Millicent Bertalli and Repatriation Commission
[2009] AATA 334
•12 May 2009
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2009] AATA 334
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2007/2494
VETERANS’ APPEALS DIVISION ) Re Millicent Bertalli Applicant
And
Repatriation Commission
Respondent
DECISION
Tribunal Mr G L McDonald, Deputy President Date12 May 2009
PlaceMelbourne
Decision The decision under review is affirmed
..............................................
Deputy President
CATCHWORDS – VETERANS’ ENTITLEMENTS ACT – whether veteran’s death was war‑caused – death certificate recorded several causes of death – whether ischaemic heart disease was a contributing cause to the veteran’s death – decision under review affirmed
Administrative Appeals Tribunal Act 1975 s 37
Veterans’ Entitlements Act 1986 ss 14 and 120Briginshaw v Briginshaw (1938) 60 CLR 336
Repatriation Commission v Law (1981) 147 CLR 635
Roncevich v Repatriation Commission (2005) 222 CLR 115REASONS FOR DECISION
12 May 2009 Mr G L McDonald, Deputy President 1. The applicant, a widow, is applying for the review of a decision of the respondent dated 17 May 2005, affirmed on review by the Veterans’ Review Board (VRB) on 1 May 2007, rejecting her claim made under s 14 of the Veterans’ Entitlements Act 1986 (the Act) to be paid a war widow’s pension on the basis that her late husband’s (the veteran) death was due to his war service.
The Hearing
2. The Tribunal had before it the documents filed for the purposes of satisfying s 37 of the Administrative Appeals Tribunal Act 1975 (T documents) and other documents tendered during the course of the hearing.
3. The applicant and Dr Aubrey Pitt, a senior cardiologist, gave oral evidence in support of the application. The applicant gave evidence at Mildura, being the town in which she lives, on 8 July 2008. The respondent filed two reports from Professor John Francis Cade, the Director of Intensive Care at the Royal Melbourne Hospital. Dr Pitt gave evidence in Melbourne on 3 December 2008. Between the two hearings the respondent accepted something which was originally in dispute, namely that the applicant had smoked the requisite number of cigarettes to meet the risk element identified in the relevant Repatriation Medical Authority Statement of Principles (SoP) for ischaemic heart disease.
4. Difficulties were experienced in securing access to medical records – hardly surprising given that the veteran died in 1995. The records of the Mildura Hospital where the veteran died had been destroyed and Dr Gaie Barnes, his treating general medical practitioner, had retired and her records were also not able to be produced. Medical records from St Andrew’s Hospital in Adelaide, where the applicant underwent operations in May and June 1995 for fractures which were associated with his the metastatic carcinoma condition, were located and, in particular, provided important information which was analysed by Dr Pitt. As the result of the concession made by the respondent as to the veteran’s smoking habit, the Tribunal has referred only to that evidence relevant to determining whether one of the causes of the applicant’s death was ischaemic heart disease (the heart condition). The Tribunal was also provided with a transcript of the evidence given by the applicant to the VRB.[1] The only issue of note arising from that transcript is that the applicant stated that the veteran continued to smoke until October 1994.[2]
[1] This formed part of Exhibit R1.
[2] Exhibit R1, Veterans’ Review Board transcript, page 13.
5. There is no dispute, and the Tribunal accepts from the material before it, that the applicant is the widow of the veteran and that the veteran died on 17 July 1995.
6. For the same reasons as expressed by the VRB in its review decision, and as conceded by the respondent, the Tribunal accepts that the veteran rendered operational service with the Royal Australian Airforce during the Second World War. Sections 120(1) and 120(3) of the Act require a finding to be made that his death is war-caused unless it is satisfied, beyond reasonable doubt, that it is not. The standard of proof to be applied is the balance of probabilities.
7. The applicant’s death certificate[3] records the causes of his death to be:
·Syncope;
·Carcinomatosis;
·Carcinoma prostate; and
·Ischaemic heart disease.
[3] T document, T11, page 65.
8. The Tribunal accepts that a death certificate, while it is evidence, is not necessarily conclusive evidence, as to the cause of a person’s death.
9. The issue in this case is, despite the record contained on the death certificate, whether ‘ischaemic heart disease’ was a contributing cause to the veteran’s death.
10. Dr Barnes, the veteran’s then general medical practitioner, in a letter of 22 April 2005, stated that the primary cause of the veteran’s death was carcinomatosis resulting from prostate cancer.[4] All of the doctors agree with Dr Barnes’ assessment on this point. There is no connection between the primary cause of death and ischaemic heart disease. For the applicant to succeed the ischaemic heart disease needs to be a cause of the veteran’s death. A causal connection alone is capable of satisfying the test of attributability. No qualifications are to apply to attributability.[5]
The Medical Evidence
[4] T document, T13, page 71.
[5] Repatriation Commission v Law (1981) 147 CLR 635 at 649 per Aickin J (with whom Gibbs CJ and Stephen and Mason JJ agreed) and Roncevich v Repatriation Commission (2005) 222 CLR 115 at 126 per McHugh, Gummow, Callinan and Heydon JJ.
(A) Dr Barnes
11. Dr Barnes, the applicant’s treating medical practitioner, in a report dated 22 April 2005 opined that the applicant’s heart condition would have contributed to his death.[6] The doctor stated:
He was diagnosed with angina in 1993 and referred to Dr A Soward for assessment and had a positive exercise stress test. … His angina remained stable from that time.
[6] T document, T13, page 71.
(B) Dr Pitt
12. In addition to giving oral evidence Dr Pitt completed two reports – one dated 15 November 2007[7] and one dated 19 September 2008.[8]
[7] Exhibit A2.
[8] Exhibit A3.
13. At the time Dr Pitt prepared his first report he had a copy of Professor Cade’s report of 28 August 2007.[9] Dr Pitt confirmed that the veteran’s coronary artery disease was diagnosed in 1993, after the stress test conducted by Dr Alan Soward in Mildura returned an abnormal result. Dr Pitt speculated that a regime of conservative treatment was introduced, probably because of the veteran’s age (then 74 years). While Dr Pitt was unable to confirm from the records what the applicant told him, namely the veteran suffered a heart attack during the operation undertaken at St Andrew’s Hospital in May 1995, he established that “significant cardiac problems [were experienced] in the post operative period.”[10] The problems were left ventricular failure thought to be contributed to by intra-operative fluid overload and cardiac enlargement. Dr Pitt also noted that cardiac enzymes were measured and found to be significantly elevated which in his opinion “is strong evidence that there had been some damage to the cardiac muscle.”[11] In his oral evidence Dr Pitt emphasised that the particular enzymes (the iso-enzymes or ckMb) are almost specifically for heart muscle and that they were significantly elevated.[12]
[9] Exhibit R3.
[10] Exhibit A2, page 3.
[11] Exhibit A2, page 3.
[12] Transcript, 3 December 2008, page 15.
14. Additionally, Dr Pitt noted that electrocardiograms taken during the period that the veteran was in hospital in May 1995 provided “very suggestive evidence of previous inferior myocardial infarction.”[13] As a result Dr Pitt opined that the veteran may have suffered an earlier inferior wall infarction and that the fluid overload may have been contributed to by the impaired left ventricular function which, in turn, resulted from coronary artery disease. In his oral evidence Dr Pitt stated that a normal heart most likely would have tolerated the fluid overload arising from the operation.[14] Dr Pitt confirmed that smoking was a significant risk factor leading to coronary artery disease.[15]
[13] Exhibit A2, page 3.
[14] Transcript, 3 December 2008, page 14.
[15] Exhibit A2, page 4.
15. By the time of writing his second report, Dr Pitt had been referred to Dr Soward’s notes concerning the veteran for the period 17 March 1987 to 29 October 1994 and the second report of Professor Cade dated of 25 August 2008. Dr Pitt did not have this material before preparing his first report.
16. Dr Soward’s notes revealed the first evidence of angina in the nine month period preceding 25 May 1993 and that this was confirmed in the results of a repeat stress test undertaken in July of that year. Dr Pitt opined that the repeat stress test results revealed “severe ischaemic heart disease confirmed by a positive stress test at a low workload despite the presence of medications that might tend to lessen the impact of a stress test.”[16] Dr Pitt also commented that although nine months passed between the last time Dr Soward saw the veteran and the veteran’s death it was reasonable to conclude that the heart condition either at least remained the same or progressed (that is, deteriorated).
[16] Exhibit A3, page 2.
17. Dr Pitt confirmed in his oral evidence what he stated in his reports, including that he could not estimate the contribution made to the veteran’s death by his heart condition. It was put to Dr Pitt in cross examination that his conclusions as to heart disease being a cause of the veteran’s death was speculative and his conclusion amounted to nothing more than the possibility of a connection existing. This arose because the doctor had couched his opinion as to connection existing by reference to the words ‘reasonable hypothesis.’ The Tribunal has considered this aspect but a careful reading of the doctor’s oral evidence, in particular, leaves the Tribunal satisfied that Dr Pitt was expressing his opinion based on his analysis of the material he had access to, his expertise as senior and experienced cardiac surgeon which, semantics aside, led him to be satisfied that the veteran’s death could have been contributed to by his heart disease.
18. Dr Pitt also concluded that in writing a death certificate he would normally expect to see the main conditions which were the cause of the death to be listed by the certifying doctor.[17] In this case while ‘syncope’ (fainting) is described by Professor Cade as “non-specific and not diagnostically helpful”[18] it must be taken to be something occurring in the last days of the veteran’s life. Since it was listed as a cause of death Dr Pitt maintained that the certifying doctor was satisfied that the veteran’s ischaemic heart condition contributed to his death.
[17] Transcript, 3 December 2008, page 11.
[18] Exhibit R2, page 2.
(C) Professor Cade
19. In his first report of 28 August 2007 the Professor opined that the cause of the veteran’s death was “undoubtedly” prostate cancer.[19] The reason for this was described:
This is because this malignancy had been documented for the previous two years, the cancer had become advanced and metastatic, useful treatment options had been expended, his radiation oncologist recorded that the prognosis was poor, and his general state was so low that a not-for-resuscitation order had been made in hospital. Under such circumstances, early death from cancer is inevitable.[20]
[19] Exhibit R2, page 2.
[20] Exhibit R2, page 2.
20. However, the Professor noted that the absence of records from the Mildura Hospital, where the veteran had spent the last two days of his life, made it uncertain as to whether the heart condition was a concomitant cause of death “…in some small but significant way.”[21] While the Professor acknowledged the presence of the veteran’s heart disease over several years, he opined that there was no evidence in the available hospital records which suggested “the actual (as opposed to the theoretical) mechanism by which this may have occurred.”[22] The Professor opined:
More importantly, as discussed above, if the patient was indeed in a terminal state from cancer (as seems likely), no other condition would be able to limit further his already brief life expectancy.[23]
[21] Exhibit R2, page 2.
[22] Exhibit R2, page 3.
[23] Exhibit R2, page 3.
21. The Professor commented that Dr Pitt’s opinion was “speculative….”[24] The Professor stated that the listing of ischaemic heart condition as a cause of death on the death certificate was warranted because it was a condition from which the veteran suffered. It is not evidenced from reading the Professor’s first report whether or not he appreciated the presence or significance of the evidence of the veteran’s heart condition in May 1995 as contained in the records from St Andrew’s Hospital (to which the Professor had access).
[24] Exhibit R2, page 3.
22. By the time he wrote his second report on 25 August 2008 the Professor had received a copy of Dr Soward’s clinical notes, which were not apparently available to him at the time he completed his first report. The Professor stated that, in the absence of the records from the Mildura Hospital, it was unknown whether, when the veteran was admitted two days before his death, the veteran’s condition from the prostatic cancer was terminal. The Professor conceded that even in the small chance that the veteran’s death was hastened by his heart condition it was doubtful if this could be regarded as more than a de minimus contribution.[25] It is fair to conclude that the Professor’s previously expressed view, that the veteran’s ischaemic heart condition was unlikely to have contributed to the veteran’s death, is somewhat more tentatively expressed than was the case in his earlier report. However, the Professor concluded as follows:
Thus, in my opinion, the sequence of service _ smoking _ ischaemic heart disease in this case seems probably reasonable, though the additional step of ischaemic heart disease _ death seems doubtful.[26]
[25] Exhibit R3, page 2.
[26] Exhibit R3, page 2.
23. At the time he completed his second report the respondent had not made the concession about the applicant’s smoking habit.
Discussion
24. The issue is whether the veteran’s acknowledged ischaemic heart disease was a cause of his death. This is to be decided on the balance of probabilities. In reaching a decision the Tribunal has regard to what was said by Dixon J in Briginshaw:
The truth is that, when the law requires the proof of any fact, the tribunal must feel an actual persuasion of its occurrence or existence before it can be found. It cannot be found as a result of a mere mechanical comparison of probabilities independently of any belief in its reality.
…
The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal. In such matters "reasonable satisfaction" should not be produced by inexact proofs, indefinite testimony, or indirect inferences.[27]
[27] Briginshaw v Briginshaw (1938) 60 CLR 336 at 361 and 362 respectively.
25. As stated the veteran has an acknowledged heart condition. Dr Pitt undertook a detailed analysis, from the medical records concerning the veteran’s heart condition, in the period approximately nine weeks before the veteran’s death. The Tribunal accepts Dr Pitt as a senior and experienced cardiologist whose opinion carries considerable weight. The Tribunal also accepts that it would normally be expected, as Dr Pitt stated, that the doctor completing the death certificate would list the conditions which were the cause of death. The Tribunal notes that the applicant suffered from a number of conditions of long standing and which, although not accepted as being war-caused, were nevertheless significant, for example lumbar spondylosis with osteoporosis, peptic ulcer and depressive disorder. Not any of these conditions were mentioned on the death certificate despite their long standing. This suggests that the certifying doctor has, as Dr Pitt stated he would have expected, listed those conditions which contributed to the veteran’s death.
26. Professor Cade conceded the possibility that the veteran’s heart condition was a contributory cause of his death. If this was the case then the contribution was ‘small’ or so small that it was inconsequential (the latter being the Tribunal’s understanding of what the Professor meant by ‘de minimus’). Since the authority earlier cited holds that providing there is a contribution there should be no restraint on the degree of the contribution the Tribunal accepts, providing it was present, even if small, the heart condition would be a sufficient contribution to the veteran’s death.
27. While the Tribunal accepts that the evidence establishes that the veteran suffered ischaemic heart disease the evidence does not leave it satisfied that that disease in fact contributed to his death. Dr Pitt’s evidence raises that as a possibility, even a strong possibility, but his evidence is not such that the possibility is raised to a probability. The evidence of the entry of ischaemic heart disease on the death certificate does not assist the applicant – particularly in circumstances where the certifying medical practitioner has listed another condition which is not causative of death, namely, syncope. There is no evidence to suggest that the left ventricular fluid overload arising after the May 1995 operation resulted in the veteran suffering heart failure – just that that may have been the case. While it is not ‘inherently unlikely’ that his ischaemic heart condition was not a contributor to his death, there is no sufficient evidence upon which to base a conclusion that it did in fact contribute to his death.
28. Since the Tribunal is unable to be satisfied that one of the causes of death arises from ischaemic heart disease the application must fail.
29. For the above reasons the decision under review is affirmed.
I certify that the 29 preceding paragraphs are a true copy of the reasons for the decision herein of
Mr G L McDonald, Deputy PresidentSigned: .....................................................................................
Associate Grace HorzitskiDate/s of Hearing 8 July 2008 (Mildura) and
3 December 2008 (Melbourne)
Date of Decision 12 May 2009
Counsel for the Applicant Mr A Larkin
Solicitor for the Applicant Williams Winter
Counsel for the Respondent Mr R Douglass, departmental advocate (8 July 2008)
Mr G Purcell (3 December 2008)
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