Willman and Repatriation Commission

[2007] AATA 1480

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2007] AATA 1480

ADMINISTRATIVE APPEALS TRIBUNAL      )           

)          No   Q2006/134

VETERANS' APPEALS DIVISION  )

Re MURIEL WILLMANN

Applicant

And   REPATRIATION COMMISSION

Respondent

DECISION

Tribunal Mr RG Kenny, Member

Date28 June 2007

PlaceBrisbane

Decision The Tribunal affirms the decisions under review.

...............[Sgd].............................   RG Kenny

Member

CATCHWORDS

VETERANS’ AFFAIRS – operational service with Australian Army – whether congestive cardiac disease or death from congestive cardiac disease is war-caused – neither congestive heart disease or ischaemic heart disease present in veteran – death not attributable to any service-related condition – decisions affirmed

Veterans’ Entitlement Act 1986 (Cth) ss 5E, 6A, 7, 8, 9, 11, 14, 120, 120A

Repatriation Commission v Hancock [2003] FCA 711
Repatriation Commission v Smith (1987) 15 FCR 327
Benjamin v Repatriation Commission (2001) 70 ALD 622
Fogarty v Repatriation Commission (2003) 37 AAR 363
Repatriation Commission v Thompson (2001) 107 FCR 235
Nicolia v Commissioner for Railways (NSW) (1970) 45 ALJR 465

Hammond and Repatriation Commission [2003] AATA 311

REASONS FOR DECISION

28 June 2007      Mr RG Kenny, Member

Background

1. Ralph Willmann (the veteran) served in the Australian Army in World War II. On 25 June 2004, a claim was lodged, under s 14 of the Veterans’ Entitlements Act 1986 (the Act), on his behalf for a pension for incapacity from various conditions including “heart disease”.  The claim form included an entry by the veteran’s treating doctor in which he was diagnosed with “congestive cardiac failure”.  Mr Willmann died on 25 June 2004.  On 6 August 2004, the Repatriation Commission (the respondent) determined that congestive heart failure was not war-caused under s 9 of the Act.  On 28 September 2004, Muriel Willmann, his “widow” and a “dependant”, as those terms are defined in ss 5E and 11, respectively, of the Act, lodged a claim under s 14 of the Act for acceptance of Mr Willmann’s death as being war-caused. On 1 October 2004, that claim was rejected by the respondent on the basis that the veteran’s death was not war-caused in accordance with s 8 of the Act.

2.      Both decisions of the respondent were affirmed by the Veterans’ Review Board (the Board) on 22 November 2005. Mrs Willmann now seeks review of those decisions by the Administrative Appeals Tribunal (the Tribunal).

Service

3.      It is not disputed and I am satisfied that Mr Willmann’s service in the army from 22 December 1941 until 2 November 1944 constitutes “eligible war service” in the form of “operational service” in accordance with ss 7 and 6A, respectively, of the Act.

Issues and Legislation

4.      The standard of proof for determining diagnostic matters under the Act, including the kind of death, is provided for in s 120(4) thereof and this requires that such matters be determined to the Tribunal’s reasonable satisfaction: see Repatriation Commission v Hancock [2003] FCA 711; Repatriation Commission v Smith (1987) 15 FLR 327 at 335; Benjamin v Repatriation Commission (2001) 70 ALD 622 at 634; and Fogarty v Repatriation Commission (2003) 37 AAR 363 at 373. The standard of proof applicable to issues of causation for operational service is set out in s 120(1) of the Act which reads:

“Where a claim under Part II for a pension in respect of the incapacity from injury or disease of a veteran, or of the death of a veteran, relates to the operational service rendered by the veteran, the Commission shall determine that the injury was a war-caused injury, that the disease was a war-caused disease or that the death of the veteran was war-caused, as the case may be, unless it is satisfied, beyond reasonable doubt, that there is no sufficient ground for making that determination.”

5.      The application of that provision is affected by the terms of s 120(3) and also by s 120A of the Act which requires that consideration be given to any relevant Statements of Principles that have been published by the Repatriation Medical Authority (RMA).  It is not disputed in this matter that there is no relevant Statement of Principles for congestive heart disease.  In that situation, s 120A has no role to play: Repatriation Commission v Thompson (2001) 107 FCR 235.

6.      Under ss 9(1)(b) and 8(1)(b), respectively, of the Act, a claimed condition or death will be war-caused if the condition or cause of death arose out of, or was attributable to, any eligible war service rendered by the veteran.  In addition, death of a veteran will be accepted as being war-caused, under s 8(1)(f) of the Act, if the injury or disease from which the veteran died is an injury or disease that has been determined in accordance with s 9 of the Act to have been a war‑caused injury or a war‑caused disease, as the case may be.

Diagnosed Conditions and Kind of Death

death certificate

7.      Dr Kenneth Goldston was Mr Willmann’s treating doctor.  He completed a death certificate on 28 June 2004.  The cause of death is recorded as:

1(a)     hypostatic pneumonia: duration 4 weeks

1(b)     cardiac failure: duration 4 years

2         bilateral total hip replacements: duration 29 years.

written submissions

8.      Ms Anderson submitted that Mr Willmann developed a smoking habit during, and because of, the circumstances of his eligible war service and that this subsequently led to the development of ischaemic heart disease.  She also submitted that ischaemic heart disease was contributed to by Mr Willmann’s lack of mobility which was related to his war-caused conditions of lumbar spondylosis and thoracic spondylosis.  In turn, the ischaemic heart disease led, she submitted, to the development of congestive heart disease which, on the evidence of Dr Goldston, was the cause of his death.  Ms Anderson referred to the evidence of cardiologist, Dr John Rivers, and submitted that this was to the effect that the presence of congestive heart disease or of ischaemic heart disease could not be ruled out.  Ms Anderson also referred to the evidence given by the Senior Medical Officer (Compensation) with the Department of Veterans’ Affairs, Dr Peter Grant.  She submitted that little regard should be had to this evidence because Dr Grant had been unaware of Mr Willmann’s smoking history and high cholesterol levels.  In submitting that the diagnosis of Dr Goldston should be preferred, Ms Anderson noted that the treatment of Mr Willmann had taken place in a country town which was remote from places where proper diagnostic testing could have been conducted and in circumstances where Mr Willmann‘s state of health precluded him from travelling to places where this testing could be conducted and the diagnosis confirmed.

9.      Mr Thrupp submitted that, despite the terms of the death certificate, the absence of specific diagnostic testing meant that it was not possible to state whether the veteran suffered from congestive heart disease.  He submitted that, in the event that the condition was present, it had developed as a pre-terminal event.  He relied upon the evidence of Dr Rivers who doubted the presence of the condition and was unable to identify any aspect of the veteran’s health which would have been responsible for the development of congestive cardiac failure if it were present. Mr Thrupp submitted that there was no evidence which would specifically identify ischaemic heart disease as being present in the veteran. He also submitted that the veteran’s immobility did not lead to the development of ischaemic heart disease and that, even if such a link could be established, the reason for that immobility was the impact upon the veteran of conditions that have not been accepted as being related to service.

Evidence of the treating doctor: Dr Goldston

10.     Dr Goldston completed reports on 1 June 2004, 16 March 2006 and 28 November 2006 and gave the following evidence.  He first saw Mr Willmann as a patient in 1993 and treated him since that time.  Cardiac failure was a clinical finding in Mr Willmann’s last days and contributed to his death.  The heart condition was responsible for fluid retention in the lungs and lower leg swelling and treatment was by use of diuretics and ACE inhibitors from 2001.  This was part of a more generalised process of deterioration towards death of immobility, poor peripheral circulation, deep vein thrombosis, congested lungs and, finally, terminal hypostatic pneumonia.  While Dr Goldston agreed that there were no visible signs of ischaemic heart disease, such as angina, in Mr Willmann, he said that the condition could be present in silent form.  Mr Willmann was never tested for the underlying causes of heart difficulties but, if tests had been conducted, these may have revealed the ischaemic heart disease.  Appropriate testing facilities were not available in Hervey Bay and Mr Willmann was not strong enough to travel to Brisbane for tests to be done. 

11.     Apart from ischaemic heart disease, there were no other likely causes for the congestive cardiac failure such as heredity, viral infections, hypertensive heart disease or clinical lung disease, such as asthma.  Mr Willmann’s smoking history of 20 cigarettes a day from 1941 to 1966 had contributed to his ischaemic heart disease and other potential causes of that condition, including constitution, obesity, genetics, diabetes and hypertension, were not relevant in his case.

12.     Mr Willmann’s orthopedic conditions contributed significantly to his immobility.  He had lost more than 75% of the range of movement in his hips as well as in his thoracic, lumbar and cervical spine. His irritable bowel syndrome with concomitant bacterial overgrowth also contributed significantly to Mr Willmann’s increasing weakness and frailty. 

Evidence of orthopaedic surgeon, Dr Chris Blenkin

13.     Dr Blenkin completed a report, dated 17 April 2001.  He reviewed Mr Willmann in relation to his hip replacements which he described as still functioning well at that time.  He noted a 1 cm leg length discrepancy due to do some subsidence of the femoral prosthesis in the femur but confirmed that both prostheses were holding up quite adequately.  Mr Willmann had advised him of increasing concern about reduced mobility and difficulty with tasks such as putting on his shoes and socks.

Evidence of Dr Peter Grant, Senior Medical Officer (Compensation)

14.     Dr Grant has held the position of Senior Medical Officer (Compensation) with the respondent since 1996.  He completed reports dated 8 September 2005, 20 June 2006 and 18 September 2006 and gave the following evidence.

15.     The most common causes of congestive heart disease are ischaemic heart disease, cardiomyopathy, hypertension, valvular conditions and congenital factors.  Smoking is not a known risk factor.  In Mr Willmann’s case, none of the features of congestive cardiac disease had been identified except extremity oedema of a minor degree in 2001 and late stage pneumonia. 

16.     There was no evidence of ischaemic heart disease but the possibility of the condition being present could not be ruled out.  Smoking and high cholesterol levels were risk factors for the development of that condition.  Dr Grant was referred to test results from 18 February 1987 in relation to cholesterol and triglyceride readings and he agreed that the cholesterol reading was high compared with the reference range.  Dr Grant had been unaware of that reading when he completed his reports but said that, despite that reading, there was still no evidence of ischaemic heart disease.  Though he had not seen Mr Willmann, his review of Dr Goldston’s files contained nothing which pointed to the presence of that condition. 

17.     Dr Grant agreed that immobility can be a direct cause of heart failure provided it results in such a level of inactivity that it is associated with lower cardiac output.  However, his review of Dr Goldston’s files did not reveal this.  He noted file references in 2003 to the issuing of a driving licence renewal certificate to Mr Willmann, a 2001 finger injury whilst he was using a power tool and, in 2002, being able to walk 100 metres without a walking stick. 

18.     Mr Willmann was treated for ankle swelling from late 2001 and Dr Grant agreed that this could be suggestive of heart disease.  However, Dr Grant’s review of the hospital notes revealed that there were no medications provided to Mr Willmann which were specific to ischaemic heart disease and no episodes of chest pain during admission.  His chest examination was reported as normal and there was no evidence of left lower limb deep venous thrombosis on ultrasound.  He was not taking Warfarin on admission. The admission notes indicated that Mr Willmann was normally mobile around the house until left lower limb cellulitis began and there was nothing in the materials which would indicate the cause of that condition. There was no other specific feature of congestive cardiac disease in April 2004.  There was no reported link between any heart condition and skin condition or to surgery or infections associated with those. 

Evidence of Dr John Rivers, consultant cardiologist

19.     Dr Rivers completed reports on 2 September 2005 and 4 September 2006 and gave the following evidence.  He did not examine Mr Willmann but read the various reports and clinical notes relating to his treatment.  He noted the absence of any diagnostic testing to establish whether Mr Willmann had congestive cardiac disease and concluded that it was not possible to determine definitively whether he had the condition.  The lower limb oedema which was treated from 2001 was consistent with the existence of the condition but he considered that this could be explained by other factors such as cellulitis in the left leg, deep venous thrombosis and Mr Willmann’s bilateral hip replacements.

20.     Dr Rivers described congestive cardiac disease as involving insufficient cardiac output to meet the body’s requirements with features of fluid and volume overload.  It related to the left side of the heart and is accompanied by prominent symptoms of breathlessness.  He said that there can be no confident diagnosis of the condition without breathlessness being present. Dr Rivers noted that gastroenterologist, Dr Charles Steadman, had seen Mr Willmann in 2001.  Dr Rivers said that Dr Steadman is also a consultant physician and he considered that it would be surprising if Dr Steadman had not noted cardiac failure if, indeed, it had been present. 

21.     Dr Rivers was referred to blood tests conducted in 1987 and agreed that the cholesterol level was elevated but considered that it would not have attracted treatment even at that time.  He noted that there was a lower reading in 1989 and said that this could have been due to daily variations or to his fasting at the time.  In any event, Dr Rivers considered that the “good” components in the test results were high whereas the “bad” components were within normal range.  While he conceded that elevated cholesterol levels can be a risk factor in the development of congestive cardiac disease, he said that Mr Willmann’s readings were not in that category as they were better than average.  Dr Rivers said that the test results did nothing to suggest heart disease.  He concluded that, if Mr Willmann had congestive heart disease, it would only have developed as a pre-terminal event.

22.     Dr Rivers said that the most common causes of congestive heart disease were cardiomyopathy, hypertensive heart disease and ischaemic heart disease but said that there were no specific features to enable the diagnosis of any of those conditions to be made.  He said that cigarette smoking was not a cause of the condition.  After reviewing the materials relating to Mr Willmann, Dr Rivers was unable to draw any definitive conclusion about the cause of his congestive heart disease if, indeed, it was present.

Conclusion

23.     Dr Goldston is confident in his diagnosis of congestive heart disease in this matter.  He included “heart failure” on the death certificate and described “congestive heart failure” in the initial claim form.  The entry on a death certificate is not necessarily conclusive of the cause of death: see Nicolia v Commissioner for Railways (NSW) (1970) 45 ALJR 465 at 466. Accordingly, the matter must be considered on the basis of the available medical evidence.

24.     Dr Goldston’s opinion is not consistent with that of Dr Rivers or of Dr Grant. The issue falls within the specialty of Dr Rivers and his reports and evidence were based upon his analysis of Dr Goldston’s clinical notes and the relevant hospital files.  Dr Grant relied upon the reports of Dr Rivers but he also conducted a detailed analysis of the relevant clinical notes and hospital files.  Dr Rivers and Dr Grant considered the significance of the treatment by Dr Goldston for swelling in Mr Willmann’s legs in 2001 and the continuation of that treatment.  They were able to point to factors other than congestive heart disease as being responsible for the lower limb problem.  I have noted the submissions from Ms Anderson including her reference to the absence of testing facilities which meant that a definite diagnosis could not be made.  However, it remains the case that tests were not conducted and the specialist evidence does not support the existence of congestive heart disease except, possibly, as a pre-terminal event.  As noted above, the standard of proof on that issue is the balance of probabilities and, on the evidence before me, I am not satisfied to that standard that Mr Willmann suffered or died from congestive heart disease or heart failure associated with that condition. 

Relationship to Service

25.     Even if it were the case that Mr Willmann had congestive heart disease, the hypotheses advanced by Ms Anderson rely on the presence of ischaemic heart disease.  In this case, the evidence does not point to the presence of that condition in Mr Willmann. That was the evidence of Dr Rivers and of Dr Grant.  Dr Goldston was also of the opinion that there were no signs of the condition.  In that situation, the hypotheses which rely upon the presence of ischaemic heart disease are not reasonable as required by s 120(3) of the Act.  Under that provision, it follows that there is no sufficient ground for determining that Mr Willmann’s congestive heart disease or his death from that condition are attributable to his eligible war service under s 9(1)(b) and s 8(1)(b), respectively, of the Act. 

26.     The effect of s 8(1)(f) of the Act is set out in a note to the provision.  It is that, if the veteran 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; there is no requirement to relate the death to eligible war service rendered by the veteran; and s 120A of the Act does not apply.  The required relationship is with the relevant accepted condition.  If this is met, if it is deemed to be related to eligible war service.  The determination is made in accordance with s 120(4) of the Act so that the matter is determined on the balance of probabilities: see Hammond and Repatriation Commission [2003] AATA 311 (at para 51).

27.     Apart from the heart condition, Mr Willmann’s death certificate refers to a hypostatic pneumonia and bilateral total hip replacement.  Neither of those conditions has been determined by the Commission to be related to Mr Willmann’s eligible war service.  Those conditions which have been so accepted are malaria, bilateral sensorineural hearing loss, lumbar spondylosis, thoracic spondylosis and non melanotic malignant neoplasm of the skin.  Dr Goldston described a generalized dying process of immobility, poor peripheral circulation, deep vein thrombosis, congested lungs and, finally, terminal hypostatic pneumonia.  On the balance of probabilities, I am satisfied that Mr Willmann’s death was not due to the conditions which have been accepted as being service-related. Therefore, his circumstances do not come within the operation of s 8(1)(f) of the Act.

Decision

28.     The decisions under review are affirmed.

I certify that the 28 preceding paragraphs are a true copy of the decision and reasons for the decision herein of Mr RG Kenny, Member

Signed:         ………………………………….

Legal Research Officer

Date of Hearing  13 March 2007 and 17 April 2007
Date of Decision  28 June 2007
For the Applicant  Ms S Anderson of Counsel
  Morton and Morton, Solicitors

For the Respondent                  Mr T Thrupp, Departmental Advocate