualification, namely that the Tribunal must be reasonably satisfied, on the balance of probabilities, that the contents in factor 5(y) involved a material contribution to, or aggravation of, his cardiomyopathy.
56. All the medical evidence before the Tribunal was that Mr Cannon’s cardiomyopathy was hypertrophic. The medical evidence from all of the doctors confirmed this. Dr Miller ascribed it as likely to be from a genetic origin, not related to alcohol. In evidence, he advised the Tribunal that there is a difference in the appearance of the heart muscle between HCM and alcoholic (dilated) cardiomyopathy. Dr Hall and Professor O’Rourke described it as having a genetic origin and stated that alcohol did not cause or aggravate the HCM. Further, both reported that alcoholic cardiomyopathy was a dilated cardiomyopathy.
57. In consideration of all the evidence, therefore, the Tribunal finds that it is quite apparent from the evidence that Mr Cannon’s death was due to primary hypertrophic cardiomyopathy and not secondary dilated cardiomyopathy.
58. Further, the Tribunal agrees with the submission by the respondent that factor 5(y) must be considered in conjunction with factor 6. Therefore, for the applicant to succeed it must be shown that there is a material contribution to, or aggravation of, Mr Cannon’s cardiomyopathy by his defence service. There was, however, no medical evidence that alcohol contributed to, or aggravated, Mr Cannon’s HCM despite the fact that his HCM was contracted before or during (but not arising from) his defence service. In contrast, the conclusion of the medical evidence was that Mr Cannon’s HCM was a genetic condition and that alcohol was neither a contributing or aggravating factor. Therefore, the Applicant’s submission that there was a causal connection between alcohol and secondary cardiomyopathy, in terms of clinical onset, must fail because alcohol was not a contributing or aggravating factor.
59. Hence, having concluded that Mr Cannon’s death was due to primary hypertrophic cardiomyopathy, the Tribunal is not reasonably satisfied, in accordance with s120(4) that Mr Cannon’s death arose out of, or was attributable to, his defence service in accordance with s70(5)(a). Primary hypertrophic cardiomyopathy is of a genetic origin and was not caused or aggravated by Mr Cannon’s defence service.
60. The Tribunal in fact did not come to any conclusion regarding whether the applicant drank at least 300kg of alcohol within any ten year period before the clinical worsening of primary or secondary cardiomyopathy. The conclusion that alcohol was neither a contributing nor aggravating factor to Mr Cannon’s death from primary HCM made both the quantity and the period irrelevant.
61. Similarly, if alcohol was not responsible the question of clinical worsening was irrelevant to the conclusion, as was the question of whether any secondary cardiomyopathy was contributed to, or aggravated by, an agent (alcohol) connected with Mr Cannon’s defence service. The Tribunal was also satisfied that Mr Cannon’s death was not contributed to, or aggravated by, another other factor, other than primary HCM.
Decision
62. The decision under review is affirmed.
I certify that the 62 preceding paragraphs are a true copy of the reasons for the decision herein of Dr M.E.C. Thorpe
Signed: .......................................................................................
AssociateDate of Hearing 8 April 2002
Date of Decision April 2003
Advocate for the Applicant Mr R. SherlockCounsel for the Respondent Ms J. Jagot
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