Fuss and Repatriation Commission
[2002] AATA 777
•5 September 2002
DECISION AND REASONS FOR DECISION [2002] AATA 777
ADMINISTRATIVE APPEALS TRIBUNAL )
) No N2001/1693
VETERANS' APPEALS DIVISION )
Re Dulcie Fuss
Applicant
And Repatriation Commission
Respondent
DECISION
Tribunal Mr RP Handley, Deputy President Dr MEC Thorpe, Member
Date5 September 2002
PlaceSydney
Decision The Tribunal affirms the decision under review.
..............................................
RP Handley
Deputy President
CATCHWORDS
REPATRIATION COMMISSION – Veteran's Entitlement – claim for disability for war-caused injury or disease – death from metastatic carcinoma of unknown primary site – adeno-carcinoma – primary site possibilities – whether there was a reasonable hypothesis connecting the disease to the veteran's war service – necessity to have reference to a Statement of Principles if applicable – facts associated with the hypothesis to be disproved beyond reasonable doubt – held that the hypothesis is too speculative and remote – death was not war-caused – decision of the Respondent affirmed.
Veterans' Entitlements Act 1986 ss 9(1), 13(1), 120(1)(3)(4), 120A,
Statement of Principle Instrument No 67 of 1997 as amended by Statement of Principle Instrument No 9 of 1998
Byrnes v Repatriation Commission (1993) 177 CLR 564
Deledio v Repatriation Commission (1997) 47 ALD 261
Re Fuss and Repatriation Commission [2001] AATA 500
Fuss v Repatriation Commission [2001] FCA 1529
Repatriation Commission v Deledio (1998) 49 ALD 193
REASONS FOR DECISION
5 September 2002 RP Handley
Dr MEC Thorpe
In this matter, Mrs Dulcie Fuss ("the Applicant") seeks a review of the decision of the Veterans' Review Board ("the VRB") dated 29 June 1999 which affirmed a decision of the Repatriation Commission ("the Respondent") dated 19 May 1998 refusing the Applicant's claim that malignant neoplasm of the pancreas was a war-caused disability. On 7 June 2001, having conducted a review of the VRB decision. the Tribunal affirmed that decision: Re Fuss and Repatriation Commission [2001] AATA 500. The Applicant appealed to the Federal Court and on 2 November 2001, the Court set aside the Tribunal's decision and remitted the matter to the Tribunal for further hearing and determination according to law: Fuss v Repatriation Commission [2001] FCA 1529.
In these proceedings, the Applicant was represented by Craig Colborne, of Counsel, and the Respondent was represented by Ian Butcher, of Counsel. The documents before the Tribunal comprised the Federal Court Appeal Book together with a further report tendered by the Applicant. Oral evidence was given by Dr Peter Katelaris and Dr Peter Gillespie, both Consultant Gastroenterologists.
BackgroundThe Applicant, Dulcie Fuss, is the widow of Albert Fuss, who died on 7 April 1998, aged 84. Mr Fuss saw operational service in the Australian Army in World War II from 28 June 1941 to 24 January 1946. During this period, he was stationed for approximately six months on Morotai, a small island which is now part of Indonesia.
On Mr Fuss' death certificate, the stated cause of death was "metastatic carcinoma of unknown primary 2 months". At the previous Tribunal hearing, the parties agreed that the cause of death was more properly described as "metastatic adeno-carcinoma of unknown primary". A histopathological examination of a liver biopsy specimen taken prior to Mr Fuss' death, suggested the primary source might be the large intestine, stomach, pancreas, prostate etc. However, no primary site was established and, subsequently, no autopsy was undertaken.
The claim in respect of this disability was lodged on 31 March 1998 and the parties agree that, should the Applicant be successful and the Tribunal finds that the disability is war caused, then the date of effect is 31 December 1997.
Applicable LegislationA war-caused injury or disease is defined in s 9(1) of the Veterans' Entitlements Act 1986 ("the Act"). The definition includes an injury suffered or a disease contracted by the veteran resulting from an occurrence that happened while the veteran was rendering operational service as defined in s 6. Section 13(1) provides that where a veteran's death was war-caused, the Commonwealth is liable to pay pensions by way of compensation to the dependents of the veteran. The parties agree that the issue to be determined by the Tribunal is whether the disability which caused Mr Fuss' death was war-caused.
The standard of proof to be applied in the case of operational service in determining whether an injury or disease was war-caused is that provided for in subsections 120(1) and (3). Pursuant to these provisions, if the injury or disease relates to operational service, the Respondent shall determine that the injury or disease was war-caused unless it is satisfied beyond reasonable doubt that the material before it does not raise a reasonable hypothesis connecting the injury or disease with the circumstances of the person's service.
Subsection 120(4) provides that except in making a determination to which subsections (1) or (2) apply (subsection (2) is not relevant in this matter), the Respondent shall decide any other matter arising under the Act or the regulations "to its reasonable satisfaction". Because the Applicant's claim was lodged after 1 June 1994, s 120A of the Act applies. This requires that where the Repatriation Medical Authority has determined a Statement of Principles ("SoP") in respect of a particular injury or disease, the Respondent (and therefore the Tribunal) must have reference to that SoP.
EVIDENCE
Dr Peter KatelarisDr Katelaris was referred to his reports dated 10 May 2000 (Appeal Book p 151) and 24 January 2002 (A1). He said that the diagnosis of malignant neoplasm of the pancreas had not been established. It was only one of a number of possibilities. A CT scan of Mr Fuss' abdomen identified multiple metastases in the liver but failed to demonstrate any abnormality in the pancreas. The pathology report of the liver biopsy mentioned the large intestine, pancreas and stomach as among possible sites of origin. However, Dr Katelaris said, in his opinion, the stomach was the likely site of the primary: a small flat primary adeno-carcinoma in the stomach lining might not be visible in an endoscopy and one biopsy in such a large organ might not find the cancer.
Dr Katelaris said that Helicobacter pylori ("H pylori") infection is recognised as one of the most important risk factors in respect of the subsequent development of gastric adeno-carcinoma. Such an infection is most commonly acquired in childhood but there is a continuing, albeit low, risk of acquisition throughout a person's adult life. It has also been demonstrated that the risk of infection for a person of Mr Fuss' generation is higher than that for subsequent generations. This is as a result of improved standards of hygiene and sanitation. Dr Katelaris said there is also data suggesting an increased risk of H pylori infection where a person spends time in a "developing country" or when a person has spent time in an institution such as the Armed Forces. Taking into account the risk factors in Mr Fuss' case and having regard to the medical investigations performed, Dr Katelaris said that, in his opinion, on the balance of the evidence, "it seems likely that the veteran was infected with Helicobacter pylori".
Dr Katelaris said it is plausible to hypothesise that Mr Fuss acquired H pylori infection during his operational service and that, as a result, he later developed a gastric adeno-carcinoma. While this hypothesis is plausible and in accord with current medical knowledge, nevertheless, whether or not Mr Fuss acquired the infection cannot be proved.
Dr Katelaris was asked about an endoscopy carried out on Mr Fuss on 24 December 1997 which did not identify a gastric cancer. Dr Katelaris said it did, however, identify gastritis, the most common causes of which are H pylori infection and the use of non-steroidal anti-inflamatory drugs (NSAIDs). While the "miss rate" in terms of not finding a gastric cancer is low, nearer to one in a thousand than one in hundred, it is not unknown. Sometimes the disease is not visible.
Dr Peter GillespieDr Gillespie was referred to his report dated 12 August 2000 (Appeal Book p154). Dr Gillespie said it is highly unlikely that the endoscopy would have missed a gastric cancer. He reported endoscopic review by a competent endoscopist in 1997 failed to show a gastric carcinoma. The endoscopy showed "generalised moderate gastritis" and no mention of ulceration. A normal first part and second part of the duodenum was noted. The biopsy was negative for Helicobacter, dysplasia and intestinal metaplasia. However Dr Gillespie acknowledged that that more than one biopsy would be needed in a large organ like the stomach. The "generalised moderate gastritis" revealed by the endoscopy would have had no effect on the ability to identify a carcinoma. Imagery with MRI and CT scan did not show thickening of the stomach wall which might occur with Linitis plastica. Dr Gillespie also responded that at no stage has Helicobacter pylori been identified, although testing has been less than optimal.
He reported the tumour markers as presented are those usually found in biliary/pancreatic malignancy and are not usually those of gastric carcinoma although they are non-specific.
Dr Gillespie said Mr Fuss' war service is the only factor suggesting that he might have developed gastric cancer, which he agreed that it is a possibility, his view is that it is pure speculation and on balance very unlikely.
Dr Gillespie said Mr Fuss' war service is the only factor suggesting that he might have developed gastric cancer. While he agreed that it is a possibility, his view is that it is pure speculation and, on balance, very unlikely.
SUBMISSIONS
ApplicantMr Colborne, for the Applicant, said there is no SoP for carcinoma of unknown origin. The Applicant contends that it is a reasonable hypothesis that Mr Fuss contracted an H pylori infection during his operational service which caused or contributed to gastro adeno-carcinoma which in turn caused metastatic carcinoma of unknown primary. In support of this contention, Mr Colborne referred to Dr Katelaris' evidence and, in particular, that Mr Fuss' military service over a period of four and half years substantially increased the risk of his being infected with H pylori during that period. Mr Colborne noted that Mr Fuss suffered from generalised gastritis of which H pylori infection is one of the commonest causes. He contended that it is reasonable to hypothesise that Mr Fuss contracted an H pylori infection during his operational service.
Mr Colborne said the next question is whether the H pylori infection led to Mr Fuss developing cancer of the stomach. Both specialists said it was unlikely that such a cancer would have been missed in the medical examinations, but Dr Katelaris clearly thought this was possible, and the Applicant contends that it is a reasonable hypothesis that there was a primary cancer on the wall of the stomach which lead to Mr Fuss' death. Having established such a hypothesis, the Applicant contends that there is nothing to disprove the hypothesis beyond reasonable doubt.
In his response to the Respondent's submissions, Mr Colborne acknowledged that he had run the matter as a SoP case before the Federal Court with reference to Instrument No 67 of 1997 Malignant Neoplasma of the Stomach, as amended by Instrument No 9 of 1998 with respect to the definition of malignant neoplasm of the stomach. Referring to paragraph 5(b) of SoP No 67, he said the relevant factor in this case is Mr Fuss' contraction of an H pylori infection at least 10 years before the clinical onset of malignant neoplasm of the stomach.
RespondentMr Butcher, for the Respondent, noted that in the Federal Court, Wilcox J proceeded on the basis that this was a SoP case and, in particular, focused on the third step in the approach set out in Repatriation Commission v Deledio (1998) 49 ALD 193. The hypothesis advanced by the Applicant is that Mr Fuss' disease was a gastric carcinoma and that this was war-caused. Mr Butcher referred to paragraph 5(b) of SoP No 67. The Applicant relied on the relevant factor being that Mr Fuss contracted an H pylori infection at least 10 years before the clinical onset of malignant neoplasm of the stomach. Mr Butcher said that the evidence of this is tenuous. Most importantly, there is no direct evidence of H pylori infection and the increased risk of such infection by virtue of Mr Fuss' service is very small. Mr Butcher said the Tribunal should not be satisfied that Mr Fuss contracted an H pylori infection. At the highest, all that can be said is that the evidence suggests that H pylori infection has not been excluded. The incidence of such infection in the population as a whole in the veteran's age group is probably about 60%. While the evidence suggests that war service increases that risk, the material does not point to the hypothesis being reasonable.
Consideration of the Law and FindingsThe issue for the Tribunal to determine is whether Mr Fuss' disability was war-caused. The cause of Mr Fuss' death stated on his death certificate was "metastatic carcinoma of unknown primary 2 months" although, at the original hearing before the Tribunal, the parties agreed that the cause of death was properly to be described as "metastatic adeno-carcinoma of unknown primary". The Tribunal is therefore, reasonably satisfied that a carcinoma of unknown origin was the cause of death.
When Counsel made their closing submissions, there was some confusion about whether or not the Tribunal should proceed on the basis that there is a relevant SoP. There is no SoP in respect of the agreed cause of death. There is, however, a relevant SoP in respect of malignant neoplasm of the stomach. Where there is no relevant SoP in respect of a condition, the steps to be followed in applying s 120 of the Act are those stated by the High Court (Mason CJ, Gaudron and McHugh JJ) in Byrnes v Repatriation Commission (1993) 177 CLR 564 at 571:
The position may be summarized as follows: (1) First, sub-s (3) of s 120 is applied: do all or some of the facts raised by the material before the Commission give rise to a reasonable hypothesis connecting the veteran's injury with war service? The hypothesis will not be reasonable if it is contrary to known scientific facts or is obviously fanciful or untenable. If the hypothesis is not reasonable, the claim fails. Proof of facts is not in issue at this point. (2) If a reasonable hypothesis is established, sub-s (1) of s 120 is applied. The claim will succeed unless: (a) one or more of the facts necessary to support the hypothesis are disproved beyond reasonable doubt; or (b) the truth of another fact in the material, which is inconsistent with the hypothesis, is proved beyond reasonable doubt, thus disproving, beyond reasonable doubt, the hypothesis.
The first step, therefore, is for the Tribunal to consider whether some or all of the facts raised by the material before the Tribunal give rise to a reasonable hypothesis connecting Mr Fuss' condition with his war service. The Applicant's hypothesis is that Mr Fuss acquired an H pylori infection during his operational service and it is possible that this contributed to the later development of a gastric adeno-carcinoma which may have been the primary site of Mr Fuss' cancer. The hypothesis that Mr Fuss contracted an H pylori infection is based on Dr Katelaris' opinion which draws on statistical evidence as to the risk factors identified in relation to H pylori infection which include living in an institutional environment such as the Army and serving in a "developing country" such as the island of Morotai where Mr Fuss spent approximately six months of his service. Dr Katelaris' evidence was that H pylori infection is one of the principal contributors to later development of gastric adeno- carcinoma and that it is possible that such a carcinoma was missed during the course of the medical investigations carried out prior to Mr Fuss' death.
Dr Gillespie noted that the 1997 endoscopy, which was conducted by an endoscopist whom both parties recognised as competent, failed to show a gastric carcinoma. Dr Gillespsie said:
On balance, a carcinoma if present would more than likely have been a distal carcinoma if due to Helicobacter Pylori and unlikely to have been missed. Concurrent imaging with MRI scan and CT scan did not show evidence of gastric wall thickening which might occur in Linitis plastica and might theoretically be overlooked at endoscopy.
Dr Gillespie concluded:
All theories as to the aetiology are thus speculative but, on balance, gastric cancer seems very unlikely.
The Tribunal relies on Dr Gillespie's evidence and considers that the hypothesis put forward by the Applicant, relying on the evidence of Dr Katelaris, is too remote or tenuous, being based on inferences, there being no direct evidence suggesting a connection between Mr Fuss' death and his war service. Thus, the Tribunal is not satisfied that there is a reasonable hypothesis connecting Mr Fuss' disability with his war service.
The Tribunal notes that the proceedings before Wilcox J in the Federal Court seem to have proceeded on the basis that there was a relevant SoP, namely that concerning malignant neoplasm of the stomach, Instrument No 67 of 1997 as amended by Instrument No 9 of 1998. The original hearing before the Tribunal also seems to have proceeded on this basis. For the sake of completeness, the Tribunal will therefore address the issue to be determined as if there were a relevant SoP. Before doing so, however, the Tribunal is required to be reasonably satisfied that the veteran suffered from the claimed condition. In this case, the claimed condition is a gastric adenocarcinoma. For the same reasons stated above as to the reasonableness of the hypothesis, the Tribunal is not reasonably satisfied that Mr Fuss suffered from this condition.
Once again, proceedings on the basis that it was so satisfied, the Tribunal must follow the approach comprising the four steps set out in Deledio (supra). The Tribunal recognises that the first two steps are met: the Tribunal considers that the material points to a hypothesis and, as noted, there is a relevant SoP. In addressing the third step, the Tribunal must then form an opinion as to whether or not the hypothesis raised is a reasonable one. As Wilcox J said in his decision in this matter (Fuss v Repatriation Commission [2001] FCA 1529) at paragraph 49:
for a hypothesis to be a "reasonable hypothesis", within the meaning of s 120(3) of the Act, the factors as specified in any relevant Statement of Principles must be pointed to by the facts before the Commission (or Tribunal), even though not proved upon the balance of probabilities.
Wilcox J found the Tribunal had erred in law because its decision reflected an error of substance, because it rejected the reasonableness of the hypothesis on the basis that it was not "established" on the facts. The law only requires that for a hypothesis to be reasonable, the factors specified in any relevant SoP must be "pointed to" by the facts. The Tribunal notes that in Deledio (supra), the Full Federal Court cited with approval the test as to reasonableness formulated by Heerey J at first instance (Deledio v Repatriation Commission (1997) 47 ALD 261 at 275):
Do the facts raised by the claimant give rise to a reasonable hypothesis? Proof of facts is not an issue at this point. The hypothesis will not be reasonable if it is:
(i) contrary to proved or known scientific facts,
(ii)obviously fanciful, impossible, incredible, absurd, ridiculous, not tenable, too remote or too tenuous; or
(iii) (since 1994) inconsistent with (not upheld by) an applicable SoP.
In the Tribunal's view, the hypothesis advanced by the Applicant is too remote or too tenuous. As stated above, there is no direct evidence that Mr Fuss suffered an H pylori infection during operational service and there is no direct evidence that the primary site of the metastatic adeno-carcinoma which was ultimately the cause of his death was a gastric carcinoma. The Tribunal accepts Dr Katelaris' evidence that the risk of contracting an H pylori infection was increased by Mr Fuss' war service including his service on the island of Morotai, and that if Mr Fuss contracted an H pylori infection, this could have contributed to the later development of a gastric carcinoma. However, the increased risk of H pylori infection was, as Dr Katelaris acknowledged, small. The Tribunal notes that none of the medical investigations undertaken of Mr Fuss' condition prior to his death revealed any evidence of these matters and, therefore, in the Tribunal's view, the suggested hypothesis is based entirely on speculation a and is too remote. Thus, were the Tribunal to proceed down the SoP route, it would also determine that Mr Fuss' death was not war-caused.
The Tribunal therefore affirms the decision under review.
I certify that the 30 preceding paragraphs are a true copy of the reasons for the decision herein of Deputy President RP Handley.
Signed: .....................................................................................
AssociateDate/s of Hearing 31 July 2002
Date of Decision 5 September 2002
Representative for the Applicant Mr C Colborne, Counsel
Representative for the Respondent Mr I Butcher, Counsel
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