Wilcock and Repatriation Commission

[2010] AATA 560

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2010] AATA 560

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2008/2064

VETERANS'  APPEALS   DIVISION		)
Re		NOLA WILCOCK

Applicant

And REPATRIATION COMMISSION

Respondent

DECISION

Tribunal Ms N Bell, Senior Member
Dr M E C Thorpe, Member

Date27 July 2010

PlaceSydney

Decision The decision under review is affirmed.

…....................[sgd]............................

Ms N Bell, Presiding Member  

CATCHWORDS – Veterans’ Entitlements – war widow’s pension – cause of death attributable to war service – kind of death – material contribution – ischaemic heart disease

Veterans’ Entitlements Act 1986 (Cth)

Collins v Repatriation Commission (2009) 177 FCR 280

Hill v Repatriation Commission (2009) 177 FCR 434

REASONS FOR DECISION

Ms N Bell,  Senior Member
Dr M E C Thorpe, Member            

1.      Edward Wilcock served in the Australian Army in World War II between August 1941 and February 1946.  Mr Wilcock died in 2006.  His wife, Nola Wilcock, made a claim for a war widow’s pension which has been refused. Mrs Wilcock now seeks a review of the decision that Mr Wilcock’s death was not war caused – the basis for the refusal of her claim.

2.      Mr Wilcock had had a number of medical conditions accepted as war caused, including emphysema and ischaemic heart disease.  The death certificate states the following as the causes of death: (i) Cancer of prostate, 6 years (ii) emphysema, years.

3.      

Mrs Wilcock contended that her late husband’s death was, together with cancer of the prostate, ultimately caused by his ischaemic heart disease. 

Mrs Wilcock had earlier contended that emphysema was also a cause of his death, however this contention was abandoned by her at the hearing. 

4.      Cancer of the prostate was not a condition that had been accepted as war caused and Mrs Wilcock did not contend that it was war caused.

5.      The sole issue for me to consider is whether Mr Wilcock died from ischaemic heart disease.

did mr wilcock die from ischaemic heart disease?

6.Subsection 8(1)(f) of the Veterans’ Entitlements Act 1986 provides: 

(1)       Subject to this section and section 9A, 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 section 9 to have been a

war-caused injury or a war-caused disease, as the case may be;

Note:   The effect of paragraph (f) is that, if the veteran has died from an injury or disease that has already been determined by the Commission to be war-caused, the death is to be taken to have been war-caused. Accordingly the Commission is not required to relate the death to eligible war service rendered by the veteran and sections 120A and 120B do not apply.

7.      

The leading authority on the question of “kind of death” in the veterans’ entitlements jurisdiction is the judgment of Mansfield and Stone JJ in

Collins v Repatriation Commission

(2009) 177 FCR 280. The Court distinguished between a medical condition that hastens death by some hours or days and one that causes the death. The Full Court said that a condition must play a real role in the pathological changes leading to the death in order to be a medical cause of death.

8.      In Hill v Repatriation Commission (2009) 177 FCR 434, the Full Federal Court said that “death” as it appears in section 8 and elsewhere in the Act means “the nature of the condition which causes the death, or put another way, the medical cause or causes of the death”.

9.Justices Mansfield and Stone said further in Collins (at 297):

“The medical cause or causes of death are to be determined by the relevant decision-maker on the evidence”.

10.     We received and heard evidence from an occupational physician, an oncologist, a thoracic physician and a cardiologist.

11.     

Dr Anderson, occupational physician, stated in his report of 14 April 2009 that

Mr Wilcock’s “ultimate demise was a cardiac death” associated with his ischaemic heart disease and emphysema. He said that Mr Wilcock’s ischaemic heart disease would have had an effect on the capacity of his heart to survive under adverse circumstances. Dr Anderson also stated in his oral evidence to the Tribunal that “although all of the other issues are causing the adverse circumstances, in a relatively fit heart, the person surely would survive that much longer”. In answer to the Tribunal’s question as to what it is that causes a cancer patient to die,

Dr Anderson said it is multi system failure. He said that in the terminal phase of malignancy the hearts shuts down.

12.     Professor Levi, oncologist, reported on 7 May 2009 that Mr Wilcock died from progressive metastatic prostate cancer. He also said that congestive cardiac failure was a likely significant contributing factor to his death, but that he would have died at essentially the same time as a result of his prostate cancer regardless of the existence of his ischaemic heart disease and emphysema.

13.     In his oral evidence to the Tribunal, Professor Levi clarified his opinion and said that the congestive cardiac failure had been a terminal event and the ultimate manifestation of Mr Wilcock’s metastatic prostate cancer.  He said he deferred to the opinion of Professor O’Rourke, cardiologist, on the matter.

14.     Professor O’Rourke reported on 15 May 2009 that Mr Wilcock died as a consequence of disseminated carcinoma of the prostate.  He said Mr Wilcock had multiple other medical conditions but had no clinical features of angina pectoris or cardiac failure and received no treatment for cardiac failure in the last weeks of his illness.  Professor O’Rourke said that the ischaemic heart disease had been stable since 2005 and referred to the records of Dr Illes, Mr Wilcock’s treating cardiologist, in this respect. Professor O’Rourke held to this view in his oral evidence to the Tribunal.

15.     

Professor Breslin, thoracic physician, reported on 16 June 2009, that

Mr Wilcock died from carcinoma of the prostate and emphysema played no part in his death.  He said the emphysema was incidental.

16.     Dr Anderson is alone in his view that Mr Wilcock’s ischaemic heart disease was a contributing factor to his death or that he died from ischaemic heart disease.  We note that Dr Anderson is an occupational physician and, on his own evidence, his knowledge is general rather than in the specialist fields of cardiology, oncology or thoracic medicine.  We are not persuaded by his opinion and we prefer the opinions of the specialists in the relevant fields.  In addition, we consider that his analysis, and the analysis urged on us by Counsel for Mrs Wilcock, is not in accord with the law as stated by the Full Federal Court in Collins and in Hill.

17.     We consider that Mr Wilcock’s ischaemic heart disease did not play a real role in the pathological changes leading to the death and was therefore not a medical cause of death.  It follows that Mr Wilcock did not die from ischaemic heart disease.

decision

18.The decision under review is affirmed.

I certify that the 18 preceding paragraphs are a true copy of the reasons for the decision herein of Ms N Bell, Senior Member, and Dr MEC Thorpe, Member.

Signed: .......................[sgd].......................................................   Associate: Lloyd Doherty

Date/s of Hearing  14 January 2010, 5 July 2010
Date of Decision  27 July 2010
Counsel for the Applicant         Mr Mark Vincent
Solicitor for the Applicant          Mr Andrew Kemp, Kemp & Co. 
Solicitor for the Respondent     Mr Nigel Bunn, Department of Veterans' Affairs