Taylor and Repatriation Commission
[2008] AATA 17
•9 January 2008
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2008] AATA 17
ADMINISTRATIVE APPEALS TRIBUNAL )
) No V 200500488
VETERANS' APPEALS DIVISION ) Re DOROTHY ADA TAYLOR Applicant
And
REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Regina Perton, Member Date9 January 2008
PlaceMelbourne
Decision The Tribunal affirms the decision under review. (sgd) Regina Perton
Member
VETERANS’ ENTITLEMENTS ‑ widow’s pension – operational service – kind of death – malignant neoplasm of the brain - whether Statement of Principles met - decision affirmed.
Veterans’ Entitlements Act 1986 ss 8(1), 120(1) and (3), 120A
Repatriation Commission v Deledio (1998) 83 FCR 82
Repatriation Commission v Gorton (2001) 110 FCR 321
Repatriation Commission v Hancock [2003] 37 AAR 383
Repatriation Commission v Codd (2007) 95 ALD 619
REASONS FOR DECISION
9 January 2008 Regina Perton, Member 1. Sydney Walter Taylor died on 30 January 2004, shortly before the 59th anniversary of his marriage to Dorothy Ada Taylor. He was 84 years old. Mr Taylor served in the Royal Australian Army (the army) from 29 May 1940 to 5 October 1945. He served overseas in the Middle East and Southwest Pacific. His service is treated as operational service for the purposes of the Veterans’ Entitlements Act 1986 (the Act). Mr Taylor’s condition of adhesions right ankle joint was accepted as a war-caused condition on 1 May 1946. He did not seek recognition of any other medical condition as war-caused.
2. Mrs Taylor lodged a claim for a widow’s pension on 5 April 2004 on the basis that her husband’s death from a cerebral tumour in the left parietal lobe was war-caused. A delegate of the Repatriation Commission determined on 20 April 2004 that Mr Taylor’s death was not related to his service. On 25 October 2004 Mrs Taylor lodged an application for review with the Veterans’ Review Board (VRB). On 29 April 2005 the VRB affirmed the Commission’s decision. Mrs Taylor lodged an application for review with the Tribunal on 7 June 2005.
3. In considering whether Mrs Taylor is eligible for a war widow’s pension, the Tribunal has to determine whether Mr Taylor’s death was war-caused, taking into account the requirements of the Act and legislative instruments.
legislation
4. Section 8(1) of the Act relevantly provides:
Subject to this section …, for the purposes of this Act, the death of a veteran shall be taken to have been war-caused if:
…
(b)the death of the veteran arose out of, or was attributable to, any eligible war service rendered by the veteran;
…
5. Sections 120(1) and 120(3) of the Act are relevant to the determination as to whether the death of a veteran was war-caused. Section 120(1) of the Act provides that the veteran’s death will be war‑caused unless the Tribunal is satisfied, beyond reasonable doubt, that there is no sufficient ground for making that determination. Section 120(3) of the Act provides that the Tribunal will be so satisfied if, after consideration of all the material before it, the Tribunal is of the opinion that the material before it does not raise a reasonable hypothesis connecting the death with the circumstances of the particular service rendered by the person.
6. The provisions for dealing with the standard of proof in claims made on or after 1 June 1994 are found in s 120A of the Act. It provides:
(1) This section applies to any of the following claims made on or after 1 June 1994:
(a)a claim under Part II that relates to the operational service rendered by a veteran;
…
(3) For the purposes of subsection 120(3), a hypothesis connecting an injury suffered by a person, a disease contracted by a person or the death of a person with the circumstances of any particular service rendered by the person is reasonable only if there is in force:
(a)a Statement of Principles determined under subsection 196B(2) or (11); or
(b) a determination of the Commission under subsection 180A(2)
…
7. The principles to be applied in cases where s 120A of the Act applies were set out by the Full Court of the Federal Court in Repatriation Commission v Deledio (1998) 83 FCR 82 at 97 as a four-step process:
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). If no such SoP is in force, the hypothesis will be taken not to be reasonable and, in consequence, the application must fail.
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.
8. However, the Tribunal is required to determine the kind of death, on the balance of probabilities, before it can determine whether there is an appropriate SoP and if it applies (Repatriation Commission v Hancock [2003] 37 AAR 383, Repatriation Commission v Codd (2007) 95 ALD 619). It is not in dispute that Mr Taylor rendered operational service; that he has died and that Mrs Taylor is his widow.
Kind of Death
9. Mr Taylor died on 30 January 2004. Dr E Kong, the certifying medical practitioner, indicated in the death certificate that the Cause of Death was:
Cerebral tumour – left parietal lobe
10. Dr Victor Gordon, consultant neurologist, prepared a report dated 29 March 2004 in which he stated:
Mr Taylor was under my care from 5th to 11th July, 2003 as an inpatient at Jesse McPherson Private Hospital. At that time he presented with a clinical syndrome of a transient ischaemic attack. During his subsequent clinical course it became clear that he had a brain tumour in the left temporoparietal region. The most likely nature of the temporal lobe mass is a primary glial series tumour. In view of his age and indifference [sic] to the wishes of himself and his family as discussed on numerous occasion we chose not to treat this aggressively but rather to manage him symptomatically aimed at improving his level of comfort and decreasing brain oedema.
He remained at home in the care of his family. I understand he has since died.
While I have not actually seen him since my final review on 19.12.03, I imagine that the cause of death would have been a complication of increasing intracranial pressure, cerebral dysfunction and eventually brain stem dysfunction with cardiorespiratory arrest due to the increasing intracranial pressure due to the growing intracranial tumour.
11. Dr R Christiansen of the East Bentleigh Medical Group, in a note dated 31 March 2004, stated that he had attended Mr Taylor in his last hours. He indicated that:
…[Mr Taylor] died as a result of a primary malignant cerebral tumour i.e. brain cancer, with some contribution from his long standing cardiomyopathy.
12. Dr Christiansen’s clinical notes include letters from Dr Gordon in which he described his observations concerning Mr Taylor following his examinations. On 8 December 2003, Dr Gordon wrote:
I had a meeting with Mr Taylor’s wife and daughter today. I informed them of his very poor prognosis on the order of 6 months to a year of the brain tumour. One of his more distressing symptoms is shortness of breath, and he is a substantial ex-smoker. This raises the possibility that the cerebral lesion is in fact a metastasis from a lung lesion.
I think it would be reasonable to do a chest CT and see what is causing his shortness of breath. If it is lung disease then that influences our thinking about his treatment and outcome… .
…
13. On 19 December 2003, Dr Gordon wrote to Dr Christiansen stating that Mr Taylor and his family decided against chemotherapy or radiotherapy which would have required a biopsy of the tumour with attendant risk of complications. He also stated:
The CT scan of [Mr Taylor’s] chest did not show any lesions of concern; there is one 13 x 19 mm precarinal lymph node of uncertain clinical significance but no other lesions.
14. Dr Gordon prepared a report on 18 August 2005 addressed to Mrs Taylor’s solicitor. He stated:
…
… An MRI scan of the brain was performed on the 27th of November 2003 …
…
It is not possible to be absolutely certain about the nature of his brain tumor. The MRI findings suggest that it is most likely a primary brain tumor but the possibility of a secondary tumor is not excluded. The patient is known to have been a long term heavy smoker, the smoking has been held to be related to his military service as I understand.
I do not think it would be fanciful or unreal to hypothesise that if the brain tumor were to be a secondary rather than a primary it could be arising from a lung source, contributed to by his smoking. It is true that a CT scan of the chest did not show a chest tumor but CT scans are imperfect.
…
15. Dr R Byron Collins, consultant forensic pathologist, prepared a report dated 30 November 2005. He commented that in the death certificate, Dr Kong had not specified whether the cerebral tumour was a primary or a secondary lesion. Dr Collins stated:
…
2. In my opinion, it is far from established that the mass identified by MRI examination on 27th November, 2003, which involved the temporo-parietal region of the left cerebral hemisphere was a primary brain tumour. It is important to note that, whilst the Radiologist, Dr. S. Nguyen indicated in the Diagnostic Imaging Report the lesion was “most likely a primary glial series tumour” he proposed the differential diagnosis of a “solitary metastasis”. Dr Gordon in his letter dated 18th August, 2005 also alludes to this very real diagnostic dilemma and., in consideration of the late veteran’s longstanding history of considerable cigarette smoking, he hypothesizes (to which I robustly agree) that the brain tumour could be a secondary deposit “arising from a lung source”.
3. On initial examination of this “primary lung tumour hypothesis” there appears to be little to support it. However, in reality, this is not necessarily so, as evidenced by the following:
(i) insufficient/inadequate X-ray investigation of lungs,
(ii) microscopic primary is a well recognised entity,
(iii) identification on CT scan of chest of an enlarged precarinal lymph node is noted in the letter written by Dr. V. Gordon dated 19th December, 2003 and which may represent metastatic spread from a primary lesion within the lung,
(iv) longstanding cigarette smoking history,
(v) metastatic lesions in the brain, mostly carcinomas, constitute approximately half of the intracranial tumours in patients who have been hospitalised for space occupying lesions within the cranial cavity and the lung is one of the five most common sites of origin of the primary tumour.
In relation to the lymph node identified within the chest, it would be useful to be provided with the CT scan report, in order for it to be reviewed and Dr. Gordon should be asked to provide this material, if it is still available.
…
16. Dr Alexandra Burke, palliative care clinician, prepared a report at the request of Mrs Taylor’s solicitor, dated 24 April 2006. She stated that Mr Taylor had been admitted to Calvary Health Care Bethlehem for end stage palliative care on 21 January 2004. She indicted that his diagnosis was left parietal lobe cerebral tumour. She was unable to confirm the hypothesis that vascular disease may have contributed to his death as Mr Taylor’s clinical decline was entirely consistent with his diagnosis of a cerebral tumour.
17. Dr Collins provided a further report dated 16 May 2006 in which he commented:
…
1. The report prepared by Palliative Care Clinician, Dr. A. Burke, dated 24th April 2006 is sadly lacking in relevant information as to the definitive classification of the malignant lesion which was identified by neuroimaging in the parietal lobe of the left cerebral hemisphere.
2. Whilst I understand the reasons contained in the various medical reports as to why the cerebral lesion was not biopsied in order to obtain a histological diagnosis, it is unfortunate that it was not performed, particularly as its absence has now created the very real dilemma of ascertaining whether is was a primary or secondary tumour.
3. Simply because a lesion was identified in the late veteran’s brain, it cannot then be assumed, ipso facto, that it had been derived from cells arising from the contents of the cranial cavity, that is to say, a primary lesion.
…
18. Professor J F Cade, Director of Intensive Care at The Royal Melbourne Hospital, provided a report dated 20 June 2006 in which he provided a summary of Mr Taylor’s service and medical history. In reply to the respondent’s solicitor’s question as to the cause of Mr Taylor’s death, he stated that the cause of death was undoubtedly as listed on the death certificate. Professor Cade went on to state:
However, the nature of the tumour is not entirely clear. The tumour was considered to be probably a glial tumour, i.e. glioma, but the possibility of a metastatic tumour was raised. This distinction cannot now be clarified further, because a brain biopsy was not obtained (for understandable reasons) and an autopsy was not performed. I therefore agree with Dr Collins that a primary (smoking-related) carcinoma of the lung with a cerebral secondary remains a reasonable possibility.
…
I believe that the only potentially plausible hypothesis that can be made linking service with death in this case would need to rely on the presence of a smoking-induced lung cancer, with a metastasis in the brain being the direct cause of death, This scenario is not fanciful, though it cannot be considered more likely than not …
…
19. In a further report dated 29 August 2006, Professor Cade commented:
… I have now reviewed my original report and now offer the following clarification.
As previously indicated, I consider the suggestion that the patient’s fatal brain tumour was a metastasis from a primary lung cancer to have merit. In turn, the requirements of the Statement of Principles for malignant neoplasm of the lung would be met …
However, the particular difficulty that remains with this reasonable suggestion is that it is not more likely than not as the cause of death. Thus, a primary brain tumour (of glial nature) is the more likely diagnosis, as made by the patient’s neurologist, and it is not possible to have two alternatives each more likely than not. Nevertheless, the suggestion of a brain metastasis is not fanciful and indeed has statistical weight, so that it could be splitting hairs to demand an exact proportion to be calculated for the two types of brain tumour competing for primacy in this case.
…
20. Dr Collins gave oral evidence at hearing on 13 February 2007. Dr Collins said that he had not seen the report of a CT scan of Mr Taylor’s chest taken on 11 December 2003 until a few minutes earlier. He recommended that the films be obtained so that they could be viewed by a radiologist to see if lesions on the liver or lungs were simple cysts or otherwise. Dr Collins said that there might be a secondary neoplasm of the liver. He said that lung tumours commonly go to the liver. He indicated that CT scans were sometimes unable to pick up small lesions. The Tribunal agreed to adjourn the matter to enable further investigation by an appropriately qualified specialist of the CT scan and MRI.
21. Professor Alex G Pitman, Director of Research and Education in Medical Imaging at St Vincent’s Hospital and Professor of Medical Imaging at The University of Melbourne reviewed Mr Taylor’s MRI of 27 November 2003 and his chest CT scan of 11 December 2003. In a report to Mrs Taylor’s solicitor dated 30 May 2007, Professor Pitman stated that he could not identify a lung carcinoma from the chest CT scan. In terms of the MRI, he stated that the features favoured a primary glioma (a primary brain tumour) because it was solitary and large and there was relatively little vasogenic edema for the size of mass. Professor Pitman stated that even if the brain tumour was not a primary tumour, it would be more likely to be a metastasis from another primary such as colon rather than lung because there was no evidence from the chest CT of lung cancer. His conclusion was:
Chest – no evidence of lung carcinoma;
Brain – most likely primary brain tumour. No evidence to support a lung metastasis. Metastasis from another location possible but less likely than primary brain tumour.
22. Dr Collins provided a further report dated 6 June 2007 after seeing Professor Pitman’s report. He commented:
1. In relation to the CT chest, Prof. Pitman appears to negate the presence of any pathologically significant lesion(s) within the liver and, whilst he has not identified a primary lung tumour, he is careful not to opine that it could not exist – this being due, no doubt, to the known phenomenon of false negatives on X-ray examination, relating to the resolution power of machinery concerned.
There is some dispute between the Radiologists as to the exact identity of the “pre-carinal soft tissue density lesion”, with the reporting Radiologist favouring a lymph node, whilst Prof. Pitman is of the view that it is likely to be related to the pericardium (sac surrounding the heart), but he offers the caveat that, even if it is a lymph node, it is more likely benign. I fail to comprehend on what radiological basis he can appropriately distinguish between a benign lymph node and one which is malignant – albeit containing a relatively small quantity of malignant infiltrate!
…
2. Having regard to the MRI brain, in reality, the possibility of this lesion being a secondary deposit still exists, although Prof. Pitman is somewhat stronger than Dr. Nguyen in the belief that it is a primary lesion for a variety of reasons, none of which, however, definitively negate a secondary tumour deposit.
…
In summary, it is my view that the existence of a lung primary has not necessarily been excluded but, in the alternative, such a hypothesis has not been strengthened by the identification of an overt lesion within the lungs.
In reality, it remains as a pathologically possible hypothesis, but unproven by the hard evidence of a post-mortem examination.
…
23. Dr Gordon provided a further report dated 11 October 2007 after reading the reports of Professors Cade and Pitman and Dr Collins. He stated:
…
The question I was asked in my original opinion was whether it was a possibility that Mr Taylor’s brain tumour was a secondary related to his smoking history. In the absence of pathological examination of the brain tumour this question remains open and it is possible that his brain tumour was a secondary.
…
24. Dr Collins gave evidence at the resumed hearing on 13 November 2007. He commented that since a biopsy was not done, it remained a possibility that there was a primary tumour in the lung. He said that with a person who was a heavy smoker, there was around a 20 per cent chance that a secondary carcinoma of the brain arose out of a primary lung carcinoma. He subsequently provided an extract from a text, Robbins Pathologic of Disease, Sixth Edition at page 743 which confirmed his memory of the likely primary sites enunciated at the hearing.
25. Dr Collins stated that he was unable to say, on the balance of probabilities, that the brain tumour was not a primary lesion. However, he said that the likelihood of its being secondary to a lung carcinoma was greater than a remote possibility.
26. The Tribunal notes that a number of the specialist medical practitioners including Dr Gordon, Professor Cade and Dr Collins did not rule out the possibility of the brain tumour being secondary to a lung tumour or other site. The Tribunal notes that in its experience, it is rare for a medical practitioner giving evidence to the Tribunal to rule out a particular hypothesis as not being possible. However, in this case, there is evidence from a highly qualified radiologist, Professor Pitman, that there was no evidence of lung cancer after he viewed the chest CT scan. On examining the MRI, Professor Pitman described it as most likely to be a primary brain tumour. Professor Cade and Drs Gordon and Collins, who had all mentioned the possibility of the brain tumour being secondary to lung carcinoma, agreed that on the balance of probabilities, the brain tumour was the primary lesion.
27. The Tribunal is required to determine the veteran’s kind of death on the balance of probabilities. The Tribunal prefers the evidence of the expert radiologist, Professor Pitman, in determining the content of the chest CT scan and MRI. It was Dr Collins himself who suggested the case be adjourned to enable referral of the chest CT scan and MRI to an appropriate expert. As stated above, none of the medical practitioners, whether near the time of Mr Taylor’s death or later, were prepared to state that on the balance of probabilities, the brain tumour was not a primary one. The Tribunal finds that Mr Taylor died of a cerebral tumour of the left parietal lobe. The Tribunal is not satisfied, on the evidence, that he was suffering from lung cancer. Whilst Mr Taylor suffered from a number of other medical conditions, there was no evidence put forward or claims made at the hearing that other conditions were a cause of death.
Is Mr Taylor’s death war-caused?
28. Having determined that Mr Taylor died of a cerebral tumour, the Tribunal now follows the principles set out in Deledio. There is an SoP applicable to Mr Taylor’s kind of death, namely Instrument No. 17 of 2003, Malignant Neoplasm of the Brain. The factors that must as a minimum exist before it can be said that a reasonable hypothesis has been raised connecting death from malignant neoplasm of the brain and his war service are set out in paragraph 5 of the SoP as follows:
(a)being infected with Human Immunodeficiency Virus (HIV) before the clinical onset of malignant neoplasm of the brain; or
(b)undergoing a course of therapeutic radiation to the head or neck …; or
(c)having received a cumulative equivalent dose of 0.05 Sievert (Sv) of atomic radiation to the brain …; or
(d)having received an organ transplant from a donor with malignant neoplasm of the brain …; or
(e)inability to obtain appropriate clinical management for malignant neoplasm of the brain.
29. There is no evidence, nor has it been claimed, that Mr Taylor met any of the above factors. The Tribunal finds that Mr Taylor does not meet any of the factors in Instrument No. 17 of 2003 linking the kind of death with his war service. The Tribunal finds that there is no other relevant SoP in relation to Mr Taylor’s death. The Tribunal is therefore satisfied beyond reasonable doubt that Mr Taylor’s death was not war-caused in the terms of the Act.
DECISION
30. The Tribunal affirms the decision under review.
I certify that the thirty [30] preceding paragraphs are a true copy of the reasons for the decision of Regina Perton, Member
(sgd) Ursula Noyé
Clerk
Dates of hearing: 13 February 2007, 13 November 2007
Date of decision: 9 January 2008Counsel for applicant: Mr A Larkin
Solicitor for applicant: Williams Winter
Counsel for respondent: Mr G PurcellSolicitor for respondent: Advocacy Section, Department of Veterans’ Affairs
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