Hurley and Repatriation Commission
[2012] AATA 74
•10 February 2012
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2012] AATA 74
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2010/4087
VETERANS’ APPEALS DIVISION ) Re Rita Hurley Applicant
And
Repatriation Commission
Respondent
DECISION
Tribunal Deputy President J W Constance Date10 February 2012
PlaceMelbourne
Decision The decision of the Repatriation Commission made 16 February 2009 refusing the application of Mrs Hurley for a widow’s pension under the provisions of the Veterans’ Entitlements Act 1986 (Cth), is affirmed.
....(sgd J W Constance).......
Deputy President
CATCHWORDS
VETERANS’ AND MILITARY COMPENSATION – Army – whether the veteran’s death was war-caused – cause of death – ischaemic heart disease – carcinoma of the prostate – decision under review affirmed
Veterans’ Entitlements Act 1986 (Cth) ss 8(1)(b) and 13
Collins v Repatriation Commission [2009] FCAFC 90
Repatriation Commission v Law (1980) 147 CLR 635REASONS FOR DECISION
10 February 2012 Deputy President J W Constance INTRODUCTION
1. Mrs Hurley is the widow of the late Mr Hurley who died on 30 November 2008. Mr Hurley served in the Australian Army from 27 December 1941 until 12 August 1946. At least part of this period of service was operational service within the meaning of the Veterans’ Entitlements Act 1986 (Cth).
2. Mrs Hurley has claimed that her late husband’s death was war-caused and that as a result she is entitled to payment of a widow’s pension under the Act. The Commission rejected the claim. The Veterans’ Review Board has affirmed the Commission’s decision. Mrs Hurley has applied to the Tribunal to review the Commission’s decision.
3. For the reasons which follow the decision under review will be affirmed.
LEGISLATION
4. Under section 13 of the Act Mrs Hurley is entitled to be paid the pension she seeks if her husband’s death was war-caused. Subsection 8(1)(b) of the Act provides, in part:
… for the purposes of this Act, the death of a veteran shall be taken to be war caused if … the death of the veteran arose out of, or was attributable to, any eligible war service rendered by the veteran.
ISSUE FOR DETERMINATION
5. Prior to Mr Hurley’s death the Commission determined that he suffered several war-caused conditions, one of which was ischaemic heart disease. The only issue before the Tribunal is whether the ischaemic heart disease was a medical cause of Mr Hurley’s death. The Commission concedes that, if the heart disease was a cause of Mr Hurley’s death, the death was war-caused and Mrs Hurley is entitled to receive the pension.
FACTS
6. Mr Hurley was diagnosed with ischaemic heart disease in October 2005 following an acute myocardial infarct. He was admitted to St Vincent’s Private Hospital in November 2005 and coronary artery stenting was performed.
7. Prior to the surgery Mr Hurley had complained of chest pain. The surgery relieved these symptoms. [1] However after the surgery Mr Hurley continued to complain of experiencing an irregular heartbeat.[2]
[1] Exhibit A1, statement of Mrs Hurley dated 19 July 2011.
[2] Evidence of Mrs Hurley 20 January 2012.
8. In 2007 Mr Hurley was diagnosed as suffering cancer of the prostate. Although surgery and hormone treatment initially brought about an improvement in Mr Hurley’s condition, in July 2008 a CT scan showed “extensive metastases in the para-aortic abdominal lymph nodes and throughout the whole bony skeleton.” [3]
[3] Exhibit R2.
9. In October 2008 Mr Hurley suffered significant anaemia and received a blood transfusion.
10. On 20 November 2008 Mr Hurley was admitted to hospital for palliative care for metastatic cancer. He died in hospital on 30 November 2008.
11. Mr Hurley’s death was certified by his general practitioner, Dr Scaife. The medical certificate recorded the cause of death and duration of last illness as “metastatic prostate carcinoma – 18 months.” [4]
MEDICAL EVIDENCE AND OPINION
[4] Exhibit R6 p.19.
Report of Dr Coggins, Consultant Physician
12. Dr Coggins assessed Mr Hurley at the request of Dr Scaife.
13. On 17 March 2008 Dr Coggins reported that “[a]s far as his ischaemic heart disease is concerned this seems to be relatively stable …” [5]
[5] Exhibit R1 p.117.
Dr Scaife, General Practitioner
14. Dr Scaife was Mr Hurley’s general practitioner from 1986 until his death. Dr Scaife provided a report dated 23 June 2011 [6] and gave evidence.
[6] Exhibit A2.
15. In his report Dr Scaife stated:
I have reviewed a copy of the actual death certificate I wrote.
On review of Mr Hurley’s history I have now to say that his ischemic heart disease was significant in relation to his death.
He had known ischemic heart disease. Furthermore, he was anaemic secondary to his metastatic prostate carcinoma. He was given a transfusion for this about 2 months before he died.
I can therefore confirm that the timing of his death was influenced by his ischemic heart disease as this would have been worsened by his anaemia.
I did not include this on his death certificate, as carcinoma of the prostate was sufficient for recording the principal cause of death. However as is often the case, other pathologies are present, and my opinion now, as I have explained above, is that ischemic heart disease was a significant factor.
When he gave evidence Dr Scaife confirmed the opinions expressed in the report.
16. Mr Hurley consulted Dr Scaife intermittently between the time of the stenting procedure and the diagnosis of prostate cancer. In that time Mr Hurley complained of left chest pain. Dr Scaife was uncertain as to the nature of this pain.
17. In the opinion of Dr Scaife, Mr Hurley’s anaemia was probably caused by the cancer and would have worsened the effects of his ischaemic heart disease. He was of the opinion also that it was probable that the timing of Mr Hurley’s death was affected by the ischaemic heart disease. When asked as to the process by which this would occur Dr Scaife said that anaemia reduces the ability of the heart to pump blood as a result it is less likely to be able to respond to pain.
18. Dr Scaife expressed the opinion that the probable immediate cause of Mr Hurley’s death was hypostatic pneumonia brought on by his being confined to bed and his breathing difficulties. He was of the view that a combination of factors (all of which would have been a result of the cancer) may have eventually contributed to death. In his opinion, if Mr Hurley had not suffered heart disease the cancer would still have caused the death, but it may have been longer before death occurred.
Professor Cade, Intensive Care Specialist
19. Professor Cade considered the various records relating to Mr Hurley together with the reports of Dr Scaife and the statement of Mrs Hurley. He provided reports dated 21 March 2011, 16 May 2011 and 18 January 2012[7] and gave evidence.
[7] Exhibits R2, R3 and R4 respectively.
20. On 21 March 2011 Professor Cade reported in part:
The operative cause of the veteran’s death was undoubtedly his advanced and incurable malignancy. This is because his malignancy had been confirmed histologically 17 months earlier, because it was already metastatic at the time of initial diagnosis, because it had become refractory to available therapy, because extensive further metastases had been identified 4 months before he died and because palliative (i.e. terminal) care had been the indication for his final hospital admission. Under such circumstances, death from the malignancy is expected to be both inevitable and imminent.
…
The veteran had documented ischaemic heart disease since 2005. Ischaemic heart disease can theoretically contribute to death via a new ischaemic event, an acute arrhythmia or cardiac failure. However, the veteran’s physician reported that his ischaemic heart disease was stable 3 months before he died, and the medical record of his last hospital admission did not include any clinical features suggestive of a current problem attributable to ischaemic heart disease. Thus, there is no evidence that could identify in the available documentation to suggest that ischaemic heart disease might have materially contributed to the veteran’s death.
I was unable to identify any other documented condition which could have realistically had potential to contribute to the veteran’s death under the circumstances described.
21. Professor Cade agreed with Dr Scaife’s opinion that anaemia is a factor in the possible worsening of ischaemic heart disease. However in his report of 18 January 2012 he expressed the following opinion:
I agree that anaemia is a well recognized factor in the potential exacerbation [sic] ischaemic heart disease. Whether it does so in an individual case requires examination of the clinical details of that particular case. In the present case, I have been unable to find any evidence of a clinical problem from ischaemic heart disease (whether exacerbated by anaemia or not) in the period leading up to the patient’s death. Thus, as I previously reported
· “the episode (of ischaemic heart disease) occurred three years before the patient’s death,
· the culprit coronary artery lesion was stented and the other coronary arteries were normal,
· there was no subsequent follow-up to suggest a continuing clinical problem in this area,
· review by Dr Coggins, physician, eight months before he [sic] died found the patient’s ischaemic heart disease to be stable,
· no clinical features suggestive of an ongoing cardiac problem were recorded during the multiple medical assessments in the months before the patient died, and
· the veteran had advanced, incurable and metastatic cancer which would have been inevitably fatal in the approximate timeframe described, regardless of the concomitant presence of any other condition.”
22. When he gave evidence Professor Cade confirmed the opinions expressed in his reports.
REASONING
23. Before it can be determined whether a death is war-caused it is necessary to decide the medical cause of death.[8] The parties agree that this is the only issue requiring determination in this application as all other matters which need to be decided in order to determine Mrs Hurley’s eligibility to receive a pension have been agreed. I am satisfied that this is so.
[8] Collins v Repatriation Commission [2009] FCAFC 90 at para. 45.
24. The determination of the cause of death is a question of fact to be decided on the balance of probabilities.[9]
[9] Collins v Repatriation Commission (supra) at paras 19-20.
25. I am satisfied that a medical cause of Mr Hurley’s death was carcinoma of the prostate, a condition which was not caused by any war service in which Mr Hurley was engaged. This is not in dispute. However there can be more than one medical cause of death.[10] Mrs Hurley relies upon the opinion of Dr Scaife that Mr Hurley’s ischaemic heart disease (which was war-caused) was also a cause of his death.
[10] Repatriation Commission v Law (1980) 147 CLR 635; Collins v Repatriation Commission (supra) at para. 51.
26. I do not accept the argument put on behalf of Mrs Hurley. While I accept Dr Scaife’s opinion that carcinoma of the prostate may exacerbate ischaemic heart disease, he was unable to point to any evidence that this had occurred in Mr Hurley’s case or that in fact the heart disease (whether or not it was exacerbated by the carcinoma) contributed to Mr Hurley’s death. Dr Scaife said that he did not have any objective finding to support the view that there were any signs or symptoms of ischaemic heart disease in Mr Hurley after the stents were inserted.
27. On the basis of the evidence of Professor Cade I am satisfied that the heart disease suffered by Mr Hurley was not a cause of Mr Hurley’s death. I am satisfied that Professor Cade had considered all of the documentary evidence relating to Mr Hurley’s condition very carefully. He was able to substantiate the opinions he expressed by the evidence available to himself and to the Tribunal. Having considered all of the evidence I accept his opinion that there is no evidence to support a causative link between the heart disease and the death. Counsel for Mrs Hurley was unable to point to any such evidence.
CONCLUSION
28. The decision of the Repatriation Commission made 16 February 2009 refusing the application of Mrs Hurley for a widow’s pension under the provisions of the Veterans’ Entitlements Act 1986 (Cth), will be affirmed.
I certify that the 28 preceding paragraphs are a true copy of the reasons for the decision herein of
Deputy President J W Constance
Signed: .........(sgd K Peterson)...................
Ms K Peterson, AssociateDate/s of Hearing 20 January 2012 – Hamilton
23 January 2012 – Melbourne
Date of Decision 10 February 2012
Counsel for the Applicant Mr C Thomson
Solicitor for the Applicant Mr M Jorgensen, Williams Winter
Solicitor for the Respondent Mr K Rudge, Departmental advocate
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