Silver and Repatriation Commission
[2005] AATA 779
•16 August 2005
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2005] AATA 779
ADMINISTRATIVE APPEALS TRIBUNAL )
) No N2004/239
VETERANS' APPEALS DIVISION ) Re KATHERINE SILVER Applicant
And
REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Ms R Hunt, Senior Member
Dr P Lynch, MemberDate16 August 2005
PlaceSydney
Decision The decision under review is set aside and in substitution the Tribunal decides that the veteran’s death was war-caused.
…………………………………
Ms R Hunt
Presiding Member
CATCHWORDS
VETERANS' ENTITLEMENTS – Claim by widow - Cause of death –Balance of probabilities - Death caused by or contributed to by war caused exposure to asbestos – Asbestosis – Reasonable hypothesis – Onus on Respondent to disprove - Decision under review set aside.
LEGISLATION
Veterans’ Entitlements Act 1986 s120CASES
Fitzgerald v Penn (1954) 91 CLR 268
Chappel v Hart (1998) 195 CLR 232
R v Malcherek and Steel [1981] 1 WLR 690
Repatriation Commission v Hancock (2003) 37 AAR 383
Spencer v Repatriation Commission (2002) 74 ALD 362
Kattenberg v Repatriation Commission (2002) 73 ALD 365
Brown v Repatriation Commission [2003] FCA 1130REASONS FOR DECISION
16 August 2005 Ms R Hunt, Senior Member
Dr P Lynch, Member
SUMMARY
1. The Applicant in this matter, Mrs Katherine Annie Silver, is the widow of the late veteran, Mr Howard Silver. Mr Silver served with the RAAF during 1943 to 1946. He died on 20 October 2002. Mrs Silver applied for a war widow’s pension, on 2 December 2002, on the basis that her husband’s death was brought about by his exposure to asbestos during his service in the RAAF. A delegate of the Respondent refused Mrs Silver’s claim on 13 December 2002 and the Veterans’ Review Board affirmed this decision on 4 February 2004. The Tribunal has reviewed the decision and has found that Mr Silver’s death was related to his war service. This means that Mrs Silver’s claim is successful.
BACKGROUND AND EVIDENCE BEFORE TRIBUNAL
2. The facts available in this matter are sparse. The Respondent accepts that Mr Howard Silver had operational service from 19 April 1943 to 8 February 1946. He married Katherine Annie Silver on 29 January 1944. When Mr Silver died on 20 October 2002, a death certificate, issued on 4 November 2002, stated the cause of death as respiratory failure, pulmonary fibrosis and cause unknown. Medical records before the Tribunal are described and analysed below. Also before the Tribunal was a historian’s report of Brendan O’Keefe, dated 23 November 2004, that said, at page 5:
“Mr Silver may well have been exposed to some respirable asbestos during his work in the RAAF. This exposure may have been to relatively small amounts of asbestos, but it could have extended over the period from when he commenced training as Fitter in May 1943 until he left No. 2 Flying Boat Repair Depot in January 1946.”
ISSUE
3. The issue before the Tribunal is whether Mr Silver’s death was caused by events during his war service. Mr Silver had no accepted war caused disabilities prior to his death. Mrs Silver contends that his death occurred because he was exposed to respirable asbestos fibres while carrying out his work as a fitter on aircraft and vessels during his war service. This exposure, Mrs Silver argues, contributed to the development of asbestosis.
ANALYSIS OF EVIDENCE AND FINDINGS
4. Briefly, for Mrs Silver to succeed, she first must establish what was responsible for her husband’s death. That is, before dealing with whether Mr Silver’s death was war-caused, the Tribunal must determine, on the balance of probabilities, the “kind of death” he suffered. See Repatriation Commission v Hancock (2003) 37 AAR 383 and the Tribunal case Brown and Repatriation Commission [2003] FCA 1130. In determining the “kind of death” involved, the Tribunal is, as Senior Member Allen and Member Thorpe explained in Brown, seeking the real or operative cause of death as opposed to the final stage of the process of dying. Senior Member Allen and Member Thorpe approached this exercise in Brown by adopting the words of the High Court in Fitzgerald v Penn (1954) 91 CLR 268 at 276. See also Chappel v Hart (1998) 195 CLR 232 at 243, per Gaudron J, and compare R v Malcherek and Steel [1981] 1 WLR 690, especially at pp 695, 696.
5. Once Mrs Silver has established that her husband’s death was caused by the condition she alleges, she must raise a hypothesis that the cause of death was a war-caused disease or a pre-existing disease aggravated by service. This question must be resolved according to the reverse onus imposed under subsection 120(1) of the Veterans’ Entitlements Act 1986 (the Act) as qualified by subsection 120(3). In applying section 120, the Tribunal must determine whether the material before it points to facts or “raised facts” that support a hypothesis connecting the disease with Mr Silver’s operational service and whether that hypothesis is reasonable. If the Tribunal accepts a reasonable hypothesis, the next step is to decide whether any Statement of Principles (SoP) applies and is met. There may be more than one hypothesis and related SoP or it may be that the condition is not covered by any SoP. The Tribunal then must find that the death was war-caused unless satisfied beyond reasonable doubt that there is no sufficient ground for making that determination.
MEDICAL REPORTS AND CORRECT DIAGNOSIS
6. The primary issue to be decided by the Tribunal is the specific diagnosis of the cause of death of Mr Howard Silver. The death certificate issued on 4 November 2002 stated the cause of death was:
· Respiratory Failure, days
· Pulmonary Fibrosis, years,
· Cause unknown
7. This is considered by the Tribunal as a broad clinical diagnosis, which is non-specific and not detailed enough to distinguish between the 2 possible causes of the pulmonary fibrosis, namely, idiopathic pulmonary fibrosis or asbestosis. The evidence before the Tribunal on this issue included various written reports and oral evidence taken from medical practitioners. Written materials included and discussed further below are:
·The clinical notes of Dr John Moses, who was the treating chest specialist to Mr Silver.
·The medical records of the Workers’ Compensation Dust Disease Board.
·Report and oral evidence of Dr John Garvey.
·Report and oral evidence of Dr A.B.X. Breslin
Dr Garvey
8. Dr Garvey is a “Specialist Surgeon”. In giving oral evidence, he acknowledged he had reviewed the documents before the Tribunal and had given an opinion but that he had no specialist qualification regarding thoracic medicine. Thus, we considered his opinion as a general medico-legal opinion but not helpful in making the fine distinction between possible specific conditions being considered for determination of the causal diagnosis of the veteran’s pulmonary fibrosis.
Dr Breslin
9. Dr Breslin in our opinion gave detailed, well-reasoned evidence, which considered the specific differences between asbestosis and idiopathic pulmonary fibrosis. The diagnostic features he noted and on which his diagnosis was based took in the clinical features and the level of exposure to asbestos. On the evidence available to him, he considered the correct diagnosis of Mr Silver’s condition was more than likely to be idiopathic pulmonary fibrosis.
10. The clinical features in the files on which Dr Breslin relied were that that Mr Silver died in respiratory failure, which is uncommon in Dr Breslin’s experience. The more common cause of death in his experience was the development of mesothelioma or lung cancer. Further, the distribution of the fibrosis within the lungs of Mr Silver was throughout the upper and lower lung, whereas asbestos, being inhaled, tends to settle in the lower lungs and in the outer or sub-pleural areas of the lung.
11. Dr Breslin explained the CT scan appearances and their significance. The honeycombing appearance was indicative of old scarring and the absence of ground glass appearance was an indication that the early inflammatory phase had passed. This inflammatory phase can respond to steroids but the scarring phase was not responsive to steroids and was of significance only to the phase of the disease and not any help in the resolving the actual specific cause of the pulmonary fibrosis. Dr Breslin acknowledged the CT scans showed sub-pleural thickening but considered the usual appearance of asbestosis was one of calcified pleural plaques, which weren’t detected in the lungs of Mr Silver. However, he conceded that the presence of pleural thickening could hide the presence of such plaques.
12. Dr Breslin considered the exposure to asbestos during Mr Silver’s operational service was light, being in the order of 1 to 2 fibres per ml per year. He acknowledged the data available was poor but stressed that to be in the group who have only a 50% chance of developing asbestosis, the exposure must be of high levels and continuous over a long period and be of the order of 25 fibres per ml per year. Dr Breslin contrasted the service exposure of Mr Silver to that of RAN sailors, who lived and worked in steam driven ships and had copious exposure to asbestos lagged pipes throughout the ships. The pipes in these ships were constantly vibrating and releasing asbestos into the air the sailors breathed on a continuous 24 hour basis for the duration of their sea duty.
13. Dr Breslin further stated that the exposure Mr Silver was subjected to in his subsequent workplace, Austral Bronze, could have been sufficient to cause asbestosis. However, in Dr Breslin’s experience and knowledge of the exposure in this workplace, the exposure varied between individual workers and Dr Breslin had no detailed information of Mr Silver’s duties at Austral Bronze. He therefore deferred to the analysis of the Dust Diseases Board, whose members he regarded as thorough in their investigations. As well, having interviewed Mr Silver, they would have been in a better situation than he, to assess this more significant exposure at Austral Bronze. Dr Breslin acknowledged Mr Silver may have had extreme exposure at Austral Bronze and, if this were so, his opinion would move towards asbestosis. Nevertheless, overall, his opinion remained that the clinical features available to him indicated the probability of idiopathic pulmonary fibrosis as the correct diagnosis. However, Dr Breslin stated that, if the Dust Diseases Board found the exposure at Austral Bronze was greater than 25 fibres per millilitre per year, he would concur with their diagnosis of asbestosis. He also said this would not be the first occasion his diagnosis differed from that of the Dust Diseases Board.
Dr Moses
14. The reports and clinical notes of Dr John Moses show he began treating Mr Silver in early 2001 and he noted extensive pulmonary fibrosis which was probably long standing because of the fibrosis and honeycombing. He also reported there were no pleural plaques shown in the chest CT.
15. Dr Moses noted, at the time of these early consultations and despite the evidence of advanced lung fibrosis, Mr Silver’s exercise tolerance was reasonable. He also recorded the history of 15 plus years asbestosis exposure at his workplace, Austral Bronze. His examination of Mr Silver showed evidence of end inspiratory crackles to the level of the mid zone of the chest that his respiratory volumes were depressed. At this time, Dr Moses considered Mr Silver’s disease was idiopathic pulmonary fibrosis despite the known asbestos exposure and the presumed asbestosis causation stated in the CT scan report by Dr Bryant.
16. In July 2001, Dr Moses reviewed Mr Silver and considered him capable of surviving a hip replacement done under regional epidural anaesthetic. It is uncertain from the records whether this actually took place but in December and February 2002, Dr Moses again found little deterioration in Mr Silver’s chest condition.
17. Mr Silver‘s chest condition remained stable until May 2002 when Mr Silver suffered increased difficulty with his breathing and had to commence home oxygen treatment. A further more specific CT scan showed no significant evidence of progression of the fibrosis but did show evidence of further pleural thickening, which was an indication of possible asbestosis being the appropriate diagnosis. However Dr Bryant reports on the CT scan:
”the pulmonary fibrosis is presumably idiopathic in type”.
18. Mr Silver developed severe pulmonary hypertension and progressive pulmonary failure. In August 2002, Dr Goh reported on CT scan of the lungs that Mr Silver had end stage bilateral lower lobe pulmonary fibrosis, increasingly large central lymph glands and bilateral pleural thickening “consistent with a history of asbestosis lymphadenopathy.” Then, Mr Silver died on 20 October 2002.
19. Dr Moses wrote several reports after Mr Silver died but in these reports he states the findings without making a clear specific finding of either idiopathic pulmonary fibrosis or asbestosis. Dr Moses declined to make a firm diagnosis stating in his report to the Dust Diseases Board of 6 March 2003:
“The findings would be consistent with either idiopathic pulmonary fibrosis but asbestosis cannot be excluded. It could have been either and one cannot be more specific”.
The Dust Diseases Board
20. The Workers Compensation Dust Diseases Board, on the basis of the report of Dr Moses dated 19 February 2003, the radiology reports and the reports of its own expert representatives who interviewed Mr Silver, made a finding that Mr Silver’s death was due to asbestosis. This finding gave no details of the reasoning that lead to the decision and, in particular, gave no findings of the exposure level at Austral Bronze of more than 25 fibres/ml/year, which was the level Dr Breslin specified might convince him to change his clinical assessment. In our view, the only reasonable conclusion is that the Board’s assessment found the particular work Mr Silver did at Austral Bronze involved sufficiently heavy asbestos exposure to justify its determining he died of asbestosis when the treating specialist report was still ambivalent regarding the diagnosis.
The Tribunal’s Findings as to Diagnosis
21. The Tribunal considers that the specific cause of Mr Silver’s pulmonary fibrosis is not a straightforward or clear issue. The clinical features described by Dr Breslin in the standard or typical case of asbestosis, namely lower lung fibrosis, would not cause massive lung failure in his view as the terminal event and causation of this event were not fully met by Mr Silver’s medical records. The clinical findings reported by Dr Moses do tend to show the lung sounds (“End inspiratory crackling”), which supports his finding of greater lower lung pathology. The CT scan report by Dr Goh’s scan of August 2002 also indicates “end stage fibrosis seen in both lower lobes”. Thus there is some clinical and radiological evidence that the lower lobes were more seriously affected by the pulmonary fibrosis.
22. The CT scan reports show no definite calcified sub-pleural plaques but do show a concentration of fibrosis in this sub-pleural area, which is indicative of asbestosis and could have hidden the diagnostic plaques. However, the CT scans reports in general tend to support both diagnoses and, as such, aren’t particularly helpful to the Tribunal. However, Dr Moses has the advantage of being the treating specialist and eventually makes the realistic assessment “that it could be either and one cannot be more specific”. Simply put, this means to the Tribunal that the best informed and treating specialist puts the balance of probability at 50%. In addition, the Tribunal, in making its decision regarding the diagnosis, is swayed by Dr Breslin’s acknowledgment that Dr Moses was in a better position than he was to diagnose and his concession that, if the heavy exposure at Austral Bronze was verified by the Dust Diseases Board, he would concede the diagnosis of asbestosis as the cause of death. In our view, this would increase the balance of probability of a finding of asbestosis above 50%.
23. The Tribunal therefore determines the probable specific diagnosis of the condition that was the cause of Mr Silver’s death was pulmonary failure caused by asbestosis, leading to interstitial fibrosis of the lung and attracting ICD code 501, cited in SoP 138 of 1996. Note ICD code is defined in the SoP to mean:
“a number assigned to a particular kind of injury or disease in the Australian version of the International classification of diseases …”
We accept this was the likely cause of death.
The Hypothesis
24. The hypothesis put by Mrs Silver as to Mr Silver’s death is that his fatal condition was war-caused asbestosis. Further, this was due to Mr Silver having been exposed to asbestos inhalation during his operational service while performing his duties as a fitter working on RAAF boats and small ships over nearly 3 years. The SOP applicable in this case is Instrument No.138 of 1996. The Tribunal accepts that this is a reasonable hypothesis. The next step for the Tribunal is to examine whether Mr Silver’s condition meets factors set out in SoP 138 of 1996.
25. Factor 5 of the SoP 138 of 1996 requires minimum factors to exist before it can be said that a reasonable hypothesis has been raised connecting asbestosis or death from asbestosis with the circumstances of a person’s relevant service. These are:
(a) being regularly exposed to respirable asbestos fibres for a period or periods of time totalling at least 200 days, in an enclosed area, when such fibres were being:
(i) applied; or
(ii)removed; or
(iii)dislodged; or
(iv)cut; or
(v)drilled,
and where the first day of exposure occurred at least five years before the clinical onset of asbestosis; or
(b) inability to obtain appropriate clinical management for asbestosis.”
No levels of exposure are specified in the SoP, which contrasts with the indicated dose of exposure indicated by Dr Breslin in his evidence to the Tribunal.
26. On balance, the Tribunal accepts that Mr Silver was exposed to some asbestos in his work as a fitter working on the engines of small and some moderately large vessels for more than 200 days during his operational service of nearly 3 years. This is supported by Dr Breslin in his report. Therefore, the Tribunal finds the hypothesis is reasonable and not fanciful and complies with the requirements of SoP No 138 of 1996. Further, the evidence is that Mr Silver worked on small boats, which in our opinion leads to a conclusion that Mr Silver worked in enclosed areas as per the SoP requirement as well.
27. Whether Mr Silver was regularly working with asbestos throughout the three year period cannot be determined with any certainty. Dr Breslin analysed the records supplied to him and concluded the exposure was light compared to the level of exposure of RAN sailors in the environment of steam driven large vessels (ships as opposed to boats). He considered if asbestosis were accepted as the diagnosis
“then a reasonable hypothesis could be made that his exposure during service contributed to his asbestosis and therefore his work on service contributed to his death from asbestosis”.
In addition, Dr Breslin in his report stated:
“The principal determinant of progression (of asbestosis) is the cumulative dose exposure. (Tribunal’s emphasis)”.
Thus, the Tribunal is satisfied that there is a reasonable hypothesis linking Mr Silver’s operational service exposure to asbestos with his subsequent heavy exposure at Austral Bronze, in the causation of Mr Silver’s death from asbestosis satisfies the requirements of the SoP No 138 of 1996.
Facts pointing to and supporting the hypothesis
28. Documentation of asbestos exposure in RAAF marine engines is not available to the Tribunal. There was probably some exposure to asbestos in Mr Silver’s work as a marine engine fitter but this was not documented in the material in the T documents and is only raised as a probability in the historian’s report of Mr Brendan O’Keefe. While Mr Silver was employed pre-service at an aircraft factory, there is no evidence he worked on sea planes, for which there was some evidence of significant asbestosis exposure. There is no mention of his being deployed on RAN ships during his service. The only evidence is that of Dr Professor Breslin, as quoted by Mr Brendan O’Keefe regarding the asbestos exposure from asbestos engine gaskets and possible asbestos lagging around diesel and petrol engine exhausts of the small craft used by the RAAF during World War 2. The Tribunal accepts on balance that this exposure was repetitive and occurred in very confined spaces, throughout Mr Silver’s operational service.
29. Dr Breslin considered this “light” asbestos exposure was much less significant than Mr Silver’s subsequent exposure at Austral Bronze. Nevertheless, while he had very little detail of Mr Silver’s work in the RAAF, Dr Breslin still considered that a reasonable hypothesis could be raised that Mr Silver’s work in the RAAF contributed to the development of his asbestosis in more than a negligible way.
30. The significant asbestos exposure at Austral Bronze was attested to by Dr Breslin, who has had experience in the assessment of other workers in this work place. He had reservations about accepting that heavy exposure was suffered by Mr Silver as he knew the varying levels of exposure were determined by the actual work performed and that this differed for the kinds of tradesmen within this factory. He had confidence that the Dust Diseases Board investigators would obtain a reliable and accurate history from Mr Silver and this would lead the Board to accurately assess his level of exposure. The Board’s Report, despite being brief and lacking detailed estimates of Mr Silver’s exposure, is evidence that there was a heavy level of exposure and the Tribunal, on balance, accepts that this exposure was cumulative for over 15 or more years.
31. For the purposes of this claim, the link of this heavy post service asbestos exposure to the light operational service exposure estimated by Dr Breslin, is due to the recognition that asbestos exposure is cumulative. Therefore, the Tribunal finds, on balance, that the service exposure constitutes a greater than negligible contribution to the totality of Mr Silver’s lifetime asbestos exposure. Therefore, we find his operational service contributed to his disease of asbestosis, which caused his death. See Kattenberg v RepatriationCommission (2002) 73 ALD 365.It follows that the decision under review is set aside.
DECISION32. The decision under review is set aside and in substitution the Tribunal decides that the veteran’s death was war-caused.
I certify that the 32 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member Robin Hunt
Signed: .....................................................................................
Zoe McDonald
AssociateDate of Hearing: 14 June 2005
Date of Decision: 16 August 2005
Counsel for the Applicant: Mr Colbourne
Solicitor for the Applicant: Dibbs Barker Gosling
Counsel for the Respondent: Mr Bunn
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