Parkes and Repatriation Commission

[2003] AATA 818

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2003] AATA 818

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No.   N2000/896

VETERANS’ APPEALS  DIVISION		)
Re		MARIE DOROTHY PARKES

Applicant

And REPATRIATION COMMISSION

Respondent

DECISION

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

Date21 August 2003

PlaceSydney

Decision The decision under review is set aside and the Tribunal substitutes in lieu thereof its decision that the Applicant, Marie Dorothy Parkes, is entitled to pension pursuant to section 13 of the Veterans’ Entitlements Act 1986 consequent upon the death of Kenneth Charles Parkes as and from the 1 June 1999.

(Sgd)  M D Allen

…..........................................…....
  Presiding Member 

CATCHWORDS       

VETERAN’S ENTITLEMENTS – Widow’s claim - death from metastatic cancer – primary site unknown - hypothesis that primary site of the biliary system and that smoking is a risk factor for biliary cancer - hypothesis raised on material and raised facts not negatived - no applicable Statement of Principle.

Veterans’ Entitlements Act, 1986 ss 120 (1), (3) and (6); 120A

Spencer v. Repatriation Commission (2002) 118 FCR 453

Bushell v. Repatriation Commission (1992) 175 CLR 408

Byrnes v. Repatriation Commission (1993) 177 CLR 564

East v. Repatriation Commission (1987)16 FCR 517

Repatriation Commission v. Hancock [2003] FCA 711

Reg v. Malcherek and Reg v. Steel [1981] 1 WLR 690

Nicolia v. Commissioner for Railways (NSW) (1970) 45 ALJR 465

REASONS FOR DECISION

21 August 2003 Senior Member M D Allen
Dr J D Campbell, Member

1.      By application made the 13^th June 2000, the Applicant sought review of a decision of the Respondent dated 6 September 1999, which held that the death of her late husband, Kenneth Charles Parkes, was not related to his war service.

2. The late Kenneth Charles Parkes was a veteran who served in the Australian Army during the period of the second world war including service in the British Commonwealth Occupation Forces in Japan. As such, he had operational service as that term is defined in section 6A Veterans’ Entitlements Act 1986 (“VEA Act”).

3. As the deceased veteran had operational service, the standard of proof in this matter is that prescribed by subsection 120 (1) and (3) of the VEA Act, namely that the Tribunal shall determine that the death of the deceased was war-caused unless satisfied beyond reasonable doubt that there is no sufficient ground for making that determination. The Tribunal shall however be deemed to be so satisfied if, after a consideration of all of the material before it, the Tribunal 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 service rendered by him.

4.      Subsection 120 (6) of the VEA provides that neither party to this review bears any onus of proof.

5.      The first matter to be determined by the Tribunal is the “kind of death” experienced by the veteran.  Put another way, what must be determined is the real and operative cause of death.  The determination of this question is upon the balance of probabilities: see Repatriation Commission v. Hancock [2003] FCA 711 at paragraph 9 and the cases there cited.

6.      When dealing with the “kind of death” suffered by a veteran, a distinction must be made between conditions entered upon a death certificate and the real and substantial cause of death.  For example, in many cases, Pneumonia is often shown on a death certificate as a cause of death but that condition is in reality no more than the end process of a terminal condition.  It is no more useful in determining a real and operative cause of death to refer to Pneumonia than by saying the deceased died because his heart stopped beating.

7.      The distinction between the real cause of death and subsequent conditions was dealt with by the English Court of Appeal in Reg v. Malcherek and Reg v. Steel [1981] 1 WLR 690. After referring to cases in the Court of Criminal Appeal, the Court drew the distinction between the ultimate cause of death and what it described as the continuing and operative cause.

8.      In this matter, the certificate of death states the cause as being “Metastatic Carcinoma primary site unknown”..  Of course the death certificate is no more than prima facie evidence of the cause of death: see Nicolia v. Commissioner for Railways (NSW) (1970) 45 ALJR 465 at 466 and 467. This evidentiary principle led in this matter to reports and evidence from Dr McCullagh who opined that the primary site of the deceased’s adeno carcinoma was either the lung or gastrointestinal tract.

9.      Dr Robilliard, Consultant Physician, in a report dated 28 March 1988 discussed two pathology reports and came to the conclusion that the primary site of the cancer was unknown.  His report reads:

“…Excision biopsy of a right supraclavicular lymph node in February, 1988 revealed a pigmented node.  There is considerable discussion about the histopathology and I note the varying reports of Dr E Hirst and Dr S McCarthy.  There has been no history of melanoma and indeed there are no moles that would suggest melanoma at the present time but this does not entirely exclude the diagnosis.  Clinically he had no other specific complaints.  He has lost weight because he has been on a diet and there was no real symptoms to suggest a site to his primary cancer.

He has a hard fixed right supraclavicular node palpable but no other clinical evidence of carcinoma.  He was an ex smoker, lives alone and is currently separated.

Recent assessment tests on the 8.3.88 showed a normal full blood count, ESR 100mm, with a polyclonal increase in gammaglobulin.  An abdominal CT scan was arranged which showed a metastatic lesion in the right lobe of the liver with a mass at the level of the gallbladder bed extending down to the duodenum ? glands with a left para-aortic mass again most certainly due to lymphadenopathy.  There is some question as to a carcinoma of the small bowel or gallbladder.

I would favour a diagnosis of metastatic pleomorphic carcinoma, primary site unknown.  His oropharynx and respiratory tract have been assessed at endoscopy. His chest x-ray was clear, liver function tests were normal and prostatic acid phosphatase was also normal.

The site of his primary carcinoma is uncertain.  It may be helpful to evaluate the gastrointestinal tract further but this will not necessarily alter his management as I would suggest that he have FAM chemotherapy…”

10.     Dr Butler, Consultant Physician, discussed alcohol ingestion and the effects of radiation upon the genesis of the deceased’s carcinoma.  In a report dated 7 May 2001, he stated:

“CONCLUSIONS

In the absence of definite evidence for the site of origin of Mr Parkes’ terminal malignancy it is very difficult to be specific in regard to the relationship between this tumour and his military service.

One possibility of linkage, which I could suggest, would be if the primary tumour was a primary hepatoma.  This can be related to the presence of cirrhosis of the liver.  From the record of Mr Parkes’ alcohol intake he must have been at risk of the development of cirrhosis.  On the other hand, his liver functions at the time of diagnosis of his carcinoma and indeed until the end of 1988 remain substantially normal.  Whilst this does not exclude the diagnosis of cirrhosis of the liver it makes it rather less likely.  The relatively small area of liver involvement at the time of diagnosis would also make a primary liver cell carcinoma less likely.  Malignant hepatomas arising on a background of alcoholic cirrhosis are frequently associated with abnormal liver function tests at the time of diagnosis and the tumour is usually evident at multiple sites in the liver.

The question of the microscopical appearances of the tumour and a primary hepatoma does not appear to have been addressed.  The description of the histological appearance of the tumour does not appear to be typical of a primary hepatic tumour.  Further opinion on this point may be desirable.

I do not see any evidence of a relationship between Mr Parkes tobacco intake and his final illness.

The question of radiation exposure at Hiroshima and its potential relationship to subsequent malignancy is undetermined.  Primary small bowel tumours are extremely uncommon.  The CT scan appearance of a tumour between the inferior vena cava and the head of the pancreas is consistent with a possible primary carcinoma of the duodenum.  In view of the rarity of these tumours there must be a possibility that ingestion of radioactive material during the period of Mr Parkes’ service in the Hiroshima area may have contributed to the development of such a malignancy.  Further expert advice on this may be desirable.”

11.     The only conclusion that the Tribunal can draw from the above report is that the site of the deceased’s primary tumour is totally speculative.

12.     That the primary site is undiscoverable was made clear by Professor Levi, Oncologist, from the Royal North Shore Hospital.  We would state at  the outset that where Professor Levi’s opinions conflict with those of Dr McCullagh, we prefer the opinion of Professor Levi who is an Oncologist in clinical practice as opposed to Dr McCullagh who is not a clinician but a researcher.

13.     By the time of the third day of hearing in this matter, the issues had clarified to a considerable extent.  In his report dated 20 February 2003 (Exhibit R7) Professor Levi had stated:

“…As I have reiterated on several occasions, it is still my contention that Mr Parkes should be classified as a metastatic carcinoma of unknown primary site.  The consideration of a biliary carcinoma as a primary origin is based on a finding of a metastatic pattern spread involving liver and regional lymph nodes is quite compatible with this, together with an alpha feto protein level consistent with a biliary carcinoma.  It is also stated in my previous reports that the likelihood of Mr Parkes having a primary biliary carcinoma is of the order of approx. 25 %.  As such therefore, it is still much more likely that another site of origin of Mr Parkes’ carcinoma was present but undetectable.  Accordingly I reiterate that the appropriate diagnosis of Mr Parkes is metastatic carcinoma of unknown primary site and continued speculation regarding the site of origin is just that, without any further available evidence to provide better direction regarding a possible primary site.”

14.     In his evidence to the Tribunal, Professor Levi discussed the possibility of the deceased’s primary site being a carcinoma of the biliary type.  In cross-examination, he said:

“…the reason why I raised the question of this being a biliary carcinoma was the pattern of presentation with liver involvement and lymph nodes closely aligned to liver being involved, a quite significant elevated AFP, generally higher than one would exceed just from metastatic cancer involving the liver and they were essentially the only available pieces of information to allude to a potential primary, beyond that there is no other information available.  As I’ve also emphasised many times this patient died of metastatic carcinoma of unknown primary site and that is the facts of the matter and the way in which it will always remain.”

The following passage then took place:

“QUESTION:           …I think you indicated earlier that you thought there was about 25 per cent chance of your hypothesis being right?

ANSWER:Yes that is right.Yes, that is a rough guess based on the pattern of presentation including the AFP level and on that basis it is probably reasonable to say that perhaps there’s a slightly higher likelihood than anything else but I’m not prepared to say anything significant on that.” 

Later, in answer to questions by the Tribunal, Professor Levi added:

“If you want to try to pin down the potential primary, I would still consider biliary system as a reasonable consideration on the basis of the presentation but I cannot go beyond that...”

15.     Given the above evidence from Professor Levi, together with the reports of Doctors Butler and Robilliard, the only conclusion that is reasonably open to this Tribunal is that the death of the deceased was due to a metastatic carcinoma of unknown primary site.

16. That finding does have one major conclusion regarding the manner in which the Tribunal must now approach its task. No Statement of Principle (SoP) created pursuant to section 120A of the VEA Act exists, nor has one ever existed, regarding metastatic carcinoma of unknown primary site. That means the Tribunal must consider the hypothesis of any connection between the death of the deceased veteran and his war service upon the medical evidence presented to the Tribunal and not upon any artificial constraints imposed by the SoP regime: see Spencer v. Repatriation Commission 118 FCR 453.

17.     As was pointed out by the High Court in Bushell v. Repatriation Commission 175 CLR 408 at 414:

“The material will raise a reasonable hypothesis within the meaning of s.120(3) if the material points to some fact or facts ("the raised facts") which support the hypothesis and if the hypothesis can be regarded as reasonable if the raised facts are true.  Clearly enough, a relevant consideration in forming an opinion whether a particular hypothesis is reasonable is whether, as a matter of common or medical experience, the occurrence of an injury etc. of the kind sustained by the veteran is commonly accompanied by or associated with the occurrence of raised facts of the kind which constitute the relevant incidents of the service of the veteran. However, a hypothesis may still be reasonable even though such an accompaniment or association is not demonstrated or even if it is shown to be uncommon.  So, in determining whether a hypothesis is reasonable for the purpose of s.120(3), it is not decisive that a connection has not been proved between the kind of injury which occurred and circumstances of the kind which constitute the relevant incidents of the veteran's service. Nor is it decisive that the medical or scientific opinion which supports the hypothesis has little support in the medical profession or among scientists.”

18.     In Byrnes v. Repatriation Commission 177 CLR 564 at 571, the High Court stated:

“The position may be summarized (sic) as follows: (1) First, sub-s. (3) of s.120 is applied: do all or some of the facts raised by the material before the Commission give rise to a reasonable hypothesis connecting the veteran’s injury with war service? The hypothesis will not be reasonable if it is contrary to known scientific facts or is obviously fanciful or untenable. If the hypothesis is not reasonable, the claim fails. Proof of facts is not in issue at this point. (2) If a reasonable hypothesis is established, sub-s.(1) of s.120 is applied. The claim will succeed unless: (a) one or more of the facts necessary to support the hypothesis are disapproved beyond reasonable doubt; or (b) 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.”

19.     In this matter, the evidence of Dr McCullagh raised a hypothesis that the primary site of the Applicant’s fatal cancer was the biliary system and that smoking was a risk factor for this type of cancer and therefore a contributing cause.

20.     There was no dispute before the Tribunal that there was some slight evidence that the deceased did have a smoking habit and that this habit was engendered by his war service.  The only evidence on the point is the statement by the Applicant which reads:

“4.       While Ken was alive, he told me that he did not smoke before the war and that he only started to smoke tobacco in 1943, during the war due to the stress of his war service.

5.        Between 1948 and about 1980 Ken was a very heavy smoker and would smoke at least a packet of cigarettes each day as well as roll cigarettes from tobacco”.  (Exhibit A2)

In the absence of contradictory material, the Tribunal cannot be satisfied beyond reasonable doubt that the deceased did not commence to smoke on service because of the exigencies of that service.

21.     When cross-examined, Professor Levi conceded that although he could only say that the death of the deceased was caused by a metastatic adeno carcinoma whose primary site was unknown, there was a 25 per cent chance that the primary site was the biliary system, ie gall bladder or a cholangiocarcinoma). Cf Byrnes (supra) where at p.572, the court said that a 20 to 1 chance cannot, as a matter of law, be regarded as unreasonable for the purposes of section 120 of the VEA Act.

22.     Accepting, for the purpose of the hypothesis, that the primary site was a cancer of the biliary system, Dr McCullagh referred to a paper by Khan et al published in a peer review journal, namely the American Journal of Gastroenterology Volume 94 No. 1 pp 149-152 which implicated smoking as a risk factor for biliary tract cancers.

23.     The paper by Khan et al was criticised by Professor Levi in part as being based on a small number (69) of patients over a long period and that it required much larger studies to clarify the situation.

24.     We agree that the criticism by Professor Levi of the Khan et al study is valid, however, as pointed out by the High Court in Bushell (supra), conflict with other medical opinions is not sufficient to reject an hypothesis as unreasonable.  Further, as pointed out in East v. Repatriation Commission 16 FCR 517 at 532 - an hypothesis, to be a reasonable hypothesis, must not be obviously fanciful, impossible, incredible or not tenable or too remote or too tenuous. On the material before us, we cannot find that the hypothesis postulated by Khan et al answers this description.

25.     On the whole of the material before us, we are satisfied that a reasonable hypothesis has been raised connecting the death of the deceased with his war service.  That hypothesis is that the deceased died from a metastatic ardeno carcinoma, which had as its primary site the biliary tract and that the deceased’s war caused smoking habit was a risk factor and hence a contributing cause in the formation of that cancer.

26.     There is nothing before us which negatives beyond reasonable doubt any of the “facts” relied upon to support the hypothesis, therefore, the decision under review is set aside and the Tribunal substitutes its decision, namely that the Applicant is entitled to pension consequent upon the death of her late husband Kenneth Charles Parkes as and from the 1 June 1999.

I certify that the 26 preceding paragraphs are a true copy of the reasons for the decision herein of:

Senior Member M D Allen

Dr J Campbell, Member

Signed:       (Sgd)  K. Wong                .......................................................................................
  Associate

Date/s of Hearing  10 December 2001, 10 October 2002 and 28
  July 2003
Date of Decision  20 August 2003
Counsel for the Applicant         Craig Colborne
Solicitor for the Applicant          Legal Aid Commission NSW
Advocate for the Respondent  Philippa Hook, Department of Veterans’ Affairs