[Peetwo]

McKenzie vs CASA Avmed update.

From CM, via the UP:

Quote:

Is their '12 months' based on some precedent or standard, however derived, or is it an arbitrary number that could be subject to some further judicial review of administrative action?

The refusal, outright, to do any assessment during the 12 month period is, in my view, a manifestation of a couple of errors of law in the delegate’s decision that are easily demonstrated. However, for reasons I’ll explain, there’s little practical point in applying to the Federal Court for orders to the effect that the delegate should comply with the law.

Unsurprisingly - except perhaps for Avmed - delegates are supposed to exercise their powers on the basis of the specific circumstances relevant to the particular case in question. The potential risks of a medical condition posed to and by a day VFR pilot are not the same as the the potential risks of the same medical condition posed to and by an IFR-rated aerobatic-rated pilot who does single pilot IFR as a day job. (Note: the phrase “to and by” the pilot is important.). Further, delegates are not supposed to be dictated to by policy or administrative rule. 

Accordingly, one of the numerous circumstances that the ADJR Act says is an improper exercise of power is:

Quote:

[A]n exercise of a discretionary power in accordance with a rule or policy without regard to the merits of the particular case.

It’s obvious to me that Avmed has a policy simply to refuse to assess and make any decision on any evidence during the 12 months following the procedure I underwent. (Avmed has ‘form’ on making decisions under the dictation of policy. At one level this is not surprising, because Avmed does not have specialist expertise in the subject matter. )

The refusal is also, in my view, contrary to CASR 67.240(4), which says:

Quote:

(4)If:


(a) CASA suspends a medical certificate; and

(b) the holder of the certificate submits to an examination or test directed by CASA, or authorises the disclosure of information to CASA; and

© the examination, test or information shows that:

(i) the holder meets the relevant medical standard; and

(ii) the continued holding of the certificate by the holder will not adversely affect the safety of air navigation;

CASA must:

(d) end the suspension; and

(e) tell the holder in writing that the suspension has ended.

If the delegate’s letter is taken at face value, the outcome is that the delegate is simply going to refuse to change his mind during the 12 month period. I can only continue to assume the delegate meant what he said, because he steadfastly refuses to provide written confirmation that he will make assessments of evidence I submit and potentially form a different view during the 12 month period. 

Why wouldn’t I go to the Federal Court and get this stuff tested, when my ‘day job’ is administrative law litigation and I’m am able to afford it? Because there is no practical point. If I’m correct, all that will happen is that CASA will be directed to assess during the 12 month period. I already know what CASA’s assessment will be - there is little-to-no chance that Avmed could approach the assessment in an objective, unbiased way.

Where does the 1 year come from? I’m guessing it’s from the graph in the Ambekar study that’s selectively quoted in the selected ‘Relevant Medical Literature’ annexed to the delegate’s statement to the AAT. 

Let’s assume the material gathered by the delegate is a complete compendium of relevant studies. (A patently invalid assumption.). Let us also assume that no findings of any study have ever been subsequently proved wrong or inaccurate. (Another patently invalid assumption. My favourite study is “Why Most Published Research Findings Are False” by John P. A. Ioannidis.)

Even given those assumptions, Avmed mixes up the different probabilities described in the Ambekar study. There are the probabilities of when a recurrence of a previously treated fistula will occur - usually during the year following the treatment. But those are not the probabilities of it occurring. 

As I’ve said earlier, if Avmed walked the talk, it would be assessing the probabilities of recurrence. It would also be assessing the probabilities of the recurrence causing sudden incapacitation. If Avmed understood how the relevant probabilities work, it would know that the first times the second equals a very remote probability. 

In my case, I’ve already had a high quality dynamic CT scan over 2 months post the treatment, which is already past the 80% point on the Ambekar graph, confirming the ongoing effectiveness of the treatment. But given Avmed’s current position, Avmed would view the images from that scan like a dog watching television.

MTF...P2