Green and Repatriation Commission (Veterans' entitlements) - [2017] AATA 1355

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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2017] AATA 1355
Decision Date: 28 August 2017

CaseChat Overview and Summary

This matter concerned an application by Mrs Green for a review of the Repatriation Commission's decision that her husband, Mr Sydney Green, a veteran with recognised operational service in the RAAF, did not die of a war-caused condition. The Veterans Review Board had affirmed this decision. As a preliminary question, the Tribunal was asked to determine the "kind of death" suffered by the veteran.

The legal issue before the Tribunal was to determine, on the balance of probabilities, the medical cause or causes of the veteran's death. The applicant contended that the veteran died from an aortic aneurysm and/or ischaemic heart disease, either individually or in combination. The respondent argued that the veteran died from sepsis, potentially related to an infection of his abdominal aortic graft, leading to renal failure.

The Tribunal reasoned that the "kind of death" is a question of fact, and the Act does not distinguish between primary and secondary medical causes. After considering the contemporaneous medical evidence from treating doctors and the applicant's account of hospital discussions, the Tribunal concluded, on the balance of probabilities, that the veteran's death was caused by sepsis. The infection, caused by *Arcanobacterium naemolyticum*, was found to have originated in the endoluminal graft of his aortic aneurysm, with haematogenous spread to the abdominal cavity and lungs, ultimately causing renal failure. The Tribunal found the evidence supporting a rupture of the aneurysm or a primary cause of ischaemic heart disease to be speculative or unpersuasive.

The Tribunal found that the kind of death suffered by the veteran was sepsis, originating from an infection in his aortic aneurysm graft, leading to renal failure. The Tribunal will liaise with the parties to determine the next procedural steps.

Orders

Orders of the court

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Background

Background to the litigation

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 diseaseIschaemic 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.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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.

Ratio Decidendi

Legal Principle Established

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