Bush and Civil Aviation Safety Authority

[2022] AATA 2821

Bush and Civil Aviation Safety Authority [2022] AATA 2821 (26 August 2022)

Division:GENERAL DIVISION

File Number:2021/3837          

Re:Brendan Bush

APPLICANT

AndCivil Aviation Safety Authority

RESPONDENT

DECISION

Tribunal:Deputy President J Sosso

Date:26 August 2022

Place:Brisbane

The decision under review is set aside and, in substitution, the Applicant is issued with Class 2 medical certificate for 12 months, subject to the following conditions:

(a)      it is limited to rotary wing aircraft only;

(b)      no passengers are to be carried;

(c)the medical certificate, and subsequent certificates, are limited to a maximum of 12 months;

(d)the Applicant provides CASA with a 24-hour Holter Monitor reading 6 months and no longer than 7 months after his Class 2 DAME examination;

(e)upon any renewal of his Class 2 medical certificate, the Applicant shall provide CASA with;

(i)a Cardiologist’s report on his Ebstein’s Anomaly condition dealing with any progression of the condition for the period since his last Class 2 DAME examination;

(ii)a Cardiac Stress ECG taken no longer than one month before completing his renewal DAME examination; and

(iii)a 24-hour Holter Monitor reading taken at least 6 months and no longer than 7 months before the date of that Cardiologist’s report.

...............[SGD].........................................................

Deputy President J Sosso

CATCHWORDS

CIVIL AVIATION – Class 1 and 2 medical certificates – Applicant born with and suffers from Ebstein’s Anomaly – ablations to treat atrial flutter – no episodes of syncope – conflicting medical opinion – safety-relevant condition – whether Applicant should be issued a Class 2 medical certificate subject to conditions – decision under review set aside and substituted

LEGISLATION

Civil Aviation Act 1988 (Cth)

Civil Aviation Safety Regulations 1998 (Cth)

CASES

Bolton and Civil Aviation Safety Authority [2013] AATA 941

Collins and Civil Aviation Safety Authority [2017] AATA 2564

D’Amico and Comcare [2018] AATA 54

Mulholland and Civil Aviation Safety Authority [2007] AATA 1952

Window and Civil Aviation Safety Authority [1999] AATA 525

SECONDARY MATERIALS

Administrative Appeal Tribunal, ‘Guideline on Persons Giving Expert and Opinion Evidence’ (30 June 2015)

Convention on International Civil Aviation, opened for signature 7 December 1944 (entered into force 4 April 1947)

International Civil Aviation Organisation, ‘Manual of Civil Aviation Medicine’ (3^rd Edition, 2012)

REASONS FOR DECISION

Deputy President J Sosso

26 August 2022

INTRODUCTION

1. On 10 May 2021, Dr Patricia Beresford, a Delegate of the Civil Aviation Safety Authority (CASA), in accordance with reg. 11.060 of the Civil Aviation Safety Regulations 1998 (Cth) (the Regulations), refused to grant Mr Brendan Bush (the Applicant) a Class 2 Medical Certificate – Exhibit 1 T3 pp. 7 – 13. The Applicant seeks a review of this decision.

2. The Applicant was born in October 1992 and is currently 29 years of age – Exhibit 1 T1 p. 1. The Applicant works on his family’s cattle stations, the largest comprising 64,000 acres and the smallest 30,000 acres, which are all located in Queensland. He lives on Maytoe Station, Alpha, and wants to be able to fly a Robinson 22 to assist in the management of the cattle stations – Exhibit 23 p. 1 paras 1 – 2.

3. The uncontested evidence is that the Applicant has a congenital heart condition which is known as Ebstein’s Anomaly. Dr Collette Richards defined Ebstein’s Anomaly as a condition where the tricuspid valve is placed lower in the right ventricle, with the valve improperly formed, and with regurgitation of blood back from the ventricle through the abnormal valve. This leads to inefficient heart function, with enlargement of the right atria and right ventricle – Exhibit 1 T95 p. 281.

4. In 1997, the Applicant underwent surgery for an atrial septal defect with further surgery in 2006 for tricuspid valve repair. Radio frequency ablation (RFA) was unsuccessfully attempted in 2010 for recurrent tachyarrhythmia – Exhibit 1 T95 p. 281.

5. In a report dated 3 September 2018, Dr Christopher Whight, Paediatrics/Cardiologist of the Princes Charles Hospital, Brisbane, provided the following observations of the Applicant’s heart condition – Exhibit 1 T67 p. 234:

   “…he has a complex history of Ebstein anomaly for which he has had closure of ASD in 1997, followed by tricuspid valve repair and insertion of 27mm ring in 2006.  He has ongoing recurrent atrial arrhythmias and last had attempt at RFA in 2010.  This was performed with great difficulty. Since that time he has had intermittent episodes of flutter which includes two this year, one in January and one in May. He was cardioverted following the last episode in May. His current treatment is rivaroxaban and flecainide 50mg bd.

   During the episodes of flutter, he notes sudden onset tachycardia with other important symptoms such as syncope.  He is fully able to wait for help to arrive and on this occasion called an ambulance…”

6. It is important to note that the second paragraph contained a critical typographical error. The first sentence reads “with other important symptoms such as syncope”. Dr Whight explained in a letter dated 21 December 2021 that “with” should have been “without” – Exhibit 20. In short, during episodes of flutter, the Applicant experiences sudden onset tachycardia without other important symptoms such as syncope.

7. On 7 May 2015, the Applicant was issued Class 1 and 2 CASA medical certificates for one year, with an expiration date in both cases of 19 September 2015 – Exhibit 2 T196 pp. 636 – 637. Both certificates were subsequently renewed – Exhibit 4 p. 1 paras 6 – 7.

8. On 20 November 2018, Dr Sanjiv Sharma, a Delegate of CASA, refused to issue the Applicant Class 1 and Class 2 medical certificates. Dr Sharma made the following observations – Exhibit 1 T80 p. 256:

   “On the basis of the available evidence, I have formed the view that that you suffer from Ebstein’s anomaly with recurrent symptomatic atrial arrhythmias, including atrial flutter, and that you therefore fail to meet the applicable Medical Standard.”

9. In reaching this decision, Dr Sharma quoted the above passage from Dr Whight’s report of 3 September 2018 – Exhibit 1 T80 p. 256.

10. The Applicant sought reconsideration of Dr Sharma’s decision, and made the following submissions for the reconsideration – Exhibit 1 T84 p. 266:

    “It is my opinion that you should reconsider your original decision with a view to granting me the relevant medical certificate. This would allow me to complete my training (to which I have advanced to ‘solo flight’ level). I believe contrary to your initial finding, I do not present an ‘unacceptable risk to safety of air navigation’.

    I bring your attention to the regulations set out in Table 67.150 and Table 67.155. Both these regulations ensure in the beginning that the person applying for the medical certificate:

    Has no safety-relevant condition of any of the following kinds that produces any degree of functional incapacity or risk of incapacitation:

    My medical history does not demonstrate any ‘functional incapacity’ at any time.  During the episodes of atrial flutter I have experienced I have never presented with any incapacitation which renders me unable to call for assistance or move freely.  This is a matter of medical record.

    I have never been rendered unconscious during transportation to a medical facility when these situations have arisen and I have always been able to move freely and communicate effectively with the medical officers present.

    It seems inconsistent to have no medical history of incapacitation and then be deemed to have either a ‘functional incapacity’ or risk of that incapacitation.”

11. Dr Richards was asked by CASA to independently review the Applicant’s case. Dr Richards, after setting out the Applicant’s medical history, reached the following conclusion – Exhibit 1 T95 pp. 284 – 285:

    “In summary, Mr Bush has a congenital heart condition, which together with multiple surgeries, has resulted in a pathological anatomical predisposition for atrial tachyarrhythmias, which is unable to be further managed surgically. He remains medicated on an anti-arrhythmic medication, Flecainide, although has continued to have episodes, to include requiring cardioversion. He continues to demonstrate stable, although not normal, heart function; although continued monitoring is required to detect early change which may indicate further surgery to the valve is required and to detect early evidence of progressive right ventricular dysfunction.

    Mr Bush is having recurrent palpitations secondary to atrial flutter, with possible syncope, and on one documented occasion (whilst hospitalised), haemodynamic compromise associated with superimposed SVT. Mr Bush had previously experienced a relatively long period of time between episodes, however within the last twelve months, he has experienced two symptomatic episodes, whilst continuing to be medicated on an anti-arrhythmic medication.

    These symptoms are at best distracting/subtly incapacitating, but can also be suddenly incapacitating, for example syncope.

    He has an elevated risk of recurrence due to abnormal anatomy, with that risk difficult to quantify, although is considered realised; with the risk of stroke seemingly low, but again difficult to quantify. He has been prescribed Aspirin to minimize the thrombotic complications.

    He is medicated with an anti-arrhythmic medication which is associated with significant adverse effects considered incompatible with aviation related duties. He has however been utilizing this medication for a prolonged period, without reported side effects, although the pro-arrhythmic effects may be delayed. (CASA has previously certified him as fit for aviation duties whilst utilizing this medication.)

    Recommendation

    In my opinion, Mr Bush’s condition is a risk to the safety of flight, and he is unfit for Class 1 or Class 2 certificates.”

12. On 28 February 2019, Dr Ganesh Anbalagan, the Reconsideration Officer, affirmed Dr Sharma’s decision to refuse to issue the Applicant with Class 1 and Class 2 medical certificates – Exhibit 1 T104 pp. 316 – 324.

13. Dr Anbalagan outlined, in detail, the medical evidence he was presented with, including Dr Richards’ report, and made these observations – Exhibit 1 T104 p. 322:

    “On the basis of the available evidence, I have determined that you have an established medical history of Ebstein’s anomaly with recurrent symptomatic atrial arrhythmias, including atrial flutter. You underwent corrective surgery for an atrial septal defect in 1997 and tricuspid valve repair in 2006.

    Your congenital heart condition, together with corrective surgeries, has resulted in a predisposition for increased risk of atrial tachyarrhythmias. Several hemodynamic changes occur with atrial arrythmias and it could lead to symptoms including palpitations, fatigue, light-headedness, shortness of breath, chest pain, hypotension, anxiety, presyncope, or infrequently, syncope.

    While you have previously been able to demonstrate a relatively long interval between episodes of atrial arrhythmia and therefore been previously assessed as suitable for aviation medical certification, in the past year you have experienced an increasing frequency of atrial arrythmia. From the medical reports it is known that in 2018 you experienced at least two episodes of atrial arrythmia, despite continuing use of anti-arrhythmic medication. There are also reports of episodes of persistent atrial flutter linked to your atrial fibrillation. During the episodes of flutter, as reported by your cardiologist, you have sudden onset palpitation with other important symptoms such as tachycardia and syncope. It is also of note that on at least one recent occasion your symptoms have been sufficiently concerning for you to call an ambulance.”

14. Dr Anbalagan then outlined the Medical Standards applicable to the Applicant’s Class 1 and Class 2 medical certificates, namely, Medical Standards 1 and 2 in Table 67.150 and Table 67.155 of the Regulations. Dr Anbalagan decided that the Applicant did not meet those Medical Standards. In such circumstances, CASA may only grant an Applicant Class 1 and Class 2 medical certificates, if there is satisfaction that the extent to which the Applicant fails to meet the Medical Standards is not likely to endanger the safety of air navigation.

15. The symptoms of atrial arrhythmia were stated to be:

    ·incapacitation due to syncope;

    ·overt incapacitation from loss of consciousness;

    ·subtle incapacitation during pre-syncopal phase;

    ·haemodynamic instability;

    ·thromboembolic risk; and

    ·distraction due to symptoms.

16. Dr Anbalagan decided that there was a real and substantial risk that these symptoms would interfere with the Applicant’s ability to safely pilot/control an aircraft and, therefore, create an unacceptable risk to the safety of air navigation – Exhibit 1 T104 p. 323.

17. Having also concluded that a conditional medical certificate would not adequately ameliorate the risks to the safety of air navigation, Dr Anbalagan affirmed the decision to refuse to issue the Applicant with Class 1 and Class 2 medical certificates – Exhibit 1 T104 pp. 323 – 324.

18. On 24 January 2020, the Applicant re-applied for Class 1 and Class 2 medical certificates – Exhibit 1 T121 p. 410. Subsequently, on 6 April 2020, the Applicant withdrew his application for a Class 1 medical certificate, and only sought to be granted a Class 2 medical certificate – Exhibit 1 T153 p. 465.

19. Dr Beresford, Senior Medical Officer with CASA, wrote to the Applicant on 21 August 2020 informing him that, on her initial assessment, he did not meet the Medical Standards set out in Table 67.155 of the Regulations, and, in particular, Medical Standard 2 – Exhibit 1 T149 pp. 455 – 457. Reference was made to the Applicant’s Right Ventricular Dysfunction which Dr Beresford opined presented an unacceptable risk to the safety of air navigation because it may cause the following symptoms or side effects which would interfere with the Applicant’s ability to safely exercise the privileges of a Class 2 licence – Exhibit 1 T149 p. 456:

    ·“Risk of adverse cardiac events as a result of severe right ventricular dilation and dysfunction

    ·Risk of atrial fibrillation causing incapacitating thromboembolism

    ·Risk of symptomatic atrial fibrillation causing haemodynamic compromise, hypotension, presyncope, syncope or distraction

    ·Risk of malignant arrhythmias precipitated by 3^rd degree heart block noted on Holter 10/2019

    ·Risk of progression to symptomatic right heart failure/including venous congestion and hypoxia

    ·Risk of spontaneous bleeding risk whilst on novel anticoagulant

    ·Risk of low g-force tolerance due to low BP response to exercise.”

20. Mr Christopher McKeown of Counsel emailed Dr Beresford on 27 August 2020 informing her that he was looking at the decision of 21 August 2020 and requested that a decision not be made at that time as the Applicant may be presenting further material and submissions – Exhibit 1 T154 p. 476. Dr Beresford, in a letter dated 31 August 2020, informed the Applicant that she had received Mr McKeown’s email and would not be proceeding further until she heard either from Mr McKeown or the Applicant – Exhibit 1 T155 p. 477.

21. The Applicant subsequently provided Dr Beresford with a report of 23 February 2021 from Dr Peter Habersberger, Cardiologist, a Holter monitor report of 1-2 March 2021 and an EPS study and ablation procedure report dated 13 November 2020 – Exhibit 1 T169 pp. 508 – 509.

22. On 10 May 2021, Dr Beresford determined not to issue the Applicant with a Class 2 medical certificate – Exhibit 1 T pp. 600 – 606. In reaching this conclusion, Dr Beresford made the following observations – Exhibit 1 T p. 605:

    “Because of your grossly dilated right ventricle, with severely reduced right systolic function, and with resultant episodes of atrial arrhythmias and increased risk of recurrent atrial arrhythmias, despite previous ablation procedures, as well as the third-degree heart block noted on Holter in 2019, I consider that you fail to meet the applicable Class 2 Medical Standard.”

23. The Applicant seeks a review of this decision.

    THE EVIDENCE

    Introduction

24. The Tribunal received oral evidence at the Hearing from the Applicant, Dr Whight, Dr Habersberger, Mr Anthony Tomkins, Dr Roger Allan, Mr Andrew Thom and Dr Beresford.

25. In addition, the Tribunal has been presented with copious written evidence, including reports and statements from a number of medical professionals.

26. Before turning to the evidence, it is helpful to set out the submissions made by Mr McKeown at the Hearing concerning the Applicant’s heart condition. Whilst Mr McKeown was advancing the Applicant’s case, nonetheless, he provides a useful summing up of the medical background of the Applicant which is of assistance when assessing the evidence that was provided to the Tribunal – Transcript (Tr.) 7.3.2022 pp. 15 – 18:

    “…So, he’s got this congenital heart condition. It’s called Ebstein anomaly and this involves the tricuspid valve, which you’ve seen from the – and have had the benefit of the picture that I sent you, sits on the right-hand side of the heart between the atrium, which is at the top of the heart, and the ventricle at the bottom of the heart.  Now, both sides have an atrium and a ventricle and we’ll deal with the detail about that. Now, there are four chambers of the heart; the left and the right atrium and the left and right ventricle. This particular valve, he was born with an abnormality in that valve and that valve had to be repaired later, and it was repaired. It’s still not 100 per cent efficient but it’s in a range which is totally acceptable in its working order. 

    Now, the right-side of the heart is responsible for the pumping of blood, we call blue blood, from the veins of the body to the lungs and the left-side pumps the now oxygenated blood, red blood, to the arteries of the body and, of course, it’s under pressure. The right and the left side of the heart are made up of these two chambers, as I mentioned, the atrium on top and the ventricle on the bottom and on the right side the atrium fills with blue blood to pump through the tricuspid valve to the ventricle, which pumps to the lungs via the pulmonic value. Part of the Ebstein anomaly is the existence of the enlarged right atrium and ventricle and it becomes enlarged, you’ll hear, because of the performance of the tricuspid valve. 

    You’ll hear how they both are quite large compared to the left side. With the tricuspid valve repair completed, there remains a bit of a regurgitation back into the atrium but not enough to cause a disability but enough to require Mr Bush to take an anticoagulant. I’m confident when I say that the issue with Mr Bush is not so much the regurgitation of the tricuspid value, or his enlarged atrium and ventricle on the right side, the issue is a rogue electrical circuity going off in the right atrium causing a flutter. However, it’s not an incapacitation and you’ll hear from the experts how the experience – and from the applicant has no incapacitating effect, or direct effect, upon the applicant when he is in flutter and, Deputy President, this flutter goes on for hours. We’re not talking a short period, you will hear. 

    There are two nodes in the heart. The first is the sinus node, which sits up the top of the atrium. Sort of between the right and the left, but more so on the right, and this generates a pulse, sometimes referred to as the natural pacemaker. It’s a cluster of specialised cells located in the top of the right atrium. It sends a pulse to both atriums. So, both sides are going off together. It sets the heartbeat speed and responds to stimuli like exercise. If there is a rogue circuit in the muscles of the atrium, this circuit can cause the atrium to contract unevenly and, out of time, thereby causing this flutter. It’s arrhythmia. It is just a term for an out of beat heart. If a heart is beating normally, then, of course, it’s said to have a sinus rhythm. 

    The other node, the atrioventricular node, known as the AV node, and you’ll see them in that picture that I’ve given you of the nodes. The AV node is primarily a delaying or filtering node. So, it delays the pulse from the sinus node. I’m reminded of my early days working as a powder man at Mount Newman, more decades ago than I care to dwell upon.  But we would blow up shelves, 50 foot shelves, and maybe do three at time and we’d light the fuse at the first shelf on the bottom and the explosive fuse would go up to the next shelf but we didn’t want the next shelf blowing up at the same time as the lower shelf, so we’d put a detonator on the explosive Cordtex line to delay that a fraction enough to make sure the lower bench went off first, or the next bench and then the next bench.

    The AV node does the same because the atrium contracts, pushes blood into the ventricle below and if they both went off together, the ventricle would be contracting when it wasn’t full of blood. So, the atrium pushes blood into the ventricle and there’s a pause and that’s the AV node pausing just long enough to allow the ventricle to then fill with blood from the atrium and so then the ventricle goes off, it contracts.  This is important to when we get into the details of this case, Deputy President, as to what’s going incapacitating when we have an atrium flutter.

    The AV, I should say, is also – you’ll be pleased to hear, as I certainly was when I read it, a secondary pacemaker in the event the sinus node fails to pulse. You should hear the right atrium flutter, or arrhythmia, is not immediately life-threatening, and that’s our case, and it’s not immediately incapacitating. When it is in flutter, the ventricle continues to beat, pushing blood into the lungs because the AV node is filtering out these pulses that are coming in flutter too quickly. A flutter is something that’s distinct from a defibrillation. They’re not the same. They both cause an arrhythmia. Now, arrhythmia is the collective word, you know, as I said before, of a heartbeat that’s not beating properly, such as a lawyer refers to his solicitor or a barrister. 

    Mr Bush doesn’t suffer from atrial fibrillation. He’s only suffering from flutter. He’s experienced atrial flutter at time, a good time, and it doesn’t cause any issues for him you’ll hear. The difference, the flutter is an out of sequence heartbeat, whereas defibrillation is more of a quiver than a full heartbeat and the experts, I trust, will explain this in more detail if asked. Defibrillation, actually, is more common in society than a flutter but both are generally well tolerated without incapacitation. 

    Now, Deputy President, there’s a procedure known as an ablation. 

    DEPUTY PRESIDENT: Sorry, what was that, Mr McKeown?

    MR McKEOWN: There’s a procedure known as an ablation, a-b-l-a-t-i-o-n. In Mr Bush’s case, he’s had a few. He’s had three. In an atrial flutter, you get this rogue electrical beat. Like a signal, I should say, a rogue electrical signal and the ablation comes in through the veins and up into the heart and it attempts to burn and, therefore, neutralise the area which is causing this rogue circuitry. So, that’s the ablation, Deputy President. Then we have the cardioversion. So, the ablation is a procedure that’s carried out with some sort of prophylactic hoax because when you have an ablation, you don’t necessarily have a flutter at the time that you – you don’t have a flutter at the time, you’re actually having the ablation. Whereas the cardioversion, that is the mechanism by which the heart is put back into sinus rhythm. 

    So, he suffers this atrial flutter. You’ll hear evidence from him, I’m anticipating, where he gets himself to the hospital and they – what we call, I call it paddle. It’s the two paddles that you see in films where they put on the heart and they shock the heart and the heart then reverts back to normal sinus rhythm. So, that rogue atrial circuitry is neutralised by the shock of the paddles and the heart goes back into sinus rhythm.  There’s no rush about this. It happens. They do it because there’s no problem being an atrial flutter all the time, so they give the applicant with the paddles and he goes back into a normal heartbeat. The respondent, you will hear, says ‘Oh my God, anytime he’s in atrial flutter, he’s no good’ when, in fact, he carries on a normal life during that time that he’s in flutter; walks, drives, exists normally. But he feels the heart beating out of rhythm and so it’s fixed up. 

    His last cardioversion was in February 2020. Following this, he had his last ablation, which was November 2020. In November 2020, he has his last ablation and he’s had no treatment of the heart and he’s had no arrhythmia since June of 2020 and you’ll hear evidence about the June one. The June one, he goes off – to cut to it, he goes off and the heart goes out of beat and he goes off to the hospital and resolves it.

    DEPUTY PRESIDENT: When was his last flutter?

    MR McKEOWN: June 2020. He wakes up in the morning and it gone. They test him and say, okay, you’re right to see (indistinct). Because when he goes to the Claremont Hospital, you’ll hear, which is his nearest hospital, they won’t put him on the paddles if there’s no surgeon. He volunteered to me the other day that he hoped that they would if he feels flat tired but they won’t if he’s not flat tired, put him on the paddles. He has to go off to a hospital where there’s a surgeon to do the job and when they put him on the paddles, they give him a twilight, they knock him out, and then shock his heart into rhythm, into proper sinus rhythm.

    So, the first ablation was done in 2014 and that wasn’t successful. The second was in 2019, and that was successful, and the 2020 November ablation, which per se is successful, given the 15 months that have elapsed. But, interestingly, the medical evidence will show you that the 2019 ablation was confirmed in the ablation done in 2020…”

    Set out below is a summary of the evidence presented to the Tribunal.

    The Applicant

1. The Applicant provided the Tribunal with a statement dated 10 December 2021 – Exhibit 23.

2. The Applicant stated that he is a single man working on his family’s cattle stations. He lives on one cattle station located approximately half-way between Rockhampton and Longreach and wants to fly a Robinson 22 Helicopter to assist in the management of his family’s business – Exhibit 23 p. 1 paras 1 – 2.

3. He applied for his first medical certificate on 19 September 2014 and, after considering, inter alia, the Applicant’s medical condition and history, CASA issued his first Class 1 and Class 2 medical certificates on 15 May 2015, which were backdated to 19 September 2014 when he underwent his DAME examination – Exhibit 23 p. 1 para 3.

4. The Applicant’s heart went out of rhythm on 22 February 2015 and the Applicant stated that he could feel it occurring. An ECG was performed at Clermont Hospital, which confirmed his heart was out of rhythm and he was then transferred to Mackay Base Hospital where he was given a cardioversion. Subsequently, the Applicant’s heart return to a normal beat. At no time did the Applicant lose consciousness, and while he felt uncomfortable, he was able to fully function and talk with others, including walking with no loss of control of any limbs – Exhibit 23 p. 1 para 4.

5. On 18 October 2016, whilst in Townsville, the Applicant’s heart, again, went out of rhythm. The Applicant went to Townsville Hospital where he underwent an ECG confirming his heart was out of rhythm, and a cardioversion was subsequently performed. The Applicant states that he knew immediately when his heart went out of rhythm and at no time did he lose consciousness or control of any bodily functions – Exhibit 23 p. 2 para 6.

6. The Applicant’s heart, again, went out of rhythm on 28 January 2017, and he was driven by his parents to Clermont Hospital where an ECG was performed confirming this. Again, he was flown to Townsville Hospital for another cardioversion where his heart returned to a normal beat. As with the previous episodes, the Applicant did not lose consciousness or lose any bodily functions – Exhibit 23 p. 2 para 8.

7. A similar sequence of events occurred on 30 January and 18 November 2018, 4 February 2019, and 18 February and 18 June 2020 – Exhibit 23 pp. 2 – 3 paras 11, 14, 15, 19 and 20.

8. Whilst in Townsville on 21 May 2018, the Applicant’s heart went out of rhythm. Again, he was admitted to Townsville Hospital where he underwent an ECG and cardioversion. As with previous episodes, the Applicant did not lose consciousness or loss of any bodily functions – Exhibit 23 p. 2 para 12.

9. On 8 March 2019 and 13 November 2020, the Applicant underwent ablations at the Prince Charles Hospital, Brisbane, and, on 30 October 2019 and 1 October 2021, he went ECG stress tests at the Princes Charles Hospital. In addition, MRIs of the Applicant’s heart were performed on 25 May 2020 and 1 October 2021 – Exhibit 23 p. 3 paras 16, 18, 21, 22 and 24.

10. The Applicant made the following statement – Exhibit 23 pp. 3 – 4:

    “22.On 13 November 2020 had another ablation done at Prince Charles Hospital. Since this procedure my heart has not moved out of rhythm and seems to me to have been beating perfectly normally. I would know if it was not beating normally as I can immediately feel my heart’s out of rhythm beat and am well experienced noticing this symptom.

    …

    25.Since the ablation procedure in November 2020 my health has been perfectly normal. I have provided CASA with all my medical procedures and tests and done additional tests at their request including 48 hours of Holter reading on 21 and 23 September 2021.

    26. My treating cariologist [sic] Dr Whight, has indicated to me that a Stress ECG every 12 months and a 24-hour Holter reading every 12 months but with 6 months between each, should be sufficient to monitor for any early changes in my heart’s condition. In the interests of ensuring safety, I would of course be willing to do this and provide CASA with the results.”

11. The Applicant gave testimony on the first day of the Hearing on 7 March 2022. He testified that his family have five cattle properties in central Queensland, which are all located in remote areas. By road, the closest property is 60 km from his home and the furthest property is approximately 150 km away. Whilst the Applicant originally wanted to muster cattle by helicopter, his situation has changed, and he testified that he just wanted to fly helicopters to travel between the properties. He explained that there are no towns located between the properties and he would be flying over mostly mulga country – Tr. 7.3.2022 pp. 28 – 29.

12. Mr McKeown asked the Applicant about the various incidents when he experienced heart flutter. Starting with the most recent, namely 18 June 2020, the following exchange occurred – Tr. 7.3.2022 pp. 23 – 24:

    “…What happened then?---On that day I was out on Maytoe working. I was on a loader all day cleaning our dam and I’d finished work for the day. I’d gone home and I was in my – my place at my house on the property and I was sitting in my chair, just watching TV, and then I felt the beat of my heart change and then I knew straightaway what it was because I’m very familiar with it and, as I felt the beat, I rang across to my parents’ place and got my – my mother answered the phone. I told her what had happened and then my mother and father went and got the vehicle, got a vehicle to take us to town and while they were doing that I packed myself a bag and then they seemed to drive over to my place and once they got there, I picked up my bag. I walked out to the vehicle. I put my bag in the vehicle and I hopped in the front passenger seat.

    Can I just stop you there, what sort of period – first of all, what time was it that you sat down to watch TV?---It would have been about 7 o’clock I started watching TV.

    And then how long did it take after you rang your mother – well, I’ll rephrase that.  How long was it since you noticed the beat of the heart to when you got in the vehicle?---It would have only been about 15 minutes. The time I got the beat, go out straightaway and, yes, I rang over to my parents’ place and told them. They grabbed – they went and got the vehicle and while they were doing that, I packed myself a bag. Once they pulled up to my place, I walked out to the vehicle, put my bag in the vehicle and then, obviously, I hopped in the front passenger seat. My mother was sitting in the back. My father was driving and then we proceeded to drive to the Clermont Hospital, which is about an hour’s drive from where – from where I live into Clermont. On the way into town, once we got on to phone services, my mother rang ahead and told the Clermont Hospital that we were coming. Then we arrived at the Clermont Hospital. We pulled up at the emergency exit – emergency entry. My mother got out and she rang the doorbell and the nurse walked out and – to meet us and once she – we told her who we are when we got there. So, the nurse went back inside, grabbed the wheelchair for me and brought the wheelchair back out to the vehicle and then I walked from the vehicle to the wheelchair and they wheeled me inside and I hopped out of the wheelchair into the bed and then they hooked me on to an ECG machine and took an ECG. Put the heart monitoring machine on me. Did blood pressures and then they asked the normal questions, your full name and date of birth.

    Yes. And then just stopping there, if you may. You wheeled – this wheelchair is coming out to you; did you need a wheelchair?---No, I would have been right to walk inside but they brought a wheelchair out to me.

    And then after they’ve done the tests on you, what time was it that all finished?---Very close to – somewhere between 9.30 and 10 o’clock.

    And what happened then after the tests were done?---They were – I was – the doctor then rang – rang some different hospitals, usually Mackay, Townsville and Rocky and see if they could find a bed for me because I’d get flown out and just to a hospital that’s got a spare bed. They couldn’t get – couldn’t get a flight out. There was no beds available that night but I was stable, conscious, so I spent the night at the Clermont Hospital and when I woke up the next morning my heart has self-corrected itself during the night.

    I take it you then left the hospital?---Yes, the following morning I felt the beat was gone when I woke up the following morning and I had a look at the monitoring machine and I could see that it was back in sinus rhythm and the doctor walked in and he told me that your heart corrected – my heart had corrected itself during the night and then I spent about 15 minutes at the hospital. I was standing up talking to the doctor and waiting for my mother to arrive and then, yes, we proceeded to leave the hospital.”

13. The Applicant also recounted other episodes, but his testimony was similar. In short, the thrust of the Applicant’s testimony was that:

    (a)he could immediately feel the onset of his heart going out of rhythm;

    (b)he was not immobilised by the onset of the condition;

    (c)he was not rendered unconscious;

    (d)he maintained bodily function; and

    (e)after treatment at hospitals, his heart would return to normal rhythm within 24 hours.

14. The Applicant’s version of events when experiencing his heart going out of rhythm was not challenged by the legal representatives of CASA at the Hearing – Tr. 7.3.2022 pp. 29 – 30.

    Dr Christopher Whight

15. Dr Whight has been treating the Applicant for his heart condition since shortly after he was born – Tr. 7.3.2022 p. 41.

16. During his testimony, Dr Whight explained that he had been specialising in adult congenital heart disease for 30 years and had and has many patients with “complex hearts” similar to the Applicant’s. In particular, he had numerous patients who suffer from either chronic atrial fibrillation or atrial flutter – Tr. 7.3.2022 p. 36. In short, the Tribunal accepts that Dr Whight is a professional with extensive experience in treating persons with chronic heart disease.

17. The Tribunal has been presented with a number of reports prepared by Dr Whight for CASA dating back to 2015. The Tribunal also had the benefit of hearing Dr Whight give testimony on the first day of the Hearing.

18. In his report of 6 October 2021, Dr Whight noted that “following his ablation procedure in November 2020, Mr Bush has remained well with no clinical history of recurrence of palpitations” – Exhibit 13 p. 1.

19. Further, Dr Whight noted that the Applicant had a normal blood pressure at 110/70, and a heart rate of 72/minute. Importantly, he opined as follows – Exhibit 13 p. 1:

    “He had no sign of heart failure and had a late diastolic murmur probably tricuspid in origin.”

20. Dr Whight set out the results of an echocardiogram performed on 7 September 2021, a maximal exercise test conducted on 1 October 2021, a cardiopulmonary exercise test on 6 September 2021 and a 48-hour Holter on 21 September 2021, and then summarised his findings as follows – Exhibit 13 p. 2:

    “Mr Bush maintains stable clinical progress, working on his family property, with no clinical symptoms.

    Echocardiogram shows right heart pathology consistent with underlying Ebsteins anomaly following surgical repair as previously noted, with preservation of normal left heart function, with no discernible change from previously.

    Cardiopulmonary testing demonstrated a work capacity at around 70% of predicted normal.

    No significant arrhythmias have been detected either clinically or on 48 Hr Holter.

    Exercise testing has indicated good exercise tolerance, with no inducible arrhythmias, though limited BP response. These findings are very similar to those of October 2019 and are consistent with stable lifestyle with capacity for normal workload in every-day activity.”

21. Turning now to the Hearing, the Tribunal notes that Dr Whight was an impressive witness who gave direct and incisive answers to the questions he was asked.

22. At the outset of his testimony, Dr Whight clarified, as noted earlier, a typographical mistake in one of his reports – Tr. 7.3.2022 p. 32:

    “…I made reference to syncope but it was clear that it was a typo because Brendan has never had a syncopal episode. He’s never lost consciousness… He’s only been light-headed but he’s never been unable to respond, to be aware and function.”

23. Dr Whight testified that the Applicant had not suffered from atrial fibrillation and stated as follows – Tr. 7.3.2022 p. 33:

    “I see. This man has, I think you said, atrial flutter. You said atrial flutter, what about atrial fibrillation?---Atrial fibrillation is an entirely different scenario. It’s something that Brendan has never experienced. This is a situation in which instead of the atria contracting at a regular, or a very fast rate, the atrial fibrillation quiver and the speed of contraction of the atria in atrial fibrillation is way, way higher; 400, 450 beats per minute and, in such patients, it is essential that the AV node does not – cannot conduct that, or any other pathway could conduct, at that speed into the ventricles, otherwise the patient will go from atrial fibrillation into ventricular fibrillation and they’ll die. Brendan has never had an atrial fibrillation.”

24. Next, Dr Whight was questioned by Mr McKeown about heart blocks. Dr Whight testified that a heart block is a generic term meaning a block in the conduction system from the atria to the ventricles, and that there are various grades of heart block. When questioned about the Applicant’s Holter readings, Dr Whight provided the following response – Tr. 7.3.2022 p. 33:

    “And with Brendan, what do the Holter readings show?---It did demonstrate varying degrees of block, including very short periods of complete heart block and these have occurred at night-time with an escape rhythm of around 30 to 40 a minute, which is, in fact, not uncommon even in the normal population. Normal people, if we do Holters, will often demonstrate varying degrees of heart block at night, particularly with patients who are athletic or who have – what are called high vagal tone, in which the parasympathetic system slows down the conduction pathway. Sympathetic speeds it up. But with the dominance of the parasympathetic system, period – brief periods of even complete heart block are not uncommon in the normal population. So, to find this in Brendan is not particularly surprising and if it – and if they are of limited duration, which is what the Holter has demonstrated, they’re not – not of clinical risk to him.

    Was he asleep when these occurred?---I believe so. There are overnight Holters.”

25. Dr Whight testified that the Applicant’s exercise tolerance was “very good” based on the results from numerous exercise tests, including recent ones and that “he could exercise very well for a duration [of] 13 minutes and, more recently… he achieved a very high level of oxygen uptake of functional capacity” – Tr. 7.3.2022 p. 34.

26. Dr Whight explained that the Applicant would experience atrial flutter for a prolonged period of time, including overnight, but then went on to testify that it was unlikely that the Applicant would experience sudden incapacitation – Tr. 7.3.2022 pp. 34 – 35:

    “Yes. Now, is there any likelihood of incapacitation and, if so, what is it, while he’s in atrial flutter?---In my opinion, it’s very unlikely that he would experience a sudden incapacitation related to going into atrial flutter.

    Can you be more specific about that? Is there a percentage?---Well, if you look at the risk stratification of a young man who’s, let’s say, in sinus rhythm at the moment, that’s where we’re starting from, the probability of him developing atrial flutter, given that he has been in sinus rhythm now for – I think his last episode was in 2020, unless there have been other short brief episodes in-between that I’m not aware of.  In other words - - -

    There haven’t been, he’s given evidence?---Sorry?

    He’s given evidence that there’s not been?---Okay, that’s good because the point is, he’s now – he’s in sinus rhythm and been in sinus rhythm for a long time. It’s not something that changes dramatically. The second – in terms of stratification, he’s aware that when he goes into actual flutter, so there is this concept of time that he has available for him to seek medical attention and we know that from previous experience he has been in atrial flutter for many hours before seeking attention. So, in terms of risk stratification, in terms of risk of sudden death or sudden collapse – not sudden death, collapse, we have a small risk of going into atrial flutter that in the course of, let’s say, six or 12 months, whatever, maybe 10 per cent. Now, his AV node, we’ve seen only on one occasion for a limited period of time has the capacity to conduct one to one. His AV node is not actually of – I don’t categorised as poor quality but it has the capacity to block quite readily, and this is the point, it protects him, if this makes sense. 

    M’mm?---The probability of him, therefore, developing a one to one conduction, which is potentially life-threatening, I’ve based on the evidence that we have is that it is extremely small, probably less than 10 per cent in the acute period. But we also know that that is very unlikely to continue for a period of more than five or 10 minutes. So, the possibility of (a) developing flutter, he’s aware of it, developing flutter with no protection from his AV node for a period of time that will produce syncope, I think this probability is way, way less than one per cent for that cascade of events to take place to put him – to put him at risk.

    And if I’m hearing you correctly, the fact that he goes into atrial flutter, so what?---It’s not – that’s not that critical because we know that his AV node protects him.

    Yes?---And he’s – and he’s aware of it and he can take it – take what action is required to get out of trouble.”

27. Turning to the issue of incapacitation flowing from atrial arrhythmia and thromboembolic phenomena, the following exchange occurred between Mr McKeown and Dr Wright – Tr. 7.3.2022 pp. 38 – 39:

    “MR McKEOWN: Correct me if I’m wrong, doctor, as I hear your evidence, you’re not saying that the atrial arrhythmia is a risk of incapacitation?---Not – not per se. I should qualify that slightly. If you really want to be global, people with atrial arrhythmias, such as have a flutter or fibrillation, they do need protection for it because the atria is not functioning properly and it’s dilated, it can develop clots. That can be a risk to their health and go into the lungs but he’s on anticoagulation to offset that. So, apart from that aspect, a fact that the atria might be fibrillating, or in flutter, it’s not a great issue in itself.

    Is there any risk of thromboembolic phenomena, including risk of stroke, from atrial flutter?---Yes, there is and that’s why – that’s why he’s on anticoagulation. Yes, the stroke can occur because both atria are abnormal – contracting abnormally. So, the thrombus blood clots could occur, develop in either the right or the left atrium, and, in particular, the left atrium appendage, or the – either atrial appendage, if it occurs on the right side, it doesn’t produce a stroke, it would produce blood clots going to the lung. If it occurs on the left side in the atria, it would – it could potentially go to the brain and cause a stroke.

    Yes. Now, looking at Mr Bush’s condition, is that a serious risk of incapacity?---It’s a small ongoing risk of incapacity. Some who’s anticoagulated, the risk is, you know, perhaps a few per cent a year.

    A few per cent a year?---I would be guessing but it’s low.

    And is it the case he’s taking an anticoagulant to protect against that?---Yes, yes.

    Are you looking at the position of somebody not taking anticoagulant presenting that risk, or is it somebody with coagulant taking - - ?---Someone without the anticoagulant would be at much higher risk but the risk is importantly mitigated by taking anticoagulants. 

    Yes. And having atrial fibrillation, does that cause him to have syncope, or pre-syncope?---Not specifically, no. 

    People that have atrial flutter, in your experience, does that manifest itself in the person not being able to operate, or be distracted?---No.

    And what chance is there of a risk of sudden death if there’s an atrial flutter?---Extremely low in isolation. Simply the flutter itself, that’s not – but it’s the consequences of the flutter, as I say, in terms of AV node conduction ventricular response. They’re the issues that could be – cause the risk, not the flutter or the fibrillation itself because, as I say, we have many patients in chronic – chronically in atrial flutter or fibrillation who are fine because – if their ventricular rate is controlled.

    And is that the case with Mr Bush?---Yes. Well, that’s when he was in flutter. Most of the time he’s in sinus rhythm. 

    Yes, which is not an issue, it’s normal?---That’s right.

    It’s normal?---Correct, yes.”

1. As will be seen, Dr Whight testified that when the Applicant experiences atrial flutter, it does not cause him to experience syncope, and most of time he is in sinus rhythm. Further, in Dr Whight’s extensive experience, atrial flutter does not manifest itself in a person not being able to operate machinery (including helicopters) or to be distracted.

2. Next, Mr McKeown asked Dr Whight about a proposed regime of supervision and recordings for the Applicant should he be granted a Class 2 medical certificate. The following exchange occurred – Tr. 7.3.2022 p. 40:

   “The applicant, Mr Bush, has suggested a regime to the respondent of supervision and recordings and reporting to it on his cardiac condition, which involves a cardiac stress exercise test each 12 months and a Holter each 12 months but with a six months gap between those two recording being taken. Is that clear in your mind?---I think that would be reasonable.

   Is that regime going to show up any abnormality, or any deterioration, of his condition?---Yes. It will likely show up issues related to his exercise capacity, potential electrical instability when he exercises; it would also show us what’s happening in terms of AV node conduction, particularly when he’s asleep; whether there is increase in a heart block that might potentially be a risk to him. So I think there are many many points that are important to monitor and document: his electrical stability, his functional stability, both at rest and on exercise. I think that is – now on top of that, I think with Mr Bush it’s particularly relevant that he is always aware when he goes into atrial flutter. This is a key issue. Is this a fair comment?

   MR BUSH: Yes, I’m happy with that. I (indistinct words)?---He is aware of it, and we also note that when he goes into flutter there is ample time for him to take appropriate action – such as, you know, stop driving his car or what have you – to take appropriate action to have that addressed. Because we also know, given the quality of his AV node – it cannot conduct at high rates for a sustained period of time – that he has demonstrated very adequate time to seek medical attention before he is at serious risk.

   MR McKEOWN: Looking at a period of 60 minutes from the commencement of his arrhythmia. During that 60 minutes, is there any possibility – have you got a percentage or a risk factor that you could put on him of him experiencing an incapacitating event after the onset of atrial flutter?---Within 60 minutes? It would be extremely small. Probably less than 2 per cent, less than 1 per cent. I mean, you can calculate because we know that his AV node cannot conduct for longer than minutes. 60 minutes would be an inordinately long time for the AV node to conduct and put him at risk. So I think his risk over that period of time would be close to 0.” 

3. Again, Dr Whight testified that the risk of the Applicant experiencing an incapacitating event within 60 minutes from the commencement of atrial flutter to be extremely small, probably “less than 2 per cent, less than 1 per cent” – Tr. 7.3.2022 p. 40.

4. At the conclusion of the examination in chief, Mr McKeown asked Dr Whight if there was anything further he wanted to draw to the attention of the Tribunal. In response, Dr Whight referred to a report of Dr Allan wherein it was stated that he said that the Applicant’s right ventricle would fail further with time. Dr Whight then gave the following testimony – Tr. 7.3.2022 pp. 42 – 43:

   “Yes, certainly?---My response is quite simply that this is a subjective comment with no reference to a timeframe. Does he imply a matter of weeks, months or years?  From the information we have, there is no indication of impending short-term failure, i.e. over, say, month – we have evidence of stability for lengthy periods of time – or even over the next 1 to 2 years based on the data from 2018. He does not indicate any mechanism for failure. What is meant by failure? Does he imply a mechanical inability to provide adequate cardiac output and blood pressure when at rest or when flying? Does he imply acute dysrhythmia to compromise cardiac output? Does he imply a slow deterioration with time? My criticism, if you like, of those comments is that he gives no indication of the whole clinical picture, or the symptomatology that would be present in the event of something changing. To me, every – his right ventricle may well deteriorate with time. It’s not going to happen suddenly. It may take years. We are talking about in the foreseeable future. 

   DEPUTY PRESIDENT: Would that be part of the normal aging process for most people?---Well I think most of us tend to age day by day. The answer’s yes.  

   Okay. So a deterioration isn’t something out of the norm?---Not out of the norm. But also, it’s something which we closely monitor, we take into consideration in terms of his management. That’s our job.”

5. Under cross-examination, Dr Whight testified that, in the next twelve months, the Applicant’s heart condition was “with a very high probability of around 99 percent if you want to put a percentage on it, of the same stability” – Tr. 7.3.2022 p. 44.

6. Dr Whight went on to opine that the Applicant’s annual risk rate for suffering from cardiac events to be 0.002 per cent – Tr. 7.3.2002 p. 44.

7. Ms Carol Swain, on behalf of CASA, asked Dr Whight the following questions – Tr. 7.3.2022 p. 46:

   “Okay. If Mr Bush was to experience an arrhythmia, or an atrial fibrillation, what could be the symptoms that he might experience?---He would feel his heart suddenly racing and feeling funny or abnormal. He can tell straight away when it happens.

   Yes. Is it possible that those symptoms could come on suddenly?---Well it can happen. Theoretically, yes, it can happen at any time. The question is whether he is aware of it and whether he has appropriate time to take appropriate action. And I’ve made the point that in the context of his conduction system, he has demonstrated ample time to identify it and to take action.”

8. At the conclusion of the cross-examination, I asked Dr Whight whether, in his professional opinion, the Applicant’s heart condition was deteriorating, stabilising or getting better, and the following exchange occurred – Tr. 73.2022 pp. 48 – 49:

   “Right. Doctor, you’ve been treating Mr Bush his entire life pretty much?---Pretty much. 

   Is his condition, in your opinion, getting worse as it’s getting older? Is it stabilizing?  Is it getting better? How - - -?---No, no. We have – I think to be honest, to give you the information, it’s in this document here. 

   Yes, but I’m just asking you?---Sorry? This - - -

   Seeing as I’ve got the pleasure of your company now, you might entertain me by just giving me a short reply?---I’ll be delighted to entertain you if that’s what it takes.  

   I’m in your hands (indistinct)?---This is a table of RV parameters by MRI from 2014 to 2021. And this question of degree of deterioration, progressive deterioration and what can one reasonably look forward to is highly relevant. And that’s why I put together this table of information from 2014, 2018, 2020, 2021, identifying the particular parameters that I’m looking for to quantitate and determine his natural, or unnatural if you like, progression. And what we find is in 2014 his estimated cardiac index was 3.3 litres per meter squared, his tricuspid regurgitation was estimated at around 31 mLs. Take that figure, 31 mLs. Cardiac index 3.3 litres per meter squared. His EF, in the context of his volume, his size, was 16 per cent, but that’s not particularly relevant because the end point is the cardiac index. Then we look at 2018, 2020 and 2021, and we find that in fact in 2021 his cardiac index estimated from the MRI volumes was 2.6 litres per meter squared. So it’s dropped marginally, from 3.3 to 2.6. That’s in a period of 8 years, a long time. A very slow decline. The tricuspid regurgitation was estimated, for what it’s worth, at only 15 mLs. So that suggests that for whatever reason, the tricuspid valve wasn’t actually getting worse. It was remaining very much the same. And the only thing that’s changed is slightly – and that’s where we come to function. The function of the ventricle had changed marginally for the index to drop from 3.3 to 2.6. Now if you want to extrapolate further forward, from 2018 to 2021 there was no change in his parameters. Now I cannot tell you whether or not in 2024 it’s going to be identical to now. But all I can tell you is the information that we have over those last 3 years is a flatline – but not a flatline because he’s dead, a flatline because everything is staying the same. So I can’t tell you what’s going to happen in the years to come, but all I know is - - -

   No, no, I’m not asking you to do that. I’m saying, you can only tell – you know, the best vision in life is rear vision. It’s always clear. Any clear vision is rear vision. But all I’m asking you is not to be a Nostradamus, to predict the future. It’s to say, as of this day, having regard to his medical history up to this point, you’re saying to me that basically in the last number of years he’s stabilized?---Yes. Absolutely. 

   Is that the bottom line?---That’s precisely what I’m saying. And it’s justified and validated by very careful analysis of his - - -”

9. As will be seen from this exchange, Dr Whight was of the opinion that, over the past three years, the Applicant’s heart condition had stabilised.

   Dr Peter Habersberger

10. Dr Habersberger, Cardiologist, prepared a number of reports with respect to the Applicant, as well as giving testimony on the first day of the Hearing.

11. Dr Habersberger has an extensive history in the field of cardiology, and was a Consultant Cardiologist for CASA from 1984, a lecturer at the Institute of Aviation Medicine, RAAF, from 1982 to 2003, and President of the Victorian Branch of the Australasian Society of Aerospace Medicine from 1995 until 2015 – Exhibit 16. This extensive experience was also dealt with during Dr Habersberger’s testimony – Tr. 7.3.2022 p. 56:

    “Now do you have any particular experience involving cardiac conditions in pilots?  ---I do, yes. For many years.

    Good. Tell me about that. Tell the tribunal – when I say me, please assume I’m talking about the tribunal?---Well I first developed an interest in cardiac problems in pilots when I undertook a RAF aviation medicine course at Point Cook in 1981. And it became apparent to me at that time that there was a concern about – basically pilots were excluded from flying even if they had the most simplest of heart issues. And so it was thereafter that I became much more interested and I’ve been able to, I think, help CASA and the Aviation Medicine Department in helping them make decisions about who is fit and who is not fit to fly. And I’ve been doing that ever since 1983 as such.”

12. The Tribunal was impressed with the testimony of Dr Habersberger. He is a professional of many years’ experience, and, in addition, with particular expertise in the field of aviation medicine. The Tribunal formed a positive view of Dr Habersberger’s testimony. Clearly, he was a passionate professional, but the Tribunal formed the view that his testimony was tempered by his overriding professionalism.

13. During his testimony, Dr Habersberger stated that he had appeared before the Tribunal in the past and had provided professional advice to CASA – Tr. 7.3.2022 p. 56.

14. First, under questioning from Mr McKeown, Dr Habersberger gave the following testimony about his view of the Applicant’s heart condition and his ability to fly a helicopter safely – Tr. 7.3.2022 p. 57:

    “You’ve had the benefit of seeing the decision that was made by CASA to keep Mr Bush on the ground?---I have.

    Yes. And have you got an approach to that?---Well my feeling is that it was unreasonable. Now there are two aspects to this particular case as I see it. First of all that he has Ebstein’s anomaly, and that’s a pretty rare cardiac condition, a condition which generally speaking is associated with a reasonably long and healthy life. And (indistinct) may not be aware as often (indistinct) until quite later in life. So that’s one aspect. The other aspect which affects Mr Bush is that he does have some cardiac rhythm disturbances for which he has had ablation, radiofrequency ablation, on three occasions. And my understanding is since his last ablation that he hasn’t had any more problems with cardiac arrhythmias. Now cardiac arrhythmias can be a nuisance, and certainly in some patients may be difficult to live with; but other patients have infrequent arrhythmic disturbances that cause very little problem to the patient or to the pilot. And that’s the way I see the situation in this case with Mr Bush, is that he has had arrhythmias, he has had appropriate treatment, he is on appropriate treatment at the present time – Rivaroxaban – should he develop a further arrhythmia. But my understanding is from the testing that he has had that he is fit, he’s active, he’s asymptomatic, and I can see no good reason why he should not be able to pilot a helicopter.”

15. In short, Dr Habersberger was of the opinion that there was no good reason why the Applicant should not be able to safely pilot a helicopter.

16. When next asked about determining whether an ablation procedure of the type that the Applicant has undergone has been successful, Dr Habersberger testified as follows – Tr. 7.3.2022 p. 57:

    “When somebody has an ablation, is there a period of time after that ablation which one looks at to see the success of the procedure?---Well generally we say 6 months. And if a patient hasn’t had any problems for 6 months, we say to them well look, hopefully you’re cured. Now that may or may not be the case, because things do or can reoccur in the future. But 6 months is a good test as to the efficiency of the procedure that Mr Bush had.”

17. Dr Habersberger went on to testify that some persons experiencing an atrial flutter are not aware of it when it occurs, and most patients only complain of palpitations. In addition, Dr Habersberger testified that persons are not incapacitated by an atrial flutter, and many people have atrial flutter “a lot of the time”. An atrial flutter can continue for “minutes, hours, days, weeks. And some patients are permanently in atrial flutter”. However, Dr Habersberger testified the important issue is not the atrial flutter per se, but the rate at which the atrial flutter goes – Tr. 7.3.2022 p. 57.

18. Mr McKeown then asked Dr Habersberger about the proactive role of the AV node, and the particular circumstances of the Applicant – Tr. 7.3.2022 p. 58:

    “Right. And if the flutter is more than 100, is it the case that the AV node plays a protective role?---Yes it is. Atrial flutter usually occurs at around 300 per minute. Now rarely, and very rarely, do you see atrial flutter with 1 to 1 response. You do often see atrial flutter with 2 to 1 response. In other words, instead of going at 300 a minute he’s going at 150. Or if he has a 3 to 1 response then he’s going at 100; or a 4 to 1 response he’s going at 75, or approximately. It’s the AV node that slows the rate of conduction from the atrium into the ventricle and controls the ventricular rate.

    Yes. And in this case we can conclude, I take it – tell me if I’m wrong – that the AV node’s doing its job for Mr Bush?---As best as I understand it, yes.”

19. Mr McKeown asked a series of questions relating to the regime of safety monitoring proposed by the Applicant for the grant of a Class 2 medical certificate. Dr Habersberger testified that the safety monitoring regime was a “reasonable compromise” – Tr. 7.3.2022 p. 58.

20. The issue of the Applicant experiencing a heart block whilst asleep was the subject of a series of questions asked by Mr McKeown – Tr. 7.3.2022 pp. 59 – 60:

    “Am I right in saying that as far as you’ve seen he’s not experienced a complete heart block while awake?---That’s my understanding. It was picked up on a – a heart block was picked up on a Holter monitor when he was asleep. But the rate of recall was he was having nocturnal pauses up to 2.3 seconds. Now 2.3 seconds is not very long. And that certainly in my discussions previously with the RAF – that’s the RAF – they are happy to accept pilots flying with pauses up to 2.5 seconds. So a pause of 2.3 seconds is not going to render you unconscious or anything of that sort. 

    Yes. Yes. So that’s assuming he was awake?---Assuming he was awake, yes, yes.  If he’s asleep he’s not aware of it. 

    So I think you might have answered the question that I was going to put to you, but I’ll make sure that I’m covering it off. That is that the symptoms that a person might feel if he had a complete heart block while awake – what would they be?---They might feel a bit lightheaded, might feel a bit faint. If it’s a prolonged pause, then they may fall over, lose balance. And if it’s a really long pause they may lose consciousness. But those patients with complete heart block often have little or no symptoms anyway, even when they’re awake. 

    Really?---It all depends on the heartrate. And I think in his particular case, when he had his Holter monitor his heartrate was 44. Well in a fit young individual a heartrate of 44 is not going to cause any problems. 

    I see. No. Off the top of my head – I don’t have it with me, but I thought it was lower than that. But I’m certainly not here to cavil with you. When he was asleep at night, I have a memory of 30, but I may be mistaken there. But the evidence will show in the reports Doctor?---Right. 

    The bottom line here, and correct me if I’m wrong, is that this man, even if he had a total heart block when he was awake – I want to deal with the position of the –because one has to cover the field here with the respondent, as you might know. Is he going to be incapacitated? Is this man going to be incapacitated when he has a complete heart block when he’s awake?---Well as I say it all depends on the heartrate Mr McKeown. If his heartrate – most of us can tolerate a heartrate down into the high 30s. And fit people, marathon runners for example, if I can use that as an example, often have resting heartrates around 30 all the time. And they have no particular problems related to it. It’s just if the heartrate becomes unduly slow. But when you’re exercising like during the day and that sort of thing, and in his particular case his heartrate rose up to over 100 with normal activity, then I don’t think he’s going to be running into any problems with heart blocks during his usual daytime physical activities. Night time it will slow down, but he’s asleep. All of us have our heart rate slow when we’re asleep.” 

21. In short, Dr Habersberger was of the opinion that the heart block experienced by the Applicant whilst he was asleep would not have rendered him unconscious and, to his knowledge, the RAAF would accept pilots flying with pauses of up to 2.5 seconds; whilst in the Applicant’s case, his pause was only 2.3 seconds.

22. Dr Habersberger testified that Ebstein’s Anomaly is a progressive disease, but persons afflicted by it “can lead a fairly straightforward and uncomplicated life” with good life expectancy. Of 51 patients treated at Royal Prince Alfred Hospital, all achieved 40 years of age, and 85 per cent lived to 68 years of age. As for the Applicant, who is 29 years of age, Dr Habersberger testified that there was “no reason why he can’t go on for many decades to come” – Tr. 7.3.2022 pp. 60 – 61.

23. Dr Habersberger was of the opinion that, should the Applicant suffer an atrial flutter whilst piloting a helicopter, it was “most unlikely” that it would incapacitate him. Rather, Dr Habersberger testified that if he did suffer an atrial flutter whilst flying, “he would have the opportunity to land his helicopter…” – Tr. 7.3.2022 p. 61.

24. Dr Habersberger was questioned at some length about the opinions of Dr Allan, and without going into detail at this point, it is sufficient to note that he disagreed with many of Dr Allan’s opinions – Tr. 7.3.2022 pp 62 – 65.

    Mr Myles Tomkins

25. Mr Tomkins operates a flying school in Brisbane and Caboolture. He has been a helicopter pilot for 39 years with 14,000 hours experience piloting helicopters and 7000 hours experience as an instructing helicopter pilot. In addition, Mr Tomkins is licensed to fly fixed wing aircraft – Exhibit 24 p. 1 para 2.

1. Mr Tomkins was asked to provide a statement on the versatility of a helicopter when required to immediately land – Exhibit 24 p. 1 para 3. The Applicant informed Mr Tomkins that he wished to fly between the family’s five cattle stations, with occasional trips to Rockhampton – Exhibit 24 p. 1 para 4; Tr. 8.3.2022 p. 83.

2. Mr Tomkins made the following observations – Exhibit 24 pp. 1 – 2 paras 5 – 7:

   “5. Concerning an immediate need to land, in my opinion a helicopter is much safer than a fixed wing aircraft as it has options not available to a fixed wing aircraft. Under power, a helicopter such as a Robinson 22 or 44 can be put down on any small clear patch of ground little wider than the span of the rotors.  The inland country of Queensland around and between Rockhampton and Longreach is most suitable to land a helicopter. It is an area I have flown over many times.

   6. There is a real advantage in flying a helicopter in the event of a medical emergency. A sick helicopter pilot can put their machine down immediately instead of flying to find an airport or a suitable length of cleared land. If a helicopter is being flown at 2,000 feet above the ground and the pilot feels themselves becoming ill, the pilot can opt to put the machine down at the nearest suitable area. From 2,000 it should take no longer than five minutes to put the machine safely down on the ground. If the spot is immediately underneath it will take even less time to land. In my experience, Robinson Helicopter pilots rarely fly above 2,000 above the ground (AGL).

   7. Pilots are trained to make emergency landings in a helicopter. If the engine fails a pilot needs to be able to put their machine down immediately and safely.  The flexibility offered in a landing with an operating engine, is of course even greater.”

3. Mr Tomkins gave evidence on the second day of the Hearing and repeated the contents of his report.

4. Under cross-examination, he was referred to the statement of Mr Andrew Thom, a Flying Operations Inspector employed by CASA – Exhibit 28. In particular, Mr Tomkins was questioned about paragraph 15 of Mr Thom’s report in which he noted Mr Tomkin’s statement that a helicopter could be set down on “any clear patch of ground”; however, noting it is critical that the “patch of ground” be appropriately assessed. This would include manoeuvring close to the ground at differing levels, at least once, to ensure the suitability of the chosen landing place. In addition, Mr Thom pointed out that pilots are taught to take into account, when landing, not only the size of the potential landing site, but also the surface, shape, slope, surrounding terrain and vegetation, wind direction and the power available to the aircraft.

5. Ms Swain referred to paragraph 15 of Mr Thom’s statement, and the following exchange occurred with Mr Tomkins – Tr. 8.3.2022 p. 88:

   “Would you accept that there’s certain due diligence, as explained by Mr Thom, which must be carried out in assessing the suitability of an intended area to conduct a landing?---No.

   What would you say?---It depends on the area. If you’re landing in the middle of a football field, for instance, you don’t have to. He’s referring there to a precautionary search for a confined area. It depends on the area.

   Okay. You would agree, though, that a pilot must consider not just the size of the land, but also the surface, the shape, the slope, the surrounding terrain, and the vegetation, the wind direction and the power available to the aircraft to conduct the approach? And also whether the area has any wildlife or stock in its vicinity which might collide with the aircraft?---That’s part of the training, that’s right, yes.”

6. Likewise, Mr Tomkins disagreed that there were significant areas of land between Rockhampton and Longreach not likely to contain suitable areas to land a helicopter. When asked why, Mr Tomkins gave the following answer – Tr. 8.3.2022 p. 88:

   “Because there’s any number of – a helicopter, it doesn’t need a runway. Helicopter can be twice, or one and a half times a main road in diameter, and you can go into a much smaller area than an aeroplane. That area there is not heavily, heavily bushed and if he was incapacitated, as he explained to me, he would find an area suitable to land a helicopter if he needed to.”

   Professor Roger Allan

7. Professor Allan is a Cardiologist, operating at Prince of Wales Hospital, Sydney, New South Wales, and Associate Professor, Conjoint, at the University of New South Wales – Tr. 8.3.2022 p. 95.

8. At the request of CASA, Professor Allan prepared a detailed report dated 21 October 2021 – Exhibit 5.  The report essentially is comprised of Professor Allan’s answers to 44 questions asked by CASA. For the purposes of these proceedings, reference will only be made to those answers which have a bearing on the disposition of the matter.

9. Professor Allan was provided by CASA with extensive documentation – Exhibit 5 pp. 1 – 8. However, Professor Allan was only required to undertake a review of the written material then extant on the Applicant, and he was not asked, nor did he undertake, an examination of the Applicant in person – Tr. 8.3.2022 p. 120. In short, Professor Allan, unlike Dr Whight, has not had the benefit of being in physical contact with the Applicant and, therefore, being able to make an assessment based on observing him, asking questions and making an assessment based on interpersonal dealings.

10. Professor Allan confirmed that the Applicant suffers from Ebstein’s Anomaly, and all of his cardiac problems flow from that condition – Exhibit 5 p. 10.

11. Ebstein’s Anomaly can manifest itself at any stage of life, but the dilation of the right ventricle and the incompetence of the tricuspid valve will cause heart failure which can be progressive as the right sided chambers dilate over time. Atrial and ventricular arrhythmias are common and “sudden death a significant risk” – Exhibit 5 p. 10.

12. However, not all patients with this condition have the same risk of serious conditions, as the clinical course may vary – Exhibit 5 p. 11.

13. Professor Allan opined that the success rate for radiofrequency ablations for arrhythmia depends on the nature of the arrhythmia and the anatomical substrate of the abnormal circuit. Rates of success range from 50% to 98% – Exhibit 5 p. 11.

14. The success rate is much lower where the heart is anatomically abnormal – Exhibit 5 p. 11.

15. When questioned about the ablation procedures performed on the Applicant, Professor Allan opined as follows – Exhibit 5 p. 12:

    “The first procedure in 2010 was an attempt to treat atrial flutter but the attempt was difficult and considered a failure. The electrophysiologist thought that further attempts would be futile because of the difficult anatomy. The usual reason for ablation therapy is to resolve symptoms and occasionally sudden death.

    The procedure in March 2019 was to treat recurrent typical atrial flutter with a cavo-tricuspid isthmus ablation causing bidirectional block. This breaks a circuit that causes the standard atrial flutter around the tricuspid annulus. This is a difficult procedure in Ebstein’s anomaly as the annulus is displaced downward into the left ventricle.

    The third ablation procedure in November 2020 was to treat a further episode of atrial flutter. This was different from the previous flutter and is described as ‘atypical’, requiring an ablation of the circuits on the lateral wall of the atrium. The study confirmed that the previous ablation was still successful.”

16. Professor Allan opined that the Applicant’s annual risk of a recurrent arrhythmia after his ablation procedure would exceed 5% – Exhibit 5 p. 12. The absolute annual risk in the general population for atrial fibrillation is 1 – 2% and 0.07% for atrial flutter – Exhibit 5 p. 13.

17. Professor Allan also opined that the Applicant’s abnormal heart increased the risk of symptomatic tachyarrhythmia. He went on to note that the Applicant did not develop a significant clinical arrhythmia until he was 18, but over the last 10 years, there had been an escalation of both the incidence and impact of the arrhythmias, with, in recent years, a 100% yearly risk – Exhibit 5 pp. 13 – 14.

18. Throughout his report, Professor Allan refers to the Applicant having suffered from a syncope, and some of his answers are seemingly predicated on this assumption. For example, when asked if the Applicant was at increased risk of haemodynamic compromise, hypotension, presyncope, syncope or distraction compared with the general population, Professor Allan answered as follows – Exhibit 5 p. 14:

    “Mr Bush is at an increased risk of incapacitation with tachyarrhythmia as already demonstrated with a syncope and urgent requirement for cardioversion secondary to a sudden onset of tachyarrhythmia. The risk is significantly increased.”

19. Professor Allan was asked about a 3^rd degree heart block and agreed that, generally, it is a serious condition as the slow heart rate is inadequate to provide appropriate blood flow and a patient may become syncopal or, if the escape rhythm is too slow, may die. When asked what is the significance of a 3^rd degree heart block being identified on the Applicant’s Holter monitor report, Professor Allan gave the following response – Exhibit 5 pp. 14 – 15:

    “The 3rd degree block recorded on Mr Bush’s monitors is less worrisome than most. The AV blocking occurs mostly at night during sleep and the ‘escape’ ventricular rhythm is narrow suggesting a ‘high’ escape and less sinister rhythm.

    It may occur normally during sleep in fit young individuals as the vagal or ‘slowing’ tone on the heart is high. This can be predicted because of his 1st degree block and bradycardia at rest during waking hours.

    The unknown in this case is whether the anatomical abnormality or the radiofrequency ablations has led to a damaged AV node. There is no mention of measurements of cardiac intervals in the file. This could determine if the conduction tissue was damaged. During exercise and the documented syncopal rhythm, he can sustain normal fast conduction across the AV node.”

20. When asked if the Applicant had been more severely affected by Ebstein’s Anomaly compared with the average patient in his cohort, Professor Allan opined as follows – Exhibit 5 p. 16:

    “To have been diagnosed early and required tricuspid valve surgery implies a significant abnormality, more than his cohort.”

21. Professor Allan was asked a series of questions based on an academic article by Queenie Luu, et al, which need not be quoted here. However, CASA asked Professor Allan what was the chance of any arrhythmias suffered being subtly incapacitating without being life threatening, and the following response was given – Exhibit 5 p. 16:

    “As previously demonstrated with a syncopal episode in 2018, a rapid heart rate response to the arrhythmia can cause syncope. Had the rate response been slower then syncope may not have occurred. Slower heart rate responses may cause palpitations only and provide a warning.

    In young men it is rare for tachycardia to cause syncope but in a stressful situation or where the patient is dehydrated, this may occur.”

22. Professor Allan was then asked a series of question based on the incorrect assumption that the Applicant had suffered a syncope event. The answers given, therefore, do not require quotation.

23. Based on the information provided to Professor Allan, he was then asked what would be the Applicant’s annual risk of incapacitation for a future cardiovascular episode – Exhibit 5 p. 18:

    “This is difficult to assess but may exceed 2-3% per year.”

24. In comparison, Professor Allan opined that a Finnish study over 10 years of middle-aged persons estimated the risk at 1.4% per year – Exhibit 5 p. 18.

25. Professor Allan opined that, as the Applicant ages, his right atrial and ventricular function will deteriorate further, and major incapacitation or death could occur at any time. Accordingly, Professor Allan opined that the Applicant was not fit to be granted a pilot’s licence on an unconditional basis “under any circumstances” – Exhibit 5 p. 18.

26. When asked how to alleviate the risk posed by granting the Applicant a pilot’s licence, Professor Allan opined that the “presence of safety pilot might mitigate the risk of a likely episode which could jeopardise safety” – Exhibit 5 p. 18.

27. In a supplementary report of 15 November 2021, Professor Allan dealt with the seeming contradiction between the Applicant claiming he had never been syncopal, with Dr Whight’s letter of 3 September 2018 where he stated that the Applicant experienced sudden onset tachycardia with syncope. Professor Allan’s subsequent opinion was based on the misapprehension that the Applicant, in fact, experienced a syncope – Exhibit 7.

28. At the Hearing, Professor Allan’s attention was drawn to Dr Whight’s report of 21 December 2021 where he clarified the issue of syncope. Professor Allan, however, testified that this clarification made “no significant impact on the risk of an incapacitation” – Tr. 8.3.2022 p. 95.

29. Professor Allan gave detailed and helpful testimony on Ebstein’s Anomaly, and the impact of medical surgeries performed on the Applicant over his life – Tr. 8.3.2022 pp. 96 – 97. When questioned about the Applicant’s episodes of atrial arrhythmias, his ablation procedures and the risk moving forward, Professor Allan testified as follows – Tr. 8.3.2022 pp. 98 – 99:

    “…because of the nature of the size of his heart, of the atrium, I would suspect it would be a very high chance of that happening sometime in the next two to three years, and even up to 5 or 10 per cent possibility that he will experience atrial fibrillation shortly. That’s not easy to treat. That’s much more complex… I note that he’s been on anticoagulant therapy from time to time,  and I think the reason for that was to cater for the risk of atrial fibrillation… the biggest of the risk, even in younger people with abnormal hearts, is as a stroke, because the atrial fibrillation stops the blood moving from one chamber to the next and the blood pools, and as the blood pools, it clots… the other, and final, rhythm disturbance, which is always a major problem in these situations, when the right ventricle becomes so dilated, the same circuitry which starts up in the atrium can also start up in the ventricle.  Unfortunately, that’s associated with a thing called ventricular tachycardia. And if that continues at a fast enough rate, can lead to ventricular fibrillation, which is one of the common causes of death in patients with Ebstein’s… it’s hard to know whether the atrial fibrillation’s going to happen. These events could happen tomorrow, or in three years’ time. It’s not known. There’s no predictors of this. You can’t measure anything to determine if it’s going to happen…”

30. Ms Swain asked a series of questions relating to the opinions expressed by Professor Allan in his report. In each instance, he reiterated the views outlined above. One important issue raised was the risk of atrial flutter following the seemingly successful ablation procedure in November 2020. The following exchange occurred between Ms Swain and Professor Allan – Tr. 8.3.2022 p. 103:

    “Thank you. You’ve noted in your report at paragraph 11 that Mr Bush underwent ablation procedures in 2010, March 2019, and again, in November 2020, and you stated at 11(b) that the risk of atrial flutter or fibrillation 10 months after his ablation could exceed 10 per cent. We’re now almost 15 months post his last ablation. Do you consider the risk would still exceed 10 per cent?---I do. I think you have to look at the abnormal anatomy. Both the large atrium, and particularly, the risk of new circuitry forming. Admittedly, two of the standard arrhythmias have been treated. I don’t know whether he’s ever had atrial fibrillation, but I’m sure he will. Each chance is a new chance, so that if it doesn’t happen today, then it’s a 10 per cent chance tomorrow, and the next day, if it doesn’t happen, it’s still a 10 per cent chance. So I – you might have – as I said earlier, it may be variable. You could wait two years and nothing will happen, and then, in the fourth year, he might have five episodes of atrial fibrillation that required treatment. Because the heart is abnormal, and so large, I think these events would be predictable. And 10 per cent, I think – I think that’s probably about right. Again, it’s very hard to know. And I know, or you told me he’s been free arrhythmias now for two years, but that doesn’t mean he’s going to be free of arrhythmias for the next two years.

    Thank you. In your experience, is Mr Bush’s condition typical of, or does it differ from, the majority of patients who require an ablation?---The arrhythmias he had, both of them, usually respond very well to ablation. The atrial flutter rhythm, the two that were identified and treated. The first one, the typical atrial flutter, is very easily managed and one would expect a 98 to 99 per cent success rate from that, because it’s easy to find the circuit and it’s very easy to burn it. The second one, not so. The atypical atrial flutter is much more complex, and it may not have the same degree of success, depending on the operator. But it seems if he’s been free of arrhythmia for two years, then one would be pleased with that. But it still doesn’t mean that the arrhythmia will not return, particularly as it was within the wall of the tissue, not around the loop of the valve. It was not around a structural thing, it was actually up in the wall of the chamber, and that’s – they’re much more difficult to find and much more difficult to ablate. So I would suspect that it is possible that the second, or the so called atypical atrial flutter, could return, and most operators would give that warning to the patient. But for the first one, the typical atrial flutter, I think they would be confident that this was going to be successful, and as it’s turned out at the testing in November 2020, it was confirmed that that circuit had, in fact, been properly treated in 2019.”

31. Mr McKeown outlined to Professor Allan the regime proposed by the Applicant should he be granted a Class 2 medical certificate, and the following exchange occurred between Ms Swain and Professor Allan – Tr. 8.3.2022 p. 107:

    “Would such a proposal of testing allow the doctors to accurately predict if Mr Bush will or will not have an atrial flutter or an atrial fibrillation in the following 12 months? ---Well, as I mentioned in my report, a Holter monitor is the 24 hour window in 365 days of the year, and really not a very reliable tool to know what might be happening at other occasions, so I noted in the file there are many records of Holter monitors having been performed, but, as I mentioned, the episode – the transient sudden increase in heart rate as a tachycardia might occur the day after the Holter monitor is removed and not be very helpful, so I don’t think it’s a very good way of monitoring someone in the long term, that has a high risk of arrhythmia. The second issue is the stress testing. I’m not quite sure what role stress testing would play in this situation. We are aware that he has a degree of right ventricular failure because the tricuspid valve was leaking and from the MRI scanning the veins in the liver are enlarged, so there’s a fair bit of pressure going back, but a stress test will really only uncover any major problems with the left ventricle, that is, the chamber that produces blood pressure and produces exercise capacity. So I’m not quite sure how that will help understand, other than him saying that he’s getting more tired or more breathless or whatever, and one wouldn’t necessarily need a stress test to prove that.  I think Mr Bush would declare that himself if that was happening. I’m not quite – I know that stress tests are done routinely as an assessment of a patient’s ability to perform, and that’s fine, and you could, in a longitudinal way determine if there’s been a deterioration in that performance, but as a test of knowing how he’s going, I don’t think that’s a very valuable thing. So I don’t think either of those tests provide us with any certainty that there’s not going to be a problem.”

1. Dr Habersberger also downplayed the significance of the heart block reading – Tr. 7.3.2022 pp. 59 – 60:

   “Am I right in saying that as far as you’ve seen he’s not experienced a complete heart block while awake?---That’s my understanding. It was picked up on a – a heart block was picked up on a Holter monitor when he was asleep. But the rate of recall was he was having nocturnal pauses up to 2.3 seconds. Now 2.3 seconds is not very long. And that certainly in my discussions previously with the RAF – that’s the RAF – they are happy to accept pilots flying with pauses up to 2.5 seconds. So a pause of 2.3 seconds is not going to render you unconscious or anything of that sort. 

   Yes. Yes. So that’s assuming he was awake?---Assuming he was awake, yes, yes.  If he’s asleep he’s not aware of it.

   So I think you might have answered the question that I was going to put to you, but I’ll make sure that I’m covering it off. That is that the symptoms that a person might feel if he had a complete heart block while awake – what would they be?---They might feel a bit lightheaded, might feel a bit faint. If it’s a prolonged pause, then they may fall over, lose balance. And if it’s a really long pause they may lose consciousness. But those patients with complete heart block often have little or no symptoms anyway, even when they’re awake. 

   Really?---It all depends on the heartrate. And I think in his particular case, when he had his Holter monitor his heartrate was 44. Well in a fit young individual a heartrate of 44 is not going to cause any problems. 

   I see. No. Off the top of my head – I don’t have it with me, but I thought it was lower than that. But I’m certainly not here to cavil with you. When he was asleep at night, I have a memory of 30, but I may be mistaken there. But the evidence will show in the reports Doctor?---Right.

   The bottom line here, and correct me if I’m wrong, is that this man, even if he had a total heart block when he was awake – I want to deal with the position of the – because one has to cover the field here with the respondent, as you might know. Is he going to be incapacitated? Is this man going to be incapacitated when he has a complete heart block when he’s awake?---Well as I say it all depends on the heartrate Mr McKeown. If his heartrate – most of us can tolerate a heartrate down into the high 30s. And fit people, marathon runners for example, if I can use that as an example, often have resting heartrates around 30 all the time. And they have no particular problems related to it. It’s just if the heartrate becomes unduly slow. But when you’re exercising like during the day and that sort of thing, and in his particular case his heartrate rose up to over 100 with normal activity, then I don’t think he’s going to be running into any problems with heart blocks during his usual daytime physical activities. Night time it will slow down, but he’s asleep. All of us have our heart rate slow when we’re asleep.” 

2. Based on Dr Habersberger’s testimony, the Applicant’s nocturnal pauses of 2.3 seconds were not significant, and certainly, would not render a person unconscious, but would possibly make a person feel “a bit lightheaded”.  Further, the heart block was recorded when the Applicant was asleep, when the heart rate is slow.

3. Significantly, Professor Allan also did not place great significance on the Applicant’s recorded 3^rd degree heart block. In his 21 October 2021 report, he opined – Exhibit 5 p. 14:

   “The 3^rd degree block recorded on Mr Bush’s monitors is less worrisome than most. The AV blocking occurs mostly at night during sleep and the ‘escape’ ventricular rhythm is narrow suggesting a ‘high’ escape and less sinister rhythm.

   It may occur normally during sleep in fit young individuals as the vagal or ‘slowing’ tone on the heart is high. This can be predicted because of his 1^st degree block and bradycardia at rest during waking hours.”

4. Under cross-examination from Mr McKeown, Professor Allan testified as follows – Tr. 8.3.2022 p. 120:

   “Thank you. The complete heart block situation that this man has experienced, have never occurred while he’s conscious?---No, that’s correct. If you read my report, I am actually not too concerned about that. He’s a young person with what we call high vagal tone, young people often have high vagal tone and if I (indistinct) monitored all the young people in the community, many of them would develop a degree of heart block while they’re asleep. And I’ve made that point that when he does have, on the halter monitor, when he does have a normal rhythm – sorry, when he does have a rhythm in the heart block, it’s of narrow complex which means it’s not coming from the bottom of his heart, but coming from very close to the AV node. So it’s – if you like, it’s an escape because he’s failed to produce a rhythm coming through but it’s not an abnormal thing. And I am not at all concerned about that, from the information we’ve received. And I think I made that clear in my report.”

5. Professor Allan testified that he was “not too concerned” about the heart block and, it would appear from the reports and testimony of all three doctors, that the particular heart block reading of the Applicant is not a matter that raises particular air navigation safety concerns.

6. Accordingly, for the reasons outlined above, the Tribunal has formed the view that the Applicant meets the medical standards prescribed by Table 67.155.

   Risk to the safety of air navigation

7. Whilst it is not necessary to proceed and consider the second issue, if the Tribunal is in error in determining that the Applicant meets the medical standards prescribed in Table 67.155, consideration will now be given to this question.

8. The Tribunal received copious evidence about the physical impact of heart flutters on the Applicant. The Tribunal had the benefit of receiving testimony from the Applicant and was impressed by his candour.

9. In his statement of 10 December 2021, the Applicant outlined what occurred when his experienced heart flutters on 22 February 2015, 16 October 2016, 28 January 2017, 30 January 2018, 21 May 2018, 18 November 2018, 4 February 2019, 18 February 2020, and his final episode on 18 June 2020 – Exhibit 23.

10. On no occasion did the Applicant lose consciousness.

11. With respect to the 22 February 2015 episode, the Applicant stated – Exhibit 23 p. 1 para 4:

    “…At no time did I lose consciousness while my heart was out of rhythm. The condition felt uncomfortable but I was able to fully function and talk with others, including walking with no loss of control of any limbs.”

12. With respect to the 18 October 2016 episode, the Applicant stated – Exhibit 23 p. 2 para 6:

    “…At no time did I lose consciousness or lose control of any bodily functions. I was now very familiar with what was going on with my heart and knew immediately that my heart was out of rhythm.”

13. Next, with respect to the 28 January 2017 episode, the Applicant stated – Exhibit 23 p. 2 para 8:

    “…Again, at no time did I lose consciousness o[r] lose any bodily function control.”

14. Similar statements were made with respect to the episodes of 30 January 2018, 18 November 2018 and 4 February 2019.

15. With respect to the 18 June 2020 episode, the Applicant’s testimony is set out at [38].

16. The Applicant gave detailed descriptions of what had occurred during each of the times he had experienced heart flutter. However, the important issue to note is that on each occasion, not only did he remain conscious, but he retained control of his limbs and was able to walk, communicate and did not suffer, it would appear, any loss of cognitive function.

17. In addition, at no time did the Applicant feel the need to call an ambulance to take him to the nearest hospital. In fact, the Applicant testified that he had only called the ambulance once, and that was a week before the Hearing when he had suffered a snake bite – Tr. 7.3.2022 p. 28.

18. This state of affairs is consistent with the testimony of Dr Whight who testified that the Applicant’s exercise tolerance was very good, and it was unlikely that he would experience incapacitation during an atrial flutter – Tr. 7.3.2022 pp. 34 – 35:

    “How is Mr Bush’s exercise tolerance?---Very good.

    You see this from what?---Well, we’ve had a number of exercise tests. One fairly recently in the latter part of last year but he also had an exercise test previously some years – some years before, which – pretty – very similar results that he could exercise very well for a duration on 13 minutes and, more recently – and he achieved a very high level of oxygen uptake of functional capacity. 

    While he is having an atrial flutter, he’s given evidence, and you’re aware of the timing that’s involved from your knowledge of him, I take it, that there’s hours that seem to go by while he’s in atrial flutter?---Yes, correct.

    And including overnight when there’s - - -?---that’s what I understand, yes.

    Is that a normal thing?---I mean if you’re being semantically curious, what’s normal?

    M’mm?---But it’s commonly observed, put it that way.

    Yes. Now, is there any likelihood of incapacitation and, if so, what is it, while he’s in atrial flutter?---In my opinion, it’s very unlikely that he would experience a sudden incapacitation related to going into atrial flutter.

    Can you be more specific about that? Is there a percentage?---Well, if you look at the risk stratification of a young man who’s, let’s say, in sinus rhythm at the moment, that’s where we’re starting from, the probability of him developing atrial flutter, given that he has been in sinus rhythm now for – I think his last episode was in 2020, unless there have been other short brief episodes in-between that I’m not aware of.  In other words - - -

    There haven’t been, he’s given evidence?---Sorry?

    He’s given evidence that there’s not been?---Okay, that’s good because the point is, he’s now – he’s in sinus rhythm and been in sinus rhythm for a long time. It’s not something that changes dramatically. The second – in terms of stratification, he’s aware that when he goes into actual flutter, so there is this concept of time that he has available for him to seek medical attention and we know that from previous experience he has been in atrial flutter for many hours before seeking attention. So, in terms of risk stratification, in terms of risk of sudden death or sudden collapse – not sudden death, collapse, we have a small risk of going into atrial flutter that in the course of, let’s say, six or 12 months, whatever, maybe 10 per cent. Now, his AV node, we’ve seen only on one occasion for a limited period of time has the capacity to conduct one to one. His AV node is not actually of – I don’t categorised as poor quality but it has the capacity to block quite readily, and this is the point, it protects him, if this makes sense. 

    M’mm?---The probability of him, therefore, developing a one to one conduction, which is potentially life-threatening, I’ve based on the evidence that we have is that it is extremely small, probably less than 10 per cent in the acute period. But we also know that that is very unlikely to continue for a period of more than five or 10 minutes. So, the possibility of (a) developing flutter, he’s aware of it, developing flutter with no protection from his AV node for a period of time that will produce syncope, I think this probability is way, way less than one per cent for that cascade of events to take place to put him – to put him at risk.

    And if I’m hearing you correctly, the fact that he goes into atrial flutter, so what?---It’s not – that’s not that critical because we know that his AV node protects him.

    Yes?---And he’s – and he’s aware of it and he can take it – take what action is required to get out of trouble.”

19. The uncontested evidence before the Tribunal is that, despite having a number of episodes of atrial flutter since 22 February 2015, the Applicant has remained conscious and in control of his limbs and, overall, is in good health.

20. The next matter is the nature of flying that the Applicant proposes to undertake should he be granted a Class 2 medical certificate.

21. The Applicant testified that if he was granted a Class 2 medical certificate, he proposed to fly between the five family properties in central Queensland. He then testified as follows – Tr. 7.3.2022 p. 28:

    “You told CASA that you were hoping to be a musterer?---Yes, that was my original plan but it has changed. Like, yes, just fly between the family properties now.”

22. In his statement, Mr Thom referred to agricultural flying/mustering being activities which carry the highest risk of catastrophic consequence of all helicopter activities. Mr Thom’s statement was, as previously noted, prepared on the incorrect assumption that the Applicant wished to engage in mustering activities – Exhibit 28 p. 5 para 19.

23. Clearly, different considerations would arise if the Applicant wanted to engage in mustering activities. The Tribunal notes Mr Thom’s opinion that this form of activity carries with it the highest risk of catastrophic consequence.

24. As the Applicant merely wishes to pilot a helicopter between his family’s properties, with occasional trips to Rockhampton, the consequent risk posed is considerably less.

25. Much of the Hearing dealt with the critical question of whether the Applicant, when experiencing a heart flutter, would be in a position to land a helicopter safely within a period of approximately one hour of the onset of the heart flutter.

26. Of significance to the Tribunal was the following exchange between Professor Allan and Mr McKeown – Tr. 8.3.2022 p. 125:

    “And I want to see if I can agitate you a little bit about that. When we are talking about a helicopter pilot here, and we are talking – and we have used on the applicant’s case, a period of one hour, during that first hour, we’re giving him one hour, if he feels his heart come out of beat, we’re giving him one hour to land his helicopter. Now in that period of time, would you not agree, that that one hour of flying, his risk of an incapacitation during that period is even less than two per cent? ---If I take the previous evidence, which I didn’t have, that he’s never had an incapacitation, he’s never needed an ambulance and he’s never lost consciousness and he’s never felt unwell with any of these episodes, even though his heart rate was 190, then I would agree with you.”

27. The Tribunal has, therefore, proceeded on the assumption that there is appropriate evidence that, based on the Applicant’s history of heart flutter, he would be in a position to safely land a helicopter within one hour of the onset of heart flutter.

28. Finally, consideration must be given to the nature of the terrain over which the Applicant would be flying, and the consequent ability of the Applicant to safely land his helicopter within an hour should he experience a medical episode.

29. As previously noted, Mr Thom, in his statement, dealt with the inland country between Rockhampton and Longreach, and pointed out that the area is traversed by the Great Dividing Range, the McKenzie River, Mt Tabletop and Mt Zamia. However, the following exchange occurred between the Tribunal and Mr Thom – Tr. 8.3.2022 p. 139:

    “Mr Thom, you – I think just one small clarificatory point before I go back to Ms Swain, because she may want to ask you something as well – you don’t have any personal knowledge, do you, of the terrain that comprises the five cattle properties of Mr Bush?---No. I have flown over the inland area immediately outside Rockhampton. In the early ‘90s, I did about four weeks in the area flying an r22 with a small mustering operation. So that’s my only experience of the area.”

30. When cross-examined by Mr McKeown, the following exchange occurred – Tr. 8.3.2022 pp. 136 – 137:

    “You’d agree with me that a competent helicopter pilot would have no difficulty in landing his helicopter within a period of one hour?---I’m sorry. You’re going to have to widen that. In what context? In the context of flying from A to B?

    Anywhere. If he decides to land, he’s got one hour to do it, put it down somewhere.  He’d have no issue in landing a helicopter within one hour?---That would depend entirely on the terrain that he was flying over. If he was flying over water, he couldn’t do it within one hour. Unless he was within one hour of land. So I think the answer to the question would be that if he was within an hour of a suitable area, then yes.

    I’m talking about the country that you’ve attached the maps of?---That I cannot say.  At what point is he over that terrain? I don’t know, because I haven’t flown over that terrain.

    A helicopter pilot over that terrain, in one hour couldn’t find somewhere to land?---I couldn’t answer that question, in all honesty, because I – you’d have to tell me where he was and then I’d have to work out how long it would take him to get from where he was.

    It would be highly unlikely, wouldn’t it, that he wouldn’t find somewhere to land?---I think the likelihood of him being able to find a suitable area is probably not unreasonable at any given point, but I would have to know what that given point was.

    Because you agree with Mr Tomkins, that from a height of 2000 feet above the ground he’s not going to take five minutes to put it down on the deck?---Certainly not.”

31. Also of importance is the following exchange between Mr Tomkins and Ms Swain – Tr. 8.3.2022 pp. 88 – 89:

    “You have. You would agree, wouldn’t you, that significant areas of land between Longreach and Rockhampton likely don’t contain suitable areas to land a helicopter?---No, I don’t agree.

    Can I ask why?---Because there’s any number of –  a helicopter, it doesn’t need a runway. Helicopter can be twice, or one and a half times a main road in diameter, and you can go into a much smaller area than an aeroplane. That area there is not heavily, heavily bushed and if he was incapacitated, as he explained to me, he would find an area suitable to land a helicopter if he needed to.

    So you don’t agree that there are, in the Broadsound and Boomer Ranges, which are part of the Great Dividing Range and run from north to south between Rockhampton and Longreach, that there area significant areas of land which wouldn’t satisfy the slope requirements?---Sure. But that necessitates him going that way and over that country.

    Yes?---There’s ways to mitigate the risk.

    Well that was my question, in that area of land, that there are significant areas - - - ?---But that’s assuming that he flies over that piece of land.

    Yes, exactly?---M’mm.

    You’d accept that the river valleys would compromise the service assessment in the surrounding terrain?---The river valleys?

    The river valleys within the area?---Well, there’s still areas that you can land a helicopter in.

    That’s correct, but there are river valleys in those you would not, so if you’re directly above those?---Sorry, I don’t understand your question. Just say again.

    So if you’re directly –  in an area directly above those areas at the time that you suffer the incapacitating event, you can’t go straight down onto those areas, can you?---Why not?

    On a river valley?---If you need to, you can go vertically down, you can spiral down, you can go forward and come back to the position.

    So that’s a suitable spot to land?---If you needed to find that suitable spot, yes, of course, you can. It’s a helicopter, not an aeroplane.

    What about the forested areas, would they compromise the surrounding vegetation requirement?---Sure, they would, yes. If you’re over those areas.

    Yes, which he could be?---Sure.

    So given this, is it really possible to say that a pilot would at any given time be in a suitable place to land a helicopter in the event they suffered incapacity, having regard to the fact that significant areas of the land between Rockhampton and Longreach don’t contain suitable areas of terrain?---Again, I can only tell you what I was asked, and after talking to Mr Bush, he doesn’t get sudden incapacitation.

    But that’s not the question. The question is if he was to?---And he was exactly in that area?

    If he was over an area where it was a bushy area, not able to land?---Sure, I agree.”

1. It will be noted that Ms Swain asked Mr Tomkins about landing a helicopter when suffering an incapacity, a scenario which, hitherto, has not afflicted the Applicant. Clearly, there would be problems, possibly major problems, for any helicopter pilot to safely land their aircraft if they suffered an immediate incapacitating event, irrespective of the terrain.

2. However, the question before the Tribunal was whether, with the onset of atrial flutter, and having regards to the signs and symptoms that have been a hallmark of that condition for the Applicant, whether he could land his helicopter within an hour, having regard to the terrain he would be flying over.

3. The evidence of both Mr Tomkins and Mr Thom is in the affirmative to that question. Mr Thom quite properly outlined, in his statement, the type of assessment required by a helicopter pilot before landing his aircraft. Reference can be made to paragraph 15 of his statement, and the requirement of “confined area operations” in the Manual of Standards. The Tribunal has taken into consideration the views expressed by Mr Thom in his statement and places on the record its appreciation for his testimony.

4. CASA quite properly submits that even if the Applicant were to suffer a mild atrial flutter event, it could produce pain and suffering, distracting a pilot from the task of flying the helicopter. Further, it is submitted that sudden and unexpected and painful distraction at a critical point during a flight could have catastrophic outcomes – ROS p. 9 para 45.

5. The Tribunal accepts, without question, this general statement, as it is founded in logic and medical science. However, it does not apply to the previous experience of the Applicant. There is no evidence before the Tribunal that he has suffered pain and suffering of a type that would distract him from flying a helicopter. If CASA could point to evidence of where the Applicant, when experiencing atrial flutter, experienced the symptoms outlined, then, of course, the Tribunal would carefully weigh that evidence when determining the risk of endangering the safety of air navigation.

6. The Tribunal also accepts the fact that even if the risk in percentage terms is small, this does not mean that risk is not real or substantial for the purposes of the exercise of CASA exercising its powers under reg 67.180.

7. However, in this matter, the Tribunal is presented with clear and straightforward evidence:

   (a)the Applicant suffers from Ebstein’s Anomaly;

   (b)he suffered a series of atrial flutters from 2015 – 2020;

   (c)at no time did he lose consciousness;

   (d)at no time did he lose control of his bodily functions;

   (e)at no time did he lose cognitive capacity;

   (f)he underwent two ablation procedures in 2019 and 2020;

   (g)he has not experienced an atrial flutter since 2020;

   (h)he is physically fit;

   (i)he only wishes to fly a helicopter in remote Queensland, with occasional trips to Rockhampton;

   (j)the evidence suggests he can land a helicopter safely within one hour of the onset of an atrial flutter; and

   (k)he does not wish to engage in mustering livestock or other challenging and potentially dangerous flying.

8. In these circumstances, it is tolerably clear to the Tribunal that even if it is accepted that the Applicant fails to meet the medical standards prescribed by Table 67.155 (which the Tribunal does not agree with), the Applicant would not be likely to endanger the safety of air navigation.

   Conditions

9. Next, the Tribunal needs to consider whether conditions should be imposed on the Applicant’s Class 2 medical certificate.

10. CASA submitted that if the Tribunal were minded to grant a Class 2 medical certificate subject to conditions, there should be a condition that the Applicant fly with a safety pilot, as that safety pilot would be able to assume control of the aircraft and ensure a safe landing – ROS p. 10 para 54.

11. For the reasons outlined above, the Tribunal does not agree that there is a need for such a condition as there has been no past history of the Applicant being rendered either unconscious or incapable of exercising bodily or cognitive functions after the onset of atrial flutter. In these circumstances, the evidence does not support the requirement for a safety pilot.

12. The Applicant, helpfully, has agreed that conditions on the grant of Class 2 medical certificate would be appropriate, and has suggested the following conditions – AS p. 18 para 116:

    (a)the Applicant provides CASA with a 24-hour Holter Monitor reading 6 months and no longer than 7 months after his Class 2 DAME examination;

    (b)upon any renewal of the medical certificate, the Applicant shall provide CASA with:

    (i)a Cardiologist’s report on his Ebstein’s Anomaly’s condition dealing with any progression of the condition for the period since his last Class 2 DAME examination and reporting on;

    (ii)a cardiac stress ECG take no longer than one month before completing his renewal DAME examination; and

    (iii)a 24-hour Holter Monitor reading taken at least 6 months and on longer than 7 months before the date of the cardiologist’s report.

13. The Tribunal agrees that the proposed conditions are appropriate.

14. CASA also has suggested further conditions – ROS pp. 11 – 12 paras 55 and 56. The Tribunal agrees that some of the proposed conditions are also appropriate namely:

    (a)rotary wing aircraft only;

    (b)no passengers to be carried; and

    (c)the Class 2 medical certificate only to be issued for a maximum of 12 months.

15. The evidence before the Tribunal is that the Applicant may wish to make occasional trips to Rockhampton – Tr. 8.3.2022 p. 83. The Tribunal proceeds on the basis that the Applicant would only occasionally seek to fly to Rockhampton. If the number of trips to Rockhampton exceeded 10 times in any given year, then the safety conditions proposed by CASA will need to be reconsidered. In these circumstances, the Tribunal is not presently convinced that a condition restricting the Applicant from flying over populated areas is needed. Subject to that caveat, the Tribunal will impose the conditions outlined above.

16. When providing this decision to the parties, they are at liberty to apply to the Tribunal for any variation in the wording of the conditions imposed.

    DECISION

17. The decision under review is set aside and, in substitution, the Applicant is issued with Class 2 medical certificate for 12 months, subject to the following conditions:

    (a)it is limited to rotary wing aircraft only;

    (b)no passengers are to be carried;

    (c)the medical certificate, and subsequent certificates, are limited to a maximum of 12 months;

    (d)the Applicant provides CASA with a 24-hour Holter Monitor reading 6 months and no longer than 7 months after his Class 2 DAME examination;

    (e)upon any renewal of his Class 2 medical certificate, the Applicant shall provide CASA with;

    (i)a Cardiologist’s report on his Ebstein’s Anomaly condition dealing with any progression of the condition for the period since his last Class 2 DAME examination;

    (ii)a Cardiac Stress ECG taken no longer than one month before completing his renewal DAME examination; and

    (iii)a 24-hour Holter Monitor reading taken at least 6 months and no longer than 7 months before the date of that Cardiologist’s report.

I certify that the preceding 256 (two hundred and fifty-six) paragraphs are a true copy of the reasons for the decision herein of Deputy President J Sosso

.............[SGD].......................................

Associate

Dated: 26/08/2022

Dates of Hearing:

Date Final Submission Received:

7 and 8 March 2022

22 April 2022

Applicant:

Counsel for the Applicant:

In-person

Mr Christopher McKeown

Representative for the Respondent:

Ms Carol Swain
Civil Aviation Safety Authority