HEATHER HINWOOD and REPATRIATION COMMISSION
[2009] AATA 922
•27 November 2009
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
...................[Sgd].................
Member
CATCHWORDS
VETERANS’ AFFAIRS – pension – widow of veteran – veteran’s operational service was with Royal Australian Air Force during World War II – bronchopneumonia contributed to kind of death suffered by veteran – no relevant Statement of Principles for bronchopneumonia – reasonable hypothesis exists that chronic obstructive airways disease contributed to bronchopneumonia – contraction of bronchopneumonia was attributable to war service – decision under review set aside – applicant to be pension from 22 March 2005.
Veterans’ Entitlements Act 1986 (Cth) – s9, 14, 120, 120A
Repatriation Commission v Hancock [2003] FCA 711
Repatriation Commission v Codd (2007) 95 ALD 711
Collins v Repatriation Commission [2009] FCAFC 90
Byrnes v Repatriation Commission (1993) 177 CLR 564
Langley v Repatriation Commission [1993] FCA 299
REASONS FOR DECISION
27 November 2009 Dr M Denovan, Member INTRODUCTION
1. Ian Ramsay Hinwood (“the veteran”) was born on 20 July 1924 and served in the Royal Australian Air Force during World War II from January 1943 to September 1947. As the veteran served outside Australia, the whole period of his war-time service is operational service in accordance with the Veterans’ Entitlement Act 1986 (“the Act”). The veteran died on 15 July 2003 at the age of 78 years. The cause of death was certified as bronchopneumonia, metastatic prostate carcinoma and primary prostate carcinoma. At the time of his death, the Repatriation Commission (“the Commission”) had only accepted liability for bi-lateral sensori neural hearing loss, chronic bronchitis and emphysema.
2. Mrs Heather Hinwood, the veteran’s widow (“the applicant”), lodged a claim for pension under s 14 of the Act, on the basis that the veteran's death was war-caused. The claim was refused by a delegate of the Commission in a decision dated 10 August 2005. That decision was affirmed by the Veterans’ Review Board (“the VRB”) on 12 June 2007. The applicant applied to the Administrative Appeals Tribunal (“the Tribunal”) for review on 14 September 2007.
3. The applicant’s representative, Mr Clarke of Legacy Australia, contends that the veteran’s accepted condition of chronic bronchitis and emphysema contributed to him contracting bronchopneumonia, from which he died.
4. This matter was heard on the papers.
ISSUES
5. The issues to be determined by the Tribunal are:
(a)the kind of death suffered by the veteran; and
(b)whether the veteran’s death was war-caused.
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 chronic obstructive lung disease.
Dr R Edwards, Respiratory Physician
12. Dr Edwards saw the veteran at the request of the Department of Veterans Affairs, on 8 October 2002. In his report dated the same, Dr Edwards noted that investigations showed the veteran had severe airway obstruction, with moderately severe air trapping.
13. In a further report, dated 1 May 2009, Dr Edwards stated that Mr Hinwood had severe chronic airway obstruction related to emphysema. Dr Edwards opined that the severe chronic airway obstruction and emphysema would have contributed to making him a higher risk of developing bronchopneumonia.
KIND OF DEATH
14. The Tribunal’s first task is to determine, on the balance of probabilities, the kind of death suffered by the veteran. In Repatriation Commission v Hancock[2], Selway J explained the process to be adopted:
(a) First, the Tribunal was required to determine, on balance of probabilities, whether the pre-conditions other than causation, had been made out. None of these were in dispute.
(b) Next, the Tribunal was required to determine on balance of probabilities what ‘kind of death' Mr Hancock had suffered. This involved the identification, on balance of probabilities, of any and all SoPs and/or determinations under s 180A(2) of the Act and any other ‘kinds of death’, which were applicable to that death.
(c) If one or more SoPs were applicable, then the methodology in Deledio is applicable in relation to those ‘kinds of death'.
(d) If only a determination under s 180A(2) is applicable, then the application must fail.
(e) If no SoP and no determination is applicable at all or to a particular "kind of death", then the methodology in Byrnes is applicable in relation to that.
[2] [2003] FCA 711 (16 July 2003) at para 11.
15. The purpose of addressing the issue of the relevant “kind of death” is to establish which Statements of Principles (“SoP”), if any, applies to the claim[3]. The kind of death to be considered is the medical cause of death including the contributing or underlying medical cause of death[4].
[3] Repatriation Commission v Codd (2007) 95 ALD 619 at 626
[4] Repatriation Commission v Codd (2007) 95 ALD 619 at 626 at 627.
16. In this case, the pre-conditions to addressing the issue of the relevant kind of death are not in dispute: namely, that Mr Hinwood was a veteran who died and Mrs Hinwood is his widow.
17. In regard to the kind of death suffered by the veteran, the death certificate lists the causes of death to be bronchopneumonia, metastatic prostate carcinoma and primary prostate carcinoma.
18. Mr Kelly, for the respondent, contends that the kind of death suffered by the veteran was metastatic carcinoma of the prostate. The applicant, through her representative, contends that the condition of chronic obstructive airways disease should be considered as contributing to the kind of death. Mr Kelly referred to the recent Full Federal Court decision of Collins v Repatriation Commission[5].
[5] [2009] FCAFC 90.
19. Drs Edwards, Deuble and Casperson have all indicated that bronchopneumonia contributed to the kind of death of the veteran. Significantly, Dr Deuble is a specialist and treated the veteran in the last weeks of his life. There is no medical opinion before the Tribunal that suggests otherwise. Whilst Dr Grant has opined that the veteran did not have active chronic obstructive airways disease in the weeks prior to his death, he has not disputed that bronchopneumonia was a cause of death.
20. Accordingly, the Tribunal is satisfied that, on the balance of probabilities, bronchopneumonia contributed to the kind of death suffered by the veteran. There is no relevant SoP for this condition.
WAS THE VETERAN’S DEATH WAR-CAUSED?
21. The second issue that the Tribunal has to address is whether the veteran’s death was war-caused. The question of whether an injury or disease is taken to be war-caused is covered in s 9(1) of the Act. This section relevantly provides:
(1)Subject to this section, … for the purposes of this Act, an injury suffered by a veteran shall be taken to be a war-caused injury, or a disease contracted by a veteran shall be taken to be a war-caused disease, if:
(a)the injury suffered, or disease contracted, by the veteran resulted from an occurrence that happened while the veteran was rendering operational service;
…
22. The parties agree that the veteran’s service constitutes operational service. The question of whether death is war-caused is to be determined by applying ss 120(1) and 120(3) of the Act. Those sections provide that:
(1)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.
Note: This subsection is affected by section 120A.
…
(3)In applying subsection (1) or (2) in respect of the incapacity of a person from injury or disease, or in respect of the death of a person, related to service rendered by the person, the Commission shall be satisfied, beyond reasonable doubt, that there is no sufficient ground for determining:
(a) that the injury was a war-caused injury or a defence-caused injury;
(b)that the disease was a war-caused disease or a defence-caused disease; or
(c) that the death was war-caused or defence-caused;
as the case may be, if the Commission, after consideration of the whole of the material before it, is of the opinion that the material before it does not raise a reasonable hypothesis connecting the injury, disease or death with the circumstances of the particular service rendered by the person.
Note: This subsection is affected by section 120A.
23. Section 120A of the Act provides that, in the case of applications lodged after 1 June 1994, where the Repatriation Medical Authority (“RMA”) has made an SoP in respect of a particular kind of injury or disease, the reasonableness of a hypothesis is to be assessed by reference to that SoP. This follows from s120A(3), which provides:
(3)For the purposes of subsection 120(3), a hypothesis connecting an injury suffered by a person, a disease contracted by a person or the death of a person with the circumstances of any particular service rendered by the person is reasonable only if there is in force:
(a)a Statement of Principles determined under subsection 196B(2) or (11); or
(b) a determination of the Commission under subsection 180A(2);
that upholds the hypothesis.
24. Bronchopneumonia is not the subject of an SoP. Therefore, the Tribunal must apply the test prescribed by s120 of the Act, in accordance with the steps set out in Byrnes v Repatriation Commission[6].
[6] (1993) 177 CLR 564.
25. The hypothesis put forward by the applicant is that the veteran’s accepted condition of chronic obstructive airways disease contributed to his contraction of bronchopneumonia.
26. After considering the whole of the material, I consider that there is evidence which points to each sequential part of the overall hypothesis. I consider that the hypothesis advanced by the applicant is more than a possibility and is not fanciful. I therefore consider that a reasonable hypothesis exists.
27. Applying s120(1), the claim must succeed unless one or more of the facts necessary to support the hypothesis are disproved beyond reasonable doubt, or the truth of another fact in the material, which is inconsistent with the hypothesis, is proved beyond reasonable doubt (thus disproving the hypothesis beyond reasonable doubt).
28. Based on the evidence of Drs Edwards, Deuble and Copeland, I am satisfied that the veteran’s underlying condition of chronic obstructive airways disease contributed to him contracting bronchopneumonia. The only medical opinion that would support a contrary view is that of Dr Grant. Dr Grant’s opinion is based on records only; he has never examined the veteran. Further, the Tribunal prefers the opinion of Dr Edwards, a specialist respiratory physician, to that of Dr Grant who has no specialty qualifications. Whilst it is clear that the veteran was also suffering from advanced prostate metastatic disease, there is no medical evidence to support Dr Grant’s suggestion that that condition subsumed the risk of bronchopneumonia created by the veteran’s COAD condition. There is no suggestion in the medical evidence before me that the veteran’s prostate cancer contributed in any way to him developing bronchopneumonia.
29. The fact that a number of other medical conditions may have contributed to the late veteran’s death does not mean the claim fails. The facts of this matter are very different to those in the matter of Collins v Repatriation Commission[7]. There is no evidence before me as to the veteran’s likely life expectancy had he not contracted bronchopneumonia. Whilst he had a terminal illness, in the absence of such evidence it is not open for this Tribunal to conclude that by contracting bronchopneumonia the veteran died only hours or days earlier than he otherwise would have. The veteran’s contraction of bronchopneumonia occurred when it did, and his subsequent death one day later was therefore attributable to war service[8].
[7] Collins v Repatriation Commission [2009] FCAFC 90.
[8] See Langley v Repatriation Commission [1993] FCA 299, approved by Edmonds J in Collins v Repatriation Commission [2009] FCAFC 90.
DECISION
30. The Tribunal sets aside the decision under review and substitutes the decision that the death of the veteran was war-caused and remits the matter to the respondent to determine what, if any, rate of pension is payable to the applicant, with the date of effect being 22 March 2005.
I certify that the 30 preceding paragraphs are a true copy of the reasons for the decision herein of Dr M Denovan, Member.
Signed: .............................[Sgd]...................................
Research AssociateHearing on the Papers 28 October 2009
Date of Decision 27 November 2009
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