UNITED STATES OF AMERICA
 

U.S. DEPARTMENT OF HOMELAND SECURITY
 

UNITED STATES COAST GUARD
 

UNITED STATES COAST GUARD
 

Complainant
 

vs.
 

KIRK C. PLENDER,
 

Respondent
 

Docket Number 2011-0545
 

Enforcement Activity No. 4193177
 

DECISION AND ORDER 

Issued: September 17, 2012 

By Administrative Law Judge: Honorable Walter J. Brudzinski 

Appearances: 

For Complainant
 

Mr. Gary F. Ball
 

USCG Suspension & Revocation National Center ofExpertise
 

100 Forbes Drive
 

Martinsburg, WV 25404
 

For Respondent
 

WILLIAM HEWIG, III
 

Kopelman and Paige, P.C.
 

101 Arch Street, 12th Floor
 

Boston, MA 02110-1109
 
SUMMARY 

Respondent Kirk C. Plender had a severe heart attack requiring placement of an 

Implantable Cardioverter Defibrillator (lCD) in his chest. As a result, the Coast Guard's 

National Maritime Center (NMC) determined that Mr. Plender's underlying condition with 

associated risk rendered him not medically qualified for his Merchant Mariner duties. The NMC 

denied Mr. Plender's request for waiver and reconsideration. The Commandant denied his 

appeal. Meanwhile, Mr. Plender returned to work as a ChiefMate for APL Maritime. 

The Coast Guard subsequently initiated this administrative action to revoke Mr. Plender's 

Merchant Mariner's Credentials for incompetence due to physical disability.! After an in-person 

hearing and review ofthe parties' post-hearing briefs, the undersigned finds the allegation of 

incompetence due to physical disability PROVED. Mr. Plender's medical conditions, including 

ischemic cardiomyopathy, reduced ejection fraction, and placement of an lCD, put him at a 

greater risk for sudden incapacitation or sudden death than the general population; therefore, all 

, 

validly issued credentials Respondent holds are REVOKED. 

STATEMENT OF THE CASE 

This case presents the intersection oftwo, separate administrative processes - the medical 

waiver and review process to determine if a mariner is medically qualified for Merchant Mariner 

duties; and, actions against a mariner's credentials for Incompetence due to physical disability. 

The former is a medical determination which, in this case, the Commandant has previously 

made. The latter is a legal determination which is the subject ofthis decision and order. 

1 Respondent holds Coast Guard issued licenses, an endorsement, and a document which are all now referred to as 

Merchant Mariner's Credential(s) (MMC) and will be referenced in this decision and order as credential(s) or MMC. 

See 46 C.F.R. § 1O.107(b). 

2 
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Medical Condition 

While on a ski trip in March 2009, Mr. Plender suffered a severe myocardial infarction 

(heart attack). Surgeons implanted a stent to restore blood flow but blood in the stent clotted 

causing it to occlude. This condition resulted in acute stent thrombosis requiring a second stent 

as well as an intra-aortic balloon pump so Mr. Plender could "continue to have blood circulation 

through the body." See Tr. at 30-1, 157-8; CG Ex. 01 at 11. 

Mr. Plender's severe myocardial infarction caused substantial damage to his heart. He 

has "abnormal wall motion on the front wall ofhis heart" and an ejection fraction from 20 to 25 

percent. See Tr. at 29-30; CG Ex. 01 at 11. "Ejection fraction" is the ability of a heart to pump 

blood to the body. See Tr. at 20-30. A normal ejection fraction is "greater than 55 percent." See 

Tr. at 30. Physicians also diagnosed Mr. Plender with mitral valve regurgitation "which means 

that his mitral valve is slightly abnormal and it's allowing a leak to occur." See Tr. at 32; CG 

Ex. 01 at 22. Moreover, physicians diagnosed Mr. Plender with "coronary artery disease to his 

native vessels or anatomy." rd. Two months after his heart attack, an echocardiogram showed 

Mr. Plender's left ventricle "severely impaired" because the "systolic function [is] severely 

reduced." See Tr. at 33-4; CG Ex. 01 at 28. (Brackets added). The left ventricle is the last 

chamber ofthe heart that oxygenated blood goes through before it gets pumped to the body. See 

Tr. at 33. With an ejection fraction ofonly 25 percent, Mr. Plender's heart was left with a 

severely reduced ability to pump oxygenated blood to his body. See Tr. at 33-4; CG Ex. 01 at 28 

and 31. 

In May 2009, Respondent's cardiologist recommended surgically placing an Implantable 

Cardioverter Defibrillator (lCD) in Mr. Plender's chest. See Tr. at 36, 160; CG Ex. 01 at 31. An 

rCD administers an electric shock to the heart in the event the heart develops an arrhythmia 

(irregular rhythm causing the heart to malfunction). See Tr. at 23-4. The rCD also has a "rare 

risk ofinappropriate shock" meaning there have been instances in which an rCD has 

3 
administered a shock without an underlying arrhythmia. See Tr. at 36-7; CG Ex. 01 at 31. 

Surgeons successfully implanted an ICD in Mr. Plender's upper left chest in June 2009. See Tr. 

at 161; CG Ex. 01 at 34. 

Medical Waiver and Review Process 

In October 2009, Mr. Plender returned to work as a Chief Mate for APL Maritime. See 

Tr. at 168-9; Resp. Ex. F. As a yearly requirement for his license, Mr. Plender submitted a 

completed Merchant Mariner Credential Medical Evaluation Report (CG-719K) dated January 1, 

2010 to the National Maritime Center (NMC) for review. See 46 C.F.R. § 10.215; CG Ex. 01. 

On the CG-719K form, Mr. Plender checked the following medical conditions: asthma, heart 

attack/myocardial infarction, heart surgery/stent/angioplasty, pacemaker/defibrillator, and "any 

other heart condition." ld. at 5. Based on that information, the NMC determined Mr. Plender's 

conditions required a medical waiver. See Tr. at 43-50. 

On March 22, 2010, the NMC determined Mr. Plender was not eligible for a medical 

waiver due to his heart conditions and ICD. See CG Ex. 02. The NMC found his conditions 

presented "unacceptable risks to maritime and public safety" due to potential incapacitation and 

death. ld. In May 2010, the NMC denied Mr. Plender's request for reconsideration noting that 

his underlying condition renders him not qualified even without the ICD. See Tr. at 51; CG Ex. 

03. On March 17,2011, the Commandant ofthe Coast Guard denied Mr. Plender's appeal. See 

CG Ex. 04 at 2. 

Appeal procedures from National Maritime Center (NMC) decisions under 46 C.F.R. § 

10.215 and final agency action by the Commandant are provided for at 46 C.F.R. § 1.03-40. The 

validity and sufficiency ofthe medical waiver and review process are outside the Administrative 

Law Judge's scope ofreview and authority. See 5 U.S.C. §§ 554 and 556; 46 U.S.C. §§ 7701­

7704; 46 C.F.R. § 5.19. The ALJ may, however, consider the underlying medical evidence used 

4 
in the waiver and review process, along with other evidence, to detennine whether an 

incompetence allegation under 46 U.S.C. § 7703(4) and 46 C.F.R. § 5.31 is proved. 

Action Against Respondent's Credentials 

On November 22,2011, the Coast Guard served its Complaint on Mr. Plender alleging 

Incompetence citing 46 U.S.C. § 7703(4) and 46 C.F.R. § 5.31 as authority. After the 

Respondent's timely Answer, the undersigned conducted a pre-hearing teleconference during 

which all agreed to a hearing date ofApril 24, 2012 in Boston, Massachusetts. 

In accordance with the Scheduling Order, the parties filed their witness and exhibit lists 

and the undersigned granted the Coast Guard's request for telephonic testimony. On April 12, 

2012, the Coast Guard requested a continuance pending the release ofAppeal Decision 2698 

(HOCKING) (2012).2 The undersigned Administrative Law Judge (ALJ) denied the request 

because it was unknown when the Vice Commandant would issue that decision and whether it 

would be dispositive ofthe instant case. 

The hearing took place as scheduled and conducted in accordance with the 

Administrative Procedure Act (APA), 5 U.S.C. §§ 551-559,46 C.F.R. pt. 5, and 33 C.F.R. pt. 20. 

Mr. Plender produced his credentials at the hearing's opening in accordance with 46 C.F.R. § 

5.521. The Coast Guard introduced six (6) exhibits and the telephonic testimony ofone witness, 

Dr. Laura Gillis, MD, MPH, Federal Maritime Surgeon, Chief, Medical Evaluations Division, 

U.S. Coast Guard National Maritime Center. Respondent testified on his own behalf and 

introduced six (6) exhibits.3 The parties filed post-hearing briefs containing proposed findings 

and conclusions in accordance with 33 C.F.R. § 20.710.4 This matter is now ripe for decision. 

2 The Vice Commandant signed Appeal Decision 2698 (HOCKING) (2012) on April 25, 2012. 

3 A detailed list of all exhibits is included with this Decision and Order as Attachment A. 

4 All proposed fmdings offact and conclusions oflaw are ruled upon and listed in Attachment B. 

5 
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BURDEN OF PROOF 

The Administrative Procedure Act, at 5 U.S.C. §§ 551-559, applies to Coast Guard 

Suspension and Revocation trial-type hearings before United States Administrative Law Judges 

(ALJs). See 46 U.S.C. § 7702(a). The APA authorizes sanctions if, upon consideration ofthe 

entire record as a whole, reliable, probative, and substantial evidence support the allegations. 

See 5 U.S.C. 556(d). "The term substantial evidence is synonymous with preponderance ofthe 

evidence as defined by the U.S. Supreme Court." Appeal Decision 2477 (TOMBARI) (1988); 

see also, Steadman v. SEC, 450 U.S. 91, 107 (1981). Under Coast Guard procedural rules and 

regulations, the burden is on the Coast Guard to prove the allegations by a preponderance of the 

evidence. See 33 C.F.R. §§ 20.701, 20.702(a). 

The burden of proving a fact by a preponderance of the evidence "simply requires the 

trier offact 'to believe that the existence of a fact is more probable than its nonexistence before 

[he] may find in favor of the party who has the burden to persuade [the judge] of the fact's 

existence.'" Concrete Pipe and Products of California, Inc. v. Construction Laborers Pension 

Trust for Southern California, 508 U.S. 602, 622 (1993) (citing, In re Winship, 397 U.S. 358, 

371-2 (1970) (Harlan J., concurring) (brackets in original)). In sum, the Coast Guard must prove 

by the preponderance of reliable, probative, and credible evidence that Respondent more likely 

than not committed the act as alleged. 

PRINCIPLES OF LAW 

"The purpose of suspension and revocation proceedings is to promote safety at sea." 

46 U.S.C. § 7701(a). "Licenses, certificates ofregistry, and merchant mariners' documents may 

be suspended or revoked for acts described in section 7703 of this title." 46 U.S.C. § 7701(b). 

"The administrative actions against a license, certificate, merchant mariner credential, 

endorsement or document are remedial and not penal in nature. These actions are intended to 

help maintain standards for competence and conduct essential to the promotion of safety at sea." 

6 
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46 C.F.R. § 5.5. Under 46 C.F.R. § 5.19(b), "[t]he Commandant has delegated to Administrative 

Law Judges the authority to admonish, suspend with or without probation or revoke a credential 

or endorsement issued to a person by the Coast Guard under any navigation or shipping law." 

Prior to August 9, 2004, 46 U.S.C. § 7703(1)(B) stated "[a] license, certificate ofregistry, 

or merchant mariner's document issued by the Secretary may be suspended or revoked if the 

holder - (1) when acting under the authority ofthat license, certificate, or document - (B) has 

committed an act ofincompetence, misconduct, or negligence."s On August 9, 2004, Congress 

amended 46 U.S.C. § 7703 by removing the term "incompetence" from section (1)(B) and 

placing it in a separate subsection - § 7703(4). In pertinent part, 46 U.S.C. § 7703 now reads "[a] 

license, certificate ofregistry, or merchant mariner's document issued by the Secretary may be 

suspended or revoked ifthe holder - - (4) has committed an act ofincompetence relating to the 

operation of a vessel." See Coast Guard and Maritime Transportation Act of2004, Pub. L. No. 

108-293, 118 Stat. 1028 (Aug. 9,2004). By enacting this change, Congress removed the 

requirement that the act ofincompetence must occur when the mariner is acting under the 

authority of his credentials; therefore, a mariner need only to be a credential holder and commit 

an act ofincompetence relating to the operation of a vessel. 

The term "act" and the phrase "relating to the operation of a vessel" are not defined in 

any relevant statute, regulation, or Commandant Decision on Appeal (CDOA). The term 

"incompetence," however, is defined at 46 C.F.R. § 5.31 as "the inability on the part of a person 

to perform required duties, whether due to professional deficiencies, physical disability, mental 

incapacity, or any combination thereof." As noted in Appeal Decision 2698 (HOCKING) 

5 Merchant Mariner's License, Merchant Mariner's Document, or Certificate ofRegistry is now referred to as 

Merchant Mariner's Credential (MMC). The terms License and Credential as well as Document and Credential are 

occasionally used interchangeably in this decision and order depending on the context. See 46 C.F.R. § 1O.107(b). 

7 
(2012), the regulation does not use the tenns "professional incompetence," "physical 

incompetence," and "mental incompetence." The regulation "refers only to 'Incompetence', 

describing it in tenns of 'professional deficiencies, physical disability, mental incapacity, or any 

combination thereof.'" HOCKING at 19. 

Reading the statute and regulation together reasonably leads the reader to conclude that 

when referring to "physical incompetence," one is referring to an act demonstrating the inability 

to perfonn required duties due to a physical disability. 6 A priori, "mental incompetence" is an 

act demonstrating an inability to perfonn required duties due to mental incapacity. By using the 

above reasoning, a reasonable definition of "professional incompetence" is an act demonstrating 

an inability to perfonn required duties due to professional deficiency.? 

SANCTION 

While 46 U.S.C. § 7703 provides "[a] license, certificate ofregistry, or merchant 

mariner's document issued by the Secretary may be suspended or revoked," the TABLE at 46 

C.F.R. § 5.569 entitled "Suggested Range of an Appropriate Order" provides "[t]he only proper 

order for a charge ofincompetence found proved is revocation." 

FINDINGS OF FACT 

The following Findings ofFact are based on a thorough and careful analysis of 

documentary evidence, testimony ofwitnesses, and the entire administrative record. 

Respondent's Credentials 

1. At all relevant times, Respondent has been the holder of a Coast Guard issued license 

as master of steam or motor vessels of any gross tons upon oceans and master's unlimited towing 

6 As used in this decision and order, the tenns "physical incompetence" and "incompetence due to physical 

disability" are synonymous. 

7 In Appeal Decision 2698 (HOCKING), the Vice Commandant stated "professional incompetence ... is 

novel and undefined ..." but provided no further guidance. 

8 
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vessels. See Tr. at 7-8, 149. 

2. At all relevant times, Respondent has also been the holder of a Merchant Mariner's 

Document and an endorsement for "radar observer unlimited." See Tr. at 7-8, 148-9. 

3. Respondent's credentials expire on October 2,2012. See Tr. at 7-8. 

Coast Guard's Medical Witness 

4. Dr. Laura Gillis is Chief, Medical Evaluations Division, U.S. Coast Guard National 

Maritime Center and a federal maritime surgeon. See Tr. at 18. 

5. Dr. Gillis is responsible for performing and overseeing all medical evaluations for 

fitness ofduty for Merchant Mariners throughout the United States. Id. 

6. Dr. Gillis is board certified in occupational medicine. See Tr. at 20. 

7. "Occupational medicine is the specialty ofmedicine that deals with how the work 

environment affects and influences a person's heath condition and how a person's health 

condition can affect how they perform in the work environment." See Tr. at 19-20. 

Respondent's Medical Condition 

8. While on a ski trip in March 2009, Respondent suffered a severe myocardial 

infarction (heart attack) and he "... no warning, just passed out." See Tr. at 22, 157; CG Ex. 01 

at 16. 

9. Respondent received medical treatment at Maine Medical which included placement 

of a stent to restore blood flow through his heart. See Tr. at 31, 158; CG Ex. 01. 

10. Blood in the stent clotted causing it to occlude resulting in acute stent thrombosis 

requiring a second stent as well as an intra-aortic balloon pump to restore and continue blood 

circulation through the body. See Tr. at 30-1, 157-8; CG Ex. 01 at 11. 

11. As a result ofhis heart attack, Respondent's heart has the following additional 

conditions: 1) abnormal wall motion on the front wall ofhis heart; 2) a severely reduced ejection 

fraction of20 to 25 percent; 3) coronary artery disease in his native vessels; and, 4) mitral valve 

9 
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regurgitation. See Tr. at 23, 29-30, 32-5, 41; CO Ex. 01 at 11, 22 and 28. 

12. Ejection fraction is the ability of a heart to pump oxygenated blood out to the rest 

ofthe body; a normal ejection fraction is 55 percent or greater. See Tr. at 22-4. 

13. A significantly reduced ejection fraction places a person at risk for arrhythmia to 

develop. See Tr. at 23-4. 

14. Arrhythmia is an irregular rhythm in the heart causing the heart's pumping 

mechanism to malfunction, preventing oxygenated blood from flowing to the rest ofthe body's 

organs and can be lethal. See Tr. at 24. 

15. Two months after Mr. Plender's heart attack, he had an echocardiogram which 

revealed a severely impaired left ventricle; a severely reduced systolic function; and, an ejection 

fraction ofonly 25%. See Tr. at 33-4; CO Ex. 01 at 28 and 31. 

16. The left ventricle is the heart's last chamber through which oxygenated blood 

passes before it gets pumped to the body. ld. 

17. Mr. Plender's impaired left ventricle severely reduces his heart's ability to pump 

blood to the rest ofhis body. Id. 

18. Due to his coronary artery disease with ischemic cardiomyopathy and his risk for 

possible lethal arrhythmia, Mr. Plender underwent surgical placement of an Implanted 

Cardioverter Defibrillator (lCD) in his left upper chest. See Tr. at 22-3, 36, 160-1; CO Ex. 01 at 

31,34 and 38. 

19. An ICD is a medical device implanted in a patient's chest to correct potentially 

lethal heart arrhythmias by delivering a shock to the heart which can also cause incapacitation. 

See Tr. at 23-4,36-7, 132-3; CO Ex. 01 at 31. 

20. There have been rare instances when an ICD administered a shock in the absence 

of an underlying arrhythmia. See Tr. at 36-7; CO Ex. 01 at 31. 

10 
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Review by the National Maritime Center and Commandant's Final Action 

21. In the fall of2009, Respondent resumed working under the authority of his MMC 

as a Chief Mate with APL Maritime and has continued to work in that capacity to the present. 

See Tr. at 168-9. 

22. Merchant Mariner deck officers such as Mr. Plender are required to submit annual 

medical exams "to ensure that there are no conditions that pose an inordinate risk of sudden 

incapacitation or debilitating complication" among other things. See 46 c.P.R. §§ 1O.215(d) and 

(t). 

23. The annual medical exams are documented in a Merchant Mariner Credential 

Medical Evaluation Report, or CG-719K. See Tr. at 24-5; CG Ex. 01. 

24. Respondent submitted his CG-719K to the National Maritime Center on January 1, 

2010 checking the following medical conditions listed on the form: asthma, heart 

attack/myocardial infarction, heart surgery/stent/angioplasty, pacemaker or defibrillator, and 

"any other heart condition." See CG Ex. 01 at 5. 

25. In March 2010, Chief, Medical Evaluations Division, U.S. Coast Guard National 

Maritime Center denied Mr. Plender's request for a medical waiver finding he was not medically 

qualified for his Merchant Mariner duties due to severe cardiomyopathy requiring the placement 

of an lCD. See Tr. at 48-50; CG Ex. 02. 

26. Dr. Laura Gillis did not conduct the initial review ofRespondent's request for a 

medical waiver but agrees with the result. See Tr. at 50. 

27. In May 2010, Commanding Officer, National Maritime Center Coast Guard denied 

Mr. Plender's request for reconsideration concluding "the underlying cardiomyopathy with the 

associated risk for ventricular dyrhythmias is disqualifying even without the lCD. As such, we 

cannot approve a medical waiver for such a condition." See CG Ex. 03. 

28. The Commandant of the Coast Guard denied Mr. Plender's appeal following an 

11
 
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independent medical review concluding that due to his "dilated, ischemic cardiomyopathy with 

impaired left ventricular function and a severely reduced ejection fraction of 25%, Mr. Plender 

has an inordinate risk of sudden death and incapacitation due to a ventricular arrhythmia." See 

CG Ex. 04. 

29. The Commandant also decided "[a]ssessing Mr. Plender's physical capabilities to 

perform his duties as chief mate would not be applicable towards determining the risk factor 

associated with the condition ofhis heart." ld. 

Respondent's Higher Risk than that of the General Population 

30. Respondent's medical conditions, including ischemic cardiomyopathy, reduced 

ejection fraction, and placement of an lCD put Respondent at a higher risk for sudden 

incapacitation or sudden death than that ofthe general population. See Tr. at 36-9,43-54, 56-7, 

110-11, 123-4, 130-3, and 138-9. 

31. As the result ofRespondent's medical conditions and risk, Dr. Gillis opined he 

would not be medically qualified for any Coast Guard credential. See Tr. at 57-8. 

ANALYSIS 

Title 46 U.S.c. § 7703(4) requires the mariner to have committed an act of incompetence 

for his credential(s) to be revoked. See 46 C.P.R. § 5.569 TABLE. Applying 46 U.S.c. § 

7703(4) to 46 C.P.R. § 5.31, the act of incompetence can be any act demonstrating a mariner's 

inability to perform required duties "due to professional deficiencies, physical disability, mental 

incapacity, or any combination thereof." Title 46 U.S.c. § 7703(4) further provides that the act 

of incompetence must be "relating to the operation of a vessel." This analysis will discuss the 

act ofincompetence; the inability to perform required duties; and, how the act and inability to 

perform required duties are "relating to the operation of a vessel." This Analysis will also 

distinguish Appeal Decision 2698 (HOCKING) (2012), finding the act and inability to perform 

required duties "relating to the operation of a vessel" are due to physical disability. 

12 
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Act of Incompetence 

The Coast Guard alleges "[b]y serving onboard APL vessels in safety sensitive positions, 

as required by the COl, [Certificate of Inspection] while not medically fit for merchant mariner 

duties, the Respondent committed an act of incompetence described in Title 46 United States 

Code, Section 7703(4)." See Complaint at 2. As discussed below, the undersigned finds the act 

of incompetence occurred when Respondent suffered a severe heart attack. In this case, the 

difference between the pleading and the proof are not fatal. "[T]he purpose of a Complaint in 

these proceedings is to provide 'legal and factual bases under which the Coast Guard is 

proceeding.'" Appeal Decision 2676 (PARKER) (2008) (quoting Appeal Decision 2655 

(KILGORE) (2006)). "The thrust ofmodern pleading, especially in administrative proceedings, 

is toward fulfillment of a notice requirement." Appeal Decision 2326 (MCDERMOTT) (1983). 

There is no dispute Respondent suffered a heart attack; that he has been diagnosed with 

cardiac conditions and had an ICD surgically implanted; and, that the Coast Guard found him 

"not medically qualified." See CG Ex. 02. Further, the factual allegations were sufficient to 

place Respondent on notice that the Coast Guard was bringing a charge of incompetence against 

him pursuant to 46 U.S.C. § 7703(4) and 46 C.F.R. § 5.31. Moreover, he was on notice that the 

facts surrounding the charge pertained to the heart attack he suffered in 2009 and all subsequent 

events, up to and including the Coast Guard's 2011 decision he was not medically qualified for 

his Merchant Mariner duties. The act and subsequent events placed Respondent on notice ofthe 

"act of incompetence relating to the operation of a vessel." 

The term "act" is undefined in 46 U.S.C. § 7703(4) or 46 C.F.R. § 5.31. Black's Law 

Dictionary defines "act" as "1. [s]omething done or performed, esp. voluntarily; a deed. 2. [t]he 

process ofdoing or performing; an occurrence that results from a person's will being exerted on 

the external world ..." Black's Law Dictionary Third Pocket Edition, at 11-12. Applying this 

definition to an incompetence case is difficult because no one voluntarily does or performs a 

13 
heart attack, schizophrenia, or bi-po1ar; they simply happen. 

Prior to August 9, 2004, 46 U.S.c. § 7703(1) (B) read "... (1) when acting under the 

authority ofthat license, certificate, or document - (B) has committed an act ofincompetence, 

misconduct, or negligence." (Emphasis added). On August 9,2004, Congress amended 46 

U.S.C. § 7703 by removing the term "incompetence" from section (1)(B) and placing it in new 

subsection 7703(4). In pertinent part, 46 U.S.C. § 7703 now reads "[a] license, certificate of 

registry, or merchant mariner's document issued by the Secretary may be suspended or revoked 

ifthe holder - - (4) has committed an act ofincompetence relating to the operation of a vessel." 

(Emphasis added). Congress kept the language "committed an act" when it removed 

"incompetence" from subsection (1)(B) and placed it in subsection (4). The problem with the 

verb "committed" is that it connotes volition. Narrowly construing the phrase "committed an 

act" to mean only a mariner's volitional, intentional, or overt action is inconsistent with the basic 

facts and circumstances in an incompetence case. For the purpose of Coast Guard suspension 

and revocation proceedings involving incompetence, the "act" of incompetence encompasses an 

event or occurrence that happens to a mariner, similar to an unintentional act. As stated in 

Black's Law Dictionary, an "unintentional act" is "[a]n act not resulting from the actor's will 

toward what actually takes place." Black's Law Dictionary Third Pocket Edition, at 12. 

In Appeal Decision 2664 (SHEA) (2007), the mariner committed an act of 

incompetence when he experienced a manic episode ofbipolar disorder causing him to act 

erratically. In Appeal Decision 2547 (PICCIOLO) (1992), the mariner's act ofincompetence 

occurred when he suffered episodes ofuncontrolled diabetes. In Appeal Decision 2181 

(BURKE) (1980), the mariner's act of incompetence occurred when he suffered "psychotic 

breaks" due to "paranoid schizophrenia, in remission." The act ofincompetence in the instant 

case occurred when Mr. P1ender suffered a severe heart attack in March 2009. 

14 
Mr. Plender's case is slightly different from the above cited decisions because they were 

adjudicated under the pre-August 9, 2004 statute. Prior to that date, the act ofincompetence had 

to occur while the mariner was acting under the authority of his license. Now, the statute allows 

the Coast Guard to revoke an MMC any time the holder commits an act ofincompetence. See 

H.R. Rep. No. 108-617, at 81 (2004) (Conf. Rep.). Even if a mariner commits an act of 

incompetence ashore or otherwise not while acting under the authority ofhis credential, his 

MMC may still be revoked as long as the act demonstrates his inability to perform his duties due 

to physical disability, mental incapacity, or professional deficiency and is "relating to the 

operation of a vessel." The impetus behind this change seems clear - the Coast Guard should not 

have to wait for a credentialed mariner to have a debilitating physical or mental event while 

performing his duties, especially when it is aware the condition could give rise to such an event. 

Under 46 U.S.C. § 7703(4), identifying the act is an essential element for incompetence 

cases. See also 46 U.S.C. § 7701(b). The act will determine whether the "incompetence" is due 

to "professional deficiencies, physical disability, mental incapacity, or any combination thereo£" 

See 46 C.P.R. § 5.31. Por example, ifthe act is a schizophrenic episode then it is likely the case 

will involve incompetence due to mental incapacity. Similarly, ifthe act is that a mariner cannot 

meet the requirements to hold a MMC, then it is likely the case will involve incompetence due to 

professional deficiency. In the instant case, the act is a heart attack, a physical condition; 

therefore, this case involves incompetence due to physical disability. 

Inability to Perform Required Duties 

The incompetence definition requires the act to show the mariner's inability to perform 

required duties "due to physical disability, professional deficiency, mental incapacity, or any 

combination thereof." See 46 C.P.R. § 5.31. Respondent argues "[i]t is undisputed that the 

Coast Guard offered no evidence whatsoever that Capt. Plender was unable to perform any 

required physical functions ofthe license under which he was sailing." See Respondent Captain 

15 
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Kirk C. Plender's Post-Hearing Briefat 4. Respondent further argues "Captain Plender is 

currently able to perfonn every required function or task of a licensed officer." Tr. at 117. 

Respondent is essentially claiming that because his condition is managed and he is currently able 

to perfonn his duties, he is not incompetent. 

Similarly in SHEA, the respondent claimed his bi-polar mental condition was medically 

manageable and he had not suffered any relapses; therefore, he should not have been found 

incompetent. Mr. Shea, like Mr. Plender, relied on Appeal Decision 2547 (PICCIOLO) for the 

proposition that medical management of a condition could prevent a finding of incompetence. In 

SHEA, however, the ALI found "one [with respondent's condition] who is in remission still has 

a greater risk of breakthrough episodes than someone who does not have bipolar disorder. 

Moreover, it is not certain that Respondent will remain symptom free even ifhe is compliant and 

takes the medication because the course ofthe illness is highly variable." See Appeal Decision 

2664 (SHEA) (2007) at 4. (Brackets added). The Vice Commandant upheld the ALI's 

incompetence finding in SHEA even though Mr. Shea was able to perfonn his duties at the time 

ofthe hearing. As the Vice Commandant stated in HOCKING, "Picciolo supports the 

proposition that a mariner's medical competence must be determined not based solely on a past 

incident but by reference to competent medical testimony concerning the individual's condition 

and necessary treatment, and the risks they present." HOCKING at 14. 

In Appeal Decision 2664 (SHEA) (2007), the mariner demonstrated an inability to 

perfonn his duties by experiencing a manic episode ofbipolar disorder causing him to act 

erratically. In Appeal Decision 2547 (PICCIOLO) (1992), the mariner' demonstrated an 

inability to perfonn his duties by experiencing episodes of uncontrolled diabetes. In Appeal 

Decision 2181 (BURKE) (1980), the mariner demonstrated an inability to perfonn his duties by 

experiencing "psychotic breaks" due to "paranoid schizophrenia, in remission." Similarly, Mr. 

Plender demonstrated an inability to perfonn his duties by experiencing a severe heart attack. 

16 
------....­

Had Mr. Plender been acting under the authority ofhis credentials onboard a vessel at the 

time ofhis heart attack, there would be little doubt he demonstrated an inability to perform his 

duties due to physical disability, but that is not what the law requires. At the time ofhis heart 

attack he was completely incapacitated, taken to the hospital, and received life-saving medical 

treatment. See Tr. at 31, 158; CG Ex. 01. Mr. Plender's heart attack occurred in early March, 

2009 yet he was unable to return to work until late October 2009. Suffering a heart attack 

requiring stenting and an ICD demonstrated he had the inability to perform his required duties 

due to a physical disability during that time. 

Mr. Plender's arguments he has not had another heart attack or cardiac event and has not 

suffered any arrhythmia does not disprove he demonstrated an inability to perform his duties. In 

SHEA, the respondent had received treatment for his bi-polar disorder and his doctor prescribed 

medication. He followed his doctor's orders and had no further mental decompensations since 

the act of incompetence aboard his vessel. Similarly, Mr. Plender states he has not suffered 

another heart attack or arrhythmia and the surgically implanted ICD has never shocked his heart. 

He monitors what he eats, rigorously exercises, and otherwise takes good care ofhimself. 

Respondent's counsel correctly points out there is no evidence Mr. Plender is currently unable to 

perform any of his required duties. See Tr. at 108-13. However, Mr. Plender's present ability to 

perform his duties does not eliminate the fact that at the time of his act ofincompetence he 

demonstrated an inability to perform his duties due to a physical disability. 

Relating to the Operation of a Vessel 

Respondent's arguments imply the term "relating to the operation of a vessel" means 

something very similar to "acting under the authority of a license" by stating as follows: 

Capt. Plender's operational record of service as a licensed chiefmate was devoid 

of any medical accident or incident, affecting his physical ability to perform 

required duties, "relating to his operation of a vessel." The phrase "relating to the 

operation of a vessel" means, on its own plain-language terms, that the committed 

17 
act of "physical disability" with relation to "required duties" must have had some 

relationship to the performance by Capt. Plender of his duties as a chiefmate 

aboard his ship. 

See Respondent Captain Kirk C. Plender's Post-Hearing Briefat 5. 

There is no Commandant Decision on Appeal defining or discussing "relating to the 

operation of a vessel." Narrowly construing "relating to the operation of a vessel" as Respondent 

suggests would result in a mariner essentially having to be operating under the authority ofhis 

MMC during the act of incompetence, a requirement Congress eliminated. The 2004 change in 

the law simply requires the Coast Guard to make a reasonable connection between the act of 

incompetence that occurred in the past and the operation of a vessel. In Mr. Plender's case, the 

Coast Guard makes that connection by finding his "underlying cardiomyopathy with the 

associated risk for ventricular dysthrthmias is disqualifying, [for his Merchant Mariner duties] 

even without the lCD." See CG Ex. 03. (Brackets added). See also CG Exs. 02 and 04. 

The Coast Guard's medical witness, Dr. Laura Gillis, opined there are several "concerns" 

regarding Mr. Plender's situation. First, Respondent has a history of myocardial infarction. 

According to Dr. Gillis, "depending on how damaged the heart muscle is and how much function 

the mariner regains after the heart attack, he mayor may not be able to do his or her routine and 

emergency duties." See Tr. at 44. Second, Mr. Plender had two stents placed. Dr. Gillis 

explains that this is of concern "because there has been damage to the heart. There's now a stent 

in there that's keeping the blood flow. There's a risk for reocclusion or occlusion ofthe stent, 

and therefore, the risk for sudden incapacitation." See Tr. at 44-5. Third, Respondent has been 

diagnosed with cardiomyopathy or cardiac decompensation. See Tr. at 45. This is a concern 

"[d]ue to the risk ofsudden incapacitation or impairment of abilities to perform routine or 

emergency duties." ld. Fourth, Mr. Plender has also been diagnosed with congestive heart 

failure (CHF) or dilation ofthe heart. See Tr. at 46. Dr. Gillis is similarly concerned with this 

condition "due to the possibility of impairment of functioning ofthe heart muscle preventing the 

18 
mariner from performing routine and emergency duties." rd. Fifth, Respondent has an 

rmplanted Cardioverter Defibrillator (lCD). The rCD is designed to shock the heart ifthe heart 

slips into an arrhythmia. The rCD is a concern for Dr. Gillis because the shock supplied by the 

rCD could incapacitate Respondent. See Tr. at 57. Further, there is a possibility that the rCD 

could malfunction and shock the heart even if the heart does not go into arrhythmia similarly 

causing incapacitation. See Tr. at 36-7. 

Respondent did not present his own expert witness testimony. Rather, he presented 

medical journal articles and a letter from his cardiologist, Dr. Henry Sesselberg, to stand for the 

proposition that his risk to safety at sea is acceptable. See Resp. Exs. A, B, C, and D. 

Respondent attempts to show that because he does not exhibit several risk factors identified in 

these medical articles and by Dr. Sesselberg, then his risk to maritime safety is reduced. 

Respondent concedes he suffered a heart attack; that he has a low ejection fraction; and, 

that he had an rCD surgically implanted. The Coast Guard's witness concedes there is no 

evidence showing Mr. Plender does not have the present inability to perform his required duties 

and there is no evidence showing Mr. Plender has risk factors such as smoking, diabetes, renal 

failure, and old age. However, Respondent's evidence does not rebut Dr. Gillis' opinion that he 

is a significant risk for sudden incapacitation or sudden death. See Finding of Fact 30. The 

undersigned gives great weight to Dr. Gillis' testimony regarding Mr. Plender's elevated risk. 

Mr. Plender does not provide medical testimony that he is at no greater risk for incapacitation 

than the general population. His evidence merely shows that of all people having the same 

conditions, he is less of a risk. That is far different than Dr. Gillis' opinion that his condition 

places him at a higher risk for sudden incapacitation or sudden death than that ofthe general 

population. 

After reviewing all the evidence and testimony, the undersigned finds Respondent's risk 

of sudden incapacitation or sudden death to be greater than that of the general population, and, as 

19 
such, creates an unacceptable risk to safety at sea. Accordingly, the Coast Guard's evidence 

shows a reasonable connection between the act of incompetence and Mr. Plender's operation of a 

vessel. 

Appeal Decision 2698 (HOCKING) (2012) Distinguished 

On the surface, Appeal Decision 2698 (HOCKING) (2012) and Mr. Plender's case 

appear similar because both involve the same underlying conditions (ischemic cardiomyopathy 

and placement of an ICD). But, there are several crucial facts that distinguish Mr. Plender's case 

from HOCKING. 

First, in HOCKING, no act of physical incompetence occurred within the time 

limitations for service of a complaint. Pursuant to 46 C.F.R. § 5.55, "[t]he time limitations for 

service of a complaint upon the holder of a credential are as follows ...for one or more ofthe 

misconduct offenses specified in... §5.61(a), service shall be within five years after commission 

of the offense alleged therein." See 46 C.F.R. § 5.55(a) (2). Section 5.61(a) specifically 

enumerates "Incompetence" as one ofthe listed offenses. See 46 C.F.R. § 5.61(a) (9). 

Mr. Hocking suffered from episodes of ventricular tachycardia. Physicians diagnosed him 

with ischemic cardiomyopathy resulting in surgical placement of an ICD in 1995. See Appeal 

Decision 2698 (HOCKING) (2012) at 2-3. He also suffered additional episodes of ventricular 

tachycardia in 2000. Id. at n.l. The Coast Guard did not initiate its incompetence action against 

Mr. Hocking until 2010; therefore, none ofthe acts occurring in 1995 or 2000 were within the 

time limitations for service of a complaint under 46 C.F.R. § 5.55(a) (2). 

In Mr. Plender's case, his heart attack occurred in 2009. The Coast Guard served its 

Complaint in 2011, clearly within the five year time limitation. As a result, Mr. Plender's heart 

attack serves as the starting point for the instant case, whereas in HOCKING, the Vice 

Commandant stated "[t]he Coast Guard's finding that Respondent was not fit for duty set in 

motion the events culminating in the charge and proceeding herein ...." HOCKING at 7. The 

20
 
Plender case clearly has an act demonstrating the mariner's inability to perform his required 

duties due to physical disability relating to the operation of a vessel. 

Second, in HOCKING, the Vice Commandant stated "[i]n light of the evidence in this 

case, where there is a lack of evidence that safety would be impaired by Respondent's retention 

of his MMD, it is consistent with the intent of46 C.F.R. § 5.567(b) to place Respondent's 

condition in the category of professional incompetence." HOCKING at 19, (brackets added). 

Title 46 C.F.R. § 5.567(b) states in pertinent part "[t]he order is directed against all credentials or 

endorsements, except that in cases of negligence or professional incompetence, the order is made 

applicable to specific credentials or endorsements." In HOCKING the Vice Commandant held 

that the mariner's case was one of professional incompetence and because there was no evidence 

showing the mariner should not retain his document [MMD], he was allowed to do so. 

Mr. Plender's case is not one ofprofessional incompetence. The Coast Guard 

adamantly states it is alleging physical incompetence or incompetence due to physical disability, 

not professional incompetence.8 See Tr. at 11-2, 107-8. (Emphasis added). Contrary to 

HOCKING which "... had a lack of evidence that safety at sea would be impaired by 

Respondent's retention ofhis MMD," Dr. Gillis testified she did not consider Respondent 

medically qualified for any Coast Guard credential. See Tr. at 57-8. Her opinion is supported by 

substantial evidence in the record and is therefore accorded great weight. 

As stated in HOCKING, the types of incompetence (physical disability, mental 

incapacity, and professional deficiency) can overlap. Indeed, there is overlap here. 

Respondent's act of incompetence could have occurred when he was unable to obtain a medical 

waiver for his underlying heart condition and ICD. Absent a waiver, he could not meet the 

professional requirements to hold his license thereby demonstrating an inability to perform his 

8 For the purposes ofthis Decision and Order, "physical incompetence" is the same as "incompetence due to 

physical disability." 

21 
duties due to professional deficiency. The act would relate to the operation of a vessel because 

he presents a significant risk for incapacitation or death. While Mr. Plender could have been 

found to be professionally incompetent, the evidence suggests incompetence due to physical 

disability presents a clearer analysis. 

DECISION 

In view ofthe foregoing, the undersigned finds Respondent committed an act of 

incompetence demonstrating an inability to perform his required duties due to physical disability 

when he suffered a severe myocardial infarction in March 2009. That act ofincompetence 

relates to the operation of a vessel because Respondent presents a risk for sudden incapacitation 

or sudden death greater than that of the general population. The Coast Guard's allegation of 

incompetence is therefore PROVED by a preponderance ofreliable, probative, and credible 

evidence. 

ULTIMATE FINDINGS OF FACT AND CONCLUSIONS OF LAW 

1. Respondent Kirk C. Plender and the subject matter ofthis hearing are properly within 

the jurisdiction ofthe U.S. Coast Guard and the Administrative Law Judge in accordance with 46 

U.S.C. §7703; 46 C.F.R. Part 5; and, 33 C.F.R. Part 20. 

2. At all relevant times, Respondent was the holder ofvalidly issued credentials. 

3. Respondent committed an act ofincompetence when he suffered a severe heart attack 

in March, 2009. 

4. Respondent's incapacitation as a result ofhis heart attack demonstrated an inability to 

perform his required duties due to physical disability. 

5. Respondent's medical conditions place him at greater risk for sudden incapacitation or 

sudden death than that of the general population. 

22 
6. Because Respondent's medical conditions place him at greater risk for sudden 

incapacitation or sudden death than that ofthe general population, his heart attack is relating to 

the operation of a vessel. 

7. Respondent has committed an act of incompetence demonstrating his inability to 

perform required duties due to physical disability that is relating to the operation of a vessel. 

8.Respondent is incompetent due to physical disability to hold any Coast Guard issued 

credential . 

23 
ORDER
 

IT IS HEREBY ORDERED that the allegation of Incompetence against Respondent 

Kirk C. Plender is found PROVED. 

IT IS FURTHER ORDERED that all validly issued credentials and endorsements 

issued to Respondent are hereby REVOKED and he must surrender same to the Coast Guard 

immediately. 

PLEASE TAKE NOTICE that service ofthis Decision and Order on the parties 

and/or parties' representative(s) serves as notice of appeal rights set forth in 33 C.F.R. §§ 

20.1001 - 20.1004, attached hereto as Attachment C. 

Walter J udzinski 

Adminis rative Law Judge
 

United States Coast Guard
 

Septernber17,2012 Date: 

24 
-- .".=~ .--.. 

ATTACHMENT A
 

WITNESSES AND EXHIBITS:
 

Witnesses: 

For the Coast Guard: Dr. Laura G. Gillis, MD, MPH - Federal Maritime Surgeon, Chief,
 

Medical Evaluations Division, National Maritime Center.
 

For Respondent: Mr. Kirk C. Plender testified on his own behalf.
 

Coast Guard Exhibits: 

CG 01 - Respondent's Merchant Mariner Credential Medical Evaluation Report (719K) dated
 

January 1, 2010 and accompanying medical documentation (48 pages).
 

CG 02 - National Maritime Center (NMC) determination letter to Respondent dated March 22,
 

2010 (2 pages).
 

CG 03 - NMC reconsideration letter to Respondent from May 2010 (undated) (2 pages).
 

CG 04 - Commandant appeal letter to Respondent dated March 17,2011 (3 pages).
 

CG 05 - Federal Register notice of availability entitled, "Medical and Physical Evaluation
 

. Guidelines for Merchant Mariner Credentials," (73 FR 56600 (September 29,2008» (5 pages). 

CG 06 - U.S. Coast Guard Navigation and Vessel Inspection Circular (NVIC) 04-08 with 

enclosures (75 pages). Mutually accessible and available at: 

http://www.uscg.mil/nmc/medical/NVIC/NVIC 4 08 with enclosures.pdf 

25
 
~--"

Respondent Exhibits: 

Resp. A - Federal Motor Carrier Safety Administration Expert Panel Recommendations dated 

April 10, 2007 (35 pages). 

Resp. B - Risk Stratification for Primary Implantation ofa Cardioverter-Defibrillator in 

Patients with Ischemic Left Ventricular Dysfunction, 51 Journal ofthe American College of 

Cardiology, No.3, January 22,2008 (9 pages). 

Resp. C - Limitations ofEjection Fraction for Prediction ofSudden Death Risk in Patients with 

Coronary Artery Disease, 50 Journal ofthe American College of Cardiology, No. 12,'September 

17,2007 (17 pages). 

Resp. D - Letter from Dr. Henry W. Sesselberg, MD to Mr. Luke B. Harden, Chief Marine 

Credentialing Program Policy Division, U.S. Coast Guard, dated November 7,2010 (3 pages). 

Resp. E - Merchant Mariner Credential Medical Evaluation Report (719K) dated April 9, 2012 

(9 pages). 

Resp. F - Letter from Captain Joseph M. Surmann, MV APL Phillippines, dated January 16,
 

2010 (1 page).
 

". 

26
 
. ·~-

. 

ATTACHMENTB 

COAST GUARD'S PROPOSED FINDINGS OF FACT 

1. Respondent is the holder of a Coast Guard license as master ofsteam or motor vessels of any 

gross tons upon oceans. Respondent also holds a Coast Guard document. Respondent's current 

credentials expire on October 2,2012. Hearing Transcript ("Tr.") at 7-8. 

ACCEPTED AND INCORPORATED. 

2. While operating under the authority ofhis credentials, Respondent is required to perform 

duties related to the operation of a vessel. Tr. at 149, 154-157, 180. 

ACCEPTED AND INCORPORATED. 

3. In 2009, Respondent experienced a very significant myocardial infarction or heart attack. Tr. 

at 22; CG Ex. 1 at 16. 

ACCEPTED AND INCORPORATED. 

4. As a result ofhis heart attack, Respondent was diagnosed with coronary artery disease and 

ischemic cardiomyopathy. Tr. at 22-23; CG Ex. 1. 

5. As a result of his ischemic cardiomyopathy and coronary artery disease, Respondent had an 

implantable cardioverter defibrillator ("lCD") placed. Tr. at 22-23; CG Ex. 1 at 38. 

ACCEPTED AND INCORPORATED. 

6. An lCD is a medical device implanted in a patient susceptible to potentially-lethal heart 

arrhythmias. The lCD delivers a shock to the heart in an attempt to correct the arrhythmia. A 

shock from an lCD can, in itself, cause sudden incapacitation. Tr. at 23-24,36-37, 132-133; CG 

Ex. 1 at 31. 

ACCEPTED AND INCORPORATED. 

7. Respondent's cardiac ejection fraction is between 20 and 30 percent. Tr. at 30,34,41; CG 

Ex. 1. 

ACCEPTED AND INCORPORATED. 

8. Ejection fraction is a percentage measurement that indicates the performance ofthe heart. A 

depressed ejection fraction is an indication that the heart's ability to pump has become 

compromised. Normal ejection fraction is greater than 55 percent. Tr. at 29-30. 

ACCEPTED AND INCORPORATED. 

27 
9. Respondent's medical conditions, including ischemic cardiomyopathy, reduced ejection 

fraction, and placement of an lCD give Respondent a higher risk for sudden incapacitation than 

that ofthe general population. See Tr. at 36-37, 45-46,57, 110-111, 124, 131-133, 138. 

ACCEPTED AND INCORPORATED. 

10. On March 17,2011, the Coast Guard Acting Director ofPrevention Policy issued a "final 

agency action" letter to Respondent finding that Respondent's medical condition presented "an 

unacceptable risk to maritime and public safety," and denying Respondent's application for an 

endorsement as a vessel security officer. CG Ex. 4. 

NOT ACCEPTED. Respondent did not apply for a waiver of endorsement as vessel security 

officer. Nonetheless, the Commandant's finding that Respondent's medical condition presented 

an unacceptable risk for the purposes ofbeing qualified to perform Merchant Marine duties 

under his Credentials supports Dr. Gillis' opinion that Respondent is not medically qualified and 

his risk ofsudden incapacitation or sudden death is greater than that ofthe general population. 

COAST GUARD'S PROPOSED CONCLUSIONS OF LAW: 

1. Based on his ischemic cardiomyopathy, severely reduced cardiac ejection fraction, and the 

placement of an lCD, Respondent presents an unacceptable risk ofsudden incapacitation. See 

Tr. at 57, Appeal Decision 2698 (HOCKING). 

ACCEPTED AND INCORPORATED. 

2. Due to his medical condition and the placement of an lCD, Respondent is disqualified from 

performing the duties under his Coast Guard credentials and is unfit for maritime service. See 

Tr. 58-59; CG Ex. 4; Appeal Decision 2698 (HOCKING). 

NOT ACCEPTED as a conclusion oflaw. It is a fact that the NMC and then the Commandant of 

the Coast Guard found that Respondent was medically disqualified in a separate administrative 

process. See CG Exs. 02,03, and 04. Determining disqualification and fitness for duty are not 

powers ofthe Administrative Law Judge in these 46 U.S.C. §§ 7701-7704 administrative 

. proceedings for incompetence. 

3. Given his medical condition, Respondent is not medically qualified for any Coast Guard
 

credential. Tr. at 57-58.
 

NOT ACCEPTED. It is a fact that the NMC and then the Commandant ofthe Coast Guard 

found that Respondent was medically disqualified in a separate administrative process. See CG 

Exs. 02, 03, and 04. Medical qualification or disqualification is not a decision to be made by the 

Administrative Law Judge. It is a medical determination that is separate and apart from the legal 

determination ofincompetence, which is the subject ofthese suspension and revocation 

proceedings. 

28 
-..-.-.=­ - ..----'" 

-= "-== 

4. Respondent's medical condition and his lCD render him physically incompetent to hold a 

Coast Guard-issued credential. See Appeal Decision 2698 (HOCKING). 

ACCEPTED AND INCORPORATED to the extent Respondent is incompetent due to physical 

disability. 

RESPONDENT'S PROPOSED FINDINGS OF FACT 

1. Capt. Plender is the current holder of a Master's unlimited license and master's unlimited 

towing vessel license, issued by the United States Coast Guard (T.149); 

ACCEPTED AND INCORPORATED. Respondent is also the holder of a Merchant Mariner's 

Document and an endorsement for "radar observer unlimited." 

2. Capt. Plender is currently employed by APL Maritime as a Chief Mate, a position he has held 

for two years (T. 149). 

ACCEPTED AND INCORPORATED to the extent he was employed by APL at all relevant 

times. 

3. As ChiefMate for APL Maritime Okinawa, Capt. Plender's trade route is typically San 

Francisco to the Far East, including Yokohama, Okinawa, Shanghai, and Pusan, Korea (T. 149); 

ACCEPTED BUT NOT INCORPORATED beyond a mere description ofhis position. The 

sailing route is not relevant to a finding ofincompetence due to physical disability. 

4. Capt. Plender's last vessel was the APL KOREA, a 959-foot container vessel (T. 172); 

ACCEPTED BUT NOT INCORPORATED. Respondent is incompetent due to physical 

disability to serve on any vessel in any capacity. 

5. Capt. Plender graduated from Maine Maritime Academy in 1982 with a Bachelor ofNautical 

Science degree (T. 150); 

ACCEPTED BUT NOT INCORPORATED. When Respondent graduated from Maine Maritime 

Academy is not relevant on the issue ofincompetence due to physical disability as the result of 

his heart attack in March 2009. 

6. Upon his graduation, Capt. Plender sat for and was issued a Third Mate's license in April 

1982 (T. 150); 

ACCEPTED BUT NOT INCORPORATED. When Respondent graduated and sat for his Third 

Mate's examination is not relevant on the issue ofincompetence due to physical disability as the 

result ofhis heart attack in March 2009. 

29
 
7. Capt. Plender sailed as a licensed Third Mate on tugboats for Crowley Maritime for five 

years, then sailed for Keystone Tanker Corporation for seventeen and a half years (T. 150); 

ACCEPTED BUT NOT INCORPORATED. Respondent is found physically incompetent due to 

physical disability to serve on any vessel in any capacity. 

8. In 1989, Capt. Plender sat for his Second Mate's license, and then sailed as Second Mate for 

six to eight years on oil tankers (T. 151); 

ACCEPTED BUT NOT INCORPORATED. Respondent is found incompetent due to physical 

disability to serve on any vessel in any capacity. 

9. The duties of a Second Mate aboard oil tankers include bridge watch underway, cargo watch 

in port, and chart corrections (T. 152); 

ACCEPTED BUT NOT INCORPORATED. Respondent is found incompetent due to physical 

disability for service on any vessel in any capacity. 

10. Service as Second Mate on a tanker also involved physical activity, including turning valves, 

raising and lowering butterworth hoses, and climbing up and down into cargo tanks. Butterworth 

hoses were used to clean the tank. The tank cleaning often involved raising and lowering 50-feet 

lengths ofhoses and a sprinkler device weighing over a hundred pounds (T. 153); 

ACCEPTED BUT NOT INCORPORATED. Respondent is found incompetent due to physical 

disability to serve on any vessel in any capacity because his medical conditions, including 

ischemic cardiomyopathy, reduced ejection fraction, and placement of an ICD put him at a 

higher risk for sudden incapacitation or sudden death than that ofthe general population, 

notwithstanding the physical ability as described. 

11. Capt. Plender sat for his ChiefMate's license around 1994-5. He then began to sail for 

Keystone Shipping Company as a Chief Mate under government and military sea lift command 

supply ships (T. 154); 

ACCEPTED BUT NOT INCORPORATED. Respondent's prior experience does not mitigate 

his risk for sudden incapacitation or sudden death to less than or equal to that ofthe general 

population. 

12. The job ofChiefMate aboard an oil tanker also involved a great deal of physical activity and 

stressful work. That included climbing up and down into tanks, carrying heavy hoses, opening 

and closing valves, etc. (T. 154-5); 

ACCEPTED BUT NOT INCORPORATED. Respondent's past physical capacity does not 

reduce his risk ofsudden incapacitation or sudden death to less than or equal to that ofthe 

general population. 

13. Capt. Plender subsequently went to work as Chief Mate for APL Maritime sailing on 

container ships (T. 155); 

ACCEPTED BUT NOT INCORPORATED. Respondent's past work history does not lower his 

30 
risk ofsudden incapacitation or sudden death to less than or equal to that ofthe general 

population. 

14. As a ChiefMate aboard container ships, Capt. Plender was also called upon to do a lot of 

climbing to inspect ballast tanks, crawl spaces, void spaces, bilge alarms, etc. (T. 155); 

ACCEPTED BUT NOT INCORPORATED. Respondent's physical capacity does not lower his 

risk ofsudden incapacitation or sudden death to less than or equal to that ofthe general 

population. 

15. Around 1996-7 Capt. Plender sat for and passed his Master's License. He has, however, 

never sailed as Master (T. 156); 

ACCEPTED BUT NOT INCORPORATED. Respondent's incompetence due to physical 

disability applies to all validly issued Credentials he holds. 

16. In March of2009, while he was on vacation and skiing at Loon Mountain, Capt. Plender 

suffered an anterior myocardial infarction (T. 157); 

ACCEPTED AND INCORPORATED to the extent Respondent was on a ski trip in March 2009 

at the time ofhis heart attack. There is an error on page 157 ofthe transcript which states the 

myocardial infarction occurred in March 2005 instead of2009. 

17. Medical assistance arrived and took Capt. Plender to Maine Medical by ambulance. At the 

hospital, two stents were implanted. One stent clotted and occluded, and it was replaced. Capt. 

Plender's heart never stopped and never went into arrhythmia. It merely slowed down, but then 

resumed its normal rate (T. 158); 

ACCEPTED AND INCORPORATED to the extent that Mr. Plender received emergency 

medical treatment including the implantation of a second stent after the first stent occluded. The 

proposed facts that Respondent's heart never stopped and never went into arrhythmia are not 

factors in determining whether the allegation ofincompetence due to physical disability is 

proved. 

18. While in the hospital, Capt. Plender also got a viral infection. He stayed in the hospital an 

additional three days and was given an antibiotic (T. 159); 

ACCEPTED BUT NOT INCORPORATED. The viral infection was not a causative factor in 

determining whether the allegation ofincompetence due to physical disability is proved. 

19. At some point during Capt. Plender's stay at the hospital he became acquainted with Dr. 

Henry Sesselberg and chose him to be his cardiologist. Dr. Sesselberg continues to be Capt. 

Plender's cardiologist through to the present (T. 159); 

ACCEPTED BUT NOT INCORPORATED. Dr. Sesselberg's treatment notes speak for 

themselves. 

31 
20. At some point after his discharge, but during follow-up consultations, Dr. Sesselberg
 

recommended that Capt. Plender consider an implantable cardioverter defibrillator ("ICD") (T.
 

160);
 

ACCEPTED AND INCORPORATED to the extent Respondent had an ICD inserted in his chest. 

21. At no time, either before or after the implantation ofthe lCD, did Capt. Plender's heart ever 

undergo defibrillation (T. 160); 

ACCEPTED BUT NOT INCORPORATED. The absence of defibrillation was not a factor in 

determining whether he is incompetent due to physically disability. 

22. Following Dr. Sesselberg's recommendation, Capt. Plender elected to have the ICD 

surgically implanted on June 16,2009 (T. 160). Dr. Sesselberg was the surgeon who conducted 

the surgery. (T. 161); 

ACCEPTED AND INCORPORATED to the extent the ICD was inserted in Respondent's chest 

successfully. 

23. In a follow-up visit on July 20,2009, stitches and staples were removed and Dr. Sesselberg 

believed that Capt. Plender had successfully tolerated the procedure with no complications (T. 

161); 

ACCEPTED AND rNCORPORATED to the extent that the operation was a success. 

24. At the same follow-up visit on July 20, 2009, Capt. Plender had discussions with Dr. 

Sesselberg about medication. At the time there was no self-testing regimen for Coumadin, and 

Dr. Sesselberg accordingly assented to Capt. Plender's desire to take aspirin instead (T. 162-3); 

ACCEPTED BUT NOT INCORPORATED. Coumadin was not a factor in determining whether 

the allegation ofincompetence due to physical disability was proved. 

25. Following that, Capt. Plender went through a rehabilitation period. He started on treadmills, 

with his EKG wired up, and progressed to work outs three times a week. Medication, dieting; 

and adjustment offood habits were also part ofthe regimen (T. 163-4); 

ACCEPTED BUT NOT INCORPORATED. His physical conditioning might place him at a 

lower risk but only among those with similar conditions. His risk ofsudden incapacitation or 

sudden death still remains greater than that ofthe general population thus rendering him 

incompetent due to physical disability. 

26. Also following his discharge in July, Capt. Plender had an episode offluid retention. 

Because he was then eating too much salt, the salt retained excess fluid in his body making it 

harder for his heart to pump. He experienced a bloated feeling, some discomfort, and some loss 

ofbreath. Dr. Sesselberg resolved the problem by prescribing Lasix, and having Capt. Plender 

monitor his fluid intake and avoid processed foods. Capt. Plender did not suffer any heart 

arrhythmia (T. 164-5); 

NOT ACCEPTED. Respondent mischaracterizes what was actually "mild heart failure" for 

32 
"fluid retention." In his letter of October 22, 2009 (CG Ex. 01 at 48) Dr. Sesselberg's states "he 

[Mr. Plender] was treated briefly earlier this last summer for mild heart failure ...." Dr. Gillis 

explained that this means "... his [Mr. Plender's] heart failed as a pumping mechanism. When 

you get congestive heart failure, the heart's pumping mechanism is failing and it's not 

adequately pumping oxygenated blood to the tissues, and as a result there's back up of fluid 

throughout the body." Tr. at 38-9. 

27. Capt. Plender never suffered any subsequent or further myocardial infarction (T. 165); 

ACCEPTED BUT NOT INCORPORATED. That he has not suffered further myocardial 

infarctions is not a factor in the determination he is incompetent due to physical disability. 

28. Capt. Plender's ICD has never triggered or signaled since it was installed (T. 165); 

ACCEPTED BUT NOT INCORPORATED. The fact that the ICD has never signaled is not a 

factor in the determination he is incompetent due to physical disability. 

29. Capt. Plender recovered thoroughly from the bloating condition with the aid of Lasix (T. 

165); 

NOT ACCEPTED for the reasons set forth in the ruling on proposed finding of fact 26. 

30. Capt. Plender has never had any further cardiac problems of any kind since that date (T. 

167); 

ACCEPTED BUT NOT INCORPORATED. Whether Respondent has had any further cardiac 

problems since his heart attack is was not a factor in determining whether he is incompetent due 

to physical disability. 

31. Capt. Plender is now extremely careful about what he eats and drinks aboard ship or on 

shore. He is also conscientious about his physical fitness. He exercises six days a week, takes 

frequent stress tests, and monitors his heart rate. His exercises consist of45 minutes on a rowing 

machine and 45 minutes on a LifeCycle bicycle (T.166); 

ACCEPTED BUT NOT INCORPORATED. Respondent is less at risk than others with his 

condition but still at greater risk for sudden incapacitation or sudden death than that of the 

general population. 

32. Capt. Plender has never had diabetes (T. 168); 

ACCEPTED BUT NOT INCORPORATED. Despite not having diabetes, Respondent's risk for 

sudden incapacitation or sudden death is greater than that ofthe general population. 

33. Capt. Plender has never had any kidney problems or renal failure (T. 168); 

ACCEPTED BUT NOT INCORPORATED. Despite lack ofkidney problems or renal failure, 

Respondent's risk of sudden incapacitation or sudden death is still greater than that of the general 

population. 

33 
_..~--

34. Capt. Plender returned to work as a Chief Mate with APL in the Fall of2009, having 

consulted with Dr. Sesselberg and received his full approval as being fit to return to work (T. 

168); 

ACCEPTED AND INCORPORATED only to the extent Respondent returned to work in the fall 

of 2009; Dr. Sesselberg is not the decision maker on whether Respondent is qualified for his 

Merchant Marine duties and not the decision maker on the legal conclusion ofwhether 

Respondent is incompetent due to physical disability. 

35. Since that time, Capt. Plender has worked continually as a permanent ChiefMate for APL 

Maritime (T. 169); 

ACCEPTED AND INCORPORATED to the extent that since October 2009, Respondent has 

been a full time Chief Mate for APL Maritime. It does not imply that his risk for sudden 

incapacitation or sudden death is less than or equal to that ofthe general population. 

36. Capt. Plender typically works 70-90 days on and about the same time off. Two-trips to the 

East Asian run typically take between 70 and 90 days (T.169); 

ACCEPTED BUT NOT INCORPORATED. Respondent's trip lengths and time offbetween 

trips are not dispositive on whether risk for sudden incapacitation or sudden death is greater than 

the general population. 

37. It was after his first tour as Chief Mate in the Fall of2009 that Capt. Plender's performance 

with the company was sufficient to earn him a promotion to Permanent Chief Mate (T. 170), and 

the praise ofhis captain (Plender Ex. F.); 

ACCEPTED BUT NOT INCORPORATED. Respondent's past performance, while 

commendable, is not probative on whether his risk ofsudden incapacitation or sudden death is 

greater than that ofthe general population. 

38. Capt. Plender continues to work on a cycle of approximately 84 days on, 84 days off 

Before each time when he ships out, he undergoes a pre-employement physical, in which the 

doctor is required to determine him fitto return to work (T. 171); 

ACCEPTED BUT NOT INCORPORATED. Fitness to return to work does not change 

Respondent's underlying conditions which place him at greater risk for sudden incapacitation or 

sudden death than that of the general population. 

39. Since Capt. Plender returned to work in the fall of2009, no doctor in a pre-employment 

physical has ever told him that he is not fit to go to sea. Capt. Plender has disclosed to all the 

doctors who have examined him his cardiac history (T. 171). Capt. Plender has, in fact, given 

Dr. Sesselberg's telephone number to all doctors who have performed pre-employment physicals 

on him so that they could confer with him if they chose to do so (T. 171-2); 

NOT ACCEPTED. The opinions ofphysicians conducting Respondent's pre-employment 

physicals are accorded less weight in determining his risk ofsudden incapacitation or sudden 

death than the opinions of agency physicians with relevant expertise. 

34 
.~--~-

40. On his most recent trip aboard his current permanent vessel APL KOREA, Capt. Plender's 

duties included bi-annual tank inspections requiring him to climb down into and crawl around 

seven or eight tanks to inspect for fractures or damage; the standing of eight hours ofbridge 

watch per day; the standing of eight hours of cargo watch in port; calculating the stability ofthe 

vessel; ballasting the vessel; patrolling and inspecting on deck to make sure the containers are 

properly placed; inspecting the containers for damage; insuring the proper lashing ofthe 

containers; preparing the vessel's loading plans; inspecting the cargo holds and the bilge alarms, 

which requires climbing up and down 60-80 feet ladders into cargo holds; preparing the ship for 

Coast Guard and ABS (American Bureau ofShipping) inspections; preparing the ship for 

shipyard or dry dock; inspecting safety equipment for Coast Guard inspections; and supervising 

fire drills (T. 173-176); 

\ 

ACCEPTED BUT NOT INCORPORATED. That Respondent has demonstrated the present 

ability to perform such tasks does not lower his risk ofsudden incapacitation or sudden death 

equal to or below that of the general population. 

41. Referring to the March 17, 2011 letter received by Capt. Plender, he did not apply for a 

waiver ofhis vessel's security endorsement as stated erroneously by the letter (T. 180); 

ACCEPTED AND INCORPORATED as shown in the above ruling on Coast Guard proposed 

finding offact number 10. 

42. Capt. Plender is, in all respects, able to perform all of the required tasks of a licensed Chief 

Mate or Master aboard an American flag merchant vessel (T. 180); 

NOT ACCEPTED. Whether Respondent has the present ability to perform all required tasks 

does not exclude a determination that his risk ofsudden incapacitation or sudden death is greater 

than that ofthe general population. 

43. Dr. Laura G. Gillis, the Coast Guard's medical expert and only witness, was not at the time 

ofthe hearing a board certified cardiologist (T. 60); 

ACCEPTED BUT NOT INCORPORATED. Dr. Gillis is board certified in occupational 

medicine. Her opinion is given great weight because she is able to link Respondent's medical 

condition and his greater than the average population risk ofsudden incapacitation or sudden 

death to the requirements of safety at sea. 

44. Dr. Gillis did not have any cardiologist on the staff at NMC to examine Capt. Plender's 

record (T. 60); 

ACCPETED BUT NOT INCORPORATED for the reasons set forth in Respondent's proposed 

finding offact 43. 

45. Dr. Gillis did not refer Capt. Plender's chart out for review by a cardiologist (T. 60); 

ACCEPTED BUT NOT INCORPORATED for the reasons set forth in Respondent's proposed 

finding offact 43. 

46. Dr. Gillis never spoke with or interviewed Capt. Plender during the course ofher review of 

35 
his chart (T. 60); 

ACCEPTED BUT NOT INCORPORATED. Speaking with or interviewing Respondent is not 

probative on the issue of whether his underlying medical condition, as documented in his 

medical records, places him at greater risk for sudden incapacitation or sudden death than that of 

the general population. Respondent's current physical capacity does not lower his risk of sudden 

incapacitation or sudden death equal to or less than that ofthe general population. 

47. All that Dr. Gillis ever did was to review Capt. Plender's medical chart, a process which 

took her approximately 20-30 minutes (T. 61); 

ACCEPTED BUT NOT IJ\l"CORPORATED for the reasons set forth in Respondent's proposed 

finding offact number 46. Further, there is no dispute about the accuracy ofRespondent's 

medical records. The information contained in Mr. Plender's medical records speaks for itself. 

48. Although Dr. Gillis testified that she had concerns about Capt. Plender's ability to "interact 

with his surroundings" in the event of a sudden incapacitation, she admitted under cross 

examination that she did not know anything about his surroundings aboard the ship. For 

example, she did not know the meaning of "watch condition I", "watch condition 2", "watch 

condition 3" or "watch condition 4" aboard a vessel with respect both to the circumstances 

necessitating the conditions or the manning requirements (T. 61-3); 

NOT ACCEPTED. Respondent's risk of sudden incapacitation or sudden death is not reduced 

by changing watch conditions. 

49. Not only was Dr. Gillis not acquainted with how many people were on bridge standing 

watch with Capt. Plender, she also did not know how many people were on deck to assist him for 

cargo watches either (T. 64); 

NO ACCEPTED. Respondent's risk ofsudden incapacitation or sudden death remains higher 

than that ofthe general population despite the presence of other people to assist him. 

50. Dr. Gillis admitted that the reading or the interpreting of ejection fractions ("EF") is 

subjective, for example, one person might read an EF as 20 and another might read it as 25, 

depending upon the test, and who is doing the reading (T. 69); 

NOT ACCEPTED. In either event, Respondent's ejection fraction remains substantially below 

the normal of 55%. 

51. Dr. Gillis admitted that the FAA's concerns for ICDs, heart arrhythmia, and EF below 40 are 

more acute for a pilot flying a jumbo jet, a truck driver or school bus driver going 60 miles an 

hour on an interstate highway, than they would be for a licensed merchant marine officer 

standing on the bridge of a ship (T. 74-5); 

NOT ACCEPTED. Whether Respondent's conditions are less acute than in other transportation 

modes is irrelevant when his risk ofsudden incapacitation or sudden death is greater than that of 

general population. The risk to safety at sea is not diminished simply because sudden 

incapacitation or sudden death might be potentially less acute than in other transportation 

modalities. 

36 
52. Specifically, Dr. Gillis admitted that with airline pilots and truck drivers, the margin of error 

for avoiding an accident may be a matter of split seconds; and that is not the case for a watch 

officer on the bridge of a ship (T. 75); 

NOT ACCEPTED for the reasons stated in the ruling on finding of fact number 51. 

53. The document titled "Expert Panel Recommendations", presented to Federal Motor Carrier 

Safety Administration ("FMCSA") and dated April 10, 2007 (Respondent Exhibit A), states, in 

response to Key Question 4 (What is the risk ofsudden incapacitation or sudden death following 

implantation ofan ICD?), that no attempt was made to determine a quantitative estimate ofthe 

risk ofsudden death or incapacitation in individuals with low left ventricle ejection fraction 

("LVEF"). (T. 79); 

NOT ACCEPTED. The journal article speaks for itself. Dr. Gillis testified on page 138-9 of the 

transcript that she is unable to quantify the risk but that Respondent is at a higher risk than the 

general population. This decision and order is based on a finding that Respondent's risk of 

sudden incapacitation or sudden death is greater than that of the general population, not a 

specific percentage greater than that ofthe general population. The Commandant found that 

standard sufficient to determine Mr. Plender is not qualified for his Merchant Marine duties 

without the necessity for further quantification. The undersigned also finds that standard 

sufficient to determine Respondent is incompetent due to physical disability without the 

necessity of further quantification. 

54. Referring to a journal article titled "Risk Stratification for Primary Implantation of a 

Cardioverter-Defibrillator in Patients with Ischemic Left Ventricular Dysfunction, Journal ofthe 

American College ofCardiology, v. 51, no. 3 (Respondent Exhibit B), Dr. Gillis admitted that in 

determining risk factors for a person for a person [sic] with low EF, post-myocardial infarction 

(heart attack), one must look beyond the presence of an ICD and a low ejection fraction to a 

number ofrisks. The Journal article (Exhibit B) identified five risk factors. (T.85-86); 

ACCEPTED BUT NOT INCORPORATED. In finding Respondent not medically qualified for 

his Merchant Marine duties, the record does not reflect that the Coast Guard failed to take into 

consideration Respondent's entire medical history. See CG Exs. 01, 02, 03, and 04. As stated in 

the NMC's denial ofRespondent's request for reconsideration (CG Ex. 03), Respondent was 

found not qualified for his Merchant Mariner duties despite the ICD. Similarly, this decision and 

order takes into consideration Respondent's entire medical history to arrive at the legal 

conclusion that Respondent's medical conditions place him at a higher risk for sudden 

incapacitation or sudden death than that ofthe general population. 

55. Reviewing an article titled "Limitations ofEjection Fraction for Prediction of Sudden Death 

Risk Patients with Coronary Artery Disease", authored by, among others, Dr. Alfred E. Buxton 

(Journal ofthe American College ofCardiology) (Respondent Exhibit C), Dr. Gillis admitted 

that low ejection fraction is a risk factor only when it exists in combination with other risk 

factors (T. 88); 

NOT ACCEPTED. This proposed finding mischaracterizes the question and Dr. Gillis' 

response. On page 88 ofthe transcript, Respondent's counsel asks Dr. Gillis, "Am I correct that 

the paragraph that I just read and the gist ofthis article really is what Dr. Buxton is saying, yes, 

37 
EF is a factor but sometimes EF is a risk factor only when it exists in combination with other risk 

factors as well. Have I got that right?" Dr. Gillis responds, "sometimes." Finding Respondent 

not qualified for his Merchant Mariner duties and finding him incompetent due to physical 

disability are based on other factors in addition to his low ejection fraction as indicated in the 

ruling on Respondent's proposed finding offact 54. 

56. Dr. Gillis recognized Dr. Alfred E. Buxton is one ofthe nation's leading cardiologists (T. 

88); 

NOT ACCEPTED. Notwithstanding her opinion ofDr. Buxton, Dr. Gillis did not change her 

opinion that Respondent's medical condition puts him at greater risk for sudden incapacitation or 

sudden death than that ofthe general population. 

57. The letter ofDr. Henry W. Sesselberg dated November 7, 2010 (Respondent Exhibit D) 

states that patients with a reduced EF have reduced risk factors for sudden incapacitation ifthey 

have excellent exercise tolerances, at 10 mets or greater, and ifpredictive risk factors such as 

diabetes, family history ofsudden or unexplained death, or active ischemic disease (low blood 

pressure) are absent. The letter goes onto [sic] state later that other cardiac risk factors include 

hypertension or old age which Capt. Plender also does [sic] display. Dr. Gillis admitted that 

those factors all contribute to lowering the risk ofsudden death for a patient with low EF and an 

ICD. (T. 95-98); 

NOT ACCEPTED. The absence ofthose risk factors does not reduce Respondent's risk for 

sudden incapacitation or sudden death to that equal to or less than that ofthe general population. 

58. In the same letter, Respondent Exhibit D, Dr. Gillis also conceded that Capt. Plender does 

not exhibit renal dysfunction, or age greater than 70, which are also predictive risk factors for 

sudden death. (T. 99); 

NOT ACCEPTED for the reasons set forth in the ruling on proposed finding offact number 57. 

59. At the hearing, Dr. Gillis denied that the Coast Guard based its medical waiver denial for 

Capt. Plender upon his ICD and EF lower than 40% (T. 75); 

NOT ACCEPTED. In CG Ex. 04, the Coast Guard states Respondent is not qualified for his 

Merchant Marine duties even without the ICD. On page 75 ofthe transcript, Respondent's 

counsel asks Dr. Gillis: " .... it really comes down to two things, doesn't it, Captain Plender has 

and lCD, and he has an ejection fraction oflower than 40 per cent. That's really it, isn't it? Dr. 

Gillis replied, "no there's more to it than that." 

60. The March 22,2010 letter from Capt. M.D. Hall, U.S.C.G. before Dr. Gillis's [sic] 

involvement, contradicts Dr. Gillis' statement and clearly states: "the NMC does not issue 

waivers for heart conditions requiring the use ofICD devices." (CG Exhibit 2); 

NOT ACCEPTED. Dr. Gillis opined independently that Respondent's condition places him at 

greater risk for sudden incapacitation or sudden death than that ofthe general population. Her 

opinion is given great weight in the undersigned's determination that the allegation of 

incompetence due to physical disability is proved. 

38
 
61. The same statement also appears in an undated but later letter sent by Capt. G.c. Stalfort to 

Respondent's attorney: "the NMC does not issue waivers for heart conditions requiring the use 

ofICD devices." (CG Exhibit 3); 

NOT ACCEPTED for the reasons set forth in the ruling on proposed finding of fact number 60. 

The purpose of this suspension and revocation proceeding is to determine independently whether 

the allegation of incompetence due to physical disability is proved. It is not a forum to 

collaterally attack the findings and conclusions of a separate administrative process to determine 

whether to waive Mr. Plender's medical conditions in order for him to remain qualified to 

continue his Merchant Marine duties. 

62. The letter ofCoast Guard Captain Lincoln B. Stroh dated March 17, 2011, (CG Exhibit 4) in 

appearing to comment upon the letter ofDr. Henry W. Sesselberg, dated 11/7/2010, but believed 

to have been sent on December 27,2010 (Respondent Exhibit D), does not accurately recite all 

ofthe cardiac risk factors which Dr. Sesselberg sets forth. Nonetheless, Captain Stroh 

acknowledges that risk ofsudden death is lowered for Capt. Plender because he was younger and 

had no ischemic cardiomyopathy. (CG Exhibit 4, P2, Para. 1). Specifically, Captain Stroh did 

not acknowledge the following additional risk factors set forth by Dr. Sesselberg: treadmill stress 

test results ofnine or ten metabolic equivalents with no evidence ofischemic changes; absence 

of diabetes; family history ofsudden or unexplained death; absence ofhypertension and older 

age. See, 11/7/2010 letter ofDr. Henry W. Sesselberg (Respondent Exhibit D, p.1, Para. 1-2). 

NOT ACCEPTED. The paragraph cited by Respondent states: 

Mr. Plender's cardiologist provided the requested information on December 27, 

2010. The cardiologist generally agreed that patients with Mr. Plender's 

condition had an increased risk ofsudden death but also noted that Mr. Plender 

was younger and had fewer cardiac risk factors than some patients with ischemic 

cardiomyopathy. Dr. Sesselberg believed that he was a lower risk of a sudden 

cardiac event than the current data would suggest. He noted that Mr. Plender's 

lCD had not yet fired and that it had been installed for prophylactic reasons. 

CG Ex. 04 at 2. 

This paragraph clearly summarizes Dr. Sesselberg's opinions and is not attributable or 

"acknowledged" by Capt. Stroh. On the contrary, this paragraph does suggest that Dr. 

Sesselberg agreed with the Coast Guard's assessment that Mr. Plender "had an increased risk of 

sudden death." Mitigating factors contained in the record lower Respondent's risk for sudden 

incapacitation or sudden death compared to others with the same condition but not equal to or 

lower than that ofthe general population. 

63. At the hearing, Dr. Gillis acknowledged also that the word "inordinate" did not come from 

Dr. Sesselberg's letter (T.103). She also acknowledged that Captain Stroh did not mention 

absence offamily history or absence of diabetes (T. 104). Finally, it is evident that Captain 

Stroh misrepresents the letter ofDr. Sesselberg by stating that "the reviewing physician noted" a 

" ....a severely reduced ejection fracture of25%". The "severely reduced" language does not 

appear anywhere in Dr. Sesselberg's letter. Compare, CG Exhibit 4 with Respondent's Exhibit 

D. 

NOT ACCEPTED. An ejection fraction of25% speaks for itself. How one characterizes it is 

39 
-~-~-­

._-.. ---. 

not probative on the issue of incompetence due to physical disability. 

64. Dr. Gillis admitted that the Coast Guard's National Maritime Center ("NMC") is not 

contending that Capt. Plender is unfit to perform the duties of his license based on mental 

incapacity (T. 107); 

NOT ACCEPTED as immaterial. The Coast Guard is alleging incompetence due to physical 

disability, not incompetence due to mental incapacity. 

65. Similarly, Dr. Gillis admitted that NMC is not contending that Capt. Plender is unfit for the 

duties of his license due to professional capabilities (T. 108); 

NOT ACCEPTED for the reasons set for in the ruling on proposed finding of fact 64. 

66. Dr. Gillis admitted that what NMC is concerned with relates to a claim ofphysical disability, 

or what Dr. Gillis termed "compensation." (T. 108); 

ACCEPTED AND INCOPORATED. The issue in this suspension and revocation proceeding is 

whether Respondent is incompetent due to physical disability. 

67. Referring to Capt. Plender's Merchant Marine Medical Evaluation Report, CG 719K (CG 

Exhibit 1), (P.8), Dr. Gillis reviewed each ofthe related physical abilities for the thirteen 

separate shipboard tasks or functions, and admitted that the Coast Guard has no evidence 

whatsoever that Capt. Plender is unable to perform any ofthe thirteen "related physical ability" 

tasks identified with required shipboard functions. (T. 107-113); 

NOT ACCEPTED. Respondent's current physical abilities do not reduce his risk ofsudden 

incapacitation or sudden death to a level equal to or below that of the general population. 

68. Dr. Gillis acknowledged that Dr. Eric Mukai found Capt. Plender to have been 

"recommended competent" in his medical examination dated 12/31/09 (T. 113-4); 

NOT ACCEPTED. Dr. Mukai checked the box entitled "recommended competent." He does 

not opine that Respondent's risk of sudden incapacitation or sudden death is equal to or less than 

that of the general population. 

69. Dr. Gillis also acknowledged that the CG 719K Medical Evaluation Report was a report 

prepared by the Coast Guard and given out to individual mariner medical review officers; that 

the Coast Guard believed that the competency opinion of a medical review officer is important 

(T. 113-4); 

NOT ACCEPTED. Competency opinions of medical review officers are important but not 

controlling on the issue of whether Respondent is qualified for his Merchant Marine duties. 

Likewise, competency opinions ofmedical review officers are important but not controlling on 

the issue of whether an allegation ofincompetence is proved. 

70. Dr. Eric Mukai again examined Capt. Plender on April 9, 2012 and found him 

"recommended competent", CG 719K dated 4/9/12, Respondent Exhibit E; 

40 
ACCEPTED BUT NOT INCORPORATED. Dr. Mukai checked the box entitled "recommended 

competent." Further, he does not opine that Respondent's risk ofsudden incapacitation or 

sudden death is equal to or less than that ofthe general population therefore, Dr. Mukai's opinion 

is accorded less weight than that ofDr. Gillis. 

71. Dr. Gillis admitted that nowhere in NVlC04-08 does it say that ejection fraction oflower
 

than 40% are a [sic] disqualifying factor for a medical waiver (T. 120-1);
 

ACCEPTED BUT NOT INCORPORATED. Detennining whether Respondent is qualified for 

his Merchant Mariner duties and detennining whether the allegation ofincompetence due to 

physical disability is proved depends on many factors and combinations offactors, not just a low 

ejection fraction. 

72. Dr. Gillis admitted that a successful stress test is an important consideration in evaluating 

risk for a person with low EF (T. 122); 

ACCEPTED BUT NOT INCORPORATED. It is not the only consideration. 

73. Dr. Gillis also admitted that it is true that persons with an lCD stand a better chance of 

survival with those who do not (T. 123); 

ACCEPTED BUT NOT INCORPORATED. In its medical detennination, the Coast Guard 

considered Respondent's lCD. The undersigned also considered Respondent's lCD in finding 

the allegation ofincompetence due to physical disability proved. While an lCD might save 

Respondent's life, it may also cause incapacitation leaving him unable to perfonn his duties; 

thus, survivability alone it not dispositive on whether Respondent is incompetent due to physical 

disability. 

74. Dr. Gillis admitted that the Coast Guard does not conduct personal physical examinations of 

mariners because they "don't have the man power for that" (T. 124-5); 

NOT ACCEPTED. There is no indication Respondent's medical records are incomplete. 

Assuming Respondent's claims ofphysical capabilities are correct and assuming the diagnosis of 

his treating cardiologist is correct, the medical records are sufficient for Dr. Gillis to render a 

medical opinion that Respondent's risk ofsudden incapacitation or sudden death is greater than 

that ofthe general population. The undersigned does not accord Dr. Gillis's opinion less weight 

simply because the Coast Guard did not conduct a physical examination ofRespondent. Further, 

the Commandant also concluded "[a]ssessing Mr. Plender's physical capabilities to perfonn his 

duties as chiefmate would not be applicable towards determining the risk factor associated with 

the condition ofhis heart." CG Ex. 04. 

75. Dr. Gillis admitted that an lCD is considered disqualifying generally for federal motor 

carriers (T. 128); 

NOT ACCEPTED. The Coast Guard's reasons for finding Respondent not medically qualified 

are set forth in CG Exhibits 2, 3, and 4. Whether another agency considers an lCD disqualifying 

is not controlling on the Coast Guard's medical qualification detenninations, nor is it controlling 

in detennining whether Respondent is incompetent due to physical disability. 
.~

76. Dr. Gillis also admitted, in reviewing the article labeled as Respondent's Exhibit A, that 

federal motor carriers have an EF cut-off equal to or less than 40% (T. 128); 

NOT ACCEPTED. Assuming the information contained in Exhibit A is correct, medical 

standards set by other agencies are not dispositive of Coast Guard medical qualification 

determinations and likewise not dispositive on ALI determinations of incompetence due to 

physical disability. 

77. Dr. Gillis stated on re-direct examination on examining Dr. Sesselberg's letter that "even 

with none ofthe five risk factors, folks who have an ICD with this low ejection fraction are at a 

significantly higher risk than the general population for sudden death." (T. 132). This represents 

ongoing evidence that the Coast Guard considers the presence of an ICD and low EF sufficient to 

deny a medical waiver request; 

NOT ACCEPTED. As explained earlier in this decision and order, the ALI's duties do not 

include ruling on the Coast Guard's separate administrative determination that Respondent is not 

medically qualified for his Merchant Mariner duties. The Coast Guard explained in CG Exhibits 

2,3, and 4 the reasons for denying Respondent's medical waiver request. Those exhibits speak 

for themselves. These suspension and revocation proceedings are an independent evaluation of 

the medical evidence to determine whether Respondent is incompetent due to physical disability. 

78. Dr. Gillis admitted that the Coast Guard is unable to quantify how much additional risk 

Capt. Plender's service would represent above that ofthe general public. Specifically, it is 

unable to say whether the percentage of greater risk is 1%, 3%, 4% or higher. That higher risk 

could even be as small as .0001%. Dr. Gillis simply could not say. 

NOT ACCEPTED. This suspension and revocation decision is based on a finding that 

Respondent's medical conditions, including ischemic cardiomyopathy, reduced ejection fraction, 

and placement of an lCD, put Respondent at a higher risk for sudden incapacitation or sudden 

death than that ofthe general population. As discussed above, it is unnecessary to quantify 

further Respondent's risk of sudden incapacitation or sudden death for the purpose of promoting 

safety at sea. The regulations at 46 C.F.R. § 5.569 direct that the sanction ofrevocation be 

imposed for any finding of Incompetence. 

RESPONDENT'S PROPOSED CONCLUSIONS OF LAW: 

1. The Coast Guard's complaint dated November 22,2011 alleges "incompetence" against Capt. 

Plender's, [sic] based on the statutory authority of 46 U.S.C. § 7703(4) and the regulatory 

authority of46 CSF [sic] § 5.31 (Complaint); 

NOT ACCEPTED as a conclusion oflaw. It is a statement offact. A conclusion oflaw obtains 

by applying the law to the facts found. It is not a statement ofthe law. 

2. The statute cited by the Coast Guard as authority for charging Capt. Plender with 

"Incompetence" states, in relevant part, as follows: 

"a license, certificate ofregistry, or merchant mariner's document issued by the 

Secretary may be suspended or revoked ifthe holder- (4) has committed an act 

42 
of incompetence relating to the operation of a vessel" (46 CFR [sic]
 

§7703(4)(sic);
 

NOT ACCEPTED as a conclusion oflaw. It is a statement ofthe law. 

3. The regulation cited by the Coast Guard as authority for charging Capt. Plender with 

"Incompetence" states as follows: 

"Incompetence is the inability on the part of a person to perform required duties, 

whether due to professional deficiencies, physical disabilities, mental incapacities, 

or any combination thereof." 46 CFR §5.31; 

NOT ACCEPTED as a conclusion oflaw. It is a statement of a regulation, except under 46 

C.F.R. § 5.31 "physical disability and mental incapacity" are singular. 

4. Except for affirmative defenses, or as otherwise provided by statute or rule, the Coast Guard 

bears the burden ofproofin this action. 33 CFR §20.702; 

NOT ACCEPTED as a conclusion oflaw. It is a statement ofregulation absent application of 

the facts in this case. 

5. The party that bears the burden ofproofshall prove his or her case or affirmative defense by a 

preponderance ofthe evidence. 33 CFR §20.701; 

NOT ACCEPTED as a conclusion oflaw. It is a statement ofregulation absent application of 

the facts in this case. 

6. In order to meet the "preponderance ofthe evidence" standard, the ALJ must be convinced 

that the existence of a fact is more probable than not. Concrete Pipe and Products of California 

v. Construction Laborers Pension Trust for Southern California, 508 US 602, 622 (1993) (citing 

In Re: Winship, 397 US 358, 371-2 (1970) (Harlan, J., concurring) App. Dec. 2670 (WAIN) 

(2007) at 10; 

NOT ACCEPTED as a conclusion oflaw. It is a statement ofthe law as expressed in case law 

absent application of the facts in this case. 

7. It is the function of the Administrative Law Judge ("ALJ") to resolve conflicts in testimony 

and issues of credibility. The question ofwhat weight to accord the evidence is committed to the 

discretion ofthe ALJ. App. Dec. 2675 (MILLS) (2008); 

NOT ACCEPTED as a conclusion oflaw. It is a statement ofthe law as expressed in a 

Commandant's Decision on Appeal absent application ofthe facts in this case. 

8. The findings ofthe ALJ need not be completely consistent with all the evidence in the record 

as long as sufficient evidence exists to reasonably justify the findings. App. Dec. 2652 

(MOORE) (2005); 

NOT ACCEPTED as a conclusion oflaw. It is a statement ofthe law as expressed in a 

Commandant's Decision on Appeal absent application ofthe facts in this case. 

43 
9. The ALI is not necessarily bound by medical findings or opinions. App. Dec. 2547 

(PICCIOLO) (1992) at 4; 

NOT ACCEPTED as a conclusion oflaw. It is a statement ofthe law as expressed in a 

Commandant's Decision on Appeal absent application ofthe facts in this case. 

10. The ALI has broad discretion in making determinations regarding the credibility of evidence 

and resolving inconsistencies of evidence, but that discretion cannot extend beyond the 

substantive evidence on the record. App. Dec. 2664 (SHEA) (2007) at 9-10; App. Dec. 2547 

(PICCIOLO) (1992) at 4; 

NOT ACCEPTED as a conclusion oflaw. It is a statement ofthe law as expressed in a 

Commandant's Decision on Appeal, absent application ofthe facts in this case. 

11. All conclusions oflaw reached by the ALI must accord with law, precedent and public 

policy. 33 CFR §20.101(b)(2); 

NOT ACCEPTED as a conclusion oflaw. It is a statement ofregulation absent application of 

the facts in this case. 

12. Simply identifying a medical condition and its potential debilitating medical effects upon a 

mariner does not prove physical incompetence. App. Dec. 2547 (PICCIOLO) (1992) at 3; 

NOT ACCEPTED as a conclusion oflaw. It is a statement oflaw taken from a COlllIpandant 

Decision on Appeal absent application ofthe facts in this case. In HOCKING, the Vice 

Commandant states as follows: 

In the Picciolo case, Mr. Picciolo suffered from diabetes and was found by a 

Coast Guard ALI to be physically incompetent to hold a Merchant Mariner 

Credential due to episodes ofhigh blood sugar, irrespective ofthe fact that the 

most recent fitness for duty assessment by a physician had found him fit for duty. 

Following Mr. Picciolo's appeal, the Commandant remanded the case to the ALI 

because the record lacked evidence ofwhether Mr. Picciolo's blood sugar level 

could be controlled only through a periodic monitoring program, whether such a 

program was compatible with available medical services at sea or ashore, whether 

such a program would unduly interfere with Mr. Picciolo's ability to perform his 

duties, and the level ofrisk that Mr. Picciolo would pose to fellow crewmembers 

and a ship at sea ifhe failed to follow a prescribed medical program. 

The Picciolo decision stated that although the ALI had correctly found the 

respondent's diabetic condition had been poorly controlled in the past, the 

medical testimony from his more recent medical care indicated that his condition 

was then satisfactorily controlled and "it could not be reasonably inferred that he 

would return to a poorly controlled level should he return to sea." 

Contrary to Respondent's argument, the definition ofincompetence set forth in 46 

C.F.R. 5.31 does not "speak[] entirely in the present tense," and the Picciolo 

case does not suggest that it does. [Internal citation omitted]. Rather, Picciolo 

44 
supports the proposition that a mariner's medical competence must be determined 

not based solely on a past incident but by reference to competent medical 

testimony concerning the individual's condition and necessary treatment, and the 

risks they present. [Emphasis added]. 

Appeal Decision 2698 (HOCKING) (2012) at 13, 14. 

The instant decision and order applies competent medical testimony concerning Mr. Plender's 

condition, necessary treatment, and risks his condition presents. See also Appeal Decision 2664 

(SHEA) (2007). 

13. There must be evidence on the record that tends to prove that the appellant is unable to
 

perform the required duties expected of a merchant mariner's License. App. Dec. 2547
 

(PICCIOLO) (1992) at 3;
 

NO ACCEPTED as a conclusion oflaw for the reasons set forth in the ruling on proposed
 

conclusion oflaw 12.
 

14. It is not sufficient to sustain a finding ofincompetence for an Investigating Officer to
 

speculate that a mariner would not under certain circumstances be fit for duty. The ultimate
 

issue is whether the appellant can perform the functions expected ofhim as a holder of his
 

License. App. Dec. 2547 (PICCIOLO) (1992) at 3-4;
 

NOT ACCEPTED as a conclusion oflaw for the reasons set forth in the ruling on proposed
 

conclusion oflaw 12.
 

15. The "incompetence" for which the deposit of a seaman's certificate is made includes any 

inability at the particular time ofthe deposit on the part ofthe Seaman to perform his particular 

duties on a ship while at sea, whether due to physical disability, mental incapacity or some 

combination ofboth. Juan v. Grace Line, Inc., 299 F.Suppl. 1259 (S.D.N.Y. 1969); 

NOT ACCEPTED as a conclusion oflaw. It is a statement ofthe law as expressed in a U.S. 

District Court decision without application ofthe facts in this case. See also, the ruling on 

.proposed conclusion oflaw number 12. 

16. The Coast Guard has not succeeded in proving "incompetence" under 46 U.S.C. §7703(4) 

unless it can prove that at the time ofhis deposit ofthe license (ofthe April 24, 2012 hearing), 

Capt. Plender was unable at that particular time to perform his particular duties aboard a ship at 

sea. Juan v. Grace Line, Inc., 299 F.Supp. 1259 (S.D.N.Y. 1969); 

NOT ACCEPTED. The Coast Guard's allegation ofincompetence due to physical disability is 

proved. 

17. Because the Coast Guard was unable to prove that, at the time ofhis April 24, 2012 hearing, 

Capt. Plender was unable to perform any ofthe specific physical tasks required of his license 

grade, the Coast Guard failed to meet its burden ofproof, and accordingly, the Coast Guard's 

Complaint must be dismissed. Juan v. Grace Line Inc., 299 F.Supp. 1259 (S.D.N.Y 1969); 33 

CFR §20.701-702. 

45 
NOT ACCEPTED. The Coast Guard's allegation ofincompetence due to physical disability is 

proved. See also, the rulings on proposed conclusion oflaw numbers 12 and 15. 

18. No otherwise qualified individual with a disability in the United States as defined by Section 

705(20) of 29 USC shall, solely by reason of his or her disability, be excluded from the 

participation in, be denied the benefit of, or be subjected to discrimination under any program or 

activity receiving federal financial assistance or under any program or activity conducted by an 

executive agency. 29 USC §794(a); 42 USC §11211 et seq.; 

NOT ACCEPTED as a conclusion oflaw. The Administrative Law Judge in Coast Guard 

suspension and revocation proceedings has no authority to rule on matters outside the scope of 

46 U.S.C. Chapter 77 in these proceedings. See 46 C.F.R. § 5.19; 33 C.F.R. § 20.101; see also 5 

U.S.C. § 556(c) and The Attorney General's Manual on the APA § 7(b) (1947). 

19. A mariner is a "person with a disability" within the meaning of 29 USC §794(a), and 49 

USC §12102, by sole virtue of the fact that his medical waiver has been denied, he is currently 

"regarded as having an impairment" by the Coast Guard. 29 USC §794; 49 USC §12102; 

NOT ACCEPTED for the same reasons set forth in the ruling on proposed conclusion oflaw 18. 

20. Capt. Plender is an otherwise qualified individual with a disability within the meaning of the 

Rehabilitation Act of 1974; 

NOT ACCEPTED for the same reasons set forth in the ruling on proposed conclusion oflaw 18. 

21. A qualifying person with a disability within the meaning of29 USC §794 is entitled to an 

individualized review. School Board of Nassau County Florida v.Arline, 480 US 273, 287 

(1987) (case by case analysis must gather and analyze all relevant information regarding an 

individual's work history and medical history and thoroughly assess ability to perform duties of 

the job involved); Cleveland Board ofEducation v. LaFleur, 414 US 632 (1974); Stillwell v. 

Kansas City Board of Police Commissioners, 872 F. Supp. 682 (W.D. Mo. 1995); Bombrys v. 

City ofToledo, 849 F. Supp. 1210, 1219 (N.D. Ohio, 1993) (blanket exclusions violate 

Rehabilitation Act); 

NOT ACCEPTED for the same reasons set forth in the ruling on proposed conclusion oflaw 18. 

22. NVIC 04-08, Condition 81 authorizes blanket exclusions or across the board cut-offs for 

medical waivers requested by persons with an ICD. NVIC 04-08, Condition 81 (anti-tachycardia 

devices or implantable defibrillators "generally not waiverable"); 

NOT ACCEPTED as a conclusion oflaw because it is argumentative. The NVIC 04-08 speaks 

for itself. The medical evidence presented in the instant case supports the allegation of 

incompetence due to physical disability. See also the ruling on proposed conclusion oflaw 18. 

23. By applying blanket exclusions or across-the board cut-offs against Capt. Plender, the Coast 

Guard violated the Rehabilitation Act of 1974, and Capt. Plender's due process rights under the 

Fifth Amendment ofthe United States Constitution. 

NOT ACCEPTED for the reasons set forth in the ruling on proposed conclusion oflaw 18. 

46
 
24. Failure on the part ofthe Coast Guard to follow the legally mandated procedural 

requirements of a federal statute, such as the Rehabilitation Act of 1974, also comprises a 

violation ofthe due process provision ofthe Fifth Amendment ofthe United States Constitution. 

International Union, United Government Security Officers ofAmerica v. Clark, 704 F. Supp. 2d 

54 (D.D.C., 2010) (Rehabilitation Act does not preempt Fifth Amendment claim); 

NOT ACCEPTED for the reasons set forth in the ruling on proposed conclusion oflaw 18. 

25. The Coast Guard failed to meet its burden ofproving that Capt. Plender is not medically 

competent because it failed to produce any evidence that he is presently incapable of performing 

the functions of a licensed ship's master. Juan v. Grace Line, Inc., 299 F.Supp. 1259 (S.D.N.Y. 

1969); App. Dec. 2547 (PICCIOLO) (1992); 

NOT ACCEPTED. The Coast Guard's allegation ofincompetence due to physical disability is 

proved. See also, the ruling on proposed conclusion of law number 12. 

26. Because the Coast Guard cited as its authority for charging Capt. Plender with Incompetence 

46 U.S.C. §7703(4) and 46 CFR §5.31, the two must be read together to determine the elements 

required to be proven by the Coast Guard. When reading the statute and the regulation together, 

they show that the Coast Guard was required to meet the following elements to sustain its burden 

ofproving Capt. Plender "Incompetent": 

(1) that Capt. Plender was unable to perform; (2) required duties; (3) due to a physical disability; 

and that all ofthese elements were (4) committed (past tense), relating to the operation of a 

vessel. (46 U.S.C. §7703(4); 46 CFR §5.31[sic]; 

NOT ACCEPTED. Reading the statute and regulation together provides for the following 

elements for physical incompetence: (1) the mariner committed an act; (2) that demonstrated the 

inability to perform required duties due to physical disability; (3) relating to the operation of a 

vessel. Mr. Plender committed an act when he suffered a severe heart attack in March, 2009. 

That act demonstrated an inability to perform required duties because the heart attack completely 

incapacitated Respondent, required life-saving medical treatment, and kept him from returning to 

work until October 2009. The act is relating to the operation of a vessel because a 

preponderance ofthe reliable, probative, and credible evidence shows that because of his 

underlying cardiac conditions, damage to his heart and the placement of an lCD, Respondent is a 

greater risk for sudden incapacitation or sudden death than the general population. See also 

Analysis, pp. 12-20, supra. 

27. Because the Coast Guard was unable to prove Capt. Plender incapable of any ofthe physical 

tasks required ofthe holder of a chiefmate's license on the date ofthe hearing (April 24, 2012), 

the Coast Guard was unable to prove that Capt. Plender was (1) unable to perform; (2) required 

duties; (3) due to physical disability; and that all these elements were (4) committed relating to 

the operation ofa vessel. 46 U.S.C. §7703(4); 46 CFR §5.31. 

NOT ACCEPTED for the reasons contained in proposed conclusion oflaw number 26. 

47
 
----=-:--­ .,.-, ...-­

29[sic]. The Coast Guard has no evidence at the hearing whatsoever that Capt. Plender had ever 

committed an act ofincompetence while serving aboard a vessel, within the meaning of46 

U.S.C. §7703(4) and 46 CFR §5.31.\ Juan v. Grace Line, Inc., 299 F.Supp. 1259 (F.D.M.Y. [sic] 

1969) (requiring proof of inability to perform duties at the time ofthe document deposit). 

NOT ACCEPTED. Since August 9,2004 the law does not require the mariner to be serving 

under the authority of his license at the time ofthe act ofincompetence. The preponderance of 

reliable, probative, and credible evidence shows that when Mr. Plender suffered a severe heart 

attack in March 2009 he committed an act that demonstrated an inability to perform required 

duties due to physical disability even though he was not aboard a vessel or acting under the 

authority of his license at the time. 

48 
-----

ATTACHMENT C
 

TITLE 33 - NAVIGATION AND NAVIGABLE WATERS
 

CODE OF FEDERAL REGULATIONS
 

PART 20 RULES OF PRACTICE, PROCEDURE, AND EVIDENCE FOR FORMAL
 

ADMINISTRATIVE PROCEEDINGS OF THE COAST GUARD
 

SUBPART J - APPEALS 

§ 20.1001 General. 

(a)	 Any party may appeal the ALJ's decision by filing a notice of appeal. The party 

shall file the notice with the U. S. Coast Guard Administrative Law Judge Docketing 

Center; Attention: Hearing Docket Clerk; Room 412; 40 S. Gay Street; Baltimore, 

MD 21201-4022. The party shall file the notice 30 days or less after issuance ofthe 

decision, and shall serve a copy ofit on the other party and each interested person. 

(b)	 No party may appeal except on the following issues: 

(1) Whether each finding offact is supported by substantial evidence. 

(2) Whether each conclusion oflaw accords with applicable law, precedent, and 

public policy. 

(3) Whether the ALJ abused his or her discretion. 

(4) The ALI's denial of a motion for disqualification. 

(c)	 No interested person may appeal a summary decision except on the issue that no 

hearing was held or that in the issuance ofthe decision the ALJ did not consider 

evidence that that person would have presented. 

(d)	 The appeal must follow the procedural requirements ofthis subpart. 

§ 20.1002 Records on appeal. 

(a) The record ofthe proceeding constitutes the record for decision on appeal. 

(b) Ifthe respondent requests a copy ofthe transcript ofthe hearing as part ofthe record 

ofproceeding, then, -­

(1)	 Ifthe hearing was recorded at Federal expense, the Coast Guard will provide 

the transcript on payment ofthe fees prescribed in 49 CFR 7.45; but, 

(2)	 If the hearing was recorded by a Federal contractor, the contractor will 

provide the transcript on the terms prescribed in 49 CFR 7.45. 

§ 20.1003 Procedures for appeal. 

(a) Each party appealing the ALI's decision or ruling shall file an appellate briefwith the 

Commandant at the following address: U.S. Coast Guard Administrative Law Judge 

Docketing Center; Attention: Hearing Docket Clerk; Room 412; 40 S. Gay Street; 

Baltimore, MD 21201-4022, and shall serve a copy ofthe briefon every other party. 

(1) The appellate briefmust set forth the appellant's specific objections to the 

decision or ruling. The briefmust set forth, in detail, the -­

(i) Basis for the appeal; 

49 
.~.. 

(ii) Reasons supporting the appeal; and 

(iii) Reliefrequested in the appeal. 

(2) When the appellant relies on material contained in the record, the appellate 

briefmust specifically refer to the pertinent parts ofthe record. 

(3) The appellate briefmust reach the Docketing Center 60 days or less after 

service ofthe ALl's decision. Unless filed within this time, or within another 

time period authorized in writing by the Docketing Center, the briefwill be 

untimely. 

(b) Any party may file a reply briefwith the Docketing Center 35 days or less after 

service of the appellate brief. Each such party shall serve a copy on every other party. 

Ifthe party filing the reply brief relies on evidence contained in the record for the 

appeal, that briefmust specifically refer to the pertinent parts ofthe record. 

(c) No party may file more than one appellate brief or reply brief, unless -­

(1) The party has petitioned the Commandant in writing; and 

(2) The Commandant has granted leave to file an added brief, in which event the 

Commandant will allow a reasonable time for the party to file that brief. 

(d) The Commandant may accept an amicus curiae brief from any person in an appeal of 

an ALl's decision. 

§ 20.1004 Decisions on appeal. 

(a) The Commandant shall review the record on appeal to determine whether the ALl 

committed error in the proceedings, and whether the Commandant should affirm, 

modify, or reverse the ALl's decision or should remand the case for further 

proceedings. 

(b) The Commandant shall issue a decision on every appeal in writing and shall serve a 

copy ofthe decision on each party and interested person. 

50