Nipperess and Repatriation Commission
[2003] AATA 474
•23 May 2003
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2003] AATA 474
ADMINISTRATIVE APPEALS TRIBUNAL )
) No N2001/1956
VETERANS' APPEALS DIVISION ) Re
JOHANNA CHRISTINA NIPPERESS
Applicant
And
REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Senior Member M D Allen
Dr P Lynch, MemberDate23 May 2003
PlaceSydney
Decision The decision under review is AFFIRMED.
(Sgd) M D ALLEN
...............................................
Presiding Member
CATCHWORDS
VETERANS' ENTITLEMENTS - death claim - hypothesis not reasonable as subsidiary hypothesis not made out - claimed fatal cerebrovascular accident caused by cervical spondylosis - claim that cervical spondylosis was war caused rejected - Tribunal not reasonably satisfied death caused in the manner alleged by the Applicant.
LEGISLATION
Veterans' Entitlements Act 1986 - s6A, s120, s120A
CASES
Benjamin v Repatriation Commission 34 AAR 270
McKenna v Repatriation Commission 86 FCR 144
REASONS FOR DECISION
Senior Member M D Allen
Dr P Lynch, Member1. By application lodged with the Tribunal on 24 December 2001 the Applicant sought review of a decision by the Respondent as affirmed by a Veterans' Review Board refusing her claim to have the death of her late husband Allan Clyde Nipperess attributed to his war service.
2. The late veteran died on the 23 March 2000, the cause of death as certified by his General Practitioner being:
I. (a) acute myocardial infarction
(b) cerebrovascular disease
II. prostate cancer
3. As the deceased had operational service as that term is defined in section 6A of the Veterans' Entitlements Act 1986 (“VEA”) the standard of proof in this matter is that mandated by ss 120(1) and (3) VEA. Those subsections provide that the Tribunal shall determine that the death of the deceased was war-caused unless it is satisfied beyond reasonable doubt that there is no sufficient ground for making that determination. The Tribunal is deemed to be so satisfied if, having regard to all the material before it, it is of the opinion that the said material does not raise a reasonable hypothesis connecting the death of the deceased with the circumstances of the particular service rendered by him.
4. Section 120A VEA then goes on to provide that any hypothesis raised by the material before the Tribunal shall not be a "reasonable hypothesis" unless the said hypothesis conforms to a so called Statement of Principles (SoP) issued by the Repatriation Medical Authority.
5. Subsection 120(6) VEA provides that neither party to this review bears any onus of proof.
6. The hypothesis contended for by the Applicant is set out in her Statement of Facts and Contentions which became Exhibit A1 in these proceedings. It may be summed up as alleging that the deceased whilst on service suffered a trauma to his cervical spine which led to the development of cervical spondylosis. That cervical spondylosis in turn led to vertebrobasilar ischaemia which caused or contributed to the death of the deceased.
7. As matters developed in the course of the hearing that hypothesis was modified in that it was alleged that the vertebrobasilar ischaemia suffered by the deceased led to a cerebrovascular accident which in turn caused his fatal myocardial infarct.
8. At the outset the Tribunal must establish to its reasonable satisfaction the cause of the veteran's death. See Benjamin v Repatriation Commission 34 AAR 270 at 283 paragraph 55:
“The diagnosis of that disease, and the determination of whether or not there is an SoP in force in respect of that kind of disease, falls for determination according to the standard of proof laid down in s 120(4). The characterisation of a disease (or injury or death in an appropriate case), for the purposes of determining whether or not an SoP is in force in respect of that kind of disease (or injury, or death), is separate from the question of whether a claim relates to the operational service rendered by a veteran within s 120(1). The standard of proof laid down by s 120(1) has no application to the formal question."
9. There was no direct evidence before the Tribunal as to the cause of death of the deceased. At the time of his death deceased was at home having recently (18 March 2000) been discharged from hospital where he had been receiving palliative care for his cancer of the prostrate which had metastasised to his bones.
10. Dr Heard, the deceased's General Practitioner who certified death, was not present at the time the deceased expired. He was called to the deceased's dwelling by his wife and pronounced life extinct. In evidence to the Tribunal he stated his opinion was that the deceased had suffered a myocardial infarct because of the suddenness of his death. He added "that he had died was a surprise to me."
11. Asked to explain the mechanism of how the deceased's cerebrovascular disease caused his myocardial infarction, Dr Heard said that he thought that the mechanism of death was that the rupture of a plaque caused a clot to form, which in turn caused sudden death.
12. Cross-examined Dr Heard stated that he based his opinion of the deceased having suffered a "stroke" upon the description of the deceased's behaviour shortly before death as given by his wife namely that in the night prior to his death the deceased was trying to get out of bed but kept falling back, he was having difficulty sitting up, his speech was slurred and his state of consciousness varied.
13. Dr Heard has changed his opinion as to the mechanism of the deceased's death. Originally in a report to Newcastle Legacy dated 23 June 2000 he implicated the deceased's recognised war-caused disease of Anxiety State as causing hypertension and then ischaemic heart disease and cerebrovascular accident leading to death.
14. In a later report dated 8 September 2000 Dr Heard implicated passive smoking leading to ischaemic heart disease, post traumatic stress disorder causing ischaemic heart disease, plus cervical spondylosis which led to cerebrovascular disease.
15. Dr Heard acknowledged that he had diagnosed vertebrobasilar insufficiency on the basis of the symptom of giddiness, without there being any other neurological symptoms or signs. He had been the deceased's General Practitioner since 1990 and had spoken to him about his fall down stairs and lifting heavy bombs during World War 2 but could not recollect whether his neck was sore at that time. He stated that deceased generally complained of a sore neck but not frequently and also had vertigo on more than one occasion.
16. Regarding the final days of the deceased, Dr Heard stated that he saw him once between the time of his discharge from Toronto Hospital and his death. He failed to make any record of this visit. Dr Heard stated that the death was surprisingly sudden and this was the main reason he diagnosed acute myocardial infarction. His knowledge of the immediate pre mortem events was based on the history he obtained from the deceased's wife. His recollection of the history he obtained was that during the night the deceased speech was slurred, he couldn't get out of bed, he had difficulty with one arm and had muscular weakness in half of his body and his state of consciousness varied.
17. The deceased's widow gave evidence. Regarding the deceased's condition after discharge from hospital she stated that his general condition was not good. He had headache, his blood pressure was not good, he had stiffness in his body with decreased strength, and difficulty with coordination, hesitancy, could not hold a pen or a cup and halting speech. She stated that on the night of his death he got out of his bed with his legs over the side of the bed and she had to help him back. However she also stated that the deceased was mentally alert to the end and that he showered the morning of the day before he died.
18. The local medical officer's Clinical Notes were available to the Tribunal as they had been subpoenaed. Because of the lack of detail in the evidence the Tribunal analysed these notes extensively. The Clinical Notes were reviewed by both neurologists and their analysis relating to what caused the vertigo were compared and contrasted. There was no significant conflict in the facts they both derived from these Clinical Notes.
19. Both Dr Corbett and Professor McLeod, Neurologists, who gave evidence in these proceedings, stated that the only way in which vertebrobasilar disease could contribute to death would be to cause a fatal massive brain stem stroke. Neither believed that such an event had any relationship to a myocardial infarct except they were both a disease of the specific blood vessels but one did not cause the other. Vertebrobasilar insufficiency had nothing to do with the death of the deceased which was due to acute myocardial infarction.
20. Both specialists also stated that any movement of the neck leading to vertebrobasilar insufficiency resulted in a temporary interruption of blood supply only. Professor McLeod further stated that as far as he was aware it had never been known to cause death.
21. There was undisputed evidence that the deceased suffered a "stroke" in 1993 as a result of vascular disease affecting his left carotid artery, but as pointed out the only relevance to vertebrobasilar disease was that if athoromic material is present in the carotid artery which may have led to cerebrovascular disease then there may have been athoroma present in other arteries. As it was put by Dr Corbett:
"If you have disease in one territory you are more likely to have it in another territory than if you don't have the disease".
He added:
" that, I think, is the only statement you could make".
22. Considering all the evidence as to the cause of death, the symptomatic history shows a long (from 1977) and vague history of giddiness largely without any other neurological symptoms and definitely without any recorded or observed clinical neurological signs. The pattern of recorded symptoms suggests episodic giddiness reported each year with no significant progression. There was an increased frequency of complaints of giddiness in 1991 associated with a ladder falling on the deceased's head and a fall from a height of eight feet, landing on his head, without loss of consciousness. There are no clinical notes which support the occurrence of a cerebrovascular accident in 1990, but in August 1993 there is a well document left sided cerebrovascular accident. The complaints of giddiness after this are infrequent which does not indicate a progressive increase in giddiness. This was confirmed by Dr Heard’s comment that the deceased complained of a sore neck, not frequently, and had vertigo on more than one occasion. During this same time span there is a well documented worsening of the cervical spondylosis. This indicates to the Tribunal that any correlation between the two conditions is extremely poor and therefore renders any causal connection fanciful.
23. The duplex tests show a change from clear blood flow through both the carotid arteries and the vertebral arteries in 1985, to a 50 - 70 per cent obstruction to the right carotid whilst both vertebral arteries were clear in 1993. This indicates carotid artery disease was the cause of the 1993 cerebrovascular accident and that there had been a rapid progression of the vascular disease during this period. It also indicates that if the giddiness was caused by obstruction of the vertebral artery these episodes were caused by external pressure, which was transitory and had no permanent effect on these vessels. Both experts agreed there was no evidence in the medical documents indicative of cervical instability, which is a mechanism of intermittent kinking of the vertebral artery. The also agreed the normal blood flow studies would not show intermittent postural obstruction to flow unless these particular postural studies were ordered by the clinicians. Whilst this does not exclude the possibility of the occurrence of intermittent external obstruction, in that these studies were not ordered does suggest that none of the doctors caring for the deceased really considered the diagnosis of vertebrobasilar insufficiency with any degree of seriousness whilst the veteran was alive. Thus while there is clear evidence of carotid artery disease causing cerebrovascular disease, there is no evidence of vertebral artery disease, other than the symptom of giddiness, which in the opinion of the neurologists was not sufficient to make this diagnosis.
24. Thus while there is a plausible hypothesis of intermittent external pressure on the vertebral artery, there is no evidence pointing to it being a fact and as the neurologists agreed they would not diagnose basilar artery insufficiency on the symptom of giddiness without there being additional symptoms and signs of brain stem dysfunction. These were not pointed to by any of the evidence other than the three occasions, when symptoms were vague and not taken seriously by the treating doctor at the time.
25. There is a long and documented history of ischaemic heart disease, which was well managed. The deceased controlled his symptoms by decreasing his activity, when the chest pain occurred. Ischaemic heart disease is a progressive disease and increased rapidly as shown by carotid blood flow study and the 1997 X-ray which showed an enlarged heart which is a sign of a failing heart. Therefore this is evidence which gives a definite diagnosis, and this is a more likely cause of sudden death. This points to the correctness of Dr Heard's initial clinical impression at the time of death and is also supported by the opinion of Professor McLeod.
26. The evidence of Dr Heard was not of great help to the Tribunal. Whilst he had been the Medical Practitioner to the deceased for ten years he had little knowledge of the deceased's early life as relevant to causation and his service life. Also, his reports referred to above indicate he was an advocate of the Applicant and therefore lacked the objectivity expected of an expert witness. He persisted in his belief that giddiness was an adequate basis to diagnose vertebrobasilar insufficiency, which was counter to the expert opinions. His oral evidence regarding the immediate pre-mortem period was not from his observations but rather from the account of Mrs Nipperess and not helpful to resolving the issue before the Tribunal. He explained his surprise at the suddenness of the death of the deceased, who was a terminally ill man with advancing carcinoma of the prostate and the Tribunal is convinced that his initial diagnosis as to the primary cause of death was the correct one rather than the retrospective alternatives put forth to support the claim of the Applicant.
27. The evidence of Dr Heard and the Applicant relating to the pre-mortem events was vague but more importantly it was shown to be irrelevant in any support it might give to the diagnosis of vertebrobasilar insufficiency as the experts agreed such a cause of death would be a sudden and catastrophic event, meaning with no prodromal signs, which the Applicant and Dr Heard both suggested there might have been.
28. Given the above mentioned material we are not satisfied that the death of the deceased can be characterised as a death caused or contributed to by a cerebrovascular accident, consequently Instrument No.52 of 1999 entitled cerebrovascular accident has no part to play in making our determination.
29. So far as death caused or contributed to ischaemic heart disease or coronary infarct is concerned no hypothesis has been suggested that might link death with war service.
30. Even if we were wrong as to any finding regarding the cause of death we are satisfied beyond reasonable doubt that the facts said to have raised the hypothesis have been negatived.
31. The applicable SoP for cerebrovascular accident is Instrument No.52 of 1999. Factor 5(k)(xiv)(B) thereof reads inter alia:
"The factors that must as a minimum exist before it can be said that a reasonable hypothesis has been raised connecting cerebrovascular accident or death from cerebrovascular accident with the circumstances of a person's relevance service are:
for vertebrobasilar ischaemia only, suffering from cervical spondylosis where the osteophytes are impinging on the vertebral artery at the time of the clinical onset of cerebrovascular accident."
32. The Applicant's hypothesis was that osteophytes caused by the deceased's cervical spondylosis impinged upon the deceased's vertebral artery and thus caused his fatal cerebrovascular accident.
33. This hypothesis depends in turn upon an acceptance by the Tribunal that the deceased's cervical spondylosis was attributable to his war service. In seeking to ascertain whether or not the deceased's cervical spondylosis was war-caused the Tribunal must be satisfied that the hypothesis seeking to connect that disease with war service meets the applicable SoP. As was pointed out by the Full Court of the Federal Court in McKenna v Repatriation Commission 86 FCR 144 where a sub hypothesis exists and there is a SoP relevant to that sub hypothesis then the factors stated in that SoP must also be met.
34. In this matter the SoP for cervical spondylosis in force at the time the Respondent made its original decision was Instrument No.31 of 1999. That Instrument has been revoked and replaced by Instrument No.50 of 2002 as amended by Instrument No.81 of 2002. It was common ground between the parties that the latter instruments were more favourable to the Applicant then Instrument No.31 of 1999. Consequently if the Applicant is unable to succeed under the 2002 Instruments there is no point in having recourse to the 1999 Instrument.
35. Factor 5(h) of Instrument No.50 of 2002 reads:
"Suffering a trauma to the cervical spine before the clinical onset of cervical spondylosis".
Trauma to the cervical spine is defined in the said instrument as:
"Means a discrete injury to the cervical spine that causes the development, within 24 hours of the injury being sustained, of symptoms and signs of pain, and tenderness, and either altered mobility or range of movement of the cervical spine. These symptoms and signs must last for a period of at least seven days following their onset; save for where medical intervention for the trauma to the cervical spine has occurred, where that medical intervention involves either:
(a) immobilisation of the cervical spine by splinting, or similar external agent; or
(b) injection of corticosteroids or local anaesthetics into the cervical spine; or
(c) surgery to the cervical spine".
36. There is no doubt that the deceased did suffer from cervical spondylosis. See documents T12, p 42 in the documents prepared for the Tribunal pursuant to section 37 of the Administrative Appeals Tribunal Act 1975. That document is an X-ray report dated 11 October 1991 and what is to be noted is that the said report reads
" there are degenerative changes with disc space loss and anterior and posterior osteophytes worse at the C6/7 level but also seen at the C5/6, C4/5 and C3/4 levels"
the report concludes:
"COMMENT No fracture or dislocation. Degenerative changes involve most of the lower cervical spine but most marked at the C6/7 level".
37. Although the X-ray report of 11 October 1991 refers to degenerative changes being worse at the C6/7 level those degenerative changes "also involve most of the lower cervical spine".. In other words the changes not being confined to one level are more consistent with age related degeneration then trauma. This is made more likely by the notes of a medical examination of the deceased on or about the 4 November 1985 where the examining medical officer has noted "A.S. (after service) farming; heavy engineering; automotive engineering till retirement" that is, the deceased was not engaged in sedentary occupations.
38. The Applicant alleged that the deceased had a sore neck when they were first married shortly after his discharge from the RAAF and that she used to massage his shoulder, neck and upper arm. Her husband told her that he had fallen down a flight of stairs while on service.
39. Within the records of the Respondent relating to the deceased there is a consistent history of the deceased having fallen down a flight stairs whilst on service in Italy. Unfortunately there is no record of any treatment at the time but this is not uncommon when on active service and paragraph 119(1)(h) VEA is especially drafted to cover this contingency.
40. The best history of the deceased's injury is the history taken by a medical practitioner employed by the Department of Veterans Affairs on 4 November 1985. The claim by the deceased and its history is recorded thus (T3, p11CE):
"Member claims BROKEN COLLAR BONE RIGHT SIDE.
Member fractured the collar bone in 1943, apparently as a result of a fall down stairs; he wore a sling for nine days and then it came right.
He states that after service in 1946 approx he noticed that he had a problem with swinging so that he had to give up tennis, and bowling in cricket, otherwise he has no problem with lifting, it is the swinging movement only and not the lifting. O.E. he had a full range of movements. The diagnosis is not clear and possibly there is arthritis in the shoulder or a rotator cuff syndrome etc. The symptoms are negligible...."
At T3, p11CF the following is noted under the heading BROKEN COLLAR BONE RIGHT SIDE:
“He states that he broke the bone in approx 1943; following a push down a flight of stairs; he was treated with an arm sling. He wore this for approx nine days and then it came right..."
41. On 5 February 1986 Mr Plowman, Orthopeadic Surgeon, reported to the Respondent as follows (T3C, p11G):
"EXAMINATION: Cervical spine - normal except for restricted rotation, which is probably consistent with his age. Right clavicle - no deformity. Right shoulder - movements are unrestricted but he avoids abduction above 130' because of symptoms. In the upper limbs no other clinical or neuralgic deficit noted."
The report concludes:
" No fracture of the right clavicle has ever been confirmed."
42. At neither of the above medical examinations was there recorded any history of an injury to the cervical spine nor were there any complaints of aches or pains in the neck as opposed to the shoulder.
43. Prior to his discharge the deceased was examined twice by RAAF medical officers, see documents at T3, pp10A and 10C. At neither medical examination was any complaint made of neck injury, neither was there any finding of same.
44. Although no medical records relating to the period have been able to be discovered the deceased served in the RAAF Active Reserve from 24 May 1952 to 3 April 1957. We infer that at this time the Applicant's shoulder injury had resolved to the extent that he was regarded by RAAF medical authorities as fit for active duty.
45. Cervical spondylosis is a slowly progressive degenerative disease and was undoubtedly cause by wear and tear of every day life. The deceased was first diagnosed in 1985 and this explanation for his symptoms is supported by Dr Plowman’s findings based on clinical and radiological evidence that his cervical spondylosis was probably normal for a man in his seventies. There is also evidence the deceased had lumbar spondylosis which is additional confirmation of presence of slow degenerative condition throughout his spine.
46. On examining the deceased's medical records there is a long history of minor restriction of shoulder movement and continued heavy lifting for something like 30 years as a vehicle mechanic together with the clinical opinion of an orthopaedic surgeon that his cervical spondylosis was probably normal for his age, thus making any connection to war service unlikely in the extreme. Added to this is well documented evidence of internal disruption to his right shoulder joint which adequately explain all his symptoms. The Tribunal therefore is satisfied beyond reasonable doubt that there is no connection between deceased's cervical spondylosis and his relatively minor injuries sustained in the fall downstairs in 1943.
47. The Tribunal also considered the significance of the deceased's symptomatology. He made no claims relating to his war service until he had been receiving a service pension for some six years. However he subsequently claimed, attempting to link his symptoms to war service. The Tribunal considers this to be exaggerated and inconsistent with the evidence namely:
· his claim that his cholecystectomy operation revealed adhesions caused by his war time appendicectomy is not supported by the operating surgeon's report and further the said surgeon comments that he was concerned by the post-operative symptoms of the deceased and ordered extensive additional test, all of which were normal;
· the deceased’s claim, supported by the Applicant, that he broke his collarbone was found by an orthopaedic specialist to be unconfirmed either by clinical examination nor by any medical records;
· the deceased’s claim of a bomb blast to his face is similarly unsupported by any incident report or any reports of radiologist or dentists during his extensive dental treatment carried out in the early 1980’s.
48. The above leads to the conclusion that the reliability of symptoms and history of causation claimed by deceased is poor and a very dubious basis to establish the facts. The documentary evidence available is far from complete but sufficient in the Tribunal's opinion to decide that is satisfied beyond reasonable doubt that the factual bases put up to support the hypothesis for which the Applicant contends have been negatived beyond reasonable doubt.
49. The decision under review is therefor AFFIRMED.
I certify that the 49 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member M D Allen and Dr P Lynch, Member.
Signed: .......................................................................................
AssociateDate of Hearing 10 March 2003
Date of Decision 23 May 2003
Counsel for the Applicant Mr M Vincent
Solicitor for the Applicant Dibbs Barker Gosling
Advocate for the Respondent Mr P Godwin, Department of Veterans’ Affairs
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