Ellercamp and Repatriation Commission
[2000] AATA 581
•14 July 2000
DECISION AND REASONS FOR DECISION [2000] AATA 581
ADMINISTRATIVE APPEALS TRIBUNAL )
) No N1999/1263
VETERANS' APPEALS DIVISION )
Re Patricia ellercamp
Applicant
And REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Senior Member M D Allen
Date14 July 2000
PlaceSydney
Decision The decision under review is affirmed.
(Sgd) M D ALLEN
..............................................
Senior Member
CATCHWORDS
VETERANS' ENTITLEMENTS - Widow's claim. Death from brain tumour. Actual cause of death bronchopneumonia caused by brain tumour. Hypothesis that chronic bronchitis contributed to bronchopneumonia and hence death not reasonable.
Veterans' Entitlements Act 1986 - s8, s15, subss120(1) and (3), s120A
Doolette v Repatriation Commission 21 ALD 4
Repatriation Commission v Bendy 10 AAR 323
Treloar v Australian Telecommunications Commission 26 FCR 316
REASONS FOR DECISION
14 July 2000 Senior Member M D Allen
By application received 19 August 1999 the Applicant sought review of a decision by the Respondent made 6 February 1997 and affirmed by a Veterans' Review Board on 2 July 1999 that the death of her late husband, John Antin Ellercamp, was not related to his service as an Australian mariner during the Second War World.
The Deceased died on 13 December 1996, the certified cause of death being a brain tumour (astrocytoma).
The Applicant brings her claim pursuant to s13 of the Veterans' Entitlements Act 1986 (as amended) (the VEA) which reads inter alia:
"(1) Where:
(a) the death of a veteran was war-caused;
…
the Commonwealth is, subject to this Act, liable to pay:
(c)in the case of the death of the veteran – pensions by way of compensation to the dependants of the veteran; …"
Paragraph 8(1)(b) of the said Act provides that the death of a veteran shall be taken to have been war-caused if it arose out of, or was attributable to, any eligible war service rendered by the Veteran.
As, in this case, the late Veteran had operational service pursuant to s6B of the VEA, the Applicant is entitled to the reverse standards of proof provided by ss120(1) and (3) of the VEA. That is to say that the Tribunal shall determine that the death of the Deceased was war-caused unless it is satisfied beyond reasonable doubt that there is no sufficient ground for making that determination. The Tribunal will, however, be satisfied beyond reasonable doubt that the death of the Deceased was not war-caused if, after a consideration of the whole of the material before it, it is of the opinion that the said material does not raise a reasonable hypothesis connecting the death of the Deceased with the circumstances of the particular service rendered by him. Subsection 120(6) of the VEA provides that no party to this review bears any onus of proof.
As the Applicant's claim was lodged with the Respondent post 1 June 1994, s120A of the VEA provides that a reasonable hypothesis can only exist if it conforms with a so-called Statement of Principles.
The relationship of the various requirements as to standard of proof in claims such as the current Applicant's was set forth by the Full Court of the Federal Court in Repatriation Commission v Deledio 83 FCR 82. At p97 the court said:
"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. No question of fact finding arises at this stage. If no such hypothesis arises, the application must fail.
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. The hypothesis raised before it must thus contain one or more of the factors which the Authority has determined to be the minimum which must exist, and be related to the person's service (as required by ss 196B(2)(d) and (e)). If the hypothesis does contain these factors, it could neither be said to be contrary to proved or known scientific facts, nor otherwise fanciful. If the hypothesis fails to fit within the template, it will be deemed not to be 'reasonable' and the claim will fail.
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, or in the case of a claim for incapacity, that the incapacity did not arise from a war-caused injury. If not so satisfied, the claim must succeed. If the Tribunal is so satisfied, the claim must fail. It is only at this stage of the process that the Tribunal will be required to find facts from the material before it. In so doing, no question of onus of proof or the application of any presumption will be involved."
In this matter the hypothesis contended for by the Applicant was that the Deceased developed bronchopneumonia approximately four days prior to his death and that a contributing cause to this bronchopneumonia was the Deceased's chronic bronchitis. The chronic bronchitis having been caused by his service as an Australian mariner by medium of a war-caused smoking habit, it can thus be said that the death of the Deceased was attributable to the said service.
In Doolette v Repatriation Commission 21 ALD 489 O'Loughlin J stated at p492:
"… if death is hastened because of the accelerated progress of a disease, which acceleration was itself caused by a war-caused condition, the proper conclusion would be that death was attributable to war service:"
Support for the hypothesis sought to be raised by the Applicant is to be found in the report of Dr Miller, Consultant Physician, which occurs at Document T33 of the documents prepared for the Tribunal pursuant to section 37 of the Administrative Appeals Tribunal Act 1975. After stating at page 1 of his report:
"According to the smoking questionnaire on page 14 he (the Deceased) commenced smoking in 1941 and continued smoking 25 cigarettes a day post-war until 1985 (sic). This equates with 55 pack-years of cigarette consumption."
at page 2 of his report, Dr Miller states:
"Dr Gordon attributed the chest infection to the cerebral tumour but, in my opinion, Mr Ellercamp's chest infection was not caused by the cerebral tumour but complicated this. In my opinion, based on Dr Gordon's report and the history given to me by Mrs Ellercamp, who is a trained nurse, there is a reasonable hypothesis that Mr Ellercamp commenced the chest infection as early as the 9th December 1996, four days prior to his death and that this chest infection, most probably a bronchopneumonia, accelerated Mr Ellercamp's inevitable death. …"
Exhibit R3 in these proceedings are the clinical notes of the Deceased's treating general practitioner, Dr Gordon. At page 51 of the exhibit there is a copy of a letter sent by Dr Gordon to the Applicant's representatives. That letter reads:
"On 9/12/96 I applied for overnight nursing for his deteriorating condition.
You will see that I asked them to monitor his condition & also his dyspnoea (difficulty breathing).
On 13/12/96 he had a high fever & signs of severe respiratory infection. Due to the fact that he had a brain tumour no further treatment was appropriate."
It will be recalled that the Deceased died on 13 December 1996.
In evidence to the Tribunal Dr Miller stated that, in his opinion, the cause of death was bronchopneumonia and cerebral tumour. Bronchopneumonia being the main cause of death and contributed to by cerebral tumour. He then added, however, that "bronchopneumonia is the mechanism by which death occurred". Dr Miller adhered to his opinion that the Applicant had a chronic bronchitis which contributed to his bronchopneumonia.
Professor Levi is the Director of the Department of Medical Oncology at the Royal North Shore Hospital and Clinical Professor of Medicine at the University of Sydney. He reviewed the history of the Deceased and stated that the death of the Deceased was caused by the progression of his brain tumour. He agreed with comment by Dr Miller that bronchopneumonia was the mechanism by which death occurred and stated that the course of the Deceased's illness, particularly the resultant bronchopneumonia, was a typical course for suffers of astrocytomas.
In his report which was Exhibit R2, Professor Levi stated:
"With regards to the question of Mr Ellercamp's bronchopneumonia as his terminal event from 9-13/12/96, it would appear from the information available that as Mr Ellercamp's condition progressively deteriorated, he developed bronchopneumonia which was the final event in his history resulting in death. This would be entirely consistent with the terminal situation in a patient with progressive glioblastoma multiforme with increasing weakness and inability to get out of bed resulting in respiratory tract infection and death. There is no information available to me to indicate that Mr Ellercamp had previous bronchitis or other respiratory conditions. It is noted of course that Mr Ellercamp was a heavy smoker from 1942 until 1988."
Evidence was given by the Applicant as to the Deceased's smoking habits and to the fact that he stopped smoking in 1988. She also gave evidence as to his shortness of breath, his having a so-called "smoker's cough" and that he produced phlegm as a result of his morning cough. Contrary to what is recorded in Dr Miller's report, the Applicant stated that she did not know how much phlegm he brought up in the morning as the Deceased did that in the bathroom and she did not intrude.
Notwithstanding the Applicant's evidence in this regard and the opinions of Dr Miller, there is no evidence in the documentary material which has been made available to me in these proceedings which indicates that the Deceased either had chronic bronchitis or emphysema, or that he was ever investigated for that condition.
At page 95 of the section 37 documents are notes made regarding the Deceased when he was admitted to Belmont District Hospital on 21 September 1996. The diagram and notes at page 95 indicate that the Deceased's chest was "clear". At page 39 of Exhibit R3 is a report by Dr Christie, Neurosurgeon, which states:
"His general health seems to be good. He gave up smoking about eight years ago."
At page 36 of Exhibit R3 is a report dated 29 October 1996 by Dr Kevin Grant, Consultant Physician and Geriatrician. He also notes:
"Apart from being hypertensive and having chronic osteomyelitis of his right hip for the last 40 years, he has been well and active playing golf regularly."
Although Professor Levi conceded that given his smoking history the Deceased would probably have had some degree of chronic bronchitis, I am more persuaded by his further comment that any chronic bronchitis was not a major factor in the Deceased's general health as at no time had airflow ever been measured. I also refer to the reports above from the physician and neurosurgeon who examined the Deceased and they apparently saw no reason to comment on any respiratory distress.
Having regard to the reports I have referred to above together with the notes by Dr Gordon, together with Dr Gordon's report of 1 July 1998 to the Applicant's representatives, I am not reasonably satisfied that the Deceased did in fact have a chronic bronchitis.
Even if the Deceased did have a chronic bronchitis, I am satisfied that it made no contribution to his death.
I am satisfied on the balance of probability that even if the Deceased did have a chronic bronchitis, any hypothesis that it contributed to his death is not a reasonable hypothesis.
In Treloar v Australian Telecommunications Commission 26 FCR 316 the Full Court of the Federal Court discussed what is necessary in order to say that a condition has contributed to an illness or disease for the purposes of the Compensation (Commonwealth Government Employees) Act 1971. In that particular case they discussed the decision of Davies J in Repatriation Commission v Bendy 10 AAR 323. There his Honour said, after citing various workers' compensation cases:
"In each case, the reference to materiality serves to make it clear that the contribution required is a contribution of a causal nature, that a contribution which is de minimis, which did not influence the course of events or which is so tenuous as to be immaterial is to be ignored. The term material is here used not in the loose sense set out in definition 12 of the Macquarie dictionary, namely, of substantial import of much consequence but rather in its legal sense of pertinent or likely to influence."
The court went on to say in Treloar's case that for a contribution all that is required is that the relevant aspects of the employment add their measure to the creation of the condition, its aggravation, or acceleration. They must in truth be part of the cause. If they are not, then, they do not "contribute".
Similar principles apply in this matter. Although it has been urged that the Deceased's chronic bronchitis contributed to his death I am convinced, on the evidence of Professor Levi and indeed the evidence of Dr Miller, that any contribution which it made was truly de minimis and did not in reality effect the course of events. The death of the Deceased was caused by a brain tumour and the resultant bronchopneumonia was the mechanism by which death occurred. Bronchopneumonia occurred because of debility and incapacity caused by the brain tumour and any influence by a chronic bronchitis, if such a condition did in truth exist, was immaterial to the course of events. As pointed out by Professor Levi, the Deceased's mode of dying was typical of suffers with his condition.
As I am satisfied on the balance of probabilities that no reasonable hypothesis exists connecting the death of the Deceased with his service as a Australian mariner, it is not necessary for me to go further and ascertain whether that hypothesis fits within the "template" of any Statement of Principles. I will only note for completeness sake that it is conceded by the Respondent that no Statement of Principles exists relating to bronchopneumonia, it being regarded as a temporary departure from normal physiological state – see the definition of disease in s5D of the VEA. The Statement of Principles regarding chronic bronchitis is No 136 of 1996.
For the reasons above, the decision under review is affirmed.
I certify that the 25 preceding paragraphs are a true copy of the reasons for the decision herein of:
Senior Member M D Allen
Signed: .....................................................................................
AssociateDate of Hearing 10 July 2000
Date of Decision 14 July 2000
Solicitor for the Applicant Ms E Sadleir, Legal Aid Commission
Advocate for the Respondent Mr P Godwin, Department of Veterans' Affairs
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