Hammond and Repatriation Commission (Veterans’ entitlements)
[2015] AATA 723
•17 September 2015
Hammond and Repatriation Commission (Veterans’ entitlements) [2015] AATA 723 (17 September 2015)
Division
VETERANS’ APPEALS DIVISION
File Number
2014/4651
Re
Ivy Margaret Hammond
APPLICANT
And
Repatriation Commission
RESPONDENT
DECISION
Tribunal Dr Gordon Hughes, Member
Date 17 September 2015 Place Melbourne The Tribunal affirms the decision under review.
..........[sgd]..................................................
Dr Gordon Hughes, Member
VETERANS’ AFFAIRS – Claim for pension in respect of war-caused death – alternative possible causes of death – conflicting opinions of medical experts – burden of proof – standard of proof – decision affirmed
Legislation
Veterans’ Entitlements Act 1986 s 8, s 120(1), s 120(6)
Cases
Benjamin v Repatriation Commission [2001] FCA 1879
Collins v Repatriation Commission [2009] FCAFC 90
Doolette v Repatriation Commission [1990] 21 ALD 489
Repatriation Commission v Cooke (1998) 90 FCR 307
Repatriation Commission v Law (1980) 31 ALR 140
Roncevich v Repatriation Commission (2005) 222 CLR 115
REASONS FOR DECISION
Dr Gordon Hughes, Member
17 September 2015
The applicant sought review of a decision by the Veterans' Review Board on 17 July 2014 affirming the Respondent's decision of 31 July 2013 to refuse her claim for the acceptance of the death of her husband as being due to war service.
Specifically, the Tribunal was required to determine whether Maurice Hammond’s death was war-caused. The veteran was suffering from a number conditions at the time of his death, and the question facing the Tribunal was whether one of those conditions – malignant melanoma, which the Repatriation Commission (the respondent) acknowledged was war-caused – was a contributing factor.
LEGISLATION
Section 8 of the Veterans' Entitlements Act 1986 (the Act) provides, relevantly:
(1) the death of a veteran shall be taken to have been war-caused if:
…
(b)the death of the veteran arose out of, or was attributable to, any eligible war service rendered by the veteran.
Section 120(1) of the Act provides:
Where a claim under Part II for a pension in respect of the incapacity from injury or disease of a veteran, or of the death of a veteran, relates to the operational service rendered by the veteran, the Commission shall determine that the injury was a war-caused injury, that the disease was a war-caused disease or that the death of the veteran was war-caused, as the case may be, unless it is satisfied, beyond reasonable doubt, that there is no sufficient ground for making that determination.
Section 120(6) of the Act provides:
Nothing in the provisions of this section, or in any other provision of this Act, shall be taken to impose on:
(a)a claimant or applicant for a pension or increased pension, or for an allowance or other benefit, under this Act; or
(b)the Commonwealth, the Department or any other person in relation to such a claim or application;
any onus of proving any matter that is, or might be, relevant to the determination of the claim or application.
DISCUSSION
The applicant's husband died on 30 May 2013 at the age of 88 years.
He served in the Australian Army from 8 March 1943 to 10 December 1946. It was not disputed that this constituted eligible war service as defined in the Act. The veteran served in New Guinea as a gunner. As he was in New Guinea, the whole of his service constituted operational service.
Section 120(1) of the Act requires the decision maker to determine that a death is war-caused unless it is satisfied beyond reasonable doubt that there is no sufficient ground for making that determination.
In Collins v Repatriation Commission [2009] FCAFC 90, the Full Court of the Federal Court referred to the antecedent inquiries necessary before section 120 can be applied, namely:
1.whether the claimant was a veteran, or a dependant of the deceased veteran;
2.whether the veteran has suffered an injury or the disease or has died … ; and
3.the … cause of death or the "kind of death" of the veteran.
The first two of these antecedent inquiries were not in contention in the present case. The only issue was the cause of the veteran’s death. Mr Hammond died from the aggressive metastatic transformation of a non-determined cancer. No biopsy of the metastatic lesions was performed and, given the veteran’s history of both colon cancer and melanoma, the cause of death was in contention.
The respondent asserted that the veteran's cause of death was colon cancer and the applicant acknowledged that if this were indeed the sole cause of death, the claim would fail. The applicant contended, however, that the veteran's malignant melanoma contributed to his death and that his skin cancer resulted from his war service in New Guinea. The respondent conceded that if the malignant melanoma were a contributing factor, the claim should succeed.
According to Collins, the medical cause or causes of death is or are a question of fact based upon medical diagnosis and other evidence. Without identifying the cause or causes of death, it is not possible to determine if the death is war-caused. A disagreement as to the medical cause or causes of a death is an inquiry unconnected with the question of whether it is war-caused.
It was not in contention that there could be multiple medical causes of death: Doolette v Repatriation Commission [1990] 21 ALD 489.
In Repatriation Commission v Law (1980) 31 ALR 140, the Full Court of the Federal Court observed that there need not be a sole or dominant cause of death. It was sufficient to show that a cause was one of several, providing that it was a contributing cause.
In Roncevich v Repatriation Commission (2005) 222 CLR 115 the High Court observed that:
a causal link alone or a causal connection is capable of satisfying a test of attributability without any qualifications conveyed by such terms as sole, dominant, direct or proximate.
The applicant's death was certified by his general practitioner, Dr John Hough, who noted the cause of death as follows:
Colon cancer – 6 years;
Ischemic heart – 14 months
Malignant melanoma – 3 years
Hypertension – 10 years
The respondent contended that the semi-colon after colon cancer – 6 years reflected a convention in the drafting of death certificates according to which the actual cause of death was the condition listed before the semi-colon, whereas the other conditions noted were present without contributing towards the death.
In the absence of evidence from Dr Hough on this point, the Tribunal is reluctant to draw this conclusion. It is also significant that in a report dated 17 December 2013 which was tendered as evidence, Dr Hough stated:
... I maintain that the aggressive nature of [the metastatic spread of non-determined cancer in the weeks prior to the veteran's death] was certainly not inconsistent with melanoma, and as such would draw a potential direct causal link to his service years by way of sun exposure in the tropics.
The reference in the death certificate stating that the veteran had been suffering malignant melanoma for only three years is clearly incorrect. A report by plastic surgeon Mr Gary Liew dated 5 December 2013 stated that Dr Hough had first referred the veteran for treatment in relation to skin cancer on his head and neck area in 2002. The veteran subsequently underwent a wide excision of a malignant melanoma in 2009, and a re-excision in 2013.
Accordingly, the Tribunal does not consider that the death certificate is of significant persuasive value in its current deliberations.
The Tribunal also considered a report from the Veterans’ Affairs Departmental Medical Officer, Dr Barbara Fitzgibbon, dated 29 July 2013.
Dr Fitzgibbon reported that:
On the basis of the information on the death certificate, the primary, or underlying cause of the late veteran's death was a malignant neoplasm of the colon, further adding that the other conditions listed on the death certificate were comorbidities, rather than material contributors to the death.
Dr Fitzgibbon acknowledged, however, that it would be relevant to inquire whether
any of the other conditions listed on the death certificate can be considered material contributors to the death.
In other words, Dr Fitzgibbon did not rule out the possibility that more than one condition – relevantly, the malignant melanoma − could have contributed to the veteran's death.
In a report dated two days later, 31 July 2013, Dr Fitzgibbon commented on a pathology report provided by the veteran's general practitioner and concluded that on the basis of this information, the veteran did not have a melanoma which would have materially contributed to his death. Dr Fitzgibbon was commenting, however, on the superficial lesion, a lentigo maligna, which was treated in 2013, and she lacked information regarding a deeper melanoma excised in 2009. Accordingly Dr Fitzgibbon's observations and conclusions do not assist the Tribunal's deliberations as to the cause of death.
Evidence was called by the respondent from oncologist Dr Sujoy Mitra, who treated the veteran from 2006 until his death. Mr Hammond first consulted Dr Mitra after undergoing surgery for Stage 2 ascending colon cancer in 2006, and Dr Mitra continued to treat the veteran after further surgery for a recurrence of colon cancer in 2010.
Dr Mitra told the Tribunal he was satisfied that the disease from which the veteran was suffering in the final stages of his life was metastatic colon cancer rather than metastatic melanoma, based on the veteran's grossly elevated Carcinoembryonic Antigen (CEA). He considered that elevated CEA was more in keeping with colon cancer than melanoma.
Dr Mitra emphasised that CEA readings would be relevant in the current context only in relation to the diagnosis and treatment of colon cancer, not melanoma. Melanoma patients are not tested for CEA. Dr Mitra rejected the proposition that secondary melanoma could be more aggressive in its later stages than colon cancer. He emphasised that the biggest risk period for a recurrence of colon cancer, consistent with the veteran's death, is two to three years following initial diagnosis and treatment.
Under cross-examination, Dr Mitra acknowledged that his treatment had focused on the veteran's colon cancer and that he had not been provided (except by Mr Hammond himself) with a history of the veteran's melanoma treatment. He acknowledged further that in the absence of a biopsy, it was impossible to be certain as to the cause of death.
Evidence was called on behalf of the applicant from consultant forensic pathologist Dr Byron Collins. He disagreed with the basis of the Dr Mitra’s conclusions, stating that CEA production has been reported in malignant melanomas and a number of non-malignant disease processes. In his opinion, absent a definitive histological diagnosis of the widespread metastatic lesions, there was no sound pathological basis to Dr Mitra’s finding.
Dr Collins emphasised to the Tribunal that the veteran died of a metastatic disease but that it was impossible to be certain which of the primary tumours − or both − caused his death, with both medical conditions being aggressive and both capable of causing widespread metastasis.
Dr Collins did not consider that CEA levels were of diagnostic significance in determining the origin of the veteran's tumours. Under cross-examination, he maintained that CEA was a common diagnostic tool but not a totally reliable one. Whilst it was reasonable in Dr Collins's opinion for Dr Mitra to have reached his conclusions regarding the cause of death, in the absence of an autopsy it was not possible to exclude the presence of malignant melanoma, given the veteran's medical history. Dr Collins expressed surprise at the fact that Dr Mitra had treated the veteran in the absence of a full history regarding his melanoma.
Dr Collins concluded that it was impossible to be certain, in the absence of a post-mortem examination, whether the veteran's secondaries related to colon cancer, melanoma or both. His opinion, however, was that a mix of the two was more likely to be the situation.
The reality confronting the Tribunal, therefore, is that in the absence of a biopsy, it is impossible to know with medical certainty whether the veteran's metastasis was attributable to his colon cancer, his melanoma or both.
Neither of the experts called by the two parties considered it possible to express a conclusive opinion as to the cause of death. Both conceded that it was possible that the veteran's melanoma had contributed to his death, with Dr Mitra adding that this was nevertheless unlikely, while Dr Collins considered it more likely.
The applicant submitted that Dr Mitra's evidence should be discounted as he had only an incomplete history when treating the veteran. He was not aware of Mr Hammond’s surgery for melanoma in 2009, and so he focused solely on the diagnosis and treatment of the veteran’s colon cancer.
The respondent contended, on the other hand, that Dr Mitra's opinion was supported by his observations of the veteran's CEA levels, taking into account his long history of treating Mr Hammond. The Respondent also argued that as Mr Hammond’s oncologist, Dr Mitra was best placed to interpret his patient’s symptoms and history.
The cause of death is a question of fact to be decided by the Tribunal.
In Repatriation Commission v Cooke (1998) 90 FCR 307, the Federal Court determined that it is quite clear that the issue whether a disease exists, is to be decided to the reasonable satisfaction of the Commission. The same logic applies to questions about the cause of death.
Similarly, in Benjamin v Repatriation Commission [2001] FCA 1897, the court observed:
Section 120(1) of the Act assumes the existence of a relevant injury or disease and provides a standard of proof for the determination whether that injury or disease was war-caused. When the Commission, or the Tribunal on review, is required to determine whether a veteran is suffering from a particular injury or disease, that issue must be decided to the reasonable satisfaction of the decision-maker.
While the Court in Benjamin was considering whether a veteran was suffering a particular medical condition, the same reasoning applies when determining the cause of a veteran's death.
It was emphasised in Cooke and Benjamin that the reverse onus of proof in section 120(1) of the Act does not apply to the antecedent question of whether a medical condition exists. In both instances, the Court concluded that it was an issue to be decided to the reasonable satisfaction of the decision-maker. This leaves open the question of whether a determination to the reasonable satisfaction of the decision-maker necessarily imports a civil standard of proof beyond the balance of probabilities or, perhaps, something less.
In Collins, the court cited Cooke in concluding that:
in the event of a dispute about the 'death' or the medical cause or causes of death, the issue is to be decided on the balance of probabilities.
The court in Cooke did not, however, refer to the balance of probabilities as opposed to the reasonable satisfaction of the decision-maker. In the present case, the point is in any event moot because the Tribunal's decision, reached with some difficulty on the question of the facts, would be the same either way.
In summary, the issue for the Tribunal is whether, in the absence of a definitive expert opinion as to the cause of death, it can decide beyond the balance of probabilities (or, if a different standard of proof applies, that it is reasonably satisfied) that the veteran's malignant melanoma was a contributing factor to his death.
In the Tribunal's opinion, it is simply not possible to conclude with any confidence that the veteran's malignant melanoma was a contributing factor to his death. The Tribunal was impressed by the evidence provided by each of the expert witnesses. Whilst each of these witnesses expressed reservations regarding the possible involvement of malignant melanoma as a cause of the veteran's death (with Dr Mitra expressing far stronger reservations), each conceded that it was indeed a possibility. A situation exists, therefore, in which the treating specialist's opinion strongly supports the respondent (albeit with a query over the medical history upon which this opinion may in part have been formed) whilst the consulting specialist engaged by the applicant has concluded that a causal link between the malignant melanoma and the veteran's death is a possibility.
In weighing up the divergent opinions of two equally credible expert witnesses, the Tribunal simply cannot conclude that, on the balance of probabilities, or to its reasonable satisfaction (if that term implies a different standard of proof) the veteran’s malignant melanoma contributed to his death. It is possible that it did, but there is simply insufficient persuasive evidence to this effect. Neither witness could discount the possibility, but this does not render the scenario likely, or even more likely than not. The Tribunal is left with competing medical opinions with no logical basis for preferring one over the other, save that it considers that some weight should, in this instance, be given to the observations and conclusions of the treating specialist.
DECISION
For the above reasons, the Tribunal affirms the decision under review.
I certify that the preceding forty-five (45) paragraphs are a true copy of the reasons for the decision herein of Dr Gordon Hughes, Member ........[sgd]...................................................
Associate
Dated 17 September 2015
Date(s) of hearing 26 August 2015 Counsel for the Applicant Fiona Spencer Solicitor for the Applicant Jeremy Hunter, Williams Winter Solicitor for the Respondent Ken Rudge, Department of Veterans' Affairs
Key Legal Topics
Areas of Law
-
Administrative Law
-
Statutory Interpretation
Legal Concepts
-
Expert Evidence
-
Judicial Review
-
Procedural Fairness
0
4
1