Martin and Repatriation Commission
[2005] AATA 556
•10 June 2005
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2005] AATA 556
ADMINISTRATIVE APPEALS TRIBUNAL )
) No Q2004/787
VETERANS' APPEALS DIVISION )
Re JESSIE MARTIN Applicant
And
REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Mr RG Kenny, Member Date10 June 2005
PlaceBrisbane
Decision The Tribunal affirms the decision under review. ...................[Sgd]......................
RG Kenny
Member
CATCHWORDS
VETERANS’ AFFAIRS – determination of cause of death – civil standard of proof – death from malignant neoplasm of the colorectum – application of Statements of Principles - no reasonable hypothesis of relevant relationship to eligible war service - death not war-caused
Administrative Appeals Tribunal Act 1975 ss 34B, 37
Veterans’ Entitlements Act 1986 ss 6A, 7, 8, 11, 14, 120(1), 120(3), 120(4), 120A
Repatriation Commission v Hancock [2003] FCA 711
Fogarty v Repatriation Commission (2003) AAR 363
Benjamin v Repatriation Commission (2001) 70 ALD 622
Repatriation Commission v Smith (1987) 15 FLR 327
Nicolia v Commissioner for Railways [1972] ALR 185
Repatriation Commission v Deledio (1998) 83 FCR 82REASONS FOR DECISION
10 June 2005 Mr RG Kenny, Member Background
1. Edwin Martin (the veteran) served in the Australian Army during World War II from 9 April 1942 until 12 June 1946 and that service constitutes operational service and eligible war service in accordance with sections 6A and 7, respectively, of the Veterans’ Entitlements Act 1986 (the Act). Mr Martin died on 28 July 2002 and, on 28 August 2002, Jessie Martin, his widow and a dependant, as defined in section 11 of the Act, lodged a claim, under section 14 of the Act, for a pension on the basis that the veteran’s death was war-caused in accordance with section 8 of the Act. That claim was rejected by the Repatriation Commission (the respondent) on 13 November 2002 and, in turn, by the Veterans’ Review Board on 9 June 2004. On 6 October 2004, the applicant sought review of that decision by the Administrative Appeals Tribunal (the Tribunal).
Hearing
2. At the hearing, Mrs Martin was represented by Mr P Canning of counsel. The respondent was represented by Mr M Smith.
3.Material available to the Tribunal comprised:
exhibit 1:the documents prepared in accordance with section 37 of the Administrative Appeals Tribunal Act 1975 (the Act) (T1 – T6);
exhibit 2:a medical history sheet relating to the veteran (undated but completed when the veteran was aged 60 years); and
exhibits 3 and 4: photographs of the veteran taken during service.
Issues and Legislation
4. In order for the death of a veteran to be accepted as being war-caused, one of the requirements in section 8 of the Act must be met and relevant in this matter is paragraph 8(1)(b) of the Act which reads:
“(1)Subject to this section, for the purposes of this Act, the death of a veteran shall be taken to have been war-caused if:
(a) …..
(b)the death of the veteran arose out of, or was attributable to, any eligible war service rendered by the veteran;”
5. Where, as in this case, the veteran rendered eligible war service in the form of operational service, the standard of proof applicable to the determination is set out in subsection 120(1) of the Act which reads:
“120 Standard of proof
(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.”
6. The operation of that provision is affected by the terms of subsection 120(3) of the Act and 120A of the Act. Those provisions read:
“120 (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.
“120A 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) …
(2) …
(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.
(4) ………..”
7. The provisions noted above relate to matters of causation and require a consideration of the Statements of Principles which have been published by the Repatriation Medical Authority. However, before applying the provisions of the Act relating to causation, it is necessary to determine the “kind of death”, as that term appears in subsection 120A(1) of the Act, applicable to the veteran: see Repatriation Commission v Hancock [2003] FCA 711. It was submitted by Mr Canning that the standard of proof to be applied in determining the kind of death or the condition which was responsible for causing the veteran’s death is that provided for in subsection 120(1) of the Act. This would require such matters to be determined in the applicant’s favour unless the decision-maker could be satisfied beyond reasonable doubt to the contrary. I do not accept that submission. Whilst that standard is applicable to proof of matters pertaining to the relationship between death and the veteran’s service, it is not applicable to preliminary issues such as the cause of death. Such matters are to be determined in accordance with the terms of subsection 120(4) of the Act: see Fogarty v Repatriation Commission (2003) AAR 363 at 373 and Benjamin v Repatriation Commission (2001) 70 ALD 622 at (634). Thus, the matter must be determined to the decision maker’s reasonable satisfaction. This imports the civil standard of proof so that matters must be determined on the balance of probabilities: Repatriation Commission v Smith (1987) 15 FLR 327 at 335.
8. Accordingly, the first issue for the Tribunal to determine is the underlying cause of the veteran’s death and, in this matter, the delegate decided that this was malignant neoplasm of the colorectum. Mr Smith submitted that this was correct. Mr Canning submitted that consideration should also be given to pigeon fanciers’ lung disease as a relevant contributory factor to the cause of the veteran’s death. The second issue to be determined is whether the death of the veteran arose out of, or was attributable to, any eligible war service rendered by him.
Cause of Death
9. The veteran died on 28 July 2002 at Greenslopes Private Hospital in Brisbane. He was aged 79 years. His death certificate declared the cause of death and respective duration of conditions in the following way:
1(a) Liver failure, renal impairment (4 weeks, 2 weeks)
(b) Colorectal carcinoma with liver metastases (6 months)
2 Pigeon fanciers’ lung disease (more than 2 years)
10. Mr Canning relied upon the reference to pigeon fanciers’ lung disease in that certificate as the basis of his submission that it be considered as a cause of death. There is no evidence that the entries on the death certificate resulted from a post mortem examination of the veterans’ body and, in that situation, the entry on the certificate is no more than prima facie evidence of the cause of death: see Nicolia v Commissioner for Railways [1972] ALR 185 at 186 (per Barwick CJ) and at 187 (per Gibbs J). Mr Canning’s reliance on pigeon fanciers’ lung disease as being a contributory factor in the veteran’s death arises because, during his service, Mr Martin served with No 7 Pigeon Section both in Australia and the Pacific Islands and he continued to be involved with pigeon breeding and racing after his army service until approximately the year 2000.
11. Pigeon fanciers’ lung disease was noted in Mr Martin’s records at Greenslopes Hospital. This was because of the inclusion of that condition in a referring letter prepared for the hospital by his local doctor, Dr Siobhan Tiernan. Subsequently, on 24 October 2003, Dr Tiernan wrote a clarifying report which read:
“On careful perusal of Mr Martin’s file it appears that there may have been some confusion about the diagnosis of Pigeon Fancier’s Lung ever having been made. I referred Mr Martin to Dr Schull in October 1999 because I was concerned that his CXR was not normal for a non-smoker. Dr Schull did thorough investigations and thought Mr Martin’s lung problems were mainly due to late onset asthma. Dr Schull saw Mr Martin a total of 3 times I believe and he performed a CT of the chest and detailed spirometry on more than one occasion. I think it would be best to seek the results of these investigations and further elaboration as to the exact diagnosis of Mr Martin’s lung condition from Dr Schull. I did put Pigeon Fancier’s Lung on my letter to Greenslopes Hospital when I referred him for urgent admission with rising ESR and falling Haemoglobin in March 2002 in an emergency situation.”
12. Also in evidence were several reports from consultant thoracic physician, Dr C R Schull. On 3 November 1999, he wrote that the veteran suffered from late onset asthma. On 16 February 2000, he expressed the opinion that he did not think there was any probability of there being pulmonary fibrosis or other progressive disease present other than asthma. In a report dated 7 November 2003 to clarify the diagnosis of the lung condition, he wrote:
“When first seen it was thought that he had pulmonary fibrosis and extrinsic allergic alveolitis due to birds (“Pigeon fanciers’ lung disease) was considered a possibility. However, as you will be able to see, the CT of the chest and the negative serology to avian antigens made pulmonary fibrosis actually not a condition he had and there was no evidence that in fact he had precipitins to avian antigens and there was therefore no evidence that he had “Pigeon fanciers’ lung disease” at least during the time when I saw him.”
13. The veteran underwent a surgical procedure on 26 March 2003 for his adenocarcinoma of the caecum. This was carried out by general surgeon, Dr J Rutherford. In a report, dated 4 April 2002, Dr Rutherford wrote:
“The outlook does not look good. Histology reveals a poorly differentiated adenocarcinoma of the caecum involving through to the serosa. Two of six lymph nodes contain metastatic tumour but there are four other large deposits within the fat probably representing fully involved nodes. There are other deposits also of pericolic malignancy of the fatty tissue. No doubt these will influence his long term outlook.’
14. Ongoing treatment for this malignant neoplasm was provided by oncologist, Dr E A Blackwell, who provided a report on 22 April 2002. In that report, Dr Blackwell made reference to a past history of interstitial lung disease (bird fanciers’ lung). However, in a further report, dated 4 November 2002, Dr Blackwell wrote that the veteran’s CT scan has shown myriad liver metastases and he was hospitalised for palliative chemotherapy. Dr Blackwell continued:
“…his clinical condition was deteriorating so rapidly that we discontinued chemotherapy and managed him on a palliative basis. In this context, his Pigeon Fancier’s lung disease was a background problem, but I think it contributed nothing of significance towards his death.”
15. On the basis of the medical evidence, in particular that of Dr Schull, I am satisfied that, on the balance of probabilities, Mr Martin did not suffer from pigeon fancier’s lung disease. I am also satisfied, again on the balance of probabilities, that any such lung disease did not make a material contribution to the veteran’s death and that the underlying cause of death was colorectal carcinoma with liver metastases.
Relationship to Service
16. The procedure to be adopted in determining whether or not a particular condition, in this case the condition which caused the veteran’s death, arose out of, or was attributable to, any eligible war service that he rendered, was set out by the Federal Court in Repatriation Commission v Deledio (1998) 83 FCR 82 at 92 in the following terms:
"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 hypothesis, the tribunal must then ascertain whether there is in force an SoP determined by the Authority under s 196B(2) or (11). ...
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 120(1) whether it is satisfied beyond reasonable doubt that the death was not war-caused, ... 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." (Emphasis added)
Deledio step 1
17. This step requires that there be material which points to an hypothesis connecting a claimed condition with service. To that end, Mr Canning advanced two contentions:
First hypothesis:
18. During army service, the veteran suffered a reduction in his food intake and also was required to eat a limited food variety such as bully beef and biscuits. On return to Australia and after the war, he altered his dietary pattern by consuming more food and, in particular, a large quantity of meat and this remained the case for more than 20 years before the clinical onset of his adenocarcinoma in 2002.
19.Second hypothesis:
20. Because of his additional food consumption in post service years, the veteran became obese and this was the case for more than 15 years before the clinical onset of his adenocarcinoma in 2002.
21. I accept that those contentions constitute separate hypotheses of a relationship to operational service for malignant neoplasm of the colorectum.
Deledio step 2
22. The second step requires identification of the relevant Statement of Principles. For malignant neoplasm of the colorectum, this is Instrument No. 1 of 2004.
Deledio step 3
23. The third step requires consideration of whether either of the hypotheses raised is a reasonable one. This requirement will be met if an hypothesis fits the template provided by a relevant factor and associated definition in the Statement of Principles. These read:
(d) having an altered dietary pattern resulting in an increase of at least 100 grams in average daily total consumption of unprocessed beef, veal, pork, lamb or mutton for at least 10 years, where the increased consumption of unprocessed beef, veal, pork, lamb or mutton occurred at least 20 years before the clinical onset of malignant neoplasm of the colorectum;
(i)being obese for at least 15 years before the clinical onset of malignant neoplasm of the colorectum
being obese means an increase in body weight by way of fat accumulation which results in a Body Mass Index (BMI) of 30 or greater. The BMI = W/H2 and where: W is the person’s weight in kilograms and H is the person’s height in metres.
24. If either of the hypotheses under consideration is reasonable, it will then be necessary to consider the fourth of the Deledio steps. This will require a finding that the relevant condition is war-caused unless the Tribunal is satisfied beyond reasonable doubt that such is not the case.
Consideration
25. Oral evidence was taken in this matter from Mrs Martin. She said that she had met Mr Martin when she was aged about 14 years and he was about 16 years. She became engaged to marry him prior to his leaving Australia during his service. On his return to Australia and discharge from the Army, the veteran lived with his parents, as he had done before the war, for a period of 12 months until he and Mrs Martin were married. Mrs Martin said she had very few discussions with the veteran about his dietary patterns during service except that she was told that he only had bully beef and biscuits and did not get very much to eat. She said that, after she was married, she noted that he would eat anything that was put in front of him, “except for watermelon”, and that he preferred eating meat. She said he would eat any form of meat and did so for breakfast and at dinner at night.
26. Mrs Martin said her husband had been a bookbinder during his working life. She said that he spent almost all of his leisure time tending to pigeons which he bred and used in racing competitions. She said that, when she married him, she had made it a condition that he not keep the pigeons but, after about three years of marriage, he was gifted a pair of pigeons and, thereafter until around the year 2000, he engaged in his interest of breeding and racing pigeons.
27. Mrs Martin described her husband as always being overweight and she considered him to be fat. She was unaware of his dietary regime before he joined the Army although that she believed that his mother was not very good at cooking.
28. The material before the Tribunal gives no guidance on the nature of the veteran’s dietary patterns before he joined the Army. While there is material which points to the clinical onset of his malignant neoplasm in 2002, as submitted by Mr Canning, there is no material which points to his pre-enlistment dietary pattern and, it follows, that there is no material which points to an alteration of his dietary patterns when compared with post-service years. This means that the material before the Tribunal does not meet the template provided by factor (d), noted above.
29. The veterans’ medical history sheet completed on enlistment describes him as being 5’ 6¼” tall and weighing 140lbs. His discharge medical described him as being 166lbs in weight. Only two other weight references appear in the documents before the Tribunal. In the medical history sheet (exhibit 2) completed in the early 80s when the veteran was 60 years of age, he is described as being 171cm tall and 78kg in weight. While that represents an increase in his weight when compared with his weight at the time of discharge, the application of the formula for “being obese” yields a BMI reading of 26.6. In an echo-cardiography report, dated 20 October 1999, the veteran is described as being 168cms in height and weighing 84kgs. Again, this represents a further weight gain though there is no accounting for the difference in height unless, of course, one was taken with and the other without shoes. Nevertheless, on those figures, his BMI is 29.7.
30. Although the 1999 reading approaches the threshold reading required for “being obese” under the Statement of Principles, it falls short of that threshold and, therefore, there is no material that points to the satisfaction of the obesity factor in the Statement of Principles.
31. As neither of the hypotheses advanced by Mr Canning fits the template of either of factors in the Statement of Principles, those hypotheses are not reasonable and, to the extent he relies on them, the application is unsuccessful.
Decision
32.The Tribunal affirms the decision under review.
I certify that the 32 preceding paragraphs are a true copy of the reasons for the decision herein of Mr RG Kenny, Member
Signed: Camille Banks
Associate
Date of Hearing 12 May 2005
Date of Decision 10 June 2005Counsel for the Applicant Mr P Canning
Solicitor for the Applicant Sciacca’s Lawyers
For the Respondent Mr M Smith, Departmental Advocate
0
7
0