Two Recent Developments In Medical Waiver Application Proceedings
For a number of reasons, it is difficult to generalize about the likelihood for success in applying for medical waivers. First, because the over 200 new medical standards of review (for various medical conditions) vary so much, success has tended to be very much symptom-dependent. As a practical matter, that has meant that some categories of medical conditions have seen successful waiver applications, while others have not. Secondly, the National Maritime Center (“NMC”), the agency that reviews waiver requests in the first instance, sometimes cites to “standards” or to “policies” not articulated in NVIC 04-08 and, in doing so, frequently neglects to identify the source of such “standards” or “policies”. We will begin in this edition by examining two recent successful challenges to medical waiver denials that ended up in favor of the mariner. In a future edition we will examine a line of difficult cases in which denials have been upheld at several appellate levels.
(1) Coast Guard Commandant Overturns an NMC Denial and Grants Mariner a Medical Waiver
The office of the Coast Guard Commandant recently overturned the denial by the National Maritime Center (“NMC”) of a waiver request from a mariner with a condition of seizure disorder. In 2004-5, the Mariner, a licensed Chief Engineer, began to experience “auras” – usually described as a brief condition of ongoing consciousness, but without an ability to speak or react. In this case, the mariner was driving his car, and suddenly felt, for about 5-10 seconds, that things "paused" and that he was having a sense of “déjà vu” accompanied by a chilling sensation. The mariner was placed on medication (300/400mg Dilantin alternating daily), following which he continued to experience slightly less severe episodes once or twice a month. In response, his treating neurologist increased the Dilantin dosage slightly, and the auras then stopped completely. During all of his episodes, the mariner never lost consciousness and never suffered an actual debilitating seizure.
When renewing his license in 2008, and after disclosing the aura/seizure episodes, the mariner applied for and was granted a medical waiver, appended with certain annual examination and reporting requirements. But then, when the mariner applied again for the renewal of his license in 2011, the NMC denied him a medical waiver request based on his history of seizure disorder starting in 2005, and also upon a “new NMC requirement” for 8 years or seizure-free condition. It is unknown, and it was unstated in the NMC denial letter, where exactly NMC’s 8-year requirement came from – it is in any event not set forth in medical condition 169 in NVIC 04-08 (history of seizure disorder). The mariner appealed the waiver denial decision, first by a request for reconsideration to NMC, and then upon denial there, by appeal directed to the Commandant.
In a letter dated September6, 2012, the Commandant reviewed the history of the mariner’s conditions, and then took special note of the fact that, with the same history and the same showing (namely, the opinion of his treating neurologist that the mariner could return to work without limitations) this mariner had been granted a waiver in 2009 and furthermore, the mariner’s condition had not changed since that date. The Commandant then proceeded to tell the mariner: “you were previously granted a waiver for the same condition in June 2009, thus establishing extenuating circumstances that warrant special consideration for a medical waiver” (emphasis added). The letter then proceeded to reverse the NMC, grant the requested waiver and impose some nominal additional reporting requirements upon the mariner. This Commandant letter decision is significant for 2 reasons: (1) it discussed, without upholding, the NMC’s attempt to impose a standard (8 years of seizure-free conduct) not articulated in NVIC 04-08; and (2) it based a reversal of NMC’s waiver denial upon the “extenuating circumstances” of a waiver grant prior to the institution of NVIC 04-08. As there may still conceivably be instances in which mariners were granted a waiver prior to NVIC 04-08, and then denied one after its effective date (September 2008), this decision could be argued as precedent for making a case that consideration should be given to the “extenuating circumstance” that an earlier waiver was granted prior to NVIC 04-08 and that no conditions have changed since the date of that earlier waiver grant.
(2) NMC Reverses Itself and Issues Medical Waiver For Use of Ritalin as Treatment for MS Fatigue Disorder
The mariner, an applicant for an original license, identified Ritalin as a current medication, and “brain or nerve disease” as a medical condition on his CG 719K (Medical Evaluation Report), accompanying his application. An accompanying medical report from a senior neurologist at Harvard Medical School stated that the applicant had, about 20 years previously, been told he had Multiple Sclerosis (MS), but seemed now to have been in complete remission for over 10 years under treatment with, among other drugs, Ritalin. That drug had been particularly helpful in treating the mariner’s spells of fatigue. The neurologist stated in his letter that the applicant was in sound normal physical and mental condition, that he could stand 4-hour watches on his feet, and that he met the physical agility requirements set forth in NVIC 04-08. The applicant was diagnosed with “MS fatigue disorder” in full remission with Ritalin and no side effects.
The Coast Guard NMC, through a Dr. T. R. Stone, responded with a denial letter, requesting that the mariner have his neurologist “submit an explanation on how (his) condition is sufficiently controlled with documentation that (he) no longer requires the use of stimulant medications.” There was no citation to any authority for this denial, so the mariner wisely called NMC. They would not put him through to Dr. Stone, but he did reach the “Medical Help Desk” which told him, rather unhelpfully, that according to NVIC 04-08, the use of a stimulant, regardless of how low a dosage, is a per se basis for denial of an application or a medical waiver.
The mariner then referred to NVIC 04-08 (Encl. 4, p. 2 – under “Diet Aids and Stimulants) and found that, in fact, it said no such thing, but rather stated that use of the drugs would require a waiver if used within 48 hours of serving under a credential. With this information, the mariner called NMC back and persisted until this time he was put through to Dr. Laura Gillis. He told her: (a) NVIC 04-08 does not provide, as he was told, for a per se denial but rather seems to contemplate a waiver; and (b) the supplementary medical information NMC requested from his neurologist had, in fact, all been provided in the initial letter from his neurologist that he had sent in with his application. Later that day, the mariner received an email from Dr. Gillis stating that NMC had performed a “quality assurance review” of his file and, “after careful consideration of all the information”, NMC had determined that he had presented enough information to “warrant overturning our previous decision” and that the processing of the application would continue.
The lesson from this episode is that mariners should not accept an initial denial decision from NMC without seeking out a thorough explanation of the basis for NMC’s denial, and testing it against NVIC 04-08, or whatever other authority NMC might cite.