Re Martyn and Repatriation Commission

[2006] AATA 895

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2006] AATA 895

ADMINISTRATIVE APPEALS TRIBUNAL      )

)           N2005/1172

VETERANS’ APPEALS DIVISION		)
Re		JUNE IRENE MARTYN

Applicant

And REPATRIATION COMMISSION 

Respondent

DECISION

Tribunal

Ms G Ettinger, Senior Member

 Dr J Campbell, Member
 Mr T Jenkins, Member

Date              20 October 2006

PlaceSydney

Decision The decision under review is affirmed.

....................(sgd)..........................

Ms G Ettinger
  Senior Member 

CATCHWORDS

Widow of Veteran – “kind of death” –  contribution by a condition – claim that death was war-caused – decision under review affirmed

Veterans’ Entitlement Act 1986  ss   8, 120(1), 120(3),  120(4) and 120A

Statement of Principles Instrument No.17 of 2000 concerning Malignant Neoplasm of the Bile Duct

Repatriation Commission v Hancock [2003] FCA 711
Fogarty v Repatriation Commission [2003] FCAFC 136
Benjamin v Repatriation Commission (2001) 70 ALD 622
Repatriation Commission v Deledio (1998) 83 FCR 82
Repatriation Commission v Towns [2003] FCA 1262
Cooke v Repatriation Commission (1997) 45 ALD 205
Treloar v Australian Telecommunications Commission (1990) 97 ALR 321
Hayes v Repatriation Commission [2005] FMCA 125

REASONS FOR DECISION

20 October 2006 Ms G Ettinger, Senior Member
Dr J Campbell, Member
Mr T Jenkins, Member

BACKGROUND

1.      Mrs June Martyn is 82 years old, and has made a claim for her late husband’s death to be accepted as war-caused.  He served on operational service in World War II, between 1942 and 1946, and died on 15 January 2005. Mr Martin’s death certificate dated 24 January 2005 which is at T4/22, indicates causes of death as metastatic cholangiocarcinoma, non-insulin dependent diabetes and hypertension, all of which have been listed as having been present for “years”.

2. We had before us documents lodged pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 and certain other documents which will be referred to during the course of these Reasons for Decision.

3.      Mrs Martyn and her daughter-in-law Mrs Cheryl Martin both gave oral evidence.  The Respondent called Professor J Levi whose reports of 21 December 2005 (Exhibit R2), and 10 May 2006 (Exhibit R3), were also before us.

THE ISSUES

4.      The first issue to be decided is the characterisation of the “kind of death” suffered by Mr Martyn.

5.      This will be followed by deciding whether that death was war-caused pursuant to the Veterans’ Entitlements Act 1986 (“the Act”).

THE LAW

6. Pursuant to section 8(1) of the Act, the Commonwealth is liable to pay a pension where the death of a veteran is war-caused.

7. The standard of proof to be applied to determine whether Mr Martyn’s death was war-caused is set out in section 120(1) and section 120(3) of the Act, subject to section 120A because the claim was made after 1 June 1994. As there are relevant SoPs, section 120A(3) also applies.

“In order to ascertain whether a SoP applies, it is necessary to identify the … ‘kind of death’ suffered by the veteran: see s 120A(2) and s 120A(4) of the Act”.

8.      However, the “kind of death” is the first issue in this case, as it was in the case of Repatriation Commission v Hancock [2003] FCA 711, from which the quotation above comes. Justice Selway also said in that case:

“… there may be multiple medical conditions that cause a particular death.  For example, in this case it is obvious that the primary medical condition that caused death (was) … small bowel adenocarcinoma. However, if Dr Betty is correct then there may have been another medical cause, at least in the sense of a medical cause which expedited the death. This was osteoarthrosis of both knees. It was necessary that both of these be considered”.  (paragraph 8).

9. The standard of proof as far as diagnosis is concerned, is set out in section 120(4) of the Act, and is to the reasonable satisfaction of the Tribunal (Repatriation Commission v Cooke (1998) 160 ALR 17, Hancock,Fogarty v Repatriation Commission [2003] FCAFC 136 at [34] and Benjamin v Repatriation Commission (2001) 70 ALD 622).

10. Section 120(4) of the Act follows as relevant

“120Standard of proof

…

(4)Except in making a determination to which subsection (1) or (2)   applies, the Commission shall, in making any determination or decision in respect of a matter arising under this Act or the regulations, including the assessment or re-assessment of the rate of a pension granted under Part II or Part IV, decide the matter to its reasonable satisfaction.”

11.     In Repatriation Commission v Towns [2003] FCA 1262, Justice Tamberlin commented about the width of the expression “kind of death”.  He said that:

“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.”

12.     His Honour gave examples of characterisation such as death at sea, or a death where there had been exposure to the elements. He construed the Tribunal to have found in Repatriation v Towns,  that death was due to natural causes.

CHARACTERISATION OF “KIND OF DEATH”

13.     Mr Martyn who was a book keeper and accountant, died on 15 January 2005 aged 82 years at Calvary Hospital where he had, on 14 December 2004, been admitted for palliative care. He had served Australia on operational service from 5 February 1942 to 24 January 1946.

14.     We had to determine the “kind of death”, and were mindful that there can be more than one “kind of death”. (Repatriation Commission v Hancock). Mr Martyn’s death certificate in fact indicated there were three causes of death, metastatic cholangiocarcinoma, non-insulin dependent diabetes and hypertension, all of which were listed as having been present for “years” (T4/22).

15.     Mr Martyn had been diagnosed with hypertension many years before, and we were not able to ascertain from the evidence and documents before us for how long he had been taking medication for the hypertension. We were mindful that Dr R Edwards noted that it appeared to be well controlled, and that it did not contribute to Mr Martyn’s death (Exhibit A1).

16.     Mr Martyn was also diagnosed with Type 2 diabetes mellitus in 1979, or according to Dr Edwards when he was approximately 60 years of age which made it circa 1983. The diabetes appeared to have been managed by diet and oral hypoglycaemic agents.

17.     In August 2002, in connection with a pre-operative assessment  for surgery to relieve back pain, Mr Martyn was found to be suffering from cholangiocarcinoma, which is malignant tumour of the bile duct. The obstruction to biliary drainage was relieved by placement of a stent in November 2002.  Records indicated that Mr Martyn stayed well until January 2003, when he was admitted to hospital with infection in the biliary tree leading to replacement of the stent. The malignancy was seen to have spread, and he required several further replacements of the stent as they became blocked, culminating in his final admission to Calvary Hospital in December 2004 for hospice care.

18.     Mr Winship who represented the widow, submitted that the presence of the diabetes was likely to have made a contribution to the development of recurrent infection as diabetes is known to affect the immune system, and that this may have hastened the death. He argued that once this had been established, Factor 5(c) in SoP Instrument No. 11 of 2004 concerning Diabetes Mellitus, would apply. Consideration of Mr Martyn’s smoking habit, which Mr Winship submitted commenced during his operational service and continued throughout his life, would satisfy the reasonable hypothesis, and Mr Martyn’s death could be found to be war-caused.  We were mindful that the Respondent conceded that provided the Tribunal held that diabetes mellitus was a “kind of death” in this case, then it should be accepted as being due to service through Mr Martyn’s smoking habit.

19.     We took oral evidence from Mrs June Martyn, her daughter-in-law, Mrs Cheryl Martyn and Professor J Levi, Director, Department of Medical Oncology at the Royal North Shore Hospital. We also had before us various written reports and records, including that of Dr R Edwards, (Exhibit A1), Dr P Bennett, (Exhibit A2), in particular pages 61, 77 - 79, 100, 110, and medical records of Concord Hospital (Exhibit A3), in particular pages 52, 53 and 78.

20.     Mrs June Martyn told us that she had first met her late husband in 1944, when he was called up, aged 19, and working for the Shell Company. She said that he was granted three days leave to return home to be married on 17 March 1945. Mrs Martyn said that her husband did not smoke before he was called up, and was smoking both cigarettes and a pipe on his return in 1946, although she added that she had never seen him smoking a pipe. She said he was an intensely private person, and did not let on that he smoked, and did not even tell his doctors that he smoked. Mrs Martyn said that she knew he smoked because she could smell tobacco on him. She said that he did not smoke in the house, and did not smoke when he was out at dinner with her.  She said that when he returned from service, he was hard to get on with, and did not even want to know his children. Mrs Martyn told us that her husband ceased smoking some years before his death, perhaps 10 years.

21.     Mrs Cheryl Martin gave evidence that she married Mr John Martyn, the Veteran’s son in 1974. She gave evidence that she had seen her father-in-law smoke both inside and outside the house, and had seen him smoke cigarettes, roll-your-own and occasionally a pipe. She said that there was always a smell of smoke in the Martyn home, but said that Mr Martyn was not a chain smoker.  She said that she observed Mr Martyn smoking from the time she met him in the 1970s until a few weeks before his death, adding that he isolated himself in the house as he did not like visitors. Mrs Martyn said that she would be at the home of her parents-in-law approximately twice a week, adding that at times Mr Martyn also smoked when they were all out together.

22.     We noted that Mrs June and Mrs Cheryl Martyn’s evidence regarding Mr Martyn’s smoking habits was considerably different. However we did not take that to be an indication that either of the witnesses was untruthful, rather that it was perhaps due to some blurring of recollection on Mrs June Martyn’s part as a result of the effluxion of time.

23.     We next considered the evidence of Dr R Edwards (Exhibit A1) who observed that Mr Martyn was diagnosed with Type 2 diabetes mellitus at the age of approximately 60 years (being circa 1983). He observed that under the supervision of Mr Martyn’s general practitioner, the control of the condition was good, but that his blood sugar levels became more variable in the last two or three years of his life and especially at times of biliary infection. Dr Edwards also opined that:

“Although the longstanding hypertension did not contribute, in my view, to Mr Martyn’s death the presence of diabetes mellitus may have contributed in part, at least to the development of recurrent infection (cholangitis, septicaemia, pneumonia). I am unable to say to what degree the diabetes contributed to the death, but in my view, it was certainly a material factor….”

24.     We also had Professor Levi’s oral and written evidence. His reports were Exhibit R2 dated 21 December 2005, and Exhibit R3 dated 10 May 2006. Professor Levi described the history of Mr Martyn’s illness including the onset of diabetes mellitus in 1979, with subsequent management by diet and intermittent use of oral hypoglycaemic agents. He opined that the death certificate represented an accurate reflection of the primary cause of death being metastatic cholangiocarcinoma. In his further report of 10 May 2006, Professor Levi referred to Dr Edwards’ report (Exhibit A1), and elucidated on the possible contribution of Mr Martyn’s diabetes mellitus to his death. He referred to Dr Edwards’ opinion as follows:

“Dr Edwards indicates that in his opinion the diabetes mellitus may have contributed in part at least to the development of recurrent infection. This is based on the fact that it is well recognised that diabetes mellitus has a potential to increase risk of infection in certain circumstances. It is important to point out that in this setting Mr Martyn was suffering from advanced malignancy and in particular had biliary obstruction requiring stents. This is a well recognised major cause for infection and essentially every episode of infection suffered by Mr Martyn was related to the stents causing cholangitis and thereby the need for intravenous antibiotics and change of stent.

There was no information available in the medical records that I have seen to suggest that his diabetes mellitus influenced these infections.

…

I do not consider that Mr Martyn’s diabetes directly contributed to his death and do not consider that his diabetes was an integral part of the kind of death.”

25.     We also had before us Exhibit A2, the clinical notes of Dr Bennett, Mr Martyn’s general practitioner, and noted in particular pages 61, 77 - 79, 100, 110.  At Page 61, Dr P Craig, a gastroenterologist and hepatologist, wrote to Dr Bennett on 27 March 2003 regarding the Veteran’s complex hilar cholangiocarcinoma and cholangitis he suffered the previous month.  At page 71 – 79 of Exhibit A2, there is a letter of Dr J M Davis, Staff Specialist in Palliative Medicine at Calvary Hospital dated 9 July 2003. Dr Davis commented on the two stents which were inserted into Mr Martyn’s bile duct in February 2003 to deal with the sepsis he was suffering.  She commented that he was admitted into hospital again in May 2003 with cholangitis and pneumonia but that no stent change had been necessary at that time. She described his current problems in her report.  A further report was at page 110 of Exhibit R2, a report of Dr F Brennan, a locum consultant in palliative medicine dated 24 May 2004 in which he described Mr Martyn’s history and ordered further tests and anticipated an early stent replacement.

26.     We also had the medical records of Concord Hospital (Exhibit A3), noting in particular pages 52, 53 and 78.  Page 53 is a copy of a form dated 9 November 1948 date stamped by the Prince of Wales Hospital, in which it is noted that Mr Martyn smokes a quarter of an ounce of tobacco per week. A similar form dated 10 April 1946 describes Mr Martyn as a “Non smoker – occasional potus”.

CONCLUSIONS

27.     We were mindful that the Applicant  relied on the opinion of Dr Edwards and urged upon us that “it is just as reasonable to say that in Mr Martyn’s circumstances his body reacted to stent treatments so adversely, every time, because of his underlying predisposition to infection caused by his diabetes mellitus. Then, if that were the case, it would be reasonable to say the stent treatments exposed the underlying diabetes as a silent causal agent and the consequent infections resulting from this interaction weakened him to the point where his death was hastened.”

28.     The Respondent on the other hand, submitted that an infection such as pneumonia is identified as a terminal event, but is not a separate “kind of death” , and submitted that the Respondent relied on Professor Levi’s supplementary report where he opined that Mr Martyn’s diabetes did not contribute to the infections, but rather that it was the terminal cancer and stents which caused them.

29. We were satisfied from the evidence before us to the relevant standard of proof pursuant to section 120(4) of the Act (Repatriation Commission v Cooke, Hancock,Fogarty v Repatriation Commission and Benjamin v Repatriation Commission), in particular relying on Professor Levi, that Mr Martyn’s death was, as stated on the death certificate, due to metastatic cholangiocarcinoma.

30.     We noted also that Dr Edwards opined that the longstanding hypertension did not contribute to Mr Martyn’s death. He was however of the opinion that the presence of diabetes mellitus may have contributed in part at least to the development of recurrent infection (cholangitis, septicaemia, pneumonia).  A perusal of Exhibits A2, and A3, clinical notes of Dr Bennett and medical records of Concord Hospital, indicate that Mr Martyn suffered the above infections. Records also indicated that Mr Martyn’s stents required replacement due to infection. 

31.     We were mindful that Dr Edwards was unable to indicate to what degree he considered that the diabetes contributed to the death, but suggested it was a material factor. Professor Levi commented in his second report (Exhibit R3), on the opinions of Dr Edwards. He accepted that it is well recognised that diabetes mellitus has a potential to increase risk of infection in certain circumstances, but commented that there was no information available in the medical records that he had seen to suggest that Mr Martyn’s diabetes mellitus influenced those infections.

32.     Professor Levi confirmed that Mr Martyn was suffering from advanced malignancy, and in particular had biliary obstruction requiring stents, which are a well recognised major cause for infection. He opined that essentially every episode of infection suffered by Mr Martyn was related to the stents, causing cholangitis, and thereby the need for intravenous antibiotics and change of stent. He concluded that Mr Martyn’s diabetes did not directly contribute to his death, and did not consider that the diabetes was an integral part of the kind of death.

33.     We were mindful also in regard to “material contribution” that this was discussed in  the well known case of Treloar v Australian Telecommunications Commission (1990) 97 ALR 321. We were mindful that that in regard to cause of death, a material contribution is not relevant, but rather, that to be relevant, a condition has to be an integral part of the “kind of death”. We relied on Federal Magistrate McInnes in Hayes v Repatriation Commission [2005] FMCA 125 who there considered the role of contribution, and distinguished Treloar on the basis it was not concerned with determination of a medical cause of death, rather that Treloar dealt with a specific legislative provision relating to material contribution (in relation to injury in the workplace).

34.     We preferred Professor Levi’s opinion because Mr Martyn was suffering from advanced malignancy, and in particular had biliary obstruction requiring stents which are a well recognised major cause for infection. We were mindful that essentially every episode of infection suffered by Mr Martyn was related to the stents causing cholangitis, and noted that whilst it is well recognised that diabetes mellitus has a potential to increase risk of infection in certain circumstances, this was not such a case.

35.     Accordingly, having considered all the evidence and preferring the opinions of Professor Levi, we were satisfied that Mr Martyn’s “kind of death” was primarily due to cholangiocarcinoma. We were also satisfied to the requisite standard that neither Mr Martyn’s diabetes mellitus nor his hypertension were “kinds of death” pursuant to the legislation.

36.     We then moved to consider whether Mr Martyn’s cholangiocarcinoma was war-caused. 

WAS MR MARTYN’S DEATH WAR-CAUSED

37. In deciding whether Mr Martyn’s death was war-caused, we moved to consider sections 120(1) and 120 (3) of the Act, and the tests pursuant to Repatriation Commission v Deledio (1998) 83 FCR 82.

38. Sections 120(1) and (3) of the Act provide as follows:

“120  Standard of proof

(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.

39.     Where a veteran has operational service, as Mr Martyn had, the Tribunal must follow the steps as set out by the Full Court of the Federal Court in Repatriation Commission v Deledio in deciding whether or not a disease is war-caused. The Full Court described the application of the relevant legislative provisions as follows:

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). …

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.

40.     Applying the first of the Deledio steps, the Tribunal must consider all the material which is before it, and determine whether that material points to an hypothesis connecting the death with the circumstances of the particular service rendered by the Veteran.  No question of fact finding arises at this stage. If no such hypothesis arises, the application must fail.

41.     The Tribunal noted Mr Winship raised material pointing to a hypothesis regarding Mr Martyn’s death with material surrounding the cause of the infections and sepsis Mr Martyn suffered arising out of his diabetes mellitus. As we had already rejected diabetes mellitus as a “kind of death”, we did not further consider the possibility of diabetes mellitus as being war-caused. We note for the sake of completeness that there is an SoP in force regarding diabetes mellitus, being Instrument No.11 of 2004, and that in the appropriate circumstances that would have been considered.

42.     We were mindful also of the concession made by the Respondent that if diabetes mellitus were to be accepted as a “kind of death”, then the Respondent would accept diabetes mellitus as war-caused arising out of Mr Martyn’s smoking habit. However as we have found diabetes mellitus not to be a “kind of death”, we are not required to deal with that proposition.

43.     Mr Winship was unable to raise material pointing to a hypothesis connecting malignant neoplasm of the bile duct to war service. We noted that Instrument No.17 of 2000 relating to malignant neoplasm of the bile duct is in force, and that had facts raising a hypothesis connecting Mr Martyn’s death from cholangiocarcinoma with his war service been raised, then we would have considered that SoP.  Paragraph five of the Instrument lists the factors that must as a minimum exist before we can find that a reasonable hypothesis has been raised connecting Mr Martyn’s death from cholangiocarcinoma with the circumstances of his service.

44.     We noted that  “‘death from malignant neoplasm of the bile duct’ in relation to a person includes death from a terminal event or condition that was contributed to by the person’s malignant neoplasm of the bile duct;”  Those terminal events may, amongst others, be pneumonia or respiratory failure.

45.     Following examination of all the material, we found that when considering Mr Martyn’s situation, no factor in the relevant SoP for malignant neoplasm of the bile duct was met. Therefore no reasonable hypothesis could be found, and we were satisfied beyond reasonable doubt that Mr Martyn’s death from cholangiocarcinoma was not war-caused.

46.     Accordingly the application must fail.

DECISION

47.     The decision under review is affirmed.

I certify that the 47 preceding paragraphs are a true copy of the reasons for the decision herein of Ms G Ettinger, Senior Member, Dr J Campbell, Member, & Mr T Jenkins, Member

Signed:         .....................................................................................
  Associate

Date/s of Hearing  18 September 2006
Date of Decision  20 October 2006
Solicitor for the Applicant          Mr B Winship, Winship Lawyers Pty Ltd
Advocate for the Respondent   Mr N Bunn