Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2009] AATA 922
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2007/4460
VETERANS' APPEALS DIVISION ) Re HEATHER HINWOOD Applicant
And
REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Dr M Denovan, Member Date27 November 2009
PlaceBrisbane
Decision The Tribunal sets aside the decision under review and substitutes the decision that the death of the veteran was war-caused. The matter is remitted to the Respondent to determine what, if any, rate of pension the Commonwealth is liable to pay to the applicant, date of effect being 22 March 2005.
Effect being
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Member
BACKGROUND
6. The late veteran was diagnosed with frontal lobe dementia in 1994[1]. In the same year he was diagnosed as having carcinoma of the prostate. He developed bony metastases and lymph node involvement and remained at home under the care of his wife.
[1] Folio 37 T documents
7. Mr Hinwood was admitted to Canossa Private Hospital, Oxley, on 23 June 2003 for terminal care of metastatic prostate carcinoma.
MEDICAL EVIDENCE
Dr P Grant – Senior Medical Officer Compensation
8. Dr Grant provided two reports, dated 15 December 2005 and 27 March 2007. In his earlier report, Dr Grant indicated that the risk of contracting a respiratory tract infection such as acute pneumonia is significantly increased in those with permanent damage, such as chronic obstructive airways disease (as was the case with Mr Hinwood). Dr Grant questioned whether this risk had been subsumed by events such as extensive lung secondaries from prostate cancer.
9. Dr Grant wrote his second report after examining the terminal illness notes from Canossa Nursing Home and the clinical notes of Dr Deuble. He opined that these documents did not lend support for any form of chronic airflow limitation being an active condition in the terminal phase or playing an active role in Mr Hinwood’s death.
Dr Copeland – the veteran’s general practitioner
10. General practitioner Dr Copeland was the veteran’s local medical practitioner from 1993 until the veteran’s death in 2003. In his report dated 31 October 2005, Dr Copeland said that during that time the veteran suffered a number of episodes of bronchopneumonia. Dr Copeland said that radiological studies indicated changes consistent with COAD (chronic obstructive airways disease). Dr Copeland opined that it was entirely possible that the veteran’s underlying chronic lung disease would have contributed to his contracting pneumonia in his terminal illness.
Dr M Deuble – Palliative Care Staff Specialist
11. In his report dated 28 July 2009, Dr Deuble stated that he cared for the veteran during his terminal illness in 2003. Dr Deuble opined that the veteran’s underlying chronic obstructive airways disease would have contributed in some way to the development of terminal bronchopneumonia. Dr Deuble said that this was in the setting of Mr Hinwood having extremely advanced metastatic prostate cancer. Dr Deuble opined that the veteran’s death was caused by a combination of factors contributing to pre-terminal bronchopneumonia; these factors being prostate cancer, severe fatigue, cancer-related disease and underlying…
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- Case
- [2009] AATA 922
- Decision Date
CaseChat Overview and Summary
The court considered the absence of a relevant Statement of Principles for bronchopneumonia and assessed whether there was a reasonable hypothesis that the chronic obstructive airways disease contributed to the bronchopneumonia. The court examined the evidence and found that it was reasonable to hypothesise that the chronic obstructive airways disease contributed to the bronchopneumonia. This finding was pivotal in establishing the link between the veteran's war service and his death. The court also referenced previous cases such as Repatriation Commission v Hancock, Repatriation Commission v Codd, Collins v Repatriation Commission, Byrnes v Repatriation Commission, and Langley v Repatriation Commission to support its reasoning. Ultimately, the court determined that the death was war-caused, leading to the setting aside of the previous decision and the substitution of a new decision in favour of the applicant.
The court's decision was that the death of the veteran was war-caused, and the matter was remitted to the Repatriation Commission to determine the appropriate rate of pension, if any, to be paid to the applicant. The pension was to take effect from 22 March 2005. The court's thorough analysis of the evidence and its consideration of the absence of a relevant Statement of Principles for bronchopneumonia were crucial in arriving at this conclusion. The final orders of the Tribunal were to set aside the previous decision and substitute a new decision that recognised the war-caused nature of the veteran's death, ensuring that the applicant would receive the pension from the specified date.
Orders
Orders of the court
The Tribunal sets aside the decision under review and substitutes the decision that the death of the veteran was war-caused. The matter is remitted to the Respondent to determine what, if any, rate of pension the Commonwealth is liable to pay to the applicant, date of effect being 22 March 2005.
Effect being
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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