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November 17, 2017

How Should An Employer Handle Employee Use Of A Private Aircraft?

What happens when one of your employees, who also happens to be a pilot, comes to you and says that he or she wants to fly an aircraft that is not owned or leased by you, the employer, for the purposes of your business? And, by the way, the employee also says he or she would like to be reimbursed for use of the aircraft.

It certainly can be beneficial to have an employee yo use private aviation rather than driving or flying with the airlines. But how should you, the employer, deal with the employee's request? Well, in light of your potential liability exposure for these types of operations by your employee, you need to carefully evaluate whether you want to agree to your employee's request.

If this is the type of request you are willing to grant, you should establish a policy for how these situations will be handled. This means you will need to evaluate and consider a variety of issues and factors that may be addressed in your policy.

For a discussion of the issues you may want to consider and include in your policy, please read my latest article on the topic: Drafting A Policy For Employee Use Of Private Aircraft.

Posted by Greg

November 10, 2017

What Does The Word "Current" Mean In The Context Of Aircraft Maintenance?

Unfortunately, the word "current" does not necessarily mean the same thing in each of the regulations in which it is used. Which makes some sense, since different regulations address different issues and situations. So, let’s take a look at a few maintenance regulations to see what the FAA means when it references "current" in each.

14 C.F.R. § 43.13(a)

In the context of Section 43.13(a), "current" means what the dictionary says it does, i.e., "belonging to the present time." So, current refers to the latest version of the Manufacturer's Maintenance Manual or Instructions for Continued Airworthiness in effect at the point in time of use. It means "the latest" or "the most current version" of a Manufacturer's Maintenance Manual or Instructions for Continued Airworthiness ("ICA") for the aircraft or its components.

14 C.F.R. § 91.409(f)(3)

Section 91.409(f)(3) provides an aircraft owner or operator with the option of selecting "a current inspection program recommended by the manufacturer" for the aircraft. If an inspection program is selected that is "current" at that moment in time, then the selected program would be acceptable to the FAA for future inspections of the aircraft unless some part of the selected program was later deemed unacceptable because of changes required by an Airworthiness Directive ("AD") or some other FAA rule.

It is also important to distinguish between "selection of an inspection program" for current and future inspections of an aircraft, and "maintenance to be performed on the aircraft using a maintenance manual." If a program is selected (making it mandatory for subsequent inspections) and the manufacturer later revises the program, the originally selected program would no longer be the manufacturer's "current" inspection program as of that later date, but it would still be an acceptable inspection program to use because it was current at the time the aircraft owner or operator selected it for use with the aircraft.

As a result, a manufacturer may issue changes to its recommended maintenance and inspection programs, but those changes do not unilaterally have future effect on aircraft owners and operators. However, an aircraft owner or operator could voluntarily choose to adopt those changes. Or the aircraft owner or operator could simply exercise Section 43.13(a)’s option of using "other methods, techniques, and practices acceptable to the Administrator" rather than those of the manufacturer.

However, in the context of performing maintenance using a Manufacturer’s Maintenance Manual, which is different than simply selecting an inspection program, an earlier version of a manual is no longer "current." But that doesn't mean that version of the manual may no longer be used. Depending on the circumstances, it may be acceptable for use by the aircraft owner or operator. In fact, a repair station may use a "prior" version of a Manufacturer's Maintenance Manual that was applicable to the model of aircraft that was being maintained, unless the FAA shows that the prior version has somehow become unacceptable.

14 C.F.R. § 145.109(d)

Section 145.109(d) requires a repair station to maintain certain specified documents and data including ICAs, ADs, maintenance manuals, overhaul manuals, and service bulletins. These items must also be "current" and accessible when the repair stations performs its work on an applicable aircraft. In the context of this regulation, a repair station would have to keep versions of the listed documents and data "up-to-date." This requirement exists even though Section 43.13(a) permits the use of a prior version of the document or data when performing maintenance, so long as the portion being used is still acceptable to the FAA.

As you can see, it is important to understand the context in which the FAA is using the word "current" in order to know what it means in each regulation. Understanding the differences will ensure that you are able to comply with the applicable regulations.

For more information on this topic, you can read my article Complying With A Manufacturer's "Current" Maintenance Instructions and also a recent Legal Interpretation issued by the FAA. And, of course, if you have additional questions, please do not hesitate to contact me directly.

Posted by Greg

November 03, 2017

What Do You Do When The FAA Denies Your Medical Application Because Your Physician Made The Wrong Diagnosis?

I was recently asked this question by an airman in this very difficult situation. When the airman was younger, the airman was diagnosed as having bipolar disorder. More recently the airman was evaluated by a new doctor who told the airman that, in the doctor’s opinion, the previous diagnosis was wrong and the airman did not, in fact, have bipolar disorder.

Based upon the current doctor’s opinion, the airman applied for a medical certificate. However, despite submitting all of the airman’s medical records, including the earlier bipolar diagnosis as well as the current doctor’s opinion and evaluation, the FAA denied the airman’s application.

So, what are the airman’s options? Well, an airman may appeal the FAA's denial of a medical certificate by filing a petition with the NTSB requesting a hearing before an administrative law judge ("ALJ"). But an airman may only appeal the denial of an unrestricted medical certificate. Since the decision to grant a special issuance is at the discretion of the FAA, the NTSB will not entertain an appeal of the denial of a special issuance.

A hearing is then held at which both the airman and the FAA present evidence through documents and testimony from doctors, medical experts, the FAA and the airman. Oftentimes the airman's treating physician(s), who usually don't have aviation medicine training or experience, will testify that the symptoms and/or condition do not pose a threat to aviation safety and that the airman should be able to fly safely. However, when this type of opinion is presented at the hearing in contradiction to the FAA's expert witnesses, the Board will usually give greater weight to the FAA's expert witnesses based upon the Board’s perception that they have "superior" qualifications in aviation medical standards.

Also, depending upon the condition, an actual diagnosis of a disqualifying medical condition may not be required for the FAA to deny a medical application. Simply presenting with the disqualifying symptoms or condition, or having experienced the symptoms or condition in the past, regardless of whether the airman currently has the symptoms or condition, may be sufficient justification for the FAA to deny the medical certificate.

In order for the ALJ to reverse the FAA's denial, the airman must prove by substantial, reliable and probative evidence that the airman is qualified for the medical certificate for which he or she applied, without limitations. In light of the NTSB's deference to the FAA's medical experts, this can be a very difficult burden to meet. Additionally, an appeal is expensive: Expert medical testimony and attorney fees required for the appeal process can be quite costly.

In this airman's situation, bipolar disorder is a disqualifying condition that prevents the FAA from issuing an unrestricted medical certificate. While the FAA may consider the airman for a special issuance, that decision is solely up to the FAA and may not be appealed. So, the airman would have to fight the FAA's determination that the airman has bipolar disorder.

In order to have the FAA’s denial reversed, the airman has to convince the ALJ. This means the airman would need to have the current doctor testify not only that the airman does not suffer from bipolar disorder, but also that the airman’s current condition, to extent the airman has other disclosed medical conditions, still meets the standards for issuance of an unrestricted medical certificate. It may also be beneficial to have an independent doctor evaluate the airman and provide an opinion that athe airman does not have bipolar disorder.

Additionally, the current doctor would need to explain why the earlier bipolar diagnosis was incorrect. Depending upon the circumstances, this can be a very tough battle for the airman to win.

Unfortunately, at a time when more and more doctors are “diagnosing” kids with ADD, ADHD and other such conditions, this situation is becoming more and more common. And as we have seen, a misdiagnosis as a youth may come back to haunt an adult who wants to become a pilot and needs a medical certificate.

If you find yourself in this situation or have a medical condition that may disqualify you from obtaining a medical certificate, get help BEFORE you apply for a medical certificate. 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 being able to earn your wings and/or successfully obtaining a medical certificate if necessary.

Posted by Greg

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