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Handley

V97/914
27 August 1998

[Full Text]

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Mrs Bourke applied for review of a decision that the death of her late husband was not war-caused. Mr�Bourke died in March 1995. The death certificate recorded the "cause of death and duration of last illness" as:

"carcinoma of prostate with local spread and bone metastases - 2�years; diabetes; and ischaemic heart disease".

At the time of his death, Mr Bourke was in receipt of disability pension at 100% of the General rate with respect to the accepted disabilities of sub acute bacterial endocarditis, hypertension, aortic valve replacement, ischaemic heart disease, peripheral vascular disease and lumbar spondylosis with spinal canal stenosis. Disabilities which were not accepted as war-caused were eczema and malignant neoplasm of the prostate.

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Mrs Bourke's counsel conceded that she could not succeed in connecting her late husband's death with his war service on the basis of the prostate cancer or diabetes. It was submitted that ischaemic heart disease had hastened his death. It was also submitted that the provisions of s�8(1)(f) of the Veterans' Entitlements Act 1986 should be applied in her favour. That sub-section reads as follows:

The Repatriation Commission submitted that the late veteran did not die from ischaemic heart disease and that the provisions of s�8(1)(f) did not apply in this case.

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Dr Byron Collins, a consultant pathologist, was of the opinion that if the late veteran had significant coronary atherosclerotic disease, this would have hastened his death. Dr�Collins said that prostate cancer was the primary cause of death but ischaemic heart disease would have had an additive effect. He thought it significant that ischaemic heart disease was noted on the death certificate. He did not have access to clinical notes from the late veteran's treating doctor and conceded that there was no clinical evidence in support of his hypothesis.

Professor Cade was of the opinion that there was no evidence of cardiac failure about four months before Mr�Bourke's death. He had undergone valve replacement surgery in 1991 but there was no evidence of heart disease after that time.

Professor Cade said that there was no known basis for any support for the proposition that ischaemic heart disease would have accelerated the progress of prostate cancer. He described both processes as being entirely separate and unrelated. He did not think that the presence of ischaemic heart disease on the death certificate was evidence of it being a contributor to death. He said that death certificates record major illnesses suffered prior to death and sometimes record other illnesses which did not contribute to death at all. He said the wording of the death certificate is frequently misleading when "cause of death" and "duration of last illness" are both recorded together and information is designed to be given in the same part of the death certificate. He was satisfied that the "cause of death" in this case was carcinoma of the prostate. He said there was not a "shred of support" for any proposition connecting ischaemic heart disease and hastening the demise of Mr Bourke. He also dismissed any suggestion that the ischaemic heart disease impeded the ability of the deceased to survive. He said there would have had to have been cardiac failure or an arrhythmia for survival to have been compromised. He stated that ischaemic heart disease, even if it were present, would have had no effect on the presence or treatment or progress of prostate carcinoma or the ability of the deceased to resist the carcinoma.

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The Tribunal was not satisfied that a reasonable hypothesis had been established connecting the veteran's death with ischaemic heart disease. It said that there was considerable doubt that the veteran had suffered from ischaemic heart disease.

The Tribunal concluded that the hypothesis put forward by Dr Collins raised "no more than a possibility only". The Tribunal referred to the decision of the Full Federal Court in the case of Repatriation Commission v Bey (1997) 149 ALR 721 and said:

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