Pocknall and Repatriation Commission
[2007] AATA 1351
•23 May 2007
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2007] AATA 1351
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2006/0159
GENERAL ADMINISTRATIVE DIVISION ) Re RUTH POCKNALL Applicant
And
REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Ms N Isenberg, Senior Member Dr M E C Thorpe, Member
Date23 May 2007
PlaceSydney
Decision The Administrative Appeals Tribunal affirms the decision under review.
....................[sgd].....................
Ms N Isenberg
Senior Member
CATCHWORDS
VETERANS’ ENTITLEMENTS – operational service – claim that the veteran’s death from was war-caused – consideration of Statement of Principles – the Tribunal decides that the decision under review is affirmed.
LEGISLATION
Veterans’ Entitlements Act 1986 (Cth) sections 9, 120(1), 120(3), 120A and 196
Statement of Principles – Instrument No 36 of 2002, clause 4
CASE LAW
Repatriation Commission v Hancock [2003] FCA 711
Fitzgerald v Penn (1954) 91 CLR 268
Re Davies and Repatriation Commission [2006] AATA 305
Repatriation Commission v Towns [2003] FCA 1262
Benjamin v Repat Commission (2001) 70 ALD 622
Repatriation Commission v Deledio (1998) 83 FCR 82
Re O’Brien and Repatriation Commission [2003] AATA 525
REASONS FOR DECISION
23 May 2007 Ms N Isenberg, Senior Member Dr M E C Thorpe, Member 1. The decision under review is the decision of the Repatriation Commission dated as affirmed by the Veterans’ Review Board (‘the VRB’) on 4 November 2005 that refused the claim that the death of the veteran, Ivan Edmund Pocknall was service related.
Issue before the Tribunal
2. The issue to be considered by the Tribunal is whether the veteran’s “kind of death” was a condition which was war-caused.
Background
3. Mr Pocknall served in the Australian Army between 28 January 1942 and 27 February 1946 in World War II. That service was “operational service” as defined in the Act.
4. Mr Pocknall passed away on 4 December 2003. The death certificate recorded the cause of death as follows:
(1) a) Sepsis, days
b) Aspiration pneumonia, weeks
c) Parkinson’s dementia, years
Legislative Background
5. Section 8 of the Veterans’ Entitlements Act 1986 (‘the Act’) provides for when an injury or disease is taken to be war-caused:
“War-caused death
(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;
(b) the death of the veteran arose out of, or was attributable to, any eligible war service rendered by the veteran;
…
(d) in the opinion of the Commission, the death of the veteran was due to an accident that would not have occurred, or to a disease that would not have been contracted, but for his or her having rendered eligible war service or but for changes in the veteran's environment consequent upon his or her having rendered eligible war service;
…”
6. Section 13(1) provides, in effect, that where the death of a veteran was war-caused, the Commonwealth is liable to pay a pension by way of compensation to a dependent, which includes a widow.
7. As the veteran had operational service the determination of whether his death was war-caused is to be made by applying subsections 120(1) and 120(3). Those subsections require us to find that the veteran’s death was war‑caused unless we are satisfied beyond reasonable doubt that there is no sufficient ground for making that finding. We must be so satisfied if we are of the opinion that the material before us does not raise a reasonable hypothesis to connect the veteran’s death with his service.
8. The Repatriation Medical Authority (‘RMA’) was established under section 196A of the Act. If the RMA is of the view that there is sound medical-scientific evidence that indicates that if a condition can be related to a veteran’s service, the RMA must determine a Statement of Principles (‘SoP’) (section 196B). The SoP sets out the factors, one of which as a minimum must exist (and which must be related to the veteran’s service) before it can be said that a reasonable hypothesis has been raised connecting the condition with that service. The reference in section 196B(2) to a particular kind of injury, disease or death being “related to service” is expounded in section 196B(14). This provides relevantly, in effect, that a factor causing an injury is “related to service” rendered by a person if it resulted from an occurrence that happened while the person was rendering that service, or if it arose out of, or was attributable to, that service.
Consideration
9. Mrs Pocknall’s contention in her claim for the widow’s pension was that her husband’s death was caused by his smoking habit that commenced whilst on duty in Borneo and continued until approximately 1991. Before the VRB the contention was that his Parkinson’s disease had commenced during service and that his accepted condition of “nervous disorder” had exacerbated the symptoms of Parkinson’s disease which ultimately led to his death. Alternatively it was argued that the type of Parkinson’s disease suffered by the veteran was one outside the Statement of Principles. None of these contentions was pressed at the hearing. Instead the contention was that the veteran’s service caused him to smoke and that this gave rise to chronic obstructive pulmonary disease (‘COPD’) and that that condition contributed to his death.
What Was the Veteran’s “Kind of Death”?
10. Our first task was to determine, on the balance of probabilities, the “kind of death” suffered by the veteran: see Repatriation Commission v Hancock [2003] FCA 711.
11. In determining the “kind of death” we must identify the real or operative cause of death as opposed to the final stage of the process of dying. To adopt the words of the High Court in Fitzgerald v Penn (1954) 91 CLR 268 at 276, we must ascertain whether a particular illness or disease can fairly and properly be considered the cause of death.
12. As the Tribunal pointed out in Davies and Repatriation Commission [2006] AATA 305, the expression kind of death, found at section 120B(4) of the Act, must be established in order to ascertain which Statement of Principles, if any, might apply. The expression kind of death was considered by the Federal Court in Repatriation Commission v Towns [2003] FCA 1262 where the Court said:
…… the expression "kind of death" is wide reaching. It does not, in terms, require identification of the prime cause of death in a medical sense, but is sufficiently broad to include death which occurs in a particular temporal or circumstantial context, such as death occurring "suddenly" or in a particular location or set of circumstances. The expression "kind" does not mandate a determination of the precise medical causation of the death. A death, for example, might be characterised as a death at sea, or a death in circumstances in which there has been an exposure to the elements. This could properly be described as a kind of death using that expression in a broad sense.
Did Mr Pocknall Have COPD?
13. On 17 October 2006, Dr Michael Burns, specialist chest physician, provided a report. He was of the view that Mr Pocknall suffered COPD and that that condition:
… contributed materially to the timing and circumstances of his death because of the debilitating effect of persistent hypoxia.
In my opinion, his COPD was war service related because it was almost certainly a consequence of smoking which addictive habit he took up during a very stressful period in wartime experience.
14. Professor Breslin, consultant thoracic physician, provided two reports dated 22 November 2006 and 19 April 2007. He expressed his opinion that Mr Pocknall’s death was a consequence of general decline in his Parkinson’s disease and Parkinson’s dementia together with terminal aspiration pneumonia. The pneumonia was a terminal event integral to the Parkinson’s process.
15. Dr Burns noted that the veteran was a smoker from approximately 1940 to 1991 and had given up smoking because of frequent bouts of acute bronchitis. Because of the productive morning cough which had been described by Mrs Pocknall and her daughter, he determined Mr Pocknall had chronic bronchitis.
16. Counsel for the Applicant tendered an extract from The Lancet Vol 367 pages 1216 to 1219 dated 15 April 2006. There the authors, Rennard and Vestbo wrote that in their view the generally accepted percentage of 15% of smokers contracting COPD was a serious underestimate. It was written there :
As the disease worsens, it is characterised by increasingly severe inflammation during stable disease, and an intensifying frequency of exacerbations that are sometimes acutely inflammatory in nature.
17. In Mr Pocknall’s case, though, his treating doctor, Dr Gennall made no reference to COPD. In commenting on this in his evidence, Dr Burns said that it was obvious Mr Pocknall did not have the condition badly or he would have gone to the doctor about it and would have been sent for tests. He thought Mr Pocknall may just have considered breathlessness to be part of aging and had not regarded it as a problem.
18. Dr Burns relied on the changes in a 1993 X-ray as ‘highly suggestive’ of emphysema. Taken with Mr Pocknall’s chronic bronchitis, he made a diagnosis of COPD. The X-ray report provided:
Overexpansion of both lung fields is noted consistent with chronic airways disease. Prominence of the central hilar vessels is seen consistent a degree of pulmonary hypertension. The heart is not enlarged. No other focal abnormality seen.
19. There were several other X-ray reports: 1997, 1998, 2001, 2002, which do not note changes indicative of COPD. In particular, on 6 September 2002, Dr Charles Mathews of Toukley X-ray Centre reported:
The lung fields, heart and mediastinum are within the usual limits for the patient’s age.
20. Dr Burns discounted these, saying that radiologists may have missed the changes and may not have been looking for changes if they were not alerted to the possibility, or were looking for something else.
21. We had difficulty accepting that radiologists would ‘miss’ changes irrespective of what they might be looking for when investigating lung problems.
22. In any event Professor Breslin did not consider it possible to diagnose COPD from a chest X-ray (‘CXR’). Further, as he wrote in his report of 22 November 2006:
Hyperinflation can occur for many reasons including large lungs and at not further time were his lungs described as large. Accordingly one cannot rely on the evidence of one chest X-ray to make a diagnosis of COPD particularly when subsequent chest X-rays do not support that diagnosis. His vessels were not described as large subsequently and this makes pulmonary hypertension from COPD extraordinarily unlikely.
23. Dr Burns said that Mr Pocknall was fairly sick and may not have been able to take a big breath. In this regard we note that it was not one, but several X-rays when Mr Pocknall could not manage the ‘big breath’, including in 1994 – some 10 months after the 1993 X-ray. There was no evidence of any deterioration in Mr Pocknall’s condition during that period which would have accounted for his inability to provide a ‘big breath’.
24. Dr Burns relied on recurrent episodes of bronchitis in the 1990s, coupled with the emphysema from the 1993 X-ray to make a diagnosis of COPD.
25. Professor Breslin, in his report of 19 April 2007 accepted that it was likely that Mr Pocknall had chronic bronchitis because of the evidence of Mrs Pocknall of the veteran’s cough and sputum for most days of the week for three or more consecutive months for two or more consecutive years. Those symptoms however, were, in his view, not the same as COPD. Chronic bronchitis can exist without COPD and COPD can exist without chronic bronchitis although the two often do occur together. Emphysema is one form of COPD.
26. Professor Breslin’s evidence was that:
To diagnose emphysema on a plane (sic) chest x-ray requires four things and they are hyperinflation with low flat diaphragms; an increased retrosternal air space; increased size of your pulmonary arteries; and peripheral paucity of the vasculature in the airways – in the lungs. The x-ray of 1993 was reported as showing hyperinflation but none of the other features of emphysema. So in itself it doesn’t diagnose – there are lots of causes of hyperinflated lungs on chest x-ray. Hyperinflated just means you’re taking a big breath but it doesn’t mean you’ve got emphysema.
27. Apart from the 1993 CXR reported as showing hyperinflation and Dr Burns commenting the radiologists may have missed the changes of COPD in subsequent X-rays, there is no other radiological evidence to support the diagnosis. Also we do not have the benefit of any respiratory function tests to assist in the diagnosis.
28. Dr Burns also relied on the development of carbon dioxide (CO2) retention during Mr Pocknall’s final admission to confirm his diagnosis of COPD. His interpretation of blood gas readings taken three hours apart on 23 November 2003 was that the increased CO2 was due to an application of excessive oxygen (‘O2’), as may occur when there is Chronic Obstructive Airways Disease (‘COAD’). He considered the second reading, showing increased O2 and decreased CO2 was when the administered O2 was removed. However, there was no evidence that that occurred, especially as the clinical notes say that ‘O2 nasal prongs continue’.
29. In contrast, Professor Breslin reported on 22 November 2006 that:
…within three hours that CO2 retention had resolved although the oxygen had improved and this is highly unlikely therefore to be related to COPD.
30. Dr Burns states that despite treatment of his pneumonia Mr Pocknall continued to be hypoxic, as would be expected with COPD. In contrast, Professor Breslin reported on 22 November 2006 that:
in fact this is not correct with his O2 improving three hours later. The treatment of his pneumonia was ceased in any event later on admission.
31. Dr Burns conceded in his evidence that aspirational pneumonia would have contributed to a decrease in O2 levels.
32. We have therefore come to the view, on the balance of probabilities, that Mr Pocknall did not suffer COPD: Benjamin v Repatriation Commission (2001) 70 ALD 622.
If Not COPD, what was Mr Pocknall’s “kind of death”?
33. In summary, Professor Breslin’s opinion was that Mr Pocknall’s death was due to Parkinson’s disease with associated terminal aspiration pneumonia. In spite of the response to treatment suggesting that the pneumonia may have been improving at the time of death it was decided not to undertake any active treatment or resuscitation because his Parkinson’s disease was so advanced, he was obviously beyond medical help.
34. We are reasonably satisfied in accordance with section 120(4) of the Act that the kind of death suffered by the veteran was Parkinson’s disease, with aspiration pneumonia as the terminal event. This is confirmed by both the death certificate and the evidence of Professor Breslin.
Is a reasonable hypotheses raised on the material before the Tribunal?
35. Mr Pocknall’s kind of death, i.e. Parkinson’s disease, is dealt with in the Statement of Principles Instrument No 36 of 2002. That Statement of Principles provides for the following in clause 4, referring to the only possible factor which would underpin a reasonable hypothesis connecting the condition with the veteran’s service:
The factor that must as a minimum exist in relation to the circumstances of a person’s relevant service causing or materially contributing to or aggravating Parkinson’s disease or death from Parkinson’s disease is inability to obtain appropriate clinical management for Parkinson’s disease.
36. Applying the methodology in Repatriation Commission v Deledio (1998) 83 FCR 82 to the kind of death, at step 2, there was no material pointing to any hypothesis connecting the veteran’s Parkinson’s disease with his service in that there was no evidence of him suffering Parkinson’s disease during (but not arising out of) his service and that he was unable to receive treatment for the condition: per Re O’Brien and Repatriation Commission [2003] AATA 525. At that point Mrs Pocknall’s must fail and there is no reasonable hypothesis raised on the material before the Tribunal.
37. For completeness, we also considered the hypothesis put forward on Mrs Poacknall’s behalf in her initial claim before the VRB and similarly found there to be no reasonable hypothesis connecting the veteran’s death with his service.
Conclusion
38. In all of the circumstances, we are satisfied, beyond reasonable doubt, that there is no sufficient ground for determining that the veteran’s death was related to his operational service.
39. We are sympathetic to Mrs Pocknall’s position that her husband’s service in World War II had had an adverse effect on his health, and that she had supported him through his ill-health. Sadly, not all conditions suffered later in life can be related back to those years spent in the defence force. Where a Statement of Principles has been issued for a particular condition relating to the circumstances of a veteran’s death, determining authorities, including this Tribunal, are bound by the relevant Statement of Principles, and no discretion is permitted.
40. We note the veteran’s arduous service in the defence of his country and we extend our sympathy to the applicant for her loss.
Decision
41. For the above reasons, we affirm the decision under review.
I certify that the 41 preceding paragraphs are a true copy of the reasons for the decision herein of Ms N Isenberg, Senior Member and Dr M E C Thorpe, Member
Signed: …[sgd]…………Mwela Kapapa…
AssociateDate of Hearing 27 April 2007
Date of Decision 23 May 2007
Counsel for the Applicant Craig Colborne
Solicitor for the Applicant Katrina Hodgkisson
Solicitor for the Respondent Katrina Harry
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