Jans and Repatriation Commission
[2006] AATA 974
•16 November 2006
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2006] AATA 974
ADMINISTRATIVE APPEALS TRIBUNAL №V2006/29
VETERANS’ APPEALS DIVISION
Re: FREIDA JOYCE JANS
Applicant
And: REPATRIATION COMMISSION
Respondent
DECISION
Tribunal: Miss E.A. Shanahan, Member
Date:16 November 2006
Place:Melbourne
Decision:The Tribunal affirms the decision under review.
(sgd) Miss E.A. Shanahan
Member
VETERANS’ AFFAIRS – widow’s pension claim – reasonable hypothesis – cause of death cerebral tumour – contributing cause bronchopneumonia – service-related cigarette smoking – possibility of chronic bronchitis – diagnosis of bronchial asthma - kind of death
Veterans’ Entitlements Act 1986
Statement of Principle Instrument № 17 of 2003
Statement of Principle Instrument № 30 of 2004
Statement of Principle Instrument № 85 of 2001
Brown v Repatriation Commission [2006] FCA 914
Cook v Repatriation Commission (2000) 106 FCR 448
Doolette v Repatriation Commission [1990] 21 ALD 489
Re Mattner v Repatriation Commission [2004] AATA 1326
Repatriation Commission v Deledio (1998) 83 FCR 82
Repatriation Commission v Hancock [2003] 37 AAR 383
Repatriation Commission v Towns [2003] FCA 1262
Roscoe v Repatriation Commission [2003] FCA 1568
Suckling v Repatriation Commission (No 1) (2004) 79 ALD 571
REASONS FOR DECISION
16 November 2004 Miss E.A. Shanahan, Member
1. Mrs Frieda Joyce Jans submitted a claim for a widow’s pension on 17 May 2004. Her husband Norman Victor Jans had died on 22 May 1980 and his death certificate stated as the cause of death:
Bronchopneumonia - 4 days
Cerebral glioma – 18 months
Bronchial asthma – 20 years
Mrs Jans claim was rejected on 2 June 2004. This decision was affirmed by the Veterans’ Review Board (VRB) on 24 November 2005. Mrs Jans lodged an application for review of the VRB decision to the Administrative Appeals Tribunal on 11 January 2006.
BACKGROUND TO THE APPLICATION
2. The Veteran’s service in the Australian Army was between 27 April 1940 and 30 November 1942, 14 months of which was overseas. Thus the whole of his service was operational service for the purpose of the Veterans’ Entitlements Act 1986 (the Act). During his service the Veteran is said to have commenced smoking but ceased in approximately 1945. It is claimed that as a result of the smoking he developed chronic bronchitis. During the 1960s the Veteran was diagnosed as suffering from bronchial asthma with intermittent acute infections. In December 1978 the Veteran reported episodic tingling and alteration of sensation in the right side of his face and arm. These episodes continued intermittently and in December 1979 he developed right-sided weakness of the arm. Investigations eventually lead to the diagnosis of a large cerebral glioma (malignant tumour) on or about 20 March 1980. This tumour was assessed as inoperable. The Veteran developed right-sided weakness on 29 March 1980, and was found to have bi‑lateral papilloedema and acutely raised blood pressure; both of which are indicative of raised intra-cranial pressure. The Veteran was hospitalised on 29 April 1980 and died on 22 May 1980 at the age 63 years.
3. Mrs Jans first submitted a claim for a widow’s pension on 11 July 1980. The claim was based on the proposition that the Veteran’s brain tumour was war-caused. The claim was denied.
4. It is accepted by both parties that the Veteran’s cerebral glioma does not meet the Statement of Principles (SOP) Instrument № 17 of 2003 concerning malignant neoplasm of the brain. The current claim is based on the hypothesis that the Veteran suffered from war-caused chronic bronchitis secondary to cigarette smoking and that this increased his propensity to develop bronchopneumonia. Mrs Jans argues that the bronchopneumonia occurred four days before his death and hastened death.
Issues Before The Tribunal
5. The issues before the Tribunal are:
A. From what respiratory disease if any did the Veteran suffer?
B.Did his smoking of two/three year’s duration during service contribute causally to that disease?
C. Did the respiratory disease contribute to or hasten his death?
D. The kind of death suffered by the Veteran; and
E. Whether the Veteran’s death was war caused.
6. The Applicant was represented by Ms J. Bornstein of counsel, instructed by Williams Winter Solicitors. The Respondent was represented by Ms T. Chant, an Advocate with the Department of Veterans’ Affairs. The Tribunal had before it the documents lodged pursuant to s 37 of the Administrative Appeals Tribunal Act 1975 (T Docs). The Applicant tendered the following documents:
Exhibit A1 Statement of the Applicant dated 15 December 2005
Exhibit A3 Statement of Sheryn Denise Jans dated 15 December 2005
Exhibit A2 Statement of Wendy Bruce dated 18 September 2006
ExhibitA4 Report of Dr R.B. Collins dated 17 May 2006
Exhibit A5 Report of Dr R.B. Collins dated 31 May 2006
The Respondent submitted the following documents:
Exhibit R1 Section 37 T Docs
Exhibit R2 Transcript of the VRB hearing dated 24 November 2005
Exhibit R3 Maffra Medical Clinical Notes regarding the Veteran
Exhibit R4 Report of Dr R. Ziffer concerning the Veteran dated 2 May 2006
Exhibit R5 Report of Professor J. Cade 28 June 2006
Exhibit R6 Letter from Mr Ron Ferguson dated 4 September 2006
7. Mrs Jans, her daughters Sheryn Jans and Wendy Bruce, Dr Collins and Professor Cade gave evidence before the Tribunal.
EVIDENCE BEFORE THE TRIBUNAL
Mrs Freda Jans
8. Mrs Jans had provided a written statement (Exhibit A1). She stated she had met her late husband in 1943 at a dance. While she had never seen him smoke cigarettes, she did recall that he smelled of cigarette smoke when they first met. The Veteran had also been a heavy drinker of alcohol but ceased this habit at her insistence after they began courting in 1945. Mrs Jans had been informed by the Veteran’s cousins that he was a non-smoker prior to his enlistment. She believed her husband had commenced smoking because of peer pressure and to relieve the stresses imposed by his overseas service. Mrs Jans did not know how many cigarettes her husband smoked while in the army but believed he had been a heavy smoker.
9. From the time they started courting in 1945, Mrs Jans said she had noted her husband had a chronic productive cough with yellow mucous. In the early years of their marriage she boiled his handkerchiefs to rid them of mucous. Other than his bronchial problems, the Veteran had no major health problems until about two years before his death, when he started suffering turns. He had refused to see a doctor until he lost his power of speech during such a turn. His condition was initially diagnosed as a cerebrovascular accident (CVA/stroke); but seven weeks before his death a CT scan revealed a cancer. He was hospitalised for the last three weeks of his life and continued to have a cough until he became comatose.
10. The Tribunal asked Mrs Jans how much sputum the Veteran would expectorate per day. She estimated this as about half a cup of yucky yellow mucous, maximal in the winter months.
11. In cross-examination Mrs Jans was not able to remember when her husband first saw a doctor for his chest symptoms but thought it was in the late 1950s. She was aware that he used Ventolin approximately once a fortnight from about 1966 onwards; and that he later took one tablet of prednisilone three times per day. Her husband had not told her of his diagnosis of asthma in 1963 (Exhibit R3) or that he had a strong family history of this disease. While she was aware Mr Jans took out a large insurance policy in 1965 she did not know he had declared himself to be fit (T Docs pp 33.7-33.11). Mrs Jans confirmed that she did not know how many cigarettes her husband smoked. She had never noticed her husband to wheeze or to be short of breath.
12. When the diagnosis of the cerebral tumour was made, Mrs Jans and the family were told that the tumour occupied half of Mr Jans’ brain, that his prognosis was hopeless and that death would be very quick.
13. Mrs Jans visited her husband in hospital every day and noted that he had a dry cough and difficulty in both breathing and speaking. Mr Jans was unconscious for the last week of his life.
14. The Tribunal asked what treatment the Veteran had received during this period in hospital. Mrs Jans said high doses of Vitamin C had been administered intravenously as well as pain killers. She was not aware that Mr Jans’ daily dose of prednisilone had been increased from his usual 15 milligrams, taken for many years, to 40 milligrams per day after the diagnosis of his cerebral tumour.
Mrs Wendy Bruce (by telephone)
15. Mrs Bruce is the eldest child of Mrs Jans. She provided a statement dated 18 September 2006 (Exhibit A2). She recalled her father coughing and spitting frequently. He had caught her smoking on one occasion and reacted with extreme anger and told her to stop. During the argument that ensued her father had said that he had smoked 60 cigarettes per day. She had assumed this was when he was in the army.
Ms Sheryn Jans
16. Ms Jans was able to recall the argument between her father and her sister Wendy. She was approximately nine years of age at the time. She had not heard any reference to the number of cigarettes smoked. Ms Jans was unaware that her father had been diagnosed with bronchial asthma. She had noted that his cough was worse in the winter months when he had fed cows with hay. She described his sputum as looking like an oyster.
Dr R. Byron Collins
17. Dr Collins is a forensic pathologist. He provided two reports (Exhibits A4 and A5) based on Mrs Jans’ statement, the clinical notes of the Maffra Medical Group and of Dr Ziffer, Dr R. Lunt’s report of 4 December 1980 and the Veteran’s death certificate. Dr Collins favoured diagnoses of chronic bronchitis or asthmatic bronchitis with broncho constriction (wheeze) producing asthma type symptoms, rather than a diagnosis of bronchial asthma as made by the Veteran’s general practitioner, Dr Lunt. Dr Collins stated that if the Veteran’s sputum was yellow this supported his opinion.
18. Dr Collins, while accepting the conditions nominated on the death certificate, did so with reservations: that first, there was no histological confirmation of the cerebral tumour and therefore no knowledge as to whether it was a primary, as stated, or a secondary carcinoma; and second the clinical definition of bronchial asthma, as diagnosed by Dr Lunt, was not clear.
19. Dr Collins second report was a response to Professor Cade’s report (Exhibit R5). He challenged Professor Cade’s acceptance of the conditions nominated in the death certificate; as in his experience death certificates are not always accurate. He also challenged Professor Cade’s statement that Mr Jans had no apparent respiratory condition until 1965.
20. Dr Collins confirmed the content of his reports and said that the use of bronchodilators and prednisilone were equally effective in the treatment of both asthma and chronic bronchitis. He agreed that the increased dosage of prednisilone was aimed at diminishing oedema surrounding the brain tumour and would also reduce the Veteran’s immune response to infection such as broncho- pneumonia.
21. The Tribunal sought further elucidation with respect to Dr Collins’ diagnosis, given the variability in the colour of the Veteran’s sputum. Dr Collins agreed that this suggested that at times the Veteran suffered from bronchial asthma and at times from chronic bronchitis. The Tribunal also pointed out that over the years the Veteran had undergone several chest x-rays, all of which were normal. Dr Collins agreed this was so. He had relied on the history obtained from Mrs Jans and her daughters to establish the chronicity of the Veteran’s respiratory disorder.
Professor John Cade
22. Professor Cade is the Director of the Intensive Care Unit at The Royal Melbourne Hospital. In addition to his intensive care specialty qualifications he holds a Fellowship of the American College of Thoracic Physicians.
23. Professor Cade’s reports (Exhibits R5 and R6) were based on Mrs Jans’ statement, medical records of the Maffra Medical Group, those of Dr Ziffer and the death certificate. Professor Cade had concluded that the most significant clinical condition present was the cerebral tumour (glioma). The Veteran had also suffered from bronchial asthma responsive to bronchodilators and steroids with episodes of acute bronchitis requiring antibiotic treatment. The cause of death in Professor Cade’s opinion was the glioma and the immediate mechanism of death was bronchopneumonia. Professor Cade considered it reasonable to raise the hypothesis that Mr Jans’ war-related smoking had resulted in chronic bronchitis, leading to the hypothesis relied upon by the Applicant. However, the Veteran was diagnosed as suffering from bronchial asthma and in 1965 no respiratory condition was apparent. In light of the medical documentation, the raised hypothesis boarded on speculative. Professor Cade’s second report was in response to Dr Collins’ report, with whom he essentially agreed, except that the requirement for the cause of death was on the balance of probabilities rather than a putative possibility.
24. Professor Cade confirmed his opinion in his evidence before the Tribunal stating that the cerebral tumour was 100 per cent likely to be the cause of Mr Jans’ death and therefore no other condition was likely on the balance of probability.
25. In cross-examination Professor Cade agreed there was a possibility that Mr Jans had co-existing asthma and chronic bronchitis and that both conditions would respond to bronchodilators and steroids. As Mr Jans’ condition had been declared terminal before his last admission to hospital, any window of survival time, had been closed. The Tribunal asked Professor Cade what the overall effect of the increase in the prednisilone dosage to 40 milligrams, from approximately 24 March 1980 onwards would be. Professor Cade said this increased dosage would be beneficial for the Veteran’s asthma and reduce cerebral swelling due to the glioma but it would increase the risk of infection in general, including bronchopneumonia. The Tribunal also asked, based on its own knowledge, whether the CT scan appearances of a glioma, as opposed to other brain malignancies, was regarded as being diagnostic of the cell type. Professor Cade agreed that this was the case.
DOCUMENTARY EVIDENCE
26. Both the parties and the Tribunal have been disadvantaged by the lapse of time between the Veteran’s death in May 1980 and Mrs Jans’ claim of 17 May 2004. Dr Lunt, who was the Veteran’s treating doctor for many years, has died. The Maffra District Hospital records of his admission in 1980 have been destroyed; as have the Maffra Medical Group Records prior to 7 August 1969. Two reports from Dr Lunt dated 9 September 1980 (T Docs, pp 33.3-33.4) and 4 December 1980 (T Docs, pp 33.5-33.6) were available.
Dr R. Lunt’s Reports
27. Dr Lunt had provided reports on 9 September 1980 (T Docs, pp 33.3-33.4) and 4 December 1980 (T Docs, pp 33.5-33.6). Dr Lunt’s report of 9 September 1980 records that Mrs Jans had contacted him to arrange a referral to Dr R. Ziffer, a consultant physician, in Sale because of her husband’s headaches and personality changes. Dr Lunt did not see the Veteran and was later informed of the diagnosis of a cerebral glioma. Dr Lunt saw the Veteran at his home on 29 March 1980 after the Veteran had driven his Land Rover into various fixtures on his farm. Examination on that day revealed hypertension and bi-lateral papilloedema with a right hemiparesis. Given that the Veteran’s condition had already been declared terminal, no treatment was given. Dr Lunt next saw the Veteran on 29 April 1980, after his admission to the Maffra District Hospital. Dr Lunt recorded that the Veteran had lapsed into a coma prior to dying on 22 May 1980. Dr Lunt’s second report confirmed the diagnoses of bronchial asthma and bouts of acute bronchitis apparently dating from 7 August 1969. The Veteran had required antibiotics on occasions and longer term bronchodilators and steroids.
City Mutual Life Insurance Society Limited (T Docs, pp 33.8-33.11)
28. The Veteran applied for life insurance in June 1965 and described his health as good. He denied any lung complaints. Physical examination was reported as normal except for an injury to his right elbow sustained in a motor vehicle accident in 1935.
Smoking Questionnaire Dated 17 May 2004 (T Docs, pp 47 and 48)
29. The smoking questionnaire, signed by Mrs Jans, declares that the Veteran started smoking in 1943, smoked 50 cigarettes per day and ceased in 1945. In her evidence she said the 50 cigarettes per day consumption was entered by her legatee.
Service Documents and Medical Examinations
30. The Veteran’s enlistment medical examinations of 10 April 1940 and 4 June 1941 and his discharge examination of 19 October 1942 were normal except for the old right elbow injury (T Docs, pp 3-6, 7-32).
Veterans’ Review Board Decision (T Docs, pp V-XV)
31. On 24 November 2005 the VRB found that none of the minimum factors set out in the relevant SoP were satisfied by the evidence.
Letter of Mr Ron Fergusson Dated 4 September 2006 (Exhibit R7)
32. In his letter Mr Fergusson, another Advocate from the Department of Veterans’ Affairs, who had the carriage of the matter at the time, advised both the Applicant and the Tribunal of the Respondent’s distinction between operative cause of death and a mechanism of death given the content of Professor Cade’s report of 22 May 2006 (Exhibit R5). He said he relied on Brown v Repatriation Commission [2006] FCA 914 and Parkes v Repatriation Commission [2003] AATA 818, both of which considered the term operative cause of death. It was submitted that the mechanism of death equated to the final stage of the process of dying (Brown) or as the end process of a terminal condition (Parkes).
Relevant Legislation
33. As the Veteran had rendered operational service, ss 120(1) and (3) of the Act are applicable. Section 120A requires the Tribunal to apply any relevant SoP. The parties identified the relevant SoP as Instrument № 30 of 2004 concerning chronic bronchitis and emphysema; and Instrument № 85 of 2001, as amended by Instrument № 36 of 2004, concerning asthma. The amendment had deleted the term asthmatic bronchitis from the earlier SoP.
34. Instrument № 30 of 2004 defines chronic bronchitis as follows:
2.(b) …
(i) chronic bronchitis means a respiratory tract disorder characterised by excessive mucus production sufficient to cause cough and sputum for a least three months of each year for at least two consecutive years, where such mucus production is not attributable to another respiratory disease.
35. The Applicant relied upon factor 5(a) of this SoP:
smoking at least five pack years of cigarettes, or the equivalent thereof in other tobacco products, before the clinical onset of chronic bronchitis and/or emphysema; …
36. Section 120 (1) and (3) of the Act states:
(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.
(2)…
(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.
37. As the claim was lodged after 1 June 1994 the Tribunal was also required to apply s 120A of the Act.
Section 120A states:
Reasonableness of hypothesis to be assessed by reference to Statement of Principles
(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 operational service rendered by a veteran;
(b)a claim under Part IV that relates to:
(i) the peacekeeping service rendered by a member of a Peacekeeping Force; or
(ii) the hazardous service rendered by a member of the Forces.
Note 1:Subsections 120(1), (2) and (3) are relevant to these claims.
Note 2:For peacekeeping service, member of a Peacekeeping Force, hazardous service and member of the Forces see subsection 5Q(1A).
(2) If the Repatriation Medical Authority has given notice under section 196G that it intends to carry out an investigation in respect of a particular kind of injury, disease or death, the Commission is not to determine a claim in respect of the incapacity of a person from an injury or disease of that kind, or in respect of a death of that kind, unless or until the Authority:
(a)has determined a Statement of Principles under subsection 196B(2) in respect of that kind of injury, disease or death; or
(b)has declared that it does not propose to make such a Statement of Principles.
(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.
Note:See subsection (4) about the application of this subsection.
(4) Subsection (3) does not apply in relation to a claim in respect of the incapacity from injury or disease, or the death, of a person if the Authority has neither determined a Statement of Principles under subsection 196B(2), nor declared that it does not propose to make such a Statement of Principles, in respect of:
(a) the kind of injury suffered by the person; or
(b) the kind of disease contracted by the person; or
(c) the kind of death met by the person;
as the case may be.
38. The Applicant did not rely on SoP Instrument № 17 of 2003 concerning malignant neoplasm of the brain as the medical history did not satisfy any of the required factors.
SUBMISSIONS
39. Mrs Jans raised the hypothesis that the Veteran’s smoking was caused by his operational service and led to the development of chronic bronchitis which in turn contributed to or hastened his death by bronchopneumonia on 22 May 1980. Ms Bornstein identified the preliminary issue to be determined as the kind of death and its relationship to any relevant SoP to a standard of proof of reasonable satisfaction.
40. Ms Bornstein referred to Bransen J’s comments in Brown where, at paragraph 28, her Honour said:
The Court has not yet sought to provide definitive guidance on the meaning of kind of death in s 120A — although the concept has been considered in Repatriation Commission v Hancock (2003) 37 AAR 383 and Repatriation Commission v Towns (2003) 38 AAR 77. This is not an occasion for the provision of that definitive guidance.
Should the Tribunal be reasonably satisfied that the Veteran suffered from chronic bronchitis, clause 8 of Instrument № 17 of 2003 defines a terminal event to include (a) pneumonia and the Tribunal would not need to consider the concept of kind of death.
41. Ms Bornstein relied on the Repatriation Commission v Towns [2003] FCA 1262 where Tamberlin J, at paragraph 30, said:
… the expression kind of death is wide reaching. It does not, in terms, require identification of the prime cause of death in a medical sense, but is sufficiently broad to include death which occurs in a particular temporal or circumstantial context, such as death occurring suddenly or in a particular location or set of circumstances. The expression kind does not mandate a determination of the precise medical causation of the death. A death, for example, might be characterised as a death at sea, or a death in circumstances in which there has been an exposure to the elements. This could properly be described as a kind of death using that expression in a broad sense.
41. Ms Bornstein argued that the Tribunal should not consider the mechanism of death and that there could be more than one cause of death. She submitted that the Applicant’s evidence was compellingly in favour of a diagnosis of chronic bronchitis and the medical records were incomplete. Dr Collins and Professor Cade had agreed that bronchial asthma and chronic bronchitis could co‑exist.
42. The Tribunal is required by the Full Court of the Federal Court of Australia’s decision of Repatriation Commission v Deledio [1998] 83 FCR 82 (Deledio) to abide by the four steps proposed by that decision. These four steps are:
1.The tribunal must consider all the material which is before it and determine whether that material points to a hypothesis connecting the injury, disease or death with the circumstances of the particular service rendered by the person. No question of fact finding arises at this stage. If no such hypothesis arises, the application must fail.
2. If the material does raise such a hypothesis, the tribunal must then ascertain whether there is in force an SoP determined by the authority under s 196B(2) or (11). If no such SoP is in force, the hypothesis will be taken not to be reasonable and, in consequence, the application must fail.
3. If an SoP is in force, the tribunal must then form the opinion whether the hypothesis raised is a reasonable one. It will do so if the hypothesis fits, that is to say, is consistent with the template to be found in the SoP. The hypothesis raised before it must thus contain one or more of the factors which the authority has determined to be the minimum which must exist, and be related to the person's service (as required by ss 196B(2)(d) and (e)). If the hypothesis does contain these factors, it could neither be said to be contrary to proved or known scientific facts, nor otherwise fanciful. If the hypothesis fails to fit within the template, it will be deemed not to be reasonable and the claim will fail.
4. The tribunal must then proceed to consider under s 120(1) whether it is satisfied beyond reasonable doubt that the death was not war-caused, or in the case of a claim for incapacity, that the incapacity did not arise from a war-caused injury. If not so satisfied, the claim must succeed. If the tribunal is so satisfied, the claim must fail. It is only at this stage of the process that the tribunal will be required to find facts from the material before it. In so doing, no question of onus of proof or the application of any presumption will be involved.
43. Ms Bornstein outlined the steps as propounded by the Full Court of the Federal Court in Deledio submitting that the hypothesis raised was reasonable, that factor 5(a) of Instrument № 30 of 2004 regarding the cigarette consumption was met and that as required by step four of Deledio, the facts supported the hypothesis. Thus the Tribunal could not be satisfied beyond reasonable doubt that the Veteran did not suffer from chronic bronchitis which thereby increased his vulnerability to the development of bronchopneumonia, hastening his death.
44. The Respondent submitted that the cause of the Veteran’s death was a cerebral glioma and the bronchopneumonia was a mechanism of death. It relied on Professor Cade’s evidence that the operative cause of death was the glioma.
45. The contemporaneous medical evidence was that the Veteran suffered from bronchial asthma with bouts of acute infection.
46. Mrs Jans had admitted that she didn’t know how much the Veteran smoked in the early 1940s or for how long he smoked. The figure of 50 per day had been suggested by her legatee. Mrs Bruce’s evidence of her father smoking 60 cigarettes per day had been supplied only 24 hours before the hearing and was classified by the Respondent as self-serving.
47. In reply, Ms Bornstein submitted that the failure of the attendant medical officers to treat the diagnosed bronchopneumonia and the side effects of steroids, leading to immunosuppression with an increased risk of infection, did not detract from the hypothesis that the Veteran’s death was accelerated by the broncho- pneumonia. She also submitted that the Respondent had not challenged the evidence of Mrs Jans or Mrs Bruce regarding the Veteran’s cigarette consumption.
TRIBUNAL’S DELIBERATIONS AND REASONINGS
48. The Tribunal notes that Mrs Jans is now 82 years old and acknowledges that the passage of time has diminished her recall of events. These factors have been taken into account in accordance with s 119 of the Act.
49. The Applicant has raised the hypothesis that her deceased husband’s cigarette smoking was war-caused and resulted in the development of chronic bronchitis; which in turn rendered him vulnerable to the development of pulmonary infection and thereby contributed to or aggravated the conditions leading to his death, namely bronchopneumonia of four days duration and the cerebral glioma of 18 months duration, in May of 1980.
50. There exists an SoP, Instrument № 30 of 2004 concerning chronic bronchitis and emphysema.
51. The raised hypothesis is reasonable in that it fits the template to be found in the SoP.
52. Thus it remains for the Tribunal to consider whether it is satisfied beyond reasonable doubt that the death was not war-caused.
53. The clinical records of the Maffra Medical Group (Exhibit R3), covering the period from 7 August 1969 to 29 March 1980, state that the Veteran had been treated for bronchial asthma with the onset of his asthmatic symptoms being in 1963. He had also suffered from bouts of acute bronchitis which invariably precipitated asthmatic attacks. Antibiotics were prescribed for acute infections and bronchodilators and prednisilone for the underlying asthma. A strong family history of asthma was recorded. On most attendances, physical examination revealed rhonchi and wheeze and occasionally rales. Chest x-rays were performed regularly and always reported as normal except for the x-ray in March 1970 wherein patchy right upper lobe consolidation raised the possibility of pneumonia.
54. The Veteran had reported clear sputum unless he was suffering a bout of acute infection. On some visits to his general practitioner the Veteran reported no cough, or a dry non-productive cough. The Veteran had been advised to present to his general practitioner whenever he developed an upper respiratory tract infection or his sputum became discoloured. On average he saw his general practitioner two to three times per year regarding his chest complaint. Other visits were for minor injuries relating to his work as a dairy farmer.
55. The Veteran first reported neurological symptoms on 13 December 1978 and ultimately his cerebral glioma was diagnosed in March of 1980.
56. The Tribunal has no reason to doubt the veracity of these reports or the diagnosis of bronchial asthma.
57. Dr Collins postulated that the Veteran suffered from chronic bronchitis primarily and based his diagnosis on the statements of Mrs Jans and her daughter. He gave lesser weight to the contemporaneous clinical notes of the treating general practitioner. Dr Collins is not a clinician. The Tribunal is aware of his lengthy practice and experience as an anatomical pathologist prior to his current practice as a forensic pathologist.
58. Professor Cade is a practising clinician in his role as Director of the Intensive Care Unit at The Royal Melbourne Hospital and is also a trained and qualified respiratory physician. Professor Cade has accepted the documentary evidence that the Veteran’s respiratory disorder was bronchial asthma. The Tribunal accepts Professor Cade’s opinion and regards that of Dr Collins as speculative and at odds with the contemporaneous documented reports of the treating general practitioner.
59. The Tribunal finds that the Veteran’s respiratory condition was bronchial asthma (Cook v Repatriation Commission (2000) 106 FCR 448). An SoP, Instrument № 85 of 2001 as amended by Instrument № 36 of 2004 (which deleted asthmatic bronchitis), outlines the factors that must be present to relate the condition to service rendered by the Veteran. The Veteran did not meet any of the clause 5 factors for bronchial asthma. As the Veteran’s bronchial asthma is not war-caused and it is not claimed to have contributed to the hastening of his death by terminal bronchopneumonia, his death was not war-caused.
60. Given the above conclusions, the Tribunal is not required to consider the kind of death of the Veteran.
61. Forty-eight days after the hearing, the Tribunal received an unsolicited written supplementary submission from the Applicant. The Tribunal has not considered these submissions in reaching its decision as the hearing had been closed and the respondent did not have an opportunity to reply to the submission.
62. For the reasons given, the Tribunal affirms the decision under review.
I certify that the sixty-two [62] preceding paragraphs are a true copy of the reasons for the decision herein of:
Miss E.A. Shanahan, Member
Signed: (sgd) Ursula Noyé
ClerkDate of Hearing: 19 September 2006
Date of Decision: 16 November 2006
Counsel for the Applicant: Ms J. Bornstein
Solicitor for the Applicant: Williams Winter Solicitors
Advocate for the Respondent: Ms T. Chant
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