Joan Donovan v Repatriation Commission

[2011] AATA 510

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2011] AATA 510

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2010/2748

VETERANS'        APPEALS       DIVISION		)
Re		JOAN DONOVAN

Applicant

And REPATRIATION COMMISSION

Respondent

DECISION

Tribunal Miss E A Shanahan, Member

Date25 July 2011

PlaceMelbourne

Decision The Tribunal sets aside the decision under review and substitutes its decision that the Applicant qualifies for the widow’s pension under the Veterans’ Entitlements Act 1986.

..............................................

Member

VETERANS’ AFFAIRS – claim for widow’s pension – kind of death – acute pancreatitis – application of the Statement of Principles – alcohol consumption – eligible war service – reasonable satisfaction – decision set aside

Veterans’ Entitlements Act 1986 (Cth) s 7, s 8, s 13, s 120, s 120A, s 120B

Kattenberg v Repatriation Commission (2002) 73 ALD 365

Military Rehabilitation and Compensation Commission v Wall (2005) 88 ALD 1

Re Kathleen Robertson and Repatriation Commission [1998] AATA 127

Repatriation Commission v Codd (2007) 95 ALD 619

Repatriation Commission v Gosewinckel (1999) 59 ALD 690

Repatriation Commission v Law (1980) 47 FLR 57

Winch v Repatriation Commission [1998] FCA 1110

Winch v Repatriation Commission (1999) 55 ALD 351

Statement of Principles Instrument No 46 of 1997 concerning acute pancreatitis as amended by No 75 of 1998 and No 42 of 2003

Statement of Principles Instrument No 86 of 2011 concerning acute pancreatitis

REASONS FOR DECISION

25 July 2011 Miss E A Shanahan, Member       

1.Mrs Donovan is the widow of Graeme Joseph Donovan (the Veteran) who died on 5 February 1993.  The Veteran had eligible defence service from 7 December 1972 until 30 August 1974.  Mrs Donovan lodged a claim for the widow’s pension on 23 June 2009.  The claim was rejected on 17 August 2009 by a delegate of the Repatriation Commission (the Commission).  The Veterans’ Review Board (VRB) affirmed the delegate’s decision on 7 June 2010.  Mrs Donovan applied to this Tribunal for a review of the decision on 8 July 2010.

2.Mrs Donovan was represented by Mr John Horan, an advocate of the Returned and Services League. Mr Ken Rudge appeared for the Commission.  Mrs Donovan gave evidence before the Tribunal.  The parties tendered the following documents:

(a)for the Applicant:

·a photograph of a group of men including the late Veteran – Exhibit A1;

·a photograph of Lieutenant Ralph McMillan – Exhibit A2;

·the envelope containing a letter from Mrs McMillan, posted in 2010 – Exhibit A3(a);

·the letter from Mrs McMillan – Exhibit A3(b);

·the report of Mr PJ Harrington dated 30 December 2010 – Exhibit A4; and

(b)for the Respondent:

·documents lodged pursuant to s 37 of the Administrative Appeals Tribunal Act 1975 (T-documents) – Exhibit R1;

·the report of Professor John Cade dated 7 September 2010 – Exhibit R2;

·a report from Writeway Research Service dated 29 September 2010 – Exhibit R3;

·the transcript of the VRB hearing of 7 June 2010 – Exhibit R4;

·the Veteran’s Service Medical Documents (49 pages) – Exhibit R5; and

·supplementary T-documents numbered 54a to 54n (T4) – Exhibit R6.

BACKGROUND TO THE APPLICATION

3.The Veteran enlisted in the Royal Australian Navy (the Navy) as a trainee pilot, commencing service on 14 October 1968.  Prior to enlistment, he had worked as a clerk for Trans Australia Airlines (TAA).  Between 7 December 1972 and 30 August 1974, the Veteran served on HMAS Melbourne (Melbourne) for three deployments when the Melbourne was on operational duty. Therefore, Lieutenant Donovan’s service was classified as eligible service.  

4.Prior to his enlistment, the Veteran was a social drinker.  He commenced drinking alcohol on a regular basis after he joined the Navy. 

5.Mrs Donovan met her husband in 1965 and they married in 1971.  When he was stationed at Flinders during his initial training period she saw him every weekend.  Later, when he underwent pilot training in Nowra they spent one or two weekends together.  Mrs Donovan said that through the initial training period her husband and three of his mates would return to Melbourne early on a Friday evening and on that night and the following Saturday afternoon would consume a dozen longneck bottles of full strength beer.  They would restock on Saturday afternoon and continue to drink on Saturday night.  The Veteran did not drink on Sundays as he had to drive back to the Flinders base.  When Mrs Donovan visited her husband at his training base, she noted he would drink five to six pots per day, that is, on the Friday night and during the course of Saturday.

6.In May 1974 Lieutenant Ralph McMillan, the Veteran’s close friend, mentor and fellow pilot, was killed during a mock attack exercise off Jervis Bay.  Lieutenant McMillan crashed into the sea.  The Navy sent two helicopters and the HMAS Perth and Torrens to the scene but only small items of debris, including the helmet and human remains were found.  The Veteran was informed of Lieutenant McMillan’s death by telephone.  At the time Lieutenant Donovan was in Melbourne on leave, recovering from mandibular (lower jaw) surgery.

7.Mrs Donovan described her husband as being devastated and incredulous.  He was unable to accept Lieutenant McMillan’s death, given the latter’s skills as a pilot.  Following this event the Veteran drank heavily for two to three days. Over the longer period his alcohol intake increased after the tragic accident.  While Mrs Donovan did not think her husband’s confidence in his flying ability was affected by the accident, she noted he worried more about the possibility of making mistakes.

8.In September 1973 the Veteran tendered his resignation from the Navy.  This was not accepted.  He offered his resignation again in January 1974 on the basis that given his age, then 29, family responsibilities and the probable lack of opportunities for promotion as a pilot within the Navy after the Melbourne reached the end of her service life, he needed to pursue a more secure career path. 

9.Following a change in naval regulations, the Veteran’s resignation was accepted and his discharge effected on 30 August 1974. Following his discharge, the Veteran spent 12 months at casual work, mainly in produce markets, before commencing work with TAA as a flight engineer. He remained in this role until May 1989. As flight engineers were being phased out of Boeing 727 aircraft, TAA gave him the opportunity to train as a pilot. The training was to take place in Cairns and was to involve a six-month course. After the commencement of this training, there was a nationwide pilots’ dispute and strike. It was agreed, presumably by the airlines and pilots’ representatives, that these Cairns-based trainees could complete their course and then remain in Cairns to service local flight routes such as Cairns to Dunk Island. The Veteran was involved in passenger and freight air services but preferred freight flights. The Veteran did not return to Melbourne until late 1991 or early 1992, having spent two and a half years in Cairns. Thereafter, he worked as a pilot with TAA.

10.Throughout his 19 years with TAA, the Veteran was subject to the same health and safety requirements as the pilots. He was prohibited from drinking alcohol for 12 hours before a scheduled flight. Mrs Donovan believed he adhered strictly to these requirements, which meant he would drink six to eight cans of full strength beer on three to four days per week. She did not know what he drank when away from home overnight, but he would have had the opportunity to drink on some evenings when interstate, depending on flight times. When the Veteran was due for his regular TAA medical examinations he would decrease or cease his alcohol intake and diet to reduce weight. Mrs Donovan described her husband as a big man with a big capacity for food and drink. The Veteran was recorded as being six foot three inches tall and weighing 14½ stone (92.08 kilograms) at his final medical examination in the Navy in 1974.

11.Between 1978 and 1983 the Veteran trained the flight engineers at TAA. During this period he and his wife shared the care of their two children, born in 1978 and 1981 respectively. Mrs Donovan worked three days a week as a nurse for TAA and the Veteran worked four days a week. The Veteran did not drink alcohol when he was minding the children but otherwise his intake was of the order of six to eight cans per day.

12.In January 1978 and August 1979 the Veteran completed an application for life assurance with Legal and General Assurance Society Limited.  He declared that he drank three glasses of beer four days per week in the January 1978 application. In the August 1979 application he stated he did not drink any alcohol.  Mr Peter Nelson, a general surgeon, had seen the Veteran in early 1978 following an episode of lower sternal pain, diagnosed at laparotomy as pancreatitis. Mr Nelson described the Veteran’s alcohol intake as modest.  Mrs Donovan believes her husband concealed his true alcohol intake in order to obtain life assurance cover.  In the process of this application, the Veteran was medically examined several times.  The physical examinations detected no abnormality. 

13.In February 1978 the Veteran developed lower sternal/upper epigastric pain.  A diagnosis of acute pancreatitis was made at laparotomy undertaken by Dr Andrew Shipley, the Veteran’s general practitioner.  Dr Shipley died some years ago and his medical records have been destroyed.  Any documentation Mrs Donovan had relating to these events has been lost, having been destroyed in the Mount Macedon fires. 

14.Following the laparotomy, Dr Shipley referred the Veteran to Mr Nelson.  Mr Nelson agreed with the diagnosis of pancreatitis.  A cholecystogram performed on 20 March 1978 was normal, as was a glucose tolerance test which excluded diabetes mellitus.  The Veteran’s serum uric acid was elevated, consistent with the diagnosis of gout (a totally unrelated clinical finding).Mr Nelson’s physical examination of the Veteran was normal except for the laparotomy scar.  In light of the Veteran’s modest alcohol intake and his father’s past medical history of pancreatitis, Mr Nelson postulated an inherited tendency to pancreatitis. 

15.In her evidence before the VRB, Mrs Donovan had explained that her father‑in‑law’s pancreatitis had been secondary to cholelithiasis (gallstones, which in Mr Donovan Senior’s case were small and multiple) and following a cholecystectomy, Mr Donovan Senior had no further episodes of pancreatitis. The diabetes mellitus accompanying the acute episode resolved completely.

16.Following the 1978 episode of pancreatitis, the Veteran was advised not to drink alcohol.  Dr Shipley provided oral advice and reading matter on pancreatitis.

17.The Veteran suffered a second episode of acute pancreatitis in 1983.  This was apparently treated conservatively at Kyneton Hospital.  No records are available of this episode.

18.The Veteran’s final illness occurred in late January 1993.  He awoke on Sunday, 31 January 1993 with severe epigastric and right upper quadrant abdominal pain that rapidly increased in severity.  Having been assessed by his general practitioner and given intramuscular pethidine without effect, he was transferred to Cabrini Hospital.  Despite intravenous therapy, nasogastric suction and intravenous pethidine, his condition deteriorated.  The Veteran’s serum amylase was recorded at 2,702 (the norm is 16 to 108 units per litre), confirming a diagnosis of acute pancreatitis.  As his condition deteriorated with cardiac and respiratory decompensation, it necessitated intravenous Dopamine, intubation and ventilation.  

19.The Veteran was transferred to the Monash Medical Centre Intensive Care Unit on 2 February 1993.  Shortly after his arrival at the Monash Medical Centre, the Veteran developed ventricular tachycardia and suffered a cardiac arrest.  He was resuscitated and DC converted.  Thereafter he was unstable, with circulatory, respiratory and renal failure.  Haemodialysis was commenced. Increasing doses of inotropes (Adrenaline, Noradrenaline and Dopamine, which increase the force of contraction of the heart) were required. However, severe metabolic acidosis (a fall in pH due to acid accumulation) and hypotension persisted.

20.On 5 February 1993 all treatment was withdrawn and the Veteran died at 1220 hours.  Death was certified as being due to acute pancreatitis.  The Monash Medical Centre records attribute the pancreatitis to excessive alcohol intake and record that the Veteran drank two beers on 30 January 1993.  The Veteran was 48 years old at the time of death.  The clinical notes of the hospital also record that he had been suffering from hypertension and asymptomatic diabetes for approximately two years prior to his admission.

EVIDENCE BEFORE THE TRIBUNAL

21.Mrs Donovan’s evidence is summarised above under the heading Background to the Application.

Documentary Evidence

22.Mr Colin Rutherford, a retired TAA pilot, had known the Veteran and Mrs Donovan since 1969. He had observed a changed in the Veteran after the death of Ralph MacMillan in 1974. He described the Veteran as becoming withdrawn and subject to serious binge drinking and eating bouts. 

23.Mr Patrick Harrington, a pilot with Australian Airlines, worked with and shared a house with the Veteran during the two and half years he was based at Cairns, working as a co-pilot for Australian Regional Airlines Queensland.  He stated that all pilots had a monthly flying roster of 50 to 60 hours.  After five to six days on duty, the pilots had two to three days off.  According to Mr Harrington, the Veteran consumed five to eight cans of Victoria Bitter or Guinness after a normal day’s work and considerably more on days off.  Mr Harrington had seen the Veteran drink a carton of Victoria Bitter (presumably 12 cans) while cooking an Asian meal for his house mates. 

24.Professor Cade, Senior Intensivist at the Royal Melbourne Hospital, provided an opinion dated 7 September 2010, at the request of the Commission.  He confirmed the cause of death as alcohol induced acute pancreatitis with multi-organ failure.  Based on Mrs Donovan’s statement, that the Veteran drank six to eight cans of full strength beer per day on the four non-working days of the week, Professor Cade calculated the Veteran’s five-year alcohol intake as 156 kilograms. He noted the VRB, using the criteria of eight cans of beer four days a week from 1974, had calculated a five-year intake of 124.8 kilograms.  Professor Cade considered his estimate of 156 kilograms, albeit less than the 180 kilograms required by the relevant Statement of Principles (SoP), was within a clinically accepted margin of error given the tyrannies of time and the absence of documentation. 

25.Mr Wally Rothwell (Captain, RAN, retired), of Writeway Research Service Pty Ltd, conducted research into the Veteran’s service record and his friendship, if any, with Lieutenant Ralph McMillan.  Mr Rothwell confirmed the Veteran’s posting, his resignation from the Navy and the reasons for his resignation.  There was no doubt in Mr Rothwell’s mind that the Veteran and Lieutenant McMillan knew each other and that they probably were friends, having been posted to the same squadron for two and a half years and being deployed together on the Melbourne on three occasions.  Thereafter, they were both based at HMAS Albatross (Albatross), except for a two- month period in early 1974, and would have seen each other daily in the wardroom mess.  Commander Ray, the operations officer of Albatross at the time, described the Veteran and Lieutenant McMillan as good mates.  Commander Ray, who himself was affected by the McMillan death, believed the effect on the Veteran would have been severe given their friendship.

26.Mr Rothwell said that all the personnel at Albatross were affected. Mr Rothwell himself was affected, as he knew and served with Lieutenant McMillan on the Melbourne. No one witnessed Lieutenant McMillan’s crash into the sea off Nowra but the reports issued after enquiries into the crash were, to quote Mr Rothwell, gruesome in detail. 

27.It is clear from this report that Lieutenant McMillan was an above-average pilot, who was held in high repute by his peers and superiors and extremely popular with his colleagues.

28.Mrs Donovan still communicates with Mrs Joan McMillan, Lieutenant McMillan’s mother, and retains a photograph of Lieutenant McMillan.  Exhibit A1 is a photograph taken at a naval ceremony at Nowra showing a group of six people, including the Veteran, drinking champagne. 

RELEVANT LEGISLATION

29.Section 8 of the Veterans’ Entitlements Act 1986 (the Act) provides that the death of a Veteran is war-caused if it arose out of, or was attributable to, any eligible war service.  Sections 8(1)(a), (b) and (d) are relevant and state:

(1)Subject to this section and section 9A, for the purposes of this Act, the death of a veteran shall be taken to have been war-caused if:

(a)the death of the veteran resulted from an occurrence that happened while the veteran was rendering operational service;

(b)the death of the veteran arose out of, or was attributable to, any eligible war service rendered by the veteran;

…

(d)in the opinion of the Commission, the death of the veteran was due to an accident that would not have occurred, or to a disease that would not have been contracted, but for his or her having rendered eligible war service or but for changes in the veteran’s environment consequent upon his or her having rendered eligible war service; or  …

30.Section 7 of the Act defines eligible war service.

31.Sections 13 (1)(a) and (c) relate to the widow of a veteran and state:

(1)       Where:

(a)       the death of a veteran was war-caused; or

…

the Commonwealth is, subject to this Act, liable to pay:

(c)in the case of the death of the veteran—pensions by way of compensation to the dependants of the veteran; or …

32.Section 120(4) sets out the standard of proof applicable to the death of a veteran with eligible service:

(4)Except in making a determination to which subsection (1) or (2) applies, the Commission shall, in making any determination or decision in respect of a matter arising under this Act or the regulations, including the assessment or re‑assessment of the rate of a pension granted under Part II or Part IV, decide the matter to its reasonable satisfaction.

Note:    This subsection is affected by section 120B.

33.This standard of proof is to be assessed in reference to the relevant Statement of Principles.  The SoP concerning acute pancreatitis is Instrument Nº  46 of 1997, as amended by Instruments Nº  75 of 1998 and Nº  42 of 2003. 

34.The factors that must exist before it can be said that, on the balance of probability, acute pancreatitis or death from acute pancreatitis is connected with the circumstances of a person’s relevant service are contained in clause 5 of Instrument Nº 46 of 1997. The relevant factor in this matter is:

5 (b) having evidence of prolonged and heavy alcohol consumption before, and continuing at least until, the clinical onset of acute pancreatitis;

35.By Instrument Nº 42 of 2003, clause 5(b) was deleted and replaced by the following factor:

(b)having consumed at least 180kg of alcohol within any five year period, and continuing to consume alcohol at the time of the clinical onset of acute pancreatitis;

36.This new criterion also replaced the definition of prolonged and heavy alcohol consumption contained in paragraph 7 of Instrument Nº 46 of 1997.

SUBMISSIONS

37.Mr Horan submitted that prior to enlistment the Veteran had been essentially a non-drinker and did not drink regularly until after his enlistment.  His alcohol habit arose from his service in the Navy.  Mr Horan contended that the date of clinical onset of the Veteran’s acute pancreatitis was 31 January 1993. He further contended that in the five years prior to the Veteran’s death his alcohol consumption totalled the required 180 kilograms, satisfying factor 5(b) of the SoP. 

38.Mr Rudge conceded, on his calculations, that in the five-year period leading up to the end of 1992, the Veteran satisfied the requirement of an intake of 180 kilograms of alcohol and that he continued to drink alcohol up until his final illness.  He did not concede that the Veteran’s excessive alcohol intake was causally related to his eligible service or that he satisfied the alcohol intake requirement prior to the first bout of acute pancreatitis in 1978 or the second bout in 1983.  The Commission did not rely on the contents of the insurance medicals with respect to the Veteran’s then alcohol intake. 

39.Mr Rudge contended that the Veteran’s drinking pattern was established prior to his eligible service between 1972 and 1974. He maintained that the death of Lieutenant McMillan, while undoubtedly causing the Veteran distress and an increased alcohol intake at that time, did not necessarily result in a long-term altered pattern of alcohol consumption.

40.The Commission relied upon the Full Federal Court’s decision in Repatriation Commission v Law (1980) 47 FLR 57, where Bowen CJ, Brennan and Lockhart JJ said:

It seems clear that the expression “attributable to” in each case involves an element of causation. The cause need not be the sole or dominant cause: it is sufficient to show “attributability” if the cause is one of a number of causes provided it is a contributing cause. …

… and a suggested relationship may be so tenuous as to preclude its consideration as answering the description “arising out of”.

41.This was in contrast to the decision in Military Rehabilitation and Compensation Commission v Wall (2005) 88 ALD 1 where the Full Court of the Federal Court found that the Respondent’s employment in the armed forces contributed to the development of his smoking habit during his three months of full time National Service training.

42.Mr Rudge identified the major or only issue for the Tribunal as the date of clinical onset of the Veteran’s condition of acute pancreatitis.  Should the onset be in early 1978, the Veteran did not meet the requirements of the SoP.  However, if the Tribunal should find that the onset was in 1993, then the Applicant’s claim for the widow’s pension would succeed on the basis that the SoP requirements were met.

TRIBUNAL’S DELIBERATIONS

43.The Tribunal is satisfied beyond any doubt that Mrs Joan Donovan is a widow and has not remarried.  She is the widow of Graeme Joseph Donovan, who during his period of service with the Royal Australian Navy had eligible service between 1972 and 1974.  Mr Donovan died on 5 February 1993.  Thus, the preliminary considerations required to found Mrs Donovan’s claim for the widow’s pension under the Act are met.

44.The issues identified by the Tribunal as requiring resolution are:

(a)the kind of death suffered by the Veteran;

(b)the date of the clinical onset of his acute pancreatitis which eventually led to his death;

(c)whether the requirements of the SoP with respect to the consumption of 180 kilograms of alcohol in a five-year period prior to his death, and a continuation of alcohol intake until his death, is met; and

(d)whether the Veteran’s excessive alcohol consumption was war‑caused, or more correctly, defence-caused. 

Kind of Death

45.It is quite clear from the medical records of Monash Medical Centre that the cause of the Veteran’s death was acute fulminating necrotizing pancreatitis, leading to multi-organ failure.

46.The phrase kind of death met by the person in sections 120A(4) and s 120B(4) has been subject to interpretation in many decisions of single judges and the Full Court of the Federal Court.  In Repatriation Commission v Codd (2007) 95 ALD 619, Justice Michelle Gordon held that:

The expression “kind of death met by the person”… is a causative question.  The notion of “causing” is one of common sense, the answer to which differs according to the purpose for which the question is asked.

…

The purpose for which the question is being asked in the Veterans’ Entitlement Act 1986… is to ascertain whether there is a SoP which addresses the question of the reasonableness of the hypothesis as [as in this instance and in the Codd instance] to the connection between the cause of death, being a medical cause of death of the veteran and service.

47.Her Honour’s interpretation of the meaning of the phrase kind of death has been followed and to the Tribunal’s knowledge has not been challenged by a higher court.

Clinical Onset

48.In Re Kathleen Robertson and Repatriation Commission [1998] AATA 127, Senior Member Joan Dwyer asked two consultant cardiologists to define clinical onset.  As a result of the evidence given by Professor Aubrey Pitt and Dr King, she stated:

On that evidence we consider that there is a clinical onset of a disease, either when a person becomes aware of some feature or symptom which enables a doctor to say the disease was present at that time, or when a finding is made on investigation which is indicative to a doctor of the disease being present at that time.

This definition of clinical onset has been cited and accepted, and not challenged, in numerous cases determined by the Administrative Appeals Tribunal and the Federal Court.  In Repatriation Commission v Gosewinckel (1999) 59 ALD 690, the Federal Court added the proviso that before a clinical onset can be found, the condition must satisfy the requirements of the disease stated in the relevant SoP.

49.The Tribunal is a medical practitioner (surgeon) with 49 years’ experience. From a strictly medical viewpoint the definition of clinical onset in Re Robertson covers the vast majority of medical conditions.  Applying this definition literally, the Tribunal would be forced to conclude that the onset of the Veteran’s acute pancreatitis occurred in early 1978, as there is no doubt that that was the diagnosis at that time during his first attack of acute pancreatitis.

50.Unfortunately, acute pancreatitis and recurrent acute pancreatitis are not necessarily disease processes which fit this definition.  This is particularly so given the standard of proof to be applied, that being one of reasonable satisfaction or, as it is alternatively known, on the balance of probabilities.  The Tribunal does not have expertise in pancreatitis.  No expert medical evidence was provided to the Tribunal on the subject of recurrent acute pancreatitis (RAP).  Therefore, the Tribunal considered it necessary to refer to the medical literature, including textbooks of medicine and surgery and recent scientific publications.  The authority for such action is found in Winch v Repatriation Commission [1998] FCA 1110 (and approved by the Full Court of the Federal Court in 1999).[1]In that case, Merkel J said:

The AAT is fully entitled to consult medical texts in order to better understand and explain medical evidence…  However, if medical text were relied upon to raise a new point which the applicant had not been given a fair opportunity to meet at the hearing, then a different situation might arise… 

[1] Winch v Repatriation Commission (1999) 55 ALD 351

51.The Tribunal sought and obtained written approval of the parties for the Tribunal to access the medical literature on RAP.  The Commission requested that the Tribunal inform it of the text and articles consulted, and the issues raised by these sources, prior to the publication of the final decision so that the parties could respond to this information.  This process has been completed. 

52.The Tribunal has electronic access to the Royal Australasian College of Surgeons’ Library.  Over 2000 articles were identified but only five are relevant to this matter.  The AAT librarian has also accessed various sources without obtaining any further relevant literature. 

53.As the Tribunal had noted that the Veteran had an elevated serum triglyceride level on 28 February 1974 while still in service, one seminal article on hypertriglyceridaemic RAP was accessed.  This does not raise any alternative aetiological factors which either party did not have the opportunity to address at the hearing. A single raised serum lipid level estimation is not sufficient to found a diagnosis of hypertriglyceridaemia.

54.There is an astonishing paucity of literature on RAP.  That which does exist is devoted to so-called idiopathic acute and recurrent acute pancreatitis and its causes.  This group constitutes approximately 10 per cent of RAP.  Research in this area is robust and the causes include genetic mutations, congenital anomalies such as pancreas divisum and cystic fibrosis, crystalline (as opposed to demonstrable) gallstones and dysfunction of the Sphincter of Oddi.   None of these causes are applicable to the Veteran.

55.Harrison’s Principles of Internal Medicine (17th Ed. New York: McGraw-Hill, 2008) devotes seven lines to the subject in a text containing 2,607 pages.  It quotes a recurrence rate of approximately 25 per cent.  The Tribunal was able to identify only four articles as relevant to the matter before the Tribunal.  All four articles were published in peer reviewed journals of renown.  Two articles originate from surgical units in China, one from India and a third is a multi-centre European report.  The Tribunal could not locate any relevant Australian-authored article.  The major surgical textbooks are silent on RAP.

56.The scientific articles the Tribunal relied on are:

1.Sajith KG, Ashok C, Dutha AK, ‘Recurrent Acute Pancreatitis: Clinical Profile and an Approach to Diagnosis’, Digestive Diseases and Sciences, 2010, 55: 3610-3616.

2.Zhang W, Shan H-C, Gu Y, ‘Recurrent Acute Pancreatitis and its Relative Factors’, World Journal of Gastroenterology, 2005, 11: 3002-3004.

3.Gao YJ et al, ‘Analysis of the Clinical Features of Recurrent Acute Pancreatitis in China’, World Journal of Gastroenterology, 2006, 41: 681-685.

4.Gullo L et al, ‘An update on Recurrent Acute Pancreatitis: Data From Five European Countries’, American Journal of Gastroenterology, 2002, 97(8):  1959-1962

57.These articles indicate a changing pattern in the causes of acute pancreatitis with:

(a)alcohol excess intake overtaking cholelithiasis (gallstones) as the major aetiological factor;

(b)a diminishing recurrence rate after two bouts;

(c)a reducing mortality rate in recurrent pancreatitis with more frequent attacks;

(d)a low incidence of acute episodes in established chronic pancreatitis and thus a lower mortality rate in this group;

(e)an acute recurrence rate between 10 and 30 per cent but averaging 12 per cent; and

(f)the highest mortality rates occurring during the first attack. 

58.The low rates of acute episodes in patients with chronic pancreatitis, wherein the pancreas is fibrotic and the secretory glandular tissue markedly reduced, is to be expected as acute pancreatitis is caused by the extravasation of the lytic enzymes that glandular tissue produces.  Mortality decreases in those having a third attack or a higher number of attacks.  Mortality was significantly lower in patients with alcohol-induced pancreatitis than in those with biliary pancreatitis.

59.The articles reported varying incidences of a third attack of acute pancreatitis in their retrospective studies.  These varied between 10.7 and 14.7 per cent. 

60.Based on the relatively low risk of a third attack reported, with a reduced mortality accompanying a third attack, the Tribunal has determined, on the balance of probabilities, that each of the three attacks suffered by the Veteran should be considered as separate incidents.  This is particularly so  as it is not known whether the pancreatic tissue fully recovers histopathologically after an acute episode of pancreatitis or whether there is residual damage to the acinar tissue or the small pancreatic draining ducts, which might increase the risk of further acute episodes. 

61.Thus the clinical onset of the fatal attack of pancreatitis suffered by Mr Donovan was 31 January 1993.  There is no evidence that the Veteran had chronic pancreatitis despite the unverified Monash Medical Centre entry that he had suffered from asymptomatic diabetes mellitus for two years.  In addition, acute necrotizing pancreatitis is almost unheard of in established chronic pancreatitis because of the fibrosis that occurs in that disease.

62.The Respondent has conceded that the Veteran satisfied factor 5(b) of the SoP, that is, that he had an alcohol intake of 180 kilograms in the five-year period preceding his death and he continued to drink alcohol up to the onset of the fatal attack.  The Tribunal considers that this concession is well founded.  Mrs Donovan was a truthful witness, who only reported the Veteran’s alcohol consumption that she herself observed.  His alcohol intake during those periods when he was, by the nature of his work, interstate, is unknown, except for the two and a half years he spent in Cairns between 1989 and 1992. 

was the veteran’s excessive alcohol consumption defence caused?

63.Prior to his enlistment, the Veteran’s alcohol consumption was limited to social drinking.  Following his enlistment in the Navy, his intake did increase and this increase appears to be due to the naval milieu (Kattenberg v Repatriation Commission (2002) 73 ALD 365).

64.Mrs Donovan and Mr Colin Rutherford attested to the Veteran’s reaction to the death of Lieutenant McMillan in May 1974 and the Veteran’s increase in alcohol intake after this event.  The Writeway report, prepared by Mr Wally Rothwell, confirms the close friendship between the Veteran and Lieutenant McMillan.  Mr Rothwell himself was affected by Lieutenant McMillan’s death.  Mr Pat Harrington has confirmed the Veteran’s high alcohol intake during the time he was based in Cairns between 1989 and 1992, a period when Mrs Donovan had no way of assessing her husband’s alcohol consumption.

65.The Tribunal is more than reasonably satisfied that the Veteran’s excessive alcohol intake followed Lieutenant McMillan’s death and was therefore defence service caused.

66.On 1 July 2011, the Repatriation Medical Authority released a new Statement of Principles concerning Acute Pancreatitis, Instrument Nº 86 of 2011, which took effect on 13 July 2011. As this decision had not been finalised by that date, the Tribunal has considered the new SoP. The only relevant change has been to factor 5(b) of Instrument Nº 46 of 1997 (as amended). This factor has been replaced by factor 6(c), which states:

(c) Drinking at least 36 kilograms of alcohol within any two year period, and continuing to consume alcohol at the time of the clinical onset of acute pancreatitis;

67.The late Veteran clearly satisfied this requirement during the two and a half years (1989-1992) he spent in Cairns. Thirty-six kilograms of alcohol equates to five standard drinks per day. The evidence before the Tribunal is that he drank six to eight cans of full-strength beer (nine to twelve standard drinks) on most days of the week while working for TAA in Cairns.

TRIBUNAL’S DECISION

68.Given the above findings, the Tribunal determines that the Veteran’s death was defence service caused and Mrs Donovan is entitled to receipt of the widow’s pension.

I certify that the 68 preceding paragraphs are a true copy of the reasons for the decision herein of:
Miss E A Shanahan, Member

Signed: .....................................................................................

Grace A Carney, Administrative Assistant

Date of Hearing  7 March 2011
Date of Decision  25 July 2011
Advocate for the Applicant       Mr J Horan
Advocate for the Respondent   Mr K Rudge, Department of Veterans' Affairs