Coast Guard Modifies Medical Waivers For Mariners With ICD’s

By Bill Hewig

Mariners with anti-tachycardia devices or implantable cardioverter defibrillators (“ICD’s”) have, since the September 15, 2008 promulgation of NVIC 04-08, had to face the near-impossible task of getting the Coast Guard NMC to issue them a medical waiver. Enclosure (3) of that NVIC, titled “Medical Conditions Subject to Further Review” stated, at condition 81, that having an ICD was “generally not waiverable”. The recent unhappy but prophetic experiences of two mariners with ICDs, one of whom had received previous waivers for over 20 years prior to issuance of the 2008 NVIC, have been the frequent topic of discussions at several recent MOPS annual luncheons, including in remarks made most recently by Randy O’Neill at this year’s luncheon on May 3.

But now comes news that the Coast Guard has modified the condition 81 standards for medical review considerably, such that if the mariner’s condition has recently improved within the limitations of certain medical criteria; or if the mariner’s condition has been longstanding with no deterioration, again subject to the application of certain medical criteria, the mariner now may be able to qualify for a waiver. Some new criteria, not previously considered by the Coast Guard, (such as stress test results) may now be submitted as evidence in favor of a waiver. The standards still appear to be stringent, but many of the factors which were argued by the two mariners discussed on May 3 as mitigating factors, and which were at the times of their hearings not accepted as such by the Coast Guard, now appear to be recognized. Unfortunately, the Commandant has held that regulation changes are not to be applied retroactively unless expressly so stated in the regulation itself, APP. DEC. 2646, at 5 (McDonald)(2004), so the changes will likely not help the two mariners noted above. The new ICD standards, published as Enclosure (7) to NVIC, can be accessed at www.uscg.mil/nmc