In August, the Washington Post (WaPo) broke a story that could be viewed from various perspectives. Some might say it is about misrepresentation, or perhaps mental health, or disability, among others. The headline was eye-catching:
If you ever fly anywhere, that headline might draw your attention. The FAA is alleging that these pilots may have "falsified their medical records to conceal that they were receiving benefits" from the Veteran's Administration; "Benefits for mental disorders or other serious conditions that could make them unfit to fly."
The FAA requires pilots to have an examination every six months to five years depending on the type of flying, age, and other variables. That is reasonably uncommon. It is likely there are other professions that have similar requirements, but seemingly not the majority of occupations. When is the last time your employer sent you for an examination? Maybe periodic examinations would be a good idea for more of us?
Mental health may be very important in a variety of occupations. In piloting, there have been reports of crashes involving students and pilots with alleged emotional challenges. There have been studies in response. A surprising 4.1% of pilot respondents in one survey "reported having suicidal thoughts within the past two weeks," and there were elevated volumes of respondents meeting the "depression threshold."
This post could be about pilots with emotional conditions.
The WaPo story recounts that some active pilots may be "receiving benefits for mental health disorders." Those under scrutiny are "veterans" who are "collecting benefits for disabilities." The investigation was not so inspired. The FAA merely cross-referenced its database with the Veterans Affairs database. The data being studied has perhaps been accessible for years and merely ignored or overlooked. Why don't government databases talk to each other?
The FAA is looking into whether pilots "might have submitted incorrect or false information as part of their medical applications.” The good news is that "about half" of that eye-catching 5,000 has been cleared. The bad news is that 60 have been "ordered" to "cease flying on an emergency basis" while the investigation continues. These are said to potentially present "a clear danger to aviation safety.” While 60 may not seem like much, perhaps disaster could arise from a single troubled pilot?
How can there be any in this group, what with the rigor of periodic medical examinations? The story recounts that such exams "often are cursory," and largely dependent "on aviators to self-report conditions that can otherwise be difficult to detect." In other words, the examinations have been or become lackluster perhaps, formalities, a "box" to check. I have had a few FAA physicals, and cannot say I found them rigorous in any manner.
The WaPo concludes there are allegations that "Many veterans minimize their ailments to the FAA so they can keep flying but exaggerate them to VA to maximize their disability payments." Some medical examiners are quoted as describing the "maximizing" to the VA as "almost stolen valor.” This is a serious allegation of misrepresentation.
Thus, there are potentials for FAA action regarding licensure. And there are potentials for VA action regarding the obtention of benefits.
This post could be about misrepresentation.
This post could be about "stolen valor."
The medical conditions that are disqualifying for pilots are listed in the story and include various physical conditions. I had a relative who reportedly managed to serve in World War II by having a coworker provide him with urine samples to prevent the discovery of a diabetic condition. Diabetes is one of those maladies that would disqualify a pilot. The point is that such instances of subterfuge are perhaps not so novel?
Yes, this blog is generally about workers' compensation. Statler and Waldorf like to remind me of that. Workers' compensation is inexorably tied to safety. Workers' compensation is largely about benefits. Workers' compensation may be as dependent as VA benefits upon truthful reporting of symptoms, complaints, and treatment efficacy. Workers' compensation may be challenged with non-disclosure and even misrepresentation.
This post could be about workers' compensation
In 2019, The Florida Bar became interested in "destigmatizing" mental health issues. The Florida Bar News proclaimed a proposal to change the Bar rules regarding mental issues. That story reports there was then a lawsuit alleging discrimination against those bar applicants with a history of mental health or substance abuse.
The suit reportedly concluded by settlement with the conclusion that the Florida Board of Bar Examiners "had a reasonable concern" about such history. But, the practice that requiring bar applicants to pay for independent evaluations of mental health would cease. The Bar would contribute to the cost of such examinations in the interest of treating everyone fairly. The cost of investigating someone's status shifted thus from that someone to the state, at least in part. That was approved later in 2019.
The American Bar Association notes that some states (21) make no inquiry into mental health as regards licensing to practice law. Nonetheless, CNN reports that some law students forego mental health treatment because they fear those future questions or inquiries. One student is quoted as concluding that mental health care was not "worth the risk to his dream." Thus, a double-edged sword. People foregoing care to avoid notice may lead to poor clinical and life outcomes. People obtaining care may lead to challenges or at least expense in bar admission.
Is this any different than the pilots? Do pilots risk losing their VA benefits for disability if they admit ability? Should they? Should disability be limited to those who are disabled? Should those who are disabled by emotional issues be flying airplanes full of people around cities full of people? Should FAA medical examinations be making inquiries as regards emotional complaints, impairments, or disabilities? If such inquiry was pursued, would pilots forego and deny it in order to keep flying?
Is there similar danger to the public from lawyers with such a history? Is there a "reasonable concern" that justifies questioning such history? Are the majority of states appropriately inquiring into such emotional history, or are the 21 minority-view states appropriately eschewing such inquiry? Do we want the inquiry, recognizing it may lead to deferred or avoided treatment, or do we want to encourage diagnosis or treatment? Is there any evidence as to how many would seek treatment if no stigma were attached?
This post could be about emotional issues broadly.
This post could be about perceptions of emotional issues.
According to some, Lawyers are eighth on the list of top ten occupations for suicide risk. Pilots are not on that list. There are those who perceive lawyers as prevalent among those suffering with substance abuse issues. That list does not mention pilots. It is easy to see how a pilot takes a person's life in her or his hands with each flight. Is it really any different with a lawyer?
You might view the two as utterly incongruent. Lawyers responsible for people's lives like pilots? Some might say "absurd." The second appellate brief I ever participated in drafting involved an ineffective assistance of counsel allegation. The lawyer had been "designated" for an indigent and paid almost nothing. The transcript was rife with instances like "please wake up Mr. _________" and "are you with us this morning Mr. _________."
That lawyer was, we found out in the course of the appeal, suffering terminal cancer and using notable quantities of opioids. There were missed evidentiary objections, arguably incoherent arguments and objections, and essentially ineffective assistance. That lawyer was, in my humble opinion, not competent to represent anyone. His client was found guilty and sentenced to death. While it may not be so clear in every case, legal representation may indeed be life and death.
There is much to consider. The challenges of mental health in our society are front and center. How do we deal with those who are suffering? How do we deal with those who are doing so in silence to avoid treatment and its professional implications? How do we deal with those who are treating but are also hiding their disability from their employer or others? What are the appropriate responses in regulation, licensing, and beyond?
Some will question if these are all the same. Horace Middlemier* will undoubtedly call me and insist that they are not. His argument is likely to be nuanced and logical. He is likely to see distinction in the immediacy of potential harm. I can almost hear him advocating the fairness angle as regards student's fear of gaining help. But, possibly, he will suggest that emotionally impaired lawyers are a recipe for trouble. The discussion will be intriguing without a doubt.
*Ed. Note Horace is a fictional compilation and literary device. There is no Horace known. Any resemblance to any real person, living or dead, is purely coincidental and unintended.
