Clair and Repatriation Commission
[2002] AATA 158
•14 February 2002
DECISION AND REASONS FOR DECISION [2002] AATA 158
ADMINISTRATIVE APPEALS TRIBUNAL )
) No N2000/213
VETERANS' APPEALS DIVISION )
Re JOYCE FRANCES CLAIR
Applicant
And REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Senior Member M D Allen; Dr J Campbell, Member
Date14 February 2002
PlaceSydney
ADMINISTRATIVE APPEALS TRIBUNAL ) No N2000/213
)
VETERANS' APPEALS DIVISION )Re: JOYCE FRANCES CLAIR
ApplicantAnd: REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Senior Member M D Allen
Dr J Campbell, Member
Date 14 February 2002
Place Sydney
DecisionFOR the reasons given orally at the conclusion of the hearing in this matter, the decision under review is AFFIRMED.
(Sgd) M.D. ALLEN
.............................
Senior Member
CATCHWORDS
Veterans' Entitlements: Deceased Veteran dies of cancer of the kidney. Primary site of cancer not determined. Whether reasonable hypothesis includes fatal condition or whether cause of death is to be determined to Tribunal's reasonable satisfaction. Tribunal satisfied on balance of probabilities as to specific diagnosis of cancer.
Veterans' Entitlements Act 1986 – s8; s120; s120A
Repatriation Commission v Law 31 ALR 140
Repatriation Commission v Cooke 90 FCR 307
Preston v Repatriation Commission 45 FCR 214
Benjamin v Repatriation Commission [2001] FCA 1879
Bull v Repatriation Commission [2001] FCA 1832
REASONS FOR DECISION
Senior Member M D Allen;
Dr J Campbell, Member
At the conclusion of the hearing of the above matter the terms of the decision intended to be made and the reasons therefor were stated orally. After service upon the Applicant of a copy of the decision that was in fact made, the Applicant pursuant to sub-section 43(2A) of the Administrative Appeals Tribunal Act 1975 requested the Tribunal to furnish to the Applicant a statement in writing of the reasons of the Tribunal for its decision.
The oral reasons for decision have been transcribed by Auscript, the Commonwealth Reporting Service. Whereas those oral reasons may reflect the inelegance of an extempore decision, they are in fact the reasons for the said decision.
The said transcript is annexed hereunto and furnished to the Respondent and to the Applicant as it is the reasons for the Tribunal's decision.
I certify that this and the preceding page are a true copy of the decision and reasons for decision herein of:
Senior Member M D Allen
Signed: (Kwai-Ling Wong)
..................................................................................……………………………….Associate
Date of Hearing 14 February 2002
Date of Decision 14 February 2002Counsel for Applicant Mr M Vincent
Representative for Respondent Ms T McConnell, Department of Veterans'
Affairs
DRAFT DECISION
ADMINISTRATIVE APPEALS TRIBUNAL
Matter No N2000/213
By MR M.D. ALLEN, Senior Member
and Dr J. CAMPBELL, Member
CLAIR and REPATRIATION COMMISSION
SYDNEY THURSDAY 14 FEBRUARY 2002MR ALLEN: By application lodged 10 February 2000, the applicant sought review of a decision by the respondent Repatriation Commission on 16 February 1998 and affirmed by Veteran's Review Board on 18 November 1999 to the effect of the death of Thomas Clair, deceased, was not attributable to his war service. The deceased veteran died on 25 March 1997 and the certified causes of death were carcinomatosis, disseminated renal cell tumour, renal failure and congestive cardiac failure.
At the outset the tribunal must have regard to the provisions of the Veteran's Entitlements Act 1986 under which the applicant claims. Pursuant to section 13 of that Act where death of a veteran is war cause the commonwealth is subject to the Act liable to pay in case of the death of a veteran pension by way of compensation to the dependants of the veteran. Section 8 of the Act then goes to provides under the heading "War Caused Death":
Subject to this section for the purposes of this Act the death of a veteran shall be taken to have been war caused if (b) the death of the veteran arose out of or was attributable to any eligible war service rendered by the veteran.
The phrase "attributable to" was discussed by the Full Court of the Federal Court in Repatriation Commission v Law 31 ALR 140 at page 151 where after a review cases including Marshall v Minister for Pensions (1947) 2 ALR 706 and Walsh v Rover District Council (1978) ALR 510, the court says:
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.
As the deceased had operational services as that term is defined in section 6A of the Veteran's Entitlements Act the standard of proof in this matter is that provided by subsections 1 and 3 of section 120 of the Veteran's Entitlements Act. Subsection 1 provides that:
Where a claim for pension in respect of the death of a veteran relates to operational service.
The commission and hence this tribunal upon review shall determine that the death was war caused unless satisfied beyond reasonable doubt that there is no sufficient ground for making that determination. Subsection 3 of section 120 then provides that:
In respect of the death of a person related to service rendered by the person the tribunal shall be satisfied beyond reasonable doubt that there is no sufficient ground for determining that the death was war caused if after the consideration of the whole of the material before it the tribunal is of the opinion that the said material does not raise a reasonable hypothesis connecting the death with the circumstances of the particular service rendered by the person.
Section 120A of the Veterans's Entitlements Act then provides that:
An hypothesis connecting the death of a person with the circumstances of any particular service is reasonable only if there is in force a so-called statement of principles that upholds the hypothesis.
For completeness we would mention that section 120(6) provides that there is no onus of proof upon either party to this review.
The way in which the Tribunal should approach its task in matters such as the present was set forth in the now well known case of Repatriation Commission v Delidio 83 FCR 82 91. There the court said, commencing at (1) subsection 3:
The first step is to identify the hypothesis said to establish the causal link between the veteran's eligible war service and the death. Identifying the hypothesis is a question of fact.
(2) The second step under subsection 3 is to determine whether the hypothesis is reasonable. The material will raise a reasonable hypothesis if it points to some fact or facts which support the hypothesis and if the hypothesis can be regarded as reasonable, assuming the raised facts to be true. In determining whether the hypothesis is reasonable the decision maker must identify the facts said to point to it.
(3) Whether a hypothesis is reasonable is a question of fact. The decision maker must be satisfied that the hypothesis is reasonable after considering the whole of the material. Proof of facts and onus of proof are not in issue at this point.
(4) If the decision maker concludes that the material raises a reasonable hypothesis the third step is reached. Subsection (1) must be applied and the claim will succeed unless one or more of the facts necessary to support the hypothesis are disproved beyond reasonable doubt or the truth of another fact in the material which is inconsistent with the hypothesis is proved beyond reasonable doubt, thus disproving beyond reasonable doubt the hypothesis.
As was said by the Full Court to the Federal Court in Maclean v Repatriation Commission 2001 FCA 1505 paragraph 26:
It will be seen that in Delidio the Full Court effectively broke into three steps, the two steps postulated by the High Court in Burns, by distinguishing between formulation of the relevant hypothesis and consideration of its reasonableness. However the court did not suggest that there was any test to be applied to the identified hypothesis other than that of reasonableness.
They continued:
The Tribunal was obliged only to identify the hypothesis and then to consider its reasonableness.
In this matter the applicant argued that the material before the Tribunal raised an hypothesis connecting the deceased's war service with his death. That hypothesis was that an intake of phenacetin as contained analgesic powders consumed by him to alleviate pain from his war caused disease of osteoarthritis caused or contributed to a disseminated carcinoma of the kidney which was in fact the correct diagnosis of the deceased's fatal illness. At the outset it can be said that the death certificate in this matter does not advance the applicant's case. Death certificates are only prima facie evidence and in our experience have on occasions been found to be incomplete or inaccurate.
The basis for the applicant's hypothesis is found first of all in a letter from the deceased's treating general practitioner, Dr Redmane, date 27 September 1999, contained at page 76, for the documents prepared for the Tribunal pursuant to section 37 of the Administrative Appeals Tribunal Act 1975. That letter reads inter alia:
I would be confident to report that I would say that Mr Clair had been in the habit of taking Bex powders, Vincents powders and aspirin re his painful arthritic back problem. This ingestion of the above would have been of a significant intake level and over a long period of time. I am also fully aware that he was also prescribed Indocids on a long standing basis as well.
As can be seen from its very wording the letter of Dr Redmane is far from certain. He uses the words - I would be confident and I would say - he gives no direct evidence of the deceased in fact taking Bex or Vincents powders. Instrument No. 155 of 1996 is a statement of principle entitled - Malignant Neoplasm of the Renal Pelvis and Urethra - Factor 5A(2) in that document, the factors which must exist before it can be said a reasonable hypothesis has been raised connecting Malignant Neoplasm of the Renal Pelvis and Urethra and death, reads:
A total consumption of 50 grams of phenacetin and phenacetin containing preparations at least 10 years before the clinical onset of malignant neoplasm of the renal pelvis and urethra.
Phenacetin is defined in the said instrument in the following terms:
Phenacetin means an aniline derivative that has analgesics and anti-pyretic properties and is also known as a acetuphenadetin
and other chemicals which I won't pause to recite. And continues:
It was previously found as a constituent of many over the counter headache remedies such as APC, Bromoseltzar and Imperent compound. (Usually 90-150 milligrams per tablet).
There then follows a note which reads:
This note does not form part of the legal wording of the instrument. Phenacetin was removed from products in Australia by 1980.
It seems to us, however, that although that note does not form part of the instrument in question, it is a matter of which we can take notice sitting here. What we also note is that aspirin is not included in the list of products that contain phenacetin.
Dr Redmane was, as stated above, totally indecisive regarding the deceased's intake of compounds containing phenacetin. The applicant was not called in these proceedings. However, we are prepared to assume that in the nature of these cases, if called, the widow would have given evidence that the deceased was a heavy user of Bex powders or other similar over-the-counter analgesic preparations containing phenacetin.
Evidence mitigating against a prolonged use of phenacetin is from the clinical records of Dr Redmane, which show that in 1993, an examination of the deceased's kidneys was normal. The hypothesis that the decease died from a phenacetin induced cancer was postulated by Dr Carney, Nephrologist, in a report to the applicant's solicitors, dated 6 November 2000, exhibit A2. In that report Dr Carney states inter alia:
That Mr Clare died from decimated (metastatic) carcinoma.
He adds as a note, which is no doubt correct:
Without a biopsy or tissue diagnosis it is speculation as to whether the tumour in the kidney was a primary renal cell cancer, metastatic cancer of unknown origin or another kidney tumour.
His final diagnosis concludes:
It is more probable than not, Mr Clare suffered transitional cell carcinoma of the kidney arising in the renal pelvis causing recurrent acroscopic haemotouria and invading kidney substance with metogenous metastatic spread to the liver. In the absence of a tissue diagnosis it is reasonable to presume that Mr Clare died from transitional cell carcinoma of the kidney not renal cell carcinoma.
From the material before the Tribunal we note that a diagnosis of renal cell tumour of the right kidney was made after specific investigation, namely ultra sound and CT scan, and involvement of medical consultants in the areas of radiology, general and urologic surgery and oncology. The Tribunal notes that the diagnosis was presumptive in that histological examination of the tumour was never performed either prior to death - general well being of the veteran being considered - and after death.
We further note the opinion of Dr Carney, Consultant Nephrologist, stated above. Dr Carney's opinion is based on a presumption that the late veteran did take phenacetin based compounds for his generalised osteoarthritis over a period of 35 years and that, in his opinion, there was evidence in the veteran's clinical history of features consistent with analgesic nephrotomy and analgesic syndrome, see exhibit A2.
We also note the opinion of Professor Zwei in a report to the respondent dated 31 March 2001, being exhibit R2. Professor Zwei, a consultant physician, asserts that there is no evidence of large quantities of phenacetin ingestion, no histological evidence of transitional cell carcinoma as a result of biopsy or urinary microscopy and that an IVI on 11 June 1986 at Tamworth stated that there was no lesions in either collecting system.
Professor Zwei observed that the renal ultra sound of 9 January 1997 is suspicious of a renal cell carcinoma and that the CT abdomen on 20 January 1997 is most likely a carcinoma both investigations supporting a diagnosis of renal cell carcinoma. In addressing the issue of the nature of the renal cancer the tribunal concludes that on the balance of probabilities the cancer was a renal cell tumour. In so finding, the tribunal has carefully analysed the material before the tribunal which it has mentioned in particular in this decision.
Further the tribunal observes that with the number of specialists involved in the clinical case of the late veteran it would have been unusual that if there was a significant history of phenacetin ingestion mention was not made of such in the notes or material before the tribunal. Unfortunately because of circumstances beyond the control of the parties Dr Carney was not called.
In order for the applicant to succeed the tribunal must be reasonably satisfied that a reasonable hypothesis connecting the death of the deceased with his particular service exists. For the applicant it was submitted that in a death case the reasonable hypothesis includes the actual cause of death. In other words the tribunal is not required in ascertaining whether the material before it raises a reasonable hypothesis connecting the death of the deceased with his service to come to any conclusion as to the actual cause of death.
Support for this submission was said to be found in the decision of the Full Court of the Federal Court in Repatriation Commission v Cooke 90 FCR 307 at 312 commencing at letter C. We reject this submission. The said submission is akin to that accepted by Beasley J in Preston v Repatriation Commission 45 FCR 214 and expressly overruled in Cooke Supra. We are strengthened in that conclusion by the more recent decisions of the Full Court of the Federal Court in Benjamin v Repatriation Commission (2001) FCA 1879 where at paragraph 55 the court said:
If the tribunal is happy that the symptoms constitute an injury or disease the second question will be whether there is a SOP in force in respect of that disease. The diagnosis of that disease and the determination whether or not there is an SOP in force in respect of that kind of disease falls for determination according to standard of proof laid down in subsection 4 of section 120. The characterisation of the disease or injury or death in an appropriate case for the purposes of determining whether or not a SOP is in force in respect of that kind of disease or injury or death is separate from the question of whether a claim relates to the operational service rendered by a veteran within subsection 1 of section 120. The standard of proof laid down by subsection 1 of section 120 has no application to the former question.
In Bull v Repatriation Commission (2001) FCA 1832 at paragraph 17, the court examined the case of East v Repatriation Commission 16 FCR 517. After that examination the Court said with emphasis added "we agree with this analysis. A reasonable hypothesis requires more than a possibility not fanciful or unreal consistent with the know facts. It is an hypothesis pointed to by the facts even though not proved upon the balance of probabilities". At paragraph 18 the court continued:
It is important to understand the following about East: The court said that an hypothesis is not reasonable if it is obviously fanciful or impossible or incredible or not tenable or too remote or too tenuous. However the Full Court did not say that if a hypothesis was not obviously fanciful or not impossible or not incredible or tenable or not too remote or not too tenuous it was therefore necessarily reasonable. The material must point to the connecting hypothesis see the emphasised paragraph in 17 above.
Then at paragraph 22 the court continued:
The formation of opinion called for by subsection 3 of section 120 involves an assessment of the factual material before it. It involves reaching an opinion about a factual matter. It is in that sense a question of fact, Bey supra at 373 and Repatriation Commission v Owens 70 ALJR 904. Here the tribunal on the material before it formed the opinion that a relevant reasonable hypothesis was not raised from the material, the primary judge said that that was a question of fact and no error of law and so no question of law 44 of the AAT Act was presented.
It is difficult to see how an hypothesis connecting a death with war service can be raised unless the cause of death is determined. In this matter we find that the opinion of Dr Carney is no more than speculation. We are satisfied that Professor Zwei has not only refuted Dr Carney's opinion but that on clinical grounds and for the reasons advanced by Professor Zwei we are reasonably satisfied that the cause of death of the deceased was a renal carcinoma. That is to say the primary site was in the kidney's.
Our understanding is that both parties agree that the applicant's case could not meet the factors required to satisfy the SOP for adreno-carcinoma of the kidney being instrument number 107 of 1996. As a result no reasonable hypothesis can be said to exist connecting the death of the deceased with his service. The decision under revue is therefore affirmed.
RECORDED : NOT TRANSCRIBED
0
2
0