DAPHNE WISHART and REPATRIATION COMMISSION
[2010] AATA 178
•17 March 2010
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2010] AATA 178
ADMINISTRATIVE APPEALS TRIBUNAL )
) No. N 2006/1615
VETERANS' APPEALS DIVISION ) Re DAPHNE WISHART Applicant
And
REPATRIATION COMMISSION
Respondent
DECISION
Tribunal M.D. Allen, Senior Member
Dr I. Alexander, MemberDate17 March 2010
PlaceSydney
Decision The decision under review is AFFIRMED.
...................[sgd].......................
M.D. Allen, Presiding Member
CATCHWORDS
VETERANS’ ENTITLEMENTS: Death from cerebrovascular accident following surgery. Satisfied beyond reasonable doubt not caused or contributed to by operational service.
LEGISLATION
Veterans’ Entitlements Act 1986, sections 120, 120A, 196B
Veterans’ Affairs (1994-95 Budget Measures) Legislation Amendment Act 1994 section 11
CASES
Repatriation Commission v Cooke (1998) 90 FCR 307
Benjamin v Repatriation Commission (2001) 70 ALD 622
Repatriation Commission v Smith (1987) 15 FCR 327
Comcare v Canute (2005) 148 FCR 232
REASONS FOR DECISION
17 March 2010 M.D. Allen, Senior Member
Dr I. Alexander, Member1. By Application made the 22nd day of November 2006 the Applicant sought review of a decision by the Respondent that the death of her late husband, Francis Leslie Wishart was not war-caused.
2. As the deceased had operational service as that term is defined in section 6A of the Veterans’ Entitlements Act (“VEA”) 1986, the standard of proof in this matter is that mandated by subsection 120(1) and (3) VEA.
3. Subsections 120(1) and (3) VEA provide that the death of a veteran shall be accepted as being war-caused, unless the Tribunal is satisfied, beyond reasonable doubt, that there is no sufficient ground for making that determination. The Tribunal will be deemed to be so satisfied if, after a 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 of the veteran with the circumstances of the service rendered by him. Pursuant to section 120(A) VEA, a hypothesis will not be a “reasonable hypothesis” unless it conforms to a so-called Statement of Principles (“SoP”) issued by the Repatriation Medical Authority.
4. In Repatriation Commission v Cooke (1998) 90 FCR 307, the Full Court of the Federal Court pointed out that, whereas the beyond reasonable doubt standard of proof prescribed by Ss120(1) VEA applied to those facts necessary to establish the connection with operational service, other facts need only be established to the Tribunal’s reasonable satisfaction. The Full Court decision of Benjamin v Repatriation Commission (2001) 70 ALD 622 established that the Tribunal must be reasonably satisfied as to the cause of a veteran’s death, or the diagnosis of any injury or disease suffered by the veteran.
5. Repatriation Commission v Smith (1987) 15 FCR 327 is authority for the proposition that the term “reasonable satisfaction” in Ss 120(4) VEA equates to the civil standard of proof, that is to say, proof on the balance of probabilities.
6. Subsection 120(6) VEA provides neither party to this review bears any onus of proof.
7. The evidence in this matter establishes that the deceased died as a consequence of intra operative and post operative cerebral infarction associated with open heart surgery and mitral valve replacement.
8. As pointed out in the report of Professor O’Rourke, the deceased underwent mitral valve replacement on 25 August 2005. He did not regain consciousness following the operation and developed signs of cerebral infarction. He developed respiratory problems and required ventilation. The family agreed with a ‘not for resuscitation’ approach and he died on the 8 September 2005.
9. In his oral evidence, Professor O’Rourke stated that the cause of death, viz cerebral infarction, is a recognised complication of cardiac surgery. Dr Butler, specialist physician, who was called by the Applicant, also stated that “stroke” is not uncommon in open heart surgery.
10. The Applicant submitted that the deceased’s diagnosed condition of osteoarthritis of the knees was war-caused, and that this condition led to the deceased being unable to undertake physical activity greater than three METs.
11. Factor 6(b) of the factors connecting cerebrovascular accident with war service in Instrument No.51 of 2006 (the applicable SoP) reads:
“an inability to undertake any physical activity greater than three METs for at least the five years before the clinical onset of cerebrovascular accident”.
12. As we understand the Applicant’s submissions, Factor 6(b) was met because of the deceased’s war-caused osteoarthritis of the knees and hence his cerebrovascular accident and consequent death were also war-caused.
13. That the deceased had osteoarthritis of the knees is accepted given the various medical reports contained in the clinical notes of his General Practitioner (“GP”), Dr Fenn. However, on the view we take of the matter, it is not necessary for us to determine whether that disease was war-caused or not.
14. We are satisfied beyond reasonable doubt that the deceased’s death was not war-caused for the following reasons.
15. The deceased was first diagnosed with atrial fibrillation in 1971 as pointed out by Professor O’Rourke in his report of 14 June 2008:
“No cause for this was established, and there was no evidence of any congenital or valvular disease. He was cardioverted electrically to sinus rhythm, but atrial fibrillation recurred and persisted. He was referred to Dr Simon O’Connor in 1997 when a systolic heart murmur was noted by his local medical officer, Dr Christopher Fenn. Dr O’Connor diagnosed mitral regurgitation with left ventricular dilation and hypertrophy and with marked dilation of the left atrium. Hypertension was also noted. Treatment with Warfarin and with an antihypertensive agent were considered, and yearly follow up advised. Dr O’Connor referred to exercise tolerance as being good with no exertional dyspnoea.”
16. Professor O’Rourke’s report continues:
“Dr O’Connor (Cardiologist) saw Mr Wishart subsequently and noted onset of symptoms of dyspnoea with progression of the mitral valve lesion. In 2001 Mr Wishart had a cardiac pacemaker implanted following an episode of atrioventricular block. Mr Wishart was also diagnosed with sleep apnoea and treated with a positive pressure airway device at night, and with good results.”
17. On 22 June 2005 Cardiologist, Dr O’Connor wrote to the deceased’s GP stating inter alia:
“I Catheterised Mr Wishart at Canberra Hospital on Thursday 16/6/2005. This showed that he had no obstructive coronary artery disease. His left ventricle was considerably dilated and he had global hypokinesis. His mitral regurgitation appeared only mild to moderate on the ventriculogram today. At the moment he denies any symptoms of heart failure though he is on a moderate amount of anti-failure treatment. …I think he was a difficult candidate for valve surgery at the moment because of his poor left ventricular function and the ventricle looks a little worse than the mitral regurgitation would explain.”
18. On 20 July 2006 Dr O’Connor again saw the deceased. His report of that day reads:
“He remains very short of breath. He was breathless undressing today and he had signs of significant mitral regurgitation and left ventricular dilation again. …Surgery is really his only prospect of improvement so I am getting him to see Peter Bissaker for an opinion. He would be a high-risk case but I think it is certainly worth getting Peter’s opinion...”
19. Dr Bissaker, cardiac surgeon reported to Dr O’Connor on 2 August 2005 stating inter alia:
“…has been experiencing quite significant exertional dyspnoea and fatigue related to severe mitral regurgitation. Angiographically he has normal coronary arteries but a dilated left ventricle but preserved fractional shorting on echocardiography.
I certainly believe that without intervention in the not too distant future, Mr Wishart’s overall quality of life will deteriorate significantly and I agree he would benefit systematically and prognostically from mitral valve replacement…”
20. Subsequently the deceased was admitted to Canberra Hospital on 25 August 2005 for an elective mitral valve replacement. Post operatively he was noted to have clinical evidence of cerebrovascular accident which was confirmed by CT scan on 27 August 2005.
21. The deceased was discharged to the stroke unit on 5 September 2005. Over the next few days his cardiac and cerebral function deteriorated and his family agreed to a non-resuscitation policy and he died on 8 September 2005.
22. It was the opinion of Professor O’Rourke that the deceased died as a result of cerebral infarction caused by blockage of certain cerebral arteries during the operation, cerebral infarction being a recognised complication of the kind of operation experienced by the deceased.
23. Professor O’Rourke also indicated that in his opinion the cause of the blockage may have been clots that had been formed as a consequence of the deceased’s long-standing atrial fibrillation and that these clots had been disturbed during the operation.
24. In his report of 21 July 2008, Dr Butler, consultant physician, refers to a possibility of vertebro-basilar arterial disease, but states “I do not claim specific expertise in this area”. Professor O’Rourke, on the other hand, stated that apart from mitral valve incompetence no other disease of the arteries was clinically apparent.
25. In having regard to the various reports and evidence in this matter, we prefer the evidence of Professor O’Rourke to that of Dr Butler who conceded in his report that he did not claim expertise in the area of vertebro-basilar arterial disease and also conceded in cross examination that he was not a cardiologist and had not had direct management of a coronary unit.
26. So far as doctors Matalani and Chase are concerned, any comments they may make regarding the deceased’s coronary surgery and its sequela must yield to the opinions of Professor O’Rourke as they are speaking outside their areas of expertise.
27. Although the SoP re Cerebrovascular accident refers in Factor 6(b) to an inability to undertake physical activity greater than three METs, regard must be had to the definition of MET in the SoP, viz:
“MET means a unit of measurement of the level of physical exertion. 1 MET = 3.5 ml of oxygen/kg of body weight per minute or, 1.0 kcal/kg of body weight per hour, or resting metabolic rate”.
28. At page 23 of the Guide to the Assessment of Rates of Veterans’ Pension (“GARP”) 5th Edition, Scale 1.1 gives examples of activity levels with energy expenditure in METs. The table provides examples only and even if the deceased had osteoarthritis of his knees, that of itself does not equate to an inability to do all activities requiring an energy expenditure of greater than three METs.
29. Cross examined, Professor O’Rourke said:
“I don’t think he was ever severely disabled, as would be implied, if he was only capable of three METs – and that he had symptoms developing at three METs. Because that is a pretty severe degree of disability. I thought he was able to do more than that two years before but then his symptoms progressed and that was the reason for replacing his mitral valve believing that that was responsible for any symptoms that he had at that time, and then the expectation that he would be able to do – accomplish more than 3 METs.”
30. In his report of 1 September 2008, occupational physician Dr Chase stated:
“Indeed, he may have been able to perform some of the activities to the three-four METs level such as cleaning his car, minor care (sic) repairs, cleaning windows, vacuuming, making the bed and the like. Therefore his knee osteoarthritis did not prevent him from undertaking some level of physical activity greater than the three METs level. For example, there is nothing to suggest in any of the documentations (until the development of more serious shortness of breath immediately prior to his unsuccessful cardiac surgery) that would have prevented him from like aqua-aerobics, swimming or walking in a swimming pool. Indeed, I note that he enjoyed going to the beach and swimming in the ocean though the reason he stopped was the problems with waves and his knees. It would not have prevented him going to a pool.”
Dr Chase continued:
“This is in many ways irrelevant because it was not the osteoarthritis of his knees that caused his death. Osteoarthritis of the knees, or relative lack of exercise, would not cause myxoid degeneration of the mitral valve…”.
31. The deceased’s GP, Dr Fenn, in a report dated 7 May 2005, which accompanied the Applicant’s initial application to the Respondent, stated:
“Frank’s restrictions from his atrial fibrillation and then mitral valve disease were complicated by severe sleep apnoea since 1988 and complete heart block in 2001 with pace maker. Since 2000 he was unable to work at 3 METs or more.”
The statement of an inability to work at 3 METs or more is clearly referable to the deceased’s cardiac problems, and not his osteoarthritis.
32. Dr Fenn continued his report into the deceased’s health at document T13, page 450 by stating:
“He had had mitral regurgitation since 1997 which became much worse in 2000 and when complicated by tricuspid regurgitation in 2005 he was recommended for surgery.”
This statement clearly evidences the reason surgery was undertaken, which surgery led to the death of the Veteran.
33. Counsel for the Applicant submitted that all the Applicant had to raise was an hypothesis that osteoarthritis contributed to the deceased’s death.
34. Paragraph 196B(14)(d) VEA reads inter alia, that a factor causing or contributing to an injury disease or death is related to service rendered by a person if it was contributed to in a material degree by service.
35. Section 196B was inserted into the VEA by the Veterans’ Affairs (1994-95 Budget Measures) Legislation Amendment Act 1994 (No.98 of 1994), that is to say after the passing of the Safety, Rehabilitation and Compensation Act 1988 (“SRC”). There is no reason to assume the Parliamentary draftsman used the word “material” in any different sense to the way the word was used in the SRC Act.
36. In Comcare v Canute (2005) 148 FCR 232 at 249 the majority pointed out that content must be given to the word “material” where it occurs in a statute and the inclusion of that term imposes an evaluative threshold below which any causal connection may be disregarded.
37. We are satisfied beyond reasonable doubt that the Applicant’s osteoarthritis played no part in the deceased’s death and questions of contribution, material or otherwise, do not arise.
38. We are satisfied beyond reasonable doubt that Professor O’Rourke correctly stated the cause of the deceased’s death in the closing paragraph of his report, viz:
“Mr Wishart died as a consequence of intra operative and post operative cerebral infarction associated with open heart surgery and mitral valve replacement. He did not regain consciousness post operatively and could not sustain respiratory activity. He died in hospital two weeks after admission. There had been no clinical evidence of cerebral vascular disease preoperatively.”
In other words, osteoarthritis of the knees played no part in the death of the deceased. He was restricted in activity because of atrial fibrillation and mitral valve disease, see the report of Doctors Fenn and O’Connor, and his cerebral infarction was a result of open heart surgery.
39. There has been no suggestion in any of the material before us that the deceased’s mitral valve incompetence, nor his atrial fibrillation, was in any way connected with his war service. We note that a file note of 2 February 2006 by a medical officer employed by the Department of Veterans’ Affairs records:
“The atrial fibrillation was Idiopathic and there was no underlying IHD and no relation to the old TB.
The mitral valve disease was age related.
The strokes and the terminal illness of pneumonia and respiratory failure were all independent of the past history of service. There were no other identifiable risk factors.”
40. That opinion has not in any way been challenged in these proceedings.
41. For the above reasons the decision under review is AFFIRMED.
I certify that the 41 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member M D Allen and Dr I Alexander, Member
Signed: ....................[sgd]........................................
K. Lynch, AssociateDate/s of Hearing 24-25 June 2009, 1 March 2010
Date of Decision 17 March 2010
Counsel for the Applicant Mr C. Colborne
Solicitor for the Applicant Dibbs Barker
Representative for the Respondent Department of Veterans’ Affairs.
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