Maureen Hill and Repatriation Commission

[2010] AATA 540

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2010] AATA 540

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No N 200600561

VETERANS' APPEALS  DIVISION		)
Re		Maureen Hill

Applicant

And Repatriation Commission

Respondent

DECISION

Tribunal M.D. Allen, Senior Member
Dr J Campbell, Member

Date21 July 2010

PlaceSydney

Decision Pursuant to section 43 of the Administrative Appeals Tribunal Act 1975, the decision under review is AFFIRMED.

....................[sgd].....................

M D Allen, Presiding Member  

CATCHWORDS

VETERANS’ ENTITLEMENTS:  Medical cause of death.  Tribunal satisfied that cause of death was glomerulonephritis which was not linked to war service.  War-caused Ischaemic Heart Disease not a cause of death.  

LEGISLATION

Veterans’ Entitlements Act 1986, Sections 8, 13, 196B, 120 and 120A

CASES

Collins v Repatriation Commission [2009] FCAFC 90

Hill v Repatration Commission [2009] FCAFC 91

REASONS FOR DECISION

21 July 2010 M.D. Allen, Senior Member
Dr J Campbell, Member     

1. The Applicant is the widow of the late Dr John Walker, a Veteran who had operational service as that term is defined in section 6A of the Veterans’ Entitlements Act 1986 (“VEA”).

2.      The real issue in this matter is what was the medical cause or causes of the death of the late Veteran.

3.      Initially the Administrative Appeals Tribunal (“AAT”) had determined that the kind of death suffered by the Veteran was that of heart failure and kidney failure.  That decision was, both on appeal to the Federal Court at first instance and on further appeal to the Full Court, held to be an error of law.  See Repatriation Commission v Hill [2009] FCA 270 and Hill v Repatriation Commission [2009] FCAFC 91.

4. Sections 8 and 13 of the VEA make reference to the “war-caused death” of a Veteran. Later sections namely 196B and 120A make reference to the “kind of death” suffered by the Veteran. In Collins v Repatriation Commission [2009] FCAFC 90 the Full Court of the Federal Court said at paragraph 78:

“As noted above, it is common ground that the reference to ‘death’ in ss 8 and 13 of the VE Act is to the medical cause or causes of death.  It is also common ground that the reference to ‘kind of death’ in ss 120A and 196B is also to the medical cause or causes of death.  The link between those expressions through ss 120 and 120A is clear.  They each ask a ‘causative question’, to use the expression used by Gordon J in Codd at [31], even though that is not express.”

5.      The Death Certificate pertaining to the deceased read:

“(i) (a) Delerium secondary to acute chronic renal failure – end stage, 1 year.

(b) Heart failure, 2 weeks.

(ii) Progressive dementia, 2 years.”

6.      As pointed out in Hill v Repatriation Commission supra, the death certificate is part of the evidence on which the medical cause or causes of death is determined.  It is not itself determinative of that issue.  At paragraph 26 the Court pointed out that there may be more than one medical cause for a Veterans death.

7.      The following facts were found by the first Tribunal and were not disputed in these proceedings namely:

“ 20.    The following was not in dispute.  Dr Walker developed an acute focal necrotising glomerulonephritis, a disease of the kidney, in 1993. Scarring was apparent in 1994 without active inflammation.  Around that time Dr Walker also developed hypertension as a consequence of the glomerulonephritis.  In February 1996 his renal function was mildly impaired, and in November 2000 there was moderate renal dysfunction.  Renal function deteriorated markedly in 2002.

21.      In 1999 Dr Walker had a small myocardial infarct.  He had a coronary angiogram which showed triple vessel disease necessitating coronary artery bypass surgery.  That is, he had IHD.  The surgery was undertaken, with apparently good results.  Management of Dr Walker’s hypertension was apparently difficult at that time.  

22.      Dr Walker suffered an episode of cardiac failure in June 2002 associated with chest infection and deterioration of renal function. 

23.      Memory problems were noted in about 2000.  In August 2002 Dr Walker was referred to a geriatrician who felt that he was suffering from an Alzheimer’s type of dementia. 

24.      Dr Walker was admitted to The Hills Private Hospital on 12 June 2003 because of breathing difficulties.  There were conflicting accounts as to the presence or absence of chest pain in association with the breathing difficulties.  He was found to have a slow heart rate and cardiac pacing was considered briefly, but his heart rate rose with changes to medication.”

8.      Subsequent to his admission to the Hills Private Hospital the deceased died on 21 June 2003.

9.      In these proceedings the Applicant submitted that the deceased died not only from Glomerulonephritis but also from Ischaemic Heart Disease (“IHD”).  There was no dispute that if IHD was found to be a medical cause of the death of the deceased then his death would be war-caused due to an increased smoking habit acquired on service (in particular as a crew member of bomber command in the United Kingdom).

10.     The submission that IHD was a medical cause of death of the deceased was supported by the opinion of consultant physician Dr Butler.  For the Respondent, Professor O’Rourke was firmly of the opinion that IHD had played no part in the death of the deceased, and that his death was due to kidney disease alone.

11.     Where the opinions of those two experts differ, we prefer the opinions of Professor O’Rourke.  Professor O’Rourke is a cardiologist with an international reputation.  His curriculum vitae (“CV”) is set out in his report of 29 September 2006 which became exhibit R3 in these proceedings.  Dr Butler’s CV reveals that he is a consultant general physician which a major interest in clinical cardiology and has been a director of coronary care and cardiac rehabilitation at Sydney Adventist Hospital, which is not a teaching hospital.  He is not a specialist cardiologist.

12.     Professor O’Rourke’s opinion can be summed up by referring to his report of 8 December 2006 where he stated:

“Dr. Walker did have cardiac failure, but this is entirely attributable to diastolic left ventricular dysfunction caused by age and hypertension, worsened by tachycardia, in the presence of intercurrent disease.  This condition is described in the attached papers which I co-authored with colleagues in Austria, and the Mayo Clinic, Rochester together with a segment of a textbook on this condition.  Diastolic left ventricular dysfunction, as presented in Dr. Walker, has no relationship to coronary artery disease.  The episode of cardiac decompensation and heart failure in 2002 referred to by Dr. Butler, was treated as due to diastolic dysfunction, unrelated to coronary disease.  Features of cardiac failure in June 2003 are attributable to diastolic left ventricular dysfunction, renal failure, fluid retention and anaemia, not to ischemic heart disease.  While he did experience chest pains at this time, there was no evidence that this was due to myocardial ischaemia.  Troponin levels (which could show myocardial damage) were normal.”

In his report of 29 September 2006 he opined:

“Delirium can be attributed to acute on chronic renal failure.  Renal failure was a consequence of necrotising glomerulonephritis contracted in 1993.  Heart failure was attributable to longstanding hypertension caused by glomerulonephritis and renal failure.  There is no evidence of ischaemic heart disease being any factor in Dr. Walker’s death.”

13.     The opinion of Professor O’Rourke is supported by the clinical notes of Dr Patel, the cardiologist who undertook the care of the deceased following his infarct in 1999.  The report shows that following bypass surgery the deceased was progressing well, and concludes by stating:

“Given your good mobility and progress post operatively, I would feel it safe to resume driving.”

14.     In evidence, Dr Butler conceded that there were no clinical notes to indicate that IHD was apparent after the 1999 bypass operation.  In his report of 1 October 2006, Dr Butler stated that coronary bypass surgery was undertaken “with apparently good results”.

15.     During submissions the Applicant’s counsel made reference to a “damaged heart”.  There is no evidence to support this assertion.  The deceased did have coronary bypass surgery but the report of his treating cardiologist reveals that this was successful, and there is no evidence of any further follow up indicative of ongoing problems.

16.     For the above reasons we are satisfied on the balance of probabilities that IHD played no part in the death of the deceased.

17.     As IHD played no part in the death of the deceased we are not required to consider any hypothesis that seeks to link IHD with war-service.  The Applicant has conceded that no link exists between glomeralonephritis and war service, therefore the decision under review is AFFIRMED.

I certify that the 17 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member M D Allen and Dr J Campbell, Member

Signed:         .................[sgd].........................................
  K. Lynch, Associate

Date of Hearing  15 July 2010
Date of Decision  21 July 2010
Counsel for the Applicant         Mr M Vincent
Solicitor for the Applicant          Kemp & Co Lawyers
Counsel for the Respondent     Miss R Henderson
Solicitor for the Respondent     Australian Government Solicitor