DAWN WILKIE MCKENZIE and REPATRIATION COMMISSION
[2012] AATA 108
•23 February 2012
[2012] AATA 108
| Division | VETERANS' APPEALS DIVISION |
| File Number | 2010/3682 |
| Re | DAWN WILKIE MCKENZIE |
| APPLICANT | |
| And | REPATRIATION COMMISSION |
| RESPONDENT |
DECISION
| Tribunal | G. D. Friedman, Senior Member |
| Date | 23 February 2012 |
| Place | Melbourne |
The Tribunal affirms the decision under review.
...............................[sgd].....................................
G. D. Friedman, Senior Member
VETERANS' AFFAIRS – veterans' entitlements – widow's claim – cardiomyopathy – ischaemic heart disease – atherosclerotic peripheral vascular disease – malignant neoplasm of the oesophagus – smoking – alcohol consumption – whether conditions war-caused
Veterans' Entitlements Act 1986 ss 8(1), 119, 120(1), 120(3), 120A
Bull v Repatriation Commission (2001) 188 ALR 756
Bushell v Repatriation Commission [1992] HCA 47
Collins v Repatriation Commission (2009) 177 FCR 280
Fenner v Repatriation Commission (2005) 218 ALR 122
Repatriation Commission v Bey (1997) 79 FCR 364
Repatriation Commission v Deledio (1998) 83 FCR 82
Repatriation Commission v Hancock (2003) 37 AAR 383
Repatriation Commission v Law (1980) 31 ALR 140
REASONS FOR DECISION
G. D. Friedman, Senior Member
23 February 2012
Dawn McKenzie is the widow of Howard Charles McKenzie (the veteran), who died on 6 July 2009 from cardiomyopathy (heart disease). On 19 July 2010 the Veterans’ Review Board affirmed a decision of the respondent to refuse her application for a widow's pension on the basis that the death was not war-caused. Mrs McKenzie seeks a review of that decision.
The issue before the Tribunal is whether there is a causal relationship between the veteran's death and his operational service. This requires an assessment of the kind of death and consideration of whether each of the following conditions contributing to the death was connected to his service: cardiomyopathy; ischaemic heart disease; atherosclerotic peripheral vascular disease; and malignant neoplasm of the oesophagus (oesophageal cancer).
LEGISLATIVE FRAMEWORK
The veteran served in the Royal Australian Air Force (RAAF) from 10 July 1942 to 25 January 1946. His service in the Philippines from August to October 1945 was operational service under the Veterans' Entitlements Act 1986 (the Act).
Section 8(1) of the Act provides:
8(1) Subject to this section …, for the purposes of this Act, the death of a veteran shall be taken to have been war-caused if:
(a) the death of the veteran resulted from an occurrence that happened while the veteran was rendering operational service;
…
The standard of proof in claims made in respect of the death of a veteran relating to operational service is specified in s 120(1) of the Act, which provides that the death of a veteran was war-caused unless the Tribunal is satisfied, beyond reasonable doubt, that there is no sufficient ground for making that determination. Section 120(3) of the Act provides that:
…the Commission shall be satisfied… if… after consideration of the whole of the material before it, is of the opinion that the material before it does not raise a reasonable hypothesis connecting the… death with the circumstances of the particular service rendered by the person.
Section 120A of the Act provides that, for the purposes of s 120(3) of the Act:
…a hypothesis connecting the… death of a person with the circumstances of any particular service rendered by the person is reasonable only if there is in force… a Statement of Principles (SoP)… that upholds the hypothesis.
In cases where s 120A of the Act applies, the Full Court of the Federal Court in Repatriation Commission v Deledio (1998) 83 FCR 82 at 97 set out a four step process:
1. 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…
2. If the material does raise such a hypothesis, the Tribunal must then ascertain whether there is in force an SoP determined by the Authority under s 196B(2) or (11)….
3. If an SoP is in force, the Tribunal must then form the opinion whether the hypothesis raised is a reasonable one. It will do so if the hypothesis fits, that is to say, is consistent with the "template" to be found in the SoP…
4. The Tribunal must then proceed to consider under s 120(1) whether it is satisfied beyond reasonable doubt that the death was not war-caused… If the Tribunal is so satisfied, the claim must fail.
As stated in Repatriation Commission v Law (1980) 31 ALR 140, there may be more than one medical cause for the veteran's incapacity or death, which must be a contributing cause, but not necessarily the sole or dominant cause. In Repatriation Commission v Hancock (2003) 37 AAR 383 at 386 Selway J set out the approach to be followed by the Tribunal:
(a) First, the AAT was required to determine, on balance of probabilities, whether the pre-conditions other than causation, had been made out…
(b) Next, the AAT was required to determine on balance of probabilities what 'kind of death' Mr Hancock had suffered. This involved the identification, on balance of probabilities, of any and all SoPs and/or determinations under s 180A(2) of the Act and any other 'kinds of death' which were applicable to that death.
(c) If one or more SoPs were applicable, then the methodology in Deledio is applicable in relation to those 'kinds of death'.
…
In Collins v Repatriation Commission (2009) 177 FCR 280 the Federal Court stated at [20]:
Certainly, in order to ascertain whether a statement of principles applies, it is necessary to identify the kind of death met by the Veteran. The identification of the kind of death is the critical step in the analysis, but in determining the kind of death, the proof is on the balance of probabilities (see Hancock [2003] FCA 711 at [9]). Clearly enough, the phrase "kind of death met by a person" is concerned with causation. It is not a question about whether the death was slow, fast or otherwise, it asks questions of medical causation about the cause of death in the context of the Act.
In following the approach laid down in Hancock, the Tribunal finds that the pre- conditions, other than causation, have been made out because Mrs McKenzie's husband was a veteran, the veteran has died and Mrs McKenzie is his widow. In relation to a determination of the kind of death suffered by the veteran (step (b), the Tribunal notes that the death certificate and medical evidence confirm that the main cause of death was cardiomyopathy. A coronial inquiry into the death found that the veteran suffered a cardiac arrest following surgery for amputation of gangrenous toes, and that coronary atherosclerosis and oesophageal cancer were contributing factors. Reports also indicate that ischaemic heart disease may have contributed to the death.
Mrs McKenzie said that the veteran was diagnosed with oesophageal cancer in April 2009 and an oncologist recommended a course of chemotherapy and radiotherapy. At that time his toes had become discoloured and a decision was made to amputate several of them, but the chemotherapy and radiotherapy were undertaken first. However he died shortly after having surgery performed on his toes, and Mrs McKenzie said that in her opinion these procedures caused the veteran debility or weakness which increased his risk from anaesthetic and consequently contributed to his death.
In a report dated 13 July 2011 Professor J Cade, Principal Specialist in Intensive Care, The Royal Melbourne Hospital, agreed with the forensic pathologist that the veteran's death from cardiomyopathy was contributed to by coronary atherosclerosis and oesophageal cancer. He said that as the cancer had been treated before the surgery with chemotherapy and radiotherapy and had not spread to other parts of the body, it was not problematic at the time of surgery.
In a report dated 18 February 2011 Professor R Harper, consultant & interventional cardiologist, stated that he was uncertain whether oesophageal cancer contributed to the veteran's death.
In a report dated 30 May 2011 Professor R Byron Collins, consultant forensic pathologist, stated that there was a reasonable possibility that oesophageal carcinoma played a contributory role in the veteran's death as a consequence of bleeding from a primary site resulting in anaemia, and known cardiotoxic and haematological effects of chemotherapy and radiotherapy which increased the likelihood of abnormal cardiac rhythm or anaemia. In a further report dated 25 October 2011 Dr Byron Collins clarified his earlier opinion and stated that following treatment with radiotherapy for the oesophageal adenocarcinoma, the veteran suffered from a diminution of red blood cells, white blood cells and platelets, constituting a condition of pancytopaenia, which complies in part with the definition of aplastic anaemia as specified in SoP No. 1 of 2001 concerning aplastic anaemia. Paragraph 2 of the SoP defines aplastic anaemia as:
…
(b) For the purposes of this Statement of Principles, “aplastic anaemia” is a disorder of haematopoiesis characterised by pancytopaenia in the peripheral blood and a hypoplastic bone marrow with no signs of granulomatous disease or malignancy in the bone marrow, attracting an ICD-10-AM code in the range D61.1 to D61.9, but excluding agranulocytosis and congenital aplastic anaemia.
Dr Collins conceded that the status of bone marrow (the second part of the definition) was unknown because a bone marrow biopsy was not carried out.
In a further report dated 2 November 2011 in response to Dr Byron Collins’ report, Professor Cade agreed in principle that the pancytopaenia following chemotherapy for oesophageal cancer would fulfil the definitional requirement for aplastic anaemia in SoP No. 1 of 2001. However Professor Cade said that this treatment complication then needs to be tested for its potential relationship with the veteran’s operational service via the underlying condition for which that treatment was being given, namely oesophageal cancer and its connection with the veteran’s smoking and drinking levels.
The Tribunal finds that the kind of death was cardiomyopathy; ischaemic heart disease; atherosclerotic peripheral vascular disease; and malignant neoplasm of the oesophagus.
WAS CARDIOMYOPATHY WAR-CAUSED?
The relevant SoP is No. 23 of 2007 concerning cardiomyopathy. Factor 6 provides:
…
(b) for males only, drinking at least 250 kilograms of alcohol within any ten year period before the clinical onset of cardiomyopathy;
…
(zs) undergoing a course of therapeutic radiation involving the mediastinum before the clinical worsening of cardiomyopathy;
Paragraph 7 provides:
Paragraphs 6(za) to 6(zz) 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.
In respect of factor 6(b) there was no dispute that clinical onset of cardiomyopathy was in 2005 or that the veteran failed to consume the requisite amount of alcohol within the relevant period. In respect of factor 6(zs) the respondent conceded that the course of chemotherapy and radiation undertaken by the veteran during the weeks before his death may have worsened his cardiomyopathy. However there was no material before the Tribunal to suggest that the cardiomyopathy was suffered or contracted before or during the veteran’s service. Therefore the Tribunal finds that, in relation to the first step from Deledio, the material does not point to a hypothesis connecting the veteran's death from cardiomyopathy with the circumstances of the particular service rendered by him. Therefore Mrs McKenzie does not satisfy the first step, and the Tribunal is satisfied, beyond reasonable doubt, that there is no sufficient ground for determining that the death of the veteran from cardiomyopathy was war-caused.
WAS ISCHAEMIC HEART DISEASE WAR-CAUSED?
The relevant SoP is No. 89 of 2007 concerning ischaemic heart disease. Factor 6 provides:
…
(g)(iii) smoking at least 20 pack years of cigarettes or the equivalent thereof in other tobacco products
Paragraph 9 provides:
…
"pack years of cigarettes or the equivalent thereof in other tobacco products" means a calculation of consumption where one pack year of cigarettes equals twenty tailor made cigarettes per day for a period of one calendar year, or 7300 cigarettes. One tailor made cigarette approximates one gram of tobacco or one gram of cigar or pipe tobacco by weight. One pack year of tailor made cigarettes equates to 7300 cigarettes, or 7.3 kg of smoking tobacco by weight. Tobacco products means either cigarettes, pipe tobacco or cigars smoked, alone or in any combination;
There was no dispute that clinical onset of ischaemic heart disease occurred in 2003 or that the veteran failed to smoke the requisite number of pack years of cigarettes. Therefore the Tribunal finds that, in relation to the first step from Deledio, the material does not point to a hypothesis connecting the veteran's death from ischaemic heart disease with the circumstances of the particular service rendered by him. Therefore Mrs McKenzie does not satisfy the first step, and the Tribunal is satisfied, beyond reasonable doubt, that there is no sufficient ground for determining that the death of the veteran from ischaemic heart disease was war-caused.
WAS ATHEROSCLEROTIC PERIPHERAL VASCULAR DISEASE WAR-CAUSED?
The relevant SoP is No. 65 of 2002 concerning atherosclerotic peripheral vascular disease. Factor 5 provides:
(a) smoking at least five cigarettes per day or the equivalent thereof in other tobacco products, for at least three years before the clinical onset of atherosclerotic peripheral vascular disease and where smoking has ceased, the clinical onset has occurred within 20 years of cessation;
…
There was no dispute that the veteran failed to meet the smoking factor because he had ceased smoking many years before the clinical onset of the condition. Therefore the Tribunal finds that, in relation to the first step from Deledio, the material does not point to a hypothesis connecting the veteran's death from atherosclerotic peripheral vascular disease with the circumstances of the particular service rendered by him. Therefore Mrs McKenzie does not satisfy the first step, and the Tribunal is satisfied, beyond reasonable doubt, that there is no sufficient ground for determining that the death of the veteran from atherosclerotic peripheral vascular disease was war-caused.
WAS MALIGNANT NEOPLASM OF THE OESOPHAGUS WAR-CAUSED?
The relevant SoP is No. 41 of 2007 concerning malignant neoplasm of the oesophagus. Factor 6 provides:
…
(c) for adenocarcinoma of the oesophagus only, smoking at least five pack years of cigarettes, or the equivalent thereof in other tobacco products, before the clinical onset of malignant neoplasm of the oesophagus, where smoking commenced at least five years before the clinical onset of malignant neoplasm of the oesophagus;
Paragraph 9 of the SoP provides:
…
"pack years of cigarettes, or the equivalent thereof in other tobacco products" means a calculation of consumption where one pack year of cigarettes equals twenty tailor made cigarettes per day for a period of one calendar year, or 7300 cigarettes. One tailor made cigarette approximates one gram of tobacco or one gram of cigar or pipe tobacco by weight. One pack year of tailor made cigarettes equates to 7300 cigarettes, or 7.3 kg of smoking tobacco by weight. Tobacco products means either cigarettes, pipe tobacco or cigars smoked, alone or in any combination;
Paragraph 5 of the SoP provides:
Subject to clause 7, at least one of the factors set out in clause 6 must be related to the relevant service rendered by the person.
Mrs McKenzie told the Tribunal that she married the veteran on 16 May 1953 after meeting him one year earlier. She said that he told her about his service in the Philippines and that his duties included intercepting and de-coding signals from the Japanese Imperial Army. She stated that he explained to her that these duties were stressful and involved long shifts which were tedious but involved significant responsibility. Mrs McKenzie said that when she met the veteran he was a non-smoker but had told her that shortly before they met he was a smoker and had commenced the habit after joining the RAAF because of boredom, peer pressure, the ready availability of tobacco and fears for his safety because of the proximity of enemy forces. Mrs McKenzie stated that the veteran did not indicate to her the number of cigarettes smoked but only that his smoking habit extended approximately ten years from the time of enlistment in 1942.
In her application for a widow’s pension in 2009 Mrs McKenzie included an unsigned and undated Claimant Report – Cigarette Smoking for the Department of Veterans’ Affairs in which the answer to the question about the number of cigarettes smoked per day was 10-15 per day, although she said that it was not the veteran’s handwriting. She said that she thought this figure was accurate because he told her that he was a medium to a moderate smoker. She stated: And well, I said “How – what do you mean?” He said, “10 to 15 a day”, something like that. She then stated that when she met the veteran he …wasn’t smoking then except socially and occasionally. She attempted to clarify her evidence by stating: …he didn’t smoke but he might have, I don’t know whether he did or he didn’t at a party or at some public place. But he – no, he stopped smoking.
Under cross-examination Mrs McKenzie agreed that the figure of 10-15 cigarettes per day was her estimate because …you don’t ask people how many cigarettes they smoke. She also agreed that her written statement did not contain any information on the quantity of cigarettes smoked because: …when he was smoking, I wouldn’t know how many. Well how could I?
Ms J McKenzie, daughter of Mrs McKenzie and the veteran, told the Tribunal that she recalled that in about 1974 when she was aged 10 years she was present at a social function when someone was smoking a cigar or a pipe, and she had a conversation with the veteran in which he indicated to her that he had been a keen smoker and that he had smoked …whatever he could get his hands on. Under cross-examination Ms McKenzie agreed that she had not come forward with this recollection until the end of the evidence at the hearing because she had not discussed the application or her father’s level of smoking with family members other than in general terms, and had not been approached by Mrs McKenzie’s solicitor. She also agreed that the veteran had not indicated to her his level of smoking or the period during which he had smoked.
In medical documents provided to the Tribunal for the period 1980 to 2009 the veteran was recorded as being a non-smoker. In February 1999 a neurologist recorded the veteran as being …a non-smoker for 50 years. In a Health Assessment & Risk Screening Tool completed in 2004 the veteran was described as a former smoker 60 yrs ago. In a Pre-operative Checklist completed in February 2009 the veteran was described as a non-smoker who stopped smoking 60 years ago. In an undated Pre-operative Patient Questionnaire completed in about 2009 the veteran stated that he stopped smoking in 1950. The medical documents do not contain any information about his level of smoking.
In relation to the first step from Deledio, the majority in the High Court of Australia held in Bushell v Repatriation Commission [1992] HCA 47 at [8]:
The material will raise a reasonable hypothesis within the meaning of s.120(3) if the material points to some fact or facts ("the raised facts") which support the hypothesis and if the hypothesis can be regarded as reasonable if the raised facts are true. Clearly enough, a relevant consideration in forming an opinion whether a particular hypothesis is reasonable is whether, as a matter of common or medical experience, the occurrence of an injury etc. of the kind sustained by the veteran is commonly accompanied by or associated with the occurrence of raised facts of the kind which constitute the relevant incidents of the service of the veteran…
The majority stated at [9]:
However, a hypothesis cannot be reasonable if it is "contrary to proved scientific facts or to the known phenomena of nature"… Nor can it be reasonable if it is "obviously fanciful, impossible, incredible or not tenable or too remote or too tenuous" …East v. Repatriation Commission [1987] FCA 242…
The Full Federal Court in Repatriation Commission v Bey (1997) 79 FCR 364 stated at 372-3:
A 'reasonable hypothesis' involves more than a mere possibility. It is a hypothesis pointed to by the facts, even though not proved upon the balance of probabilities.
Mrs McKenzie gave evidence to the best of her recollection about conversations with the veteran in 1953 concerning his smoking habit, which she said he had given up before she met him. However she conceded that she did not know the number of cigarettes he smoked because he had never discussed with her his level of smoking. She also conceded that her estimate of 10-15 cigarettes per day was based solely on her assumption that he was a person of moderate habits. The medical records do not assist with an assessment of the amount of cigarettes the veteran smoked, or whether he ceased smoking in about 1952 (as suggested by Mrs McKenzie) or about 1944, 1949 or 1950 (as indicated by deducting the years that had elapsed since the veteran claimed to have ceased smoking or was attributed to have ceased).
The Tribunal places little weight on Mrs McKenzie’s evidence because it was highly speculative and vague with regard to her estimate of the veteran’s level of smoking; there are doubts about the accuracy of her evidence concerning the year that he ceased smoking; and there were inconsistencies in her evidence about him continuing to be a social smoker after he had supposedly ceased smoking. Similarly the Tribunal places little weight on Ms McKenzie’s evidence. She came forward at the last possible moment; she admitted that the alleged conversation with the veteran occurred some 38 years ago when she was aged 10 years; and her recollection about the conversation was only that he claimed to have been a keen smoker who would smoke whatever he could get his hands on, which does not assist the Tribunal in its consideration of the veteran’s level of smoking and the period and context during which the smoking occurred.
Consequently any evidence that would suggest a level of smoking of 5 pack years (equivalent to 36,500 cigarettes) before the clinical onset of malignant neoplasm of the oesophagus is unreliable and speculative, and, in any event, does not establish a causal relationship with the veteran’s operational service: at its highest a possible temporal relationship.
After considering all the material before it regarding the veteran’s level of smoking during the relevant period and the date of commencement of smoking or of ceasing to smoke, the Tribunal determines that the material does not point to some fact or facts (the raised facts) which support the hypothesis connecting the veteran’s smoking and his operational service and his death. The material does not raise a reasonable hypothesis because the hypothesis is not tenable, is too remote and is no more than a mere possibility. Therefore the material does not point to a hypothesis within the meaning of s 120(3) of the Act connecting malignant neoplasm of the oesophagus with the circumstances of the particular service rendered by the veteran. Therefore Mrs McKenzie does not satisfy the first step from Deledio, and as no such hypothesis arises the Tribunal is satisfied, beyond reasonable doubt, that for the purposes of s 120(1) of the Act there is no sufficient ground for determining that the veteran's malignant neoplasm of the oesophagus was war-caused.
Section 119 of the Act requires the Tribunal to take into account the difficulties that may stand in the way of ascertaining any fact, cause or circumstance, such as the passage of time. However, as Mansfield J stated in Fenner v Repatriation Commission (2005) 218 ALR 122 at 130:
… while the directions of s 119(1)(f), (g) and (h) are of relevance to the way in which the tribunal proceeded, they cannot remove from it the responsibility of applying ss 120 and 120A and other relevant provisions of the Act according to the proper terms.
DECISION
The Tribunal affirms the decision under review.
| I certify that the preceding 41 (forty one) paragraphs are a true copy of the reasons for the decision of G. D. Friedman, Senior Member. |
.............................[sgd]...........................
Associate
Dated 23 February 2012
| Dates of hearing | 3 November 2011, 20 February 2012 |
| Counsel for the Applicant | Ms L Martin |
| Solicitor for the Applicant | Williams Winter |
| Counsel for the Respondent | Mr G Purcell |
| Solicitor for the Respondent | Department of Veterans' Affairs |
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