Fairweather and Repatriation Commission - [2002] AATA 916

DECISION AND REASONS FOR DECISION [2002] AATA 916

ADMINISTRATIVE APPEALS TRIBUNAL        Nº V2000/370
GENERAL ADMINISTRATIVE DIVISION
  Re:         HEATHER FAIRWEATHER
  Applicant
  And:       REPATRIATION COMMISSION
  Respondent

DECISION

Tribunal:       M.J. Carstairs, Member
Date:             11 October 2002
Place:            Melbourne
Decision:      The Tribunal affirms the decision under review.

(sgd) M.J. Carstairs
Member
VETERANS' AFFAIRS – widow's entitlement - amyloidosis – ischaemic heart disease - cigarette smoking – whether Statements of Principles satisfied - whether death war-caused
Veterans' Entitlements Act 1986 ss8, 120, 120A
Repatriation Commission v Deledio (1998) 83 FCR 82
Re Witten and Repatriation Commission (1998) 54 ALD 605
Repatriation Commission v Cornelius [2002] FCA 750

REASONS FOR DECISION

11 October 2002 M.J. Carstairs, Member

This is an application by Heather Fairweather (the applicant), widow of Edwin Fairweather (the veteran, for review of a decision by the Veterans' Review Board (the VRB) dated 11 January 2000. The VRB decision affirmed a decision by the Repatriation Commission (the respondent) dated 19 March 1998, that the veteran's death on 13 July 1997 was not related to his war service.
At the hearing, Mr A. Larkin of counsel, instructed by De Marchi & Associates, solicitors, represented the applicant. Mr A. Hall, an advocate with the Department of Veterans' Affairs, represented the respondent.
The Tribunal had before it the documents lodged under s37 of the Administrative Appeals Tribunal Act (the AAT Act). The Tribunal also had before it exhibits marked A1 to A6 for the applicant and exhibits marked R1 to R9 for the respondent.
BACKGROUND
The veteran died at the age of 72 on 13 July 1997. He served in the Australian Army from 28 March 1942 to 13 December 1945 with service in the South-West Pacific theatre of operations which is operational service under the Veterans' Entitlements Act 1986 (the Act).
The veteran's death certificate certified that he had died of systemic amyloidosis, renal failure, cardiac failure and peritonitis. Amyloidosis is a disorder that results from the abnormal deposition of amyloid protein in various tissues and organs of the body, which can result in abnormal functioning of the organs. The most commonly affected organs are the heart, kidneys, nervous system and gastro-intestinal tract (T7).
At the time of his death the veteran had no disabilities accepted as being related to war service. On 16 March 1998 the applicant made a claim for a war widow's pension for which it was necessary to have the veteran's death attributed to war service. On 19 March 1999 a delegate of the respondent rejected the claim. The applicant sought review of the decision. The decision was affirmed by the VRB after which the applicant sought review with this Tribunal on 30 March 2000.
EVIDENCE
The applicant had prepared two written statements dated 31 May 2001 and 25 September 2001 (exhibit A1) in which she set out that she met her husband in 1947 and they married in 1949. She said that her husband had commenced smoking during war service and ceased in 1984. She said that he smoked at work but never at home, but she did not know what quantity he smoked. He had suffered an electric shock on service, in which he was thrown backwards and injured his back, an injury, she said, that remained with him for life. The applicant said that the veteran had commenced to experience breathlessness from about 1989 and by the early nineties was unable to continue with gardening and home maintenance. They moved to a unit in 1992 to accommodate his limitations. She stated that he was diagnosed with amyloidosis in 1996.
In oral evidence the applicant said that the veteran had been active, but was restricted by the 1980s. Even earlier, when their children, born in 1952 and 1954, were in their mid-teens, he was unable to swim and surf with them. Although he was able to go to dances when he was in his late sixties, he would only dance one dance or part of a dance. In the last years of his life he had to be assisted to rise from a chair. He had once loved the surf but could do little surfing in his later years. The applicant said that they had a house at Torquay to which they would go four times a year. On his seventieth birthday, she said, he had gone in the water with his grandchildren and had ridden his bicycle but, from her evidence, these were clearly exceptions. She said that her husband complained little and made light of his back disability. But he was in pain and his sleep was disturbed by it.
In a written statement (T15), Mr A. Hoadley, who worked with the veteran at Turana juvenile detention centre for a number of years, stated that the veteran would regularly go outside to smoke though it was a clandestine puff and he was not a regular smoker.
In a written report dated 1 June 2001(exhibit R5), the veteran's general practitioner, Dr J. Erbrederis, stated that the veteran commenced regularly attending his practice in November 1996. Dr Erbrederis said that the clinical notes from the veteran's first attendance on 23 June 1996 indicated zero ischaemic heart disease.
In a written report dated 29 January 2002 (exhibit A6), Dr R.B. Collins, a consultant forensic pathologist, stated:
…
A photocopy of the ECG performed on the late Mr. Fairweather on 24/04/97 was received on 10th December, 2001 and this has been examined in conjunction with Dr. H. Mond, Cardiologist and Associate Professor, Department of Medicine, University of Melbourne.
The following are my additional comments.
1.    Quite simply, there is no robust evidence to support the diagnosis of amyloid involvement of the heart.
The abnormal findings on the ECG cannot be regarded as those of only amyloid infiltration and, indeed, the typical abnormality noted in an ECG performed on an individual who has amyloid deposition in this organ is diffusely diminished voltage – such is not present in this case.
It is incorrect to regard the deceased's ECG changes as being "indicative of amyloid infiltration" or to be completely diagnostic of it.
2.    In my view, the most appropriate and reasonable comments in relation to this ECG are that the features are non-specific, they are not diagnostic of amyloid disease and are consistent with having been produced as a result of coronary artery disease.
In this regard, therefore, a contribution to the death of the late veteran by ischaemic heart disease cannot be reasonably excluded.
3.    It is also important to emphasize that the only histological diagnosis for amyloid related to the oesophagus and it is unfortunate, to say the least, that a post-mortem examination was not performed in order to properly establish the extent of organ involvement and the cause of death.
…
Dr Collins said in oral evidence that the veteran's symptoms of renal failure, systemic amyloidosis and cardiac failure were established on clinical signs, and peritonitis was suspected prior to death. Dr Collins said that, in the course of his investigations, he had ruled out several possible connections between the veteran's death and precipitating factors. (These had been considered in his earlier written reports, at T11 and T12.) Dr Collins said he had confined the veteran's case, ultimately, to a consideration of whether there was a causal chain between smoking on service and the development of possible ischaemic heart disease, that may have contributed to the cardiac failure recorded on the death certificate.
Dr Collins based this line of investigation on an electrocardiogram (ECG) sought in April 1997 by Dr R. Hope, consultant physician, who was treating the veteran (transcript p4). The ECG report commented that the pattern was suggestive of past myocardial infarct, although Dr Hope considered that it was indicative of amyloid infiltration of the heart (exhibit R2). Dr Collins said that it was his view that in the veteran's case there were three possibilities: an ischaemic heart involvement that contributed to congestive cardiac failure which contributed to death; or amyloid involvement in the heart; or both. He said that the ECG, performed in April 1997, did not rule out amyloid involvement of the heart or ischaemic involvement, nor did it rule out a mixture of both. He said, further, that the ECG did not establish amyloid involvement of the heart. Dr Collins said that he referred the matter to his respected colleague, Dr H. Mond, cardiologist, for further opinion. Dr Mond, in a written report dated 19 December 2001(exhibit A5), said:
… I was asked whether the electrocardiograph is that of amyloid heart disease. The features as seen are non-specific and most certainly could have occurred in a patient with ischaemic heart disease and no amyloid involvement. Therefore the features are not diagnostic of amyloid disease of the heart and no further conclusions can be made.
Dr Collins confirmed in oral evidence that the only supportable hypothesis in the veteran's case that might suggest a link between his service and his death was the hypothesis reflected in his final report dated 29 January 2002 (exhibit A6). Dr Collins confirmed under cross-examination that breathlessness (as upon exertion) can be a symptom of amyloidosis, and said that there was no evidence that indicated that ischaemic heart disease was a stronger probability than amyloid involvement of the heart. Under cross-examination Dr Collins said that congestive cardiac failure, such as the veteran had prior to death, is common where there is amyloid involvement of either the heart or the kidney, but congestive cardiac failure can also be associated with ischaemic heart disease. Dr Collins said that symptoms of fatigue were consistent with a disease affecting the function of the heart. Dr Collins said, however, that it is possible to have asymptomatic ischaemic heart disease, which does not present with any signs or symptoms.
Dr Collins said that it was not possible to establish the clinical onset of ischaemic heart disease from a history of inability to manage household tasks and gardening, because asymptomatic ischaemic heart disease means that there are no clinical signs and symptoms. He said that two common causes of incapacity leading to inability to manage household tasks can be firstly, a disease of the respiratory system, and secondly, a disease involving the heart. In the veteran's case the latter may have been either ischaemia or amyloid.
In a written report dated 19 June 2001 (exhibit R8), Professor R. Cade stated the following:
…
1.     The cause of death?
        The patient undoubtedly died from systemic amyloidosis and its complications, as listed on the death certificate by his oncologist. This is because the amyloidosis was extensive and incurable, it had been confirmed histologically, its time-course was in accord with expectations, and his death occurred under specialist care in hospital.
2.     Could he have had ischaemic heart disease?
        There is no evidence to support or to refute a diagnosis of ischaemic heart disease in this patient. Any person of 73 years of age in our society could have silent coronary artery disease (or many other silent diseases). On the other hand, he had no clinical features of ischaemic heart disease and no indication for confirmatory investigation of this condition to have been performed.
3.     Can ischaemic heart disease be disproved beyond reasonable doubt?
        As indicated above, the diagnosis of ischaemic heart disease can no more be refuted than it can be supported. His known cardiac disease was shown echocardiographically to have been due to an infiltrative (or restrictive) cardiomyopathy. This is typical of amyloid involvement of the heart and is inconsistent with ischaemic disease as a cause of this condition. On the other hand, ischaemic heart disease could theoretically have also been present as an additional process, but this suggestion is speculation.
4.     If ischaemic heart disease was present, when was its clinical onset?
        There were no clinical features of ischaemic heart disease recorded. Ischaemic heart disease (if present) was silent, i.e. it had no identifiable clinical onset. As such, the requirements of Statement of Principles for Ischaemic Heart Disease (no. 140 of 1996) cannot be accommodated.
5.     Could ischaemic heart disease have contributed to death?
        Death was clearly due to the conditions described above and was thus expected. The terminal event was peritonitis (and thus sepsis) in a patient with advanced cardiac and renal failure due to an incurable disease. Under such circumstances, it is hard to see how any other condition could worsen an already deteriorated clinical state. Even if silent ischaemic heart disease had been present, any potential contribution to death would have to be speculative in concept and marginal in degree.
…
In a written report dated 6 June 2001 (exhibit R7), Professor R, Fox, Professor of clinical haematology and medical ontology at The Royal Melbourne Hospital, stated that the veteran died of amyloidosis that involved the heart and caused cardiac failure. In an earlier report, dated 25 January 2001 (exhibit R4), Professor Fox stated that amyloidosis results from the deposition of insoluble fibres and amyloid proteins in various organs and in the most common form of the disease there is no known cause. Professor Fox considered that there were no clinical grounds for a diagnosis of ischaemic heart disease and such a diagnosis was speculative. He said that there was no definable clinical onset of that condition.
In a written report dated 20 May 1997 (exhibit R2), Dr Newton Lee, consultant physician and haematologist at St Vincent's Hospital, stated:
Thankyou …for asking me to see this patient with recent onset cardiac failure due to primary amyloidosis … cardiomyopathy due to primary amyloidosis has a median survival of 6 months. Unfortunately there is really no effective treatment.

The report also noted that the diagnosis was based on oesophageal biopsy conducted in April 1997.
CONSIDERATION OF THE ISSUES

Section 8 of the Act, insofar as relevantly raised here, provides:
(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;
(b)the death of the veteran arose out of, or was attributable to, any eligible war service rendered by the veteran …
Section 120 of the Act provides:
(1) Where a claim under Part II for a pension in respect of the incapacity from injury or disease of a veteran, or of the death of a veteran, relates to the operational service rendered by the veteran, the Commission shall determine that the injury was a war-caused injury, that the disease was a war-caused disease or that the death of the veteran was war-caused, as the case may be, unless it is satisfied, beyond reasonable doubt, that there is no sufficient ground for making that determination.
…
(3) In applying subsection (1) or (2) in respect of the incapacity of a person from injury or disease, or in respect of the death of a person, related to service rendered by the person, the Commission shall be satisfied, beyond reasonable doubt, that there is no sufficient ground for determining:
(a)that the injury was a war-caused injury or a defence-caused injury;
(b)that the disease was a war-caused disease or a defence-caused disease; or
(c)that the death was war-caused or defence-caused;
as the case may be, if the Commission, 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 injury, disease or death with the circumstances of the particular service rendered by the person.
…
The provisions for dealing with the standard of proof in claims made after 1994 are to be found at section 120A(3):
…
(3) For the purposes of subsection 120 (3), a hypothesis connecting an injury suffered by a person, a disease contracted by a person or 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)a Statement of Principles determined under subsection 196B (2) or (11); or
(b)a determination of the Commission under subsection 180A (2);
that upholds the hypothesis.
The principles to be applied in cases where s120A applies were set out by the Full Federal Court in Repatriation Commission v Deledio (1998) 83 FCR 82 at 97 as a series of four steps.
Mr Larkin submitted that one of the causes of death was cardiac failure and that a reasonable hypothesis arose that linked the veteran's death, through the possible presence of ischaemic heart disease that could be related to smoking during service. He submitted that factor 5(e) of the SoP for ischaemic heart disease was met, namely
…
(e)where smoking has ceased prior to the clinical onset of ischaemic heart disease,
(i)smoking at least one pack year but less than five pack years of cigarettes or the equivalent thereof, in other tobacco products, and the clinical onset of ischaemic heart disease has occurred within five years of cessation; or
(ii)smoking at least five pack years but less than 20 pack years of cigarettes or the equivalent thereof, in other tobacco products, and the clinical onset of ischaemic heart disease has occurred within 15 years of cessation; or …
Mr Larkin submitted that the evidence supported that smoking commenced during service, after the veteran injured his back. While the veteran did not smoke at home, he continued to smoke at work. He submitted that it should be accepted, as surmised by Dr Collins's evidence, that ischaemic disease of the heart was present. He submitted that additional support for this could be drawn from Professor Cade's report where Professor Cade acknowledged that silent ischaemic heart disease might have been present.
Mr Larkin also submitted that the inability of the veteran to undertake more than mildly strenuous levels of physical activity for at least five years prior to the clinical onset of ischaemic heart disease in 1992 came within factor 5(h) of the Statement of Principles (SoP) for ischaemic heart disease:
…
(h)an inability to undertake more than a mildly strenuous level of physical activity for at least the five years immediately before the clinical onset of ischaemic heart disease;
Mr Hall submitted in regard to the hypothesis relating smoking to the development of ischaemic heart disease, that on the applicant's evidence the veteran commenced to smoke after he suffered an injury on service. He said that, although precluded from smoking at home, the evidence of Mr Hoadley (T15) was that the veteran was a regular, if light, smoker. Mr Hall submitted that the evidence suggested a 42-year history of smoking, commencing on service in 1942. He said that it was open on the evidence that the veteran had a history of smoking at least five pack years but less than twenty pack years of cigarettes (as set out in the SoP, which also defines pack year). As the veteran ceased smoking in 1984, Mr Hall submitted that, if the 5 pack years of smoking were established, the SoP required that the clinical onset of ischaemic heart disease occur within 15 years of cessation of smoking. He said that as the veteran died 13 years after the cessation of smoking, factor 5(c) might be established.
However, Mr Hall submitted that the difficulty was with clinical onset of ischaemic heart disease, as factor 5(e)(ii) requires that
5.…
(e)where smoking has ceased prior to the clinical onset of ischaemic heart disease,
…
(ii)smoking at least five pack years but less than 20 pack years of cigarettes or the equivalent thereof, in other tobacco products, and the clinical onset of ischaemic heart disease has occurred within 15 years of cessation; …

Mr Hall submitted that there was no evidence on which clinical onset could be established. Dr Collins's evidence was that there might have been clinically silent ischaemic heart disease. Mr Hall submitted that the Tribunal decision of Re Witten and Repatriation Commission (1998) 54 ALD 605 was authority for the proposition that clinical onset means the onset of symptoms with a medical practitioner would diagnose as attributable to the relevant condition.
In reaching its decision the Tribunal takes into account the written and oral evidence and submissions made at the hearing. The Tribunal has considered each of the steps in Deledio. In respect of the first step, the Tribunal finds, after taking into account all relevant material, that the material points to a hypothesis connecting the veteran's death with the circumstances of his particular service.
In respect of the second step, there was no dispute between the parties and the Tribunal finds that SoP Nº 38 of 1999 is in force. The relevant factors in the Instrument are factors 5(e) and 5(h). Both factors require as part of the hypothesis that clinical onset be pointed to by the evidence for the hypothesis to be reasonable.
The question of clinical onset of a disease has been considered recently by the Federal Court in Repatriation Commission v Cornelius [2002] FCA 750. The Court there said:
…
26 Before it could form the above opinion, the Tribunal was required to consider the meaning of the expression "clinical onset" as used in clause 5(a) of the SoP. The Tribunal accepted the appropriateness of the approach adopted by the Tribunal in Robertson v Repatriation Commission (AAT 12666, 2 March 1998), namely that:
"... there is a clinical onset of a disease, either when a person becomes aware of some feature or symptom which enables a doctor to say the disease was present at that time, or when a finding is made on investigation which is indicative to a doctor of the disease being present …"
…
28 The critical issue on this appeal is thus whether there was material before the Tribunal which pointed to the respondent becoming aware, within the period of thirty days from the time when he ceased to undertake the repetitive activities upon which his hypothesis relies, of some feature or symptom which enables a medical practitioner to say that the respondent had carpal tunnel syndrome at that time. Without any such material it cannot be said that the respondent's hypothesis fits the "template" to be found in clause 5(a) of the SoP. As is mentioned above, the specified maximum time period between the cessation of the repetitive activities and the clinical onset of carpal tunnel syndrome specified by clause 5(a) of the SoP is an element of the factors identified in clause 5(a).
The medical evidence was that if the veteran had ischaemic heart disease at all, it was clinically silent. Professor Fox's report stated that there was no definable clinical onset of that condition (exhibit R7). Professor Cade's report stated that there were …no clinical features of ischaemic heart disease … Ischaemic heart disease (if present) was silent, i.e. it had no identifiable clinical onset (exhibit R8). Dr Collins said that it was not possible to establish the clinical onset of ischaemic heart disease from a history of inability to manage household tasks and he said that asymptomatic ischaemic heart disease means that there are no clinical signs and symptoms. Dr Mond's report states only that the ECG in April 1997 did not serve to clearly identify amyloid involvement of the heart. He reports that the ECG is non-specific and this does not assist the applicant to identify ischaemic heart disease as being present. Therefore, it is not open to the Tribunal to find clinical onset, in the absence of clinical symptoms of the condition. There is no medical evidence of the condition being present which would enable a medical practitioner to say that the veteran had ischaemic heart disease.
For this reason, the Tribunal finds that the hypothesis connecting the condition with the circumstances of the particular service rendered by the veteran is not a reasonable one. The hypothesis does not fit, that is to say, is not consistent with the template to be found in the SoP as both factor 5(e) and 5(h) require clinical onset as part of the hypothesis. The third step in Deledio is not met and the claim relating the veteran's death to possible ischaemic heart disease and smoking on service must fail.
No SoP has been determined by the Repatriation Medical Authority in regard to amyloidosis: s120A(4). However, no hypothesis was raised that drew a connection between the veteran's war service and that condition as a cause of his death, as Dr Byron Collins's careful exploration of any causative connection had ruled this out.The Tribunal accepts, on the basis of Dr Collins's reports and the report of Professor Fox, stating that amyloidosis has no known cause, that no hypothesis is raised connecting the veteran's death with his war service.
DECISION
The Tribunal affirms the decision under review.
I certify that the thirty-five [35] preceding paragraphs are a true copy of the reasons for the decision herein of
M.J. Carstairs, Member
(sgd)       Catherine Thomas
              Clerk
Date of Hearing:  29 April 2002
Date of Decision:  11 October 2002
Counsel for the applicant:         Mr A. Larkin
Solicitor for the applicant:         De Marchi & Associates
Advocate for the respondent:     Mr A. Hall, Advocate with Department of Veterans' Affairs