MARGARET GUNTER and REPATRIATION COMMISSION
[2012] AATA 189
•2 April 2012
[2012] AATA 189
Division VETERANS' APPEALS DIVISION File Number(s)
2011/2897
Re
MARGARET GUNTER
APPLICANT
And
REPATRIATION COMMISSION
RESPONDENT
DECISION
Tribunal The Hon R J Groom AO (Deputy President)
Date 2 April 2012 Place Hobart The decision under review is affirmed.
[Sgd Hon R J Groom]
Deputy President
CATCHWORDS
VETERANS' ENTITLEMENTS - war widow's pension - veteran's death in 1996 - kind of death - metastatic carcinoma of the prostate - no hypothesis raised connecting cause of death to circumstances of veteran's operational service - Tribunal satisfied beyond reasonable doubt that veteran's death not war caused - decision under review affirmed
LEGISLATION
Veterans' Entitlement Act 1986, ss 8(1)(b), 13, 26, 120(1), (3) and (4)
CASES
Repatriation Commission v Deledio (1998) 83 FCR 82
Bushell v Repatriation Commission (1992) 175 CLR 408
Collins v Repatriation Commission [2011] AATA 888
Collins v Repatriation Commission [2009] FCAFC 90; (2009) 177 FCR 280Repatriation Commission v Law (1980) 147 CLR 635
REASONS FOR DECISION
The Hon R J Groom AO (Deputy President)
On 14 May 2010 Mrs Gunter lodged a claim for a widow’s pension under the Veterans’ Entitlements Act 1986 (“the Act”).
The claim was refused by the Repatriation Commission and on review also by the Veterans’ Review Board (“VRB”). Mrs Gunter now asks this Tribunal to review the VRB decision made on 30 May 2011.
Mrs Gunter is the widow of the late Mr Thomas Gunter who died on 21 June 1996 at the age of 72 years. Mr Gunter rendered service in the Australian Army from 4 June 1942 to 5 February 1945. It is not in dispute in these proceedings that the whole of that period of service was “operational service” and “eligible war service” for the purposes of the Act.
Mrs Gunter contends that Mr Gunter’s death was “war caused” and therefore as the veteran’s widow she is entitled under the Act to receive a widow’s pension.
THE LEGISLATION
Section 13 of the Act provides that when the death of a veteran was “war-caused” the Commonwealth is liable to pay a pension “by way of compensation” to the dependants of the veteran. The term “dependants” includes the widow of the veteran.
Section 8(1)(b) of the Act relevantly provides that the death of a veteran shall be taken to have been “war-caused”:
“… if the death of the veteran arose out of, or was attributable to, any eligible war service rendered by the veteran.”
There are unique provisions in the Act which facilitate proof of the relationship between a veteran’s death and his war service when the death is said to relate to operational service.
If a veteran’s death is related to operational service section 120(1) of the Act directs the decision maker to determine that the particular death was war-caused unless it is satisfied beyond reasonable doubt that there is no sufficient ground for making that determination.
Section 120(3) of the Act provides as follows:
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.
The requirements of section 120 are to be applied in accordance with the four stages of analysis as prescribed by the Full Court of the Federal Court in Repatriation Commission v Deledio (1998) 83 FCR 82.
If a Statement Of Principles (“SOP”) has been issued by the Repatriation Medical Authority then any relevant SOP guides the decision maker in deciding whether a reasonable hypothesis has been raised connecting the death to the circumstances of service (see section 196B of the Act).
Where there is no SOP for the relevant cause or causes of death it falls to the Tribunal to consider all the material before it in order to determine whether that material points to a reasonable hypothesis connecting a cause of death with the circumstances of the late veteran’s particular service. (see Bushell v Repatriation Commission (1992) 175 CLR 408).
It is necessary for the Tribunal to now determine the cause or causes of the veteran’s death.
THE CAUSE OR CAUSES OF DEATH
Meaning of the word "death" and also the phrase "kind of death" for the purpose of the Act were considered by the Full Federal Court in Collins v Repatriation Commission [2009] FCAFC 90; (2009) 177 FCR 280. In that case the Court held that that word and phrase are references to the medical cause or causes of death.
The question of the cause or causes of death is to be determined to the Tribunal's reasonable satisfaction in accordance with section 120(4) of the Act.
It is contended by Mr Warren, on Mrs Gunter’s behalf, that the cause of her husband’s death was “broncho pneumonia” and that “chronic obstructive airways disease” (“COAD”) and “cerebrovascular accident” (“CVA”) contributed to that cause of death. The respondent readily concedes that both COAD and CVA are war caused conditions. (See paragraph 4.4 of the respondent’s Statement of Facts and Contentions).
Mr Rudge for the respondent submits that medical cause of death was “metastatic carcinoma of the prostate”. It is agreed by both parties that prostate cancer and metastatic prostate cancer were not war caused conditions. (See Mr Warren’s statement at page 10 of the transcript)
The “medical certificate of the cause of death” (T7 page 24) states that the “disease or condition directly leading to death” was “broncho pneumonia”. The duration of that disease or condition is stated as “days”. The broncho pneumonia is said to be “due to (or as a consequence of) metastatic prostate cancer” and “cancer prostate”. Those two conditions are listed as the “morbid conditions … giving rise to the above cause”. The duration of both conditions is stated to be “years”.
In the “Medical Certificate of the Cause of Death”, “other significant conditions contributing to the death, but not related to the disease or conditions causing it” are stated to be ‘COAD, (L) CVA, alcoholic liver disease and peptic ulcer” (Tribunal’s emphasis).
In a letter dated 16 March 1998 (T Documents page 34) Dr D A Kirkman, who was Mr Gunter’s general practitioner, stated as follows:
“Even though Mr Gunter died from metastatic prostatic cancer, I am sure his general state of debilitation, alcoholic liver disease, chronic airways limitation and the fact that he suffered a CVA several months prior to his death all contributed towards his death”.
Dr M Tilsley said in a handwritten letter of 11 May 2010 (T Documents page 58):
“This man died of broncho pneumonia according to his death certificate. He had a war caused disability – COAD and this in my opinion would have predisposed him to broncho pneumonia
Regards
Malcolm Tilsley”
Dr David J Schlect, a radiation oncologist, in a written medical report of 18 March 1996 (T Documents page 13) gives a brief history of Mr Gunter’s condition of prostate cancer. Dr Schlect explains that carcinoma of the prostate was initially diagnosed in March 1991. Mr Gunter’s bone scan remained negative until May 1995. According to Dr Schlect by June 1995 his PSA had risen and a
“… CT abdomen/pelvis indicated possible involvement of the perirectal issue”.
Dr Schlect then added:
“… recently his PSA has increased again and his bone scan has become positive and he has now developed back, pelvic and perineal pain”.
Further Dr Schlect said in the report:
“His bone scan indicates multiple sites of metastatic disease and it is particularly “hot” in the L5 vertebral body, particularly on the left, extending into the upper sacroiliac on the left”.
Dr Schlect then adds:
“He should benefit from a short course of palliative irradiation to the L5 sacroiliac joints and ribs on the right”
In a report from Dr Peter O’Hare of Southern X-Ray Clinics Pty Ltd of 22 February 1996 (approximately four months before Mr Gunter’s death) it was noted as follows:
“Multiple focal abnormal areas of increase in Isotope uptake were seen within the ribs bilaterally, the left side of L5 and superior to the left of the sacrum. Other areas consistent with secondary deposits, were seen within the skull, cervical and thoracic spines and both femurs”. (T Documents page 22)
Dr Schlect provides a further report dated 11 April 1996 (T Documents page 23) after the completion of the radiation treatment. He states:
“This gentleman has completed his irradiation for his metastatic carcinoma prostate.
He received via a posterior field to the sacroiliac joints, appositional to the right lateral chest wall and AP PA to the left shoulder a dose of 2,700cGy in 9 fractions treating between the 20.3.96 and the 3.4.96.
He was an inpatient throughout at Greenslopes Hospital and at completion of treatment his general condition remained quite frail”.
The evidence establishes that Mr Gunter’s prostate cancer began to metastasize from some time prior to June 1995. By February 1996 there is evidence of secondary deposits in the skull, cervical and thoracic spines and both femurs. Then on 18 March Dr Schlect advises a “short course of palliative irradiation”. The use of the work palliative suggests that the radiation treatment was proposed for the purposes of reducing pain and suffering rather than providing a cure for the disease.
As affirmed in the Full Federal Court decision in Collins (Supra) (per Mansfield, Stone and Edmonds JJ) the “kind of death” as used in the Act is “the medical cause or causes of death”. (Paragraph 47).
A decision as to the cause of death is a question of fact to be determined on the balance of probabilities according to the “medical diagnosis and other evidence”. (Paragraphs 45 and 50).
There can be more than one medical cause for a veteran’s death. (See Repatriation Commission and Law (1980) 147 CLR 635.
The critical question in this case is whether “broncho pneumonia” or “metastatic carcinoma of the prostate” was the medical cause of death.
In the years prior to his death Mr Gunter had suffered from numerous medical conditions. A comprehensive list of those conditions is set out in Dr Schlect’s report of 18 March 1996 (T Documents page 13). There are several conditions mentioned in Dr Schlect’s report which are not referred to in the death certificate. They include:
“… glaucoma, recent cataract extraction, peripheral vascular disease, fem pop bypass ‘91, cholelithiasis, diverticulitis and depression”.
It is significant that the death certificate suggests that broncho pneumonia was not a long standing condition but had been present for only “days”.
In contrast, the prostate cancer had been present for several years and had gradually spread to widespread regions of the body. The Tribunal interprets the totality of the material before it, including the reference to “palliative” in Dr Schlect’s report of 18 March 1996, the results of the nuclear medicine bone scan of 22 February 1996, the indication that Mr Gunter’s “… general condition remained quite frail” made on 11 April 1996 and other medical evidence to indicate that Mr Gunter was suffering from advanced incurable metastatic carcinoma of the prostate which eventually caused his death on 21 June 1996.
The Tribunal has considered the opinion expressed on 22 February 2002 by Professor J F Cade who was then Director of Intensive Care at the Royal Melbourne Hospital. Professor Cade expressed his opinions after discussions with Professor Michael Pain who had been Director of Thoracic Medicine at the Royal Melbourne Hospital. Mr Warren correctly pointed out that Professor Cade’s views were general in nature and were obviously expressed without any direct knowledge of the particular factual circumstances of the present case. The Tribunal nevertheless finds Professor Cade’s opinions to be most helpful in gaining an understanding of the probable part played by broncho pneumonia in bringing about Mr Gunter’s death.
Mr Warren relies to a degree on the reference in the “Medical Certificate of the Cause of Death” (T7) to “COAD” and “(L) CVA” as “contributing to the death”. It is of significance that the death certificate does not include those conditions as conditions “directly leading to death” but rather as “other significant conditions”. It is also noted that “peptic ulcer” is listed as “contributing to the death” but that condition clearly was not a cause of death. Mr Warren does not contend that it was a cause of death.
Dr Kirkman in his letter of 16 March 1996 acknowledges that Mr Gunter “died from metastatic prostatic cancer” although he does add that his “general state of debilitation, alcoholic liver disease, chronic airways limitation and the fact that he suffered a CVA several months prior to his death all contributed towards his death”. Dr Kirkman does appear to recognise however that those conditions, whilst contributing in some way to Mr Gunter’s death, were not medical causes of death. The reality is that Mr Gunter’s death was not caused by his general state of debilitation, his chronic airways limitation, liver disease or the CVA he had suffered sometime prior to this death. None of those conditions caused him to die. The real cause of his death was the invasion in many parts of his body of the prostate cancer which had been first diagnosed in 1991.
CONCLUSION
The Tribunal finds on the evidence before it that prior to his death Mr Gunter was suffering from an advanced terminal illness, namely metastatic carcinoma of the prostate which was no longer amenable to treatment. Pneumonia has, as Professor Cade stated, long been recognised “… as the terminal event (or mechanism of death) in patient’s dying from an advanced incurable illness, such as metastatic cancer”. (T Documents page 65).
In Collins (Supra) Mansfield and Stone JJ said at paragraph 84:
“For those reasons, we do not consider that as a matter of law 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 a death (that is a medical cause of death) or a kind of death under the VE Act. The medical cause or causes of death are to be determined by the relevant decision-maker on the evidence. That is what the Tribunal did. In our judgment, it committed no error of law in doing so”.
The Tribunal further finds that whilst the condition of broncho pneumonia was the immediate mechanism of death and may have influenced the time of death it was not the medical cause of death. The medical cause of death and the “kind of death” for the purposes of the Act was metastatic carcinoma of the prostate.
As mentioned in paragraph 17 above it is agreed by the parties that Mr Gunter’s condition of metastatic carcinoma of the prostate and prostate cancer were not war caused. The Tribunal agrees with that view as there is a complete absence of any material pointing to an hypothesis that service related factors contributed in any way to Mr Gunter’s prostate cancer or the metastatic carcinoma of the prostate from which he suffered and which caused his death.
The material therefore does not raise a reasonable hypothesis connecting Mr Gunter’s death to the circumstances of the particular service he rendered.
The Tribunal is therefore satisfied beyond reasonable doubt that there is no sufficient ground for determining that the death of the veteran was war caused.
DECISION
The decision under review is affirmed.
I certify that the preceding 40 (forty) paragraphs are a true copy of the reasons for decision herein of The Hon R J Groom AO (Deputy President)
[Sgd R Hunt]
Administrative Assistant
Dated 2 April 2012
Date(s) of hearing 7 February 2012
Advocate for the applicant Mr Brian Warren, Naval Association
Solicitor for the respondent Mr Ken Rudge, Department of Veterans’ Affairs
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