Wheeler and Repatriation Commission
[2008] AATA 616
•16 July 2008
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2008] AATA 616
ADMINISTRATIVE APPEALS TRIBUNAL )
) No N2006/1697
VETERANS' APPEALS DIVISION ) Re PAULINE WHEELER Applicant
And
REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Senior Member, Mrs Josephine Kelly
Dr MEC Thorpe, MemberDate16 July 2008
PlaceSydney
Decision The reviewable decision is affirmed. ...................[sgd]...................
Presiding Member
Senior Member, Mrs Josephine Kelly
CATCHWORDS
VETERANS’ AFFAIRS – claim for war widow's pension – eligible service conceded – kind of death – whether veterans’ death war-caused – Statement of Principles concerning Chronic Bronchitis & Emphysema relied on - death certificate stated underlying cause metastatic prostate cancer and cardiopulmonary arrest – medical evidence considered – held kind of death metastatic prostate cancer – death not caused by accepted condition coronary artery disease – reviewable decision affirmed
Administrative Appeals Tribunal Act 1975, s 37
Veterans’ Entitlements Act 1986, ss 8, 196B, 120, 120B, 196B
Statement of Principles concerning Chronic Bronchitis and Emphysema (No. 31 of 2004)
Repatriation Commission v Hancock (2003) 37 AAR 383
Repatriation Commission v Codd (2007) 95 ALD 619
REASONS FOR DECISION
16 July 2008 Senior Member, Mrs Josephine Kelly
Dr MEC Thorpe, Member1. Mr John Wheeler served in the Australian Army between 30 July 1942 and 7 March 1946, which is eligible war service within the meaning of the Veterans' Entitlements Act 1986 (the Act). He died on 20 September 2005. On 22 December 2005, his widow, Mrs Pauline Wheeler, applied for a pension in respect of his death. Her application was refused on 17 January 2006 by a delegate of the Repatriation Commission who determined that Mr Wheeler's death was not war-caused. That decision was affirmed by the Veterans' Review Board on 29 November 2006. Mrs Wheeler seeks review of the decision as affirmed.
2. Mr Wheeler had one accepted disability, coronary artery disease (CAD).
THE ISSUES
3. The issues in these proceedings are:
a) What was the kind of death suffered by Mr Wheeler, and, having determined that question;
b) Was Mr Wheeler's death relevantly connected to his service?
c) Alternatively, did Mr Wheeler die from his accepted condition, coronary artery disease (see s 8(1)(f) of the Act)?
BACKGROUND
4. Recorded on the Death Certificate, under the heading “Cause of Death and Duration of last illness,” was the following:
Part I
Cardio pulmonary arrest, seconds
Metastatic prostate cancer, 3 years
Part II
Chronic airway limitation
Chronic atrial fibrillation, years
Probable pneumonia, days
5. Where a veteran has eligible service, the standard of proof to be applied to determine whether a death was war-caused is reasonable satisfaction (s 120(4) of the Act). However, when a claim is made after 1 June 1994, s 120B qualifies that provision. Section 120B requires that the material before the relevant decision-maker raise a connection between the death of the person and the particular service rendered, and that there is in force relevantly a Statement of Principles (SoP) determined under s 196B(3) of the Act that upholds the contention that the death of the person is connected with that service.
6. The first question to determine is what was the kind of death? That is to be determined on the balance of probabilities: Repatriation Commission v Hancock (2003) 37 AAR 383 at [9].
7. As held in Hancock at [8], there may be multiple medical conditions that cause a death. Accordingly, there may be more than one “kind of death” for the purposes of section 120B of the Act, and therefore more than one Statement of Principles that is applicable to the death suffered by the veteran: Hancock at [11]-[13]. See also Repatriation Commission v Codd (2007) 95 ALD 619; [2007] FCA 877 at [22].
8. However, s 8(1)(f) of the Act provides that where a veteran dies from an injury or disease that has been determined to be war-caused under section 9 of the Act, the death is taken to be war-caused, and section 120B of the Act is not to be applied to the claim. Relevantly, Mr Wheeler's CAD had been determined to be war-caused pursuant to s 9 and, therefore, if we find that he died from CAD, s 120B does not apply. That is, any relevant SoP would not have to be satisfied.
THE CASE PUT FOR MS WHEELER
9. Mr Vincent, counsel appearing for Mrs Wheeler, argued that there was more than one kind of death in this case. He argued the kind of death which was relevantly connected to service was a respiratory condition, variously described, including as chronic bronchitis. The further argument put by Mr Vincent was that Mr Wheeler's death was war-caused because he died of CAD, which is an accepted condition (see s 8(1)(f) of the Act above).
10. The SoP relied upon was for Chronic Bronchitis and Emphysema (No. 31 of 2004). The relevant factor that must exist before it can be said that the condition is connected with the circumstances of a person's service is 5(a) which provides:
smoking at least ten pack years of cigarettes, or the equivalent thereof in other tobacco products, before the clinical onset of chronic bronchitis and/or emphysema.
11. Mr Vincent did not rely on metastatic prostate cancer as a "kind of death". He conceded that no factor in the relevant SoP could be satisfied.
12. Mr Vincent argued that Codd is authority for the proposition that the question to be answered is which medical conditions played a causative role in death, that is, which is material, not de minimus.
13. Following is an extract from the Amended Statement of Facts and Contentions filed on behalf of Mrs Wheeler which sets out the case clearly. Evidence from Dr Mark Burns, Occupational physician, and Dr Michael Burns, Specialist Chest Physician, was relied on. They are referred to as "the Drs Burns".
The opinions of the Drs Burns are to the effect that the late veteran suffered from a respiratory condition caused or contributed to by smoking. The respiratory condition may be diagnosed as chronic bronchitis, chronic obstructive pulmonary disease (COPD), chronic obstructive airways disease (COAD), or chronic airways limitation.
The opinion of the Drs Burn is that the respiratory condition suffered by the late veteran had a causative role in his death.
This is supported by the death certificate which at Part II lists “chronic airway limitation” and “probable pneumonia..
The Australian Bureau of Statistics Information Paper Cause of Death Certification[1] details the manner by which a death certificate is to be completed. Conditions appearing at Part II of a death certificate are “other significant conditions which, although not included in the sequence in Part I, contributed to the fatal outcome” (at page 7). A Part II condition thereby has a causative role in death.
[1] Australian Bureau of Statistics, Information Paper, Cause of Death Certification Australia 2004 (2005).
The Applicant also relies upon the Australian Bureau of Statistics publication Multiple Cause of Death Analysis, 1997-2001[2] This document discusses analysis of mortality data by reference to both the “underlying cause of death” and “associated causes of death”, being “any cause listed on the death certificate other than the underlying cause”: see Appendix III. Glossary of terms.
The “underlying cause of death” of the late veteran was prostate cancer. The “associated causes of death” of the late veteran included “chronic airway limitation” and “probable pneumonia”.
The Applicant contends that since Part II conditions contribute to death, but are not in the sequence of conditions in Part I of a death certificate, they too may constitute “kinds of death” within the meaning of section 120B of the Act.
The only Statement of Principle currently in force that addresses the type of respiratory condition suffered by the late veteran is Statement of Principle . No. 31 of 2004 concerning Chronic Bronchitis and Emphysema. By factor 5(a) of that instrument, it can be said on the balance of probabilities that chronic bronchitis and emphysema is connected with service there is a history of smoking at least 10 pack years of cigarettes before the clinical onset of chronic bronchitis and/or emphysema.
The required smoking history and time of onset is satisfied.
In addition, the late veteran had coronary artery disease accepted as war-caused.
Dr Michael Burns is of the opinion that the veteran’s war-caused condition of coronary artery disease contributed to the late veteran’s death. Coronary artery disease is thereby also a cause of death.
…
The Applicant therefore contends that the material before the Tribunal should satisfy the Tribunal that the (kind of) death of the late veteran included death from a war-caused respiratory condition in the nature of chronic bronchitis, COPD, COAD, or chronic airways limitation, and that the death of the veteran also included death from coronary artery disease.
The decision under review should be set aside and a decision made that the Applicant is entitled to be paid widow’s pension with effect from 22 September 2005.
[2] Australian Bureau of Statistics, Multiple Cause of Death Analysis, 1997 – 2001 (2003).
14. In particular, the following extracts from the expert medical reports were relied upon by the Applicant.
Dr Michael Burns opines in his report of 1 March 2007:
There is no doubt that he had a prostate cancer with painful metastatic disease. He required narcotic analgesia which would have been a potential hazard in an ex-smoker with a long history of dyspnoea and a history of recurrent chest infections including pneumonia. I could find no evidence in the files to indicate that the prostate cancer was the immediate or primary cause of death although it set the scene for other factors to have actually caused the demise…
It is likely in my opinion that Mr Wheeler did have COPD as the cause of his dyspnoea. Then, when he developed what appears to be sputum retention looking like recurrent pneumonia, his oral narcotics would have depressed his respiratory drive and cough reflex. He appears to have died a respiratory death, complicating of course his advanced prostatic disease. His cardiac failure would have hastened his demise. In other words his service-related coronary disease and COPD were large factors in causing the actual demise in a person debilitated by prostate cancer.
In his report of 8 July 2007 Dr Michael Burns opines:
There are numerous reports in the literature concerning the decline in respiratory function which we all experience as we grow older, with that rate of decline being steeper in smokers, the steepness being related to the amount smoked. That decline in their case is due to COAD. Rennard and Vestbo think almost all smokers develop some airflow limitation.
It is highly likely therefore that Mr Wheeler too had chronic airflow limitation.
I … am of the strong opinion that his smoking-caused condition was a factor in the timing and mode of his demise.
Dr Mark Burns, in his report of 1 February 2007 opines:
It is likely in my opinion that Mr Wheeler did have COPD as the cause of his dyspnoea. Then, when he developed what appears to be sputum retention looking like recurrent pneumonia, his oral narcotics would have depressed his respiratory drive and cough reflex. He appears to have died a respiratory death, complicating of course his advanced prostatic disease. ….
Certainly his pneumonia and also chronic bronchitis would have been a contributing factor to his death. I believe though that it was only a relatively minor factor.
…
I believe the diagnosis for his chest condition is probably chronic bronchitis, rather than chronic airways limitation. … I believe that Mr Wheeler’s smoking habit from 1942-1957 which in total was 21 pack years would have given a minor contribution to his development of chronic bronchitis. I would therefore say it did contribute to his chronic bronchitis.
…
I believe the main respiratory condition, which contributed to his death was actually the development of a severe chest infection. … Certainly his chronic bronchitis may have made him more susceptible to developing the chest infection… Therefore certainly his respiratory condition predominantly, the pneumonia would have contributed to his death.
15. Following is additional relevant material from the reports of the Drs Burns. In his report of 1 March 2007, Dr Michael Burns stated:
Coronary Artery Disease. The atrial fibrillation is likely, in my opinion, to have been the result of his coronary artery disease, but that arrhythmia did not of itself cause the death. There may have been other causes for the gross leg oedema, eg nutritional, but cardiac failure was probable in my opinion and his coronary artery disease the likely cause. Deep vein thromboses were possible but unlikely in someone on warfarin anticoagulation.
16. In a report dated 28 November 2007, Dr Michael Burns stated that he had:
no doubt that (Mr Wheeler's) accepted condition, coronary heart disease, hastened his death. I also believe the he had chronic bronchitis and emphysema. Both of these conditions contributed to the demise of a man debilitated by metastatic prostate cancer. Dr Burns also stated that there was no evidence that Mr Mr Wheeler had a cardiac or cardiopulmonary arrest, I think he just faded away due to a multiplicity of co-existing causal and contributory factors.
17. It was unclear whether Mr Vincent relied on the following statement from Dr Mark Burns report, which appeared to be crossed out in the Applicant’s amended statement of facts and contentions:
His cardiac failure would have hastened his demise. In other words his service related coronary disease and COPD were large factors in causing the actual demise in a person debilitated by prostate cancer.
CONSIDERATION
18. The Applicant, Mrs Wheeler, did not give evidence at hearing. The resolution of the issues before us depends on our consideration of the medical evidence. In addition to the material in the documents provided pursuant to s 37 of the Administrative Appeals Tribunal Act 1975, we had before us reports from Dr Mark Burns, Dr Michael Burns, Associate Professor Breslin, Consultant Thoracic Physician, and Professor Levi, Consultant Physician specialising in the field of Medical Oncology. We also heard oral evidence from the latter three doctors. We have set out, in summary form above at paragraphs [13] – [17], the opinions of the Drs Burns.
19. We did not understand that there was any dispute that Mr Wheeler satisfied factor 5(a) of the SoP for Chronic Bronchitis and Emphysema in terms of his smoking history. In any event we find that the evidence is quite clear that Mr Wheeler's smoking history from 1942 to 1957 was of between 15 and 21 pack years. He was a non-smoker before service. That history would satisfy the relevant factor.
Associate Professor Breslin
20. Following is a summary of Professor Breslin's opinion. Mr Wheeler died of prostate cancer with some terminal sputum retention associated with debility and treatment of his pain. A diagnosis of chronic airflow limitation cannot be supported by the facts; whether or not he had chronic bronchitis is difficult to say from the information available. Mr Wheeler's terminal illness was that of an individual with metastatic prostate cancer slowly declining. Professor Breslin wrote:
It is very usual indeed for individuals who are essentially bed bound with chronic pain and/or on analgesics for that pain and who are losing condition and heading towards death to develop terminal respiratory infection and pneumonia. I believe that this is what occurred in this man. The evidence would suggest the he had a terminal respiratory infection that that it was part of the process of dying from the prostate cancer.
21. Professor Breslin accepted that Mr Wheeler “may have” had chronic bronchitis, but he did not believe that had been established. He commented that Mr Wheeler had been assessed as dying from his prostate cancer when he was not on antibiotics for respiratory infection. He did not agree with Dr Michael Burns that Mr Wheeler suffered Chronic Obstructive Pulmonary Disease (COPD), that it hastened his death or that it was a large factor in causing death. He also did not agree with Dr Mark Burns that Mr Wheeler's chronic bronchitis probably played a minor role in developing infection of the chest and then pneumonia. He did agree that the diagnosis was more likely to be chronic bronchitis than chronic airflow limitation. However, as set out above, chronic bronchitis was a possible diagnosis rather than an actual diagnosis.
Professor Levi
22. Professor Levi's opinion was that Mr Wheeler died of a progressive metastatic prostate cancer, which was determined by clinical evidence of increasing pain, deteriorating general condition and the decision to withdraw specific therapy and continue with symptom care which included narcotic analgesia. He did not consider cardio-pulmonary arrest an appropriate diagnosis. Mr Wheeler's death occurred as a result of the progression of metastatic prostate cancer resulting in increasing debility, and its effects as well as the effects associated with medications to control pain, as well as becoming bedridden and therefore developing hypostatic or aspiration pneumonia.
23. Professor Levi considered the opinion of Dr Michael Burns that congestive cardiac failure from Mr Wheeler's coronary artery disease may have been a factor in his death. In Professor Levi's opinion this was unlikely. Leg oedema was most likely a phenomenon associated with nutrition rather than predominantly cardiac failure. He did not consider that a factor of any significance in Mr Wheeler's death.
CONCLUSION
24. We found the evidence of Associate Professor Breslin and Professor Levi more comprehensive, considered and more persuasive than that of the Drs Burn and, therefore, prefer their evidence. .
25. We found the evidence of Dr Mark Burns to be quite measured. However it did not persuade us on the balance of probabilities that a respiratory condition connected to service was a kind of death, or that CAD relevantly caused Mr Wheeler's death. On the other hand, we found the evidence of Dr Michael Burns to be in the nature of advocacy. For example, he said:
I could find no evidence in the files to indicate that the prostate cancer was the immediate or primary cause of death although it set the scene for other factors to have actually caused the demise…
26. Even if other factors had played a role, in our opinion, prostate cancer could not be disregarded so emphatically.
27. As we prefer the evidence of Associate Professor Breslin and Professor Levi, we find that the kind of death was metastatic prostate cancer.
28. It also follows that we do not find that Mr Wheeler died from the accepted condition, CAD. Professor Levi's evidence was persuasive on this question.
29. Accordingly, we are not reasonably satisfied that Mr Wheeler's death was war caused.
DECISION
30. For the above reasons, we affirm the decision under review.
I certify that the 30 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member,
Mrs Josephine Kelly and Dr MEC Thorpe, Member.Signed: ………[sgd]………
Steven Mulipola, Associate
Dates of hearing: 25 & 26 February 2008
Date of decision: 16 July 2008
Counsel for the Applicant: Mr M Vincent
Solicitors for the Applicant: Legal Aid Commission of NSW
Solicitors for the Respondent: Sparke Helmore
0
2
0