Delahunty and Repatriation Commission (Veterans' entitlements)
[2020] AATA 4857
•3 December 2020
Delahunty and Repatriation Commission (Veterans' entitlements) [2020] AATA 4857 (3 December 2020)
Division:VETERANS' APPEALS DIVISION
File Number(s): 2017/6748
Re:Carmel Delahunty
APPLICANT
AndRepatriation Commission
RESPONDENT
DECISION
Tribunal:Mrs J C Kelly, Senior Member
Date:3 December 2020
Place:Sydney
The kinds of death suffered by the veteran were sepsis, pneumonia, chronic obstructive pulmonary disease, fibrosing interstitial lung disease and non-Hodgkin’s lymphoma. The concession made by the Repatriation Commission is that the factor at clause 6(b) of the Statement of Principles concerning fibrosing interstitial lung disease No. 53 of 2013 is met.
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Mrs J C Kelly, Senior Member
CATCHWORDS
VETERANS’ AFFAIRS – claim for war widow’s pension – kind of death suffered by the veteran – whether the death was service related or war caused – preliminary decision
LEGISLATION
Veterans’ Entitlements Act 1986 (Cth) ss 120, 120B
CASES
Collins and Repatriation Commission [2009] FCAFC 90
Roscoe v Repatriation Commission [2003] FCA 1568
Suckling v Repatriation Commission (No. 1) [2004] FMCA 193
SECONDARY MATERIALS
Statement of Principles concerning fibrosing interstitial lung disease No. 53 of 2013
REASONS FOR DECISION
Mrs J C Kelly, Senior Member
3 December 2020
The application
Mrs Delahunty claimed a war widow’s pension following the death of her husband, Mr Graham Delahunty (the veteran). The Veterans’ Review Board (VRB) affirmed a decision of the Repatriation Commission (the Commission) that the death of the veteran was not related to service and therefore a war widow’s pension is not payable to Mrs Delahunty under the Veterans’ Entitlements Act 1986 (Cth) (the Act). Mrs Delahunty has applied to the Tribunal to review the Commission’s decision (the reviewable decision).
Two issues have to be decided:
(a)The kind of death suffered by the veteran; and
(b)Whether the veteran’s death was war-caused.
During the hearing, the parties agreed to have determined as a preliminary question the kind of death the veteran suffered.
The Commission conceded that if a kind of death suffered by the veteran is found to be fibrosing interstitial lung disease (FILD), the factor at clause 6(b) of the Statement of Principles concerning fibrosing interstitial lung disease No. 53 of 2013 (FILD SOP) is met based on all the available evidence.[1]
[1] Letter dated 7 August 2020 from Moray & Agnew Lawyers to the AAT.
Background
The veteran was born on 12 January 1931 and died on 5 January 2015 aged 83. He served in the Royal Australian Navy from 20 September 1951 to 19 September 1957. His service in Korea on board HMAS Tobruk from 3 June 1953 to 12 February 1954 is recognised as operational service and is therefore eligible war service for the purposes of the Act.
On 30 June 2015, Mrs Delahunty claimed for a war widow’s pension. On 25 August 2015, a delegate of the Commission decided that the veteran’s death was not war-caused. Mrs Delahunty applied to the VRB for a review of that decision on 11 November 2015. On 10 October 2017, the VRB affirmed the decision of the delegate of the Commission. On 10 November 2017 Mrs Delahunty applied to the Tribunal for review of that decision.
The veteran’s death certificate dated 5 January 2015 sets out the cause of death as:
(1) (a) Sepsis, 3 days;
(b) Hospital acquired pneumonia, 3 days;
(c) Advanced non-hodgkins lymphoma, years; and
(2)Advanced non-hodgkins lymphoma, years.
Non-hodgkins lymphoma will hereafter be referred to as NHL.
The law
The standard of proof for determining the “kind of death” is that specified in ss 120(4) and 120B of the Act: reasonable satisfaction/balance of probabilities.[2]
[2] Suckling v Repatriation Commission (No. 1) [2004] FMCA 193; Roscoe v Repatriation Commission [2003] FCA 1568.
In Collins and Repatriation Commission [2009] FCAFC 90, after considering relevant provisions, the Full Court of the Federal Court said at [82]:
Those provisions support the conclusion that the inquiry about the death or the kind of death for the purposes of the VE Act is, in essence, a question of fact about the medical cause or causes of the death. It does not support the proposition on behalf of Mrs Collins that there is a legislative intention that any medical condition which hastens the time of death of a veteran by a measurable period, even a short one, where in medical terms another medical condition is clearly the medical condition which accounts for the pathological changes leading to death, is itself a medical cause of the death.
At [88] the Court then said:
… We do not consider that the VE Act draws any legal distinction between the ultimate or primary and secondary medical causes of death of a veteran. It requires that the medical cause or causes of death be ascertained…
The parties’ contentions
Mr Saunders, counsel for Mrs Delahunty, contended that both NHL and FILD were a cause or kind of death suffered by the veteran.
The Statement of Facts and Contentions filed by Mrs Delahunty’s solicitors stated that NHL was certified to be a cause of the veteran’s death and FILD caused or materially contributed to the terminal event, pneumonia.
In its Statement of Facts, Issues and Contentions, the Commission contended that the kind of death was from NHL. During submissions, Mr O’Brien for the Commission contended that the kind of death was sepsis and hospital acquired pneumonia for three days. He accepted that NHL featured prominently and that there can be more than one kind of death.
The evidence
The medico-legal evidence addressed the kind of death but focused on linking aspects of the veteran’s service including smoking and exposure to asbestos and benzene, with the medical conditions he suffered of NHL and FILD.
Summary of the veteran’s medical history
The veteran had a very complex and lengthy medical history. Following is a summary of the history relevant to the consideration of the kind or kinds of death.
The veteran was diagnosed with B-cell NHL in February 2007. He was under the care of haematologist Professor Peter Presgrave. Following is his summary of the veteran’s NHL set out in his letter to Mrs Delahunty’s representative dated 2 March 2016:
He had originally been diagnosed with diffuse large B cell non-Hodgkin’s lymphoma in 2007. This was treated with intravenous chemotherapy. In 2011 he had a relapse with follicular histology, a more indolent form of non-Hodgkin’s lymphoma. In early 2013 he developed recurrent fevers complicated by pulmonary oedema. A CT scan performed at the time showed widespread lymphadenopathy. The fevers were felt to be related to recurrent aggressive non-Hodgkin’s lymphoma and he had a dramatic response to oral corticosteroids. His lymphadenopathy resolved and he had no recurrence of his fevers. The expectation was that Graham wold develop a recurrence of his aggressive lymphoma and would die shortly thereafter. However, over a nearly two year period there was no evidence of recurrent lymphoma and his high dose corticosteroids were weaned without obvious recurrence.
On 27 December 2012 Dr Simon Marlton, general practitioner (GP), referred the veteran for “non urgent assessment for palliative care”. GP Management plans/Team Care arrangements dated 2 October 2013 and 28 February 2014 state that in relation to NHL and prostate cancer, the veteran was under the care of Dr Marlton and Professor Presgrave and palliative care. On 13 September 2013 Dr Marlton requested “urgent approval” from the Department of Veterans’ Affairs for referral to Bryony Clark, occupational therapist, for “Allied Health” service for the condition “impaired mobility secondary to malignancy”.
In a referral to Dr Salmon/Dr Tran dated 21 February 2014 in relation to three suspicious lesions, Dr Marlton wrote:
These have been neglected Graham has recurrent Non Hodgkin’s lymphoma and his outlook had looked poor.
Dr Marlton’s medical records state that the veteran had a past history of COAD (Chronic Obstructive Airways Disease) on 5 April 2006 and on 30 January 2009. For example, a 2008 GP Management Plan and Team Care Arrangements 2008 does not mention COAD but Dr Marlton’s letter to Dr Timothy Skyring dated 27 May 2009 includes both dates.
The veteran came under the care of Dr Andrew Jones, respiratory physician on admission to hospital on 2 July 2008 and was found to have right upper lobe pneumonia. In September 2008 he appeared to have made a complete recovery. He was treated with inhaled therapy for Chronic Obstructive Pulmonary Disease (COPD). On 3 May 2010 Dr Jones reported to Dr Marlton that there was no worsening of his previously noted exertional dyspnoea. He was admitted to hospital suffering pneumonia once in 2012. He was referred back to the respiratory clinic on 5 November 2014. The veteran had been “lost to follow up for two years”. At that time his main symptoms were severe exertional dyspnoea with effort tolerance of less than 50 metres on flat. His dyspnoea had progressively worsened in the last six years. For the last 12 months it had been very severe.
The veteran developed significant FILD between 17 November 2012 when a CT scan showed no significant pulmonary fibrosis and August 2014 when a CT scan demonstrated a significant worsening of the pulmonary fibrosis compared to the 26 February 2013 CT scan when the degree of pulmonary fibrosis was described as “mild”.[3] A chest x-ray report dated 30 December 2014 stated:
The heart is enlarged. There is advanced interstitial pulmonary fibrosis more marked on the right side. There could be some superimposed inflammatory changes in the right lung fields.
[3] Discharge Referral Note CT chest report dated 26 February 2013.
The veteran was admitted to hospital on 8 December 2014 with central chest pain with a recent history of left rib injury and chest infection being treated with oral antibiotics. The initial assessment was respiratory tract infection; chest infection. On 9 December 2014 a diagnosis of shingles was made and treatment commenced. He was to be weaned of his corticosteroid dosage. He was discharged on 10 December but readmitted on 15 December 2014 when the presenting problem was recorded as COPD.
A chest x-ray dated 2 January 2015 reported:
There is widespread interstitial pulmonary fibrosis as before.
Professor Presgrave wrote a letter to the representative of Mrs Delahunty dated 2 March 2016 in which he said the following:
·He was not looking after the veteran when he died. He last reviewed him in November 2014.
·His understanding was that the veteran was admitted with an exacerbation of chronic airways disease as well as community acquired pneumonia.
·He believed that he also suffered from pulmonary fibrosis.
Professor Presgrave then recounted the veteran’s history of NHL and concluded:
Although I cannot specifically comment on the severity of his lung condition my feeling is that it would have compromised his lung function and contributed to his death.
The Medico-Legal evidence
Dr Anthony Johnson – consultant thoracic physician
Dr Anthony Johnson, consultant thoracic physician, provided a report dated 15 March 2019 at the request of Mrs Delahunty’s solicitors. He also gave oral evidence. In his report, Dr Johnson concluded:
I consider his cause of death to have been due to sepsis from community acquired pneumonia on a background of COPD, pulmonary fibrosis and Non-Hodgkin’s lymphoma. His smoking habit would have contributed to this as it contributed to his COPD and to his pulmonary fibrosis. These conditions made it more likely for him to develop pneumonia and more likely to die from it.
He is reported as being exposed to asbestos. This may have caused his pulmonary fibrosis and again this would have contributed to his cause of death by increasing the likelihood of developing pneumonia and increasing the likelihood of dying from pneumonia once he developed it.
…
In response to questions posed by Mrs Delahunty’s solicitors, Dr Johnson wrote:
On the balance of probabilities his cause of death was pneumonia, complicating pulmonary fibrosis and COPD.
…
The veteran’s Non-Hodgkin’s lymphoma materially contributed to the veteran’s subsequent suffering of sepsis and hospital acquired pneumonia as it impaired his immune system making it more likely for him to acquire the pneumonia and more likely to die from it.
Associate Professor David McKenzie, respiratory and sleep physician
Associate Professor David McKenzie, respiratory and sleep physician, prepared a report dated 11 November 2019 at the request of the Commission’s solicitors. He also gave oral evidence.
The evidence of Associate Professor McKenzie was contentious in relation to what Mr Saunders described as his “going behind” the FILD SOP in relation to his consideration of the diagnosis of asbestosis and his argument that the FILD was probably caused by chemotheraphy and immunotherapy. That is not a matter going to the kind of death which is the issue with which I am concerned. Associate Professor McKenzie accepted that the veteran suffered FILD. He, in fact, supports the case Mr Saunders put forward in relation to the kind of death:
Mr Delahunty’s terminal illness appeared to be predominantly respiratory with an infective exacerbation of his underlying lung disease. At that stage the most significant lung disease was the pulmonary fibrosis. … Mr Delahunty would have been immunocompromised as a result of his underlying follicular lymphoma and, to some extent, the ongoing treatment with prednisolone. Both interstitial lung disease and COPD predispose to pulmonary infection.
Associate Professor Stephen Flecknoe-Brown, consultant physician and clinical pathologist
Associate Professor Stephen Flecknoe-Brown, consultant physician and clinical pathologist, wrote a report dated 21 September 2018 at the request of Mrs Delahunty’s solicitors, and gave oral evidence. He also wrote a letter dated 30 July 2020 which is not relevant to this preliminary decision.In his report, Associate Professor Flecknoe-Brown wrote:
The Veteran’s cause of death, on the balance of probabilities
The late Mr Delahunty died of a chest infection acquired during his stay in hospital. This was conditioned by the presence of chronic obstructive lung disease, which is a smoking-related illness. It is likely that his ability to clear his lungs was also compromised by the presence of fibrosing interstitial lung disease which had previously been confirmed on CT scan. Finally, the long history of Non-Hodgkin’s Lymphoma and the treatment that he received over the years for it had compromised his immune responses to bacterial infection, which is why it was listed as a substantial contributing cause of his death from sepsis.
…
3. Whether the veteran’s Non-Hodgkin’s Lymphoma caused or materially contributed to the veteran’s death?
Mr Delahunty died of complications of lung infection. Non-Hodgkin’s lymphoma suppresses immune function itself. The long course of corticosteroid medication that he had received for palliation of his symptoms further blunted his immune response to the infection. Thus, although the lymphoma did not directly cause his death, it materially contributed to the poor outcome from the chest infection because the ability of his immune system to fight the infection was impaired. His recurrent shingles is another manifestation of his immune-compromised state. (Emphasis added.)
4. Whether the veteran’s Non-Hodgkin’s Lymphoma caused or materially contributed to the veteran’s subsequent suffering of sepsis and hospital acquired pneumonia?
My response to this is as above. The hospital acquired pneumonia was due to the combination of chronic obstructive lung disease, pulmonary fibrosis, immobility in hospital and exposure to hospital related organisms. The lymphoma contributed significantly to the fatal outcome.
5. Whether any respiratory condition suffered by the veteran could have caused or materially worsened his Non-Hodgkin’s Lymphoma and subsequent sepsis and hospital acquired pneumonia.
The principal cause of the final infection on his lungs was his long-standing lung disease. Chronic obstructive lung disease results from chronic inflammation in the airways and leads to air trapping in the small air sacs. The air sacs in turn coalesce to become larger air sacs – emphysema. This air trapping in combination with the obstruction of the airways leads to an increased risk and frequency of chest infections – infective exacerbations.
Pulmonary fibrosis leads to inability to adequately expel sputum from the lungs, and so in turn but independently it also contributes to the development of chest infection. These were the two principal conditioning factors leading to the hospital-acquired pneumonia and death from sepsis. Again, the lymphoma contributed material to his poor response to infection but did not cause the infection.
Professor Richard Fox, Honorary Consultant, Department of Clinical Haematology and Medical Oncology
Professor Richard Fox, physician, wrote a report dated 3 November 2019 and gave oral evidence. In response to a question about the medical cause of the veteran’s death, Professor Fox wrote:
I would agree that his death was due to an infection, superimposed on his chronic interstitial fibrosis/emphysema.
He had been increasingly weak over that period, with increasing dyspnoea on exertion.
The background to his susceptibility to infection was his lymphoma, which would have been immunosuppressive. Hence both conditions contributed to his death.
Professor Fox was asked whether he agreed with Associate Professor Flecknoe-Brown’s opinions. He agreed with the answers 1, 3 and 4 set out above.
Professor Fox was incorrect when he stated that the death certificate stated pulmonary infection on a background of interstitial fibrosis on a background of diffuse large cell lymphoma.
Consideration
Mr O’Brien submitted that Professor Presgrave, Associate Professor Flecknoe-Brown and Professor Fox are not respiratory physicians and, I infer, therefore their opinions about COPD and FILD should be given little weight. He emphasised COPD as the significant lung condition rather than FILD.
I do not agree that such a finding can be made on the medical evidence, summarised above. The evidence of all the doctors, regardless of their speciality, supports findings that the kinds of death suffered by the veteran were:
·Sepsis
·Pneumonia
·COPD
·FILD and
·NHL.
If consideration is confined to the opinions of the respiratory physicians, Dr Johnson and Associate Professor McKenzie, the conclusion is the same.
THE KIND OF DEATH
The kinds of death suffered by the veteran were sepsis, pneumonia, chronic obstructive pulmonary disease, fibrosing interstitial lung disease and non-Hodgkin’s lymphoma.
The concession made by the Repatriation Commission is that the factor at clause 6(b) of the Statement of Principles concerning fibrosing interstitial lung disease No. 53 of 2013 is met.
The concession made by the Repatriation Commission did not include the terms of the decision that should be made. While that may have been implicit, I think it is appropriate to list this matter as soon as possible for a telephone directions hearing at a time convenient to the parties to address the future progress of the matter. If agreement is reached in the meantime, the appropriate document can be filed.
I certify that the preceding (forty) paragraphs are a true copy of the reasons for the decision herein of Mrs J C Kelly, Senior Member
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Associate
Dated: 3 December 2020
Dates of hearing: 13, 14 and 31 July 2020 Date final submissions received: 7 August 2020 Counsel for the Applicant: Mr T Saunders Solicitors for the Applicant: Kemp & Co Lawyers Solicitors for the Respondent: Mr B O'Brien, Moray & Agnew Lawyers
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