Courtney and Civil Aviation Safety Authority

Courtney and Civil Aviation Safety Authority [2016] AATA 755 (28 September 2016)

Division

GENERAL DIVISION

File Number

2016/2278

Re

Thomas Courtney

APPLICANT

And

Civil Aviation Safety Authority

RESPONDENT

DECISION

Tribunal
Miss E A Shanahan, Member

Date 28 September 2016

Place Melbourne
The Tribunal sets aside the decision under review and substitutes its decision that Mr Courtney qualifies for a class 2 medical certificate enabling him to fly without the restriction that he only fly with a safety pilot. This decision is subject to Mr Courtney undergoing CT coronary angiography prior to the issue of his next class 2 medical certificate in 12 months’ time.

[sgd]...........................................................
Miss E A Shanahan, Member
AIR SAFETY REGULATION – experienced pilot with 30 year history of flying – holder of pilot’s registration United States of America and South Africa – complex cardiological history – fully treated and stabilised – significance of small area of abnormal perfusion in left ventricle debateable – present for over 12 months without ill-effect – expert evidence and treating doctor evidence as to significance of radio nuclear scan findings – decision set aside with proviso.
Legislation
Civil Aviation Act 1988
Civil Aviation Regulations 1988
Civil Aviation Safety Regulations 1998
Cases
Re Window and Civil Aviation Safety Authority 56 ALD 316
REASONS FOR DECISION
Miss E A Shanahan, Member
28 September 2016

On 12 April 2016 the Civil Aviation Safety Authority (CASA) issued Mr Courtney with a class 2 medical certificate subject to increased conditions. This decision limited his flying to undertaking all flights with a safety pilot. In addition, Mr Courtney was not permitted to fly if his treatment, in particular his medication, was changed. The presence of a safety pilot is the number 9 condition of a class 2 special medical certificate. In addition to the presence of a safety pilot, it requires alterations to the aircraft and the wearing of a shoulder restraint harness at all times.
Mr Courtney’s medical certificate was issued for 12 months from 12 April 2016. Mr Courtney was invited to seek review of the decision prior to any application he might make to the Administrative Appeals Tribunal. He entered into communication with CASA but resolved that reconsideration would not change the decision and therefore proceeded with his application for review by the Administrative Appeals Tribunal. He lodged his application with the Tribunal on 26 April 2016.
At the hearing Mr Courtney was self-represented and Mr Anthony Carter, a solicitor, appeared for CASA. The Tribunal was provided with the documentation lodged pursuant to s 37 of the Administrative Appeals Tribunal Act 1975 (the T-documents), which was numbered Exhibit R1. The respondent tendered several further exhibits:
·a report by Dr Habersberger dated 21 July 2016;
·statement of Dr Seah dated 2 August 2016; and
·a Risk Assessment Matrix – Evaluating Risk CASA document.
The applicant provided:
·a report by Dr Keighley dated 27 June 2016.
Mr Courtney, Dr Craig Keighley, Dr Peter Habersberger and Dr Michael Seah gave evidence before the Tribunal.
BACKGROUND TO THE APPLICATION
Mr Courtney is 77 years old and has been flying for 30 years. He owns a six-seater Saratoga and a four-seater Cessna aeroplane. He has extensive experience flying within Australia and internationally. He continues to hold a South African pilot’s licence but has not renewed his American licence that recently expired. He no longer intends to fly internationally and it would appear that his last international flight was when he purchased the Saratoga aircraft and helped to fly it back to Australia in 2010.
Mr Courtney also has a flying licence issued by Recreational Aviation Australia Inc. (RAA). In the past, he has been involved in the Angel Flight voluntary service. He has not done this for the past four to five years and has no intention of resuming such flights as he would need to reskill. Mr Courtney does not fly alone, all his flights being in the company of his partner Megan. He has not taken any passengers on either aircraft, other than Megan, for over two years.
Since 2013 Mr Courtney’s medical certification for a class 2 pilot’s licence has been suspended on several occasions for health reasons and the requirement for further investigation. In 1994 he was diagnosed with paroxysmal atrial tachycardia or fibrillation and came under the care of Dr Victor Wayne, cardiologist. In 2000 he commenced seeing Dr Craig Keighley on a regular basis. Mr Courtney’s paroxysmal atrial tachycardia was treated with Sotalol, resulting in good control. In April 2013 Dr Keighley suggested that Sotalol be stopped given the presence of bradycardia. At the same time, Dr Keighley noted that Mr Courtney was to undergo Holter monitoring as arranged by his Designated Aviation Medical Examiner (DAME), Dr Raoul Tunbridge.
The Holter monitoring was conducted on 11 April 2013 and was reported as showing asymptomatic ST depression, indicative of myocardial ischaemia. The report was apparently sent to Dr Michael Drane of CASA who contacted Dr Keighley with the request that Mr Courtney undergo a stress echocardiogram in view of the positive Holter result. The stress echocardiogram revealed significant left ventricular anterior wall ischaemia. Subsequent coronary angiography confirmed a 90 per cent stenosis in the proximal left anterior descending artery (LAD) with an 80 per cent stenosis in the mid LAD. The right coronary artery which was the dominant vessel had only a 30 per cent proximal narrowing. The left ventriculogram revealed left ventricular systolic function impairment due to anterior wall hypokinesis.
As Mr Courtney was already in hospital for the angiogram and he lives some distance from Melbourne, immediate surgical opinion was sought. Two days later, Mr Adrian Pick performed coronary artery bypass surgery, anastomosing the left internal mammary artery to both the main LAD and the diagonal branch. This procedure was done off cardiopulmonary bypass and therefore the possible cerebral complications of bypass would have been avoided.
Mr Courtney’s post-operative recovery was smooth, except for the development of atrial fibrillation that was not unexpected. Amiodarone and anticoagulation medication were instituted. By 1 August 2013 Mr Courtney had reverted to sinus rhythm and was then weaned off the anticoagulants.
In November 2014 further investigation with Holter monitoring and electrocardiogram (ECG) revealed sick sinus syndrome and on 5 December 2014 a dual chamber pacemaker was inserted. Sotalol and Aspirin were continued.
Dr Keighley has continued to monitor Mr Courtney on a regular basis and has performed further investigations to assess Mr Courtney’s cardiac function despite him being totally asymptomatic. Mr Courtney has been noted to have elevated blood pressure (mainly his systolic blood pressure) at various times, and as Dr Keighley suspects what is called white coat hypertension he now monitors his blood pressure himself at home. The monitoring so conducted has been within normal limits.
Mr Courtney’s pacemaker is checked every six months. In March 2015 he was noted to have slightly elevated cholesterol. A Persantin MIBI radio nuclear study in February 2015 showed normal left ventricular function with an ejection fraction of 67 per cent and very minor apical ischaemia. Holter monitoring revealed sinus rhythm with rare ectopic beats and no evidence of atrial fibrillation. Dr Keighley assessed Mr Courtney as being fit to continue to hold a pilot’s licence. As was his normal practice, Dr Keighley sent copies of all of these letters and the investigation results to CASA’s medical section.
The medical section of CASA noted that the minor apical ischaemia reported in the Persantin MIBI scan had not previously been referred to. CASA instructed Mr Courtney to provide comments from his cardiologist as to any functional or significant change between this test and the previous one of January 2014 (T-documents p105).
In response to the CASA letter dated 28 July 2015 directed to him, Dr Keighley forwarded a copy of the report of the Persantin MIBI study, a copy of a venous ultrasound which had shown thrombosis in the left subclavian vein secondary to pacemaker implantation via this route, and notified CASA that Mr Courtney had been anti-coagulated for the left subclavian vein thrombosis and this would be ceased in November 2015. Most relevantly, he opined that the mild apical ischaemia shown on the nuclear stress test was probably an artefact and clinically irrelevant. While there was a change from the report of the earlier study of January 2014, Dr Keighley drew attention to the fact that different doctors were involved in the reporting of the two scans.
In December 2015 Dr Keighley repeated the Persantin MIBI radio nuclear scan. The result of this scan was identical to the result of the scan performed in February 2015. Pacemaker checks were all satisfactory and had enabled the recording of any atrial arrhythmias. The only abnormality captured was some short-lived episodes of atrial flutter. Dr Keighley noted that Mr Courtney’s cholesterol level was still elevated. Mr Courtney had been on statins (Crestor) following his coronary artery surgery but this had been ceased when he developed myalgia. It was planned to reintroduce a statin (probably Lipitor) once the muscle symptoms settled.
In response to a further request from Dr Peter Clem of CASA, Dr Keighley provided a report on 12 February 2016 with his opinion that:
1.The annual risk of an acute cardiac event is very low.
2.The annual risk of stroke from rare brief episodes of atrial flutter was very low.
3.CHA₂ DS₂ VASc score is 3.
[Tribunal Note: The CHA₂DS₂ VASc estimation relates to the risk of a cerebrovascular accident in association with abnormal cardiac rhythms.]
Throughout the course of these investigations Mr Courtney’s licence was frequently in abeyance, awaiting a decision.
In his evidence before the Tribunal, Mr Courtney explained how difficult it would be to obtain a safety pilot. He only knew of five or six in the Bairnsdale region. These safety pilots would only be available at weekends for approximately one hour, whereas he normally does most of his flying to Western Australia and Northern Queensland. In the immediate past, he had flown from Bairnsdale to Moorabbin approximately 10 times a year and normally flew between 80 and 120 hours per year.
In the event that the Tribunal affirmed the decision under review, Mr Courtney said he would probably cease flying given the difficulties in obtaining the services of a safety pilot. He indicated he was advertising the Saratoga for sale.
EVIDENCE BEFORE THE TRIBUNAL
Mr Courtney’s evidence has been summarised above.The Tribunal’s observation is that he is a very active man of high intelligence, who presented his case extremely well. At various times he stated that if he had any doubt as to his flying capabilities he would not fly.
Dr Craig Keighley
Dr Keighley confirmed the content of his numerous reports referred to above. He stated that post-operative atrial fibrillation occurred in 30 per cent of patients undergoing coronary artery surgery. In Mr Courtney’s case, it had reverted to sinus rhythm with medication. While he maintained his opinion that the apical ischaemic area was an artefact, Dr Keighley said that even if it was a real area of ischaemia it was so small that it would not require treatment; nor would it alter Mr Courtney’s risk of recurrent myocardial ischaemia, which he regarded as being very low. In fact, Dr Keighley believed Mr Courtney’s risk was probably much lower than the average person in the street but he could not quantify the risk as a percentage. He did however inform the Tribunal that as the bypass graft had used an internal mammary artery it was to be expected that the duration of its patency would be greater than that of a vein graft or stent.
Under cross-examination by Mr Carter, Dr Keighley was asked how one could be confident that Mr Courtney did not have continuing myocardial ischaemia. Dr Keighley said the radio-nuclear stress test results had excluded this possibility. Dr Keighley informed the Tribunal that he had recommenced Mr Courtney on oral anticoagulants in June 2016 as his latest pacemaker check had shown a higher incidence of runs of atrial flutter/fibrillation. However, the statins had not yet been reintroduced as muscle pain and weakness was persisting.
Dr Keighley placed Mr Courtney’s risk of experiencing a cardiac event at less than 1 per cent per annum. In relation to the CHADS VASc score which had been estimated at a 3 per cent risk, Dr Keighley explained that this 3 per cent risk related only to persons with frequent episodes of paroxysmal atrial tachycardia or chronic established atrial fibrillation and not to persons who like Mr Courtney had recorded short periods of arrhythmia. In answer to the Tribunal’s question as to why the anticoagulants had been restarted in June 2016, Dr Keighley said that the pacemaker monitoring had shown a single episode of atrial arrhythmia lasting 10 hours and 14 minutes which warranted anticoagulation. But as the arrhythmia was only 0.2 per cent of the total monitoring time this indicated a very low risk of cerebrovascular embolism.
Dr Peter Habersberger
Dr Habersberger provided a report and opinion based only on the documentation prepared for CASA. Dr Habersberger outlined Mr Courtney’s cardiological history gleaned from reading the papers, noting he first presented with a supraventricular tachycardia in 1995 and this was treated with Sotalol. In 1997 Mr Courtney had developed atrial flutter and this was successfully reverted. In 2000 an episode of atrial fibrillation was recorded.
In his report Dr Habersberger noted that in 2013 Mr Courtney had undergone Holter monitoring as part of the medical assessment for the renewal of his pilot’s licence. As the Holter monitor revealed asymptomatic ST segment depression, CASA had requested a stress echocardiogram. As the stress echocardiogram was positive, coronary angiography and subsequently internal mammary artery grafting to the LAD and its diagonal branch took place. The post-operative atrial fibrillation was treated with Amiodarone and anticoagulants and reverted spontaneously or at least in response to the Amiodarone.
In his report Dr Habersberger noted that Mr Courtney has continued to take Sotalol, which as a side effect produce bradycardia. Following the diagnosis of sick sinus syndrome, a pacemaker was inserted in November 2014. Some six months later Mr Courtney developed swelling of his left arm and was found to have an organised thrombus in the left subclavian vein due to the implantation of pacing wires. He was treated with Warfarin and his swelling resolved. Pacemaker checking in February 2015 showed a run of atrial flutter lasting for 15 minutes at the maximum with a controlled ventricular response rate.
In August 2015 Mr Courtney recorded a mildly elevated cholesterol level with an LDL/ cholesterol of 4.5 mmol/L. Treatment with a statin, Crestor, was commenced but had to be ceased due to the onset of muscle pain associated with an elevated Creatinine Kinase level. Dr Habersberger noted the three radio nuclear perfusion scans undertaken since January 2014. The first of these was negative for any myocardial ischaemia and left ventricular function was well within normal range. A further Persantin myocardial perfusion scan was performed on 26 February 2015. This showed some patchy uptake at the apex of the left ventricle with the apical defect demonstrating reversibility at rest. The left ventricular ejection fraction was 67 per cent (normal being greater than 55 per cent).
In his report Dr Habersberger noted that the third Persantin radio-nuclear scan was performed on 17 December 2015 and again this showed a small area of mild tracer reduction affecting the apex and demonstrating reversibility at rest. There was also minor patchy uptake affecting the inferolateral wall, also demonstrating reversibility at rest. Mr Courtney’s left ventricular ejection fraction had slightly increased. No major areas of reversibility were seen and there was no real change when compared with the study from February 2015.
A series of questions were put to Dr Habersberger by the medical staff of CASA. Dr Habersberger reviewed all the myocardial perfusion scans with Professor Nathan Better who is an expert in this field. Professor Better agreed that the reports were correct, with some progression between January 2014 and February 2015; and while there was only a minor degree of myocardial ischaemia, the possibility of progression of Mr Courtney’s underlying coronary artery disease needed to be addressed.
Dr Habersberger was unable to provide an annualised percentage risk of future cardiovascular events, given that Mr Courtney had undergone bypass surgery to his coronary artery and also had a pacemaker inserted. Medical opinion and research had indicated that patients with single vessel disease had a two per cent per annum mortality but Mr Courtney’s single vessel disease had been corrected, as had his conductive heart disease. Dr Habersberger opined that the insertion of the pacemaker was very effective treatment rarely prone to failure. He regarded the risk of systemic thromboembolism to be very small. He believed the chances of a cardiovascular event were most unlikely; he also considered a cerebral embolic event to be most unlikely. But he acknowledged that both of these events, should they occur, could cause some degree of inflight incapacitation.
Dr Habersberger was asked to comment on Mr Courtney’s annualised percentage risk of future cerebrovascular events given his risk factors. Dr Habersberger noted that Mr Courtney’s CHADS VASc score was 3, that is, it equated to a 3.2 per cent annual risk of stroke but only if the patient was in atrial flutter or fibrillation all the time and without anticoagulation. He stated that this was not the case with Mr Courtney, who only rarely had atrial arrhythmia. As Mr Courtney has had a pacemaker inserted and the pacemaker records episodes of arrhythmia, Dr Habersberger felt the risk of a cerebrovascular episode was extremely low. While he concluded that a cerebrovascular episode was most unlikely to occur, if it did then the emboli might be of varying size with varying levels of incapacity.
To the CASA recommendation that Mr Courtney fly only with a safety pilot, Dr Habersberger responded that while Mr Courtney has coronary artery disease he has had successful bypass surgery and there is well-documented evidence that patients having had successful surgery have an excellent prognosis. However, he could not say that the risk of further complications was zero. Similarly, implanted pacemakers rarely failed and Mr Courtney’s recorded episodes of atrial flutter had, according to the documentation, been 15 minutes at the maximum. Dr Habersberger concluded that although the risks were extremely small there remained a possibility that Mr Courtney could have cardiac or cerebrovascular event affecting his ability to fly and land an aircraft.
Dr Habersberger’s evidence before the Tribunal was essentially the same as his written opinion. On questioning, he confirmed his opinion that the myocardial perfusion scans, while constant between February and December 2015, had shown minor areas of ischaemia that developed in the period between January 2014 and February 2015. These he said could be of no significance or could indicate progression of the underlying coronary artery disease. In general, Dr Habersberger confirmed that the presence of atrial flutter/fibrillation in Mr Courtney was of little significance given its duration and that it was not constant.Dr Habersberger confirmed that the chance of CHADS VASc risk of 3 per cent per annum was only applied to those persons who were in atrial fibrillation continuously and were not on anticoagulants. He agreed with Dr Keighley regarding the risk and that there were no meaningful figures available for the situation in which Mr Courtney found himself, that is, with coronary artery disease and cardiac arrhythmia both of which had been fully treated. Dr Habersberger considered it terribly unpredictable to determine or advise what a further cardiac event might lead to in terms of incapacitation during flight.

I asked Dr Habersberger if, given he had raised the possibility of progression of Mr Courtney’s underlying coronary artery disease particularly as the right dominant coronary artery had shown a 30 per cent narrowing (although this is hemodynamically insignificant), would CT angiography be of assistance in delineating the extent of the underlying coronary artery disease. Dr Habersberger agreed that this was a suitable technique for determining whether there had been any progression, is less invasive and could be done annually to ascertain Mr Courtney’s coronary artery status.
Dr Michael Seah
Dr Seah is a Senior Aviation Medical Officer with the Aviation Medicine Branch of CASA. He is the medical officer who made the reviewable decision. Dr Seah is a general practitioner currently based in Canberra, who has also served with the Australian Defence Forces over a period of 12 years. He provided a statement dated 2 August 2016 (Exhibit R3). In his statement, Dr Seah outlined the role of aviation medicine and the Aviation Medicine Branch of CASA. His statement included reference to the use of consulting clinical specialists, the clinical practice guidelines and the decision-making process, including the role of the Complex Case Management Team.
At the time of Mr Courtney’s application of 21 December 2015 for the re-issue of his class 2 medical certificate, Dr Seah had documented evidence of coronary artery disease treated by bypass grafting, sick sinus syndrome with atrial flutter and insertion of a pacemaker, hypercholesterolemia and a CHA₂DS₂VASc score of 3 with a 3.2 per cent annual risk of a stroke (cerebrovascular accident).
Dr Seah outlined the relevant medical standards as provided in the regulations and determined that Mr Courtney did not meet the safety relevant conditions of Table 67.155, Items 2.1, 2.2 and 2.9. As a result it was determined to issue a class 2 medical certificate with the imposition of a safety pilot condition. Dr Seah addressed the medical data provided, including the opinions of Doctors Keighley and Habersberger, acknowledging that both of them considered the risk to be low or extremely low. Dr Seah also noted that putting aside Mr Courtney’s cardiac history and its treatment, according to the Australian Bureau of Statistics (ABS) 2014 report, on an age basis alone he had an annualised mortality rate from all causes of 3.4 per cent.
In his evidence before the Tribunal, Dr Seah spoke to his statement confirming its content. The only difference that he could detect since making that statement was that Mr Courtney’s risk was now reduced with respect to the likelihood of a cerebrovascular accident as he was on anticoagulant therapy as of June 2016.
Under cross-examination by Mr Courtney, Dr Seah outlined the structure and conduct of the complex case meeting wherein the majority determined he should only fly with a safety pilot. In particular, Dr Seah stressed the possibility of the risks to aviation in that the pilot of the plane could be killed, the public could be injured as could other aviators and all this had to be considered.
Mr Carter on behalf of CASA provided the document entitled Evaluating Risk which has apparently been in force in CASA since the year 2009 (Exhibit R4). The Tribunal notes that where the risk is described as being low according to this chart it is to be treated with routine procedures.
DOCUMENTARY EVIDENCE BEFORE THE TRIBUNAL
The relevant major documentary evidence has been summarised above, as has been the evidence of the medical experts. Mr Courtney provided photographs of his aircraft, results of all of his investigations and forms of treatment as already provided in the T-documents. Mr Courtney’s statement of facts and contentions and the accompanying 55 attachments include a speech given by the recently retired Director of Aviation Safety, Mr Mark Skidmore.
RELEVANT LEGISLATION
Civil Aviation Act 1988 provides in s 20AB(1)
20AB Flying aircraft without licence etc.
(1)A person must not perform any duty that is essential to the operation of an Australian aircraft during flight time unless:
(a)the person holds a civil aviation authorisation that is in force and authorises the person to perform that duty; ...
3Interpretation
civil aviation authorisation means an authorisation under this Act or the regulations to undertake a particular activity (whether the authorisation is called an AOC, permission, authority, licence, certificate, rating or endorsement or is known by some other name).
Sub-regulation 61.410 of the Regulations provide for authorisation to exercise the privileges of a private pilot if they hold a current class 1 or class 2 medical certificate. Civil Aviation Safety Regulations deal with the issuing of medical certificates. Regulation 11.056 allows CASA to issue a medical certificate subject to any condition that CASA is satisfied as necessary in the interests of safety of air navigation.
Regulation 67.180 determines that a medical certificate cannot be issued unless the applicant meets the relevant medical standard; or the extent to which they do not meet the standard it is not likely to endanger the safety of air navigation.
In relation to a class 2 medical standard, Table 67.155 of the Regulations state:
Abnormalities, disabilities and functional capacity
2.1Has no safety-relevant conditions of any of the following kinds that produces any degree of functional incapacity or a risk of incapacitation:
1.an abnormality;
2.a disability of disease (active or latent);
3.an injury;
4.a sequel of an accident or limitations or a surgical operation.
2.1Has no physical conditions or limitations that are safety-relevant
Cardiovascular system
2.9Has no safety-relevant heart abnormality.
Regulation 67.180 prohibits the issuing of a licence to those who do not meet the above.
SUBMISSIONS
Mr Courtney
Mr Courtney in his submissions relied on Doctors Habersberger and Keighley, who had found his chances of having a cerebrovascular accident or an episode of myocardial ischaemia while flying was extremely low. Although neither of them was able to place a percentage on the risk, they intimated it was less than one per cent.
Mr Courtney submitted that as CASA focuses on times and percentages in relation to risk, on his estimations he was in the air flying his aircraft for 1.1 per cent of total time in a year and 23 per cent of that 1.1 per cent was flying in or around a settled area being Moorabbin airport. The majority of his flying was in the outback, where the chances of hitting a member of the public on the ground were very remote.
Based on the overall evidence from 2012 onwards, Mr Courtney contended that despite having no symptoms he had undergone various forms of treatment which reduce any risk he might be to himself, his passengers, other aircraft and the public in general. He contended that no abnormality had been demonstrated on radio nuclear myocardial scanning in January 2014. The scan in February 2015, (performed using a different technique and reported on by a different cardiologist) had revealed an area of left ventricular apical ischaemia despite normal left ventricular function. This apical defect was the subject of disagreement in terms of its relevance and when the scan was repeated 10 months later there was no further change. Mr Courtney submitted that if there had been any change it occurred between January 2014 and February 2015 and had not advanced thereafter.
Mr Courtney sought to have the condition of only flying with a safety pilot removed. He also sought that the requirement for a CT coronary angiogram, if regarded as necessary, should be delayed until his next application for licence renewal.
Mr Carter for CASA
Mr Carter reiterated the opinion of CASA authorities that Mr Courtney did not meet the requirements for a class 2 licence. Based on the authority of Re Window and Civil Aviation Safety Authority (1999) 56 ALD 316, the test to be adopted was whether the risk was real and not remote.
Mr Carter addressed Mr Courtney’s long history of cardiac problems - with the necessity for coronary grafting and various medication, insertion of a pacemaker and a persistence of an elevated cholesterol as he was not able to take statins. Mr Carter pointed to the CHADS VASc score calculated at 3.2 per cent and also Mr Courtney’s age of 77 which alone carried according to the ABS 3.6 per cent risk of death. While Mr Courtney had stated in his evidence that he was not afraid to die, the Act required CASA to consider the pilot’s safety as well as that of passengers, other aircraft and the public in general.
Mr Carter contended that we were essentially dealing with unknowns. While the evidence was that each particular condition from which Mr Courtney suffered carried with it a very low risk of a sudden debilitating event, in totality concern was raised. Further considerations were that Mr Courtney always flew with his partner Megan and while she had had flying lessons she was not a licenced pilot despite her belief that she could land a plane. Mr Courtney had also said he would like to take his grandchildren on flights.
In his submissions Mr Carter raised the question of whether Mr Courtney had revealed his medical conditions to RAA who did require a declaration of any health matters. Mr Carter supported the idea of CT coronary angiography to assess whether there had been any progress of Mr Courtney’s coronary artery disease.
In response to Mr Carter’s question regarding RAA, Mr Courtney advised that he had completed the necessary declarations for RAA.
TRIBUNAL’S DELIBERATIONS
Mr Courtney has well documented but at all times asymptomatic coronary artery disease treated by off-pump coronary artery bypass grafting with the internal mammary artery. He has paroxysmal atrial flutter/fibrillation of 20 years duration requiring medication with Sotalol, and as a result of the development of bradycardia and sick sinus syndrome required the insertion of a pacemaker. Since ceasing the statin Crestor, his cholesterol level has become mildly elevated. On the basis of these medical conditions, his CHADs VASc score relating to the risk of a cerebrovascular accident was calculated at a 3.2 per cent annual stroke rate.
As already stated, Mr Courtney has always been free of symptoms relating to these medical conditions and they have in fact been diagnosed as a result of CASA’s requirements of annual cardiology assessments consequent upon his age and also because of his documented history of paroxysmal atrial arrhythmia since 1994/95. It was the Holter monitoring procedure requested by his DAME that revealed the presence of myocardial ischaemia presenting as ST depression on ECG. This of course led to a chain of events, including coronary angiography followed by bypass surgery.
It could be said that if Mr Courtney was not a pilot and as his cardiac coronary artery disease was asymptomatic, none of the investigations and treatment outlined above would have been indicated in normal clinical practice.
With each medical intervention or recommendation, Mr Courtney has followed the advice of his treating cardiologists. As a result of his coronary artery bypass surgery in June 2013, his left ventricular function as measured by left ventricular ejection fraction has been normal since the operation, the latest levels being 67-69 per cent (normal ejection fraction being 55 per cent or greater). The left ventricular ejection fraction increased marginally in the study of December 2015 despite the finding in both February and December 2015 of a small area of apical diminished profusion that had not changed in the intervening 10 months.
Dr Keighley has sent copies of all but two letters relating to Mr Courtney to CASA and these letters have been generated at three to six monthly intervals since 2012. Most of the letters have been addressed to Dr Drane who appears to have been a senior aviation medical officer, or to a Dr Clem, with only one being direction to Dr Seah. Every letter has been copied to Mr Courtney and the relevant DAME. Dr Clem was sent a summary of Mr Courtney’s progress in January 2016.
In mid-2013 CASA required further medical investigations and provision of results before reissuing Mr Courtney’s class 2 medical certificate. This was eventually issued on 6 March 2014. The expiry date of this certificate was 7 January 2015 but again delays relating to further requested testing and information resulted in Mr Courtney’s licence not being issued until 28 August 2015. It appears to the Tribunal that while these processes were extremely slow given that Dr Keighley rapidly responded and provided all investigation results, it was not until Mr Courtney saw his DAME to initiate the required investigations for reissue of his licence in January 2016 that a further reconsideration of his class 2 medical certificate and licence was initiated apparently by Dr Seah. The Tribunal presumes that Dr Keighly’s explanation that the abnormality in the radio-nuclear myocardial scan reported in February 2015 was an artefact and thus of no clinical significance, had been accepted.
In addition to the question of whether there was persisting myocardial ischaemia or, in the alternative, progression of the underlying disease, presumably in the right coronary artery as it is the dominant vessel, CASA’s medical section expressed concern regarding Mr Courtney's CHADS VASc score of 3.2 per cent per annum. In his reports Dr Keighley had made it clear that this figure of 3.2 per cent only applied in individuals who had frequent paroxysmal atrial arrhythmia or were in chronic atrial fibrillation and where not anticoagulated. He had advised that Mr Courtney did not fall into this group as his episodes of atrial arrhythmia were very infrequent and short-lived. As Mr Courtney has a pacemaker in situ, he is in the unusual position of being continuously monitored in terms of arrhythmias. There was thus irrefutable scientific evidence on which Dr Keighley based his opinion.
In June 2016 when Mr Courtney’s pacemaker check revealed that he had experienced a more prolonged episode of atrial flutter Dr Keighley commenced anticoagulation with an oral anticoagulant and this continues. While this was outside the period following the making of the decision it is relevant to this decision.
Dr Keighley has given evidence before the Tribunal which essentially affirmed and expanded on his voluminous reports to CASA over the years. He reiterated his written opinion that the risk of a cerebrovascular accident occurring in Mr Courtney is very low and his risk of a cardiac event is less than one per cent. Dr Keighley negated the diagnosis of hypertension in Mr Courtney as episodic systolic hypertension had been ascribed to the so called white coat effect and Mr Courtney’s home monitoring of his blood pressure revealed normal readings.
Dr Habersberger is essentially of the same opinion as Dr Keighley. He estimated the risk of a cardiac event and cerebrovascular event as being extremely low and opined that it was impossible to give a meaningful percentage figure. Dr Habersberger said he would have treated Mr Courtney in exactly the same manner as Dr Keighley had done. However, he could not rule out the possibility of some progression of the underlying coronary artery atheroma process without further investigation. He did however respond to the Tribunal’s query as to why CT coronary angiography had not been employed, agreeing that this was very appropriate method of monitoring. He recommended that Mr Courtney undergo CT angiography annually.
Dr Seah was of the opinion that as Mr Courtney, based on his age alone, faced a 3.6 per cent annualised risk of death according to the ABS, this must be added to any heart or cerebrovascular accident risk and resulted in an unacceptable level of risk for a standard class 2 medical certificate. He did however agree that the risk of a cerebrovascular accident had been reduced by the prescribing of anticoagulants.
Clearly CASA is, by virtue of s 9(a) of the Civil Aviation Act 1988, required to consider the safety of air navigation in Australia above all else. This includes the ability of persons licenced as pilots to exercise the privileges conferred by the licence. The Regulations (CASR) provide in Table 65.155 the standard for a class 2 medical certificate as it applies to private pilots. CASA contends that Mr Courtney fails to meet a class 2 medical standard because of his coronary artery disease requiring bypass grafting, his radio nuclear scan evidence of reversible ischaemia, his sick sinus syndrome, paroxysmal atrial flutter, requirement for a pacemaker and hypercholesterolemia which it is argued elevate the risk of Mr Courtney having an acute coronary event or acute cerebrovascular event. For the same reasons he does not meet Item 2.9 as he clearly has a heart abnormality.
The Tribunal has heard the evidence of both Dr Keighley and Dr Habersberger, both of whom assessed the risk of a coronary artery event and an acute cerebrovascular event as being low; in Dr Keighley’s opinion less than the one per cent standard set by CASA.
The Tribunal was provided with the CASA evaluation graph (Exhibit R4) and, based on the evidence of Dr Keighley, Mr Courtney’s risk would be between insignificant and minor with the likeliness of an event occurring being low at either level. On Dr Habersberger’s evidence the risk would be minor and also unlikely and therefore low. According to the key at the bottom of this risk evaluation, persons classified as having a low level of risk are to be treated with routine procedures.
Based on the medical evidence before the Tribunal coupled with CASA’s own risk evaluation document, and particularly in view of the delays to which Mr Courtney has been submitted in the making of a decision regarding his medical certification the Tribunal determines that the decision under review be set aside and that Mr Courtney be issued with a class 2 medical certificate without the safety pilot condition. The certificate should be issued for a period of 12 months and in the interim, at Mr Courtney’s convenience, a CT coronary angiogram should be undertaken as both Dr Habersberger and the legal representative of CASA, Mr Carter, have agreed that this is an appropriate method of assessing the possibility of any progression of the underlying coronary artery disease.
Given Mr Courtney’s right coronary artery was said to be the dominant artery with only a 30 per cent stenosis it would seem unlikely that a critical degree of progression would have occurred in a period of three years.
The Tribunal has not addressed the question of Mr Courtney flying in an alternative manner through RAA approval, as he has stated he has no desire to be limited to the flying imposed by such licencing. Mr Courtney has been an impressive witness with an extraordinary grasp and understanding of his medical condition, and an acceptance of what has been good advice, which has led to an excellent clinical result. The Tribunal is not surprised to find that his Montreal Cognitive Assessment performed on 6 March 2015 resulted in a score of 30 out of 30.
The Tribunal sets aside the decision under review and substitutes its decision that Mr Courtney be issued with a class 2 licence without the condition that he can only fly with a safety pilot but that he undergo CT coronary angiography when convenient.

I certify that the preceding 72 (seventy‑two) paragraphs are a true copy of the reasons for the decision herein of:
Miss E A Shanahan, Member
..............................................................
Dated 28 September 2016

Date of hearing 8 August 2016

Applicant In person

Advocate for the Respondent Anthony Carter

Solicitors for the Respondent Civil Aviation Safety Authority

[2016] AATA 755

28 September 2016

Key Legal Topics

Areas of Law

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Standing

Statutory Construction

Appeal

Natural Justice

Division	GENERAL DIVISION
File Number	2016/2278
Re	Thomas Courtney
APPLICANT
And	Civil Aviation Safety Authority
RESPONDENT

Tribunal	Miss E A Shanahan, Member
Date	28 September 2016
Place	Melbourne

Date of hearing	8 August 2016
Applicant	In person
Advocate for the Respondent	Anthony Carter
Solicitors for the Respondent	Civil Aviation Safety Authority