Telford and Repatriation Commission - [2000] AATA 816

DECISION AND REASONS FOR DECISION [2000] AATA 816

ADMINISTRATIVE APPEALS TRIBUNAL )

) No V1999/0472

VETERANS' APPEALS DIVISION          )
           Re      NANCY TELFORD
  Applicant
           And    REPATRIATION COMMISSION
  Respondent

DECISION

Tribunal Mr J. Handley, Senior Member

Date13 September 2000
PlaceMelbourne

Decision The decision under review is set aside and in substitution it is decided that the death of Gerald Henry Telford was war-caused.

…Sgd. Mr J. Handley…
Senior Member

VETERANS' ENTITLEMENTS: Widows application; Chronic Bronchitis an accepted disability in the lifetime of deceased; Whether it contributed to death; whether it contributed to pneumonia predisposing death; whether contribution more than de minimus; decision set aside.
Veterans' Entitlements Act 1986 s8(1)(f)
Repatriation Commission v Bendy 1990 18 ALD 144
Ashdown and Repatriation Commission 1992 28 ALD 247

REASONS FOR DECISION

13 September 2000 Mr J. Handley, Senior Member

The applicant applies to review a decision of the Veterans' Review Board made on 9 February 1999 which affirmed the decision made by the Repatriation Commission on 16 February 1998 to refuse her application for payment of Widows' Pension following the death of her late husband Gerald Henry Telford on 21 August 1997.
Mr Telford died whilst a patient of the Bethlehem Hospital from causes certified in a death certificate (T11) as "pneumonia – 2 days, metastatic prostrate carcinoma – 10 years; hypertension".
Mr O'Brien of Counsel appeared on behalf of the applicant and Mr Douglass appeared on behalf of the Commission. Dr Byron Collins a Consultant Pathologist gave evidence on behalf of Mrs Telford and Professor Cade, the Director of Intensive Care at Royal Melbourne Hospital gave evidence on behalf of the respondent.
At the time of the deceased's demise, the condition of chronic bronchitis was accepted as war-caused. The relevance of this illness will hopefully become apparent later in these reasons.
The deceased served within Australia only and his service may be regarded as "eligible" for the purposes of the Veterans' Entitlements Act 1986 (the "Act"). Accordingly the standard of proof to be applied is balance of probabilities.
It was alleged that a relationship existed between service and the death of Mr Telford as follows:

a war-caused smoking habit precipitated chronic bronchitis which influenced the development of pneumonia which was the terminal illness. (Dr Byron Collins said that chronic bronchitis should have been recorded on the death certificate as the cause of death.)
The deceased's diet within service precipitated a consumption of animal fat and increased body weight which in turn had a relationship with the development of prostrate cancer.

The relevant statement of principles are as follows:

(a)Instrument No. 192 of 1996 entitled "Malignant Neoplasm of the Prostrate". The applicable Factor was 1(a) which reads as follows:
"increasing animal fat consumption by at least 40% and to at least 70gm/day for at least 25 years before the clinical onset of malignant neoplasm of the prostate".
(b)Instrument No. 74 of 1997 entitled "chronic bronchitis and emphysema" the applicable factor was submitted to be Factor 5(a)(ii) being:
"smoking at least 15 pack years of cigarettes or the equivalent thereof in other tobacco products before the clinical onset of chronic bronchitis and where smoking has ceased the clinical onset has occurred within one year of cessation."

The latter statement of principle assumed little relevance in these proceedings when it was understood that the deceased had had the condition of chronic bronchitis accepted as war-caused in his lifetime.
Mr O'Brien referred to s8(1)(f) of the Act which reads:
"Subject to this section for the purposes of this Act the death of a veteran shall be taken to have been 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 s9 to have been a war-caused injury or a war-caused disease as the case may be."

Issue was taken with this section being relevant to determine the entitlement of Mrs Telford by Mr Douglass because it was put on behalf of the respondent that the condition of chronic bronchitis did not contribute to the death of Mr Telford.
Dr Byron Collins and Professor Cade gave evidence only on the issue of the relationship between death and the condition of chronic bronchitis. Mrs Telford gave evidence as to her husband's diet subsequent to service but for reasons which will briefly be summarised below I am not satisfied on the balance of probabilities that the elements making up Factor 1(a) of Instrument No. 192 of 1996 can be made out. It was put by Mrs Telford that her husband lived in impoverished and modest circumstances prior to service on a family farm in outer Melbourne. It was said that he and his family lived principally from wild game yet upon enlistment her husband commenced to consume fatty foods which thereafter the applicant enjoyed principally being full cream milk, butter, cheese, fatty meat, gravies, sauces and deserts. It was said that the applicant increased his body weight by 18% during service yet Mrs Telford did not meet her husband until 1953 and did not marry him until 1975. The applicant's solicitors apparently obtained an opinion from Ms Alison Wailes, a consultant dietician yet that report was not filed or exchanged. Mr Douglass submitted that I should draw an adverse inference against the failure to lodge the report. That conclusion is almost inescapable. Additionally, the respondent relied on research papers completed by Messrs Kenardy and English lodged with the Tribunal in April this year. Those papers discuss the animal fat content of typical Australian diets pre and post war.
I am not satisfied on the balance of probabilities that the deceased did increase his animal fat consumption by at least 40% and then to at least 70 grams per day for at least 25 years before the clinical onset of prostrate cancer. In fairness to Mrs Telford, she was able to give only limited detail as to her husband's pre-service diet. That he lived in impoverished circumstances does not convert into a permissible finding of low animal fat in the pre-service diet sufficient to permit a conclusion that animal fat consumption did increase by at least 40% by reason of service. Additionally, there is little to permit me to become satisfied that on the balance of probabilities the rations and food made available during service was responsible for the applicant consuming foods after service and for at least 25 years which had 40% greater animal fat and then to at least 70 gms per day.
These conclusions were all but conceded by Mr O'Brien during the hearing and fortunately the focus of the review concerned the relationship between the accepted condition of chronic bronchitis and its contribution – if any – to the demise of Mr Telford.
byron collins
Dr Collins is a consultant forensic pathologist. He provided two reports at the request of the applicant on 12 July 1999 and 8 February 2000. He gave his evidence at a point in time before Mrs Telford gave her evidence.
In his first report he concluded that the death certificate was incomplete because chronic bronchitis had been omitted. He reported that the presence of long standing chronic bronchitis would lead to the "alteration in the normal anatomical structure of the respiratory tree as manifested by:

enlargement of glands within the bronchial walls especially those which secrete mucus
retention of mucus in smaller airways with accompanying mild dilation/emphysema and
increase in mucosal goblet cells and a tendency to replacement of the ciliated epithelium with squamous epithelium (squamous metaplasia)".

Dr Collins concluded that these abnormalities "markedly predisposed" an individual with chronic bronchitis to acute chest infections, such as pneumonia, because of colonisation of micro organisms compared to a person who had a normal respiratory tree. He concluded that it "could be robustly argued on sound pathological grounds that the deceased's condition of chronic bronchitis in all probability pre-disposed him to developing the fulminating episode of pneumonia from which he succumbed and therefore it could be regarded as a significant contributory factor which hastened the death".

In his report of 8 February 2000 Dr Collins had reviewed clinical notes of the Bethlehem Hospital. He reported the following conclusions following review of these notes.
"1.The clinical notes relating to the late veteran's terminal hospital admission contained multiple entries describing, inter alia shortness of breath and productive cough. These symptoms are consistent with the presence of his underlying condition of chronic bronchitis although they may have other contributing causations.
2.It is important to note that the development of left sided lobar pneumonia on the day prior to death was aggressively but unsuccessfully treated with physiotherapy and intravenous antibiotics."

Dr Collins concluded that he remained of the opinion that the condition of chronic bronchitis should have been included on the death certificate and that it had contributed to the death of Mr Telford.
Dr Collins was asked to assume that Mrs Telford would give evidence that for 24 years after the deceased ceased smoking (in 1973) that he had ongoing attacks of bronchitis involving coughing, shivering, bed rest, attendance by doctors, medication and a rasping voice with attacks of this nature becoming more frequent in recent years. He was asked to assume also that the deceased was increasingly short of breath, was able to walk short distances only before rest and eventually ceased recreations of golf and fishing. He was asked to assume that the deceased was frequently using "puffers" (similar to that used by asthmatics) for 4 or 5 years before his death and had in the month before death been provided with an oxygen machine at the expense of the Repatriation Commission.
Dr Collins concluded having heard these symptoms that the deceased must have had significant chronic bronchitis.
When asked to expand on the conclusions recorded in his report of 8 February 2000, Dr Collins said that the deceased obviously had life threatening and a potentially fatal prostrate cancer which had metastasised to his bones, organs and to his lungs. He acknowledged that the deceased's shortness of breath in part would have been because of the presence of the cancer but also because of his underlying bronchitis. Dr Collins noted from the Bethlehem Hospital notes that the persons admitting the deceased could not have held any reasonable expectation that the late Mr Telford would have eventually died. He drew these conclusions because he noted that the deceased was treated with antibiotics, physiotherapy and nebulizers which he described as the "big guns of treatment". He said treatment of this type was inconsistent with that usually administered in palliative care where the intention is not to cure but to minimise effects. He concluded that the deceased must have had a quality of life at the time of his admission to Bethlehem Hospital which would have suggested to hospital staff that his life could have been prolonged. In those circumstances he concluded that the deceased's bronchitis would have contributed to his death.
Dr Collins was aware of conclusions reported by Professor Cade. He disagreed that the deceased was admitted "as a dying man" and said that the deceased was not admitted for palliative care.
In cross-examination Dr Collins agreed with notes found within the Bethlehem Hospital that the shortness of breath reported would be in part caused by the cancer but in part also by the bronchitis. He agreed that it was unlikely that the deceased would have recovered from the secondary deposits within his lungs but he held the view that the deceased's death had been hastened by the presence of chronic bronchitis.
When he was pointed to notes of the Peter McCallum Cancer Institute found within the Bethlehem Hospital file which recorded on 7 July 1997 an increased presence of secondary cancer deposits in the applicant's lungs and on 15 July to have boney tenderness and a fluid diet only, Dr Collins said that the deceased did not then have a limited life expectancy nor could it be said that death was imminent because the deceased did not die until 21 August 1997, some 5 or 6 weeks later.
Dr Collins said that he was not pointing to anything specific when assessing the severity of the deceased's bronchitis but said that the deceased had a "predisposing condition making him less likely to resist infection". He said that he could not apportion how much of the clinical manifestations of shortness of breath and cough were due to bronchitis or due to the cancer lesions in his lungs. When asked to comment on the infrequent references in the notes of the general practitioner to chronic bronchitis, Dr Collins said that the recording of such symptoms would depend on the doctor's record keeping, the significance to the doctor of those symptoms and the purpose of making those recordings. Nonetheless Dr Collins referred to pages 3, 11, 14 and 114 of the doctor's notes referring to shortness of breath and chronic bronchitis.
Dr Collins was of the opinion that the provision to Mr Telford of an oxygen machine would not have been only because of the presence of lung cancer but rather to relieve the difficulty the deceased would have had with breathing.
nancy margaret telford
Mrs Telford is the widow of the deceased veteran. She had prepared two statements prior to the commencement of the hearing which were received into evidence. The statements largely were confined to the deceased's diet which, for reasons given earlier, need not be reproduced.
Between 1973 when the deceased ceased smoking and 1997 when he was admitted to Bethlehem Hospital Mrs Telford said that her husband had 2 or 3 severe bouts per year of bronchitis. She described his symptoms as being short of breath, shivering and coughing which confined him to bed, caused him to take medication and frequently call for a doctor. She noted that the attacks of bronchitis progressively worsened over the years until his shortness of breath restricted him to the extent that he was forced to give away playing golf in the early 1990s and fishing until about 12 or 18 months before his death. She recalled that her husband was able to walk up to 1 km per day but took his puffer with him. She said the puffer had been prescribed to him from the early 1990s and he would use it even without the presence of bronchitis. Approximately 6 or 7 months before his death he applied to the respondent for provision of an oxygen machine which was ultimately supplied about 2 months before he died.
Mrs Telford said that when in hospital her husband was administered oxygen daily and there were days when he seemed better than others. She recalled that about 2 or 3 days before his death a doctor had suggested to her and Mr Telford that he return home on a "trial". It was said that it would be in the deceased's interests to return home. Mrs Telford recalled that this was on a Monday yet by the following Thursday her husband had died. Apparently her husband contracted pneumonia on the day before his death.
Mrs Telford said that she was never told that her husband was admitted to Bethlehem as a hospice or on the basis that he would ultimately die. She said she never understood that his death was imminent.
In cross-examination Mrs Telford said that her husband was never diagnosed by his doctors with having colds or flu but was always diagnosed as suffering bronchitis.
When asked the reasons why Dr Elisha, the family GP, had recommended provision of an oxygen machine, Mrs Telford said that she understood it was because the deceased's puffers and nebulizer were not satisfactory to his deteriorating health. She was not aware that it may have been provided because of his increase in shortness of breath by reason of secondary deposits in his lungs.
JOHN CADE
Professor Cade is the Director of Intensive Care at the Royal Melbourne Hospital. He has been in practice for many years, has specialist qualifications in thoracic medicine and had written textbooks on the subject. He provided a report at the request of the respondent on 28 January 2000. The report was prepared following review of the T Documents and the notes of Dr Elisha and the Bethlehem Hospital.
In his report (Page 2) Dr Cade recorded:
"by 1997 he had wide spread metastases in bone, liver and lung. On 2 August he was admitted to Bethlehem Hospital for respite care and pain management. On 20 August he was noted to have increasing dyspnoea, brown sputum and sweating and a diagnosis of left pneumonia was made."
Professor Cade said in evidence that the deceased was obviously at a stage where his cancer was resistant to treatment and he was suffering from advanced and terminal disease. He said the Bethlehem Hospital specialises in palliative care and is sometimes referred to as a hospice. He noted from the records that the deceased was becoming increasingly uncomfortable, was in pain and was on a fluid only diet. He concluded that the "increase in dyspnoea" was because of the pneumonia suffered by the deceased.
Professor Cade concluded that the bronchitis was not a major concern of the deceased because it was not reported to the hospital on admission. Professor Cade also concluded that chronic bronchitis was not perceived by the deceased's medical practitioner as being an important health issue yet he agreed with the opinion of Dr Collins that chronic bronchitis should have been recorded on the death certificate.
In his report Professor Cade agreed with Dr Collins that chronic bronchitis could have predisposed the deceased to pneumonia because "chronic bronchitis predisposes to acute chest infections and it is possible that the patient's terminal pneumonia may have had such a basis". Nonetheless Professor Cade was also of the opinion that the deceased was then suffering from terminal cancer with secondary lung deposits which would have also compromised his lung capacity.
Professor Cade was referred to the evidence of Dr Collins who doubted that the administration of antibiotics, nebulizers and physiotherapy was consistent with the treatment of a person who was in palliative care. Professor Cade said that physiotherapy and nebulizers are frequently administered for a patient's comfort and because of possible hypoxia. He said it would be cruel to a patient to deny this treatment. He thought that antibiotics in the circumstances would be inappropriate. When asked whether he thought that the deceased was "destined to die" Professor Cade said that it would depend on the "philosophical appropriateness of the doctor, particularly junior medical staff". When asked to comment upon the evidence of Mrs Telford that the deceased had been offered the opportunity to return home Professor Cade said that he did not observe any note of this in the Bethlehem records yet a comment of this type – if it existed – would suggest that the deceased had become "stable" and in his experience where a patient has a wish to return home they should be encouraged to do so. Nonetheless Professor Cade said that the notes that he observed recorded that the deceased was approaching a rapid conclusion to his life.
Professor Cade continued to maintain the view that the deceased's death was inevitable by reason of the cancer and supported this conclusion by comments made by the deceased's treating oncologist Dr Sandeman where, in a report within the Bethlehem notes, recorded that all available treatment had been exhausted and survival was unlikely in the absence of a "miracle". Additionally he noted from an xray report of lesions within the applicant's chest that the metastases spread was so broad that the cancer was out of control, the illness was terminal and that it was more than likely that in the absence of chronic bronchitis the deceased would have had respiratory distress and chest infections. He said oxygen would have been administered to the deceased because of probable hypoxia, not because of bronchitis.

In cross-examination Professor Cade was appraised with the evidence of Mrs Telford who said that her husband had lived with chronic bronchitis "for a long time", had it treated as and when required and that it had become a major part of his life but was not at admission a significant illness. Professor Cade agreed that this was a plausible explanation for the apparent failure to mention it to Bethlehem Hospital on admission.
Professor Cade said that the administration of antibiotics to a patient who was dying will do no more than decrease symptoms and make the patient comfortable prior to death. He regarded the treatment and management of the deceased as one of "timing". He did agree that chronic bronchitis would pre-dispose pneumonia and agreed also that it should have been recorded on the death certificate because it was an illness or injury that did contribute to death. It was his opinion that the deceased died when he did by reason of the contribution to pneumonia by the chronic bronchitis. That is to say that death was brought forward in point of time if only for a few days.
conclusion and reasons for decision
For the reasons given above I am not satisfied on the probabilities that a connection exists between the deceased's service and his prostrate carcinoma. On the probabilities I cannot be satisfied that Factor 1(a) of Instrument No. 192 of 1996 "exists". That part of the application must fail.
The substantial issue in dispute was the relationship between death and the war-caused accepted disability of chronic bronchitis.
The parties agreed that the starting point for this analysis is s8(1)(f) of the Act. Mr O'Brien contended that the accepted condition of chronic bronchitis was a disease which had been determined to have been war-caused and it was the condition from which the deceased died. Mr Douglass acknowledged that chronic bronchitis had been accepted as war-caused but Mr Telford had not died from it.
Both medical witnesses were in agreement that chronic bronchitis was a cause of death and should have been recorded on the death certificate. Both doctors also agreed that chronic bronchitis contributed to the pneumonia which ultimately was the cause of the demise of the deceased. Both doctors agreed that death was inevitable by the prostrate cancer and its spread to other organs yet whilst Professor Cade said that death was imminent Dr Collins was of the opinion that the deceased "had a quality of life that could be prolonged". Both Mr O'Brien and Mr Douglass agreed that s8(1)(f) required that the war-caused injury or disease (chronic bronchitis) must have at least contributed to death. Mr O'Brien submitted that there was a contribution to death by it. Mr Douglass said that there was not or that any contribution was no more than de minimus and was not sufficient to establish, as a probability that the deceased died from the accepted war-caused injury.
Having read the documents filed and having listened to the witnesses I am satisfied and find as a fact as follows:

The terminal event was pneumonia;
There was a contribution to pneumonia by the chronic bronchitis;
The contribution to pneumonia by the bronchitis was more than de minimus;
The death of the deceased was accelerated by the pneumonia. That is to say were it not for the pneumonia occurring at the time that it did the deceased would have survived for a longer period;
On the evidence of Professor Cade that the deceased may have survived for up to one week were it not for the contribution to the pneumonia by chronic bronchitis I am satisfied that the death being brought forward in point of time by one week was more than a contribution which could be regarded as de minimus.

There can be no doubt that the deceased was seriously ill. Similarly there can be no doubt that his lungs were severely compromised by the presence of the prostrate cancer having metastasised into his chest and lungs. However it can not be in doubt that the deceased's lungs were severely compromised by the pre-existing chronic bronchitis and his risk of infection (refer evidence earlier of Dr Collins). Whilst there is little doubt on the agreed evidence of Professor Cade and Dr Collins that pneumonia is frequently the terminal event in a patient who is severely ill and who will inevitably collect fluids precipitating infection giving rise to pneumonia, the deceased (as was the opinion of Dr Collins in his first report) was markedly predisposed "to the development of acute chest infections, such as pneumonia consequent upon colonisation by micro organisms as compared with a person in whom the respiratory tree is normal". Dr Collins said that the deceased was administered with intravenous antibiotics because of the intention to treat infection because it could not be regarded by interpreting the Bethlehem notes that death was imminent. Professor Cade said that intravenous antibiotics were administered to reduce the symptoms and to make the patient more comfortable despite death being imminent. I prefer on balance the evidence of Dr Collins. There is nothing in the notes which would indicate that death would have occurred or was likely to have occurred at the point in time it did and I am satisfied that death was accelerated by the effects of chronic bronchitis.
In Repatriation Commission v Bendy 1990 18 ALD 144 Davies J at 146 said (when discussing materiality in the context of contribution)
"that a contribution which is de minimus, which did not influence the course of events or which is so tenuous as to be immaterial is to be ignored."
His honour did qualify his conclusions by recording that materiality need not be considered because it was not a concept found within the applicable section of the Veterans' Entitlements Act. Nonetheless I am satisfied on the evidence heard that the contribution by chronic bronchitis to the development of pneumonia did influence the inevitable course of events (the deceased's death) and that that contribution was more than tenuous and was more than immaterial. It was a contribution in my view which could not be ignored (refer also re Ashdown and Repatriation Commission 1992 28 ALD 247).
For the reasons given above the decision under review will be set aside.

I certify that the preceding fifty (50) paragraphs are a true copy of the reasons for the decision herein of Mr J. Handley, Senior Member
Signed:    Linda Nemeth    ............................................
                 Secretary
Date of Hearing  22 August 2000
Date of Decision  13 September 2000
Counsel for the Applicant        Mr Michael O'Brien
Solicitor for the Applicant         De Marchi & Associates
For the Respondent                 Mr Robert Douglass (Departmental Advocate)