Shaw and Repatriation Commission

[2005] AATA 354

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2005] AATA 354

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No N2003/477

VETERANS APPEALS DIVISION		)
Re		JEAN SHAW

Applicant

And REPATRIATION COMMISSION

Respondent

DECISION

Tribunal Ms N Bell, Senior Member
Dr I Alexander, Member

Date18 April 2005

PlaceSydney

Decision The decision under review is affirmed.

..........................................

Ms N Bell

Presiding Member

VETERANS’ AFFAIRS – Chronic Obstructive Airways Disease – Accepted War Caused Disability but not Cause of Death – Not Compensable

Veterans’ Entitlements Act 1986; section 8(1)(f)

Repatriation Commission v Law, 47 FLR 57

East v Repatriation Commission, 74 ALR 518

REASONS FOR DECISION

18 April 2005	Ms N Bell, Senior Member Dr I Alexander, Member
Background

1.      Mrs Shaw is the widow of Mr William Shaw, a WW II Veteran, who died at 71 years of age on 7 May 1997.  Mr Shaw had, as an accepted war caused disability, chronic obstructive airways disease.  Mrs Shaw sought to have her husband’s death accepted as war caused but her claim was rejected by the Repatriation Commission.

2.      The basis on which Mrs Shaw’s claim was rejected was that Mr Shaw died from interstitial lung disease, contracted long after his service.  We agree that Mr Shaw’s interstitial lung disease was not war caused because the relevant, and only, factor (inability to obtain appropriate clinical management) in Statement of Principles No.15 of 1998 concerning Idiopathic Fibrosing Alveolitis, is not met.  Mrs Shaw takes no issue with this.

3.      However, Mrs Shaw now contends war causation by another route, that is, the operation of section 8(1)(f) of the Veterans Entitlements Act 1986 (“the Act”).  That section is an alternative to the other, more generally used, liability provisions in the Act and provides:

“(1) Subject to this section, for the purposes of this Act, the death of a veteran shall be taken to be war caused if:

…

(f) the injury or disease from which the veteran died is an injury or disease that has been determined in accordance with section 9 to have been a war-caused injury or a war caused disease, as the case may be;”

Issues

4.      The question raised by this provision, in the context of Mr Shaw’s circumstances, is whether “the injury or disease from which (Mr Shaw) died” was chronic obstructive airways disease.  The parties referred to, and agreed to adopt as the correct legal position, Discussion Paper No. 7, Death from an Accepted Disability (April 2000), by Bruce Topperwien, Executive Officer of the Veterans’ Review Board.  In that paper the following position is stated:

“A similar phrase, ‘incapacity from which he died’, appeared in section 24 (2)(a) of the Repatriation Act 1920, and was examined in detail by the Federal Court in Repatriation Commission v Hayes ((1982) 43 ALR 216).  In that case, Keely J held that the Repatriation Review Tribunal had erred when it decided that the test was satisfied by finding that the incapacity ‘played some material part’ in the veteran’s death.  But Keely J held that it could be satisfied where ‘the ordinary answer of an ordinary man … would be that the death has ‘resulted’ from incapacity.  This indicates that ‘from which the veteran died’ is a more direct causal test than ‘arose out of, or was attributable to’, and requires a reasonably proximate relationship between the accepted disability and the veteran’s death.  It appears to be similar to the causation test the High Court said applies in negligence cases.”

5.      We agree with this analysis and adopt it in making our decision.

6.      In the course of our consideration another question arose - whether Mr Shaw died from a condition not the subject of a Statement of Principles.  We also deal with that issue below.

did mr shaw die from chronic obstructive airways disease?

7.      We had the benefit of reports and oral evidence from Dr Michael Burns, Respiratory Physician and from Professor A B X Breslin, Consultant Thoracic Physician. 

8.      Dr Burns’ evidence was that the cause of Mr Shaw’s death was respiratory failure mainly brought on by the development of an acute form of interstitial lung disease complicated by a biopsy procedure that went wrong, leading to a continuing pneumothorax, continuing debility and continuing respiratory failure until he ultimately died.  He noted that this was on a background of chronic obstructive airways disease but when asked whether Mr Shaw’s chronic obstructive airways disease was a direct cause of Mr Shaw’s death, Dr Burns said that it was not.

9.      Professor Breslin’s evidence was that Mr Shaw died of idiopathic interstitial pneumonia and that his death was accelerated by appropriate biopsy surgery.  He considered that chronic obstructive airways disease played no part in his death.

10.     On the basis of this evidence, and keeping in mind the more direct and proximate relationship of causation required by section 8(1)(f) of the Act, we do not consider that Mr Shaw died from his accepted condition of chronic obstructive airways disease.

did mr shaw die from a “non-sop” condition?

11.     As discussed above, Mrs Shaw does not contend that Mr Shaw’s circumstances satisfy the lone factor in SoP No. 15 of 1998, concerning Idiopathic Fibrosing Alveolitis.  In that SoP the subject condition is defined as:

“a chronic diffuse interstitial lung disease of unknown origin, characterised pathologically by inflammation and fibrosis of the lung parenchyma, attracting ICD code 516.3.”

12.     We were mindful, when reading this definition, of the evidence of Dr Burns that the condition suffered by Mr Shaw was acute interstitial pneumonia and the evidence of Professor Breslin that he died from a condition that amounted to an “overlap” of acute interstitial pneumonia and usual interstitial pneumonia.

13.     We note that the American Thoracic Society/European Respiratory Society International Multidisciplinary Consensus Classification of the Idiopathic Interstitial Pneumonias (“the Consensus”) states that the idiopathic interstitial pneumonias comprise a number of clinicopathological entities, which are sufficiently different from one another to be delegated as separate disease entities.  The Consensus identifies 7 different disease entities.  One of the disease entities identified is idiopathic pulmonary fibrosis which appears to be synonymous with idiopathic fibrosing alveolitis as per Statement of Principles No. 15 of 1998.  Another disease entity identified in the Consensus is acute interstitial pneumonia.

14.     We considered that, if we conclude that the Veteran’s ultimate cause of death is acute interstitial pneumonia, then the use of the word “chronic” in the definition of the condition in the Statement of Principles may render that SoP inapplicable to the veteran’s condition.  This raised the possibility of the veteran having a “non SoP” condition.

15.     After making these observations, we held a directions hearing at which the parties, having been alerted to our observations, were given an opportunity to make further submissions and provide further evidence.

16.     Further reports were tendered from Dr Burns and Professor Breslin.  Dr Burns noted that, at the time of the determination of the SoP in 1998, the acute presentation of idiopathic pulmonary fibrosis was regarded as a typical presentation of the whole disorder and the condition called “acute interstitial pneumonia was not made separate from idiopathic pulmonary fibrosis until the joint statement of the American Thoracic Society and the European Respiratory Society published in 2001.  He considered, therefore, that the SoP covered, or was intended to cover, the field and, it follows, encompasses Mr Shaw’s acute interstitial disease.

17.     Professor Breslin stated in his report that Mr Shaw had an acute to subacute presentation of Usual Interstitial Pneumonia (also called idiopathic pulmonary fibrosis or cryptogenic fibrosing alveolitis) rather than the separate entity of acute interstitial pneumonitis because his biopsy report is more in keeping with the former than the latter.  He considered, as a result, that the SoP applies to Mr Shaw’s condition.

18.     If we conclude, as urged by Dr Burns and Professor Breslin, that the SoP applies to Mr Shaw then, as noted previously, there is no material before us that points to him having been unable to obtain appropriate clinical management and so war causation cannot be found.

19.     If we conclude that Mr Shaw’s condition was a “non SoP” condition, Mrs Shaw can only succeed if we identify a reasonable hypothesis to which the material before us points.

20.     Mrs Shaw relied on the evidence of Dr Burns.  Dr Burns, in his report of 26 August 2003 said:

“The cause of Mr Shaw’s death was respiratory failure due to acute interstitial lung disease, a condition called acute interstitial pneumonia.  A pneumothorax complicating the trans-bronchial lung biopsy was a large factor in hastening his death.  The condition is related to idiopathic fibrosing alveolitis but is not the same.  I think it is quite reasonable to assume that he had some emphysema in addition to his chronic bronchitis as a background to developing this rare acute interstitial pneumonia condition.  That being the case, then it is equally possible that his pneumothorax, a factor in hastening his death, was caused by emphysema in addition to the acute interstitial pneumonia.

… It is a reasonable hypothesis therefore that his death occurred as a result of a rare acute condition occurring on a background of chronic obstructive airways disease which in his case was due to his military service.”

21.     In his report of 12 May 2004, Dr Burns said:

“… although the main cause of Mr Shaw’s death was his interstitial lung disease, I believe that his smoking history with chronic obstructive airways disease and probable emphysema contributed to the timing of his death.”

22.     We are not satisfied that the hypothesis suggested by Dr Burns is one of war causation.  To say that Mr Shaw’s “death occurred as a result of a rare acute condition occurring on a background of chronic obstructive airways disease”
 or that the chronic obstructive airways disease contributed to the “timing” of his death (without an assertion of direct acceleration), falls short of the causative link required in section 8(1)(b) of the Act. (See Repatriation Commission v Law, 47 FLR 57).

23.     Alternatively, and at best, the hypothesis is tenuous and therefore not reasonable.  In our view, the material before us does not point to the suggestion raised by Dr Burns.  In particular, there is no material that points to Mr Shaw having had emphysema apart from Dr Burns’ assumption that he had it.  There is, however, material pointing to Mr Shaw’s pneumothorax following on from the biopsy that was performed.  The tenuousness of Dr Burns’ hypothesis renders it not reasonable (East v Repatriation Commission, 74 ALR 518).

24.     It follows that Mr Shaw’s death was not war caused.

Decision

25.     The decision under review is affirmed.

I certify that the 25 preceding paragraphs are a true copy of the reasons for the decision herein of Ms N Bell, Senior Member and Dr I Alexander, Member.

Signed:         ...........[Linda Blue]....................................
  Associate

Dates of Hearing  12 August 2004; 9 November 2004
Date of Decision  18 April 2005
Counsel for the Applicant         Mr N Dawson
Solicitor for the Applicant          Ms A Toliopoulos
Advocate for the Respondent   Ms T McConnell