Collins and Repatriation Commission

[2008] AATA 351

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2008] AATA 351

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No N2006/333

VETERANS' APPEALS DIVISION		)
Re		JUNE COLLINS

Applicant

And REPATRIATION COMMISSION

Respondent

DECISION

Tribunal Senior Member Bernard J McCabe and Mr S E Frost, Member

Date2 May 2008

PlaceBrisbane (heard in Sydney)

Decision The Tribunal affirms the decision under review.

..............................................

Senior Member

CATCHWORDS

VETERANS' ENTITLEMENTS – war widow's pension – "kind of death" – whether death war – caused – decision affirmed

Veterans' Entitlements Act 1986, ss 6A, 7, 13(1), 120(1), 120(3), 120A(1), 120A(3), 120A(4)

Byrnes v Repatriation Commission [1993] HCA 51; (1993) 177 CLR 564

Repatriation Commission v Hancock [2003] FCA 711; (2003) 37 AAR 383

Repatriation Commission v Codd [2007] FCA 877; (2007) 95 ALD 619

Repatriation Commission v Deledio [1998] FCA 391; (1998) 83 FCR 82

REASONS FOR DECISION

2 May 2008 Senior Member Bernard J McCabe and Mr S E Frost, Member                  

Introduction

1.      Mrs June Collins, the applicant, is the widow of Mr Donald Collins, the veteran.  The veteran died on 30 March 2005 at the age of 83.  Mrs Collins claimed a war widow's pension on the basis that her husband's death was war-caused.  The Repatriation Commission (“the Commission”) refused the claim and the Veterans’ Review Board affirmed that refusal.  Mrs Collins has applied to the Tribunal for a review of that refusal decision. 

2.      There are only two issues in dispute before the Tribunal.  The first is the "kind of death" suffered by the veteran.  The second is whether there is a connection between that kind of death and his war service.

3.      For the reasons that follow, we affirm the decision under review.  This means that Mrs Collins’ appeal is unsuccessful.

The veteran’s service history

4. The veteran served in the Royal Australian Air Force from 30 January 1943 until 18 January 1946 and this constitutes eligible war service as defined in s 7 of the Veterans’ Entitlements Act 1986 ("the Act"). Because he served overseas during World War II, the whole of his service constitutes operational service within s 6A of the Act.

Entitlement to a war widow’s pension

5. If the veteran’s death was war-caused, then the Commonwealth is liable to pay a pension by way of compensation to the applicant: s 13(1) of the Act. We must determine whether the death was war-caused having regard to ss 120 and 120A of the Act.

6. It is clear from these provisions, read together, that we must first determine the "kind of death" of the veteran before we consider the reasonableness of any hypothesis connecting the death with the circumstances of his war service. This is because the way in which we must test the reasonableness of any hypothesis depends on whether there is in force any Statement of Principles (“SoP”), determined by the Repatriation Medical Authority, in relation to the “kind of death” met by the veteran. If there is one, or more than one, SoP, then we must examine the hypothesis by reference to that SoP or those SoPs: s 120A(3). If, on the other hand, there is no SoP, then there is no relevant template against which the reasonableness of the hypothesis is to be considered because s 120A(3) does not apply. Instead, the question of causation would be determined under s 120(1) and (3) of the Act, and the application would be dealt with in the manner discussed in Byrnes v Repatriation Commission [1993] HCA 51; (1993) 177 CLR 564 at 571: see Repatriation Commission v Hancock [2003] FCA 711; (2003) 37 AAR 383 at 386 [10].

7.      This requirement that we first determine the "kind of death" that the veteran met is confirmed in Hancock and in Repatriation Commission v Codd [2007] FCA 877; (2007) 95 ALD 619.

The evidence relating to the veteran’s “kind of death”

8.      The veteran’s death certificate records at item 5, which is labelled “Cause of Death and Duration of last illness”, the following matters:

(I)(a)    Pulmonary Embolism, days

(b)     Myocardial Infarction (Acute), days

(II)       Motor Axoual Neuropathy, years

Hypertension, years

It was accepted that the third line should read “Motor Axonal Neuropathy”.

9.      We were directed by Mrs Collins’ representative to two documents published by the Australian Bureau of Statistics (“ABS”) – one an article entitled “Multiple Cause of Death Analysis, 1997–2001” (ABS document number 3319.0.55.001 – Exhibit 12) and the other an information paper entitled “Cause of Death Certification” (ABS document number 1205.0.55.001 – Exhibit 13).  Exhibit 13, at page 9, indicates that if the death certificate was completed in the way recommended by the ABS, then the matters shown at [8] above would signify the following:

·     Pulmonary embolism was the disease or condition directly leading to death.

·     An acute myocardial infarction was the underlying condition giving rise to the pulmonary embolism.

·     Motor axonal neuropathy and hypertension were other significant conditions contributing to the death, but not related to the disease or condition causing it.

10.     Two expert witnesses gave evidence – Dr Russell Butler for Mrs Collins, and Professor Michael O’Rourke for the Commission.  Both witnesses prepared reports for these proceedings and gave oral evidence to supplement their reports. They were also cross-examined. 

11.     Both witnesses expressed some misgivings about the accuracy of the medical information on the veteran’s death certificate.

12.     Professor O’Rourke, after taking into account the notes from the Newcastle Mater Hospital (where the veteran died), the ambulance record (covering the veteran’s transportation from a clinic in Nelson Bay to the Mater Hospital two days before death) and the results of the tests that were undertaken on the veteran while he was in hospital, expressed a clear view in his report dated 12 January 2007, by the use of the single word “No”, that the death certificate was not an accurate reflection of the cause of death.  He stated at page 2:

Mr Collins deteriorated over two days with the terminal event being cardiac asystole.  Mr Collins’ type of death was due to pulmonary embolism on the basis of motor neuropathy over several years causing impaired ability [sic].  Hypertension was a factor in the development of ischaemic heart disease: ischaemic heart disease was not a cause of death. (emphasis added)

13.     His later report, dated 12 June 2007, stated at [E] on page 2:

If the [ABS’s] advice were to have been followed in this case, I believe that the death certificate should have read:

1(a)     Pulmonary embolism, days, due to [or as] a consequence of

1(b)     Deep vein thrombosis, weeks, due to or as a consequence of

1(c)     Motor axonal neuropathy, years,

with (ii) Ischemic heart disease contributing.

14.     Dr Butler’s report dated 8 November 2006 stated that “[t]he death certificate is accurate in attributing Mr Collins’ death to both pulmonary embolism and myocardial infarction.”  Nevertheless, in oral evidence, he said that Professor O’Rourke’s suggestion, set out at [13] of these reasons, was reasonable, “provided (ii) is separate, not a subset of (1)”.  His view was that ischaemic heart disease had no causative relationship to pulmonary embolism but was a separate entity contributing to death.

15.     Exactly how ischaemic heart disease contributed to the veteran’s death was the subject of questioning by representatives of both parties.  Dr Butler said that the veteran’s ischaemic heart disease increased his likelihood of dying once the pulmonary embolism occurred.  He said that the death rate from pulmonary embolism is high, but ischaemic heart disease would make it even higher.  He said that without coronary artery disease, the chance of dying would have been around 90 to 95 per cent; with coronary artery disease it would have been almost 100 per cent.  In summary, he said that the veteran may have died more quickly because, in addition to the pulmonary embolism, his heart also failed in a major way.

16.     He had stated in his report dated 21 March 2007 (Exhibit 6):

I believe that it is more likely than not that Mr Collins’ ischaemic heart disease contributed to his death, and that he died more rapidly than he would have done in the absence of the ischaemic heart disease.  The magnitude of this effect is difficult to assess, but probably a matter of hours or, at most, a few days.

17.     In oral evidence he agreed that this was a reference to the timing of the death rather than to its likelihood.

18.     Professor O’Rourke’s report, Exhibit 10, had been prepared largely as responses to specific questions asked by the respondent’s representatives.  In response to the question “Should you consider that Mr Collins suffered from ischaemic heart disease please comment on whether it should be identified as a cause of death?  If so how significant a cause of death was it?” he answered:

I believe that ischaemic heart disease did not play a significant role in Mr Collins’ death.  Death is attributable to massive pulmonary embolism as demonstrated in the pulmonary scan at the Mater Hospital.  Pulmonary embolism caused hypotension and shock, through obstruction of the circulation of blood into the lungs, and this caused troponin elevation.  I believe that while there is evidence of troponin elevation in this man at death this was due to extreme hypotension.  I believe that his death was caused by massive pulmonary embolus originating from venous thrombosis in the presence of a debilitating neurological disease.

19.     In oral evidence Professor O’Rourke said that the contribution of ischaemic heart disease to the veteran's death was “negligible”.  In this respect, he thought that his evidence and that of Dr Butler were in agreement – that the ischaemic heart disease may have made a difference of a matter of hours or days to the timing of the veteran’s death.  In summary, Professor O'Rourke expressed the view that ischaemic heart disease had had "little or no impact" on the veteran’s death.

Our finding as to the veteran’s “kind of death”

20.     We are required to determine on the balance of probabilities what is the "kind of death" met by the veteran: Hancock at 386 [11]; Codd at [22] – [23].

21.     In Codd, in a discussion of the proper construction of the relevant provisions of the Act, Selway J explained at [37] that:

the “kind of death met by the [veteran]” that is to be identified presents a question about medical causation – that the kind of death is a medical cause of death.

22.     In relation to that question, 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".

Was there a connection between the veteran’s kind of death and the circumstances of his service?

23.     We must now follow the process set out by the Full Court of the Federal Court of Australia in Repatriation Commission v Deledio [1998] FCA 391; (1998) 83 FCR 82.

24.     The first step in that process, set out at pages 97 to 98, is this:

The Tribunal must consider all the material which is before it and determine whether that material points to a hypothesis connecting the injury, disease or death with the circumstances of the particular service rendered by the person.  No question of fact finding arises at this stage.  If no such hypothesis arises, the application must fail.

25.     The applicant's case proceeded on the basis that the kind of death met by the veteran was death by ischaemic heart disease.  The material presented to the Tribunal sought to draw a connection between the veteran’s operational service and his death by ischaemic heart disease.  There was no material that sought to draw a connection between his service and his death by pulmonary embolism.

26.     Given our finding that the kind of death met by the veteran was death by pulmonary embolism, and in the absence of any material presented by the applicant pointing to a hypothesis connecting that kind of death with the circumstances of the veteran’s service, the application must fail.

Conclusion

27.     The Tribunal affirms the decision under review.

I certify that the 27 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member Bernard J McCabe and Mr S E Frost, Member

Signed:         .....................................................................................

Michael Buckingham, Associate

Dates of Hearing  11 April 2007 and 20 February 2008
Date of Decision  2 May 2008
Solicitors for the applicant        Dibbs Abbott Stillman Lawyers    
Solicitors for the respondent     Departmental advocate