Heathcote and Repatriation Commission
[2008] AATA 396
•14 May 2008
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2008] AATA 396
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2007/0714
VETERANS' APPEALS DIVISION ) Re PRISCILLA HEATHCOTE Applicant
And
REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Dr KS Levy RFD Senior Member Date14 May 2008
PlaceBrisbane
Decision The decision under review is set aside and in substitution therefor decides that Mr Heathcote’s death is defence related within the terms of the Veterans’ Entitlements Act 1986.
DISTRICT REGISTRAR
CATCHWORDS
VETERANS’ AFFAIRS – Veterans’ Entitlements – whether death of husband of the applicant was defence related – deceased employed as aircraft technician stoker – exposure to hydrocarbons – deceased aged in early forties at time of death – death due to amyloid cardiomyopathy and ischaemic heart disease – death causally related to defence service – decision under review set aside.
Veterans’ Entitlements Act 1986 ss68, 70(1), 120, 120B.
REASONS FOR DECISION
14 May 2008 Dr KS Levy RFD Senior Member 1. The Applicant, Priscilla Heathcote, is the widow of Mark William Heathcote (deceased). An application by her to recognise the death of Mark Heathcote as being related to his defence service was rejected by the Repatriation Commission on 5 November 2004, and on appeal to the Veterans’ Review Board, the Repatriation Commission decision was affirmed on 19 December 2006. Mrs Heathcote now appeals those decisions to this Tribunal under s 29(1) of the Administrative Appeals Tribunal Act 1975.
THE QUESTIONS FOR THE TRIBUNAL
2. The questions to be answered are:
(a)What “kind of death” applies in this matter i.e. is there a Statement of Principle (SoP) which is related to Mr Heathcote’s cause of death?
(b)Does any factor within the SoP cover the circumstance of Mr Heathcote’s service?
(c)Whether Mr Heathcote’s death was caused by his defence service within the meaning of section 70 of the Veterans’ Entitlements Act 1986 (“the Act”).
THE RELEVANT LEGISLATION
3. The Act relevantly provides:
“s68(1)…..
Defence service means:
(a)continuous full-time service rendered as a member of the Defence Force on or after 7 December 1972 and before the terminating date; and
…..”
“s 70(1) Where:
(a) the death of a member of the Forces or member of a Peacekeeping Force was defence caused; or
….
the Commonwealth is, subject to this Act, liable to pay:
(c) in the case of the death of the member – pension by way of compensation to the dependants of the member; or
(d) …..
in accordance with this Act.
….
(5)For the purposes of this Act, the death of a member of the Forces (other than a member to whom this Part applies solely because of section 69A) or member of a Peacekeeping Force shall be taken to have been defence‑caused, an injury suffered by such a member shall be taken to be a defence‑caused injury or a disease contracted by such a member shall be taken to be a defence‑caused disease if:
(a)the death, injury or disease, as the case may be, arose out of, or was attributable to, any defence service, or peacekeeping service, as the case may be, of the member;
…..”
“Standard of Proof
s.120 …..
(4)Except in making a determination to which subsection (1) or (2) applies, the Commission shall, in making any determination or decision in respect of a matter arising under this Act or the regulations, including the assessment or re‑assessment of the rate of a pension granted under Part II or Part IV, decide the matter to its reasonable satisfaction.”
“Reasonable Satisfaction to be assessed uncertain cases by reference to Statement of Principles
S120B
(1)This section applies to any of the following claims made on or after 1 June 1994:
(a)a claim under Part II that relates to the eligible war service (other than operational service) rendered by a veteran;
(b)a claim under Part IV that relates to the defence service (other than hazardous service) rendered by a member of the Forces.
….
(3)In applying subsection 120(4) to determine a claim, the Commission is to be reasonably satisfied that an injury suffered by a person, a disease contracted by a person or the death of a person was war‑caused or defence‑caused only if:
(a)the material before the Commission raises a connection between the injury, disease or death of the person and some particular service rendered by the person; and
(b) there is in force:
(i)a Statement of Principles determined under subsection 196B(3) or (12); or
(ii) a determination of the Commission under subsection 180A(3);
that upholds the contention that the injury, disease or death of the person is, on the balance of probabilities, connected with that service.”
4. Also, under s 196B of the Act, the Repatriation Medical Authority has issued a Statement of Principles No 24 of 2007 – Cardiomyopathy, which is relevant to this matter.
5. In particular, one of the factors which must be established to demonstrate a link between death from cardiomyopathy and circumstances of an applicant’s defence service is Factor 6(p):
“having infiltration of the myocardium due to a specified disorder at the time of the clinical onset of cardiomyopathy…”[1].
[1] Statement of Principles concerning Cardiomyopathy No. 24 of 2007 at factor 6(p).
6. “A specified disorder” is defined to include “amyloidosis”[2].
[2] Statement of Principles concerning Cardiomyopathy No. 24 of 2007 at factor 9.
EVIDENCE
7. The Tribunal was provided with substantial documentary evidence, some of which is briefly included here. Mr Heathcote served in the Royal Australian Navy (RAN) from 24 July 1979 to 23 July 1985. He was employed as an Aircraft Technician stoker and was exposed to hydrocarbons during that period of service. He had accepted as service related disabilities of Osteoarthrosis affecting both ankles and feet, lumbar spondylosis and bilateral tinnitus. None of these are related to the present claim.
8. Mr Heathcote served in the RAN from ages 18 to 24. He was aged in his early forties when he died. The death certificate discloses the causes of death as being:
1. Amyloid Cardiomyopathy – 1 year
2. Ischaemic Heart Disease
9. It was agreed by the parties at the commencement of the hearing that the deceased’s condition of cardiomyopathy was the cause of death and that it is contained within Factor 6(p) of SoP No 24 of 2007.
10. The medical evidence shows that a year before his death, Mr Heathcote was being treated for an atypical presentation of a small myocardial infarction. In March 2003, he had a number of tests to determine the location of coronary artery damage. He was diagnosed as having hypertrophic non-obstructive cardiomyopathy. He was referred to Dr Stafford in July 2003 for a procedure which was performed successfully.
11. But subsequently, he developed atrial fibrillation and was ultimately admitted to Nambour hospital on 13 November 2003 for extensive tests. He was then diagnosed as having multiple renal infarcts.
12. A continued deterioration of Mr Heathcote’s condition resulted in an exercise stress test on 13 February 2004. He was diagnosed shortly afterwards with amyloid heart disease. On 23 February 2004, arrangements were being made for his transfer to Prince Charles Hospital for potential stem cell transplant and cardiac transplantation. Unfortunately, he died suddenly on 25 February 2004. Mr Heathcote’s treating cardiologist, Dr Malcolm Davidson, opined on 11 October 2004 that the ischaemic heart disease was not of any significance overall in the cause of death. His view was that the amyloidosis developed “….as a consequence of a ‘malignant’ plasma cell dyscrasia resulting in an overproduction of light chain immunoglobulins which are then deposited throughout the various tissues in the body including bone marrow, liver, spleen, bowel, skin and heart, although distribution is variable. The condition is invariably fatal. Once cardiac involvement is present, the infiltration cannot be eradicated”[3]. In other words this process led to cardiac amyloid infiltration. Dr Davison did not know of any link of this condition to Mr Heathcote’s service history.
[3] T4; Folio 15.
13. The respondent’s case emphasised the complexity of the matter. Dr Peter Grant’s report shows that this cellular dyscrasia as discussed by Dr Davison can appear in a number of categories “including multiple myeloma, malignant lymphonas and macroglobulinaemia, and benign forms of monoclonal gammopathy”. Dr Grant determined that a further specialist opinion be sought. The respondent then received reports by Dr Poh See Choo on 20 June 2007, 16 October 2007 and 18 February 2008. Her reports and oral evidence at the hearing was that there was no evidence to suggest Mr Heathcote had multiple myeloma and this was based on a blood test on 18 November 2003, some three months before his death. Dr Poh also gave evidence that there was a definite link between myeloma and amyloidosis, however, there was no link between MGUS and amyloidosis. She also referred to studies in 1998 and 2003. Dr Poh’s opinion indicated perhaps more information would be useful to clarify whether Mr Heathcote had multiple myeloma, given his exposure to chemicals in his RAN service. She did believe the latent period between exposure and development of malignancy was clinically consistent.
14. The applicant had a report by Dr John Catalano from the Frankston Haematology and Oncology Centre. His report shows that given Mr Heathcote’s relatively young age, a process to exclude a myeloma would usually occur. If he did not fulfil the criteria for such a condition, Dr Catalano indicates there would then be “…..a fallback label/diagnosis of MGUS (monoclonal gammopathy of uncertain significance). One would then adopt a wait and watch approach to this”[4]. He further went on to report that given the cardiac biopsy result on Mr Heathcote showing cardiac amyloidosis, then in “a patient with a pre-existing paraportein (ie MGUS), one can be completely comfortable that the two are related and that the subtype of amyloidosis (for what it’s worth) would be labelled AL Amyloidosis…”[5].
[4] Exhibit 3.
[5] Exhibit 3.
15. The applicant also called Associate Professor Marion Woods, a senior specialist in Infectious Diseases at the Royal Brisbane and Women’s Hospital. Professor Woods evidence was consistent with that of Dr Catalano and Dr Davison. He indicated that in producing his report, he had consulted with Dr Peter Moller, an Amyloid expert and Professor Phillip Harlem in London. He said MGUS changes 1% per year and that exposure to benzene was associated with development of multiple myeloma. He concluded, however, that the development of the disease and the uncertainty between MGUS and myeloma merely reflected “different manifestations of the same process”. He also noted that the median age for a diagnosis of AL Amyloidosis is 60 years and that as Mr Heathcote was aged in his early forties at the time of his death, this was extraordinary.
16. Professor Woods also supported his opinion and evidence with two recent and authoritative studies:
(a)Kyle, RA et al ‘A Long Term Study of Prognosis in Monoclonal Gammopathy of Undetermined Significance’ (2002) 386(8) New England Journal of Medicine 564 - 569.
(b)Infante, P.F. ‘Benzene Exposure and Multiple Myeloma: a Detailed Meta-Analysis of Benzene Cohort Studies’ (2006) 1076 Annals New York Academy of Sciences 90-104.
17. The first study above was a very large sample and shows that patients with MGUS were 8.4 times at higher risk of developing AL Amyloidosis when MGUS is present. In the second study, the association between benzene exposure and development of multiple myeloma was statistically significant at a 95% confidence interval in a period of 20 years or more following the initial exposure to benzene. Professor Woods concluded that the benzene exposure was impliedly very significant in Mr Heathcote’s early death. Professor Woods’ view was that Mr Heathcote’s death was related to his defence service.
CONSIDERATION
18. I have considered all of the documentary and oral evidence and all of the relevant statutory and case law. This application is unusual in the sense that the most accurate diagnosis was only able to be made a very short time before the veteran’s death.
19. The veteran in this case did not have operational service. The standard of proof is therefore on the balance of probabilities. It was conceded at the start of the hearing by the Respondent that the applicant satisfied the first two questions which the Tribunal is required to answer. That is, the Respondent acknowledged that Mr Heathcote’s condition came within SoP No 24 of 2007 – Cardiomyopathy, and that the applicant’s condition satisfied factor 6(p) of that SoP. Therefore, questions 1 and 2 are answered in the affirmative and there is no evidence to suggest the Tribunal should not accept these concessions as findings of fact.
20. Question 3 (the only remaining question) is whether Mr Heathcote’s death was caused by his defence service.
21. The evidence shows that Mr Heathcote’s condition at death was a complex one and that even medical specialists grappled with the exact developmental pattern of the disease. The specialists explained its etiology in somewhat different terms in some respects. The conventional medical management of Mr Heathcote’s symptoms would not have anticipated earlier detailed tests which might have resulted in earlier diagnosis.
22. Making a determination in this case requires a retrospective view of the evidence and considering the weight to be placed on the various expert evidence in the light of lack of actual tests to determine whether MGUS was present at a much earlier time in the period between his naval service and death, or whether it was present at all. Dr Poh supports the diagnosis of AL Amyloidons but is not satisfied on the medical evidence that a diagnosis of MGUS or myeloma can be justified.
23. The Respondent’s case shows a careful analysis by Dr Grant who sought the expert assessment of Dr Poh because of the uncertainty. That uncertainty is not entirely resolved but the counter expert evidence of the treating cardiologist, Dr Davison, and the opinion of Dr Catalano are to the contrary. The balance of probabilities is not easily resolved on those different views.
24. But further information has assisted the Tribunal in this case. A description of the differentiation between MGUS and myeloma is recorded in Harrison’s Principles Internal Medicine (13th ed, 2) Part II, Section 1 Disorders of the Immune System, Plasma Cell Disorders[6]. But the evidence of Associate Professor Marion Woods was also of considerable assistance in understanding the complexities of the condition and the difficulty in determining the likely path of the disease in any particular case.
[6] See extract cited in Judge and Repatriation Commission [2002] AATA 420.
25. Professor Woods view, which essentially is supportive of the opinions of Drs Davison and Catalano believed the ultimate condition from which Mr Heathcote died (described as having a number of different contributory aspects by the experts) were “different manifestations of the same process” and that it is just a random process where some patients end up with an infiltration of the myocardia by the responsible plasma cell.
26. While the evidence of Professor Woods cumulatively with that of Dr Davison and Dr Catalano is more persuasive than Dr Poh’s conclusion, I accept Professor Wood’s opinion as it is also supported by empirical evidence which is more likely to explain the comparatively earlier death of Mr Heathcote compared to others with this condition. That empirical evidence shows that progression to AL Amyloidosis is 8.4 times more likely where MGUS is present and the pattern of the debilitating illness of Mr Heathcote tends to indicate some abnormal factor was present to explain the acceleration of the disease and particularly in someone who died at 42 years of age whereas the expected median age is closer to 60 years of age. The other complementary study by Dr Infante published in 2006 shows a statistically significant relationship between benzene exposure and multiple myeloma (at 95% confidence interval) where there had been a latency period of more than 20 years. The period between Mr Heathcote’s service and his death was 19 to 25 years, which matches the outcomes of that latter study.
27. Mr Heathcote’s case does not have the benefit of any evidence or metrics in his particular medical history to provide greater specificity. I place greater weight on the evidence of Associate Professor Woods and rely on his evidence (together with that of Dr Davison and Dr Catalano) in preference to that of Dr Poh. No other explanation of similar weight is apparent. In the final analysis, I accept the evidence of Associate Professor Woods (and that of Dr Davison and Dr Catalano), together with the empirical evidence provided, and find that the applicant’s death is causally related to his defence service, on the balance of probabilities. I find accordingly in relation to the third question put to the Tribunal.
DECISION
28. The decision under review is set aside and I find that Mr Heathcote’s death is causally related to his defence service within the terms of the Veterans’ Entitlements Act 1986.
I certify that the 28 preceding paragraphs are a true copy of the reasons for the decision herein of Dr KS Levy RFD Senior Member
Signed: .....................................................................................
Elizabeth Young, Research Associate
Date/s of Hearing 17 April 2008
Date of Decision 14 May 2008
Applicant Ms Smith
Respondent Mr J Kelly, departmental advocate
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