NAOMI BRODIE and REPATRIATION COMMISSION
[2009] AATA 217
•2 April 2009
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2009] AATA 217
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2007/2378
VETERANS' APPEALS DIVISION ) Re NAOMI BRODIE Applicant
And
REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Miss E.A Shanahan, Member Date2 April 2009
PlaceMelbourne
Decision The Tribunal affirms the decision under review. (sgd) E.A. Shanahan
Member
VETERANS' AFFAIRS –– widow’s claim for pension ‑ veterans' death due to metastatic prostatic carcinoma ‑ contributory cause pneumonia – role if any of emphysema attributable to smoking ‑ possible cerebrovascular accident related to war‑caused smoking contributing to pneumonia ‑ decision affirmed.
Veterans' Entitlement Act 1986 ss 814 and 120
Statements of Principles:
Nº 30 of 2004 concerning chronic bronchitis and emphysema
Nº 52 of 1999 as amended by Nº 30 of 2002 concerning cerebrovascular accident
Repatriation Commission v Law (1981) 147 CLR 635
Roncevich v Repatriation Commission (2005) 222 CLR 115
Kattenberg v Repatriation Commission (2002) 73 ALD 365
McKenna v Repatriation Commission (1999) 86 FCR 144
REASONS FOR DECISION
2 April 2009 Miss E.A Shanahan, Member 1. The applicant, Mrs Naomi Brodie is the widow of Albert Brodie who died on 5 August 2005. The veteran served in the Australian Army between 1940 and 1946 and had operational service in New Guinea. At the time of his death he was in receipt of a disability pension at 90 per cent of the general rate. Mrs Brodie claimed a widow’s pension on 3 November 2005 she being a dependent of the deceased veteran. The veterans’ cause of death had been certified as due to carcinoma of the prostate present for five years and bronchopneumonia of ten days duration. The carcinoma of the prostate was not an accepted disability. A delegate of the Repatriation Commission decided on 28 November 2005 that the veterans’ death was not war-caused. This decision was reviewed and affirmed by the Veteran’s Review Board (VRB) on 4 May 2007. Mrs Brodie applied for review of the decision to the Administrative Appeals Tribunal on 6 June 2007.
2. Mrs Brodie sought review on the papers. The Repatriation Commission agreed to her request and the Tribunal’s advice to proceed to a formal hearing was rejected.
3. The Tribunal was provided with the documents lodged pursuant to s 37 of the Administrative Appeals Tribunal Act 1975 (the T documents); the Freemasons Hospital inpatient records concerning the veteran; a summary of the veterans’ documented smoking history prepared by the Department of Veterans’ Affairs; a statement from the applicant; the opinion of Dr R.B Collins, Pathologist; the transcript of the VRB hearing of 4 May 2007; notes regarding the veteran’s health and behaviour in May to July 2005 prepared by Mrs Brodie and four reports and opinions from Professor J. Cade, Director of the Intensive Care Unit at The Royal Melbourne Hospital.
4. The late Mr Brodie had the accepted disabilities of Fibrositis of the back, Disc Degeneration L5-S1, Duodenal Ulcer, Anxiety Neurosis and Synovitis of the knees.
BACKGROUND
5. The veteran Albert Brodie was a member of the Australian Army from 30 September 1940 to 26 March 1946 with service in New Guinea such that the whole of this period is equivalent to operational service.
6. In April 2000 a prostatic biopsy yielded a diagnosis of Gleason pattern 3 and 4 adenocarcinoma of the prostate (T10, p74). This biopsy had been performed on the basis of a rising prostatic specific antigen (PSA) level. Staging investigations had been negative, that is the carcinoma appeared confined to the prostate. In view of the veteran’s age, then 77, a conservative approach was initially adopted by the treating urologist Mr David Webb. The symptoms of bladder obstruction developed and a trans-urethral prostatectomy was performed on 28 August 2000. The resected prostate tissue was benign. Mr Brodie was monitored thereafter with six monthly PSAs and when this level reached 42.6 in October 2002, Zoladex injections were commenced and administered intermittently in accordance with the PSA level. Staging by CT scanning had been performed and interpreted as negative for malignancy although there was intense radionucleotide uptake in the seventh right rib on bone scanning.
7. Chest x-rays were performed at regular intervals from 2 October 2001 and were normal. Although on 10 November 2003 the radiologist described mild changes of chronic obstructive airways disease (COAD) but also said that the appearances were unaltered from 2001 when they were considered within a normal range.
8. In 1977 and again in 1996 the veteran was treated by his general practitioner for two short mild episodes of bronchitis (TX B1) and on 12 December 2002 he complained of dyspnoea on moderate exertion. Examination had revealed bilateral basal crepitations suggestive of cardiac failure. Lasix was prescribed and by 23 January 2003 Mr Brodie’s shortness of breath had resolved and his cough and sputum production had greatly decreased. The dose of lasix was then reduced.
9. From November 2003 onwards the veteran complained of lumbar back pain radiating to the right buttock and leg. Plain x-rays and CT scanning revealed degenerative changes and a compression fracture at L1. A CT in December 2003 revealed a compression fracture at T5 with a questionable soft tissue swelling at the same level. These findings were interpreted as due to osteoporosis and fosamex was commenced without benefit. Cortisone injections into the gluteus medius muscle under x-ray control failed to alleviate Mr Brodie’s pain. The opinion of a sports physician was obtained and he recommended cortisone injections into the right hip. On examination on 7 June 2005, Dr Wood the sports physician had detected that Mr Brodie had difficulty in walking and lifting the right leg. A bone scan was ordered by Dr Wood and revealed multiple bony metastases involving the pelvic bones, the acetabulum of the right hip joint, the femur, several ribs, and the T6 vertebra. Based on these findings Mr Brodie was referred urgently to Dr Michael Guiney a radiation oncologist, for x-ray therapy to the painful right hip, T6 and the right and left anterior ribs.
10. Dr Guiney arranged x-ray therapy at Freemasons Hospital in order to control Mr Brodie’s pain. The treatment plan was for 30 gray to the right hip and femur, 20 gray to the ribs and 30 gray to the T6 vertebra, all in divided doses commencing shortly after 20 June 2005. The veteran was also seen by Associate Professor G Toner, medical oncologist, at the request of Mr Brodie’s son. Associate Professor Toner supported the radiotherapy plan and advised that chemotherapy would be considered once the radiation treatment was concluded.
11. On 2 July 2005 during the course of the radiotherapy, Mr Brodie developed severe diarrhoea and having gone to the toilet was unable to stand up. He became very distressed. Mrs Brodie and her grandson were unable to extricate him from the toilet and an ambulance was called on the advice of the general practitioner, Dr Bennie. The ambulance officers recorded that the veteran was in the middle of a course of radiotherapy to his femur, knee and ribs and identified the current medical problem as increased pain and weakness in the right hip and leg. Their examination of Mr Brodie revealed a normal Glasgow Coma Score of 15 and no neurological defects. Mr Brodie was admitted to the Freemasons Hospital where on admission he was noted to be fully alert. A decrease in the power of right hip flexion was recorded.
12. An urgent MRI of the spine eliminated any possible spinal cord involvement with metastases and a CT of the brain showed no metastases or evidence of a cerebrovascular accident (CVA) although there was evidence of normal pressure hydrocephalus. Chest x-ray was clear except for a small area of atelectasis in the left lower lobe. A subsequent chest CT was clear except for a small resolving area of consolidation at the left base. The MRI of 7 July 2005 showed metastases at thoracic vertabrae 3,6,7,9 and 10 and lumbar vertabrae 1 and 4 with 3 compression fractures at T6, L1 and L3.
13. Blood cultures taken on 2 July 2005 subsequently grew a streptococcus. Mr Brodie was known to have a peri-anal abscess at the time. The abscess was not cultured for bacteria. Broad spectrum antibiotics were delivered intravenously and radiotherapy was continued on a daily basis. The radiotherapy was administered to the chest lesions for the last time on 2 July 2005 and continued to the hip and spine until 12 July 2005.
14. On 3 July 2005 Dr Mario Guerrieri, who was covering for Dr Guiney, attributed all of Mr Brodie’s symptoms to the right hip pathology and on 19 July 2003 recorded in the Freemason clinical record that there was no evidence of a CVA. The nursing staff had kept a neurological observation chart for a period of six days and at all times this was within normal limits.
15. The veteran was transferred to St George’s Hospital for rehabilitation on 21 July 2005 but two days later became febrile and generally unwell. He was noted to be desaturated with a low oxygen partial pressure in his blood and right lower lobe basal crepitations were heard on auscultation. As a chest x-ray performed on 25 July was clear, a CT pulmonary angiogram was performed. This was reported as being normal. A ventilation perfusion scan (VQ scan) of 28 July 2005 was reported as showing an intermediate to high probability of a pulmonary embolus with right lower lobe changes of consolidation.
16. Mr Brodie was transferred back to Freemasons Hospital on 28 July 2005 under the care of Dr Peter Ellims, medical oncologist. Dr Ellims made a diagnosis of bronchial pneumonia plus or minus pulmonary embolus. Intravenous antibiotics were continued and anticoagulation medication and intensive physiotherapy commenced. Mr Brodie informed the nursing staff that he had difficulty swallowing due to the earlier radiotherapy directed at his sixth thoracic vertebra and ribs and embracing also the area of the oesophagus. This information must have been conveyed to him by a member of the radiotherapy unit.
17. On 29 July 2005, after consultation with Mr Brodie’s family, Dr Ellims made a Not For Resuscitation order. On 1 August the physiotherapist recorded that air entry to the chest had improved. Four to six hourly morphine and endone were required to control Mr Brodie’s hip chest and bladder pain. His oral intake diminished and his urinary output fell progressively. He died on 5 August 2005.
18. The veteran was a smoker of cigarettes for several decades. Mrs Brodie believed he commenced smoking when he joined the Army in 1940 and when they met in 1951 he was smoking 40 cigarettes per day. When readmitted to the Freemasons on 29 July 2005, the admitting nurse had recorded that Mr Brodie had ceased smoking four weeks previously having smoked for seventy years, that is, he commenced smoking at age 13. Mrs Brodie had stated that the veteran commenced work at age 10. The hospital physiotherapist recorded in the file that Mr Brodie had smoked one pack of cigarettes per day for 70 years. The hospital entry records that Mr Brodie had recently ceased drinking alcohol having previously drank at the rate of three glasses of wine per day. There is no data regarding his smoking habit between 1935 and 1951 but there are frequent entries in the general practitioner’s later note recording smoking at 20 to 30 cigarettes per day.
19. Dr Collins who is a forensic pathologist not a clinician, has opined that the cause of death was carcinoma of the prostate with widespread metastatic disease but that the acute and fulminating broncho- pneumonia hastened the demise of the late Mr Brodie. He relied on the evidence of bronchitis in 1977 and 1996 and the x-ray report of 10 November 2003 stating that the lungs show mild changes of obstructive airways disease. Dr Collins concluded:
…in my opinion, even if the late veteran suffered from only mild chronic lung disease (emphysema), this could reasonably be regarded as a pre-existing condition which would increase the likelihood of development of the acute chest condition which hastened/contributed to his death.
20. Professor Cade provided four reports. In the first of these dated 15 August 2007 he had not had access to Departmental or any Hospital files. On the information available to him he concluded that Mr Brodie’s cause of death was carcinoma of the prostate and the mechanism of death was pneumonia. He believed a diagnosis of emphysema could not be substantiated. Professor Cade noted that although the discharge summary from St George’s Hospital of 28 July 2005 referred to a probable recent stroke which raised a link between cerebral vascular disease and smoking, Mr Brodie’s symptoms and signs had been confined to right leg weakness and thus would not be relevant to the development of pneumonia.
21. Having accessed the Freemasons Hospital medical records, Professor Cade reported again on 23 October 2007 and also on 3 January 2008. His opinion was unchanged. The letter of Dr Bennie of 18 July 2008 and Mrs Brodie and her family’s detailing of events in May to July 2005 did not alter Professor Cade’s opinion. The occurrence of a stroke (CVA) was not supported by any evidence. Professor Cade found no reported clinical evidence of COAD other than one x-ray amongst numerous other chest x-rays and a chest CT scan showing no evidence of COAD and none of the treating specialists had made such a diagnosis.
22. Dr Bennie’s letter of 18 July 2008 to this Tribunal attributed the late veteran’s shortness of breath to congestive cardiac failure despite the x-ray finding in 2003 of mild COAD. Dr Bennie had seen Mr Brodie on 2 July 2005 and arranged his admission to hospital. At the time Dr Bennie had noted that Mr Brodie’s speech was slurred and he had concluded that a CVA had taken place. Dr Bennie postulated that if a stroke had occurred this could lead to difficulties in swallowing which in turn could contribute to the development of pneumonia. Dr Bennie does not refer to the mechanism of such contribution. The Tribunal assumes he means aspiration pneumonia was a possibility.
23. Mrs Brodie describes several episodes of sudden collapse associated with loss of consciousness in Mr Brodie during the month of May. On 28 May she said that he had lost control of his bowels and his speech was slurred. The following day he was extremely quiet and did not eat. His daughter-in-law Cindy had noted that he was uncertain on his feet and had problems walking. Mr Brodie had complained of difficulties swallowing and had restricted his diet to soup, ice cream and jelly. On 2 July 2005 he developed diarrhoea and could not get off the toilet. Dr Bennie was called and arrived some three hours later arranging for Mr Brodie to be admitted to hospital. Mrs Brodie’s grandson Leigh and her son Colin have confirmed that they both noted Mr Brodie’s speech was slurred on the day.
THE RAISED HYPOTHESES
24. Mrs Brodie has not claimed that the late veteran’s carcinoma of the prostate was war-caused. Consideration was given to such a claim by her legal representatives but was abandoned when no factors linking this condition to Mr Brodie’s war service could be identified so as to meet the requirements of the relevant Statement of Principle (SoP).
25. The hypotheses relate to Mr Brodie’s cigarette smoking being war-caused and that his smoking had contributed to either the development of COAD and/or cerebral vascular disease resulting in a CVA. Both a CVA and COAD may patho‑physiologically contribute to an increased predilection to the development or clinical severity of pneumonia or broncho-pnemonia. These are basic well accepted relationships recognised by the medical profession. There is no dispute between the parties as to the primary cause of death being carcinoma of the prostate with widespread metastasises.
26. The hypotheses raised are:
(a)Mr Brodie’s war‑caused smoking resulted in the development of COAD (or chronic obstructive pulmonary disease, COPD as it is now termed) which rendered him more vulnerable to the development of pneumonia. The pneumonia in turn contributed to his death in that it hastened death.
(b)Mr Brodie’s war-caused smoking resulted in or was etiologically linked, as described in the relevant SoP, to cerebrovascular disease. The latter had resulted in a CVA of the ischemic variety on 2 July 2005 and affected Mr Brodie’s swallowing reflex and perhaps his laryngeal motor function rendering him prone to aspiration and the development of pneumonia.
27. Both hypotheses are complex (McKenna v Repatriation Commission (1999) 86 FCR 144) and both are dependent on Mr Brodie’s smoking habit being war‑caused.
ISSUES
28. The issues before the Tribunal are:
(a)Was Mr Brodie’s smoking war-caused, or if it pre-existed his period of service, was it sufficiently increased by service to satisfy the SoP for chronic bronchitis and emphysema (Instrument Nº 30 of 2005) or the SoP concerning the CVA (Instrument Nº 52 of 1999 as amended to 2004)?
(b)Did Mr Brodie have COAD/emphysema?
(c)Did Mr Brodie suffer a CVA on 2 July 2005?
29. One might also add the query as to whether Mr Brodie had pneumonia or alternatively, given the clinical setting, radiation pneumonitis.
RELEVANT LEGISLATION
30. Section 8(1)(a) of the Veterans’ Entitlements Act 1986 (the Act) relates to war‑caused death and states:
(1) Subject to this section and section 9A, for the purposes of this Act, the death of a veteran shall be taken to have been war‑caused if:
(a)the death of the veteran resulted from an occurrence that happened while the veteran was rendering operational service…
31. Section 13 of the Act provides that if the death of a veteran is war‑caused, the veteran’s dependant is eligible for compensation. Section 11 of the Act defines dependant. Mrs Brodie is the widow of the veteran. She has not remarried and therefore is a dependant (s 11(1)(a)).
32. Section 120 of the Act relates to the standard of proof and provides as follows:
(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.
33. As the claim was made after 1 July 1994 s 120A relating to SoPs is attracted.
34. The Tribunal is required to follow the steps established by the Full Court of the Federal Court in the decision of Repatriation Commission v Deledio (1998) 83 FCR 82. These steps are:
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 a hypothesis, the Tribunal must then ascertain whether there is in force an SoP determined by the Authority under s 196B(2) or (11). If no such SoP is in force, the hypothesis will be taken not to be reasonable and, in consequence, the application must fail.
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 s 120(1) whether it is satisfied beyond reasonable doubt that the death was not war-caused, or in the case of a claim for incapacity, that the incapacity did not arise from a war‑caused injury. 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.
TRIBUNAL’S DELIBERATIONS
35. It is established by case law that for an applicant to succeed in such a claim the disease on which it is based needs only to be a contributory cause rather than being attributable to the veteran’s death (Repatriation Commission v Law (1981) 147 CLR 635; Roncevich v Repatriation Commission (2005) 222 CLR 115). In Roncevich the High Court held that:
…A causal link alone or a causal connection is capable of satisfying a test of attributability without any qualifications conveyed by such terms as sole, dominant, direct or proximate. (at [27])
36. In this matter the primary cause of death was carcinoma of the prostate with bony metastases and the mechanism of death was said to be pneumonia.
37. Both hypotheses advanced by Mrs Brodie were dependent on the late veteran’s smoking habit being war-caused. The evidence points to Mr Brodie having commenced smoking five years before his enlistment. However, the quantity of cigarettes smoked per day prior to his service is unknown. It may well be that his smoking increased during service and that this increase could be attributable to his war service (Kattenberg v Repatriation Commission [2002] FCA 412). The Tribunal accepts that this is likely to be the case despite evidence to support such a likelihood not being available.
38. The first hypothesis links the contribution of pneumonia to the veteran’s death to smoking-caused emphysema or COAD. Dr Collins has made a diagnosis of mild COAD based on the veteran having suffered two documented episodes of bronchitis in 1977 and 1996 and a plain chest x-ray report of 10 November 2003 describing mild changes of obstructive airways disease. The documentation available to the Tribunal contains at least six chest x-rays taken prior to and after 10 November 2003 and none of these report changes of COAD. A CT chest performed for the purposes of excluding or confirming a pulmonary embolus took place on 25 July 2005 and on 28 July 2005 a ventilation profusion scan was performed. While both of these were performed for another indication there is no reported evidence of COAD. A CT scan is a far more sensitive examination for the detection of emphysema. Professor Cade concluded, based on these x-rays and CT findings that a putative diagnosis of emphysema cannot be sustained (report of 15 August 2007).
39. The treating general practitioner Dr Bennie has attributed the veteran’s shortness of breath to congestive cardiac failure not to emphysema. The veteran’s dyspnoea improved markedly following treatment with lasix and this is well documented. No consultant physician has diagnosed emphysema, pulmonary function tests have never been ordered, presumably because they were not considered to be clinically indicated, and the veteran did not see a respiratory physician.
40. The Tribunal is satisfied on the balance of probabilities that there was no objective evidence to support a diagnosis of emphysema/COAD. The first hypothesis fails in the absence of such evidence.
41. The second hypothesis endeavours to link the terminal event of pneumonia that may have hastened the veteran’s death, to a CVA causing difficulties swallowing and perhaps laryngeal dysfunction, resulting in aspiration or perhaps a weakened cough. This is the Tribunal Member’s interpretation of Dr Bennie’s suggestion that:
…it is quite possible that Barry may have developed the pneumonia secondary to the stroke, especially if he was having any swallowing difficulty. It is quite possible that he may have had swallowing problems given that he had been having slurred speech.
42. Dr Collins did not comment on the second hypothesis as the latter was raised well after his report was received. Professor Cade addressed the question of a CVA having occurred and any contribution that such might have made to the development of pneumonia. He accepted that there was medical opinion that Mr Brodie had suffered a CVA although all neuro‑imaging was negative. Mr Brodie’s reported slurring of speech had been the basis of Dr Bennie’s suggestion that this may have caused the swallowing difficulties. The Freemason Hospital records from 2 July 2005 indicate that Mr Brodie’s weakness had involved chiefly his right leg and that on 21 July 2005 there was no evidence of pneumonia on chest x-ray. When Mr Brodie was readmitted to Freemasons Hospital on 28 July 2005 there was evidence of right lower lobe consolidation but no evidence of any further cerebral ischemic features. Professor Cade concluded that cerebral ischemia cannot therefore be plausibly implicated in the new episode of chest infection which occurred at that time and which then led to his death (report dated 19 November 2008).
43. The possibility of a CVA having occurred on 2 July 2005 with preceding episodes of two falls with loss of consciousness was raised by the observations of the Brodie family and considered probable by Dr Ellims. Dr Ellims did not see Mr Brodie until 28 July 2005. Mr Brodie’s earlier admission to Freemasons was under the care of Doctors Guiney and Guerrieri who are both radiation oncologists. On 2 July 2005 the ambulance officers who conveyed Mr Brodie to Freemasons Hospital identified his symptoms as being due to pain in the right hip with weakness of the right lower limb, these symptoms having occurred during the course of radiotherapy for secondaries in the right hip and the femur. The ambulance officer’s neurological examination was entirely normal with a Glasgow Coma Score of 15. Dr Guerrieri who cared for Mr Brodie in Hospital from 2 to 21 July 2005 diagnosed right hip pain and leg weakness due to metastatic disease with neuropathic pain in the L2 and L3. On 19 July 2005 there is an entry in the Freemason’s clinical record stating that all imaging was negative for a stroke. Mr Brodie himself had attributed his difficulty in swallowing to the radiotherapy to his chest – an explanation he must have been given by a radiotherapist.
44. Dr Ellims had been contacted by the accident and emergency staff on Mr Brodie’s arrival in their department on 2 July 2005 but in view of Dr Guerrieri’s involvement and the ongoing radiotherapy he did no involve himself in Mr Brodie’s care. Following admission to hospital, a neurological observation chart was kept on Mr Brodie for the first six days of his admission and was at all times normal. On admission to hospital Mr Brodie was febrile and blood cultures were taken. These subsequently grew a streptococcus in one bottle. At the time Mr Brodie had a perianal abscess which was a likely site of this infection.
45. Magnetic Resonance Imaging (MRI) of the entire spine on 5 July 2005 showed the spinal canal to be clear of tumour but confirmed metastases in seven vertebral bodies with compression fractures in three of these. Chest x-ray revealed minor linear left lower lobe changes (Tribunal note this equates to linear atelectasis) which cleared by 7 July 2005. CT of the brain on 7 July 2005 was negative for malignancy and there was no evidence of a bleed or infarction but Mr Brodie did have normal pressure hydrocephalus.
46. Thus there is no confirmatory objective evidence to support a diagnosis of CVA and Mr Brodie’s right leg pain and weakness was adequately explained by his right hip and femur metastatic carcinoma.
47. The Tribunal is not reasonably satisfied on the evidence that Mr Brodie suffered a CVA. The second hypothesis fails due to the absence of supporting objective evidence of the occurrence of a CVA.
48. As the Tribunal cannot be reasonably satisfied that Mr Brodie had either COAD/emphysema or that he had suffered a CVA, a reasonable hypothesis has not been raised and the claim fails at step one of Deledio. The decision of the Repatriation Commission is affirmed.
49. It is unfortunate that neither party sought the opinion of the treating radiotherapist/radiation oncologist given that the conditions for which Mr Brodie was hospitalised on 10 July 2007 until his death on 5 August 2005 occurred in the setting of a course of radiotherapy aimed at pain control arising from multiple secondary bone deposits of carcinoma of the prostate. It is not for the Tribunal Member to give evidence but comment is warranted based on the Member’s medical and surgical qualifications, experience in lung pathology and observations of the effects of radiotherapy.
50. All of Mr Brodie’s medical conditions from June to August 2005 could be explained by the side effects of radiotherapy. He himself attributed his difficulties swallowing to radiotherapy to his ribs and thoracic spine (radiation oesophagitis). The sudden onset of diarrhoea of 7 July 2005 may well have been associated with radiation colitis as he was then having x-ray therapy to his right hip and pelvis and the colon would fall within the radiation field. The right hip pain and leg weakness with decreased mobility, as Dr Guerrieri opined, was due to metastatic carcinoma in the hip and femur. The development of right lower lobe consolidation described as pneumonia would equally be consistent with a diagnosis of radiation pneumonitis given the onset of the consolidation on 25 July 2005, approximately five weeks after commencement of radiotherapy to the right lower ribs followed by radiotherapy to the thoracic spine totalling 50 gray. The right lower lobe of the lung would fall within both radiotherapy fields. One of the blood cultures taken on 2 July 2005 was positive for streptococcus infection and the likely site of infection was the perianal abscess. This would explain Mr Brodie’s elevated temperature on admission.
51. The Tribunal’s comments regarding the more likely explanation of the course of Mr Brodie’s terminal illness did not form any part of the reasoning in this decision and served only to illustrate the importance of obtaining expert opinion from treating specialists, particularly where the Tribunal is requested to make a decision on the papers. Had a formal hearing been conducted it would have been possible for the Tribunal Member to put to Professor Cade, Dr Collins and a treating radiation oncologist the possibility of all Mr Brodie’s symptomatology being attributable to his underlying carcinoma of the prostate and the metastatic disease and their treatment with radiotherapy.
I certify that the fifty‑one [51] preceding paragraphs are a true copy of the reasons for the decision herein of
Miss E.A. Shanahan
Signed: Olympia Sarrinikolaou
Clerk
Date of Hearing Hearing on the papers
Date of Decision 2 April 2009
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