Goldstein and Civil Aviation Safety Authority
[2016] AATA 57
•5 February 2016
Goldstein and Civil Aviation Safety Authority [2016] AATA 57 (5 February 2016)
Division
GENERAL DIVISION
File Number
2015/2608
Re
Robert Goldstein
APPLICANT
And
Civil Aviation Safety Authority
RESPONDENT
DECISION
Tribunal Deputy President I R Molloy
Date 5 February 2016 Place Brisbane The decision under review is set aside and substituted with a decision to issue the applicant with a class 2 medical certificate subject to the following conditions:
The holder is to fly at all times as or with a safety pilot and must ensure compliance with the following requirements for any flight:
Aircraft Requirements
The aircraft being flown must be configured with side by side seating in the cockpit;
The aircraft being flown must have a full set of dual flying controls.
Requirements of holder
The holder must wear a shoulder restraint harness at all times when occupying a control seat;
The holder must ensure the safety pilot has been shown a copy of the conditions endorsed on the holder’s medical certificate including these requirements.
Requirements for the safety pilot
The safety pilot must occupy a control seat, except for short absences (absences only in the cruise with the autopilot engaged);
The safety pilot must be endorsed and current on the aircraft type being flown;
The safety pilot must be appropriately rated for the in-flight conditions;
The safety pilot must have a medical certificate not restricted to multi-crew flight operations;
The safety pilot must be aware of the type of incapacity the pilot may suffer in flight;
The safety pilot must be prepared to take over the aircraft controls during critical phases of flight;
The safety pilot must be competent and capable of concluding the flight safely from the control seat.
The Applicant is also required to provide CASA’s Aviation Medical Branch with a regular (every 3 months) ICD download excluding any significant burden of ventricular tachycardia, ventricular fibrillation or ICD discharge in order to monitor him for any deterioration requiring a review of his suitability to hold a conditional certificate.
............................[Sgd]...........................................
Deputy President I R Molloy
CATCHWORDS
CIVIL AVIATION - refusal to grant class 2 medical certificate – whether applicant suffers from safety-relevant medical conditions - whether likely that medical conditions will interfere with safe exercise of privileges or performance of duties – whether conditions can be imposed to ameliorate the risk to air navigation safety – safety-relevant medical conditions made out – conditions applied – refusal decision set aside and class 2 medical certificate issued with conditions
LEGISLATION
Civil Aviation Safety Regulations 1998 (Cth) r 61.410, 67.180, 67,010, 67.155, 11.056
Civil Aviation Act 1988 (Cth) ss 20AB, 3, 9A,
CASES
White and Civil Aviation Safety Authority (2008) 105 ALD 33
Window v Civil Aviation Safety Authority [1999] AATA 527
Hall and Civil Aviation Safety Authority [2004] AATA 21
Mulholland and Civil Aviation Safety Authority [2007] AATA 1952
REASONS FOR DECISION
Deputy President I R Molloy
5 February 2016
REASONS FOR DECISION
Robert Goldstein holds a private pilot licence. He has applied to the Tribunal to review a decision of a delegate of the Civil Aviation Authority (“CASA”) dated 6 May 2015 affirming an earlier CASA decision refusing him a medical certificate.[1]
[1] T1, P1-2.
BACKGROUND
On 11 April 2014 Mr Goldstein applied to CASA for a class 2 medical certificate. On 4 May 2014 CASA responded that based on his medical history of arrhythmia and defibrillator insertion he failed to meet the required medical standard. This decision was confirmed on review in a letter from CASA dated 1 July 2014 again relying on Mr Goldstein’s medical history of arrhythmia and defibrillator insertion.[2]
[2] T3, P4-6
On 18 July 2014, Mr Goldstein made an application for reconsideration of the decision of 1 July 2014. By letter dated 6 May 2015 CASA affirmed the decision, again refusing to issue a class 2 medical certificate.[3]
[3] T3, P7-9
The decision of 6 May 2015 (“the reviewable decision”) included a determination that Mr Goldstein had an established medical history of idiopathic cardiomyopathy, complete heart block, atrial fibrillation, recurrent ventricular tachycardia, type 2 diabetes mellitus, hypertension and hyperlipidaemia. The decision referred to Mr Golstein’s prescribed medication and to a permanent pacemaker and an implantable cardiac defibrillator.
The reviewable decision concluded that based on the above medical conditions, and the prescribed measures implemented to treat them, Mr Goldstein did not meet the required medical standard for a class 2 medical certificate, and there were no conditions that would adequately ameliorate the risks to air navigation safety.
By application dated 25 May 2015 Mr Goldstein applied to the Tribunal for review of the decision of 6 May 2015.
REGULATORY PROVISIONSRegulation 61.410(1) of the Civil Aviation Safety Regulations 1998 (Cth) (“CASR”) provides that the holder of a private pilot licence is not authorised to exercise the privileges of that licence if the person does not hold a current class 1 or class 2 medical certificate, or a medical exemption for the exercise of the privileges of the licence.
Subsection 20AB(1) of the Civil Aviation Act 1988 (Cth) provides relevantly that a person must not perform any duty that is essential to the operation of an Australian aircraft during flight times if the person does not hold a current civil aviation authorisation that authorises the performance of that duty. By s 3(1) of the Civil Aviation Act the term “civil aviation authorisation” is defined to include a certificate issued under the Regulations.
The issuing of medical certificates is governed by Part 67 of the CASR. Regulation 67.180 prevents CASA from issuing a medical certificate unless the applicant meets the “relevant medical standard”, or to the extent to which the applicant does not meet that standard, is not “likely to endanger the safety of air navigation”.
Regulation 67.010 provides that the relevant medical standard for a class 2 medical certificate is medical standard 2. Medical standard 2 is defined as the standard set out in Table 67.155.
Table 67.155 of the CASR includes the following:
Abnormalities, disabilities and functional capacity
2.1 Has no safety-relevant condition of any of the following kinds that produces any degree of functional incapacity or a risk of incapacitation:
(a) an abnormality;
(b) a disability or disease (active or latent);
(c) an injury;
(d) a sequela of an accident or a surgical operation.Cardiovascular system
2.9 Has no safety-relevant heart abnormality
Alimentary system and metabolic disorders
2.13 Is not suffering from a safety-relevant defect of the digestive system or its adnexae, nor from any safety-relevant effect of disease or trauma of, or an operation on, the digestive system or its adnexae
2.14 Is not suffering from safety-relevant metabolic, nutritional or endocrine disorders.
Regulation 11.056 allows CASA to issue a medical certificate to a person subject to any condition that CASA is satisfied is necessary in the interests of the safety of air navigation.
By s 9A(1) of the Civil Aviation Act, CASA is required to regard the safety of air navigation as the most important consideration in the exercise of its powers and the performance of its functions.
ISSUES
I accept CASA’s submission that regulation 67.180 of the CASR, when read with regulation 11.056, requires the Tribunal to apply the following decision-making process in determining whether a person should be granted a class 2 medical certificate:
(a)determine whether the applicant meets the medical standard in Table 67.155 – if the relevant standard is met, the certificate must be granted - regulation 67.180(1) and (2)(e);
(b)if the applicant does not meet the relevant medical standard, then determine whether the extent to which the applicant fails the medical standard is likely to pose a risk to the safety of air navigation – if not, then the certificate may be granted - regulation 67.180(2)(e)(ii) and (f)(ii);
(c)if the extent to which the applicant fails the medical standard is likely to endanger the safety of air navigation, then the certificate must be refused unless it can be issued with conditions which will ameliorate any risk posed – regulation 11.056.[4]
[4] White and Civil Aviation Safety Authority (2008) 105 ALD 33, 35, [7].
Does Mr Goldstein meet the medical standard?
The following medical evidence was before the Tribunal in addition to the evidence available at the time of the reviewable decision:
a)Report of Dr Brian Fredericks, consultant endocrinologist, dated 14 September 2015;[5]
b)Report of Dr John Bou-Samra, cardiologist, dated 15 September 2015;[6] and
c)Statement of Dr Peter Alexander Clem, senior medical officer, CASA, dated 11 November 2015.[7]
[5] Exhibit 2.
[6] Exhibit 3.
[7] Exhibit 4.
Dr Clem and Dr Bou-Samra also gave oral evidence, as did Dr Andrei Catanchin, cardiologist/electrophysiologist, who had previously provided a report.[8]
[8] T81, P189 – 190.
CASA contends that the medical evidence establishes Mr Goldstein has the following relevant medical history as referred to by Dr Clem:
(a)Left bundle branch block;
(b)Complete heart block;
(c)Atrial fibrillation;
(d)Recurrent ventricular tachycardia;
(e)Idiopathic cardiomyopathy;
(f)Coronary artery disease;
(g)Type 2 diabetes mellitus;
(h)Hypertension; and
(i)Hyperlipidaemia.[9]
[9] Exhibit 4, paragraph 3.
Mr Goldstein claimed that this history was inaccurate. In particular, he disputed the description of recurrent ventricular tachycardia; he said he had no symptoms of idiopathic cardiomyopathy; he said he has tested satisfactorily for coronary artery disease; and, as to hypertension he has never been told he had high blood pressure.
I think these matters were all satisfactorily addressed by Dr Clem. He said there was evidence of three episodes of ventricular tachycardia which qualified as recurrent; symptoms are not a prerequisite to the existence of idiopathic cardiomyopathy; there was evidence of coronary artery disease, albeit mild, and a satisfactory test performance did not alter that; and Dr Fredericks specifically reported on the existence of hypertension.[10]
[10] T19, P58.
Dr Clem’s evidence concerning Mr Goldstein’s medical history was substantially supported by what Dr Bou-Samra and Dr Catanchin had to say.
In particular, Dr Bou-Samra confirmed in oral evidence that Mr Goldstein did have a history of cardiomyopathy, and was correctly classed as having recurring ventricular tachycardia as referred in his report of 3 April 2014[11]. Dr Catanchin said cardiomyopathy will continue to have some effect on the heart even without symptoms.
[11] T53, P133.
I accept CASA’s contentions as to Mr Goldstein’s medical history.
CASA submits that Mr Goldstein’s medical history constitutes a failure against each of the items of Table 67.155 of the CASR set out above.
Under regulation 67.015 of CASR, a condition is “safety relevant” if it reduces, or is likely to reduce, the ability of a person to exercise the privileges, or perform the duties, conferred by the licence.
I accept Dr Clem’s evidence that Mr Goldstein’s medical history, as referred to above, constitutes a safety-relevant condition as defined in Items 2.1(b), 2.9, 2.13 and 2.14 of Table 67.155 of the CASR.[12]
[12] Exhibit 4, paragraphs 6.
In particular, Mr Goldstein, in Dr Clem’s view, has safety relevant conditions of a kind referred to in Item 2.1(b) producing a risk of an acute coronary event or an acute cerebrovascular event resulting in incapacitation which in the confines of an aircraft is likely to be catastrophic.[13]
[13] Exhibit 4, paragraph 7.
I am satisfied on all the evidence that Mr Goldstein by reason of his medical history fails to meet the standard at Item 2.1 of Table 67.155, in that he suffers the conditions as referred to by Dr Clem so as to fall within subparagraph (b), that the conditions are safety relevant, and they produce a risk of incapacitation.
I am also satisfied on all the medical evidence there is failure to meet the standards set by Items 2.9, 2.13 and 2.14 of Table 67.155. In short Mr Goldstein fails in several respects to meet the class 2 medical standard on account of his medical history.
Risk to safety of air navigation
As referred to above, Mr Goldstein’s medical history carries with it an elevated risk of suffering from an acute coronary event or an acute cerebrovascular event.
Mr Goldstein’ cardiologist, Dr Bou-Samra, in a report dated 3 April 2014, said that Mr Goldstein’s “percentage annual risk of any acutely disabling cardiovascular and cerebrovascular event is difficult to define but would be of the order of approximately 5% per year.”[14] In a report dated 3 December 2014 he said in his opinion the chance of Mr Goldstein having a significant myocardial event, be that coronary occlusion or arrhythmia or acute decompensated heart failure, is of the order of less than 5% per year.[15] In oral evidence he spoke of a 3% to 6% risk.
[14] T53, P133.
[15] T78, P184.
Dr Catanchin referred to Mr Goldstein’s risk per annum of an acute cardiovascular event as in the range of zero to 5% or “possibly higher”. The risk in the general population was said to be 1% and, in Mr Goldstein’s age group generally, according to Dr Catanchin, up to 2%.
Dr Clem says that Mr Goldstein fails to meet several different medical standards which involve cardiovascular, cerebrovascular, metabolic and endocrine systems. Although there is disease across different body systems, the pathophysiology of the conditions combine synergistically to increase the risk posed by these health hazards.[16]
[16] Exhibit 4, paragraph 11.
Dr Clem says Mr Goldstein’s type 2 diabetes impacts on his coronary condition and nearly doubles the risk of an acute coronary event compared to a non-diabetic patient.[17] Dr Catanchin also mentioned Mr Goldstein’s diabetes as one of the risk indicators.
[17] Exhibit 4, paragraph 12.
Dr Clem’s opinion, based on Mr Goldstein’s accumulated medical history, and the opinions expressed by Dr Bou-Samra and Dr Catanchin, was that the extent to which Mr Goldstein does not meet the class 2 medical standard is likely to endanger the safety of air navigation.[18]
[18] Exhibit 4, paragraph 10.
He said that given Mr Goldstein’s conditions forming his medical history, there is:
a substantial or real and not remote possibility that Mr Goldstein will suffer an incapacitating event due to these conditions whilst in flight. Were Mr Goldstein to suffer such an event whilst at the controls of an aircraft in flight, then this would pose a clear threat to the safety of air navigation.[19]
[19] Exhibit 4, paragraph 15.
Dr Clem went on to say:
While it is acknowledged that the determination of likelihood of risk under Part 67 of the CASR is not a purely statistical or mathematical task, CASA makes use of annual absolute risk percentages of acute incapacitating events in order to assist in determining whether such an event is ‘likely’ for the purposes of regulation 67.180. An acceptable annual risk of 2% for class 2 certificate holders is applied. Mr Goldstein does not meet this benchmark.[20]
[20] Exhibit 4, paragraph 16.
The term ‘likely’ when used in the context of the issue of an aviation medical certificate pursuant to Part 67 of the CASR refers to a “substantial or real and not remote risk of a particular event occurring”.[21] Based on all the medical evidence I accept that the prospect of Mr Goldstein suffering from an incapacitating event at the controls of an aircraft in flight presents as a real and substantial, and not remote or fanciful, risk.
[21] Window v Civil Aviation Safety Authority [1999] AATA 527, [60].
The fact that the risk in percentage terms is small does not mean that such a risk is not real or substantial for the purposes of the exercise of the powers under r.67.180 of the CASR.[22]
[22] Hall and Civil Aviation Safety Authority [2004] AATA 21; Mulholland and Civil Aviation Safety Authority [2007] AATA 1952.
CASA makes the point that even a mild event could produce pain and discomfort which might have the effect of distracting a pilot from the task of flying the aircraft. Sudden unexpected and painful distraction at a critical point during a flight could have catastrophic outcomes in this environment.
Section 9A(1) of the Civil Aviation Act provides that the safety of air navigation is the most important consideration. This requires that a suitably cautious approach be taken to assessing the risks posed to the safety of air navigation by Mr Goldstein’s medical history.
I am not satisfied that Mr Goldstein’s failure to meet the class 2 medical standard is not likely to endanger the safety of air navigation.
Can a medical certificate be issued with appropriate conditions?
Notwithstanding Mr Goldstein’s relevant medical history gives rise to a real risk that the safety of air navigation will be endangered, a class 2 medical certificate may still be issued if a suitable condition can be imposed on the certificate (under regulation 11.056) to adequately address that risk.
CASA submits that, if Mr Goldstein was issued with a medical certificate endorsed with a condition that he fly as or with a safety pilot, then any risks to safety would be adequately managed. CASA proposes the following conditions:
The holder is to fly at all times as or with a safety pilot and must ensure compliance with the following requirements for any flight:
Aircraft Requirements
The aircraft being flown must be configured with side by side seating in the cockpit;
The aircraft being flown must have a full set of dual flying controls.
Requirements of holder
The holder must wear a shoulder restraint harness at all times when occupying a control seat;
The holder must ensure the safety pilot has been shown a copy of the conditions endorsed on the holder’s medical certificate including these requirements.
Requirements for the safety pilot
The safety pilot must occupy a control seat, except for short absences (absences only in the cruise with the autopilot engaged);
The safety pilot must be endorsed and current on the aircraft type being flown;
The safety pilot must be appropriately rated for the in-flight conditions;
The safety pilot must have a medical certificate not restricted to multi-crew flight operations;
The safety pilot must be aware of the type of incapacity the pilot may suffer in flight;
The safety pilot must be prepared to take over the aircraft controls during critical phases of flight;
The safety pilot must be competent and capable of concluding the flight safely from the control seat.
CASA also contends that any class 2 medical certificate issued to Mr Goldstein should also contain a condition requiring him to provide CASA’s Aviation Medical Branch with a regular (every 3 months) ICD download excluding any significant burden of ventricular tachycardia, ventricular fibrillation or ICD discharge in order to monitor him for any deterioration requiring a review of his suitability to hold a conditional certificate.
I accept having due regard to s 9A(1) of the Civil Aviation Act that the above would be the correct and preferable decision.
Conclusion
The decision under review is set aside and substituted with a decision to issue the applicant with a class 2 medical certificate subject to the conditions referred to in paragraphs 43 and 44 above.
I certify that the preceding 46 (forty -six) paragraphs are a true copy of the reasons for the decision herein of Deputy President I R Molloy ..........................[Sgd]..............................................
Associate
Dated 5 February 2016
Date of hearing 7 December 2015 Applicant In person Respondent In person
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