The Estate of the Late Coralin McGrath and Repatriation Commission (Veterans' entitlements)
[2024] AATA 2070
•25 June 2024
The Estate of the Late Coralin McGrath and Repatriation Commission (Veterans' entitlements) [2024] AATA 2070 (25 June 2024)
Division:VETERANS' APPEALS DIVISION
File Number(s): 2021/3665
Re:The Estate of the Late Coralin McGrath
APPLICANT
AndRepatriation Commission
RESPONDENT
DECISION
Tribunal:Senior Member George
Date:25 June 2024
Place:Adelaide
The decision under review is affirmed.
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Senior Member George
CATCHWORDS
VETERANS – the kind of death of the Veteran – Royal Australian Air Force – whether the Veterans’ death was war caused – multiple myeloma – renal failure – ischaemic heart disease – whether Applicant entitled to a War Widows’ Pension – decision under review is affirmed.
LEGISLATION
Administrative Appeals Tribunal 1975 (Cth)
Veterans’ Entitlements Act 1986 (Cth)
CASES
Collins v Repatriation Commission [2009] FCAFC 90
Hill v Repatriation Commission [2009] FCAFC 91
Repatriation Commission v Deledio (1998) 83 FCR 82
SECONDARY MATERIALS
Statement of Principles concerning myeloma (Reasonable Hypothesis) (No.95 of 2021)
REASONS FOR DECISION
Senior Member George
25 June 2024
Mr Ronald McGrath served in the Royal Australian Air Force as aircrew and as a radio telephone operator between January 1944 and May 1946. After active service in the South-West Pacific, Mr McGrath discharged upon demobilisation. His character on discharge was described as “V.G.”, meaning ‘Very Good’.[1]
[1] Exhibit R1, T-Documents, T4, Royal Australian Air Force Certificate of Service and Discharge.
Mr McGrath married Miss Coralin Sharp in March 1950. Mr and Mrs McGrath had a family. In June 2019, at aged 93 years, Mr McGrath passed away. Mrs McGrath became a widow.
Mr McGrath’s Death Certificate gave his cause of death as “End stage renal failure (years), Light chain nephropathy (years), Multiple myeloma (years)” with the contributary cause of “Interstitial lung disease (years), Coronary artery disease.”[2] Mrs McGrath made a claim for a War Widows’ Pension on the basis that Mr McGrath’s war service caused or contributed to his death.[3]
[2] Exhibit R1, T-Documents, T7.2, Death Certificate.
[3] Exhibit R1, T-Documents, T7.1, Application for War Widows’ Pension.
Following various refusals,[4] the central contention in the current proceedings is that Mr McGrath died of ischemic heart disease,[5] which was caused or contributed to by his exposure to second-hand smoke whilst on duty as a radio operator during the war.[6]
[4] The primary decision is at Exhibit R1, T-Documents, T15, and the decision of the Veterans’ Review Board is at Exhibit R1, T-Documents, T1.1.
[5] Exhibit J1, Our Contention, page 222.
[6] Exhibit R1, T-Documents, T7.5, Exposure to second-hand smoke
The threshold issue for the Tribunal to determine is the ‘kind of death’ suffered by Mr McGrath. Following from this, the Tribunal must determine whether Mr McGrath’s death was ‘war-caused’ within the meaning of section 8 of the Veterans Entitlement Act 1986 (Cth) (“the Act”).
A tragic aspect of this matter is that Mrs McGrath has also since passed away. This application has been continued by her Estate under s 126(1) of the Act.
For the following reasons, the Tribunal has decided that the decision under review is affirmed.
WHAT WAS THE “KIND OF DEATH” SUFFERED BY MR MCGRATH?
The Respondent has summarised the relevant historical medical records from the Perth Cardiovascular Institute and Hollywood Private Hospital in its Amended Statement of Facts, Issues and Contentions. These may be further summarised as follows:
(a)Mr McGrath was diagnosed with coronary artery disease on angiography in 1985. He first underwent cardiac surgery in 1997 with an angioplasty and a stent to his left anterior descending coronary artery. A year later he had a similar surgery with a stent to his right coronary artery. Later that year, cranial scans showed small vessel ischaemic disease.
(b)In January 2000, Mr McGrath was found to have an abdominal aortic aneurysm. In October 2002, Mr McGrath’s proximal right coronary artery was stented. In 2007, an aortic endoluminal stent graft was placed.
(c)In September 2013, Mr McGrath was diagnosed with multiple myeloma. His treatment included chemotherapy.
(d)Between 2002 and 2009, Mr McGrath’s heart was regularly reported as normal. In 2009, an echocardiography showed mild to moderate mitral regurgitation. This was reported to be positive for Mr McGrath’s age. Mr McGrath’s heart continued to be unremarkable until 2016.
(e)In 2016, Mr McGrath presented with recurrent chest pain, increasing fatigue, lower limb swelling and breathlessness. An examination showed evidence of extensive pitting oedema with a raised jugular venous pressure and bilateral chest crackles. He was also diagnosed with bilateral pulmonary fibrosis and chronic renal failure.
(f)In April to mid-May 2019, Mr McGrath was diagnosed with stage five chronic kidney disease with limited therapeutic options. A bone marrow study showed that he still had multiple myeloma.
On 14 May 2019, Dr Andrew McQuillan, a haematologist, wrote a report where he opined that:
“The underlying myeloma is not progressing quickly so one would not necessarily expect a rapid demise although he does have significant other comorbidities, particularly ischaemic heart disease that might be more significant over the short term.”[7]
[7] Exhibit J1, Report of Dr Andrew D McQuillan, page 64.
On 26 May 2019, Mr McGrath was admitted to hospital. He had suffered a fall.
On 9 June 2019, Mr McGrath did not want any further active treatment. His treatment was withdrawn and he was admitted into a hospice.
Mr McGrath passed away on 18 June 2019.
The evidence of Mr McGrath’s son, who is also a medical doctor, Dr McGrath, was to the effect that Mr McGrath’s death was unexpected by his family. Dr McGrath firmly conveyed during his evidence that he did not believe that the medical notes surrounding his father’s death had been examined sufficiently closely by the Respondent. Helpfully, Dr McGrath provided a statutory declaration containing his account of the events leading up to his father’s death. He also provided other evidence about Mr McGrath’s life and tremendous service to the community as, amongst other things, an ambulance officer.
Dr Mr McGrath’s evidence included a discussion with his late mother regarding his late father’s chest pain, which is broadly consistent with hospital notes of 7 June 2019. Dr McGrath reasoned from his direct knowledge of events leading to his father’s death, and the contemporaneous medical records, that his father was not admitted to the palliative care ward due to myeloma or renal failure.
Mr McGrath’s other son, who is also a registered nurse, Mr Neil McGrath, wrote on 19 April 2022 that his father was “not about to die” when he was admitted to hospital, but rather he “was being actively treated with the view to going home”. This only changed after Mr McGrath “requested palliation as he was septic, in pain and tired of living”. From their review of the hospital notes, and informed by their professional backgrounds, both Dr McGrath and Mr Neil McGrath formed the belief that their father’s medical cause of death was “an acute cardiac event due to a known, long-term, worsening and unstable IHD”.[8] In support of this contention the Tribunal notes from the hospital notes that there were “nil concerns” as late as 6:45pm on 17 October 2019, being a matter of hours before Mr McGrath’s death.[9]
[8] Exhibit J1, Submission to the Veterans’ Review Board, page 20.
[9] Exhibit J1, Progress Notes, page 75.
Professor Richard Fox, an oncologist, was called to give expert evidence by the Respondent. He wrote a report dated 21 June 2022 where, materially, he noted the observations of Dr McQuillan.[10] Professor Fox reviewed the voluminous medical records from several hospitals and treating practitioners relating to Mr McGrath. During the hearing, Professor Fox demonstrated a working knowledge of these documents. With leave of the Tribunal, Dr McGrath was permitted to cross-examine Professor Fox.
[10] Exhibit J1, Medical Report regarding Mr Ronald McGrath, page 147.
The substance of Professor Fox’s evidence was that Mr McGrath suffered from multiple myeloma and that he had a history of ischaemic heart disease. In his report, Professor Fox gave the underlying cause of Mr McGrath’s death as “multiple myeloma with associated renal failure due to light chain deposition”.[11] Of note, Professor Fox did not consider ischemic heart disease to be the underlying cause of Mr McGrath’s death.
[11] Exhibit J1, Medical Report regarding Mr Ronald McGrath, page 149.
Professor Fox’s oral evidence was consistent with his written opinion. He was unshaken under cross-examination. The Tribunal places significant weight on the expert evidence of Professor Fox.
Ascertaining Mr McGrath’s kind of death is a question of medical causation. It is determined on the balance of probabilities having regard to the evidence. There may be multiple kinds of death. Indeed, during the hearing the Applicant advanced contentions that Mr McGrath died of multiple myeloma, ischaemic heart disease, and renal atherosclerotic disease.
In Collins v Repatriation Commission [2009] FCAFC 90, at [84], Mansfield and Stone JJ stated:
“… we do not consider that as a matter of law any medical condition which may affect the time of death of a veteran by a measurable period, but does not otherwise play any real role in the pathological changes leading to the death (which are medically ascribed to another medical condition), is a death (that is a medical cause of death) or a kind of death under the VE Act. The medical cause or causes of death are to be determined by the relevant decision-maker on the evidence.”
Similar considerations were made by Mansfield, Stone and Edmonds JJ in Hill v Repatriation Commission (2009) FCAFC 91.
On the evidence before it, the Tribunal is satisfied that Mr McGrath was being treated with a view of going home and that his death on 18 June 2019 was unexpected. The Tribunal is also satisfied that Mr McGrath had chest pain at times in the weeks before his death. However, there is also no objective evidence that Mr McGrath suffered an acute cardiac event on, or about, 18 June 2019. Indeed, the objective evidence is insufficient to reasonably satisfy the Tribunal that Mr McGrath’s ischaemic heart disease played a real role in the pathological changes leading to his unexpected death. Furthermore, the Tribunal is not reasonably satisfied renal atherosclerotic disease played any role in Mr McGrath’s death.
Placing greatest weight on the evidence of Professor Fox, the Tribunal is satisfied that it was multiple myeloma that played the real role in the pathological changes leading to Mr McGrath’s death. For the purposes of the Act, this condition was Mr McGrath’s kind of death.
Conclusion:
Mr McGrath’s kind of death was multiple myeloma.
WAS MR MCGRATH’S DEATH “WAR-CAUSED”?
Section 8(b) of the Act provides that Mr McGrath’s death shall be taken to be war caused if it arose out of, or was attributable to, his war service.
Section 13 of the Act provides that if Mr McGrath’s death was war-caused, the Commonwealth is liable to pay compensation to his dependents. The late Mrs McGrath was a dependent within the meaning of section 11.
Sections 120 and 120A of the Act provide a standard of proof and method for determining whether there is a relationship between Mr McGrath’s death and his war-service. Applying the standard of proof, subsections 120(1) and (3) of the Act provide that where Mr McGrath has rendered “operational service”, his death will be found to be service related if there is a “reasonable hypothesis” connecting the injury, disease or death to service. As subsections 120A(3) and (4) of the Act apply, a hypothesis connecting Mr McGrath’s death with service will be reasonable if there is a Statement of Principles in force that upholds the hypothesis.
In Repatriation Commission v Deledio (1998) 83 FCR 82, the Full Court described the four-stage approach to the application of sections 120 and 120A of the Act. Only the first step is relevant in this matter.
Step 1: Raising a Hypothesis
The hypothesis raised is that Mr McGrath died from ischaemic heart disease, caused by his exposure to second hand smoke, which was related to his war service. For reasons that have already been given, ischaemic heart disease is not a kind of death suffered by Mr McGrath. Similarly, renal atherosclerotic disease is not a kind of death suffered by Mr McGrath.
Multiple myeloma was not a hypothesis pressed by the Applicant during the hearing. In any event, the evidence before the Tribunal does not connect Mr McGrath’s myeloma with his war service.
Conclusion: Step 1
The evidence does not raise a hypothesis that the death of Mr McGrath was war-caused.
Accordingly, the Tribunal must affirm the decision under review.
DECISION
The decision under review is affirmed.
I certify that the preceding 33 (thirty-three) paragraphs are a true copy of the reasons for the decision herein of Senior Member George
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Date of Decision: 25 June 2024
Date of Hearing: 9 May 2024 Advocate for the Applicant:
:
Mr Ken Cullen
Gaythorne RSLSolicitor for the Respondent: Mr Ashley Burgess
Australian Government SolicitorEXHIBIT REGISTER
EXHIBIT
DESCRIPTION OF EVIDENCE
PARTY
DATE OF DOCUMENT
DATE RECEIVED
DATE TENDERED
J1
Abridged Book of Relevant Documents:
· Applicant’s Evidence
· Respondent’s Evidence
· Statement of Principles
· Applicant’s Statement of Facts, Issues and Contentions
· Respondent’s Statement of Facts, Issues and Contentions
J
21/2/2024
22/3/2024
9/5/2024
J2
Joint Bundle of Authorities
N/A
8/5/2024
MFI2
Bundle of Summonsed Records
N/A
R1
T-Documents
R
N/A
6/7/2021
R2
Western Diagnostic Pathology Reports (6 pages)
3/12/2018, 6/11/2018, 30/01/2019, 31/12/2018, 25/03/2019, 20/05/2019
8/5/2024
R3
Western Diagnostic Pathology Reports (2 pages)
30/11/2018, 17/05/2019
8/5/2024
0
2
0