Peter Miller and Civil Aviation Safety Authority
[2012] AATA 92
•2 February 2012
[2012] AATA 92
Division GENERAL ADMINISTRATIVE DIVISION File Number
2011/0024
Re
Peter Miller
APPLICANT
And
Civil Aviation Safety Authority
RESPONDENT
DECISION
Tribunal Egon Fice, Senior Member
E Anne Shanahan, MemberDate 2 February 2012 Date of
Written Reasons16 February 2012
Place Melbourne 1.We set aside the decision made by a delegate of the Civil Aviation Safety Authority (CASA) on 20 December 2010 refusing to issue Mr Peter Miller with a Class 2 medical certificate. Instead, we have decided that CASA should issue Mr Miller with a Class 2 medical certificate with the following condition:
(a)Mr Miller shall only perform the duties authorised by his Private Pilot (Aeroplane) Licence when flying with a flight instructor authorised by CASA to give flying instruction in all sequences required for the issue of a Private Pilot (Aeroplane) Licence.
2.The condition endorsed on Mr Miller’s Class 2 medical certificate may be removed following a satisfactory flight test comprising all sequences required for the issue of a Private Pilot (Aeroplane) Licence conducted by a Grade 1 flight instructor.
..........................[sgd]..............................................
Egon Fice, Senior Member
AVIATION – Class 2 medical certificate – medically significant condition – medical standard 2 – safety of air navigation – safety-relevant – cognitive deficits – Private Pilot (Aeroplane) Licence
Civil Aviation Act 1988 (Cth) s 31
Civil Aviation Regulations 1988 (Cth) regs 5.04(1), 5.04(3)(b)
Civil Aviation Safety Regulations 1998 (Cth) regs 11.015, 11.056, 67.010, 67.015, 67.155, 67.180
REASONS FOR DECISION
Egon Fice, Senior Member
E Anne Shanahan, Member
We heard this matter on 2 February 2012 and handed down an oral decision on completion of the hearing. The Civil Aviation Safety Authority (CASA) requested that we provide written reasons for that decision. These are those reasons.
Mr Peter Miller holds a Private Pilot (Aeroplane) Licence. In January 2008 Mr Miller had a haemorrhagic right basal ganglia cerebro-vascular accident. He had some jerking movements of his left arm which was thought possibly to be a seizure or clonus. He has not had any subsequent seizure episodes.
A delegate of CASA informed Mr Miller on 12 February 2009 that he did not meet the medical requirements for a Class 2 medical certificate. Without CASA’s permission, the holder of any flight crew licence cannot perform the duties authorised by their licence if the person does not hold a current medical certificate appropriate to that licence (Civil Aviation Regulations 1988 (CAR) reg 5.04(1)). The appropriate medical certificate for the holder of a private pilot licence is a Class 1 or Class 2 medical certificate (reg 5.04(3)(b)).
CASA provided Mr Miller a further opportunity to demonstrate that he met the applicable medical standards for the issue of a Class 2 medical certificate or to provide reasons why issuing that medical certificate would not adversely affect the safety of air navigation. Mr Miller did not respond and in a letter dated 16 March 2009, a CASA medical officer informed Mr Miller that CASA refused to issue him with the medical certificate. Mr Miller subsequently obtained a number of medical reports supporting his claim that, while he may not have met the relevant medical standard for the issue of a Class 2 medical certificate, the extent to which he did not meet the standard was not likely to endanger the safety of air navigation. CASA’s medical officers remained unmoved. They expressed concern about possible sequelae.
At that time, CASA was concerned about the possibility of epileptogenic sequelae. However, following an examination by Dr John Cameron, a neurologist, CASA was satisfied that there was no further concern regarding any possible epileptogenic sequelae. Professor Terrance O’Brien, a neurologist specialising in epilepsy, who provided four reports did not consider epilepsy as a likely sequel to the cerebral haemorrhage and ascribed Mr Miller’s left arm twitching to clonus and abnormal peripheral reflex (as opposed to cerebral) causing muscle twitching seen in persons with hemiplegia.
CASA’s medical officer advised Mr Miller that recertification after suffering a stroke also required attention to other cardiovascular risks, in particular coronary artery disease, with stress ECG. He required Mr Miller to undergo cardiovascular assessment by a cardiologist including a stress test to rule out coronary disease. The medical officer also pointed out that cognitive deficits may become manifest following a stroke. CASA referred to a report received from Dr Tom Hale on 24 April 2008, indicating that Mr Miller in fact had cognitive deficits confirmed by neuropsychological assessment. The report also described Mr Miller as having poor insight. CASA determined Mr Miller should undergo further neuropsychological testing before recertification could be considered.
On 6 January 2011 Mr Miller lodged an application for review with the Tribunal pursuant to s 31 of the Civil Aviation Act 1988. By the time this matter came on for hearing, Mr Miller had undergone cardiovascular assessment and a stress test indicating he did not suffer from coronary artery disease risk to any extent greater than the general population. Therefore, this sequela ceased being an issue with CASA.
The only issues we were required to determine were:
(a)whether Mr Miller satisfied the criteria for medical standard 2 set out in table 67.155 of the Civil Aviation Safety Regulations 1998 (CASR); and
(b)if Mr Miller did not meet medical standard 2, whether the extent to which he did not meet that standard was likely to endanger the safety of air navigation.
MEDICAL STANDARD 2
Essentially, a person who satisfies the criteria set out in table 67.155 of the CASR meets medical standard 2. Clause 2.1 of table 67.155 provides:
Table 67.155 Criteria for medical standard 2
Item Criterion
Abnormalities, disabilities and functional capacity
2.1Has 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
The expression safety-relevant is defined in reg 67.015 of the CASR:
67.015Meaning 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.
The expression medically significant condition is defined in reg 67.010 which, as far as it is relevant to Mr Miller’s case, provides:
medically significant condition includes:
(a)any of the following (no matter how minor):
(i)any illness or injury;
(ii)any bodily infirmity, defect or incapacity;
(iii)any mental infirmity, defect or incapacity;
(iv)any sequela of an illness, injury, infirmity, defect or incapacity mentioned in subparagraph (i), (ii) or (iii); and ...
The fact that Mr Miller had a haemorrhagic cerebro-vascular accident or, as it is commonly referred to, a stroke, clearly indicates he had a medically significant condition whether or not there is a sequela to his injury. However, all of the medical reports before us indicate that Mr Miller has made a very good recovery following his stroke and therefore the injury, by itself, can no longer be regarded as being safety-relevant. The only issue is whether he experiences a sequela of his injury in the form of cognitive deficits; and, if so, whether that sequela is safety-relevant.
COGNITIVE DEFICITS
We have already referred to a report by Dr Hale stating that Mr Miller had cognitive deficits. The second neuropsychological assessment was conducted by Dr Betina Gardner, a neuropsychologist, on 14 September 2011. Dr Gardner provided a written report of her assessment on 16 September 2011 which was admitted into evidence. She also gave oral evidence at the hearing of this matter.
Based on Mr Miller’s education and occupational history, Dr Gardner estimated that Mr Miller’s premorbid general intellectual functioning was in the average range. She said the assessment she conducted indicated there had been some change from the estimated premorbid levels of function. Mr S Malcolmson of counsel, who appeared on behalf of Mr Miller, questioned Dr Gardner to some extent about the establishment of
Mr Miller’s premorbid general intellectual functioning. Quite plainly, the predictive validity of any tests she conducted is essential to establish that the current examination in fact disclosed a change from premorbid functioning. While we accept there may be controversy about premorbid estimates, we were nevertheless satisfied with Dr Gardner’s explanation while at the same time accepting that Mr Miller’s established premorbid functioning is an only an estimate.Dr Gardner reported that:
On more complex attention and working memory tasks, however, there was some evidence for deterioration in Mr Miller’s ability to mentally hold and manipulate information ‘in mind’. Furthermore, divided attention and cognitive set-shifting were significantly reduced, although performance did improve somewhat with cues and prompts during such tasks. ...
At basic level, planning and organisation skills were intact; however there was some deterioration during more complex tasks. Abstract verbal reasoning was intact, whereas performance on a nonverbal abstract reasoning task suggested impairment, although the impact of a somewhat impulsive responding style may have adversely influenced the overall results. ...
Formal cognitive assessment revealed that there has been some change in cognitive function as a result of the stroke, particularly at high-level. Most notably, Mr Miller demonstrated significant difficulty dividing his attention between two concurrent tasks (e.g. searching for visual detail on a large page while simultaneously monitoring simple auditory sounds). Visuospatial skills and mental spatial reorientation of information, however, were both relatively intact. Indeed, Mr Miller’s attention to visual detail and tendency to re-check his responses were relative cognitive strengths.
There was no evidence which contradicted either Dr Hale or Dr Gardner regarding their conclusions that Mr Miller had cognitive deficits. While we accept Mr Malcolmson’s submission that neuropsychological testing may not be an exact science, we nevertheless find, on the balance of probabilities, that Mr Miller does have some cognitive deficits in the higher executive range. The question therefore for us to determine is whether Mr Miller’s cognitive deficits result in a safety relevant condition producing any degree of functional incapacity.
A medical condition is safety relevant if it is likely to reduce the ability of someone who has the medical condition to exercise the privileges conferred by a private pilot licence. In this case, the neuropsychological assessment indicated Mr Miller had difficulty dividing his attention between two concurrent tasks. Aviation frequently requires a pilot to conduct concurrent tasks. They include flying the aircraft safely whilst navigating; dealing with abnormalities in the operation of the aircraft including emergencies; and monitoring and responding to air traffic both visually and by radio. We therefore find that Mr Miller’s cognitive deficits are likely to reduce his ability to exercise the privileges of a private pilot’s licence. Accordingly, we find he has a medically significant condition which is safety relevant and which produces a degree of functional incapacity. It follows we must find Mr Miller does not satisfy the criteria for medical standard 2.
SHOULD CASA ISSUE A CLASS 2 MEDICAL CERTIFICATE
Even though an applicant does not meet the relevant medical standard for the issue of a medical certificate, CASA may nevertheless issue a medical certificate either under reg 67.180(2)(e) or reg 11.056 of the CASR. Insofar as it is relevant to Mr Miller’s claim, reg 67.180 provides:
67.180 Medical certificates — issue and refusal
(1)Subject to subregulation (7) and regulation 11.055, on receiving an application under regulation 67.175, CASA must issue a medical certificate to the applicant if the applicant meets the requirements of subregulation (2).
(2)For subregulation (1), the requirements are:
…
(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; and …
Whether Mr Miller’s medical condition is such that it is not likely to endanger the safety of air navigation is a question we cannot answer solely on the basis of neuropsychological testing. Mr Miller gave evidence about operating and working with large heavy complicated machinery used for the construction of roads. He had regained all of his licences to operate that machinery and did so without any difficulty. Mr Miller continues to perform the final camber grading of the roads his company constructs as he has been unable to train any of his 100 employees to the level of skill required for this task. He said camber grading requires the analysis of concurrent data input and to date has not experienced any difficulty in this analysis. However, aviation poses a different set of problems, simply because the environment does not permit the machine to simply be stopped as a safety precaution while the operator considers an appropriate course of action. There are many examples in the flight safety literature where pilots without any apparent cognitive deficits have become so overloaded with tasks, particularly where an emergency is involved, that they are unable to cope and an accident results.
In her report Dr Gardner said that despite the cognitive changes Mr Miller has experienced as a result of his stroke, those changes would not preclude Mr Miller from commencing flying lessons with a qualified flying instructor to gradually assess and improve his functional flying skills. Dr Gardner was also of the view that there would be some improvement in Mr Miller’s high-level cognitive functioning, required for piloting an aircraft, with increased exposure to the environment. Therefore, were Mr Miller to fly with a CASA approved flight instructor in order to re-establish his skills to the level required for holding a private pilot’s licence, because such flights would be under the command of the instructor pilot they would not, in our view, endanger the safety of air navigation. If Mr Miller was able to subsequently demonstrate, on a flight test with a Grade 1 flight instructor, that he satisfied the requirements for holding a private pilot’s licence, then it may be appropriate to allow Mr Miller to fly as a pilot-in-command either on his own or with passengers.
Regulations 11.015 and 11.056 of the CASR provide:
11.015 Definitions for Part
In this Part:
authorisation means:
(a) …
(b) …
(c) a certificate capable of being granted to a person under these Regulations.
11.056 Authorisation may be granted subject to conditions
(1) CASA may grant an authorisation subject to any condition that CASA is satisfied is necessary:
(a) in the interests of the safety of air navigation; or
(b) to ensure that, as far as practicable, the environment is protected from:
(i) the effects of the operation and use of aircraft; and
(ii) the effects associated with the operation and use of aircraft.
Note Other conditions applicable to authorisations are set out in these Regulations — see in particular regulations 11.070 to 11.075.
(2) A condition imposed under this regulation must be set out in the authorisation.
We are of the opinion that CASA should issue Mr Miller with a Class 2 medical certificate subject to the condition that he must fly only with a flight instructor. This will enable him to re-familiarise himself with the environment and to regain currency on his own aircraft, a Cessna 182. Subsequently, if he is able to satisfy a Grade 1 flight instructor that any cognitive deficits which he may have are unlikely to endanger the safety of air navigation, the condition should be removed.
CONCLUSION
We have found that Mr Miller has a medically significant condition which is safety-relevant because it is likely to reduce his ability to perform the duties imposed on him by his Private Pilot (Aeroplane) Licence. Accordingly, we have found that he does not meet the criteria for medical standard 2.
However, it is not clear from neuropsychological testing whether his medical condition is likely to endanger the safety of air navigation should he be allowed to exercise the privileges of his licence. That will only be determined after giving Mr Miller the opportunity, in the presence of a CASA approved flight instructor, to refresh his aviation skills and to be subsequently tested by a Grade 1 flight instructor to determine whether he meets the standard required for the issue of a Private Pilot (Aeroplane) Licence.
I certify that the preceding 24 (twenty four) paragraphs are a true copy of the reasons for the decision herein of Egon Fice, Senior Member.
.....................[sgd]...................................................
Associate
Dated 16 February 2012
Date of hearing 2 February 2012
Counsel for the Applicant Mr S Malcolmson Solicitors for the Applicant Paul Clough Solicitors Advocate for the Respondent Ms C Swain Solicitor for the Respondent Civil Aviation Safety Authority
0
0