Williamson and Repatriation Commission

[2005] AATA 152

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2005] AATA 152

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No N2003/1623

VETERANS' APPEALS  DIVISION		)
Re		MARGARET WILLIAMSON

Applicant

And REPATRIATION COMMISSION

Respondent

DECISION

Tribunal Dr J D Campbell, Member

Date17 February 2005

PlaceSydney

Decision The decision under review is affirmed.

[SGN] Dr J D Campbell
  Member

CATCHWORDS

VETERANS' ENTITLEMENTS - operational service - kind of death – widow’s pension – decision under review is affirmed.

Veterans' Entitlements Act 1986 - sections 9, 120

Repatriation Commission v Cooke (1998) 160 ALR 17

Repatriation Commission v Gosewinckel (1999) FCA 1273

Benjamin v Repatriation Commission (2001)70 ALD 622

Hancock v Repatriation Commission (2003) FCA 711

Bushell v Repatriation Commission (1992) 175 CLR 408

Byrnes v Repatriation Commission (1993) 177 CLR 564

REASONS FOR DECISION

17 February 2005  Dr J D Campbell, Member            

1.      In this matter Mrs Williamson seeks a review of the decision of the Repatriation Commission dated 27 May 2002 that denied her claim lodged on 9 May 2002 for a widow’s pension.

background

2.      Mrs Williamson married her husband on 24 October 1958.  Mr Williamson died on 30 November 1981.  The late Mr Williamson had served in the Australian Army from 1 May 1942 to 12 June 1946, with this service constituting operational service for the purposes of the Veterans’ Entitlements Act 1986 (“the Act”).

issues

3.      The relevant issues in this matter are:

a)   whether the death of Mr Williamson is related to his service, which requires consideration of what conditions Mr Williamson was suffering prior to his death; and

b)   a consideration of what kind of death he suffered. 

Once the two issues have been considered there is then the further consideration of whether there was a causal connection between his death and aspects of his service.

findings

4.      For the reasons nominated later in this decision, I find that:

a)Mr Williamson was not suffering from ischaemic heart disease at the time of his death; and

b)the kind of death suffered by Mr Williamson was complete heart block caused by a degenerative disorder of the conducting system of the heart; and

c)that the kind of death suffered by Mr Williamson was not causally related to his service.

evidence

5.      Mrs Williamson presented oral evidence at the first hearing in which she stated that she met her husband at Reckitt and Coleman’s in the early 1950s, and at that time she noted he was very nervous and always smoking.  She married Mr Williamson in 1958 and he continued to smoke.  After their marriage Mrs Williamson stated that his emotional symptoms gradually worsened, he was quick to anger but was not violent, electing to walk away, was restless in bed and touchy about his smoking habit.

6.      Mrs Williamson told the Tribunal that Mr Williamson complained of chest pain when she first met him; that this was intermittent, but got worse as he got older and when he increased his smoking.  She stated that he used to hold his chest, and that one time, shortly after they were married, he had pain in his left arm as well, although this never recurred.  She also noted that as he got older he was short of breath when doing the garden or going upstairs.

clinical record evidence

7.      The clinical notes for the late veteran’s various admissions to both Liverpool Hospital and Concord Hospital were in evidence before the Tribunal.  The following relevant material has been extracted:

·was admitted to Concord Hospital on 4 September 1977 for a transurethral prostatectomy, a similar procedure having been carried out in 1976.  The operation was postponed because of a history of chest pain one week earlier, with a probable diagnosis of pulmonary embolus.  Mr Williamson was discharged on 10 September 1977.

·was referred to Dr Pawsey, a consultant cardiologist at Concord Hospital on 2 November 1977 by Dr Maher, consultant urologist.  Dr Pawsey noted a two year history of chest pain which had got worse over the last six months, with the pain precipitated by mild exertion, with frequent episodes both at rest and at night.  Dr Pawsey also noted that he had had a severe episode of central chest pain for which he had been admitted to Liverpool Hospital some ten weeks earlier.  Dr Pawsey’s impression at that time was that Mr Williamson was suffering from unstable incapacitating angina, which had not been treated.  He commenced treatment and arranged for Mr Williamson to be admitted on 7 November for investigation.

·was admitted on 7 November 1977 to Concord Hospital for investigation of recurrent episodes of central chest pain.  Coronary angiography was undertaken by Dr Arter on 8 November 1977, with the coronary arteries being described as normal, with the further notation that the chest pain was felt not to be related to coronary ischaemia.  He was discharged on 10 November 1977.  It was also noted that this resting electrocardiograph was normal, while a master’s stress test was ceased at a level of inadequate stress due to chest pain.

·admitted to Liverpool Hospital Intensive Care Unit on 28 November 1981 with chest pain following a collapse while drinking at a local club.  Diagnoses considered possible were reflux esophagitis, alcoholic gastritis, recurrent pancreatitis, ischaemic heart disease and urinary tract infection.  Serial electrocardiographs and cardiac enzymes were reported as showing no diagnostic features or falling within the normal respectively.  Mr Williamson was reported as a vague historian and was transferred to Concord Hospital for continuing treatment on 29 November 1981.

·transferred to Concord Hospital on 29 November 1981 and on assessment at arrival was considered to be suffering from reflux esophagitis, syncope and depression.  It was noted that he had previously been investigated for various conditions, namely chronic epigastric and retrosternal pain and that such investigations included a normal angiogram and a normal ERCP study.  Initial cardiac enzyme studies and electro cardiographs were reported normal. 

·while being assessed by the Registrar in Psychiatry for depression in the afternoon of 30 November 1981, it is recorded that Mr Williamson sat down, having walked to his room, complained of chest pain, was given anginine and put to bed.  It is recorded that Mr Williamson stated that the pain had been there for four days, but it was worse at this time.  It is recorded that Mr Williamson lost consciousness, his colour was good and his pulse was strong but irregular and he was breathing spontaneously.  Within two minutes he became blue and resuscitation was commenced.  His pulse remained irregular and a monitor showed complete heart block. Despite continued resuscitation his condition remained unimproved and he was transferred to the pacing room, where a pacemaker was inserted, but this activity was unsuccessful and Mr Williamson was declared dead at 1345 hours on 30 November 1981.

8.      The medical certificate of Cause of Death detailed that the cause of death was:

a)cardiac arrest – duration ½ hour

b)complete heart block – duration ½ hour

c)degenerative disorder of cardiac conducting system – unknown as to duration.

medical evidence

Associate Professor Richards, Consultant Cardiologist

9.      In a report dated 20 February 2004, Professor Richards detailed a history which included extracts from two discharge summaries from Concord Hospital, namely the discharge summary for the admission 7 to 10 November 1977 and his final admission in November 1981.

10.     Having reviewed the available clinical material Professor Richards concluded that:

“…although no luminal narrowing was recorded at coronary angiograph 08 November 1977, Mr Williamson probably did have myocardial ischaemia, either due to coronary artery spasm, or due to small vessel coronary arterial disease.”

Further Professor Richards concluded that the chest pain during the last few days of life was also due to myocardial ischaemia or transient thrombotic occlusion:

“The fact that Mr Williamson had chest pain immediately prior to cardiac arrest suggests to me that myocardial ischaemia was the cause of the cardiac arrest.”

11.     In defining his opinion, Professor Richards also noted:

“The fact that electromechanical dissociation persisted despite pacing suggests to me that his death was not simply due to a conduction system disturbance, but rather was due to myocardial ischaemia which did not benefit from pacing.

…

Further, if myocardial ischaemia was due to coronary arterial spasm or transient thrombotic arterial occlusion, the electrocardiogram (at other times, in the absence of acute spasm or acute thrombotic occlusion), and blood test (in the context of unstable angina pectoris without infarction) may well have been unremarkable.”

With there not being:

“sufficient evidence from the records provided to know whether an electrocardiogram was recorded during typical pain.”

12.     Professor Richards summarised his opinion when concluding:

“It is my opinion that Mr Williamson had ischaemic heart disease (not apparent at coronary arterial luminography in 1977), due to smoking which was war caused.  It is my opinion that his death due to cardiac arrest was a direct consequence of myocardial ischaemia which caused chest pain immediately prior to death.”

13.     In concurrent evidence, Professor Richards, while confirming his written opinion, detailed further salient opinions:

·that appearances on angiography would have been interpreted differently in 1978 than now if there were minor irregularities in the lumen and the vessels;

·that pain is not a feature of complete heart block;

·that if complete heart block was the cause of death, which would be unusual  then he would have simply collapsed;

·that some of his chest pain over time has been due to angina;

·that his syncopal attack with chest pain prior to his admission to Liverpool Hospital on 28 November 1981 (with many possible causes to be considered) is consistent with ischaemia leading to transient heart block;

·that ischaemia in the right coronary artery or the circumflex artery supplying the atria-ventricular node and the sinus node would be sufficient to cause complete heart block, with the ischaemia resulting from thrombotic occlusion from plaque rupture or spasm;

·that smoking has no part to play in the degenerative process affecting the heart conducting system;

·that he agreed with Professor O’Rourke in that if spasms or unstable angina existed, electrocardiographic changes would have been demonstrated, while noting the only recordings available being of hospital origin;

·there was no evidence to suggest significant major coronary vessel obstructive disease;

·the only evidence in the documents pointing to myocardial ischaemia is the quality of pain at the onset in 1977 and the fact of pain immediately prior to death and the sequence of events;

·that Mr Williamson, being a smoker, probably had diffuse atherosclerosis, but this did not mean that there had been a major progression in that disease process between 1977 and 1981, with the ischaemia that occurred prior to his death being due to plaque rupture or coronary artery spasm;

·that there was no evidence of a progressive conduction system disease throughout the last couple of years of his life;

·that in his opinion as to cause of death is way beyond possibility and more a probability.

Professor O’Rourke – Consultant Cardiologist

14.     In a report dated 22 June 2004, Professor O’Rourke detailed a clinical history of the late veteran, which included Mr Williamson complaining of and being treated for chest pain in June 1976 with nitrates and propanolol, although chest pain symptoms continued.  He then details particulars of the late Veteran’s clinical history from the available clinical records.

15.     Having assessed the available clinical material, Professor O’Rourke detailed the following opinions:

·from symptoms described by Mr Williamson there was nothing to suggest he suffered from coronary artery disease, in that his symptoms were multiple and diffuse, his chest pain was atypical of angina and that is persisted for long periods.  He noted symptoms did occur with exercise and were relieved by anginine;

·that from investigations undertaken there was nothing to support  the diagnosis of ischaemic heart disease as a cause of Mr Williamson’s chest pain;

·that the death certificate is an accurate reflection of the causes of death;

·that Mr Williamson did not suffer from ischaemic heart disease, there being:

a)no evidence of myocardial infarction;

b)while a clinical diagnosis of angina pectoris had been made, it was not supported by investigations conducted under the supervision of Dr Arter and Dr Pawsey at Concord Hospital;

c)there was no electrocardiographic evidence of myocardial ischaemia either before or at the time of the arrhythmia which caused Mr Williamson’s death.

·that the conducting system disease was degenerative and not related to Mr Williamson’s service.

16.     During oral evidence and again during concurrent evidence with Professor Richards, Professor O’Rourke detailed further comments and opinions:

·     Mr Williamson had had pain for many years; that this had been assessed by a number of very competent cardiologists, and despite multiple investigations over time they were unable to find any evidence to support a diagnosis of coronary artery disease or any evidence of myocardial ischaemia;

·     that the failure to resuscitate Mr Williamson from his episode of asystole, despite pacing, was more likely to have arisen from circumstances in which pacing could not have been initiated quickly, with the delay in putting the pacemaker into place being the period in which damage to the myocardia, brain and elsewhere which is likely to have occurred.  This led to the situation that resuscitation was not successful once the pacing was established;

·     that smoking does not have any part to play in the degenerative process of the conduction system of the heart;

·     that when asystole/heart block occurs unexpectedly in the casualty or general ward of a large hospital the problems of initiating pacing were and remain a big logistic problem.

consideration and findings

17.     In preliminary comment I note that Mr Williamson had the following conditions accepted as war-caused:

·     Malaria

·     Anxiety state with tension headache

18.     I also note that there is no argument between the parties that Mr Williamson had a war-caused smoking habit and I so find.

19.     While it is evident that Mr Williamson suffered from a number of conditions in the years preceding his death (enlarged prostate, anxiety and depression, varicose veins and chronic pancreatitis to name but some), the condition that is in contest between the parties is whether Mr Williamson suffered from ischaemic heart disease prior to his death on 30 November 1981.  Pursuant to case law (Repatriation Commission and Cooke (1998) 160 ALR 17, Repatriation Commission and Gosewinckle [1999] FCA 1273, and Benjamin v Repatriation Commission (2001) 70 ALD 622, I must first address this issue with the standard of proof being one of reasonable satisfaction pursuant to section 120 (4) of the Act.

20.     I next note the history of the late Veteran’s chest pain, as described by his wife as occurring back in the 1950’s and then in more detail in clinical records of his many admissions for assessment of such chest pain and/or other conditions with which his complaint of continuing chest pain was raised.

21.     I note that in many of the clinical records he is recorded as being a poor historian, but this did not prevent Dr Pawsey in November 1977 suspecting that the Veteran was suffering from ischaemic heart disease and initiating therapy to treat such a condition.

22.     I observe that the late Veteran was then admitted to Concord Hospital in November 1977 and following investigation (cardiography, stress test, cardiac enzymes and angiograph, all of which failed to demonstrate an abnormality), a conclusion was arrived at which considered that the chest pain was not felt to relate to coronary ischaemia.

23.     I acknowledge the sequence of events commencing with the late Veteran’s admission to Liverpool Hospital on 28 November 1981 and his transfer to Concord Hospital on 29 November 1981 and the events leading up to his death on 30 November 1981.  I note that at no stage during the two admissions were there any abnormal cardiac enzymes or electrocardiographic changes demonstrated which would be supportive of a diagnosis of ischaemic heart disease.  I note the causes of death listed on the cover death certificate dated 1 December 1981.

24.     I further acknowledge the evidence given by the two eminent clinicians, Professor O’Rourke and Associate Professor Richards, and note the differing opinions.

25.     In analysing all the material I conclude that on the balance of probabilities, Mr Williamson was not suffering from a condition of ischaemic heart disease at the time of his death.  In so finding I am mindful that the death of the late Veteran occurred in 1981, with the matter essentially being considered from the records that are available and the two opinions expressed by the two eminent consultant cardiologists.

26.     The reasons for my findings are:

·the late Veteran had a long history of retrosternal chest pain;

·this pain was the subject of investigation and assessment by experienced cardiologists, namely Dr Arter and Dr Pawsey, who concluded at that time (1977) that the chest pain was not felt to relate to coronary ischaemia;

·that despite the existence of continuing pain and a number of hospital admissions including the admission to Liverpool Hospital and transfer to Concord Hospital in November 1981 there was over this time never any electrocardiographic examination nor any cardiac enzymes test which indicated any evidence of myocardial ischaemia or damage respectively;

·that the opinion of Professor O’Rourke is based on an analysis of the historical records, an acceptance that the two experienced cardiologists concluded that the late Veteran’s chest pain did not relate to coronary ischaemia after undertaking appropriate investigations and a recognition that the necessity to insert a pacer in a situation, where an emergency had occurred in a general ward of a large hospital takes time and is not without logistical difficulties;

·that in Professor O’Rourke’s opinion the late Veteran’s chest pain history was atypical of angina, and that his symptoms were multiple and diffuse;

·that Professor Richards places great emphasis on the nature of the pain experienced by the late Veteran in 1977 and in the hours prior to his death to support the clinical supposition that this was indicative of coronary artery spasm or plaque rupture.  It is to be noted that Professor Richards in his written report appeared to have interpreted the records as indicating that the late Veteran had been hospitalised for some months in 1977 in relation to the chest pain, but it is clear from the records that he was only in Concord Hospital for some days in November 1977 for assessment of the chest pain, although the pain had been complained of for some ten weeks;

·that I note, while Professor Richards is of the opinion that the same process, namely coronary artery spasm or plaque rupture may have caused the pain on both occasions, and perhaps even with the syncopal attack on 28 November 1981; he agrees with Professor O’Rourke in that if spasm or unstable angina existed electrocardiographic changes would have been demonstrated, with the reservation that the only recordings available were of hospital origin;

·that in the absence of ability to actually study the angiograms of 1977, any supposition as to what was not reported must remain speculative, and hence any clinical supposition based on such must be considered with caution.  I note Professor Richards’ opinion is based on such a supposition.

27.     In summary and for the reasons outlined I consider that the late Veteran did not on the balance of probabilities suffer from ischaemic heart disease.  In so finding it is evident that I prefer the reasoning of Professor O’Rourke to that of Professor Richards, in that Professor O’Rourke’s opinion is based in the main on recorded fact, while Professor Richards is based more on clinical intuition based only in part on fact and part on supposition.

28.     Further, in preferring Professor O’Rourke’s opinion and again based on the clinical records, I find that the kind of death suffered by the late Veteran was on the balance of probabilities, consistent with what was recorded on the death certificate of 1 December 1981 (Hancock v Repatriation Commission [2003] FCA 711 considered and followed).

29.     Finally there is a need to address the issue of whether the condition, namely degenerative process of the heart conduction system was causally related to the late Veteran’s service. I note that there are no Statement of Principles issued by the Repatriation Medical Authority concerning this conditions, leaving the matter to be dealt with in terms of the principles laid down in Bushell v Repatriation Commission (1992) 175 CLR at  408 and Byrnes v Repatriation Commission (1993) 177 CLR 564.

30.     Having considered all the material I note that both Professor O’Rourke and Professor Richards are of a congruent view that smoking does not have any part to play in the degenerative process of the conductive system of the heart.  In such circumstances I conclude, having examined all the material, that while a hypothesis may be raised linking smoking with the condition of degenerative process of the conduction system of the heart, such a hypothesis is not a reasonable hypothesis.  Such a finding is based on the fact that the link suggested is contrary to proved scientific fact or opinion (this being the evidence of the two Professors).  In the absence of a reasonable hypothesis being found to exist, I find that the condition of degenerative process of the conductive system of the heart is not causally related to service and the decision under review is affirmed.

I certify that the 30 preceding paragraphs are a true copy of the reasons for the decision herein of Dr J D Campbell, Member

Signed: M. Di Condio
  Associate

Date/s of Hearing  17 September 2004, 8 December 2004
Date of Decision  17 February 2005          
Solicitor for the Applicant          Mr B Winship        
Advocate for the Respondent   Mr N Bunn