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No.9 October 2009

Repatriation Commission v Heathcote

[2009] FCA 1270

COURT Federal Court, Brisbane
JUDGE Greenwood J
DECISION Appeal dismissed
ISSUES whether veteran’s death from amyloid cardiomyopathy was related to the veteran’s defence service having regard to the veteran’s exposure to benzene and hydrocarbons.

Facts

Mr Heathcote served in the Royal Australian Navy and rendered Defence Service, performing the duties of an Aircraft Technician Stoker. Mr Heathcote died at the age of 42 from amyloid cardiomyopathy. The Repatriation Commission (Commission) appealed from a decision of the Administrative Appeals Tribunal (Tribunal) setting aside a decision of the Commission affirmed by the Veterans’ Review Board, that the death of Mr Heathcote was not defence caused.

Grounds of appeal

The Commission accepted that Mr Heathcote died from cardiomyopathy, and therefore, the Statement of Principles (SoP) concerning cardiomyopathy applied. However, the issue raised by the Commission was whether Mr Heathcote’s death from amyloid cardiomyopathy, was related to his defence service. Specifically, whether Mr Heathcote’s monoclonal gammopathy of uncertain significance (MGUS) was attributable to his defence service. In addition, the Commission contended that a SoP concerning myeloma also applied, as the kind of death Mr Heathcote suffered was a manifestation of a condition known as myeloma, having regard to the evidence accepted by the Tribunal. In failing to apply the SoP for myeloma, the Commission contended that the Tribunal had erred in reaching its decision.

The Tribunal’s reasons

The Tribunal noted that the parties had reached agreement that the deceased’s condition of cardiomyopathy was the cause of death and that factor (p) of clause 6 of the SoP existed.

The Tribunal noted that Mr Heathcote’s condition at death was a complex one and that even medical specialists grappled with the exact developmental pattern of the disease. The Tribunal had before it, evidence from Mr Heathcote’s consulting cardiologist, Dr Davidson as well as reports from a number of other specialists. Four specialists, including Dr Davidson were of the opinion that Mr Heathcote was suffering a MGUS which had accelerated the progression of AL amyloidosis explaining the comparatively early death of Mr Heathcote at 42.The Tribunal determined on the balance of probabilities that Mr Heathcote suffered from MGUS at a time sufficiently early in his life to explain the condition, amyloidosis, evident at his death.

Based on a statement provided by a member of the RAN who worked with Mr Heathcote and a statement from one of Mr Heathcote’s supervisors, the Tribunal further found that during Mr Heathcote’s six years of defence service, he was exposed to hydrocarbons.

In terms of whether Mr Heathcote’s exposure to hydrocarbons gave rise, on the balance of probabilities, to MGUS (the primary pathology which caused amyloid deposits to develop resulting in death by amyloid cardiomyopathy), the Tribunal recorded that it considered “all of the documentary and oral evidence” put before it and accepted the evidence of three specialists, including Dr Davidson, that Mr Heathcote’s death was causally related to his defence service, on the balance of probabilities.

The Court’s Consideration

In relation to the issue of whether Mr Heathcote’s death from amyloid cardiomyopathy was related to his defence service, Justice Greenwood first considered the Commission’s contention that the Tribunal had failed to make a finding on the balance of probabilities as to whether Mr Heathcote had contracted a MGUS prior to amyloidosis. His Honour considered the evidence before the Tribunal, and its finding noted above, that Mr Heathcote was suffering a MGUS which had accelerated the progression of AL amyloidosis explaining the comparatively early death of Mr Heathcote. As such, his Honour did not consider that this ground was made out.

Justice Greenwood then considered whether the Tribunal had made findings of fact for which there was no evidence. Specifically, his Honour considered the Commission’s contention that there was no evidence to support the finding of a causal relation or connection between Mr Heathcote’s death from amyloid cardiomyopathy and his defence service. His Honour considered the material that was before the Tribunal and noted that:

[76]…Dr Woods again emphasised that death from cardiac amyloidosis at 42 is extremely young as compared with the median age diagnosis of 60 years, which, in Dr Woods’s view, “implied”, or from which he inferred, a “significant toxic exposure when in the Australian Navy”. That fact need not have been implied or inferred as there was direct evidence of exposure. What Dr Woods was suggesting in his evidence was that early death at 42 from amyloid cardiomyopathy suggested a relationship between toxic exposure and early onset of MGUS which led to amyloidosis and premature death.

… [80] Dr Woods expresses the opinion that since there is a demonstrated statistically significant elevation in the risk of death from multiple myeloma by reason of exposure to benzene, it is “entirely plausible and likely” that workplace exposure to the nominated hydrocarbons including benzene contributed to the cause of Mr  Heathcote  developing MGUS which, having regard to the latency period of 19 years, makes it “very likely” that MGUS was present in Mr Heathcote for many years. Having regard to the demonstrated risk rate of 25 times the benchmark population of developing multiple myeloma having been diagnosed with MGUS and that benzene exposure significantly elevates the risk of death from multiple myeloma, Dr Woods thought it open, in his view, to conclude that it is plausible that benzene exposure presents an elevated risk of developing MGUS, as MGUS seems to be a precursor risk to myeloma. Once developed, MGUS has a risk progression to AL amyloidosis of 8.4 times the benchmark population. His Honour further noted that the Commission had not put any epidemiological evidence before the Tribunal or any literature searches of scientific material.

Justice Greenwood considered that a foundation existed for Dr Woods’ views and it was, therefore, open to the Tribunal to reach this  same conclusion and rely upon the opinion of Dr Woods. It follows therefore, the Tribunal was entitled to conclude that Mr Heathcote’s death from cardiomyopathy was defence-caused because he developed MGUS, on the balance of probabilities, by reason of exposure to hydrocarbons including benzene. That condition was the primary pathology that gave rise to a secondary consequence of emergent amyloidosis and caused Mr Heathcote’s death from amyloid deposits infiltrating his heart giving rise to amyloid cardiomyopathy reflecting the special disorder contemplated by factor (p) in the SoP.

The remaining contention by the Commission was that the kind of death Mr Heathcote suffered was a manifestation of a condition known as myeloma and that the Tribunal was required to apply the SoP concerning myeloma. Specifically, the Commission said that the issue for consideration was whether the condition or manifestation of a disease called AL amyloidosis (confirmed by the biopsy results two days before Mr Heathcote died) was a condition characterised as myeloma for the purposes of the definition of myeloma in clause 2(b) of the SoP. Justice Greenwood noted that this contention was made by the Commission, notwithstanding that the specialist clinicians giving evidence in this case regarded MGUS, AL amyloidosis and myeloma as separately expressed conditions, as a function of diagnostic evaluation. Further, his Honour noted that the application of the definition in the SoP to the clinical circumstances confronting Mr Heathcote involved a question of fact.

Justice Greenwood considered that Mr Heathcote was not diagnosed with “myeloma” and did not suffer a “death from myeloma”. In his Honour’s view, the SoP concerning myeloma had no application as a matter of construction having regard to the evidence before the Tribunal and, on the findings of fact, Mr Heathcote’s primary pathology was MGUS which is excluded from the definition of myeloma.

Formal decision

Justice Greenwood considered that the Commission had not demonstrated error on the part of the Tribunal. The appeal was dismissed with an order that the Commission pay the costs of the respondent of and incidental to the application.

Further reading: For a detailed guide to War Widow’s pensions please see VeRBosity 23 no 2 page 84. In relation to the Full Federal Courts most recent decisions in relation to War Widows’ Pensions (which were cited by Justice Greenwood in Heathcote) please see:

All Practice Notes