Forbes and Repatriation Commission
[2004] AATA 423
•29 April 2004
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2004] AATA 423
ADMINISTRATIVE APPEALS TRIBUNAL )
) No V02/524
VETERANS' AFFAIRS DIVISION ) Re PAULETTE FORBES Applicant
And
REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Mr J Handley, Senior Member
Associate Professor J Maynard, MemberDate29 April 2004
PlaceMelbourne
Decision The Tribunal affirms the decision under review. (Sgd) J Handley
Senior Member
VETERANS’ ENTITLEMENTS – widows’ application – death by cerebral tumour – hypothesis of inability to obtain appropriate clinical management – deceased suffered headaches and trauma in service – pathology evidence of aggressive primary malignant tumour of short duration – decision affirmed
Veterans’ Entitlements Act 1986 (Cth) s 120(6)
Repatriation Commission v Deledio (1998) 83 FCR 82
Repatriation Commission v Hancock [2003] FCA 711
REASONS FOR DECISION
29 April 2004 Mr J Handley, Senior Member
Associate Professor J Maynard, Member1. The applicant applies as the widow of the late Jack Forbes who died on 24 May 1966. The cause of death was certified as “cerebral tumour – months”.
2. The Veterans’ Review Board (“the VRB”) decided on 5 February 2002 to affirm a decision made by the Repatriation Commission on 23 February 2001, when it was determined that the death of the late Mr Forbes was not related to service. By these proceedings, Mrs Forbes applies to review the decision made by the VRB.
3. Mr Forbes was a member of the Royal Australian Air Force between 8 April 1942 and 20 November 1944. Part of his service was in New Guinea and accordingly the whole of his service is “operational service” within the meaning of the Veterans’ Entitlements Act 1986 (“the Act”). At the time of his death, Mr Forbes did not have any illnesses, injuries or diseases accepted as war-caused. He had the conditions of neurasthenia and refractive error rejected as war-caused.
4. In a Statement of Facts and Contentions lodged prior to the commencement of the hearing, Mr De Marchi on behalf of the applicant submitted that a reasonable hypothesis existed between the service of the deceased and his death by regard to an opinion expressed by Dr Byron Collins, a consultant forensic pathologist, in a report of 30 August 2002. Dr Collins was of the opinion:
In my view, having regard to apparent incomplete investigations of the late veteran’s symptom of recurrent headaches whilst he was serving during the war and the absence of histological identification of the malignant brain lesion which could therefore not be excluded as being a slowly progressing primary tumour, there is a reasonable hypothesis linking his service and death through factor 5(c) in the Statement of Principles concerning Malignant Neoplasm of the Brain.
5. The Statement of Facts and Contentions further submitted, by reference to the T-documents disclosing the late veteran was discharged from service as “medically unfit” and by reference within the T-documents to the late veteran suffering persisting headaches during service, that factor 5(c) of Instrument No. 40 of 1999 was met.
6. Statement of Principles (“SOPs”) No. 40 of 1999 is entitled ‘”Malignant Neoplasm of the Brain”. Factor 5(c), being an “inability to obtain appropriate clinical management for malignant neoplasm of the brain”, records that the factor must exist as a minimum before it could be said that a reasonable hypothesis has been raised connecting malignant neoplasm of the brain and death with the circumstances of service.
7. Paragraph 6 of the Instrument provides that factor 5(c) applies:
. . . only to material contribution to, or aggravation of, malignant neoplasm of the brain where the persons’ malignant neoplasm of the brain was suffered or contracted before or during (but not arising out of) the person’s relevant service; paragraph 8(1)(e), 9(1)(e), 70(5)(d) or 70(5A)(d) of the Act refers.
8. In a Statement of Facts and Contentions lodged by the respondent prior to the commencement of the hearing, Ms Chant, an advocate with the Department of Veterans’ Affairs submitted (at paragraph 4.5):
The respondent submits that factor 5(c) of the Statement of Principles for Malignant Neoplasm of the Brain is not met in this case. The Applicant contends that during service the Veteran suffered from headaches, which could have been a slowly growing primary tumour, and was deprived of appropriate clinical management.
The Respondent submits that the effect of paragraphs 5(c) and 6 of the relevant Statement of Principles is that the Applicant would need to establish: (i) that the Veteran had suffered from malignant neoplasm of the brain prior to or on service; (ii) that the appropriate clinical management was available for malignant neoplasm at that time; (iii) that due to the particular circumstance of his service, the Veteran was deprived of clinical management for his malignant neoplasm of the brain; and (iv) that this deprivation led to a permanent worsening of the underlying disease (Repatriation Commission v. Yates (1995) 38 ALD 80).
9. The present application originated with a claim upon the respondent on 15 June 2001. At that time, Instrument No. 40 of 1999 was “in force”. Subsequent to the commencement of the hearing on 14 April 2003 (first day), the Repatriation Medical Authority (“RMA”) revoked Instrument No. 40 of 1999 and substituted Instrument No. 17 of 2003. That Instrument was issued on 29 May 2003. Accordingly during the assessment period there are two Statements of Principles with respect to malignant neoplasm of the brain. Nonetheless, factor 5(c) as it appeared in the former Instrument, is now identified (in identical terms) as factor 5(e) in the latter Instrument. Factor 6, save that it refers to factors 5(c) and 5(e) respectively, is unchanged.
10. At the commencement of the hearing there was some discussion between us and both representatives concerning the cerebral tumour suffered by the deceased. It appeared to us – having read a report from Mr J T Cummins dated 5 February 2003, that he had access to a report or a file from the Alfred Hospital where the late Mr Forbes had surgery in February 1966. Mr Cummins suggested that the tumour, which was then removed, was a “secondary carcinoma”. We enquired whether the material which was apparently made available to Mr Cummins would be lodged with the Tribunal and whether any further enquiry had been made as to whether in fact there had been a primary carcinoma and, if so, its location. Professor Maynard indicated to Mr De Marchi – and to Dr Collins who was present at the Tribunal – that in his experience it was likely that a report or other pathology information would be available in the Cytology Department of the Alfred Hospital. Dr Collins indicated that he had made enquiries at the hospital but had not been able to obtain any further information. We encouraged the parties to make enquiries at the hospital to explore and exhaust all possibilities of obtaining the information which was apparently available to Mr Cummins. Put another way, whilst it would appear that Mr Cummins had access to material in order for him to complete his report, we were at a loss to understand why that material was not available to Dr Collins or to us.
11. Rather than adjourn the hearing we decided to hear the evidence of Mrs Forbes and then adjourn to a date to be fixed to resume the hearing when the enquiries of Alfred Hospital had been completed. We also granted liberty to both parties to apply to recall Mrs Forbes in the event that any material from Alfred Hospital was located.
PAULETTE FORBES
12. Mrs Forbes gave evidence. She confirmed that she was the widow of the late Mr Forbes who died on 24 May 1966.
13. Mrs Forbes said that she first met her husband in 1940 which was prior to his enlistment. She said that he was then a “social smoker” but after he returned to Australia from service in New Guinea he smoked greater quantities of cigarettes. She said that “most of the time he was very nervy and when he would have the headaches he would light up a cigarette and it would relax him for a bit and then he would light another one and he seemed to smoke a lot more”. Thereafter she said that her husband continued to smoke cigarettes and purchase them in cartons. She said every room in their house contained an astray which she was forever emptying.
14. Mrs Forbes was then taken to her application for pension where at page 19 of the T-documents the question “Did the veteran ever smoke?” appears. The answer written against that question is “Not Known”. Another question, namely, “Did the veteran ever consume alcohol?” is answered with a tick in a box marked “No”. The “Yes” box was previously ticked but that had been erased. Mrs Forbes said that she did not complete that claim form and the handwriting is not hers. She did acknowledge that her signature appears at the conclusion of the form. She could not recall the form being completed or the person who completed it for her. Mrs Forbes said that her husband did consume alcohol prior to service but upon returning from New Guinea “he drank more, yes, he drank a good deal more”. She said that her husband drank beer and wine at lunchtime and during the evening meals.
15. Mrs Forbes said that her husband did not suffer from headaches prior to enlistment but upon returning from New Guinea he suffered headaches “continually”. She described the headaches as “violent” which had a duration of two or three days on an average of two occasions each week. She said her husband was also nauseous when he suffered headaches. She recalled that the cerebral tumour was diagnosed in February 1966 and upon admission to hospital, surgery was immediately performed.
16. In cross-examination Mrs Forbes said that her husband migrated to Australia in 1934 from Poland when he was 14 years of age. She said that he was concerned for members of his family who remained in Poland during WWII. Mrs Forbes also said that her husband was worried for his mother who had been ill following the loss of his father in 1933.
17. With respect to her husband’s service, Mrs Forbes said that her husband served in New Guinea and at Milne Bay. She said he was exposed to Japanese bombing raids which he had described as “sheer hell”. She said her husband was a mechanic who was required to repair aeroplanes that had been damaged and on one occasion he was struck “on the temple” by a “big bolt” which caused him to pass-out. She said on another occasion he was on board an aeroplane which crashed on take off during a test flight. On that occasion Mrs Forbes said that her husband was “thrown about” and “landed on his head”. She recalled that her husband had told her that he was “scared” and that “the continual bombing” would “drive them mad”. She said her husband was a nervous person after discharge, but not previously.
18. Mrs Forbes acknowledged that her husband had been examined on a number of occasions after discharge and had applied for life insurance. She said he was a truthful person and “a very straight man”. The applicant was then taken to a report of a medical examination conducted on 3 August 1955 when her husband applied for life insurance with AMP. At page 41 of the T-documents it is recorded that the late Mr Forbes had previously suffered with “migraine headache”. The migraine headache was described as “mild” and the last attack was recorded as having occurred in 1949. Mrs Forbes said that she was not “aware” that his headaches had ceased in 1949.
19. The applicant was then taken to a claim for pension upon the respondent made by her in October 1989 (page 57). In that application, Mrs Forbes recorded that the illnesses suffered by her husband comprised of “severe migraine, headaches, anxiety neurosis, severe depression, melancholia, cerebral turmour”. When asked to explain why, in her opinion, her husband’s service contributed to his death (page 59) she recorded:
My husband suffered with persistent severe headaches regularly all of his period of service and after discharge up until his death in 1966. He was discharged from the RAAF medically unfit because of neurasthenia which was determined to be the cause of his headaches. He also suffered from serious nervous irritability, constipation, anxiety neurosis, frontal sinusitis and generally was a very sick man. He was attended by several doctors – details are available in the departmental file dealing with my previous application and appeals.
Those records also indicate that my husband suffered a blow to the right side of his head near his eye from a piece of equipment. I clearly remember my husband telling me that he was hit in the region of his right temple by a large bolt following a blow out.
In my view this blow had to be the cause of the cerebral tumour which ultimately caused his death and thus his death was due to a war-caused injury…….. .
20. Mrs Forbes said that the content of that form was truthful, nonetheless she said that she “used the word neurasthenia because that is what they told me it was called but I don’t know what neurasthenia means anyway”. Mrs Forbes also said “I don’t know about nervous irritability. I can’t say yes to that. No I can’t confirm that”.
21. After service Mrs Forbes said that her husband was treated by Dr Rabinov and Dr Shatin. She said that he attended doctors “nearly every week” for treatment of his headaches. She said her husband was prescribed “headache tablets” but to her knowledge the cause of the headaches were not investigated.
22. In re-examination Mrs Forbes said that the claim form of 1989 found at page 57 of the T-documents was completed by a Mr Griffiths, who was an advocate with Melbourne Legacy. She said that the form is completed in his handwriting but she agreed that her signature appears at the conclusion of the form. She said that the information contained in the form was compiled by Mr Griffiths from her previous application forms.
23. With respect to the claim form at page 19 of the T-documents, (being the claim which was made upon the respondent and which was the genesis of these proceedings), Mrs Forbes said that the handwriting within the form is that of another person who she could not recall. Nonetheless she agreed that her signature appears at the end of that form. When asked whether the forms that had been prepared on her behalf were “true and correct” when she signed them, she said “I just took it for granted”.
24. Mrs Forbes could not recall the quantities of alcohol consumed by her husband after service but said that he was “very cheerful and bright”.
25. In answer to some questions from us, Mrs Forbes said that there were occasions when her husband did not suffer from headaches and on those occasions he would consume alcohol. She said there were “one or two weeks of every month after he was discharged from service that he did not have” headaches. She said that that pattern continued until he was admitted to hospital in 1966.
26. Mrs Forbes was also taken to a medical examination of September 1944 (page 3) where it is recorded that he suffered headaches “prior to enlistment, become worse in New Guinea”. Mrs Forbes initially acknowledged that her husband did suffer “headaches” but not “migraine”. When asked later about the contents of the form found at page 3, Mrs Forbes said she did not know about her husband having headaches prior to service.
27. With respect to the medical examination conducted in 1955 preparatory to obtaining life insurance from AMP, Mrs Forbes said that the only reason she could offer as to why her husband disclosed in 1955 that his last migraine headache was in 1949 was because “he wanted to get the insurance”.
28. Mrs Forbes was then taken to another AMP medical examination in 1957 (page 44) where Mr Forbes disclosed that the alcohol consumed by him was an “occasional beer”. When asked whether she could offer any reason why that information would have been provided Mrs Forbes said “to be accepted by the Society”. When asked whether she thought her husband may have been “a little bit careless in his answers” she said “a little, I think so”.
29. The hearing of the application resumed in Melbourne on 10 September 2003. Between the first day of hearing and resumption, attempts were made by the respondent to obtain records from the Alfred Hospital, including the pathology slides. The purpose of this enquiry was to identify the tumour suffered by the deceased and whether it was a secondary carcinoma, as was reported by the Assistant Medical Superintendent, Dr Evans in his report found at page 14 of the T-documents. It was learnt that specific enquiries made by the respondent from the Cytology Department of Alfred Hospital had proved unsuccessful.
30. On the morning of the resumption of the hearing (in fact at 6 minutes to 10am) the Registrar received a letter from the applicant’s solicitor notifying that another hypothesis was being advanced on behalf of Mrs Forbes. Relevantly that letter reads as follows:
……the evidence of the widow on 14 April, does leave open another hypothesis, and that is that the veteran, having been a smoker, and having continued to smoke all of his life may have been afflicted by a malignant neoplasm of the lung, which metastasized to the brain.
The SOP No. 35 of 2001 for malignant neoplasm of the lung factor 4 [sic] (a) for malignant neoplasm of undetermined histology which appears to be the case here, requires smoking of at least half a pack year of cigarettes, the smoking having commenced at least 5 years before the clinical onset of malignant neoplasm of the lung.
The applicant notes that Dr Peter Evans on 3 July 1975, page 14 of T-documents, that histological examination at the time revealed a malignant tumour, which was probably a secondary tumour.
So there is no confusion, we advise that the applicant will also be relying on this hypothesis at the resumed hearing today.
31. On the resumed day Mr De Marchi again appeared on behalf of Mrs Forbes and Mr Herman appeared on behalf of the respondent.
32. Mr De Marchi submitted that on the balance of probabilities the material presently lodged with the Tribunal supported the cerebral tumour as being a secondary carcinoma and the history of the deceased smoking cigarettes “supports the likelihood of a primary tumour being smoking related”. He said the deceased’s lungs were the “more likely site for smoking for the smoking related tumour” and to that extent he relied on factor 5(a) of Instrument No. 35 of 2001. As an extension of this hypothesis, it was submitted that the consumption by the deceased of cigarettes could be related to his service. It followed – according to this submission – that whilst it was “equally likely” that the primary tumour was in a site other than the deceased’s lungs, the widow, whilst not being required to “prove anything” pursuant to s120(6) of the Act, should be given the “benefit of the doubt” and a beneficial interpretation of the evidence should be made in her favour.
33. Mr Herman submitted that whilst Dr Evans in his report at page 14 had reported that the cerebral tumour was secondary in nature, it was impossible to identify the primary site. This was because other pathology and other clinical data was no longer available and the applicant was in the circumstances unable to establish any reasonable hypothesis connecting a secondary cerebral tumour with a primary tumour elsewhere. He submitted that there were no raised facts pointing to the deceased’s lungs being the primary site, or indeed any other site.
DR BYRON COLLINS
34. Dr Collins is a consultant pathologist who provided a report at the request of the applicant’s solicitor on 30 August 2002.
35. In his report Dr Collins provided an opinion based on the limited clinical data available to him. In paragraph 4 of that report he concluded:
I agree with what Dr. Wodak is implying in part of the last paragraph of his report, namely that primary malignant tumours of the brain usually pursue a considerably shorter time course from clinical diagnosis to death, than appears in this case. However, there are some types of tumours with low proliferative activity, such as gangliogliomas, which may be present for “decades” prior to diagnosis. The presence of headaches in this matter does not necessarily preclude a slowly developing tumour.
36. Dr Collins concluded that despite the absence of histological identification of the brain tumour and the “incomplete” investigations of the deceased’s symptoms of recurring headaches, he was satisfied that a reasonable hypothesis existed connecting service with a “slowly progressing primary tumour” satisfying factor 5(c) in the Statement of Principles for Malignant Neoplasm of the Brain.
37. In evidence, Dr Collins said that if the deceased had been presenting with headaches, a neurological examination would have been appropriate. He said that angiography was not available in Melbourne until the 1960’s but plain x-ray had been available from the 1940’s. He said that it would have been reasonable for the deceased to have undertaken a “skull x-ray”.
38. With respect to the new hypothesis raised on the morning of the resumed hearing, Dr Collins noted that the deceased was a “social smoker” prior to service and a persistent smoker after service. He said that any link between the cerebral tumour (if it was secondary) and a primary site would most likely be the deceased’s lungs. He relied on a statement produced by the Disability Compensation Branch of the Department of Veterans’ Affairs in their publication No13 of 2000 entitled “Metastatic Neoplasms Primary Site Unknown”. That document records that there would be “an approximate likelihood” of 70% that the lung would be the primary site for a metastatic brain tumour.
39. In cross-examination Dr Collins said that it would not be unreasonable to find that the brain tumour was primary. This was because of his opinion that the tumour could have been a ganglioglioma which is always of primary origin, is slow growing, and would be consistent with the deceased’s history of headaches.
40. With respect to opinions expressed by Mr James Cummins, a consultant neurosurgeon, who provided an opinion for the respondent dated 5 February 2003, Dr Collins agreed that a “working diagnosis” of neurasthenia would be reasonable being a condition describing headache where no organic cause has been identified. He said this diagnosis could only be made after organic causes had been excluded. He acknowledged that the deceased may have been predisposed to headache – whether of a tension or migraine type – by reason of being concerned about his mother’s health and having served in a theatre of war.
41. Dr Collins confirmed the opinion he expressed in his evidence in chief that by reason of the deceased being a smoker and the possibility of the cerebral tumour being secondary in nature, a hypothesis could be made out that the primary site was the deceased’s lungs. Nonetheless, he agreed that there was nothing which pointed to the lungs as being the site of a primary cancer.
JAMES CUMMINS
42. In his report of 5 February 2003, Mr Cummins acknowledged the documented material which had been made available to him and concluded:
In reply to your questions I would say that there are many possible causes for Mr Forbes’ headaches while on service and the most likely of course would be anxiety or (tension). The long period of frequent intense headaches is more consistent with such a diagnosis than a cerebral tumour. There are many other possible causes including the unlikely presence of a malignant brain tumour which would have had to be dormant (according to the AMP examinations) for many years up until just prior to the death of Mr Forbes.
43. With respect to the hypothesis advanced by the applicant that her husband was not given appropriate clinical management, Mr Cummins reported:
Given the symptoms on service I think that the appropriate management was given. You must remember that it was not until the 1960s that the simple brain scan with radioactive material came into use. Angiography would not have been standard treatment. I doubt if a detailed neurological examination was appropriate. More than likely appropriate neurological examination was made given the qualifications of the treating doctors.
I doubt if investigations in the time of Mr Forbes’ war service would have shown the tumour.
44. In evidence Mr Cummins said that in his opinion the cerebral tumour was likely to be secondary in nature and the most likely diagnosis was a malignant epithelial tumour. He held this opinion because of the reference in the report of Dr Evans at page 14 of the fluid aspirated at surgery being “foul”.
45. With reference to the material made available by Dr Collins from the Department of Veterans’ Affairs, Mr Cummins agreed that there was an approximate likelihood of 70% of the lung being the primary site of a cerebral tumour.
46. In cross-examination Mr Cummins said if the deceased had suffered from a ganglioglioma it would not have been seen on plain x-ray. He said a tumour of that type is “a tumour of childhood” and could not be observed in an adult because of skull thickness. It followed therefore that if the deceased did suffer from a ganglioglioma it is more likely that it would have established before adolescence.
47. With respect to the hypothesis initially advanced in this review namely, the inability of the deceased to obtain appropriate clinical management, Mr Cummins said that angiography was available in Melbourne from the late 1950’s.
FURTHER INVESTIGATIONS AT ALFRED HOSPITAL
48. Before the commencement of Dr Byron Collins giving his evidence, Professor Maynard made a telephone call to Professor John Dowling in the Pathology department at the Alfred Hospital. Enquiry was directed towards whether the pathology slides in the Cytology department were still available and whether an autopsy was performed upon the deceased. When the hearing resumed we notified both representatives that this enquiry had been made and that Professor Dowling had indicated to Professor Maynard that he would telephone him immediately after he had made his enquiries.
49. At the conclusion of the evidence from Mr Cummins, Professor Dowling had not telephoned Professor Maynard and the hearing was adjourned upon the basis that we would report to both parties in writing of the outcome of the enquiries made by Professor Dowling. Subject to his advice, we would then either call for written submissions or would grant leave to both parties to resume the hearing.
50. Shortly after the hearing concluded, Professor Maynard received a telephone call from Professor Dowling who confirmed that pathology slides had been located in the Cytology department at the Alfred Hospital and that he would review the slides and prepare a report.
51. We decided that in those circumstances the Registrar should write a letter to Professor Dowling requesting a report and that a copy of the letter and the reply (when received) would be made available to the parties.
52. On 26 September Professor Dowling wrote to the District Registrar and provided a report in the following terms:
1.We have searched the post mortem records at the Alfred Hospital and can find no record that a post mortem was performed on this patient.
2.We have had the opportunity to review the original biopsy sections of February, 1966 brain biopsy and have been able to perform special immunohistochemical studies on the tumour (these studies were not available at the time of the biopsy). The sections reveal a highly malignant neoplasm; the consensus of opinion of another colleague and myself, is that it is a highly malignant primary brain tumour, probably a gliosarcoma or, less likely, a meningiosarcoma (malignant meningioma). This interpretation of gliosarcoma is supported by the finding of strongly positive cells within the tumour that stain with the protein glial fibrillary acidic protein (GFAP). This strongly suggests that neural components form part of the lesion at least. Thus in my opinion the lesion is a primary central nervous system origin. It is usual for a neoplasm with this pattern of morphology to be highly aggressive and to have been present for only a short time prior to the patients death. However it is certainly possible that this pattern of malignant brain tumour can evolve from more benign lesions over a long period of time. There is no clear indication in the sections available of a more benign element to the tumour; this could well have been obliterated [sic]
by the expanding nature of the more malignant appearing lesion. Thus I believe that no clear indication as to the duration of this neoplasm can be given conclusively. I hope these comments are of some assistance to you.
53. A copy of that report was forwarded to the representatives of both parties. Directions Hearings were subsequently convened and ultimately the parties agreed that the matter could conclude by each of them lodging any further reports upon which they wished to rely and written submissions.
54. Mr Cummins wrote a report on 5 November 2003 which states:
I refer to your letter dated the 24th of October 2003.
I note that the brain tumour from which Mr Jack Forbes died was a primary brain tumour of a highly malignant nature, probably a gliosarcoma and I agree with the opinion of Professor John Dowling that it is usual for such a tumour to have been present only a short time prior to the patient’s death.
It is highly unlikely that Mr Forbes had an intracranial tumour prior to the development of this malignancy, particularly during the time of his service.
The tumour suffered by Mr Forbes falls within the definition of “malignant neoplasm of the brain” in the Statement of Principles.
Had Mr Forbes developed a malignant brain tumour during his service treatment would have been available at the time, though this treatment may not have been as effective as that today.
55. Mr De Marchi lodged a report from Dr Collins of 19 December 2003 which states:
Following my telephone discussions with you yesterday concerning my letter dated 28th November, 2003 it is my view that, having regard to the information currently provided in this matter, it could not be excluded that the late veteran’s malignant brain lesion was derived from a ganglioglioma.
The letter from Dr Collins to Mr De Marchi of 28 November 2003 (referred to in his report of 19 December 2003) has not been lodged.
56. The entirety of the final submissions lodged by Mr De Marchi are reproduced as follows:
A further report received from Dr Byron Collins dated 19 December 2003 is annexed hereto.
Dr Collins is still of the view that the original tumour was a slow growing one, was poorly diagnosed and treated, and therefore the late veteran was not given the appropriate treatment for it.
It is submitted that Mrs Forbes is entitled to be paid the War-Widow’s pension and that the late veteran’s tumour and his death resulting from the tumour should be regarded as being war-caused pursuant to s.8 of the Veterans’ Entitlements Act 1986, and pursuant to s120A.
There is in force a Statement of Principles that upholds the reasonableness of the hypothesis.
57. Mr Douglass on behalf of the respondent provided comprehensive and well researched submissions on 19 January 2004. We are substantially in agreement with those submissions and it is our view that the decision under review should be affirmed.
CONCLUSIONS AND REASONS FOR DECISION
58. In Repatriation Commission v Hancock [2003] FCA 711, Selway J adopted the legal principals pronounced in Repatriation Commission v Deledio (1998) 83 FCR 82 but added that there were “at least two extra steps before step 1 of the Deledio methodology” (refer paragraph 9). His Honour decided that it was necessary to make a finding that the applicant was a widow of a veteran who had died. Those issues in the present application are self evident and beyond controversy. The second issue was to identify “the kind of death” in order to ascertain whether a SOP existed. His Honour decided that the “kind of death” is to be determined on the balance of probabilities.
59. Professor Dowling in his report from the Alfred Hospital (refer earlier) concluded that the studies conducted upon the biopsy sections revealed a highly malignant neoplasm. With the assistance of another colleague Professor Dowling concluded that the neoplasm was “a highly malignant primary brain tumour, probably a gliosarcoma or less likely a meningiosarcoma (malignant meningioma)”. He concluded that the lesion was of “primary central nervous system origin” and in his experience “it is usual for a neoplasm with this pattern of morphology to be highly aggressive and to have been present for only a short time prior to the patient’s death”. Mr Cummins agreed with the opinion of Professor Dowling that the brain tumour was probably a gliosarcoma and that it would have been present for a short time prior to death.
60. We acknowledge that Professor Dowling conceded that it was “possible” that the tumour observed could have evolved from “more benign lesions over a long period of time”. There was however “no clear indication in the sections available of a more benign element to the tumour; this could well have been obliterated by the expanding nature of the more malignant appearing lesion”. He concluded “no clear indication as to the duration of this neoplasm can be given conclusively”.
61. On balance we are satisfied that the opinions expressed by Professor Dowling and Mr Cummins indicate that the late Mr Forbes suffered from a primary brain tumour, probably a gliosarcoma being of primary central nervous system in origin which would have been present for only for a short time prior to the death of the late Mr Forbes.
62. The opinion expressed by Dr Collins in his brief report of 19 December 2003 (refer earlier) is disappointing. It does not acknowledge the opinions expressed by Professor Dowling. Additionally it does not even acknowledge the existence of the biopsy sections which were located by Professor Dowling and over which he formed his opinion. The conclusions reached by Dr Collins in his report of 19 December 2003 at best amount to the possibility of the malignant lesion to have derived from a ganglioglioma. The basis for this opinion is unclear particular in the apparent absence by him of a reference to the biopsy sections which were located. We again express our concern that the letter he apparently wrote to the applicant’s solicitor on 28 November 2003 was not lodged.
63. It follows therefore that having regard to our above findings that the gliosarcoma would have been present for a short time only prior to death. The certified cause of death was “cerebral tumour/months”. We have concluded on the probabilities that the tumour would not have been present prior to or during enlistment.
64. Therefore, applying the Deledio principals, we are satisfied that step 1 exists only to the extent that a hypothesis has been raised. The step 2 is also satisfied to the extent that a SOP is in force.
65. We are of the view that the application fails at step 3 because the hypothesis raised is not reasonable. We are of the view that it is not reasonable because it is not consistent with the template found within the SOP’s existing within the assessment period being the identical factors 5(c) and 5(e) respectively. We are unable to conclude that the factors exist as a minimum and having regard to the duration of the tumour, as we have found above, we could not conclude that it is related to the service of the deceased.
66. Additionally the factor in issue is the inability to obtain appropriate clinical management for a malignant neoplasm. Factor 6 provides that factor 5(c) (or 5(e)) applies if the neoplasm was suffered before or during service and that service materially contributed to or aggravated the neoplasm. This issue can be dealt with as follows:
i)the tumour, as described and decided above was of recent origin and aggressive in nature. On the probabilities, it did not exist before or during service;
ii)even if the tumour did exist before the 1960’s – a fact we dismiss on the probabilities, it could not have been treated because angiography did not exist. Therefore, if appropriate clinical management for such a tumour did not exist, there cannot be any inability to obtain it.
67. Additionally we have concluded that the alternative hypothesis which was advanced by the applicant immediately prior to the second day of the hearing must also fail. We cannot conclude as a probability that the cerebral tumour suffered by the deceased was secondary to a primary lung tumour, having its origin in cigarette smoking which in turn had its origin in service. Again we note the comments of Professor Dowling that the observation by him of the biopsy sections indicated a highly malignant primary brain tumour being of primary central nervous system origin. The use by him of the word “primary” clearly indicates that the cerebral tumour was not secondary to a primary tumour existing elsewhere. We also note from the evidence of Dr Collins that he conceded that he could find nothing which pointed to the deceased’s lungs as being the primary site of a tumour.
68. Accordingly the decision under review is affirmed.
I certify that the 68 preceding paragraphs are a true copy of the reasons for the decision herein of
Mr J Handley, Senior Member and
Associate Professor J Maynard, MemberSigned: Holly Weston
AssociateDates of Hearing 14 April and 10 September 2003
Date of Decision 29 April 2004
Solicitor for the Applicant Mr D De Marchi
Departmental Advocate Mr R Douglass
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