Green and Repatriation Commission (Veterans' entitlements)

Green and Repatriation Commission (Veterans' entitlements) [2017] AATA 1355 (28 August 2017)
Division:VETERANS' APPEALS DIVISION
File Number(s): 2015/6356
Re:Pamela Green
APPLICANT

AndRepatriation Commission
RESPONDENT

DECISION
Tribunal:Mrs J C Kelly, Senior Member
Date:28 August 2017
Place:Sydney

.....................[sgd]....... ............................................
Mrs J C Kelly, Senior Member
CATCHWORDS
VETERANS’ AFFAIRS – Pensions, benefits and entitlements – war widow’s pension - the veteran engaged in operational service with the RAAF – preliminary question regarding the ‘kind of death’ the veteran suffered considered –the veteran died of sepsis – the infection originated from the endoluminal graft
LEGISLATION
Veterans Entitlement Act 1986 (Cth) ss 7, 120
CASES
Collins v Repatriation Commission [2009] FCAFC 90
REASONS FOR DECISION
Mrs J C Kelly, Senior Member
28 August 2017
The decision under review

The applicant, Mrs Green, seeks the review of the decision made on 18 August 2014 by the Repatriation Commission that the death of her husband, Mr Sydney Green, (the veteran) was not war-caused. That decision was affirmed by the Veterans Review Board (VRB) on 21 October 2015. At the hearing, the parties agreed to have determined as a preliminary question the kind of death Mr Green suffered.
Background
The veteran served in the RAAF from 15 August 1941 to 22 May 1945. His service is recognised as operational service, and therefore eligible war service (s 7(1)(a) of the Veterans Entitlements Act 1986 (Cth) (the Act).
The veteran was born in 1915 and died on 3 September 2001 following his admission to hospital on 21 August 2001. He was primarily under the care of Dr O’Connor, Chest Physician, during that admission.
The cause of death certified in the veteran’s Death Certificate was:
(I)(a) Pneumonia, days
(b) Sepsis, days
(II) Chronic airways disease
Ischaemic Heart Disease
There was not a definitive determination of the cause of death. Doctors wanted to undertake an autopsy but the applicant refused the request.
If the applicant is successful, the earliest operative date of the decision would be 1 June 2014, being six months prior to the date of lodgement at the VRB.
The issue and the relevant law
The question for the Tribunal to determine as a preliminary question in these proceedings, is what was the “kind of death” suffered by the veteran. The standard of proof is reasonable satisfaction / balance of probabilities (s 120(4) of the VEA).
Depending on the Tribunal’s decision on that question, the second question for determination in the future will be whether the death was war-caused.
The kind of death
The “kind of death” is a question of fact as to the medical cause or causes of death.[1] The Act does not draw “any legal distinction between the ultimate or primary and secondary medical causes of death of a veteran.”[2]
[1] Collins v Repatriation Commission [2009] FCAFC 90 at [19].
[2] Op cit at [88].
The applicant contended that there were two possible kinds of death: aortic aneurysm and/or ischaemic heart disease (IHD), either individually or in combination.
The respondent contended that the kind of death suffered by the veteran was death from sepsis, possibly related to infection of his abdominal aortic graft, together with total renal failure.
The veteran’s medical history
Following is a summary of the relevant medical history of the veteran.
As noted by Dr Bosler in a 1993 report to the veran’s general practitioner, the aortic aneurysm was first detected in an X-ray report of 27 May 1993.
The parties agreed at the hearing that the date of clinical onset of hypertension was 25 September 1995.
Professor May reported on 18 February 1999 that he had reviewed the veteran following “endoluminal repair of his abdominal aortic aneurysm on the 11th November 1998.”
In his report dated 4 May 2000, Professor May said that the veteran was well following his recent operation at Royal Prince Alfred Hospital. He wrote:
An extension endoluminal graft was placed in the right limb of his previous bifurcated graft… His aneurysm is no longer palpable in the abdomen.
Professor May wrote in a report dated 13 November 2000 that he had reviewed angiograms and CT scans and had advised the veteran to have a further angiogram “to elucidate the site of the endoleak shown on his last CT”.
Several Medical Impairment Assessment forms were completed by the veteran’s general practitioner, Dr Armanno, on 22 March 2001. In respect to “abdominal aortic aneurysm”, Dr Armanno wrote that the veteran had had two grafts performed at “RPA” and was to go back “in the near future to have further repair performed because of leaking”.
Dr Armanno’s clinical notes state that that veteran had returned from Sydney on 3 May 2001 “no abdominal aorta leak.” There is no other evidence about what happened in Sydney.
Dr O’Connor, Chest Physician, wrote to Dr Armanno, veteran’s general practitioner, on 3 July 2001:
Mr Green presented to Tamworth Base Hospital the weekend before last unwell with what appeared to be sepsis. There was a high fever and hypotension. He improved rapidly with broad-spectrum antibiotics.
Cultures didn’t reveal a cause for the infection. We were suspicious there was an infection in the aortic graft but weren’t able to prove this. A CT showed leak of contrast from the graft as has apparently been demonstrated previously in Sydney. No other abnormalities suggestive of infection were seen. A gallium scan was normal.
He left hospital after 4 or 5 days. He had become upset with some aspects of hospital care and didn’t want to stay around. Mr Green has always been a somewhat feisty character and was more feisty than usual on this occasion.
At the stage he became upset he was much improved anyway so I wasn’t too concerned about him leaving hospital. He was discharged on amoxycillin 500 mg tds to take for another 10 days out of hospital. In retrospect, cephalexin may have been a better choice as the presumed aortic graft infection is most likely due to a staphylococcal organism.
I spoke to him on the phone today. He feels very well. There has been no recurrence of fever etc.
In a report to Dr Armanno dated 17 July 2001, Dr Fisher, General & Urologic Surgery, reported that the veteran had come under his care on an urgent basis on 24 June 2001. Dr Fisher wrote:
The picture was that of likely septicaemia for which he was treated. The source of infection was thought to probably represent infection involving the endo graft of his aortic aneurysm or in association with leakage from the graft. CT scan confirmed the presence of leakage. Evidently this is under surveillance by the Vascular Surgeons at RPAH (Professor J May). The patient is to have surgery, it is understood in October for replacement of the endo graft.
Mr Green was being seen in hospital by Dr Simon O’Connor. However he discharged himself, against advice on 28.6.01 for reasons that are not clear.
It is recommended that he should be reviewed by Prof May’s unit in the near future.
Dr O’Connor saw Mr Green on 2 August 2001 and reported that:
He has made a full recovery from the episode of presumed sepsis a month or so ago.
On 17 August 2001, Dr Armanno recorded that the veteran had had left sided abdominal pain for three days which came on while he was bending and was worse on “movement, coughing, bending etc”.
The veteran was readmitted to hospital on 21 August 2001 and died on 3 September 2001.
On 12 September 2001, Dr O’Connor wrote to Dr Armanno about the veteran’s death:
It appears his death was caused by infection with Arcanobacterium haemolyticum. This is an organism I had not heard of before this. It apparently is a mouth organism. It is known to cause tonsillitis and, rarely, other more serious infections.
He presented in early July with back pain and fever. We were suspicious that there was an infection involving his aortic graft. Blood cultures at that time were negative, a gallium scan showed no evidence of infection and CT was no different to previous i.e. showing a graft leak. He was treated with broad-spectrum antibiotics for 2 weeks. He improved and the antibiotics were ceased.
He presented again on 21^st August with severe left flank pain. There was a mass palpable in this area. Chest x-ray showed multiple pulmonary nodules that hadn’t been present on chest x-ray six-weeks before. He was febrile and blood cultures yielded Arcanobacterium haemolyticum in one bottle. CT of the abdomen showed nodular shadowing in the mesenteric fat between the colon and abdominal wall. The colon nearby appeared normal. There was no obvious perforation or diverticular disease. Once again a leak from the aortic graft was noted.
He was treated with broad-spectrum antibiotics and improved somewhat. The pain settled, as did the fever.
The abdominal mass remained palpable. Repeat CT scan over the subsequent 10 days showed that nodular lesions appearing to coalesce a little. It seemed to hug the abdominal wall, as if arising from there rather than from the colon or any of the other viscera. The pulmonary nodules did not change.
After initial improvement, he started to deteriorate again. He became oliguric with renal failure. There had been long discussions with Mr Green and his wife about undergoing abdominal surgery to attempt to make an exact diagnosis and drain any collections of pus etc. We weren’t keen to subject him to surgery and Mr Green decided not to go ahead. With the development of the renal failure, his fate was determined and he died a few days later. We asked for a post mortem but Pam decided against this.
I am suspicious infection originated in the aortic graft and subsequently spread to the abdominal cavity and lungs. There is no way of proving this now but the presentation 6 weeks before with back pain and fever would be consistent with this.
The Applicant wrote a complaint to the hospital on 19 September 2001. In the complaint she stated that on Friday 31 August 2001, she was told “that the problem had been isolated, being a bacteria in the graft in his aneurysm. However it was now too late for any useful treatment as his kidneys had failed that day and he was dying.” She also recorded that the veteran had had three intense pain periods from late Saturday 1 September 2001 until 10 am Sunday 2 September 2001.
Dr Croker, Rheumatologist, attended the veteran on the Saturday and Sunday before his death on Monday 3 September 2001. On 28 September 2001 he wrote a response to the Applicant’s complaint in which he set out what he had been told by Dr O’Connor during the weekend handover:
·The veteran had been admitted to hospital with pain and tenderness involving the left side of his abdomen.
·Although it had been difficult to establish a definite diagnosis it was felt that the veteran most likely had an infection of his aortic graft with haematogenous spread to lung, peritoneum and abdominal wall.
·Another possibility was thought to be a colonic problem with local infection with haematogenous spread.
·The veteran had become anuric and Dr O’Connor felt that his chances of survival were poor.
·It appeared that the veteran was steadily deteriorating; sepsis had been blamed.
Dr Croker goes on to record that there was a “marked change” in the veteran’s condition on the afternoon and evening of Saturday 1 September, and commented:
I can only surmise but I wonder whether he did have a leak from his aortic graft to cause such a severe exacerbation of pain.
The Applicant relied on the medico-legal report written by Associate Professor Haber, Consultant Physician, Cardiologist dated 25 May 2016 and the doctor’s oral evidence. The Respondent relied on the report of Professor O’Rourke, Cardiologist, dated 22 August 2016, and his oral evidence.
In his report, Associate Professor Haber considered the veteran’s “cause of death, on the balance of probabilities”. He wrote:
In my opinion therefore he died as a result of terminal infection originating in the aortic graft, i.e. sepsis. There is no evidence that he had terminal pneumonia. He was treated for ischaemic heart disease, almost certainly until the time he died. Ischaemic heart disease is therefore additional “kind of death” especially considering that in view of this and his age, Mr. Green refused surgery.
Later in his report, Associate Professor Haber considered “Whether, in [his] opinion, the Veteran’s ischaemic heart disease was a ‘kind’ of death suffered by the Veteran or otherwise ‘materially contributed’ to his death”. After referring to medications mentioned in the letter from Dr O’Connor dated 2 August 2001, Associate Professor Haber concluded:
He has been treated for ischaemic heart disease until the time of his death and therefore this has materially contributed to his death by the fact that he was not fit for any major surgery because of ischaemic heart disease which was present at the time of his death. It is therefore “a kind of death”.
Under the heading “Whether aortic aneurysm was a ‘kind of death’ suffered by the Veteran or otherwise ‘materially contributed’ to his death”, Associate Professor Haber considered a number of the medical reports and Dr Armanno’s clinical note of 17 August 2001, and concluded:
There is no doubt therefore that he died from the rupture of aortic aneurysm with a superimposed infection at the site of the graft and this was undoubtedly materially contributing to his death.
During his oral evidence, Associate Professor Haber expressed the following opinions:
·The cause of death was an infection originating in the aortic graft resulting in sepsis;
·The palpable mass was blood that had leaked from the aortic aneurysm;
·The infection was in the clotted blood which blocked the ureter to left kidney which contributed to kidney failure;
·The probable cause of death was infection in the big blood clot that had formed from the very slow leak from the site of the graft on the aortic aneurysm;
·IHD contributed to the decision not to operate on the veteran;
·Sepsis contributed to death and increased the risk of operating;
·There is nothing to indicate that the infection site was the kidneys, or in the lungs until much later. There is no other explanation than that the sepsis was related to the blood clot and therefore that is the probable infection site.
·Clinically you work on the most likely cause.
Associate Professor Haber said during his oral evidence that the leak from the abdominal aortic aneurysm was obviously minor because it was identified on 13 November 2000 by Dr May but the veteran was not admitted until February 2001.
Professor O’Rourke’s opinions expressed in his report were that:
Mr Green’s death was caused by sepsis, probably related to the endoluminal graft that had been implanted 2 years before, to renal failure which was total, all worsened by ischemic heart disease and the ravages of age. (Page 3) (Emphasis added).
Mr Green died from sepsis possibly related to infection of his abdominal aortic graft which had also been leaking. He also had total renal failure. The conditions were worsened by extreme age and ischaemic heart disease. He was declared by hospital staffs “not for resuscitation” (NFR). (Page 4) (Emphasis added).
Later in his report at page 5, in response to a question asking “Were the other identified conditions or factors on the death certificate related to conditions you diagnose in Mr Green? If so how?” Professor O’Rourke wrote:
Abdominal aortic aneurysm repair was shown to be leaking and was the probable source of sepsis; finding and treating the cause of sepsis was not appropriate in Mr Green because he had so many co morbidities associated with extreme age. (Emphasis added).
Professor O’Rourke would have written out the death certificate as follows:
1a    Sepsis
1b    Renal failure
2     Ischemic heart failure.
Professor O’Rourke disagreed with Associate Professor Haber’s opinion that “There is no doubt therefore that he died from the rupture of aortic aneurysm”. Professor O’Rourke wrote that there was doubt and that it “was just one of the possible condition offered by Dr O’Connor and Dr Croker to explain his clinical presentation in September 2001.”
During his oral evidence, Professor O’Rourke added that those treating the veteran did not refer to a rupture of the aneurysm. There was no sign of any rupture. There had been a leak but the evidence does not say that there was leaking at the time of the terminal illness.
Professor O’Rourke expressed the following additional opinions during oral evidence:
·Sepsis caused the renal failure and lowering of blood pressure.
·The primary infection could have been in the kidneys which caused renal failure.
·There is nothing to explain the presence of the palpable mass. There was no mass identified on CT scan which could be identified as blood or pus. He did not accept that there was an abdominal mass at the time of death. The treating doctors differed. One described tenderness and pain on palpation but did not identify a mass. The “mass” felt could have been an enlarged left kidney, especially if there was renal infection.
·There is nothing to explain the presence of the pulmonary nodules. There could have been a type of pneumonia.
·The previous three matters raise suspicions apart from the graft.
·An infection of the graft would usually not respond as quickly to broad spectrum antibiotics as the infection responded in June.
·The leakage Dr May identified in November 2000 was leakage into the sac that surrounds the stent and not leakage into the body; it was not a threat to life; having a further angiogram was not the sort of treatment that would be given if the leakage was into the body as Associate Professor Haber contended.
·Ischaemic heart disease had a limited role in the veteran’s death. It could interfere with the future but did not contribute to the veteran’s death, but was in the background. That is why he listed it as “2” on his version of the death certificate.
·Diagnostic surgery is rare. Scans are usually sufficiently precise. It would be major surgery and unwise to do.
·The veteran was oliguric with renal failure. Surgery was unlikely to be lifesaving. His life was under continuing threat of co-morbidities and the possibility of wide-spread septicaemia. His age would have been a major factor because of stiffening of the aorta, inefficiencies in his heart, ill effects on the brain, together with multiple problems including multiple emboli from before that would have probably occurred after further surgery.
During cross-examination, Professor O’Rourke said that the main cause of death was pneumonia and sepsis. He said that the death certificate was filled out by a responsible person. He did not agree that on balance the cause of death was sepsis probably related to the graft. On balance, it was more likely that the cause of death was sepsis unknown source, pneumonia on the background of IHD. He did not accept that there had been a rupture of the AAA.
Professor O’Rourke denied having changed his position from that expressed in his report. He said that the use of “probably” in his report was a careless use of words. He cannot come down on either side of the fence. In his opinion, the sepsis was possibly related to infection in the graft.
In his opinion, the 2000 revision surgery was unlikely to be the source of the bacteria. He said that bacteria can get into the blood stream from the mouth. Organisms can accumulate on the graft and break and be transported through the blood stream. However, in this case we do not know where it was in the body.
Consideration and findings
The Tribunal finds that the contemporaneous medical evidence of the treating doctors from June to 3 September 2001 and the comment in the applicant’s letter that she had been told at the hospital that “the problem had been isolated, being a bacteria in the graft in his aneurism” leads to the conclusion on the balance of probabilities, that the medical condition which accounted for the pathological changes leading to the veteran’s death is sepsis.[3] The infection was caused by the Arcanobacterium naemolyticum organism. On the balance of probabilities, the infection originated in the endo graft of his aortic aneurysm with haematogenous spread to the abdominal cavity and lungs. The infection caused renal failure.
[3] Collins at [82].

The Tribunal accepts that there is evidence that the AAA graft had been leaking when the veteran was admitted in both June 2001 and August 2001. Dr Armanno’s clinical note of 3 May 2001 that on return from Sydney there was “no abdominal aorta leak” was not referred to in any of the other medical evidence, including that of the medico-legal experts. However, given that clinical note, the Tribunal does not accept that there had been continuous leaking from the AAA from November 2000.
The Tribunal found Associate Professor Haber’s evidence about the palpable mass being blood that had leaked from the AAA speculative. None of the treating doctors drew that conclusion. If it was that obvious, the Tribunal would have expected that such a conclusion would have been mentioned and would have resulted in greater certainty in the minds of the treating doctors about the origin of the infection.
The Tribunal does not accept Associate Professor Haber’s opinion that the veteran died from “the rupture of aortic aneurysm with a superimposed infection at the site of the graft”. There had been a repair to the AAA. There was leakage from the graft. There was ongoing monitoring of that leakage by Professor May. There was planned replacement surgery. The evidence does not support a claim that there had been a “rupture” of the AAA.
The Tribunal does not accept that Associate Professor Haber’s evidence about the role of IHD leads to a conclusion that a second “kind of death” was IHD. Sepsis is clearly the medical condition which accounted for the pathological changes leading to the veteran’s death.[4] Associate Professor Haber did not consider whether in the absence of IHD surgery would have been carried out, or the prospects of such surgery being successful. His evidence about surgery was speculative and unpersuasive.
[4] Op cit.
Professor O’Rourke’s claim that the language in his report was loose is correct. He attributed the infection to the AAA graft twice as “probable” and once as “possible”. At the hearing he claimed that he could not come down on one side of the other. The Tribunal found Professor O’Rourke’s evidence on this issue inconsistent, speculative, and unpersuasive.
Conclusion
For the above reasons, the Tribunal finds that the kind of death suffered by the veteran was sepsis. The infection was caused by the Arcanobacterium naemolyticum organism. On the balance of probabilities, the infection originated in the endoluminal graft of his aortic aneurysm with haematogenous spread to the abdominal cavity and lungs. The infection caused renal failure.
The Tribunal will liaise with the parties after the publication of this decision to determine the appropriate procedural steps to be taken in this case.

I certify that the preceding 51 (fifty-one) paragraphs are a true copy of the reasons for the decision herein of Mrs J C Kelly, Senior Member

...................[sgd].....................................................
Associate
Dated: 28 August 2017

Date(s) of hearing: 1, 2 and 19 May 2017

Counsel for the Applicant: Mr T Saunders

Advocate for the Applicant: Kemp & Co Lawyers

Solicitors for the Respondent: Mr B O'Brien, Moray & Agnew

[2017] AATA 1355

28 August 2017

Key Legal Topics

Areas of Law

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Natural Justice

Procedural Fairness

Standing

Statutory Construction

Appeal

Date(s) of hearing:	1, 2 and 19 May 2017
Counsel for the Applicant:	Mr T Saunders
Advocate for the Applicant:	Kemp & Co Lawyers
Solicitors for the Respondent:	Mr B O'Brien, Moray & Agnew