Repacholi and Civil Aviation Safety Authority
[2010] AATA 873
•29 October 2010
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2010] AATA 873
ADMINISTRATIVE APPEALS TRIBUNAL )
) Nos 2009/5758
GENERAL ADMINISTRATIVE DIVISION ) 2010/2780 Re Gerard Repacholi Applicant
And
Civil Aviation Safety Authority
Respondent
DECISION
Tribunal Mr G L McDonald Date29 October 2010
PlaceMelbourne
Decision The Tribunal decides that:
1. the application in matter number 2009/5758 be dismissed as frivolous or vexatious pursuant to s 42B of the Administrative Appeals Tribunal Act 1975; and
2. the decision under review, in matter number 2010/2780, be set aside and a decision substituted to the effect that:
(1) the respondent issue a Class 1 Medical Certificate to the applicant for the balance of the year, from the date of the refusal to issue it being 12 April 2010, subject to the following conditions:
(a) prior to the issue of the certificate, the applicant undergo a test for diabetes mellitus and notifies the result to the respondent. If the test is positive the applicant to self test for the condition prior to undertaking daily flights and, if necessary, self medicate to alleviate the effects of the condition; and
(b) until the applicant provides the respondent with a report from his treating spinal surgeon, Dr McCloskey or an equivalently qualified surgeon, that his spine is stable for the purposes of flying, the applicant’s Medical Certificate be conditional upon him undertaking flying for agricultural purposes only and not taking passengers; and
(c) the applicant continue to attend Dr McQuillan, or an equally qualified physician, for an examination every three months and authorise Dr McQuillan to release a report on the applicant’s myeloma condition, particularly any changes to the applicant’s treatment including changes to medication; and
(d) the applicant authorise the respondent to be provided with medical reports from any doctor he consults subsequent to the issuance of the Class 1 Medical Certificate; and
(e) the applicant sign and lodge with the respondent an undertaking that he agrees to comply with the treatment recommended by Dr McQuillan (or equivalent).
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Deputy President
CATCHWORDS – Aviation Law – medical reporting obligations for issuance of class 1 medical certificates – whether applicant ‘knowingly and recklessly made a false and misleading statement’ – class 1 medical certificate reinstated subject to conditions
Civil Aviation Safety Regulations 1998 – r 67.180(7)( a)
REASONS FOR DECISION
8 November 2010 Mr G L McDonald Miss E A Shanahan 1 The applicant has lodged two applications seeking to have his Class 1 and Class 2 Medical Certificates restored following the respondent suspending the latter and refusing to reissue the former. The Tribunal gave an oral decision at the conclusion of the hearing reinstating the applicant’s Class 1 Medical Certificate subject to conditions. The Tribunal agreed to provide written reasons.
2 The applicant was represented by Mr Ribbands of Counsel and the respondent by Mr Anastasi, a lawyer in CASA’s Legal Branch. On behalf of the applicant, Dr Barr, the DAME who reported to the department after questioning and examining the applicant, and Dr McQuillan, the applicant’s treating haematologist, both gave evidence by telephone from Perth. On behalf of the respondent, Dr Fitzgerald, a departmental doctor, and Dr Navathe, CASA’s principal medical officer gave evidence. A report from Dr Stapleton, prepared on behalf of the applicant, was among the medical reports before the Tribunal but did not form part of the evidence.
3 The term of the applicant’s Class 2 Medical Certificate has since expired. At the hearing it was agreed that the application pertaining to it should be dismissed as vexatious or frivolous as a result of the suspension period ending when the term of the certificate expired. The Tribunal however notes that the respondent undertook, upon a new application being made, to grant the Class 2 Medical Certificate if the Tribunal reinstated the Class 1 Medical Certificate. It follows that these reasons address only the issues raised following the suspension of the applicant’s Class 1 Medical Certificate.
4 At the commencement of the hearing on 19 October 2010 there were two medical conditions which raised the concerns of the respondent and had resulted in the refusal to issue the certificate. They were a heart condition and notification that the applicant suffered myeloma. In respect of the heart condition the respondent had reservations over whether there may have been restenosis following the insertion of a stent in the applicant’s left anterior descending coronary artery. There were a number of concerns expressed by the respondent both as to the direct effects of the myeloma and other effects arising from the taking of drugs to treat the disease.
5 The applicant had the stent inserted into his left anterior descending coronary artery on 17 November 2009. On 8 December 2009 he underwent a repeat treadmill stress echo test which showed no evidence of exercise induced myocardial ischaemia thereby indicating that the procedure had been successful (report of Dr Cumpston 19 February 2010). The respondent’s requirements are that the testing be conducted six months after the procedure. The respondent maintains that the time lapse allows sufficient time to see if restenosis has occurred. A report dated 25 October 2010, ie after the six month period, reconfirmed that the applicant had no exercise induced myocardial ischemia (report of Dr P Currie, Cardiologist, annexed to ex A2). The respondent expressed its satisfaction with the results of the most recent test. The applicant’s heart condition therefore no longer constitutes a bar to the grant of the applicant’s Class 1 Medical Certificate.
6 At the outset of the hearing there were several concerns expressed by the respondent with respect to the applicant’s myeloma condition. In part they related to the affect of the condition on the applicant’s bone strength which could lead to pathological fractures occurring and, in part, about possible side effects arising from the treatment of the condition. The condition was first diagnosed in 2004. Since that time the applicant has been receiving specialist treatment from Dr A McQuillan, a clinical haematologist. The condition is incurable. The question for the Tribunal is whether the condition or the effects arising from its treatment are such that they disqualify the applicant from holding a Class 1 Medical Certificate.
7 The evidence, which the Tribunal accepts, is that the applicant suffered a pathological fracture at the L2 level of his spine in 2004. One of the effects of myeloma is that the bones become weaker and pathological fractures may occur. This is of concern if it occurs while a pilot is flying. Dr Navathe told the Tribunal he was concerned, that as the applicant’s flying was mainly for the agricultural industry, he may be at risk from gravitational forces since the flying involved a lot of manoeuvring, in which the gravitational forces exert pressure on the pilot’s body.
8 Posterior stabilisation of the L2 vertebral level was achieved in 2004/5 by the insertion of a plate and screws secured at the L1 and L3 levels, followed by a course of chemotherapy and a peripheral blood stem cell transplant. There was flare up of the condition in 2008 and the applicant was commenced on thalidomide which treatment was ceased at the end of 2009 because the applicant exhibited what Dr McQuillan described as “symptoms suggestive of peripheral neuropathy” (report dated 11 February 2010). The symptoms were tingling at the end of the applicant’s fingers.
9 Thalidomide carries with it an increased risk of venous thrombosis as does myeloma. While Dr McQuillan confirmed that he had ceased treatment with thalidomide at the end of 2009 he had provided a prescription in March 2010. However, Dr McQuillan confirmed that the 2010 prescription was to cover for thalidomide advanced by the chemist for the applicant in 2009 at which time no prescription had been obtained. The applicant told the Tribunal, and the Tribunal accepts, that the applicant has not taken thalidomide in the 2010 year. While Dr McQuillan reported that the applicant may need to commence a related medicine (lenalidomide), which also increases the risk of venous thrombosis, this was not currently the case. The respondent was satisfied that as the taking of thalidomide had been ceased its past use did not inhibit the applicant from being issued with a Class 1 Medical Certificate. The Tribunal is satisfied that the applicant is not at increased risk of suffering venous thrombosis since he is not currently taking thalidomide and that this is therefore not a disqualifying factor standing in the way of the issuing of the Medical Certificate.
10 Part of the treatment for myeloma involved the taking of corticosteroid medication. A known side effect of taking this medication can be that the patient develops diabetes mellitus. The diabetes will usually cease when the cortisone treatment ceases. The evidence showed that the applicant had diabetes while that treatment was being administered. There is no evidence that he currently continues to suffer from that condition. However a glucose tolerance test can quickly establish whether he has continued to so suffer.
11 Since the respondent expressed ongoing reservations about the applicant suffering diabetes the Tribunal determined, as a precondition to the issue of a Medical Certificate, that the applicant undergo such a test and provide the results to the respondent. If there is no evidence of him suffering diabetes then the fact that he has in the past does not act as a bar to the issuance of a Medical Certificate. In the unlikely event of the blood test demonstrating ongoing diabetes, then a condition of his recertification should be that he undertakes regular self testing, mandatory prior to flying, and treats himself with the appropriate dose of insulin. The respondent conceded that many pilots suffer diabetes and, subject to undertaking self testing and self administering treatment, the condition is not a bar to the issue of a Class 1 Medical Certificate.
12 In June 2010 the applicant was treated for a two day period at St John of God Hospital at Murdock by Dr Bremner for a respiratory tract infection. Dr McQuillan told the Tribunal he had checked with Dr Bremner who confirmed the admission was unrelated to the applicant’s myeloma condition. The Tribunal, which is not bound by the rules of evidence, accepts this evidence.
13 Another concern of the respondent was that the applicant had been prescribed 150 mgm of Tramadol twice a day. Tramadol is a drug taken for the relief of pain. In the applicant’s case it was originally prescribed for relief of back pain. Tramadol was described by Dr Navathe as an opium substitute which may induce drowsiness. The applicant stated that he had not taken the drug during 2010. He told the Tribunal that he had the prescription made up and had given the drug to his brother who suffers from back pain.
14 Dr Navathe maintained his concern that if the applicant took Tramadol intermittently, for instance if he started to suffer pain, its effects were likely to be more pronounced than if he was to take it on a regular basis. The Tribunal accepts the applicant’s evidence that he takes as few drugs as possible and that he has not been taking Tramadol during 2010. The applicant said he does not suffer from back pain and therefore there has been no need for him to take the drug. The evidence disclosed that no Tramadol had been prescribed in 2010. The Tribunal accepts that this is not a factor which stands in the way of the issuance of a Class1 Medical Certificate to the applicant.
15 A non medical issue raised by the respondent was that the applicant had not answered the questions asked of him in the department’s on-line medical report. The report is part of the material submitted to the respondent after an applicant for a Medical Certificate has been examined by a DAME. In this case the applicant had been examined by Dr Barr. The applicant told the Tribunal that Dr Barr had asked him the questions, discussed the answers with him before he (Dr Barr) entered the answers on the form. The answers on the form disclose that ‘no’ was ticked in answer to the question “Has the applicant been investigated for or diagnosed with diabetes…?” (T27 p 85) and ‘no’ was again ticked in answer to the question ‘Has the applicant had any back trouble…?’ (ibid p 86).
16 Dr Barr was not questioned about how he filled out the form. The applicant agreed that he had signed the application for the issue of a Medical Certificate and that by doing so he certified that he had answered ‘every question correctly and completely’ (T26 p 80). The Tribunal is satisfied that the applicant did not read the answers inserted on the form on his behalf by Dr Barr but simply answered the questions as put to him by Dr Barr and that it was the doctor who modified the applicant’s answers to suit what he, the doctor, thought was relevant for the respondent to know. With regard to the respondent’s contention that the applicant ‘knowingly or recklessly made a false or misleading statement’ (CASR 67.180(7)(a)), the Tribunal is satisfied that the applicant did not knowingly or recklessly seek to mislead the respondent in the answering of the questions. The Tribunal should add that some benefit may arise from the wording of the form being reconsidered. It is unclear in the case of renewal applications whether the form refers to any medical conditions which may have arisen since the last such examination or whether the questions relate to medical conditions whenever they may have arisen over the life of the applicant.
17 The applicant may fairly be described as a stereotypical Australian country knock-about pilot. He has been flying since he was aged 17 years and is now 59 years of age. He told the Tribunal that he has taken off up to 110 times a day in the course of his agricultural flying. The Tribunal accepts he is a very experienced pilot who works hard in his business. He has an obvious reluctance to the taking of medicine and, contrary to Dr McQuillan’s assurance that he abided by the medical regime decided for him, the applicant told the Tribunal that if he finds he can do without medication then he does not take it.
18 However, the applicant is sensible enough to know when his condition needs treatment and Dr McQuillan noted him as regularly attending for a three month check up on the myeloma condition. The applicant clearly is aware of the seriousness and consequences of this disease. While the medical member of the Tribunal expressed some initial misgivings about imposing a condition on the issuance of the Medical Certificate that the applicant abide by the medicine taking regime set by Dr McQuillan, in the end it was decided that this would be beneficial as it clearly permits the respondent to know what medication the applicant is ingesting.
19 On behalf of the applicant some concern was expressed about two of the conditions nominated by Dr Navathe. The first was that the respondent have access to any medical information relating to the applicant wherever it may be held in Australia for the period post the issuance of the certificate. While the Tribunal appreciates this is a broadly based condition, it reflects some concerns the Tribunal has that the applicant has no dedicated general medical practitioner and that he tends to seek treatment wherever he happens to be located. Given that his occupation takes him to widely varying and remote places and, given his apparent reluctance, at least until the hearing of this case commenced, to divulge medical information to the respondent, the Tribunal felt justified in imposing such a broad condition.
20 The second condition, in respect of which concern was expressed, related to a condition Dr Navathe suggested, limiting the applicant to taking no passengers. This condition was suggested to ensure the safety of anyone flying with the applicant pending his providing a report from his treating spinal surgeon, Dr McCloskey (or another equivalently qualified surgeon), giving an assurance that the applicant’s spine is currently stable thereby reducing the risk of spinal pathological fracture arising from gravitational forces connected with the flying of aircraft.
21 At the end of the day the Tribunal was satisfied that the respondent’s initially expressed concerns over the effects of the applicant’s medical condition had been satisfactorily addressed by the evidence, particularly of that given by Dr McQuillan. The two major medical issues expressed by the respondent ie the effects of the taking of Tramadol and the risk of pathological fracture, particularly of the applicant’s spine, are answered in the findings of the Tribunal in respect of the former and in the condition it has imposed in respect of the latter.
Decision
22 For the above reasons the application in matter number 2009/5758 be dismissed as frivolous or vexatious pursuant to s 42B of the Administrative Appeals Tribunal Act 1975.
23 For the above reasons the decision under review, in matter number 2010/2780, is set aside and a decision substituted that the respondent issue a Class 1 Medical Certificate to the applicant for the balance of the year, from the date of the refusal to issue it being 12 April 2010, subject to the following conditions:
(a)prior to the issue of the certificate the applicant undergo a test for diabetes mellitus and notifies the result to the respondent. If the test is positive the applicant to self test for the condition prior to undertaking daily flights and, if necessary, self medicate to alleviate the effects of the condition; and
(b)until the applicant provides the respondent with a report from his treating spinal surgeon, Dr McCloskey or an equivalently qualified surgeon, that his spine is stable for the purposes of flying, the applicant’s Medical Certificate be conditional upon him undertaking flying for agricultural purposes only and not taking passengers; and
(c)the applicant continue to attend Dr McQuillan, or an equally qualified physician, for an examination every three months and authorise Dr McQuillan to release a report on the applicant’s myeloma condition, including any changes to the applicant’s treatment including changes to medication; and
(d)the applicant authorise the respondent to be provided with medical reports from any doctor he consults subsequent to the issuance of the Class 1 Medical Certificate; and
(e)the applicant sign and lodge with the respondent an undertaking that he agrees to comply with the treatment recommended by Dr McQuillan (or equivalent).
I certify that the twenty-three preceding paragraphs are a true copy of the reasons for the decision herein of Deputy President McDonald
Signed: .....................................................................................
AssociateDate/s of Hearing 19 & 29 October 2010
Date of Oral Decision 29 October 2010
Date of Written Reasons 8 November 2010
Counsel for the Applicant Mr J Ribbands
Solicitor for the Applicant Mr J Maitland
Solicitor for the Respondent Mr A Anastasi
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