Tickle and Civil Aviation Safety Authority

[2016] AATA 910

Tickle and Civil Aviation Safety Authority [2016] AATA 910 (16 November 2016)

Division	GENERAL DIVISION
File Number	2015/4113
Re	Alan Tickle
APPLICANT
And	Civil Aviation Safety Authority
RESPONDENT

DECISION

Tribunal	J W Constance, Deputy President Dr W Isles, Member
Date	16 November 2016
Place	Sydney

The decision of the Civil Aviation Safety Authority made 23 July 2015 to refuse to issue Mr Tickle with a class 1 medical certificate, is affirmed.

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

J W Constance
Deputy President

CATCHWORDS

AVIATION – civil aviation – pilot licensing – refusal of class 1 medical certificate – whether applicant meets the relevant medical standards – safety-relevant heart abnormality – abnormality in circulatory tree – diabetes – whether applicant's failure to meet medical standard not likely to endanger the safety of air navigation – decision affirmed

LEGISLATION

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

Civil Aviation Safety Regulations 1998 (Cth) regs 11.056, 61.415, 67.015, 67.150, 67.180

CASES

Window and Civil Aviation Safety Authority [1999] AATA 525

REASONS FOR DECISION

J W Constance, Deputy President
Dr W Isles, Member

16 November 2016

A. INTRODUCTION

1. Mr Tickle is seeking a review of the decision of a delegate of the Respondent Authority made 23 July 2015 refusing to issue him a class 1 medical certificate. Under the Civil Aviation Act 1988 (Cth) he requires such a certificate as one of the pre-conditions to being able to operate his Bell Jet Ranger helicopter commercially.

2. For the reasons which follow the decision under review will be affirmed.

   B.  EVIDENCE AND FINDINGS OF FACT

3. Unless stated otherwise the findings of fact in the following five paragraphs are based on the evidence of Mr Tickle.

4. Mr Tickle is 63 years old[1]. He has never held a pilot licence. He wishes to obtain a licence to enable him to fly his helicopter for commercial purposes including joy flights for tourists and fire-spotting.

   [1] Exhibit R1 p.57.

5. Mr Tickle is a farmer and owner of an earth-moving business. He is continuously engaged in heavy physical work and is licensed to operate heavy machinery.

6. Mr Tickle recounted an episode of feeling unwell after working in a trench one day, being rushed to hospital and diagnosed with a heart problem. He was not certain of the date but thought it was about 2001 or 2002. He then went on to have another stenting procedure to a different coronary artery in 2013, following investigations for reversible ischaemia.

7. Mr Tickle has recovered well from these procedures and, in his opinion, he is in excellent health and in fact is very fit, managing the heavy physical work involved in running his farm and earth moving business. He reports no ongoing chest pain or shortness of breath.

8. In 2013 Mr Tickle was diagnosed as suffering from diabetes.

   Reports of Dr Bellamy, Cardiologist

9. Dr Bellamy has been Mr Tickle’s Cardiologist for several years. He has provided a number of reports.

10. On 17 December 2010 Dr Bellamy reported[2] that Mr Tickle seemed to have no symptoms arising from his heart condition. He was working “fairly hard” on his job and was not experiencing any problems with heavy work. He exercised well on a stress test. There was no significant coronary stenosis. Dr Bellamy suggested that Mr Tickle should be on a statin as his cholesterol was too high for someone who had had a previous myocardial infarction. On the information available to Dr Bellamy, he was “quite happy” for Mr Tickle to fly a plane.

    [2] Exhibit R1 p.25.

11. Dr Bellamy reviewed Mr Tickle in February 2012. At that time he reported:

    With no coronary obstruction and evidence of only a mild hypokinesis on the gated scan and the fact that his ejection fraction is more than 45% suggests to me that he is not in a high risk situation that he should be favourably considered for his flying licence.[3]

    [3] Exhibit R1 p.38.

12. Mr Tickle was next reviewed by Dr Bellamy in July 2013. This review followed the insertion of the second stent in June 2013. Dr Bellamy reported that symptoms suffered by Mr Tickle prior to the second stent were related to myocardial ischaemia and had disappeared following the second procedure. Further Dr Bellamy reported that he suspected that Mr Tickle was truly diabetic.[4]

    [4] Exhibit R1 p.48.

13. Dr Bellamy reported on 18 November 2013, approximately 5 ½ months after the stent had been inserted. He said that Mr Tickle was well and was no longer experiencing the symptoms of ischaemia he was having before. According to a glucose tolerance test Mr Tickle was frankly diabetic.[5]

    [5] Exhibit R1 p.50.

14. On 6 December 2013 Dr Bellamy provided another report following a consultation with Mr Tickle on that day.[6] At that time the ejection fraction result from the Sestamibi test was 36%. In the opinion of Dr Bellamy however, the gated heart pool scan, which showed an ejection fraction of 46%, was a more accurate result. He reported that there was no evidence of myocardial ischaemia and in his opinion Mr Tickle would do well with medical treatment.

    [6] Exhibit R1 p.51.

15. Dr Bellamy provided a further report dated 8 May 2015[7] referring to the angioplasty and stenting procedure carried out on Mr Tickle in March 2013. In his opinion “his response to treatment and his exercise capacity is normal, there is no evidence of any other significant reduced ejection fraction and no evidence of myocardial ischaemia.”

    [7] Exhibit A4.

16. On 1 July 2015 Dr Bellamy reported that the injection fraction at rest was 45% and post exercise was 48% and that ”on basis of this he would certainly be clear to hold a commercial vehicle licence.” [8]Dr Bellamy concluded:

    The patient has had revascularisation of coronary obstructions he has a mild reduction in the ejection fraction based because of his previous myocardial infarction, his exercise capacity is normal, there is no evidence of myocardial ischaemia on either symptoms, stress, ECG or Sestamibi. I think in my opinion he is not at high risk of having some arrhythmia or neither he is at risk of having sudden collapse as result of myocardial ischaemia.

    [8] Exhibit R1 p.151.

    Evidence of Dr Herman, Consultant Cardiologist

17. In October 2015 Dr Herman reviewed Mr Tickle’s medical records at the request of the Authority. He provided a report dated 19 October 2015.[9]

    [9] Exhibit R3.

18. In his report Dr Herman stated:

    Mr Tickle has a mild ischaemic cardiomyopathy (damaged heart muscle post heart attack) with an old anterior infarct, two prior coronary stents, no recent angina, functional class I status (asymptomatic with ordinary activities), no inducible ischaemia on perfusion imaging (no lack of blood supply to viable myocardium) and no history of prior arrhythmia.

    ……

    The complications usually associated with Mr Tickle’s diagnosis could be either recurrent angina/heart attack, progressive cardiac failure and/or sudden arrhythmia.

    ……

    There is also risk of recurrent myocardial infarction, angina and stroke. The recurrent AMI and stroke rate in the Horizons AMI trial suggests that the risk of re-infarction and stroke at 3 years was approximately 6-7% and 1.5-2% respectively. 

    ……

    The likelihood of a safety related acute coronary event occurring would be in the order of 3% per year…… In Mr Tickle circumstance, he appears to have few of [the] risk factors generally and he would therefore be in the lower range of a recurrent cardiac event.

    ……

    Mr Tickle’s type 2 diabetes does impact on his coronary condition and nearly doubles the risk of an acute coronary event compared to a non-diabetic patient. Therefore, one might be looking at a 3- 4% risk of a recurrent cardiovascular event taking this into account

    …..

    [The] likelihood of a safety-relevant impairment such as distracting chest pain, shortness of breath or loss of consciousness would be in the order of approximately 5% per annum if one takes angina, recurrent MI and stroke into account.

19. When he gave evidence Dr Herman stated that the risk factor of a person with a history of myocardial infarct and stenting is high. To this is to be added the risk arising from diabetes and damage to the heart muscle. The damaged heart muscle alone contributes to a high risk categorization.

20. In addition to the cardiac risks, the coronary artery disease which is the cause of Mr Tickle’s heart problems is likely to be present in the rest of his circulatory system and this would also increase the risk of stroke. He estimated that the risk of such an event is 1.5 to 2% over three years and this would have to be added to the 3% risk for safety related cardiac events.

    Evidence of Dr Clem, Senior Medical Officer, Civil Aviation Safety Authority

21. Dr Clem provided a statement dated 23 October 2015[10] and gave evidence.

    [10] Exhibit R2.

22. Dr Clem reviewed all of the information submitted on behalf of Mr Tickle in respect of his application for a medical certificate. He considered the relevant guidelines published by the Authority and other aviation safety regulators relating to Mr Tickle’s condition.

23. In the opinion of Dr Clem “an acute coronary event or an acute cerebrovascular event ……  in the confines of a cockpit of an aircraft is likely to be catastrophic due to the following issues which may arise:

    ·Distracting chest pain;

    ·Acute onset of shortness of breath;

    ·Loss of consciousness.”[11]

    [11] Exhibit R2 para. 11.

24. Accepting the view of Dr Herman that Mr Tickle’s risk of sudden safety-relevant impairment is 5%, in the opinion of Dr Clem this puts him at “an absolute risk far in excess of the 1% absolute risk that is normally considered acceptable for the issue of a Class 1 Medical Certificate. Mr Tickle’s risk relative to another pilot of similar age of sudden impairment is likely to be of a similar magnitude to the mortality risk, ie 4 to 7 times the risk.”[12]

    [12] Exhibit R2 para. 14.

25. In relation to the possibility of Mr Tickle being issued a conditional certificate, Dr Clem stated:

    I do not consider that there are any conditions which could be imposed on a medical certificate issued to Mr Tickle which would adequately ameliorate the risks to air safety posed by his medical condition. The risk estimates provided by Dr Herman assume that Mr Tickle is already making full use of the clinical measures available to reduce the risk of an acute event. The additional measures available to CASA to mitigate the consequence of an acute event are limited. Application of a multi-crew restriction is the most common mitigation. Application of a multi-crew restriction is not considered a sufficient mitigation when the absolute risk is greater than 2% per annum. Mr Tickle’s risk has been assessed at 5% per annum. The ability of the second pilot to detect all incapacitations and take effective action in critical phases of flight is not guaranteed. There is evidence in the aero-medical literature that accidents have occurred when the second pilot has failed to take-over. The risk of this mitigation failing becomes greater as the likelihood of an event occurring increases.[13]

    [13] Exhibit R2 para. 16.

26. When he gave evidence Dr Clem expressed the opinion that the conditions suffered by Mr Tickle tend to worsen with age. Mr Tickle is at greater risk of an acute coronary event than the average 63 year-old male and at much greater risk than the average pilot.

    C.  ACT AND REGULATIONS

    Civil Aviation Act 1988 (Cth)

27. Subsection 20AB(1) of the Civil Aviation Act 1988 (Cth) 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 to include a certificate issued under the regulations.[14]

    [14] Civil Aviation Act 1988 (Cth) s.3.

28. Section 9A of the Act provides:

    (1)In exercising its powers and performing its functions, CASA must regard the safety of air navigation as the most important consideration.

    (2)Subject to subsection (1), CASA must exercise its powers and perform its functions in a manner that ensures that, as far as is practicable, the environment is protected from:

    (a)the effects of the operation and use of aircraft; and

    (b)the effects associated with the operation and use of aircraft.

    As the Tribunal exercises the powers of the initial decision-maker it is bound by this requirement.

    Civil Aviation Safety Regulations 1998

29. Regulation 61.415 of the Civil Aviation Regulations 1998 provides:

    (1)The holder of a commercial pilot licence, multi-crew pilot licence or air transport pilot licence is authorised to exercise the privileges of the licence only if the holder also holds:

    (a)a current class 1 medical certificate; or

    (b)a medical exemption for the exercise of the privileges of the licence.

30. The medical standards which must be met to obtain a class 1 medical certificate are set out in Part 67 of the Regulations.

31. Subject to qualifications which are not relevant to this application, regulation 67.180 provides that the Authority 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;

32. 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.”

33. Regulation 67.150 sets out the criteria required to meet medical standard 1. The relevant criteria contained in table 67.150 are:

    1.1  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

    1.9       Has no safety-relevant heart abnormality.

    1.11     Has no significant functional or structural abnormality in the circulatory tree.

    Alimentary system and metabolic disorders

    1.15Is not suffering from any safety-relevant metabolic, nutritional or endocrine disorders.

34. 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.

    D.  ISSUES FOR DETERMINATION

35. The following issues arise for determination.

    (i)Does Mr Tickle meet the relevant medical standard for the issue of a class 1 medical certificate?

    (ii)If not, is the extent to which he does not meet the standard likely to endanger the safety of air navigation?

    E.  CONSIDERATION OF THE ISSUES

    Issue 1:  Does Mr Tickle meet the relevant medical standard for the issue of a class 1 medical certificate?

36. It is not in dispute that Mr Tickle has a medical history of:

    ·type 2 diabetes mellitus;

    ·coronary artery disease;

    ·myocardial infarction;

    ·fixed cardiac ischaemia;

    ·ischaemic cardiomyopathy (damaged heart muscle post heart attach).

37. On the basis of the evidence of Dr Herman and Dr Clem we are satisfied that these medical conditions are “safety-relevant”  in that they are likely to reduce the ability of Mr Tickle to safely control an aircraft being piloted by him.

38. We agree with the Tribunal’s interpretation of “likely” in Window and Civil Aviation Safety Authority when it said:

    Having regard to the need to protect public safety while having regard to a person’s entitlement to pursue his or her ambitions, we consider that the word “likely” means “a substantial or real and not remote chance”.[15]

    [15] [1999] AATA 525 at para.60.

39. We accept the evidence of Dr Herman that the likelihood of Mr Tickle suffering distracting chest pain, shortness of breath or loss of consciousness is as high as 5% per annum. These symptoms, if suffered, would make it very difficult, if not impossible to continue to pilot an aircraft in flight. The risk of 5% is high compared with the normal standard applied by the Authority and is properly classified as a substantial and real risk.

40. This conclusion is supported by the evidence of Dr Clem who is an experienced Senior Medical Officer with the Authority with extensive experience in flying and related safety matters. In reaching his conclusions in this matter Dr Clem has taken into account the various medical guidelines. We accept his evidence that the likely symptoms identified by Dr Herman would be “likely to be catastrophic” in the confines of the cockpit of an aircraft. We accept also his evidence that the risk of Mr Tickle suffering an acute coronary event or an acute cerebrovascular event far exceeds the risk normally considered acceptable for the issue of a Class 1 Medical Certificate.

41. Mr Tickle provided a list of his current medications[16] prescribed for the control of diabetes, high blood pressure, high cholesterol and to prevent formation of clots. Mr Tickle told us that he used to take metropolol but ceased it earlier this year. He explained that he had to cease this medication prior to every exercise stress test as it affected the results. After the stress test this year he decided not to recommence the medication. Dr Bellamy explained to him the risks of not taking the medication. Mr Tickle nevertheless decided to stop taking the medication.

    [16] Exhibit A2.

42. Dr Clem and Dr Herman told the Tribunal that metropolol is a beta blocker medication that slows the heart and mutes its response to stresses thus reducing the risk of ischaemia and an adverse cardiac event. It is often prescribed as a precaution in patients with similar cardiac conditions to those of Mr Tickle.

43. We are satisfied that Mr Tickle’s established medical history and the conditions from which he continues to suffer, produce a risk of incapacitation such that he does not meet the criteria set out in 1.1 of regulation 67.150[17]. His heart conditions are such that he does not meet the requirements of 1.9 and 1.11. His diabetes means that he does not meet 1.15.

    [17] Civil Aviation Safety Regulations 1998 (Cth).

44. We have preferred the evidence to which we have referred to that of Dr Bellamy.  Although Dr Bellamy has been Mr Tickle’s treating specialist for a number of years, he does not have the specific aviation experience of Dr Clem. Further, based on his reports we are not satisfied that he has given consideration to the requirements of the Act and Regulations in forming the opinions he has expressed.

    Issue 2:  Is the extent to which Mr Tickle does not meet the medical standard “not likely to endanger the safety of air navigation”?

45. As Mr Tickle does not meet the relevant medical standard it is necessary to consider the alternative requirement in sub-regulation 67.180(2) (set out at paragraph 31 above).

46. Based on the evidence of Dr Clem we cannot be satisfied that the extent to which Mr Tickle does not meet the medical standard 1 set out in regulation 67.150 is “not likely to endanger the safety of air navigation”.

47. We have reached this conclusion on the basis of the evidence to which we have referred, namely that the increased risk of Mr Tickle suffering a coronary or cerebrovascular event while piloting an aircraft would be “catastrophic”. Clearly, if such an event occurred there would be a real likelihood of the aircraft crashing and /or colliding with another aircraft with a consequent loss of human life.

48. Mr Tickle has recovered well from serious heart problems and is feeling very well and is in good physical health. While this is an excellent result and does help his case, in the final analysis the irreversible damage to his heart, the coronary artery disease and the diabetes combine to present an unacceptable risk to aviation safety.

1. We have given consideration as to whether there are any conditions which could be imposed on the issue of a medical certificate which would allow us to be satisfied that the safety of air navigation would not be endangered.

2. Again, for the reasons already stated, we accept the evidence of Dr Clem in this regard. He explained that a typical restriction often used is to place a multi crew condition on a certificate but this is only considered a reasonable mitigation when the annual risk is in the order of 2%.The risk is much higher in this case.

3. We have taken into account that Mr Tickle has accepted most of the medical advice tendered to him so that there is little further he can do to lessen the risk. In view of the risk assessed we agree with the opinion of Dr Clem that the requirement of a safety pilot would not be sufficient to reduce the risk to an acceptable level.

   F.  CONCLUSION

4. The decision of the Civil Aviation Safety Authority made 23 July 2015 to refuse to issue Mr Tickle with a class 1 medical certificate, will be affirmed.

I certify that the preceding 52 (fifty-two) paragraphs are a true copy of the reasons for the decision herein of Deputy President J W Constance.

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

Associate

Dated 16 November 2016

Date of hearing	29 July 2016
Date final submissions received	29 July 2016
Applicant	In person
Solicitors for the Respondent	Mr J Rule; Civil Aviation Safety Authority