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**Peetwo** · 12-21-2017, 07:57 AM

Interesting recent case in the AAAT: Collins and Civil Aviation Safety Authority [2017] AATA 2564 (6 December 2017)

REASONS FOR DECISION
          Deputy President Bernard J McCabe & Member D K Grigg
          6 December 2017
         BACKGROUND

Mr Collins is a 77-year-old farmer and the owner of a Cessna 182 which he uses for private flying primarily between his home in Tully and a property at Lakeland Downs. He has been flying regularly since 1992. Mr Collins told the Tribunal that he currently flies approximately 50 hours per year primarily between his 2 properties which involves a 1-hour flight time.[1] He also drives freight trucks.
In 2007 Mr Collins had surgery to repair his mitral valve[2] and every year he is examined by a cardiac specialist to satisfy the Civil Aviation Safety Authority (“CASA”) that he is medically safe to fly. Mr Collins says he has a full heart check every 12 months and has had no issues and that no one has ever suggested to him that there was an increased chance of a stroke because of the mitral valve repair.
On 7 October 2014 Dr Michael O’Rourke, Cardiovascular Specialist, reviewed Mr Collins’ electrocardiogram (“ECG”) results taken on 3 October 2014, and reported that Mr Collins was “doing very well with the biological mitral prosthesis and with his general health” and that “he is fit and well to continue with his flying and with recertification as a pilot from a medical point of view”.[3]
On 20 November 2014, as a result of his satisfactory medical examination, CASA issued Mr Collins with a Class 2 Medical Certificate.[4]
Mr Collins told the Tribunal that in or around early 2015 he was having nosebleeds while flying in cold temperatures so he decided to stop taking aspirin (because he thought that was the cause).
Mr Collins said that on 24 June 2015 he had been shopping at a hardware store when he “felt funny”. He said he ended up driving 40km home and decided he better go to his doctor the next day. He said he told his doctor what had happened and the doctor suggested he be checked. Mr Collins decided to be checked in hospital. On 25 June 2015 Mr Collins was admitted to hospital following an episode of hemianopia (a type of vision loss) and confusion.[5] While in hospital an MRI and a CT scan of Mr Collin’s brain, and an ECG, was performed to determine the cause of Mr Collins’ presenting symptoms. The tests demonstrated that “there is quite a large area of abnormal restricted diffusion seen inferiorly in the right occipital lobe consistent with evolving ischaemic infarct” and that Mr Collins had suffered a “acute right occipital ischaemic infarct” (a stroke).[6] Dr Hugh McAlister, Cardiologist, reported that the mitral valve repair was functioning normally and that no cardiac cause for the neurological event was suspected.[7]
While in hospital Mr Collins was reviewed by Dr Craig Costello, Neurologist. Dr Costello reported that:[8]
1. the MRI of his brain confirmed the acute ischaemia;
2. this event happened whilst Mr Collins was on aspirin; and
3. the event was cryptogenic in origin.
Unknown to Dr Costello at that time, Mr Collins says that he had in fact stopped taking aspirin. Dr Costello said Mr Collins could not drive for one month and should have formal visual fields tests documented prior to returning to driving.[9]
Dr Ian Reddie, Eye Surgeon, conducted a visual field test on Mr Collins on 28 July 2015 and reported that the results showed Mr Collins had left superior quadrantanopia and that it did not represent any great impediment to his holding a private driving license.[10]
Professor O’Rourke reviewed Mr Collins again on 2 October 2015. Mr Collins told Professor O’Rourke that he was “adamant” that the stroke occurred when he was not taking aspirin. Professor O’Rourke reported that Mr Collins had no symptoms or signs relevant to his cardiovascular system and that he remained very fit and active and that he would be happy for him to maintain his pilot’s licence but “from a neurological point of view, Eric may be best waiting for 12 months from the date of his occipital infarct before he flies alone again”.[11]
On 23 October 2015 Dr Costello reported that Mr Collins had fully recovered from his stroke, had no abnormality in his visual fields and that he was continuing on his appropriate post-stroke therapy medication. Dr Costello notes that he was now aware that Mr Collins was not on aspirin at the time of his stroke and that Mr Collins had ceased taking aspirin when he was travelling in cold climates. In Dr Costello’s opinion, the risk of Mr Collins having a recurrent stroke was low, given Mr Collins was 3 months post his stroke and that he had remained on his post-stroke medications. Dr Costello reported that if Mr Collins maintains strict compliance with his medication he should be able to return to flying his private plane but that the final certification of this will be up to his Designated Aviation Medical Examiner (“DAME”) as per CASA guidelines.[12]
Mr Collins told the Tribunal that after his stroke he was prescribed a different medication, not aspirin, which softens the arteries rather than just thinning the blood. He says he only needs to be medically managed by a general practitioner, everything is stable, he only needs specialised review for the purposes of CASA licensing, and that all he has to do for his conditions is take the medication.
On 30 October 2015 Mr Collins applied for a renewal of his Aviation Medical Certificate Class 2 License.[13] In his application, Mr Collins reported to CASA that he had ceased taking aspirin and that he had a cerebellar infarct in June 2015 which was completely resolved without functional loss.[14]
Upon receipt of Mr Collins’ Aviation Medical Certificate renewal application, CASA determined that, as a result of his stroke, Mr Collin’s application required a complex case management review (“CCMR”).[15]
On 6 January 2016 the CCMR considered Mr Collins’ medical reports and the scientific literature regarding the frequency of stroke recurrence after cryptogenic strokes and decided that the risk of a recurrent stroke was unacceptable.[16] As a result of the CCMR, CASA determined that because of his condition (i.e. occipital ischaemic stroke (cryptogenic type)) Mr Collins did not meet the medical standards set out in Table 67.155 of the Civil Aviation Safety Regulations 1998 (“CASR”).[17] In CASA’s opinion, Mr Collins’ condition presented an unacceptable risk of in-flight incapacitation because there was increased risk of stroke recurrence and post-stroke seizure which could lead to an acute or subtle in-flight incapacitation. CASA said it would consider reviewing the risk assessment after 12 months post the date of the stroke.[18]
Mr Collins advised CASA that he accepted CASA’s decision and would reapply when the 12 month mandatory period had expired.[19] CASA advised Mr Collins that after the completion of the 12 month grounding period he would need to undertake a new medical certificate application examination and provide a report from his neurologist and cardiologist.[20]
Formal notice of CASA’s decision to refuse to issue Mr Collins with the Aviation Class 2 Medical Certificate was provided on 10 February 2016.[21]
On 20 June 2016 Dr Costello completed Mr Collins’ 12 month review and reported that:[22]
1. since the stroke, Mr Collins had not had any further clinical neurological deficits;
2. the prognosis for recurrent stroke is highest in the first year and his current risk of stroke, estimated by a variety of risk calculators, was found to be 5% over the next 4 years and 10% over the next 10 years, which is lower than the average of 18% for his age group over 10 years;
3. Mr Collins’ risk of post stroke epilepsy was highest in the first year and is typically quoted between 5 and 9% in total; and
4. if Mr Collins has ongoing vascular risk factor monitoring and management there would be no requirement for any further input from Dr Costello unless required by CASA.
On the 17 October 2016, 15 months after his stroke, Mr Collins was reviewed by Dr Costello again. Dr Costello reported that:[23]
1. Mr Collins had not had any new neurological symptoms and remains asymptomatic;
2. Mr Collins was continuing his medication; and
3. there was no change in Mr Collins’ risk level, since his review in June 2016.
On 21 October 2016 Professor O’Rourke reported that Mr Collins had completely recovered from his stroke and that the episode occurred after he stopped his antiplatelet therapy (aspirin) and that, from a cardiological viewpoint, he was fit to have his flying licence renewed.[24]
On 24 October 2016 Mr Collins had a vision assessment by Dr Mark Chiang, Opthamologist, which showed “left superior quadrantanopia secondary to right occipital stroke”. Dr Chiang reported that there was no problem with Mr Collins flying from a vision point of view.[25]
On 4 November 2016 Mr Collins applied to CASA again for an Aviation Medical Certificate Class 2.[26]
On 7 November 2016 CASA proposed to issue Mr Collins with a Class 2 Medical Certificate subject to the condition that “the holder to fly with safety pilot only” (“Safety Pilot Condition”) on the grounds that Mr Collins did not meet the applicable medical standards, as set out in Table 67.155, due to the risk of recurrent stroke or post stroke seizure.[27] The requirements of the Safety Pilot Condition are that the aircraft flown by Mr Collins must be configured with side-by-side seating in the cockpit and the aircraft must have a full set of dual flying controls.[28]
On 18 November 2016 Mr Collins lodged an objection to CASA’s decision to impose the Safety Pilot Condition.[29]
Upon receipt of Mr Collins’ objection CASA determined that his application required a CCMR.[30]
On 7 December 2016 the CCMR considered Mr Collins medical reports and the scientific literature regarding the frequency of stroke recurrence after cryptogenic strokes and agreed with the CASA proposal to impose the Safety Pilot Condition on Mr Collins’ Aviation Medical Certificate Class 2 due to the increased risk of cardiovascular accident recurrence.[31] Dr Mike Seah, Senior Aviation Medical Officer at CASA, then wrote to Mr Collins and explained that, while his medical evidence supported his application for a Class 2 Medical Certificate, in accordance with CASA’s clinical guidelines[32] the indicative outcomes for a medical certificate following a stroke state:[33]

[i]Applicants with residual impairment, unacceptable current risks and/or risk of myocardial infarction may not meet the required standard for medical certification[/i]
[i]If a certificate can be issued, permanent annual requirement cerebrovascular and cardiovascular risk assessment may be required[/i]
[i]If the certificate can be issued, permanent Multi-Crew (Class I) or Safety Pilot (Class 2) restriction may be required[/i]

In Dr Seah’s opinion, based on the medical reports:
1. Mr Collins had a confirmed ischaemic stroke/cerebrovascular accident;
2. Mr Collins still has a visual field defect, quadrantanopia, as a result of the death of brain tissue affected by the stroke; and
3. there was an increased risk of further stroke or cardiac events particular with increasing age; and, therefore
  Mr Collins Class 2 Medical Certificate should have the Safety Pilot Condition.
On 14 December 2016 CASA decided to issue Mr Collins with a Class 2 Medical Certificate with the Safety Pilot Condition (“CASA Decision”).[34]
On 9 January 2017 Mr Collins applied for a review of the CASA Decision by this Tribunal. Mr Collins submits that the Safety Pilot Condition should not have been imposed because his medical condition and prognosis, including the risk for a future cerebrovascular accident, was not high enough to make the Safety Pilot Condition necessary to preserve the safety of air navigation.[35]
A refusal by CASA to grant a certificate is a reviewable decision and an application may be made to the Tribunal for review.[36] The Tribunal has jurisdiction to review the CASA Decision pursuant to section 25 of the Administrative Appeals Tribunal Act.

[1]           The Tribunal notes that the medical certificate application form completed by Mr Collins on 10 November 2014 indicated that he had flown 60 hours in the previous 6 months, which equates to 120 hours per annum: Exhibit 1, T Documents, T 8, page 16, MRS Online Medical Examination Report completed by Mr Collins on 10 November 2014. The medical certificate application form completed by Mr Collins on 30 November 2015 indicated that he had flown 28 hours in the previous 6 months, which equates to 56 hours per annum: Exhibit 1, T Documents, T 22, page 43, MRS Online Medical Examination Report completed by Mr Collins on 30 November 2015.

[2]           Exhibit 1, T 6, page 12, Report of Dr Jacobs dated 3 October 2014.

[3]           Exhibit 1, T 7, page 14, Report of Dr O’Rourke dated 7 October 2014.

[4]           Exhibit 1, T 9, page 22, Letter from CASA to Mr Collins dated 20 November 2014.

[5]           Exhibit 1, T 12, page 27, Report of Dr Armstrong (Intern at the Mater Hospital Pimlico).

[6]           Exhibit 1, T 10, page 24, MRI Report of Dr Withey dated 26 June 2015.

[7]           Exhibit 1, T 11, page 26, Echocardiogram Report of Dr McAlister dated 26 June 2015.

[8]           Exhibit 1, T 13, page 29, Report of Dr Costello dated 30 June 2015.

[9]           Exhibit 1, T 13, page 29, Report of Dr Costello dated 30 June 2015.

[10]          Exhibit 1, T 14, page 30, Report of Dr Reddie dated 28 July 2015.

[11]          Exhibit 1, T 18, page 38, Report of Professor O'Rourke dated 2 October 2015.

[12]          Exhibit 1, T 20, page 40, Report of Dr Costello dated 23 October 2015.

[13]          Exhibit 1, T 21, page 41, Application for Aviation Medical Certificate Declaration dated 20 October 2015.

[14]          Exhibit 1, T 22, pages 42 – 48, MRS Online – Medical Examination Report completed by Mr Collins dated
             30 November 2015.

[15]          Exhibit 1, T 24, page 52, Letter from CASA to Mr Collins dated 7 January 2016.

[16]          Exhibit 1, T 23, pages 49 – 51, Complex Case Management Report dated 6 January 2016.

[17]          Exhibit 1, T 25, page 53, Letter from CASA to Mr Collins dated 13 January 2016.

[18]          Exhibit 1, T 25, pages 53 – 55, Letter from CASA to Mr Collins dated 13 January 2016.

[19]          Exhibit 1, T 26, page 56, Letter from Mr Collins to CASA dated 20 January 2016.

[20]          Exhibit 1, T 27, pages 57 – 58, Letter from CASA to Mr Collins dated 3 February 2016.

[21]          Exhibit 1, T 28, pages 59 – 61, Letter from CASA to Mr Collins dated 10 February 2016.

[22]          Exhibit 1, T 29, pages 62 – 63, Report of Dr Costello dated 20 June 2016.

[23]          Exhibit 1, T 33, page 71, Report of Dr Costello dated 17 October 2016.

[24]          Exhibit 1, T 34, page 72, Report of Professor O'Rourke dated 21 October 2016.

[25]          Exhibit 1, T 35, page 73, Report of Dr Mark Chiang dated 24 October 2016.

[26]          Exhibit 1, T 38, page 93, Application for Aviation Medical Certificate Declaration dated 4 November 2016.

[27]          Exhibit 1, T 39, pages 94 – 95, Letter from Doctor Mike Seah, Senior Aviation Medical Officer at CASA, to Mr Collins dated 7 November 2016. Pursuant to CASR 67.195, a person who does not meet the relevant medical standard can be issued a certificate to exercise the privileges of their licenses subject to any condition considered necessary by CASA.

[28]          Exhibit 1, T 39, page 97, Requirements of a Co-Pilot and/or Safety Pilot Condition on a Medical Certificate.

[29]          Exhibit 1, T 41, page 99, Letter from Mr Collins to Dr Seah, CASA, dated 18 November 2016.

[30]          Exhibit 1, T 44, page 102, Letter from CASA to Mr Collins dated 7 December 2016.

[31]          Exhibit 1, T 45, pages 104-108, CCMR dated 7 December 2016.

[32]          http://services.CASA.gov.au/avmed/guidelines/cerebrovascular_accident.asp

[33]          Exhibit 1, T 46, pages 109 – 110, Letter from Dr Seah to Mr Collins dated 7 December 2016.

[34]          Exhibit 1, T 48 and T 49, pages 112-117, Letter from CASA to Mr Collins re issue of Medical Certificate and Medical Certificate.

[35]          Exhibit 1, T 1, pages 1-2, Application for Review dated 9 January 2017.

[36]          Sections 31(1)(b) and 31(2), CA Act.

Hmm...in light of the recently CASA introduced [color=#0066cc]Basic Class 2 medical reform, one wonders how these types of Avmed cases will be handled in the future... Huh

Maybe the 'make work' CASA Legal Services division might suffer some rationalisation... Rolleyes

MTF...P2

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