Higginbotham and Repatriation Commission

[2010] AATA 670

Administrative Appeals Tribunal

ADMINISTRATIVE APPEALS TRIBUNAL        )

)         No: 2008/5601

Veterans' Appeals Division  )

Re: Ruth Higginbotham
Applicant

And: Repatriation Commission
Respondent

DIRECTION

TRIBUNAL:             Senior Member A K Britton
  Dr H Haikal-Muktar, Member

DATE:                      8 September 2010

PLACE:                   Sydney

The Tribunal directs the Registrar, pursuant to subsection 43AA(1) of the Administrative Appeals Tribunal Act 1975, to alter the text of the decision in this application as follows:

1.    In the Decision published on 3 September 2010, amend Item 2 as follows:

(i)Remove the words “Mrs Cecil Higginbotham be granted a war widow’s pension, effective from 17 April 2004”;

(ii)Replace with “Mrs Ruth Higginbotham be granted a war widow’s pension, effective from 30 April 2007.”

2.    In paragraph 44 of the Reasons for Decision, remove the phrase “the date of effect of this decision is 17 April 2004”; replace with “the date of effect of this decision is 30 April 2007”.

...........................[SGD]...............................

Senior Member

Administrative Appeals Tribunal

DECISION AND reasons FOR DECISION [2010] AATA 670

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2008/5601

VETERANS’ APPEALS DIVISION		)
Re		Ruth Higginbotham

Applicant

And Repatriation Commission

Respondent

DECISION

Tribunal Senior Member A K Britton
Dr H Haikal-Mukhtar, Member

Date3 September 2010

PlaceSydney

Decision

 The decision under review is set aside and a decision substituted that:

1.    Mr Cecil Higginbotham’s death was caused by his war service; and

2.    Mrs Ruth Higginbotham be granted a war widow’s pension, effective from 30 April 2007.

....................[SGD]..................

Senior Member

CATCHWORDS

VETERANS ENTITLEMENTS – widow’s pension – kind of death – aortic stenosis a cause of death – reasonable hypothesis linking aortic stenosis to war service – not demonstrated beyond reasonable doubt that aortic stenosis not war-caused – death of veteran war-caused.

Veterans Entitlements Act 1986 (Cth) — ss 8, 13, 120, 120A, 196B

Collins v Repatriation Commission [2009] FCAFC 90

REASONS FOR DECISION

3 September 2010 Senior Member A K Britton
Dr H Haikal-Mukhtar, Member      

1.      Mrs Ruth Higginbotham has lodged a claim for a widow's pension under the Veterans’ Entitlement Act 1986 (Cth)(the Act) on the ground that her husband’s death was “war-caused”. Mrs Higginbotham is the widow of veteran, Mr Cecil Higginbotham who died in March 2007 at the age of 81.  The claim was refused by the Repatriation Commission and on review, by the Veterans' Review Board. Mrs Higginbotham has applied to the Tribunal for review of that decision.

2.      Mr Higginbotham served in the Royal Australian Navy for over thirty years, six of which constituted “operational service” within the meaning of the Act. 

3.      Mrs Higginbotham contends that the causes of her husband’s death include two cardiac-related conditions — ischaemic heart disease and aortic stenosis.  The Commission contends that the sole cause of death was metastasis prostate cancer. Ischaemic heart disease is defined to mean by the “Statement of Principles” “cardiac disability characterised by insufficient blood flow to the muscle tissue of the heart due to “due to atherosclerosis, thrombosis or vasospasm of the coronary arteries”. Aortic stenosis is defined to mean “obstruction to flow across the aortic valve during left ventricular systole”.

4.      The issue to be determined is whether one or both of the claimed heart conditions were the cause of Mr Higginbotham’s death and if so, whether either or both were war-caused.  

Statutory provisions

5.      Section 13 of the Act provides that where the death of a veteran was “war-caused”, the Commonwealth will be liable to pay a pension by way of compensation to the dependants of the veteran. 

6.      The circumstances in which a veteran’s death is to be taken as having been “war-caused” are specified in s 8(1) of the Act, and include where “the death of a veteran arose out of, or was attributable to, any eligible war service rendered by the veteran...”: s 8(1)(b).

7.      The standard of proof to be applied in determining whether a veteran’s death is “war-caused” is stipulated by ss 120(1) and 120(3) of the Act, which provide:

(1) Where a claim under Part II for a pension in respect of ... the death of a veteran, relates to the operational service rendered by the veteran, the Commission shall determine ... that the death of the veteran was war-caused ... unless it is satisfied, beyond reasonable doubt, that there is no sufficient ground for making that determination.

...

(3) In applying sub-section (1) or (2) ... 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:

...

(c) that the death was war-caused ... if the Commission, after consideration of the material before it, is of the opinion that the material before it does not raise a reasonable hypothesis connecting the ... death with the circumstances of the particular services rendered by the person

Note: This section is affected by section 120A.

...

8.      Section 120A(3) provides:

(3) For the purposes of sub-section 120(3), a hypothesis connecting … 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 sub-section 196B(2) or (11); or

…

9.      Section 196B provides that where the Repatriation Medical Authority is of the view that there is sound medical-scientific evidence indicating that “a particular kind of injury, disease or death” can be related to operational service rendered by a veteran, it must determine a Statement of Principles (SoP) in respect of that kind of injury, disease or death. The SoP has to set out the factors that, as a minimum, must exist and be related to service rendered by the veteran before it can be said that a reasonable hypothesis has been raised connecting the injury, disease or death of that kind with the circumstances of that service.

meaning of terms “death” and “kind of death”

10.     The Full Court of the Federal Court in Collins v Repatriation Commission [2009] FCAFC 90 has recently considered the meaning of the word “death” and the phrase “kind of death” in the context of the Act. The following principles can be taken from that judgement:

·     The word “death” as used in ss 8 and 13, is a reference to the condition that causes the death — that is, the medical cause or causes of death. Accordingly the inquiry about the death or the kind of death for the purposes of the Act is, in essence, a question of fact about the medical cause or causes of the death : [44], [51]

·     There may be more than one medical cause of death: at [51] see also Repatriation Commission v Law [1981] HCA 57; (1980) 147 CLR 635

·     The Act does not draw a legal distinction between the ultimate or primary and secondary medical causes of death of a veteran: [88], [98]

· Any medical condition which may affect the time of death of a veteran by a measurable period, but does not otherwise play any real role in the pathological changes leading to the death (which are medically ascribed to another medical condition), is not a death (that is a medical cause of death) or a kind of death under the Act: [84].

The months before death

11.     In the months preceding his death, Mr Higginbotham was in an extremely weakened state and suffering from multiple conditions, including metastatic prostate cancer, aortic stenosis, abdominal problems, gastrointestinal bleeding and acute renal failure. The main cause of the renal failure was an obstruction to Mr Higginbotham’s urethra, which was in turn caused by the prostate cancer. Mr Higginbotham had been receiving chemotherapy throughout 2006, which was discontinued shortly before his death because of the progress of the cancer.  An echocardiogram taken in late 2006 revealed severe aortic stenosis.  Treating cardiologist, Dr John Gunning, considered that valve replacement was probably warranted, but did not recommend it because of Mr Higginbotham’s co-morbidities.

12.     In the months prior to his death, Mr Higginbotham was admitted to Royal North Shore Hospital on a number of occasions. He was transferred to Longueville Private Hospital on 1 February 2007 for treatment of septicaemia and returned to Royal North Shore 18 days later. On 24 February 2007 he returned to Longueville Hospital, where he died on 17 March 2007. 

13.     The medical certificate of death completed by Mr Higginbotham’s GP, Dr A Bowes states:

Part 1

(a) [Disease or condition directly leading to death]

Hypostatic pneumonia                   12 years [sic]

(b) [Antecedent causes (morbid conditions, if any, giving rise to the above mentioned cause, stating the underlying condition last]

Metastic cancer prostate               6 months

Part 2

[Other significant conditions contributing to the death, but not related to the disease or conditions causing it]

Acute myocardial infarction          2 weeks

Acute renal failure  6 weeks

conflict between the experts

14.     Three experts gave evidence in these proceedings about the cause of Mr Higginbotham’s death — oncologist Professor John Levi; cardiologist Professor Michael O’Rourke; and general physician with an interest in cardiology, Dr Richard Haber.  All prepared reports and gave oral evidence. All agreed that metastic prostate cancer was a cause of death, but disagreed about the extent to which, if any, either claimed heart condition was a contributory factor.  Professor Levi thought that prostate cancer was the sole cause of death, and aortic stenosis a minor contributing factor. Dr Haber on the other hand believed that three conditions contributed to Mr Higginbotham’s death — ischaemic heart disease (IHD), aortic stenosis and prostate cancer and that of these, ischaemic heart disease was probably the main cause. Professor O’Rourke agreed that aortic stenosis was a contributing factor, but did not agree with Dr Haber that ischaemic heart disease contributed to the death. Professor O’Rourke thought that myocardial ischaemia (insufficient blood to the heart muscle) was a possible cause.

15.     Dr Haber and Professor O’Rourke used the terms ischaemic heart disease and coronary artery disease interchangeably, and we will adopt that approach in these Reasons. 

16.     The experts also disagree on whether in the weeks before Mr Higginbotham’s death he had suffered an acute myocardial infarction (heart attack).  Dr Haber thought it probable; Professor Levi thought it possible and Professor O’Rourke thought it “highly unlikely”.

17.     Each expert was asked how they would have completed Mr Higginbotham‘s death certificate. Their respective responses are set out in the table below.

Dr Bowes	Professor O’Rourke	Dr Haber	Professor Levi
Part 1	(a)	Hypostatic pneumonia	Hypostatic pneumonia	Hypostatic pneumonia	Hypostatic pneumonia
	(b)	Metastic cancer prostate	Metastic prostate cancer	Acute myocardial infarction, due to ischaemic heart disease	Progressive metastic cancer of the prostate
Part 2		Acute myocardial infarction Acute renal failure	Aortic stenosis Acute renal failure	Metastic prostate cancer Acute renal failure Aortic stenosis	Acute myocardial infarction Aortic stenosis Acute renal failure

Was aortic stenosis a cause of death? 

18.     As noted, the experts agree that at the time of his death, Mr Higginbotham suffered from severe aortic stenosis, but disagree on the extent to which it contributed to his death.

19.     Professor O’Rourke gave this explanation of the effect of severe aortic stenosis: 

People with severe aortic stenosis can die of severe aortic stenosis on account of the lack of blood supply to the heart and the very high requirements of the heart for blood in the presence of the need to establish a much higher pressure than is normally generated by the heart, and it normally requires surgery in order that people can live.

20.     In a report prepared for these proceedings, Professor O’Rourke wrote that aortic stenosis may have accelerated Mr Higginbotham’s death, but only by “a matter of hours or days”.  He wrote that his prostate cancer was so advanced that Mr Higginbotham would have died of it at the same time regardless of the existence of heart disease.  In oral evidence, he said that aortic stenosis was a contributing cause of death, the most serious condition after his cancer. In his opinion Mr Higginbotham had developed severe aortic stenosis with complications of pulmonary oedema (fluid in the lungs), unstable angina (worsening chest pain,) and heart ischaemia (reduced blood supply to the heart muscle). He thought that aortic stenosis would have determined Mr Higginbotham‘s life expectancy if it were present alone and, conversely, that his cancer was sufficiently bad and extensive to be directly responsible for his death. 

21.     According to Dr Haber, in the months leading up to his death, Mr Higginbotham had been suffering from three very serious conditions – prostate cancer, ischaemic heart disease, and aortic stenosis and an acute myocardial infarction which ultimately “carried him off”. He disagreed with the opinion expressed by Professor Levi that Mr Higginbotham would have died of prostate cancer at the same time regardless of his heart conditions. He said, somewhat colourfully:

How can anybody say at the same time as anything else? … I can’t tell.  Nobody can tell whether you’re going to die at the same time or not, you know, that’s predicting when someone is actually going to die.  I envy [Professor Levi’s] abilities.

…

I’m not disagreeing that he was dying from [cancer] - or that his cancer was contributing.  I’m simply saying how can anybody predict when this would happen?

[Transcript of proceedings, Higginbotham v Repatriation Commission (AAT, 30 June 2010), P-69]

22.     When asked to explain the apparent conflict between his opinion that it is impossible to predict when a person is going to die and his assertion that an acute myocardial infarction had “carried off” Mr Higginbotham, he said:

[Y]ou’re dying from a few causes.  You can’t predict when you’re going to die from any one of them, but obviously one is really leading the horses … then obviously that is the one that is most likely to be the final cause, but not the only cause.  And in this case, I believe that the heart was killing him and the prostate was there waiting for its chance, but didn’t get a chance. 

[Transcript of proceedings, Higginbotham v Repatriation Commission (AAT, 30 June 2010), P-68]

23.     Professor Levi acknowledged that Mr Higginbotham suffered from severe aortic stenosis, which resulted in a degree of pulmonary oedema and breathlessness, that the condition possibly had some minor involvement in his deterioration, and that it might have accelerated the time of death by a day or two. He thought that any contributory role played by aortic stenosis in relation to Mr Higginbotham’s death would have been minor. 

Was ischaemic heart disease a cause of death?

24.     A critical point of difference between Dr Haber and Professor O’Rourke is whether Mr Higginbotham suffered from ischaemic heart disease, in addition to aortic stenosis. They also differ on an interrelated issue — whether Mr Higginbotham had suffered an acute myocardial infarction shortly before his death.  The two issues are related because the likely cause of acute myocardial infarction is ischaemic heart disease, not aortic stenosis. 

25.     Dr Haber’s opinion that Mr Higginbotham suffered from ischaemic heart disease is based on the following:

26.     First, the report prepared by treating cardiologist, Dr Gunning dated 13 July 2000, in which he noted that the results of an echocardiogram revealed moderate ischaemic cardiomyopathy (damaged heart muscle) and localised areas of reduced function.

27.     Second, the reference made by Dr Gunning in the above report to “known coronary artery disease” and his intention to commence treatment with daily aspirin. Dr Haber and Professor O’Rourke agree that aspirin is a standard treatment for ischaemic heart disease — although Professor O’Rourke contends it is a routine recommendation made to persons in Mr Higginbotham’s age group even where the presence of ischaemic heart disease has not been confirmed.

28.     Third, his view that the evidence indicated that Mr Higginbotham had suffered an acute myocardial infarct shortly before death.  In addition to the GP’s certification that an acute myocardial infarct was the condition that led directly to death, Dr Haber relied on the Royal North Shore Hospital Discharge Summary, prepared on 23 February 2007 — in particular, on the references to Mr Higginbotham having experienced chest pain; localised ECG changes of ST depression in the anterior leads (V2 – V5); significantly raised troponin levels (a biochemical marker for cardiac damage); the reference to “not for angiogram [a test used to detect ischaemic heart disease] because of co-morbidity”; Dr Gunning’s instruction to “add on” treatment with clopidogrel and GTN paste which Dr Haber, described as “classic treatments” for a person who had suffered a recent heart attack.  According to Dr Haber, these references indicated that Mr Higginbotham had not only suffered an acute myocardial infarct, but was also receiving treatment for it.  

29.     According to Dr Haber, renal impairment could not account for the high level of troponin in Mr Higginbotham’s blood recorded in the discharge summary. The reported levels, he asserted, indicated cardiac damage caused by coronary artery disease. In fact, he queried the diagnosis of acute renal failure, and thought it more likely that Mr Higginbotham had chronic renal impairment which had progressively worsened over the years.

30.     Dr Haber explained that Mr Higginbotham’s sudden deterioration, which caused him to be transferred from Longueville to Royal North Shore Hospital the month before his death, could only be accounted for by a sudden event such as a myocardial infarction, rather than a progressive deterioration resulting from his prostatic cancer.

31.     Central to Professor O’Rourke’s opinion that Mr Higginbotham did not have coronary artery disease are two reports prepared by Dr Gunning, written months before his death.  In both reports, Dr Gunning provided a diagnosis of severe aortic stenosis but made no mention of ischaemic heart disease.  In a report dated 1 December 2006, Dr Gunning wrote that the echocardiogram undertaken on 3 November 2006 revealed that “left ventricular systolic function was normal”. 

32.     Professor O’Rourke and Dr Haber agree that the references in the 2006 report to left ventricular systolic function being normal and in the 2000 report of “hypokinesis [decreased muscle activity] of the left ventricle” are entirely incompatible, and only one can be correct. Both thought the reason for the error was probably a flawed echocardiogram report. Professor O’Rourke believes that the error lay in the first report; Dr Haber believes it lay in the more recent report.

33.     Professor O’Rourke was recalled to give evidence because on the first occasion the Royal North Shore Hospital discharge summary was not available. He did not accept that it supported Dr Haber’s opinion that Mr Higginbotham had suffered either an acute myocardial infarct or had been suffering from ischaemic heart disease.  Unlike Dr Haber, he thought that the raised troponin levels were attributable to aortic stenosis and/or renal failure, not ischaemic heart disease. He thought that the levels were not high enough to indicate a myocardial infarct — and at best that they might indicate a “very small” infarct.  He did not share Dr Haber’s opinion that the reference “not for angiogram because of co-morbidities” indicated that Dr Gunning thought that his patient suffered ischaemic heart disease.  Rather, in Professor O’Rourke’s opinion it indicated that Dr Gunning considered and quickly discarded requesting the test.  Professor O’Rourke thought that the references in the summary to increased heart rate and chest pain were not, as Dr Haber believed, suggestive of coronary artery disease.  In his opinion, they were attributable to aortic stenosis and septicaemia.  He thought the “acute event” that led to the admission to Royal North Shore Hospital was septicaemia, which resulted in Mr Higginbotham suffering a high fever and needing treatment by way of intravenous antibiotics.  

34.     Professor O’Rourke agreed with the proposition that the prevalence of coronary artery disease increased with age. In his opinion while most people in their eighties suffered from the disease, the number for whom the condition was “haemodynamically significant” (i.e. likely to bring on symptoms with exercise) was small — between 3 to 5%. He thought it remotely possible, but highly unlikely, that Mr Higginbotham had coronary artery disease.

what was the cause or causes of death?

35.     Our task is to decide on the balance of probabilities the medical cause or causes of Mr Higginbotham’s death. It is agreed that “hypostatic pneumonia” hastened but was not the “cause of death” within the meaning of the Act.  It is also agreed that prostate cancer was a cause of the death. The point of disagreement centres on whether, as Mrs Higginbotham contends, ischaemic heart disease and aortic stenosis were both also causes of the death.  The Commission contends that while Mr Higginbotham’s various heart conditions might have accelerated the death by a matter of hours or days, cancer was the sole cause of death. 

36.     Each of three experts who gave evidence in these proceedings is highly skilled, experienced and respected within their respective specialities. All set out the assumptions on which their opinions are based and provided sound, reasoned and plausible arguments in support. While there was much about which they agree, they differed on a key point — the extent to which Mr Higginbotham’s heart-related conditions contributed to his death.  Their disagreement illustrates the real difficulty of retrospectively determining the real cause of death in a case such as this, where the deceased had been suffering from multiple conditions and conclusive evidence in the form of an autopsy or other determinative test is unavailable.

37.     While the experts differ on the extent to which aortic stenosis was a contributory factor to Mr Higginbotham’s death, all agree that it made some contribution, and would have recorded it as a “contributing factor” on the death certificate. Even Professor Levi, who did not resile from his opinion that prostate cancer was the main cause of death, thought it might have contributed to a degree. Professor O’Rourke thought it was the second-most significant condition after prostate cancer, and while in his written report he wrote that its role was restricted to the timing of the death, in his oral evidence he conceded that it was a contributory factor, albeit secondary to the cancer.  In Dr Haber’s “race to the finish” analogy, aortic stenosis came a close second to ischaemic heart disease.

38.     It is uncontroversial that at the time of his death, Mr Higginbotham was suffering from the symptoms of severe aortic stenosis which included pulmonary oedema and angina. His condition was severe enough to prompt his treating cardiologist to entertain valve replacement.  We are satisfied that aortic stenosis played a real role in the pathological changes leading to the death of Mr Higginbotham and that, while a secondary medical cause, the nature of contribution was not merely one of timing.

39.     The disagreement between Dr Haber and Professor O’Rourke about whether Mr Higginbotham had coronary artery disease centres largely on the apparent discrepancy between the echocardiograms performed in 2000 and 2006, with the latter revealing no underlying ischaemic cardiac pathology. Given that no mention is made in his more recent reports of ischaemic heart disease, we think it more likely than not that the latter correctly recorded Dr Gunning’s opinion, and that in late 2006 ischaemic cardiac pathology was not evident on the echocardiogram. While in the absence of any objective evidence the possibility that Mr Higginbotham suffered an acute myocardial infarction cannot be excluded, we could not be satisfied to the requisite degree that this occurred.  For these reasons, we could not be satisfied on balance that ischaemic heart disease was a cause of death.

40.     In conclusion, we are satisfied that aortic stenosis, in addition to prostate cancer, was a “cause of death”. We are not satisfied that ischaemic heart disease was a “cause of death”.

Was the condition war-caused?

41.     The final issue we must decide is whether Mr Higginbotham‘s condition of aortic stenosis was war-caused. This requires us to identify the applicable Statement of Principles (SoP), if any, and decide whether any hypothesis raised by the material before us conforms with any of the factors listed in the SoP. If yes, we must determine that Mr Higginbotham’s aortic stenosis was “war-caused” unless satisfied, beyond reasonable doubt, that there is no sufficient ground for making that determination: s 120(1) of the Act.

42.     The SoP relied on by Mrs Higginbotham for aortic stenosis is No. 54 of 2002 as amended.  It lists a number of factors that at the minimum must exist before it can be said that a reasonable hypothesis has been raised connecting death from aortic stenosis with the circumstances of Mr Higginbotham’s service. Mrs Higginbotham relies on factor 5(e): “the presence of hypertension at the time of the clinical onset of aortic stenosis”.  The parties agree that there is material pointing to the presence of hypertension at the time of the onset of aortic stenosis, including the report of Dr Horden prepared in 1995. The SoP for hypertension, No. 35 of 2003, as amended by SoP No. 11 of 2008, includes as a risk factor: “suffering from a clinically significant anxiety disorder for the six months immediately preceding the clinical onset of hypertension”: 6(n). Mr Higginbotham’s “anxiety state“ has been accepted as “war-caused”. The parties also agree that the material points to the condition being present in the six months before the clinical onset of hypertension.

43.     We are satisfied that there is material that supports a hypothesis linking death from aortic stenosis with the circumstances of Mr Higginbotham’s service. As the Commission properly concedes, we could not be satisfied beyond reasonable doubt that there is no sufficient ground for making that determination.  Therefore we must find that Mr Higginbotham‘s aortic stenosis was war-caused.

Orders 

44.     Given these findings, the decision under review must be set aside. We decide in lieu that Mr Higginbotham’s death was caused by his operational service, and the claim for war widow’s pension made by Mrs Higginbotham should be granted. The date of effect of this decision is 30 April 2007.

I certify that the 44 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member A K Britton and Dr H Haikal-Mukhtar, Member.

Signed: .................................[SGD].....................................
  Associate to Senior Member Britton

Dates of Hearing:  29, 30 June 2010; 10 August 2010
Date of Decision:  3 September 2010
Counsel for the Applicant:        Mr M Vincent
Solicitor for the Applicant:         Kemp & Co

Solicitor for the Respondent:     Department of Veterans Affairs,

Advocacy Section