Morey-Hype and Civil Aviation Safety Authority

[2017] AATA 125

Morey-Hype and Civil Aviation Safety Authority [2017] AATA 125 (6 February 2017)

Division:GENERAL DIVISION

File Number(s):      2015/2848

2016/1698

Re:Mark Morey-Hype

APPLICANT

AndCivil Aviation Safety Authority

RESPONDENT

DECISION

Tribunal:Senior Member A Poljak

Date:6 February 2017

Place:Sydney

The decision under review is affirmed.

..................................[sgd]......................................

Senior Member A Poljak

CATCHWORDS

CIVIL AVIATION – license conditions – class 1 and class 2 medical certificates  – medical certificates issued with conditions – relevant medical standard – safety of air navigation –  chronic pain syndrome – opiate based medication – decision affirmed

LEGISLATION

Civil Aviation Act 1988 (Cth) ss 3(1), 9A, 20AB(1)

Civil Aviation Safety Regulations 1998 (Cth) regs 11.056, 67.015, 67.150, 67.155, 67.180

REASONS FOR DECISION

Senior Member A Poljak

6 February 2017

1. The applicant is the holder of flight crew licences with Aviation Reference Number (ARN) 193332. He was diagnosed with chronic pain syndrome following a skiing accident in 1993 in which he sustained a traumatic T12/L1 spinal injury. He continues to use opiate-based medication, primarily Panadeine Forte, for his chronic pain condition. As the holder of a pilot’s licence, the applicant requires a medical certificate (with or without conditions) issued by the Authority to enable him to operate an aircraft.

2. In respect of proceedings 2015/2848, the reviewable decision is that of a delegate of the respondent, the Civil Aviation Safety Authority (“CASA”) dated 13 April 2015 to refuse to issue the applicant with a Class 1 and Class 2 Medical Certificate. The applicant has sought review of this decision.

3. In respect of proceedings 2016/1698, the reviewable decision is that of a delegate of CASA dated 29 February 2016, to issue the applicant with a Class 1 and Class 2 Medical Certificate with conditions (“the decision”). This decision wholly replaces the earlier decision made on 13 April 2015, and as such there is no utility in reviewing the decision in respect of proceedings 2015/2848.

4. The current and effective decision made on 29 February 2016 is the reviewable decision in these proceedings.

5. In the decision, CASA has issued the applicant with a Class 1 and 2 Medical Certificate subject to the following conditions:

   ·not valid for ab initio flight training;

   ·only valid for solo aerobatics or aerobatics when accompanied by a type-rated pilot;

   ·flight duration to be limited to a maximum of two hours;

   ·all training flights require prior approval from the Chief Pilot or Head of Operations;

   ·no flying activities to be undertaken within 12 hours of use of any opiate-based medication; and

   ·not valid for our PT, Charter and Agricultural Flying operations.

6. The applicant has asked the Tribunal to reconsider this decision. He says the certificates should be issued without the conditions CASA has imposed.

7. I have read and considered the evidence before me and agree with CASA’s decision for the following reasons.

   RELEVANT LEGISLATIVE PROVISIONS

8. Subsection 20AB(1) of the Civil Aviation Act 1988 (Cth) (“the Act”) provides 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.  Civil aviation authorisation is defined by subsection 3(1) of the Act to include a certificate issued under the Civil Aviation Safety Regulations 1998 (Cth) (“the CASR”).

9. By section 9A of the Act, CASA and therefore this Tribunal, is required to regard the safety of air navigation as the most important consideration in the exercise of its powers under the Act.

10. The medical standards which must be met to obtain each class of medical certificate are set out in Part 67 of CASR.

11. Items 1.1, 1.2 and 1.3 of CASR table 67.150 and items 2.1, 2.2 and 2.3 of CASR table 67.155 set out the relevant criteria for the applicant to meet the medical standard for the issue of a Class 1 and Class 2 medical certificate. The relevant criteria are:

    Abnormalities, disability and functional capacity

    1.1/2.1  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 

    1.2/2.2 Has no physical conditions or limitations that are safety-relevant

    1.3/2.3Is not using any over-the-counter or prescribed medication or drug (including medication or a drug used to treat a disease or medical disorder) that causes the person to experience any side-effects likely to affect the person to an extent that is safety-relevant

12. Regulation 67.015 provides the meaning of safety-relevant:

    For the purposes of this Part, a medically significant condition is safety-relevant if it reduces, or is likely to reduce, the ability of someone who has it to exercise a privilege conferred or to be conferred, or perform a duty imposed or to be imposed, by a licence that he or she holds or has applied for.

13. Subject to qualifications which are not relevant to this application, regulation 67.180 provides that CASA must issue a medical certificate to an applicant if the applicant meets the requirements of sub-regulation 2. For the purposes of this application the relevant requirements are:

    (2)(e) either:

    (i)   the applicant meets the relevant medical standard; or

    (ii) if the applicant does not meet that medical standard — the extent to which he or she does not meet the standard is not likely to endanger the safety of air navigation;

14. This provision lies at the heart of these proceedings. It is not in dispute that the applicant does not meet the relevant medical standards which are set out in CASR 67.150 for Class 1 certificates and CASR 67.155 for Class 2 certificates because he uses opiate and non-opioid medications to manage his chronic pain condition. In those circumstances the issue in this case is in regards to the second limb of CASR 67.180(2)(e)(ii).

15. Regulation 11.056 permits the issue of a medical certificate to a person subject to any condition that is necessary in the interests of the safety of air navigation.

    Background and Medical History

16. The applicant sustained a dramatic T12/L1 spinal injury as a result of a skiing accident in 1993. This resulted in partial lower limb paralysis, bladder atonia and bowel dysfunction.

17. The applicant was subsequently passed as fit to hold an aviation medical certificate in 1995/1996 and continuously held a Class 1 and Class 2 medical certificate until CASA’s cancellation decision of 13 April 2015.

18. In 1999, the applicant was diagnosed with adenocarcinoma of the bowel which was treated by way of resection and chemotherapy.

19. The applicant was diagnosed with chronic pain syndrome as a consequence of his skiing accident which he continues to use opiate-based medication, primarily Panadeine Forte.

20. As at 22 July 2014 applicant medications were listed as Lyrica, Vesicare, Panadeine, Immodium, Senokot, Sustanon and Atrovent.

21. On 7 March 2013, the applicant attended upon Dr Luke Edwards, a DAME for medical examination so as to apply for renewal of his Class 1 and Class 2 Medical Certificate. CASA says that they had no prior record of being informed by the applicant of the number of his prescription medications until it received the report of Dr Edwards in March 2013.

22. CASA has previously taken issue with the applicant’s alleged obstructive sleep apnoea and alleged mental health condition. However it was conceded by CASA at hearing that these alleged conditions are not a relevant consideration in these proceedings.

    Consideration

23. As agreed between the parties, the significant and only issue in these proceedings is the applicant’s ongoing pain management with a combination of opiate and non-opioid medications. In making my determination I need to ensure that the applicant’s medical condition and any treatment does not impact aviation safety with respect to his ability to control an aircraft. In these proceedings I need to consider whether the imposition of the conditions on the applicant’s Class 1 and Class 2 Medical Certificate provide assurance as to the ongoing stability of his medical condition in the context of aviation safety.

24. The applicant works in a voluntary capacity as a flight instructor at the Albatross Aero Club. At hearing the applicant advised that he does a lot of advanced training and that the students are a mix of private and defence cadets. He said that he also does some navigation flights that can go between 2 to 2.5 hours. Outside of his work as a flight instructor, the applicant says that he does engage in some solo aerobatics.

25. The applicant contends that he has been managing his chronic pain condition with Panadeine Forte since 1995 and has continuously held a medical certificate until the cancellation decision of 13 April 2015. At hearing he advised that he takes between 2 to 8 tablets of Panadeine Forte a day depending on his level of pain. He says that his impeccable flying record demonstrates that he suffers no side-effects from the use of the medication and that this should be enough of an assurance that he is not likely to endanger the safety of air navigation in the future, even if he continues to use opiate-based medication.

26. It is plain from the evidence before me in the submissions given at hearing, that the applicant is an exceptional pilot. I have relevantly summarised some of that evidence below.

27. Brian Horton, an Approved Testing Officer and Director of Flight Operations at the School of Aviation, Faculty of Science at UNSW, conducted an assessment of the applicant for the purposes of renewing his flight instructor rating. In his report dated 3 August 2015, Mr Horton states that the result of the overall assessment was a pass and the applicant’s grade one flight instructor rating was renewed for two years. Mr Horton relevantly states:

    “During the grounded component of the assessment, Mr Morey-Hype demonstrated a comprehensive general knowledge, evidence of recent study, and high cognitive function, demonstrated by his quick response to questions and problems introduced with the use of instructional based scenarios, requiring the application of knowledge, insight into student learning difficulties and problem-solving skills. In proposing solutions to student learning difficulties, he used a high degree of logic and common sense based on his extensive experience. His quick and positive response, typical of people with a military background, was evidence of a high level of alertness and concentration.”

28. In regards to the airborne component of the assessment conducted in a Cessna 150 aeroplane, Mr Horton reported that the exercises undertaken were delivered to a “high instructional standard and provided evidence of excellent flying skills to a very high level of accuracy, excellent situational awareness, high-level airmanship and very good judgement”. In particular he states the manoeuvre on the buffet, “requires fast reflexes, high levels of coordination and superior flying abilities, which were all demonstrated”.

29. Mr Robert Fuller, a private pilot’s licence holder, states in his letter dated 6 August 2015, that at times he spent with the applicant, he never had to question his ability to safely operate an aircraft.

30. Mr King, the chief pilot at Albatross Aero Club, said at hearing that he has managed the applicant for 18 years. He said that he had no concerns about the applicant’s flying ability, has not noticed any impairment, has never received any complaints and has had no issues with the applicant. He said that he would “feel comfortable having his grandchildren fly with him (applicant)”. Mr King was adamant that if he ever noticed any issue with the applicant’s, or any other pilots, flying ability, he would not let them fly. He has never had any concern with the applicant’s flying ability.

31. While CASA accepts that the applicant has an extensive aviation record including both military and commercial flying and does not consider that there is any issue as to the applicant’s technical skills and experience, the concern is that the applicant’s ability to safely carry out his duties as a pilot license holder are compromised by his current medical conditions and medication intake.

32. CASA contends that the applicant’s chronic pain syndrome and its management present an unacceptable risk of in-flight incapacitation and in-flight impairment; unless appropriately mitigated. As it appeared to CASA that the applicant did not meet the medical standards, it says that it could only issue the applicant with a medical certificate if it was satisfied that the extent to which he failed to meet the medical standards is not likely to endanger the safety of air navigation. It says that the imposition of the conditions were appropriate to mitigate any safety risk.

33. CASA submits that the conditions imposed are necessary and safety indicated.

34. The CASA DAME Clinical Practice Guidelines for Medication lists a number of medications hazardous in aviation and states that they must not be used without express clearance by CASA or your DAME. Included in the list under pain medications is Codeine (Panadeine Forte) and Pregabalin (Lyrica).

35. Dr Fulop, a rehabilitation physician, states in her report dated 4 August 2016, that she

    “would not recommend the use of opiate medication of any sort prior to undertaking safety-sensitive activities in the aviation industry, especially piloting an aircraft.

    In view of opiates, Panadeine Forte being one, being psychoactive with the central nervous system and brain modifying properties, ingestion of the drug would need to be avoided at least 24 hours before flying to make sure the drug is out of the pilot’s system”. [emphasis in original]

36. She further goes on to state that the performance implications for a flight instructor on high-dose narcotic analgesics as in the applicant’s case, are the risks of:

    (a)dizziness;

    (b)postural hypotension;

    (c)drowsiness;

    (d)impaired judgement

    (e)poor decision-making;

    (f)slowness of information processing;

    (g)euphoria etc. which can place his student, himself, ground crew and other personnel at great risk with possible fatal consequences.

37. It is the applicant’s contention that he has been managing his chronic pain condition for many years with the use of analgesics and has not suffered any side-effects. He said that if he had suffered any side-effects he would have refused to fly.

38. Having carefully considered all of the evidence before me I am satisfied that the applicant should not operate an aircraft under the effects of opiate based medications due to the potential for side-effects and impaired concentration and awareness. This is notwithstanding the fact that in the past he has done so without known adverse consequences. From a risk management and safety perspective the risks associated with opiate medication use while flying cannot be ignored. I cannot be assured that the applicant’s past pattern of opiate usage and side effects sufficiently mitigate the possibility of any future adverse effects.

39. Dr Clem, Senior Medical Officer of CASA, who made the decision under review, said at hearing that when he assessed the applicant’s recent application for a Class 1 and Class 2 Medical Certificate he took a holistic approach. He said that the applicant’s situation was unique and that when he determined what conditions to impose he took into account the applicant’s extensive flight history and work environment. He said that the intention of the conditions was an attempt to work with his current working conditions. Some of the unique circumstances that Dr Clem took into account were that the applicant’s work was in one location; involved one flying school; did not involve long haul flights; did not fly over time zones; was managed by one chief pilot and that the applicant had no financial need to hold his private pilot license.

    Decision

40. The safety of air navigation is my paramount consideration. It is only a result of the applicant’s extensive and impressive flying record and his current working conditions that I consider the issuing of the applicant’s Class 1 and Class 2 Medical Certificate with conditions is warranted over refusal.

41. The decision under review is affirmed.

I certify that the preceding 41 (forty -one) paragraphs are a true copy of the reasons for the decision herein of Senior Member A Poljak

.................................[sgd].......................................

Associate

Dated: 6 February 2017

Date(s) of hearing:	6 December 2016
Applicant:	In person
Solicitors for the Respondent:	Mr A Carter