Torr and Civil Aviation Safety Authority
[2008] AATA 479
•10 June 2008
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2008] AATA 479
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2007/6124
GENERAL ADMINISTRATIVE DIVISION
) Re JOHN KEITH TORR Applicant
And
CIVIL AVIATION SAFETY AUTHORITY
Respondent
DECISION
Tribunal Mr G L McDonald, Deputy President
Miss E.A. Shanahan, Member
Date10 June 2008
PlaceMelbourne
Decision The Tribunal varies the decision by adding a direction that the applicant is to be considered for a class 2 medical certificate after the expiry of a twelve month period, from 7 March 2007 and after eighteen months therefrom, for the issuance of a class 1 medical certificate the latter certificate subject to the applicant not suffering from a post traumatic seizure in the period to and including 7 September 2008.
……………………………………..
Deputy President
CATCHWORDS – Application for class 1 or class 2 medical certificate for a pilot – applicant sustained a medically significant head injury – whether applicant suffers from any safety relevant effects – level of risk of post-traumatic epilepsy
Administrative Appeals Tribunal Act 1975 s 37
Civil Aviation Act 1988 ss 9(1)(f), (g), (h), 9(2) and 9A
Civil Aviation Safety Regulations 1998 regs 1(a)(i), 1(a)(iv), 67.010, 67.015, 67.150 and 67.155REASONS FOR DECISION
10 June 2008 Mr G L McDonald, Deputy President Miss E.A. Shanahan, Member 1. The applicant, a pilot, is applying for the review of a decision of the respondent, affirmed after internal review, refusing to issue him a class 1[1] or class 2[2] medical certificate under the provisions of the Civil Aviation Act 1988 (the Act) and Civil Aviation Safety Regulations 1998 (the Regulations). The applicant incurred an injury to his head after a fall, and it is the results from this injury which has led to the refusal of the respondent to issue him with medical certification. Without a medical certificate the applicant is unable to undertake commercial flying.
[1] single pilot
[2] multi pilot
The Hearing
2. The Tribunal had the documents lodged by the respondent in accordance with s 37 of the Administrative Appeals Tribunal Act 1975 (T documents) and other exhibits filed during the hearing before it. The applicant and Dr Westerman gave oral evidence on behalf of the applicant. Dr Cameron, a specialist neurologist who undertakes assessments on behalf of the respondent where pilots have incurred head injuries; and Dr Fitzgerald, who notified the applicant of the respondent’s decision, gave oral evidence on behalf of the respondent. Dr Fitzgerald was called by the respondent having being requested to do so by the applicant. The Tribunal found Dr Fitzgerald’s testimony of great assistance.
3. Dr Westerman assisted the applicant in the conduct of the case. The Tribunal decided not to permit some of the witnesses proposed to be called on behalf of the applicant to be called, as no witness statements had been filed. In one case it was not known what the witness would say as he had not been proofed. To have permitted evidence to be called without the respondent having advance notice of the nature and content of what was to be said would have clearly placed it at a disadvantage. Additionally the Tribunal, having been given an outline of the purpose for which the witnesses were to be called, could see little or no relevance in their testimony.
The Act and Regulations
4. Section 9A of the Act requires the respondent to regard air navigation safety as the most important consideration in exercising its powers and functions. As part of its functions ss 9(1)(f), (g) and (h) and s 9(2) emphasise the regard to which safety issues are of importance.
5. Medical Certificates are issued to pilots in accordance with the Regulations. The Regulations provide standards to apply for the issuance of three types of medical classification; eponyomously medical certificates 1, 2 and 3. Regulation 67.010 broadly defines “medically significant condition” as including ”any illness or injury”[3]. “Any illness or injury” includes any sequelae arising from the injury[4]. A “medically significant condition” is “safety relevant” if it reduces or is likely to reduce the ability of a licence holder to exercise a privilege conferred or to be conferred or to perform a duty imposed, or to be imposed, by the licence[5].
[3] reg 1(a)(i)
[4] reg 1(a)(iv)
[5] reg 67.015
6. Item 1.1 in the Table in Regulation 67.150 provides that to hold a certificate 1 the person must have no safety-relevant condition which produces a risk of incapacitation from an injury[6].
[6] item 1.1(c)
7. Item 1.8 under the heading of “Nervous System” relevantly provides that the person must not be”… suffering from safety relevant effects of a head injury… .”
8. In relation to a medical certificate 2, Regulation 67.155 contains the same medical requirements as are provided for the issue of certificate 1[7]. The Tribunal was informed that the difference between a medical certificate 1 and 2 is that the holder of the latter is only entitled to fly with a co-pilot whereas no such restriction applies to the holder of a medical certificate 1.
[7] items 2.1(c) and 2.8
The Background Facts
9. The applicant is a 47 year old married man with two children. He is an airline pilot qualified to fly in both Australia and the United States of America. He has worked for the same firm[8] for the last eight years and during this period held class 1 and 2 medical certificates. The applicant’s employment was ultimately terminated as the result of his inability to gain the necessary medical recertification.
[8] being Crown Casino Melbourne
10. Aside from his head injury there is no other reason as to why the applicant would be denied medical certification for a class 1 or class 2 licence. The applicant underwent a mitral valve operation some years ago but it is asymptomatic and considered to be of no pathophysiological significance. The applicant has, since incurring his head injury, undertaken a physical fitness program and claimed in his oral evidence to the Tribunal to be the fittest he has been for years[9].
[9] also reported this to Associate Professor Stark T14-48
11. In March 2007 the applicant co-piloted a gulf stream jet in a 16 hour flight from the east coast of Australia to Los Angeles. The preceding month had been extremely busy, with the applicant logging over 120 flight hours. Following his arrival in Los Angeles, the applicant and other crew members spent several hours relaxing at a driving range before dining at a restaurant. A large amount of alcohol was consumed. Following a return to the Hyatt Hotel by taxi, a trip during which he slept, he fell while ascending a stair case hitting the back of his head[10] on a stone floor.
[10] occiput
Medical Reports, Summary and Analysis
12. After the fall the applicant was taken by ambulance to the St Mary Medical Center in Long Beach California and was assessed by both the ambulance, paramedics and the emergency room (ER) staff. On discharge from hospital the applicant’s wife was provided with a copy of his medical record. This does not include any observation charts or fluid balance charts. Having carefully perused and noted all the entries the Tribunal has only included in this decision those entries pertinent to the issue under consideration. That is, the application for recertification as a Class 1 or 2 pilot.
13. On arrival at the ER at 2355 hours on 7 March 2007 the applicant was described as combative, disorientated, vomiting and obviously inebriated. He was not comatosed and apart from his mental status there were no abnormal neurological signs detected. Someone, be it the applicant or an accompanying person, was able to advise the ER doctor that the applicant had previously undergone a mitral valve repair.
14. The paramedics calculated a Glasgow Coma Scale (GCS) of 10, 15 being normal. Such a score is indicative of a moderate head injury. The GCS was devised by Dr G. Teasdale and Professor B. Jennett in 1974 to assess coma and impaired consciousness.
Response Score Eyes Open Spontaneous 4 To Speech 3 To Pain 2 Absent 1 Verbal Converses/Oriented 5 Converses/Disoriented 4 Inappropriate 3 Incomprehensible 2 Absent 1 Motor Obeys 6 Localizes Pain 5 Withdraws(flexion) 4 Decorticate(flexion) Rigidity 3 Decerebrate(extension) Rigidity 2 Absent 1 ·The sum obtained in this scale is used to assess Coma and Impaired consciousness
·Mild is 13 to 15 points
·Moderate is 9 to 12 points
·Severe 3 through 8 points
·Patients with score less than 8 are in Coma
These scores are listed under E, V, M in clinical records and are used universally.
15. The applicant’s GCS’s as recorded in the hospital clinical notes were as follows:
DATE
E (EYES)
M (MOVEMENT
V (VERBAL)
TOTAL SCORE
7 March 2007
3
5
2
10/15
8 March 2007
1
5
1
7/15
9 March 2007
3
6
4
13/15
11 March 2007
3
6
4
13/15
12 March 2007
3
6
4
13/15
14 March 2007
3
6
5
14/15
The low score of 8 March 2007 reflects the fact that the applicant had been intubated, sedated and mechanically ventilated from 0730 hours on 8 March 2007 until he extubated himself at 0100 hours on 9 March 2007. Intubation had been preformed prophylactically as the applicant was vomiting and it was feared he might aspirate vomitus. His blood alcohol level on admission was 0.211 or 211 milligrams per 100 mls. All other screening for drugs of abuse was negative. Other biochemical parameters, including blood gases, were within normal limits.
16. During his period of hospitalisation the applicant was regularly assessed by an intensive care consultant, the neurosurgical unit and a cardiologist. Dilantin was administered prophylactically but a therapeutic blood level was never achieved. Oral Dilantin was continued once the applicant was fully conscious and ceased on 1 April 2007 by which time he had returned to Australia. Prophylactic alcohol withdrawal medication was also instituted and continued until it became clear on 11 March 2007 that there was no history of past heavy alcohol intake.
17. The Intensive Care consultant who performed a thorough assessment of the applicant on 8 March 2007 and again on 9 March 2007, has classified the applicant as category 1. Tribunal note: this appears to be the characterisation of a head injury in accordance with American medical practice wherein head injuries are classified 1‑6, 6 the severest.
Clinical Progress
18. The applicant improved steadily throughout his period of hospitalisation except for the development of a haemophilus influenzae chest infection which rapidly responded to antibiotics and the development of hyponatriaemia on 16 March 2007. The latter was attributed to a sodium losing cerebral syndrome and responded rapidly to the intravenous infusion of 3% sodium chloride. Tribunal note: the applicant’s serum sodium fell sequentially from 7 to 16 of March 2007 as did other parameters such as his haemoglobin and haematocrit and may well have reflected the fact that fluid replacement was with 5% dextrose and N/5 saline with limited oral in take.
19. By 9 March 2007 he was described as being alert to voice commands, denying any pain but easily agitated. He was described as doing well overall. He was seen on several occasions by the neurosurgical unit who found no indication for surgical intervention and recommended continuation of conservative treatment. The cardiologist who was acquainted with the applicant’s past mitral valve repair found no abnormality on examination of the heart and performed an ECG and a echocardiogram to check that cardiac function was normal. By 11 March 2007 the applicant was awake and alert, knew he was in California but could not recall what had happened to him. On that same day he slid on the floor of the intensive care unit while running out of the room but was not observed to hit his head. Because of his fall a further CT of the brain was conducted. On 18 March 2007 he was assessed by all consultants as fit to fly home to Australia.
Brain, CT Scans and MRI
20. A CT scan was performed on the applicant’s admission to hospital and revealed a small subdural haematoma in the left fronto-parietal region; a small haemorrhagic contusion in the left fronto-parietal region; a small sub-arachnoid haemorrhage; and a fracture of the right occipital bone.
21. Later the same day an MRI was performed and compared to the CT scan made earlier that day. There was no evidence of any midline shift or hydrocephalus. The small subdural haematoma in the left fronto-parietal region (7 mm) was unchanged; there was no evidence of subarachnoid blood; and bi-frontal haemorrhagic contusions more prominent on the right than the left were reported.
22. Following the applicant falling on 11 March 2007 a further CT scan was performed and compared to that of 8 March 2007. The right frontal haemorrhagic contusion had increased; the left frontal subdural haematoma had decreased as had the left frontal contusion. No subarochnoid blood was evident and once again there was no midline shift.
23. Following his return to Australia the applicant was admitted initially to Cabrini and subsequently to Epworth hospitals for neurological testing. In the case of the former hospital he was he was tested by Dr Wodak and Dr Frayne, both neurologists. Dr Wodak formed the strong view that the applicant was not fit to fly[11]. Dr Wodak stated in a report dated 26 March 2007 to Dr MacIarn, the applicant’s Sydney based DAME[12], that the applicant may not have an appreciation that his condition could be more severe than he thought[13].
[11] T3 pg 19
[12] Designated Aviation Medicine Examiner
[13] T3 pg19
24. Dr Olver, a physician in rehabilitation at Epworth, reported to the respondent in a letter dated 20 April 2007 stating that the applicant had made a good cognitive recovery and that further gradual improvement in his high level skills in executive thinking and function, which had been mildly compromised, was to be expected. Dr Olver expected the applicant to be able to resume driving in three months from the date of the accident. Dr Olver holds no qualification or expertise in the medical certification of pilots. In his report Dr Olver noted that the Aviation module used for neuropsychological testing of pilots was unavailable at the Epworth hospital.
25. Professor Cook, a neurologist and epileptologist, reported to Dr Olver on 14 June 2007 that the applicant had made an excellent recovery with there being no neurological abnormalities[14]. The professor was also unaware of the requirements for medical certification of pilots.
[14] T8 pg 31
26. A medical examination conducted on 25 June 2007 by Dr Maclarn suggested that the applicant was fit to hold a pilot’s licence[15] however Dr Maclarn answered ”no” to three relevant questions on the form. The first asked if the applicant had suffered “any chest pain … or other heart complaint”, the second was whether the applicant had been involved in any incident related to alcohol[16] and the third, whether he had sustained any major injury to a bone. Clearly the answer to these question ought to have been “yes”. It follows that little weight can be attributed to Dr Maclarn’s recommendation that the applicant was fit to fly.
[15] T11 pg 43
[16] T11 pg 40
27. On 11 July 2007 the respondent wrote to the applicant stating that the CASA medical officers considered the risk of post traumatic epilepsy to be “high (at least 4% per annum) for at least 5 years” and requested a response from the applicant’s neurologist[17]. Shortly after this, on the 19 July, the applicant consulted Dr Westerman. The applicant has been receiving advice and treatment, extending to include periodic blind testing for alcohol intake, since that time. Dr Westerman has performed CogState Testing on the applicant on 13 occasions and since September 2007 this has been normal.
[17] T12 pg 44
28. On 10 September 2007 Associate Professor Stark, a neurologist, advised Dr Olver that on his analysis of the risk factors there was a 2% chance of the applicant developing post traumatic seizures if in the first twelve month period following his fall the applicant was seizure-free[18]. Associate Professor Stark confirmed his view in a letter to the applicant’s General Medical Practitioner dated 14 February 2008, stating that if there are no symptoms over the following six month period the risk would further diminish to 1%. The rate of epilepsy in the general population is 1 to 2%.
[18] T14 pg 48
29. Dr Cameron is a consultant neurologist to whom the respondent regularly refers those pilots who have suffered a head injury for assessment and advice. Dr Cameron has considerable experience in undertaking such assessments on behalf of the respondent. Dr Cameron examined the applicant on 18 October 2007 and reported to the respondent on 30 October 2007[19]. Dr Cameron stated:
It is now approximately eight months since the event [ie the applicant’s fall in Los Angeles]. He is still aware of very mild emotional lability (sic) at times. Otherwise his concentration and memory appear intact. He has presented a COGSCREEN from 8 September 2007 which apparently shows no significant neurological performance impairment. He has a mildly reduced sense of smell. Otherwise neurological examination appeared intact.[20]
[19] T19 pg 57
[20] T19 pg 59
30. Dr Cameron stated that owing to the risk of the applicant developing post traumatic epilepsy he believed that while the applicant should not be issued with a class 1 medical certificate consideration could be given to issuing the applicant with a class 2 medical certificate with (unstated) restrictions from March of 2008, ie twelve months after the applicant’s fall. Dr Cameron opined that the applicant had suffered a moderately severe closed head injury and that while there were a number of risk factors for developing post traumatic seizures, after a twelve month period the risk would be significantly reduced.
31. Dr Fitzgerald, CASA, Aviation Medical Practitioner told the Tribunal he was concerned, when reviewing Dr Cameron’s report, that its conclusions did not appear consistent with earlier advice given in other cases where brain injury had occurred which could have resulted in post traumatic fitting.
32. Dr Cameron gave evidence by telephone to the effect that his second report dated 3 March 2008 was a response to a telephone query from Dr Fitzgerald to clarify the advised time for retesting. The question was whether retesting should be undertaken at twelve and twenty-four months, the former for a class 2 medical certificate and the latter for a class 1 medical certificate, from the date of injury (ie 7 March 2007) or that same time period from the date of consultation with Dr Cameron (ie 18 October 2007).
33. Dr Cameron classified the applicant’s head injury as moderate given the original GCS of 10, but also commented that this assessment could have been contaminated by alcohol. In general the longer the post traumatic amnesia period the greater the risk of post traumatic epilepsy. However other factors also impacted on this prediction. Dr Cameron quoted the papers of Jennett who found increased risk of epilepsy for six years following the injury and Annegers who reported an increased risk for five years. He said a normal EEG was of zero or little predictive value.
34. Dr Cameron also outlined the types of seizures seen post head injury, namely generalised or grand mal, focal epilepsy involving a limb or one side and complex partial seizures characterised by confusion and semi automatic actions. In the case of complex partial seizures it was possible that neither the effected individual or an observer would detect their occurrence. With a tonic/clonic grand mal seizure the individual may hold on to a steering wheel with great force. The findings in the applicant of decreased executive function and emotional liability were signs of frontal lobe contusion that could or should resolve with time.
35. Dr Cameron attributed Mr Torr’s altered sense of smell to tearing a part of the olfactory nerve at the time of the head injury. He did not comment on the reduced sense of taste. Dr Cameron was not familiar with CogState Testing. Dr Cameron agreed with Dr Westerman that the use of alcohol increased the risk of seizures post head injury.
36. The Tribunal asked Dr Cameron how many of the pilots with head injuries that he had approved to return to fly had subsequently suffered seizures. The answer was nil. Dr Cameron had concluded that the applicant’s risk at the end of twelve months, if no seizures occurred, would be 5% and that at the end of twenty-four months it would be 2.6%. When challenged on these figures by Dr Westerman, Dr Cameron stated he disagreed with the literature figures of 2% risk at twelve months if there had been no post traumatic seizures.
37. In his evidence, Dr Westerman confirmed that he had treated the applicant since July 2007 and had performed 13 CogState tests with the latest being normal. CogState Testing, a computer based neuropsychological tool, was established in the 1980’s and 1990’s[21] for the American Federal Aviation Authority for pilot assessment.
[21] Cog Screen AE where AE means aeromedical edition
38. Dr Fitzgerald sent a facsimile Dr Cameron on 27 February expressing his concerns. It was suggested on behalf of the applicant that Dr Fitzgerald may have been trying to unduly influence Dr Cameron to change the advice given in his report of 30 October 2007. The Tribunal rejects this and accepts Dr Fitzgerald was, as he has a responsibility to do, ensuring that the advice received accorded with previous advice given where similar head injuries had been the subject of concern to the respondent.
39. Dr Cameron replied on 3 March 2008 that his earlier report contained “typographical errors”. The Tribunal is unable to accept the errors as being merely typographical. The Tribunal is prepared to accept that Dr Cameron was mistaken in the earlier advice given and that the mistake was an error and not motivated by any ill will to the applicant. Dr Cameron, in his later advice, said that rather than the applicant being considered for a class 2 licence twelve months from the date of his fall the advice should have been twelve months from the date of the letter. Dr Cameron also pointed out that he meant to advise that the applicant could be considered for class 1 medical certification two years from the date of the letter.
40. The applicant expressed a dedicated commitment to flying since attaining his first pilot’s licence at the age of 16 years. By his demeanour during the hearing he exhibited a high degree of frustration about the time it was taking to have his medical certification resolved. While the Tribunal may sympathise with his frustration arising as the result of the hope generated by Dr Cameron’s first advice, there is no place for that sympathy to be reflected in the decision making process where aviation safety issues are involved. The respondent, and this Tribunal, in determining a decision must bear foremost in mind the safety of passengers, and of the pilot, when assessing medical fitness to fly. While he expressed frustration, the applicant was also conscious of, and acknowledged in his oral evidence, the importance to him of the need to be mindful of him being secure in the knowledge that he would return safely to his wife and children. The application must be determined on the basis of the analysis of the increase in risk which attaches to him being certified fit to fly and whether that risk is falls within an acceptable to range.
41. It was Dr Fitzgerald’s evidence that Australia tolerated a 1 to 2% additional risk factor when considering pilots for medical certification. He also maintained that Australia is more robust in its acceptance of the increased risk than are all, or many, equivalent countries. The Tribunal accepts Dr Fitzgerald’s evidence on these points.
42. The Tribunal was provided with a large volume of reports from the medical literature regarding traumatic brain injury and the incidence of post traumatic epilepsy. The medical member of the Tribunal has read all of these articles many of which assist in the understanding of the categorisation of head injuries by both the Australian Federal Aviation Administration and the United States Airforce for American pilots. It is noted that category 1 head injuries are regarded in the United States as being the least severe in this classification. All but one of these articles are retrospective studies, the exception being that of Englander entitled “Analysing Risk Factors for Late Posttraumatic Seizures: A Prospective, Multicenter Investigation”. All studies appear to the Tribunal to be deficient in that all variables have not been considered, for example, the effect of high alcohol blood levels and the need for intubation and controlled ventilation with the consequences of sedation plus neuro-muscular relaxants. Englander does state that “other factors that are independent of the injury of itself may play important roles in seizure occurrence”.
43. The risk factors identified in the Englander article are:
·early posttraumatic seizure
·a low Glasgow Coma Score
·midline shift and cisternal compression on CT scan
·sub-cortical contusions
·penetration of dura by bone or metal fragments
·mass lesions with and without surgery
·neurosurgical procedures
·other intracranial lesions particularly punctate haemorrhages
·length of phenytoin (dilantin) prophylaxis
44. In the Englander study 90% of late posttraumatic seizures had occurred within the eighteen months post traumatic brain injury. The risk for onset of seizures diminished rather rapidly after the first year. The author comments “… the highest risk factors for late posttraumatic seizure were multiple or bilateral contusions, subdural haematoma with surgical evacuation, early post traumatic seizure, multiply intracranial haemorrhages and evidence of large degrees of midline shift.”[22]
[22] Ex R1 pg 371
45. In the retrospective study by Annegers[23] entitled “A Population-Based Study of Seizures after Traumatic Brain Injuries” the major risk factors were identified as the duration of loss of consciousness or antegrade or retrograde amnesia, the presence and type of skull fracture, the presence of cerebral contusion, subdural or epidural haematomas and the occurrence of early seizures. Annegers found an increased risk of post-traumatic seizures for a period of 10 years following severe traumatic brain injury. Skull fractures and prolonged loss of consciousness were significant but weaker predicators of late seizures. The risk of seizures in individuals with moderate injury was 0.7% at one year and 1.6% at five years.
[23] Ex R1
46. A more recent study[24] entitled “Predicting Post-traumatic Epilepsy with MRI: A Prospective Longitudinal Morphological Study in Adults by A Messori et al is a prospective study endeavouring to relate morphological factors for post-traumatic epilepsy using Magnetic Resonance Imaging (MRI) in serial assessments up to two years after traumatic brain injury. This is an early study in terms of the predictability of MRI and involved 135 patients. This study indicates that patients with gliosis[25] surrounding haemosiderin[26] appear to have the highest probability of post-traumatic epilepsy developing. The applicant’s MRI examination of 2008 shows minimum haemosiderin deposition. Based on the Messori study, this would seem to be a further positive prognostic sign.
[24] published 2005
[25] fibrosis
[26] residual deposits from haemorrhage
47. The respondent and many authors of the scientific articles referred to and relied on the work, opinion and publications of Professor Brian Jennet, the neurosurgeon who, with co-workers, devised the Glascow Coma Score. Professor Jennet’s vast experience in the treatment and assessment of traumatic brain injury derived from his clinical practice over a period from the late 1930’s to the late 1960’s, an era preceding CT scanning let alone MRI studies; the almost universal development of Intensive Care units; the common use of both therapeutic and prophylactic controlled ventilation and biomedical engineering advances such as intra-cranial pressure monitoring. Professor Jennet’s studies and publications were seminal. The Tribunal is surprised that in the 33 years since Jennet’s death, there has been a dearth of large case number prospective studies which might have provided data excluding variables such as the effect of alcohol and controlled ventilation both of which effect post-traumatic amnesia. For this reason the Jennet study cannot be regarded as conclusive.
48. The Tribunal also experienced difficulty in the conclusion that the contusions suffered by the applicant immediately following the fall should be regarded as ”severe”. The medical records of the American hospital record appear to indicate otherwise. The applicant is noted as being admitted on 7 March 2007, St Mary at 23:55pm and is described as being “combative” and “vomiting”. He was intubated at 7:30am on 8 March. One way of establishing the severity of the contusions is to refer to the time it takes for someone who has suffered a head injury to regain awareness. In this case because of the need to ensure the applicant did not choke because of the amount of alcohol he consumed there was a need to sedate him. It appears, while he was confused on admission, that he did not lose consciousness.
49. Clearly the high intake of alcohol played a significant part in the events resulting in the applicant’s hospitalisation. The blood alcohol reading taken at St Mary hospital was at 0.221% high, and provides a ready explanation for the applicant losing his balance and falling backwards on his return to the hotel. An excessive intake of alcohol and sustaining the necessary level of fitness to fly are obviously antithetical. The intake of alcohol following the suffering of a head injury is equally antithetical. The applicant subsequently consulted, Dr B Monheit, a drug and alcohol specialist in December 2007. Dr Monheit reported[27] that the applicant’s consumption of alcohol prior to March 2007, at three-four stubbies on social occasions two-three times a month, was not excessive. Dr Monheit concluded that there was no evidence of alcohol abuse or dependence. Dr Westerman also blind tested the applicant on three or four occasions since 17 July 2007 and confirmed no evidence of alcohol consumption. The applicant stated that he had not consumed alcohol since the incident in March 2007. The Tribunal accepts that the applicant has eschewed the drinking of alcohol since he incurred his head injury.
[27] T1-9
Deliberation
50. It is uncontested that the applicant suffered a ”medically significant injury” on 7 March 2007. The issue for the Tribunal to determine is whether and, if so, the extent, from which he suffers from any safety relevant effects from that injury which are likely to reduce his performance as a pilot.
51. Put simply, the question for the Tribunal is whether the applicant has a higher risk of epilepsy than that of the general population of 1 to 2 %. There is no one test by which this can be determined. The extent to which he may continue to suffer is to be determined by reference to the seriousness of the injury incurred and its likely consequences. This requires consideration of the clinical presentation and the applicant’s progress, the available expert medical opinion and an examination of the relevant medical literature on the subject of post-traumatic epilepsy. The latter is not comprehensive on the effects of head injuries of the sort involved in this case. The date at which the Tribunal must determine the issue is the date of its determination.
52. The first thing to establish is the severity of the applicant’s head injury. The assessments made on 8 and 9 March 2007 by the intensive care consultant was that that on the American scale for measuring severity of head injuries of 1-6 the applicant was assessed as being in the least severe category at 1.
53. His GCS score of 10 out of 15 recorded on 7 March 2007 is indicative of him having a moderately severe head injury. This however is more probably than not influenced by the test being administered shortly after his admission while he was intoxicated - hence his low verbal recording of 2 out of a possible 5 points. On 8 March the reading was 7 out of 15 and is indicative of his condition as being in the severe range. However the latter low score is influenced by the fact of him being intubated, ventilated and sedated. It is arguably more relevant to note that his score rapidly rose to 13 out of 15 on the day he extubated himself following which 17 hours of controlled ventilation ceased and sedation was reduced. In addition the effects of alcohol would by then have been minimal.
54. The applicant was assessed as fit to return to Australia two weeks after the injury. Upon his return he was examined by a number of doctors between March and June 2007. Dr Wodak a neurologist, was of the opinion that the applicant was unfit to fly and that his condition was more serious than the applicant realised. Dr Olver, a physician, opined that the applicant was making a good cognitive recovery and Prof Cook, a neurologist and epileptologist, thought that the applicant had made an excellent recovery with no neurological defects. However none of those doctors had experience in the assessments necessary for the issuance of an aviation medical certificate. Their evidence is relevant to the extent that it leaves the Tribunal satisfied that on the balance of probabilities the applicant’s condition was not so severe that he was restricted by a slow recovery.
55. Dr Cameron opined that the applicant had suffered a “moderately severe” injury. Dr Cameron attributed this to several factors. One was the low GSC score recorded for the 7 March 2007. Another was that the applicant suffered amnesia for more than twenty-four hours following the injury. These factors do not reflect an accurate assessment. While Dr Cameron acknowledges the presence of alcohol “may” have contributed to the results recorded he then seems to discount the acknowledgement in the formulation of his opinion as to the severity of the applicant’s injury. On arrival at St Mary the applicant was noted as being ”combative”. The applicant was clearly not unconscious and it was only following his intubation and sedation that he lost consciousness. This resulted from the procedures administered by the hospital. When he regained consciousness the applicant was sufficiently oriented to recognise his wife’s presence in the room and there is no report of him suffering antegrade amnesia. The low GSC score on admission is also more likely than not attributable in part to the applicant’s alcohol intake and the even lower score record for 8 March is clearly attributable to the intubation and sedation and does not reflect a uncontaminated reading. The scores of 13 out of 15 recorded for the three days after the effect of the alcohol and procedures had worn off more accurately reflect the applicant as suffering a lower level of injury.
56. The medical literature identifies those clinical features associated with an increased risk of post-traumatic epilepsy. Of these factors identified in the CT head scan results, in particular the haemorrhagic contusions, noted by Dr Cameron as leading to his conclusion that the applicant suffered a moderately severe injury, are at the less serious end of the spectrum. It is important to note that no neuro-surgical intervention was necessary and there was no radiological evidence of cerebral mid-line shift. Additionally of the factors noted in the Englander article it is important to note that the applicant did not suffer any early post traumatic seizure up to one year since the injury. Of the bifrontal haemorrhagic contusions, that on the left side was minor and quickly decreased whereas that on the right side increased in the days immediately following the injury. The 2008 MRI results demonstrate that there was minimal haemosiderin deposition – the latter according to the Messori study, being a major, if not the major, factor in a person developing post traumatic epilepsy. The blow to the head was such that there was no evidence of mid line shift – the presence of midline shift being another of the factors noted in the Englander article as indicating a propensity for the development of post traumatic epilepsy.
57. The Tribunal has already commented on the lack of accurate recording of the facts in Dr Maclarn’s report. These errors result in the Tribunal being unable to attribute any weight to his evidence.
58. In July 2007 the applicant commenced seeing Dr Westerman, who performed a total of 13 CogState tests on the applicant. The result of each demonstrated that the applicant had suffered no long-term cognitive deficit. Dr Cameron was unaware of the CogState Testing. Although CogState Testing is apparently widely used in assessing head injuries incurred in motor vehicle accidents it is used less frequently in pilots in Australia than in America. No reason was advanced by the respondent for the rejection of the results of the CogState Testing conducted by Dr Westerman and the Tribunal is unaware of any reason for not accepting them. The Tribunal accepts the results as indicating the applicant suffers no long term cognitive deficit.
59. The risk of post traumatic seizures occurring was the subject of disagreement between the parties. For the reasons expressed the Tribunal is satisfied that, on the evidence, the injury should be characterised as being less than a moderately severe injury or at the lower end of such a classification. That being the case, on balance, the research results recorded in the articles examined by the Tribunal combined with the testing carried out on the applicant’s condition result in the likelihood of the applicant suffering post traumatic seizures eighteen months following the injury as being remote. It is more likely than not in the applicant’s case that after the expiration of a twelve month period, without evidence of any post traumatic seizure, the percentage chance of him experiencing an epileptic episode would be between 1 and 2% rather than the 5% estimated by Dr Cameron. The claimed errors in Dr Cameron’s first report, albeit innocently made, more accurately reflect the level of severity of the applicant’s injury and its likely consequences than do the figures in Dr Cameron’s later report. The 1-2 % estimation is well within the range of tolerance Dr Fitzgerald would accept as qualifying the applicant for a class 2 medical certificate.
60. The Tribunal acknowledges the assessment of what is “likely” in the context of air safety is not predicated solely on a statistical calculation. A decision is to be based on the requirements of maintaining a high level of air safety on behalf of the community, including for the applicant, any co-pilots and crew. A decision maker, whether it be the respondent or this Tribunal standing in place of the respondent, must be satisfied that the applicant does not suffer from any medical condition which will, or even may, reduce his ability to exercise the privileges and performance requirements of a pilot. Risk can never be entirely eliminated. If any risk exists it must be determined to be an acceptable risk. As mentioned earlier in these reasons Dr Fitzgerald stated that Australia accepts a higher tolerance of risk than do some other comparable countries. Nevertheless the risk must be such that it does it does not impinge the ”safety relevant” requirement.
61. The applicant is a fit man and the Tribunal is satisfied that he has not, and does not, suffer from any alcohol related abuse and that he has, following the advice of Dr Westerman, abstained from having any alcohol. His risk of epilepsy is not as serious as is characterised by Dr Cameron. He suffers no relevant neurological problems and has made an excellent recovery with no evidence of post traumatic seizures. The chance of him experiencing a seizure after the expiration of a twelve month period from his injury is such that the Tribunal is satisfied that he does not present a “safety relevant” risk such that he should be denied a certificate 2 medical certificate.
62. The letter notifying the applicant of the suspension of his medical certificates dated 16 November 2007[28] constitutes the reviewable decision. The letter states that the respondent will not consider the applicant’s medical certification until at least March 2008. The indication from the respondent was that it would not now consider his certification for a class 2 medical certificate until at least eighteen months from the date of the injury and twenty-four months before he would be considered for a class 1 medical certificate. In the circumstances in which the decision is currently worded there would be little apparent point in setting the decision aside and substituting a new decision. The better course would appear to be to vary the decision by adding a direction that the applicant is to be considered for a class 2 medical certificate after the expiry of a twelve month period, from 7 March 2007 and after eighteen months therefrom, for the issuance of a class 1 medical certificate the latter certificate subject to the applicant not suffering from a post traumatic seizure in the period to and including 7 September 2008.
[28] T21
I certify that the 62 preceding paragraphs are a true copy of the reasons for the decision herein of
Mr G L McDonald, Deputy PresidentMiss E A Shanahan, Member
Signed: .....................................................................................
Diane De Andrade Personal AssistantDate/s of Hearing 20 March 2008
Date of Decision 10 June 2008
For the Applicant Dr R A WestermanFor the Respondent Mr A. Anastasi
CASA
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