Mattner and Repatriation Commission

[2004] AATA 1326

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2004] AATA 1326

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No N2003/1896

VETERANS' APPEALS DIVISION		)
Re		JOYCE MATTNER

Applicant

And REPATRIATION COMMISSION

Respondent

DECISION

Tribunal Dr J D Campbell, Member  

Date14 December 2004

PlaceSydney

Decision The decision under review is affirmed.

[Sgd] DR J D Campbell  Member

CATCHWORDS

VETERANS' ENTITLEMENTS - war widow's pension - kind of death suffered by late veteran - smoking chronic bronchitis - issue of contribution – absence of clinical record of disease – decision affirmed

Veterans' Entitlements Act 1986 sections 13, 14, 19, 120, 120A

Repatriation Commission v Cooke (1998) 90 FCR 307

Repatriation Commission v Gosewinckel (1999) 59 ALD 690

Repatriation Commission v Hancock [2003] FCA 711

Repatriation Commission v Towns [2003] FCA 1262

Byrnes v Repatriation Commission (1993) 177 CLR 564

Bushell v Repatriation Commission (1992) 175 CLR 408

REASONS FOR DECISION

14 December 2004   Dr J D Campbell   

1.      In this matter, Mrs Joyce Mattner (“the Applicant”) seeks a review of the decision of the Repatriation Commission (“the Respondent”) dated 13 August 2002 which determined that the death of the late veteran, Mr Reginald Mattner was not war-caused and that a War Widow’s Pension was not payable. This decision was affirmed by the Veteran’s Review Board (“VRB”) on 11 September 2003.

2.      Mrs Mattner lodged a claim for a War Widow’s Pension with the Respondent on 11 July 2002, in which she contended that her husband’s death was caused by flying in wet clothes during service and by a service related smoking habit. The Respondent considered that the late veteran died from malignant neoplasm of the prostate and that none of the factors contained within Statement of Principles (SoP) Instrument No.84 of 1999 were applicable. Accordingly, the Respondent determined that the late veterans’ death from malignant neoplasm of the prostate was not related to his service. Mrs Mattner applied to the VRB for review on 27 March 2003. (T10) The VRB affirmed the earlier decision on 11 September 2003. (T12)

issues

3.      The relevant issues in this matter are:

(a)whether the late veteran had a service related smoking habit; and

(b)whether the late veteran suffered from any chest condition, and if so, was this war-caused; and

(c)a consideration of the cause of death of the late veteran; and

(d)whether the late veterans’ war-caused chest condition, if found to exist, made any material contribution to the late veterans’ death; and if so

(e)whether Mrs Mattner is entitled to a War Widow’s Pension.

decision

4.      For the reasons detailed later in this decision, the Tribunal finds that:

(a)     the late veteran had a service related smoking habit; and

(b)the late veteran suffered from chronic bronchitis which is a war-caused disease; and

(c)the kind of death suffered by the late veteran was malignant metastatic disease of the prostate; and

(d)the late veteran’s war-caused disease of chronic bronchitis made no material contribution to the kind of death suffered by the late veteran; and

(e)     Mrs Mattner is not entitled to a War Widow’s Pension.

mrs mattner’s evidence

·     She met her husband in 1938, when she was aged 18, and married him in November 1941, some 12 weeks before he was posted overseas;

·     At that time she was unaware that he smoked, and never saw him smoking prior to his enlistment. During the period up to her marriage she would have seen him on most weekends, as he worked clearing scrub during the week;

·     Mrs Mattner has always been allergic to cigarette smoke;

·     The late veteran served overseas as a gunnery/wireless operator with 10 Flying Boat Squadron based at Plymouth and during a period of three years he completed three tours and rose in rank from Air Craftsman to Flight Lieutenant;

·     On his return home, he was a nervous wreck, calling out in the middle of the night and that he smoked incessantly, mainly tailor made. He worked with his brother at Naracoorte each week, returning home to Strathalbyn most weekends;

·     After living with Mrs Mattner’s parents for two years they moved to Strathalbyn. The property  at Naracoorte was sold in 1958 and further properties purchased at Waikerie (sold 1985) and more locally;

·     During this period Mrs Mattner was aware that her husband was smoking during the day and outside at night. She was aware that he use to develop a cough after getting a cold, which he seemed to get five to six times a year, more so in winter. Each episode would last for four to five days, with the late veteran spending two days in bed;

·     The late veteran developed a cough, which was particularly bad in the morning.  Mrs Mattnew could not remember the exact year of onset of the cough;

·     She did not observe him coughing up sputum in the early years, but after his heart attack in 1979 he would cough and expectorate sputum on most days;

·     His daughter noticed that he was breathless both before and after his heart attack;

·     Mrs Mattner starts to cough on exposure to cigarette smoke. She did not tell the late veteran of her allergy to smoke. She noted that the late veteran did not smoke in the home in the early years of their marriage.

mrs johnston – daughter

5.      Mrs Johnston detailed the following information to the Tribunal:

·     The late veteran smoked a lot when she was a young girl, buying cigarettes by the carton;

·     By the age of four, she was conscious of him having a bad chest, suffering a cough and phlegm for a few days at a time three or four times a year;

·     At age 12 she went to boarding school, By 1960 she observed that her father had a morning cough and that he would spit into the toilet. On school holidays she noticed that his handkerchiefs would be rinsed prior to washing;

·     In 1972 she moved to Sydney and in the ensuing years noticed that her father would puff walking up a slope or become breathless and rest while climbing stairs, all this occurring before his heart attack in 1979.

medical evidence

dr gianoutsos – consultant thoracic physician

6.      In a report dated 27 April 2004, (Exhibit A2), Dr Gianoutsos detailed the late veteran’s smoking history, which included the late veteran smoking at least one to two packets of roll your own tobacco a week on his return from war service, and later, prior to 1978. one and half packets of tailor made cigarettes per day. Further it is recorded that the late veteran continued to smoke up to time of his death in 1987.

7.      In relation to clinical symptomatology, Dr Gianoutsos detailed the emergence of a productive daily cough by the late 1960’s, together with some shortness of breath. Also between 1945 and 1978 Dr Gianoutsos described the late veteran as suffering from acute bronchitic bouts up to four times a year and six times a year thereafter.

8.      Dr Gianoutsos also noted that the late veteran never coughed up blood, nor was he prescribed any medication for his chest problem.

9.      Dr Gianoutsos concluded that from the evidence given to him the late veteran suffered from chronic bronchitis. Dr Gianoutsos was unable to determine whether or not the late veteran suffered from emphysema, as appropriate radiology and respiratory function testing was not available. Dr Gianoutsos considered that superimposed on the late veteran’s chronic bronchitis, acute bouts of bronchitis occurred warranting appropriate antibiotic therapy. Dr Gianoutsos also believed that with bone marrow infiltration due to the prostatic metastatic carcinoma, the late veteran would have been more liable than not to develop superimposed infection of the lung.

10.     Dr Gianoutsos confirmed his opinion as to the existence of chronic bronchitis in the late veteran from 1978.

associate professor breslin – consultant thoracic physician

11.     In a report dated 7 June 2004 (Exhibit R2), Professor Breslin concluded that the late veteran commenced smoking prior to service. He concluded that there is no objective evidence of any chronic lung disease being present in the late veteran. He noted that while there was no treatment for an airways disease, there was treatment for other conditions, with medication which would have been contraindicated if the late veteran suffered from an airways disease. Professor Breslin repored that the late veteran had widespread malignancy and that he died of that malignancy with bronchopneumonia being the terminal event. Further Professor Breslin concluded that there is no evidence on the information available that the late veteran’s bronchopneumonia was a separate event, or that it was made more likely by his previous smoking history.

12.     Professor Breslin concluded that he did not believe that the late veteran had any other respiratory condition which caused or contributed to his death and that the bronchopneumonia was a terminal event inseparable from the widespread malignancy.

13.     In a subsequent report dated 13 August 2004 (Exhibit R3), following a review of letters from various specialists and notes from the attending general practitioner, Professor Breslin noted that there were no comments made as to the existence of chronic respiratory symptoms, including chronic cough between 1974 and 1987. Professor Breslin noted that during this period the chest was recorded as clear, with the exception being the time when he was diagnosed with multiple pulmonary emboli.

14.     Professor Breslin concluded that there is absolutely no evidence to support a diagnosis of chronic lung disease, and no evidence whatsoever that there was any chronic bronchitis, emphysema or chronic lung symptoms. Professor Breslin reaffirmed his earlier opinion that a respiratory condition did not cause or contribute to the late veteran’s death.

15.     In oral evidence, Professor Breslin, when made aware of the late veteran’s clinical history as detailed by Mrs Mattner and Mrs Johnston, agreed that a history of a daily productive cough is sufficient to make a diagnosis of chronic bronchitis, provided such mucus production is not attributable to another respiratory disease. Professor Breslin opined that while a diagnosis of chronic bronchitis could be made, it is evident that the condition was minor. Further, Professor Breslin concluded that the symptomatology was not a manifestation of significant underlying airways disease, including emphysema and chronic airflow obstruction. To suggest otherwise would in, Professor Breslin’s opinion, be fanciful. Professor Breslin also commented that an individual with chronic bronchitis is possibly more predisposed to a terminal infection, with the chronic bronchitis possibl,y as opposed to probably, making a contribution.

medical records from royal adelaide hospital

16.     These notes (Exhibit R4), which include both hospital records and medical reports detail no clinical history or findings which would indicate the presence of a chronic respiratory condition, apart from the acute episode of multiple pulmonary emboli in October 1986.

clinical notes strathalbyn clinic (including notes of dr fairley)

17.     The clinical notes of the Strathalbyn clinic (Exhibit R5) include the clinical notes of the attending general practitioners (Dr Fairley, Dr Carrangis) for the period 25 January 1974 until 5 April 1987 (death of late veteran). The notes further include reports from a number of treating specialists.

18.     A review of these notes demonstrate that the late veteran was not recorded as being treated for either cough or respiratory tract infection by his attending general practitioners during the period 1974 to 1987. Indeed the Tribunal is unable to locate any recording that the late veteran was treated with antibiotic therapy for a respiratory condition. Further the chest examination records in these medical reports indicate that the chest was clear, other than with the occasion of multiple preliminary emboli in October 1986.

consideration and findings

19.     The Tribunal observes that the clinical and smoking history as defined in the written records is at variance with that described to the Tribunal by Mrs Mattner and her daughter, Mrs Johnston in so far as it relates to pre-war smoking and clinical documentation of respiratory disease symptomatology. In relation to both issues, it is the Tribunal’s conclusion that the smoking history difference is of limited evidentiary consequence and the absence of recorded respiratory symptomatology would, in the Tribunal’s view, be indicative of the measure of the severity of any underlying respiratory pathology.

20.     In addressing the smoking history the Tribunal is satisfied that the late veteran was smoking two ounces of tobacco a week prior to enlistment as noted in his enlistment records; albeit perhaps not in his handwriting, but nevertheless contained within a document that he has signed (T3, p14). The Tribunal accepts the evidence of both Mrs Mattner and Mrs Johnston that the late veteran had increased his daily cigarette consumption to 30 a day upon return from his operational service. The Tribunal also accepts that the late veteran’s operational service was stressful flying as a rear gunner on three separate tours of duty amounting to in excess of 2000 hours in aircraft based at Plymouth. The Tribunal concludes that the late veteran’s pre-existing smoking habit was enhanced and made worse as a consequence of his stressful operational service over a three year period. Further the Tribunal concludes that the late veteran continued to smoke at 30 cigarettes a day until his heart attack in 1978, and thereafter at a somewhat lesser daily level.

21.     As a result of such findings the Tribunal is satisfied that the late veteran smoked a minimum of ten pack years of cigarettes as a result of his increased smoking habit between 1942 and 1978, a finding supported both by the evidence of Mrs Mattner and Mrs Johnston and the opinion of Dr Gianoustos.

22.     As a consequence of the clinical history of the late veteran provided by Mrs Mattner and Mrs Johnston in relation to the issue of a daily productive cough, and the clinical opinions of Drs Gianoustos and Professor Breslin, the Tribunal is satisfied on the balance of probabilities that the late veteran suffered from chronic bronchitis with date of clinical onset being 1978 (Repatriation Commission v Cooke (1998) 90 FCR 307 and Repatriation Commission v Gosewinckel (1999) 59 ALD 690.

23.     In addressing the issue of whether the disease of chronic bronchitis was war-caused, the Tribunal notes that there is material pointing to a hypothesis linking a war caused habit of increased smoking with bronchitis. The Tribunal further notes that the appropriate Statement of Principle (SoP) is Instrument No.30 of 2004 concerning chronic bronchitis. The Tribunal further notes that there is material pointing to each element of Factor 5(a) on that Instrument, namely smoking at least five pack-years of cigarettes before the clinical onset of chronic bronchitis (being 1978). As a consequence the Tribunal concludes that the hypothesis linking the late veteran's increased smoking habit with the development of chronic bronchitis is a reasonable hypothesis.  

24.     Notwithstanding that there is no record in the clinical reports of a chronic respiratory disorder, the Tribunal is satisfied beyond reasonable doubt that there are no facts which would disprove facts which constitute the hypothesis.  Alternatively there are no facts which permit the finding of other facts, which are inconsistent with the hypothesis.

25.     The Tribunal concludes that the late veteran’s disability of chronic bronchitis was a war-caused disease.

26.     The next issue to be considered and determined by the Tribunal is the kind of death the late veteran had suffered. The Tribunal, in noting the judgments in both Repatriation Commission v Hancock [2003] FCA 711 and Repatriation Commission v Towns [2003] FCR 1262, concludes that such a determination must be made on the balance of probabilities.

27.     The material in this matter has been reviewed with particular reference to the “kind of death” issue. The Tribunal has also paid particular attention to the clinical notes provided from the general practitioner over a 15 year period ending with the death of the veteran in April 1987, the clinical records of the Royal Adelaide Hospital and the opinions of the two medico-legal consultants. While the Tribunal has already made a finding in relation to the existence of war-caused chronic bronchitis, the issue in this matter is whether this disease made a contribution on the balance of probabilities to the kind of death suffered by the late veteran.

28.     The Tribunal, in reviewing all the material notes:

·an absence of any reference to chronic bronchitis, cough or material pointing to a chronic chest condition in the records of the treating general practitioners from 1972 to April 1987;

·comments in those same set of notes on numerous occasions that the chest was found to be clear on examination;

·no material, again in this set of notes, pointing to the existence of a chest infection in the last two weeks of life;

·no record in the Royal Adelaide Hospital and numerous consultants reports that the late veteran was suffering from a chronic cough, chronic bronchitis or any chronic respiratory condition;

·evidence and opinion as to the late veteran suffering from an episode of acute pulmonary emboli in 1986 as a consequence of chemotherapy for his metastatic prosthetic carcinoma;

·existence in that same set of notes that chest examination had not revealed any significant findings, apart from those found during the acute preliminary emboli episode;

·existence, in both sets of notes, of the late veteran being treated with inderal, such treatment being contraindicated in the presence of obstructive airways disease.

29.     In further assessment as to the “kind of death” suffered by the late veteran, the Tribunal observes the death certificate (T6, p28), the recorded opinions of the treating specialists, contained within both the attending general practitioners notes and the Royal Adelaide Hospital Notes, and the opinions of both Dr Gianoustos and Professor Breslin. The Tribunal concludes that on the balance of probabilities the kind of death suffered by the late veteran was metastatic carcinoma of the prostate, which included metastatic infiltration of the bone marrow; bronchopneumonia being the proximal cause of death, the latter being a terminal event.

30.     In determining the “kind of death” issue in this matter, the Tribunal was acutely aware of the argument as to whether or not the war-caused chronic bronchitis disease had, on the balance of probabilities, made a contribution to the death and if so whether it should be included in the kind of death suffered.

31.     In addressing this issue the Tribunal has again considered that there is no documented clinical evidence of chronic bronchitis or chest issues other than that recorded as bronchopneumonia within 24 hours of the late veteran’s death. Further the Tribunal has had the benefit of both the written and oral evidence of both Dr Gianoustous and Professor Breslin. It is to be noted that the oral evidence provided by both clinicians was given by them, having been made aware of clinical material not necessarily available to them at the time of their written opinion.

32.     Following a consideration of such material the Tribunal notes Professor Breslin’s particular opinion that linking the late veterans’ chronic bronchitis with the bronchopneumonia would in this matter be fanciful, and for the reasons he detailed. The Tribunal, also having noted Dr Gianoustos’ opinion, concludes that on the balance of probabilities the chronic bronchitis suffered by the late veteran did not contribute to the death of the late veteran, and as a consequence was not a disease to be determined in the kind of death suffered by the late veteran. In so finding the Tribunal relies upon the absence of any documented clinical record of chronic bronchitis or cough within the clinical notes of the attending general practitioner and the hospital records, the former being documentation over a period of 15 years up to and including his death and the latter a compilation of hospital notes and specialists reports in the year prior to his death.

33.     In making such a finding the Tribunal also acknowledges the report and comments of Professor Breslin who was particular in his opinion, while still acknowledging that there was a possibility that the chronic bronchitis may have possibly made a contribution to the bronchopneumonic condition, but in the circumstances of this matter he viewed this as somewhat fanciful. The Tribunal, while noting Dr Gianoustos’s opinion, has considerable difficulty with such an opinion in the light of the absence of documented clinical comment as to the existence of a chronic bronchitic disease process over a fifteen year period, up to and including the time of the late veteran’s death.

34.     The consideration of the relevant SoP, (Instrument No.84 of 1999) is necessary to determine whether the late veteran’s “kind of death” is related to his war service. The Tribunal in noting the four factors nominated within paragraph five of that Instrument observes that there is no material pointing to circumstances in the late veteran’s service which would fall within the ambit of material nominated within those four factors. The Tribunal, in the absence of a reasonable hypothesis linking the late veteran’s kind of death with his operational service, determines that the kind of death suffered by the late veteran was not war-caused.

determination

35.     The decision under review is affirmed.

I certify that the 35 preceding paragraphs are a true copy of the reasons for the decision herein of Dr J D Campbell, Member  

Signed:         A. Krilis
  Associate

Date/s of Hearing  28 October 2004
Date of Decision  14 December 2004
Solicitor for the Applicant          Mr Brian Winship
Solicitor for the Respondent     Mr Nigel Bunn