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One Disqualifying Condition - All It Takes To Be Denied Medical Certificate

by Greg Reigel 1. February 2010 00:00
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A recent National Transportation Safety Board ("NTSB") opinion highlights the need for an airman involved in a medical dispute with the FAA to "pick your battles carefully" based upon the facts and proper procedure. The case, Petition of Cooper, involved an airman's appeal of the FAA's denial of his application for a first class medical certificate. The airman applied for a first class medical certificate and, based upon the airman's "history and clinical diagnosis of diabetes mellitus requiring oral hypoglycemic medication for control and bipolar disorder," the FAA denied the airman's application. In support of its denial, the FAA cited FARs 67.113(a)(b)(c), 67.213(a)(b)(c), and 67.313(a)(b)(c) in support of its denial (all three regulations identify diabetes mellitus as a disqualifying condition, although FAR 67.113(a)(b)(c) is the regulation specifically applicable to a first class medical certificate). However, the FAA did not cite FARs 67.107, 67.207, nor 67.307 even though those regulations identify bipolar disorder as a disqualifying condition.

The airman appealed the FAA's denial of his medical application by submitting a petition to the NTSB asking the Board to order the FAA to issue him a medical certificate. However, the NTSB administrative law judge ("ALJ") dismissed the airman's petition and terminated the case on his own accord, without holding a hearing and without any request from the FAA for such a dismissal. The ALJ concluded that a hearing "would serve no useful purpose" because the Board did not have the discretion to reverse the FAA's denial. The ALJ also rejected the airman's argument that he did not have bipolar disorder as moot because the airman had admitted to having diabetes mellitus, a specifically disqualifying condition. Of course the airman then appealed the dismissal to the full Board.

In his appeal to the full Board, the airman argued that the ALJ made a mistake when he determined that the FAA's denial of his application based on bipolar disorder was moot, in spite of the airman's concurrent diagnosis of, and treatment for, diabetes mellitus. The airman contended that whether he had bipolar disorder was a factual issue that the ALJ must resolve after a hearing, and that bipolar disorder is the only condition that might disqualify him since he would otherwise meet the criteria for a special issuance medical certificate under FAR 67.401 in spite of his diabetes mellitus.

The Board agreed with the ALJ. It determined that the diabetes mellitus was a specifically disqualifying condition and that condition alone, regardless of the alleged bipolar disorder, justified the FAA's denial of the airman's application for a first class medical certificate. The Board noted that whether the airman qualified for a special issuance in spite of the diabetes mellitus was not an issue before it. Finally, the Board concluded that although the airman had presented evidence that potentially refuted the allegation that he suffered from bipolar disorder, the issue was moot in light of the diabetes mellitus.

The Board's decision is not a surprise. When an airman is denied a medical based upon an admitted disqualifying condition, an appeal will, in almost all cases, be unsuccessful. In that situation, the airman has the burden of proving that the airman is qualified to hold a medical certificate. That's a tough thing to accomplish if you have already admitted that you have a disqualifying condition.

If an airman is denied based upon a disqualifying condition, but the airman believes he or she is otherwise qualified, the airman should request that the FAA grant a special issuance medical certificate. A special issuance is a medical certificate that has limitations and/or conditions with which the airman must comply in order for the certificate to be valid. The conditions/limitations will often include regular testing, test results within acceptable ranges, no changes in medication etc.

If the FAA refuses to grant an airman's request for a special issuance, the airman may appeal that denial to the NTSB. However, since the Board defers to the FAA's discretion in denying a special issuance, the only way to be successful is to show that the FAA's refusal is arbitrary or capricious. For example, if a denied airman can prove that the FAA has granted a special issuance in circumstances that are very similar to or identical with those of the airman, then an ALJ may be convinced that the FAA's denial in the airman's case is arbitrary or capricious. As a practical matter, however, this can be a difficult task.

Fortunately for the airman in this case, he can still apply to the FAA for a special issuance and, if he meets the criteria, the FAA may grant a special issuance in spite of his diabetes mellitus. (This is what he should have done before appealing the initial denial). However, the airman may, unfortunately, still have to fight the FAA's determination that he has bipolar disorder. But if the airman is able to present evidence and facts that convince an ALJ that he does not suffer from bipolar disorder, the airman may ultimately be able to receive a medical certificate.

If you have a medical condition that may disqualify you from obtaining a medical certificate, get help. Talk to an aviation attorney or the medical certification professionals at AOPA or NBAA. By taking a pro-active approach and getting help, you will be able to "pick your battles" wisely to maximize your chances of successfully obtaining a medical certificate.

For more information regarding aviation law, safety and security, e-mail Greg at greigel@aerolegalservices.com or visit his website at www.aerolegalservices.com.

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Greg Reigel


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