MURIEL IRWIN and REPATRIATION COMMISSION

[2009] AATA 797

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2009] AATA 797

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2009/0873

VETERANS' APPEALS DIVISION		)
Re		MURIEL IRWIN

Applicant

And REPATRIATION COMMISSION

Respondent

DECISION

Tribunal Dr M Denovan, Member

Date16 October 2009

PlaceBrisbane

Decision   The Tribunal sets aside the decision under review, and substitutes the    decision that the death of the veteran was war-caused, and the Commonwealth is liable to pay pension to the applicant, with the date of effect being 2 September 2008.

..................[Sgd]............................

Member

CATCHWORDS

VETERANS’ AFFAIRS – claim for widow’s pension – operational service with Royal Australian Air Force – kind of death – whether veteran’s death was war-caused – decision under review set aside

Veterans’ Entitlements Act 1986 (Cth), ss 9, 120, 120A

East v Repatriation Commission (1987) 12 ALD 389

Byrnes v Repatriation Commission (1993) 177 CLR 564

Langley v Repatriation Commission [1993] FCA 299

Kattenberg v Repatriation Commission [2002] FCA 412

Repatriation Commission v Hancock [2003] FCA 711

Elson v Repatriation Commission [2004] AATA 18

Repatriation Commission v Codd (2007) 95 ALD 619

Collins v Repatriation Commission [2009] FCAFC 90

REASONS FOR DECISION

16 October 2009 Dr M Denovan, Member    

INTRODUCTION

1.      Joseph Irwin (“the veteran”) was born in 1915 and served in the Royal Australian Air Force during World War II from October 1942 to February 1946.  As the veteran served outside Australia, the whole period of his war-time service is operational service in accordance with the Veterans’ Entitlement Act 1986 (“the Act”).  The veteran died on 12 July 2007 at the age of 91 years.  The cause of death was certified as bronchopneumonia, malabsorption, bowel resection, diverticular disease, Alzheimer's disease and atrial fibrillation.  At the time of his death, the Repatriation Commission (“the Commission”) had only accepted liability for internal derangement of the left knee joint.

2.      Mrs Muriel Irwin, the veteran’s widow (“the applicant”), lodged a claim for widow’s pension, on the basis that the veteran's death was war-caused.  The claim was refused by a delegate of the Commission in a decision dated 5 March 2008.  That decision was affirmed by the Veterans’ Review Board (“the VRB”) on 27 October 2008.  The applicant applied to the Administrative Appeals Tribunal (“the Tribunal”) for review of the VRB decision.  (The appeal to this Tribunal was lodged out of time.  An extension of time was subsequently granted by Deputy President Hack on 9 March 2009).

3.      The applicant contends that the veteran’s accepted condition of internal derangement of the left knee joint reduced his mobility.  This caused the veteran to fall regularly, resulting in him contracting bronchopneumonia, from which he died.  The applicant further contends that medications the veteran consumed to treat the accepted condition caused diverticular disease, and this condition also contributed to his death.

ISSUES

4.      The issues to be determined by the Tribunal are:

(a)       the kind of death suffered by the veteran; and

(b)       whether the veteran’s death was war-caused.

applicant’s case and evidence

5.      Mr Malcolm Irwin (the veteran’s son) said that his father was active until shortly prior to his death.  The veteran’s ability to bend down had been restricted for as long as Mr Irwin could remember.  Mr Irwin recalled his father attributing his limitations to back and knee pain, which he said commenced during his war service.  In about 1990-1991, the veteran had surgery to treat his left knee.  After that surgery, he suffered from left foot drop that never resolved.  As a result of that condition, the veteran would often trip and fall over.  Mr Irwin recalls his father saying that he was alright, until the left knee operation.  In spite of the difficulties caused by that resultant foot drop, the veteran underwent reconstruction on his right knee some years later.  He discussed the possibility of a second foot drop and the surgeons assured him they would take great care to avoid that outcome.  Fortunately no foot drop resulted.  Mr Irwin acknowledged that his father suffered from some dementia and visual impairment; however he could still recognise and remember things, and was able to communicate well with both his wife and son.

6.      Mr Irwin provided a copy of a photograph of his father which he said was taken two days prior to the fall that preceded his death[1].  That photo was taken in the nursing home where the veteran resided.  The veteran had informed Mr Irwin that he fell when he attempted to get out of bed because of his left foot drop.

[1] Exhibit 2.

MEDICAL EVIDENCE

7.      The evidence of three medical practitioners was before the Tribunal.  Dr Bill Meyers, the late veteran’s general practitioner, completed the death certificate.  He has provided written reports and gave oral evidence by telephone at the hearing.  Compensation Medical Advisor, Dr Amanda Casperson, and specialist medical physician, Dr Edward Ringrose also provided reports.  Neither of these doctors examined the veteran during his lifetime.  Dr Ringrose gave oral evidence by telephone at the hearing.

dr meyers

8.      Dr Meyers told the Tribunal that he treated the veteran since about 1997.  Dr Meyers opined that the veteran contracted bronchopneumonia, the condition that led to his death, as a result of his latest fall in the nursing home.  Dr Meyers said that the veteran had an obvious left foot drop the entire time he had known him.  The veteran had informed him that the foot drop occurred following surgery for internal knee derangement.  Dr Meyers opined that, on the basis of that history, it was likely that the veteran suffered nerve damage at the time of his knee replacement.  Dr Meyers stated that the veteran suffered a transient ischeamic attack at one time, but tests indicated that there was no large infarct associated with this.  Dr Meyers indicated that the veteran had been assessed as suffering from dementia.  Specialist review and scans indicated that the dementia was a combination of Alzheimer’s disease and vascular dementia.

9.      Dr Meyers opined that as a result of the veteran’s foot drop, in combination with osteoarthritis of his spine and confusion due to his dementia, the veteran suffered from loss of mobility, and often experienced falls.  The veteran’s most recent fall had left him bed-ridden, resulting in secretions collecting in his lungs and increasing the likelihood of infection, a consequence of which was bronchopneumonia.

10.     Dr Meyers opined that the veteran’s left foot drop was responsible for 25-30% of the veteran’s risk of falling.

dr ringrose

11.     Dr Ringrose told the Tribunal that inhaling bacteria that cause pneumonia is a normal occurrence, however, the elderly may have impaired resistance to such bacteria in comparison to a young person.  As the veteran died from bronchopneumonia, that indicated a significant infection.  Dr Ringrose indicated that immobility would have contributed to the development of bronchopneumonia, as it prevents normal breathing, causing the ends of the lungs not to open, allowing bacteria to move quickly.  However, Dr Ringrose said that this was not a major cause.

12.     Dr Ringrose said that he was not qualified to comment on the degree of visual impairment the veteran suffered.

13.     Dr Ringrose stated that internal derangement of the knee is a very painful condition that makes it difficult for an individual to move.  He said that unless there is a mechanical failure, most people recover well after surgical knee replacement and can walk fairly normally thereafter.  Because Mr Irwin had bilateral knee replacements, Dr Ringrose explained that he thought it unlikely that internal derangement of the knees would contribute to the veteran’s immobility and falls, and if it did, it would be less than 10% contribution.  Dr Ringrose opined that the veteran suffered from other conditions likely to be more significant in contributing to the veteran’s immobility and falls, such as blindness, lumbar spondylosis, crush fracture of the spine, right hip osteoarthritis, dementia, and foot drop.

14.     In response to questions from the Tribunal, Dr Ringrose acknowledged that the nerve for foot elevation runs very close to the knee and that damage to that nerve is a real possibility during knee replacement surgery.  Dr Ringrose acknowledged that the veteran’s foot drop could be a consequence of that surgery, and would have contributed to him falling.

dr casperson

15.     In her report dated 14 February 2008, Dr Casperson opined that the veteran’s mobility would have been affected by lumbar spondylosis, osteoporotic vertebral crush fractures, right hip osteoarthritis, bilateral total knee replacements, left foot drop, blindness, and Alzheimer’s dementia.

16.     Dr Casperson stated that “any contribution from the accepted condition of internal derangement of the left knee to the veteran’s mobility would be negligible in any case, because the veteran has had a total knee replacement”.

KIND OF DEATH

17.     The Tribunal’s first task is to determine, on the balance of probabilities, the kind of death suffered by the veteran.  In Repatriation Commission v Hancock [2003] FCA 711 (16 July 2003) Selway J explained the process to be adopted (paragraph 11):

(a) First, the Tribunal was required to determine, on balance of probabilities, whether the pre-conditions other than causation, had been made out. None of these were in dispute.

(b) Next, the Tribunal was required to determine on balance of probabilities what ‘kind of death' Mr Hancock had suffered. This involved the identification, on balance of probabilities, of any and all SoPs and/or determinations under s 180A(2) of the Act and any other ‘kinds of death' which were applicable to that death.

(c) If one or more SoPs were applicable, then the methodology in Deledio is applicable in relation to those ‘kinds of death'.

(d) If only a determination under s 180A(2) is applicable, then the application must fail.

(e) If no SoP and no determination is applicable at all or to a particular ‘kind of death’, then the methodology in Byrnes is applicable in relation to that.

18.     The purpose of addressing the issue of the relevant kind of death is to establish which Statements of Principles (“SoP”), if any, applies to the claim (Repatriation Commission v Codd (2007) 95 ALD 619 at 626). The kind of death to be considered is the medical cause of death including the contributing or underlying medical cause of death (Codd at 627). 

19.     In this case, the pre-conditions to addressing the issue of the relevant kind of death are not in dispute: namely that Mr Irwin was a veteran who died and Mrs Irwin is his widow.

20.     In regard to the kind of death suffered by the veteran, the death certificate lists the causes of death to be bronchopneumonia, malabsorption, bowel resection, diverticular disease, Alzheimer's disease and atrial fibrillation.

21.     Both parties agree that bronchopneumonia contributed to the kind of death suffered by the veteran.  The applicant contends that the conditions of diverticular disease, malabsorption and bowel resection should be considered as contributing to the kind of death.  The respondent submits that the kind of death was only bronchopneumonia, and that diverticular disease, malabsorption, and bowel resection did not contribute to the kind of death of the veteran’s death.  Mr Thrupp, advocate for the respondent, referred me to recent Full Federal Court decision of Collins v Repatriation Commission[2].

[2] [2009] FCAFC 90.

22.     Dr Ringrose, Dr Meyers and Dr Casperson are of the opinion that bronchopneumonia contributed to the kind of death of the veteran.  Accordingly, the Tribunal is satisfied that on the balance of probabilities, bronchopneumonia contributed to the kind of death suffered by the veteran.  There is no relevant SoP for this condition.

23.     Diverticular disease and bowel resection were listed on the death certificate.  In his report dated 2 June 2009, specialist physician, Dr Ringrose stated that the veteran’s death was the result of pneumonia and there is no significant contribution to his death from the other factors listed on the death certificate, such as malabsorption, bowel section and diverticular disease.  Dr Ringrose's opinion is consistent with that of Dr Casperson, and there is no suggestion in the written or oral evidence of Dr Meyers or any other medical practitioner that diverticular disease, bowel section, or malabsorption contributed to the veteran's kind of death.  Accordingly, the Tribunal is satisfied on the balance of probabilities that diverticular disease, malabsorption, and bowel section did not contribute to the kind of death of the veteran.

WAS THE VETERAN’S KIND OF DEATH WAR-CAUSED?

24. The question of whether an injury or disease is taken to be war-caused is covered in s 9(1) of the Act. This section relevantly provides:

(1)       Subject to this section, … for the purposes of this Act, an injury suffered by a veteran shall be taken to be a war-caused injury, or a disease contracted by a veteran shall be taken to be a war-caused disease, if:

(a)       the injury suffered, or disease contracted, by the veteran resulted from an occurrence that happened while the veteran was rendering operational service;

…

25. The parties agree that the veteran’s service constitutes operational service. Thus the question of whether death is war-caused is to be determined by applying sections 120(1) and 120(3) of the Act. Those sections provide that:

(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.

Note: This subsection is affected by section 120A.

…

(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.

Note: This subsection is affected by section 120A.

26. Section 120A of the Act provides that, in the case of applications lodged after 1 June 1994, where the Repatriation Medical Authority (“RMA”) has made an SoP in respect of a particular kind of injury or disease, the reasonableness of a hypothesis is to be assessed by reference to that SoP. This follows from s120A(3), which relevantly provides:

(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.

27. Bronchopneumonia is not the subject of an SoP. Therefore, the Tribunal must apply the test prescribed by s120 of the Act, in accordance with the steps set out in Byrnes v Repatriation Commission[3].

[3] (1993) 177 CLR 564.

28.     The hypothesis put forward by the applicant is that the veteran suffered permanent left foot drop after he underwent reconstructive surgery on his left knee to treat his war-caused internal derangement of the left knee.  As a result of his foot drop, the veteran suffered from decreased mobility and falls.  The most recent fall occurred only a few days prior to his death, and resulted in him being confined to bed.  This contributed to his contracting and subsequent death from bronchopneumonia.

29.     It is not in dispute that the veteran suffered left internal derangement of the knee, which was war-caused, and treated by surgery in approximately 1991.  The Tribunal considers the evidence of Dr Ringrose and Dr Meyers point to the veteran having developed permanent foot drop secondary to surgery on his left knee.  Further, the evidence of Dr Meyers, the applicant and her son, suggest the veteran having suffered decreased mobility and falls as a result of left foot drop.  The Tribunal considers that the evidence of the applicant and her son point to that aspects of the hypothesis that the veteran suffered a fall due to his left foot drop days prior to contracting bronchopneumonia, and  the veteran being confined to bed after the fall.  Further, the evidence of Dr Ringrose and Dr Meyers points to immobility contributing to the development of bronchopneumonia.  

30.     Mr Thrupp referred me to the Full Federal Court decision in East v Repatriation Commission (1987) 12 ALD 389, in which the Court concluded that “a ‘reasonable hypothesis’ required more than a possibility, not fanciful or unreal, consistent with the known facts”.

31.     After considering the whole of the material, I consider that there is evidence which points to each sequential part of the overall hypothesis.  I consider that the hypothesis advanced by the applicant, is more than a possibility, and is not fanciful.  I therefore consider that a reasonable hypothesis exists.

32. Applying s120(1), the claim must succeed unless one or more of the facts necessary to support the hypothesis are disproved beyond reasonable doubt, or the truth of another fact in the material, which is inconsistent with the hypothesis, is proved beyond reasonable doubt, thus disproving, beyond reasonable doubt the hypothesis.

33.     It is accepted by the respondent that the veteran suffered from internal derangement of the left knee as a result of his war service.  The fact that the veteran underwent a knee replacement as treatment for that condition around 1990-1991 is also not in dispute.  The respondent also accepts that the veteran suffered a left foot drop.

34.     Mr Irwin was a straightforward and honest witness, and I accept his account that there was a temporal connection between the left knee surgery and the development of foot drop.  Based on the evidence of the applicant, the veteran’s son and Dr Meyers, I find that the veteran developed a left foot drop after having left knee replacement surgery, to treat his war-caused internal derangement of the left knee.

35.     Dr Meyers gave clear evidence.  He recalled the veteran had an obvious foot drop present the entire time he was his patient.  He confirmed that the veteran and his family had reported that foot drop to have resulted from the left knee surgery.  Dr Meyers provided a medical explanation for the foot drop as being a consequence of the knee surgery.  Independently, Dr Ringrose gave a similar account that foot drop was a possible consequence of left knee replacement surgery.  Dr Ringrose did not initially link foot drop to the veteran’s left knee surgery, however he wrote his report on the basis of information sent to him.  When specifically told of the temporal relationship between the foot drop and the surgery, Dr Ringrose proposed a possible medical explanation.  Dr Casperson’s report is brief, however, it appears that she did not explore the etiology of the foot drop, and did not turn her mind to the possibility to that fact that it may have been a consequence of the left knee reconstruction.  For these reasons I find that the veteran suffered a left foot drop as a result of his left knee surgery to treat internal derangement of the left knee.

36.     Dr Meyers, Dr Casperson, and Dr Ringrose all opined that the veteran’s foot drop would have contributed to the veteran’s impaired mobility and falls.  In particular, I accept the evidence of Mr Irwin and find that it was the foot drop that contributed to his father’s fall.  I also find that the veteran was immobilised as a result of that fall, and that this immobilisation contributed to him contracting bronchopneumonia (as supported by the evidence of Dr Meyers and Dr Ringrose).

37.     The fact that a number of other medical conditions may have contributed to the late veteran’s mobility do not mean the claim fails.  Whilst Dr Ringrose said that the veteran’s immobility was not the major cause of him developing bronchopneumonia, it was the evidence of Dr Ringrose and Dr Meyers that provided that immobility contributed to the development of that condition.  In the case of Kattenberg v Repatriation Commission[4] it was held that it is sufficient that operational service contributed to a material degree.

[4] [2002] FCA 412. See also Elson v Repatriation Commission [2004] AATA 18.

38.     The facts of this matter are very different to those in the matter of Collins v Repatriation Commission[5]. The veteran’s foot drop did not result in his dying from bronchopneumonia, hours or days earlier than he otherwise would have. Whilst the veteran may have been more vulnerable to contracting bronchopneumonia due to his age and generalised immobility (which resulted from his foot drop), the veteran’s contraction of bronchopneumonia occurred when it did, and the disease was therefore attributable to war service [6].

[5] Collins v Repatriation Commission [2009] FCAFC 90.

[6] See Langley v Repatriation Commission [1993] FCA 299, approved by Edmonds J in Collins v Repatriation Commission [2009] FCAFC 90.

39.     The whole of the evidence before me is that the veteran’s immobility was materially contributed to by his war service causing left foot drop, and that immobility, in turn, materially contributed to his contraction of bronchopneumonia and ultimate death.

DECISION

40.     The Tribunal sets aside the decision under review, and substitutes the decision that the death of the veteran was war-caused, and the Commonwealth is liable to pay pension to the applicant, with date of effect being 2 September 2008.

I certify that the 40 preceding paragraphs are a true copy of the reasons for the decision herein of Dr M Denovan, Member

Signed: ....................[Sgd].........................................................
  Emily Clarke, Associate

Date of Hearing  22 September 2009
Date of Decision  16 October 2009
The Applicant was assisted by Mr M Irwin  
Advocate for the Respondent   Mr T Thrupp