UNITED STATES OF AMERICA 

U.S. DEPARTMENT OF TRANSPORTATION 

UNITED STATES COAST GUARD 

UNITED STATES COAST GUARD 

Complainant 

vs. 

JOSEPH I. KINNEARY, 

Respondent. 

Docket Number CO S&R 02-0085 

CO Case No. 1476643 

ORDER 

Issued: March 12, 2003 

Issued bv: Peter A. Fitzpatrick, Administrative Law Judge 

1. The Decision and Order in this case was issued on February 20, 2003 finding the 

jurisdictional and factual allegations of the Complaint PROVED. Both sides were 

afforded an opportunity to submit recommendations with regard to sanctions ordered 

against the Coast Guard credentials. Pleadings have been submitted and I have 

considered those recommendations. I am persuaded that the Investigating Officer's 

recommendation seeking Outright Suspension of the Respondent's License and 

Document for 12 months with an additional 6-month suspension remitted on a 12-month 

period of probation is reasonable under the circumstances of this case. The Suggested 

Range of an Appropriate Order codified at 46 CFR 5.569 suggests a 12-24 month 

suspension for mariners who refuse to take a chemical test. This case involves a serious 

offense by a licensed officer whose testimony at the hearing raised grave concerns 
regarding his credibility. Indeed, Mr. Kinneary urged in his defense that he substituted or 

diluted his urine sample on two previous DOT chemical tests for dangerous drugs. If this 

assertion is true, his certifications on the Drug Testing Custody and Control Forms 

involved necessarily were false. Although the Coast Guard has not charged the mariner 

with those alleged offenses, Mr. Kinneary' s admitted actions do not reflect well on his 

conduct as a licensed officer in the Merchant Marine. 

2. Accordingly, IT IS HEREBY ORDERED that all Licenses and Documents issued to 

Joseph Kinnearyby the United States Coast Guard are Suspended Outright for a period 

of 12 months beginning immediately upon tender of those credentials to the Investigating 

Officer at U.S. Coast Guard Activities New York, Prevention and Compliance- I&A 

Division, Staten Island, New York. Additionally, upon completion of the 12-month 

period of Outright Suspension, the License and Document will be returned to the 

Respondent at which time he will be placed on 12 months probation. If during the period 

of probation he violates any laws or regulations involving marine safety or the use of 

alcohol or dangerous drugs, his credentials will be Suspended Outright for a six-month 

period in addition to any other suspension issued by a Judge in a subsequent proceeding. 

3. IT IS FURTHER ORDERED THAT MR. KINNEARY IS HEREBY ORDERED 

TO SURRENDER HIS LICENSE AND DOCUMENT TO THE ABOVE-NAMED 

OFFICE OF THE UNITED STATES COAST GUARD ON OR BEFORE MARCH 

18, 2003. 

2 
Done and Dated on March 12, 2003 at 

Norfolk, VA 

3 
Certificate of Service 

I hereby certify that I have this day served the foregoing document(s) upon the following 

parties and limited participants (or designated representatives) in this proceeding at the address 

indicated by Federal Express: 

L T Brian Province 

U.S. Coast Guard Activities New York 

212 Coast Guard Drive 

Staten Island, NY 10305 

Phone: 718-354-4388 

Michael H. Sussman, Esq. 

The Goshen Inn 

40 Park Place 

Goshen, New York 1 0924 

Phone: 845-294-3991 

Joseph J. Kinneary 

3 Penrose Lane 

East Northport, NY 11731 

Phone: 631-858-1886 

Done and Dated on March , 2003 at 

Norfolk, VA 

Lucinda H. Shinault, CLA 

Legal Assistant to the Administrative Law Judge 

4 
UNITED STATES OF AMERICA 

U.S. DEPARTMENT OF TRANSPORTATION 

UNITED STATES COAST GUARD 

UNITED STATES COAST GUARD 

Complainant 

vs. 

JOSEPH J. KINNEARY, 

Respondent. 

Docket Number CG S&R 02-0085 

CG Case No. 1476643 

DECISION AND ORDER 

Issued: February 20, 2003 

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Issued bv: Peter A. Fitzpatrick, Administrative Law Judge 

APPEARANCES 

FOR THE COAST GUARD 

L T Brian Province 

CWO Charles Cobb 

U.S. Coast Guard Activities New York 

212 Coast Guard Drive 

Staten Island, NY 10305 

FOR THE RESPONDENT 

Michael H. Sussman, Esq. 

40 Park Place 

Goshen, New York 10924 

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I. 

PRELIMINARY STATEMENT 

This case began on February 7, 2002 when the Coast Guard filed a Complaint against 

Joseph J. Kim1eary alleging essentially that the mariner refused to submit to a random drug test. 

The Factual Allegations preferred are as follows: 1 

1. The Coast Guard alleges that on 12/27/01 at New York City DEP 

facility at Ward's Island, New York, you wrongfully refused to submit 

to a random drug test, conducted pursuant to Title 46 United States 

Code (USC) 7702(c)(2) and Title 46 Code of Federal Regulations 

(CFR) Part 16.230, as directed by his Marine Employer. 

2. That you were reporting for your shift as Master of the MN 

NEWTOWN CREEK (D513032) at Ward's Island, NY when advised 

by DEP employee, Mr. Keith Marinoff, that he had been selected for a 

Random Chemical Test. 

3. That the random chemical test selection, the specimen collection and 

Medical Review Officer determination were provided by 

consortium/third party administrator, N.E.D.P.C. of90 Maiden Lane, 

41h floor, New York, NY 10038. 

4. That N.E.D.P.C. collector Walter Drain, allowed you three (3) hours to 

provide a urine specimen IA W Title 49 CFR Part 40.193(b)(4) during 

which time no specimen was provided. Fluid was provided for your 

intake IAW 49 CFR 40.193(b)(2). 

5. That you were allowed five days to provide an evaluation from a 

licensed physician who would recommend that the Medical Review 

Officer (MRO) make one of the following determinations: (1) A 

medical condition has or with a high degree of probability could have, 

precluded the respondent from providing a sufficient amount of urine 

(45) ml.; (2) There is not an adequate basis for determining that a 

1 The Jurisdictional Allegations are: 

1. Respondent's address is as follows: 3 Penrose Path, East Northport, NY 1 t 731, telephone 631-858-

1886 

2. Respondent holds the following Coast Guard-issued credential(s): License Number 035506, MMD 

Number 134 46 5008 

3. Respondent acted under the authority of that license and document. on December 27,2001, by: serving 

as Master aboard the vessel NEWTO\VN CREEK as required by an employer as a condition of 

employment. 

2 
medical condition has, or with a high degree of probability could have, 

precluded the employee from providing a sufficient amount of urine. 

6. That on January 3, 2002 you provided a note on a prescription pad from 

A.D. Calderbank, M.D. of 184 Larkfield Road East Nortport, NY 

11731 dated 28 Dec. 01 stating, "This man has shy bladder syndrome'-

this is a chronic condition that can be helped using a B (Beta) blocker 

(Thoreax) which I have given him. He is not a substance abuser." This 

evaluation was based on a single interview with the respondent. 

7. That N.E.D.P.C. MRO Dr. Mark Horowitz reviewed Dr. Calderbank's 

note, interviewed him regarding his evaluation and found no medical 

reason to explain the inability to void. Dr. Horowitz signed the 

Custody and Control form indicating a refusal to test IA W 49 CFR 

40.193 ( d)(2). 

8. That 49 CFR 40.193(e) calls for a [ ... medically documented preexisting psychological disorder, but does not include unsupported 

assertions of"situational anxiety" or dehydration.] 

The Respondent's Answer was timely filed on February 21, 2002 and all Jurisdictional 

Allegations were Admitted. Factual Allegations Numbers 1, 6 and 7 were Denied and the others 

(Numbers 2-5 and 8) were Admitted. 

The Undersigned was assigned to the case by Order of the Chief Administrative Law 

Judge on February 27, 2002. Ultimately, the hearing was set for October 16, 2002 at New York 

City. At the hearing, the Investigating Officers, the Respondent and his counsel, were present. 

The Coast Guard sponsored 2 witnesses: Peter Brucas, Executive Vice President, N.E.D.P.C., 

and Dr. Mark Horowitz, MD, Medical Review Officer, N.E.D.P.C. The Coast Guard offered 3 

exhibits. The Respondent also sponsored 2 witnesses: Walter Drain, Collection Site Person, 

N.E.D.P.C., and Mr. Kinneary. The Respondent offered 15 exhibits. All exhibits offered by 

both sides were Admitted. A listing of evidence is set out at Attachment B. 

At the conclusion of the hearing, the pleadings were scheduled. Subsequently, it was 

discovered that Respondent's counsel had been suspended from the practice oflaw in New York 

3 
State at the time the hearing was conducted. In view of the fact that the evidentiary hearing was 

completed and the record closed when this situation was uncovered, that only post hearing 

submissions remained to be filed, and importantly, that Mr. Kinneary expressed his desire to 

continue to be represented by Mr. Sussman, the suspended attorney was allowed to file the 

scheduled submissions. See Orders ofNovember 7, November 19, November 21, and December 

4, 2002. A pleading entitled "Findings of Fact and Conclusions of Law" was submitted by the 

Investigating Officer on December 31, 2002. Respondent's "Proposed Findings of Fact and 

Conclusions of Law" was submitted on January 2, 2003. Reply briefs from the Respondent" 

(January 15, 2003) and the Coast Guard (January 21, 2003) were also received. This case is now 

ripe for decision. 

II. 

FINDINGS OF FACT 

A. Jurisdictional Allegations Admitted bv the Respondent in the Answer 

1. Respondent's address is as follows: 3 Penrose Path, East Northport, NY 11731, 

telephone 631-858-1886 

2. Respondent holds the following Coast Guard-issued credential(s): License Number 

035506, MMD Number 134 46 5008 

3. Respondent acted under the authority of that license and document, on December 2 7, 

2001, by: serving as Master aboard the vessel NEWTOWN CREEK as required by 

an employer as a condition of employment. 

B. Factual Allegations Admitted bv the Respondent in the Answer 

2. That you were reporting for your shift as Master of the M/V 

NEWTOWN CREEK (D513032) at Ward's Island, NY when advised by 

DEP employee, Mr. Keith Marinoff, that he had been selected for a 

Random Chemical Test. 

3. That the random chemical test selection, the specimen collection and 

Medical Review Officer determination were provided by 

consortium/third party administrator, N.E.D.P.C. of90 Maiden Lane, 4th 

±1oor, New York, NY 10038. 

4 
4. That N.E.D.P.C. collector Walter Drain, allowed you three (3) hours to 

provide a urine specimen IA W Title 49 CPR Part 40.193(b)( 4) during 

which time no specimen was provided. Fluid was provided for your 

intake IAW 49 CFR 40.193(b)(2). 

5. That you were allowed five days to provide an evaluation from a 

licenses physician who would recommend that the Medical Review 

Officer (MRO) make one of the following determinations: (1) A 

medical condition has or with a high degree of probability could have, 

precluded the respondent from providing a sufficient amount of urine 

(45) ml.; (2) There is not an adequate basis for determining that a 

medical condition has, or with a high degree of probability could have, 

precluded the employee from providing a sufficient amount of urine. 

8. That 49 CPR 40.193(e) calls for a [ ... medically documented preexisting psychological disorder, but does not include unsupported 

assertions of "situational anxiety" or dehydration.] 

C. Other Facts 

1. Joseph Kinneary was the holder of Coast Guard License No. 035506 and Merchant 

Mariner's Document No. 134 46 5008 on December 27,2001 when he was selected to take 

a random chemical test for dangerous drugs. At the time, he was an employee of the City 

ofN ew York Department of Environmental Protection, Marine Division C, and was 

assigned to serve as Master of the M/V NEWTOWN CREEK (D513032). 

2. Mr. Walter Drain was the Collection Site Person assigned by the firm N.E.D.P.C. He had 

eight years experience in U.S.Department of Transportation urine drug screen collections. 

(Transcript, hereafter Tr., 145). He recognized Mr. Kinneary from previous collections 

since N.E.D.P.C. has the contract to perfonn urine drug tests with the City since 1994. (Tr. 

145-46). The collection was conducted at the City's Marine Division offices at 100 Wall 

Street. (IO Exhibit 1). 

5 
3. Mr. Drain conducted Mr. Kinneary's collection between 0710 and 1010 on December 27 

2001. Mr. Kinneary was unable to produce the urine specimen during that period. (Tr., 

157). Mr. Kinneary drank approximately 48 ounces of water during the three hour period 

but was unable to void. (Tr. 157). The entire collection period actually lasted for nearly 

3.5 hours. (Tr. 155). 

4. After the unsuccessful collection was terminated, Mr. Drain called Mr. Kinneary's 

supervisor (Mr. Chen) and his own supervisor, Mr. Brucas, Executive Vice President, 

N.E.D.P.C. (Tr. 38, 157). Next, Mr. Kinneary was transported to the City's Sanitation 

Department clinic approximately 45 minutes away. There, he was interviewed by Dr. 

Remy Obas, the Sanitation Department's physician. (Tr. 51). Dr. Obas concluded that 

there was no physical impediment preventing the Respondent from voiding. (Tr. 51-52). 

The Doctor gave Mr. Kimi.eary the Sanitation Department form entitled "Information and 

Instructions to Examining Physician." The form instructed him to obtain within five 

working days an evaluation from a licensed physician who has expertise in the medical 

issues raised by the Respondent's failure to produce a sufficient specimen and provide that 

data to the Medical Review Officer. (Rsp. Exhibit J). In pertinent part the form reads (Id.) 

As the referral physician conducting this evaluation you must 

recommend that the Medical Review Officer (MRO) make one of 

the following determinations: 

1. A medical condition has or with a high probability could 

have, precluded the employee from providing a sufficient 

amount of urine ( 45) ml. 

2. There is not an adequate basis for determining that a 

medical condition has, or with a high probability could 

have, precluded the employee from providing a sufficient 

amount ofurine. 

6 
3. As the referral physician you must provide a written 

statement of your recommendations and basis for review 

by the MRO. 

The Instmctions also noted that the Medical Review Officer would consider and assess the 

referral physician's recommendation. Finally, it cautioned that if there is no medical 

condition involved, a "refusal to test" marking will result and "disciplinary action will 

commence." (!d.). 

5. Dr. Obas's report was given to Mr. Bmcas, N.E.D.P.C. Executive Vice President who had 

arrived at the Clinic and he brought it to Dr. Mark Horowitz, the Medical Review Officer. 

Dr. Horowitz spoke with Mr. Kinneary that same day. (Tr. 105, 115-16). He gave the 

Respondent the opportunity to provide medical documentation to substantiate why he was 

unable to provide a specimen. (Tr. 1 05). The next day, on December 28, 2001 Dr. A.D. 

Calderbank, the referral physician who Mr. Kinneary visited, wrote the following note 

which was given to Dr. Horowitz: 

This man has 'shy bladder syndrome'- this is a chronic condition 

that can be helped by using an A blocker (Thoreax) which I have 

given him. He is not a substance abuser. 

Dr. Horowitz called Dr. Calderbank for further information and documentation of the 

described condition but no such documentation was available. Apparently, Mr. Kinneary 

had not visited the doctor about his urinary difficulties prior to the dmg test involved. (Tr. 

1 08). Dr. Horowitz was looking for a diagnostic test or entry in the patient's record 

indicating the existence of a condition. (Tr. 1 09). Dr. Horowitz concluded that there was 

insufficient data to determine that Mr. Kinneary had a medical condition on December 2_7, 

2001 that prevented him from providing a sufficient amount of urine. (Tr. 11 0). 

Accordingly, he signed the Federal Drug Testing Custody and Control Fonn (FDTCCF) 

7 
and checked the block "Refusal to Test." His comment was "Unable to void in 3 hrs. No 

sufficient medical explanation provided." (IO Exhibit 1). As a result, Mr. Kinneary was 

removed from his position as Master of the NEWTOWN CREEK. 

6. Later, Mr. Kinneary was examined by an urologist, Dr. William C. Porter and after various 

tests that specialist concluded that no physical abnormalities were involved. (Rsp. Exhibit 

E, IO Exhibit 3). 

7. On March 7, 2002 Mr. Kinneary submitted to an oral fluid (saliva) drug test and the results 

were negative. (Rsp. Exhibit F). He was allowed to return to work thereafter pending the 

outcome of this proceeding. (Tr. 234). 

8. Mr. Kinneary took and passed urine chemical tests for dangerous drugs on three occasions 

during the six years prior to the test involved here on December 27, 2001. They were 

conducted on April 10, 1996, July 16, 1997, and August 25, 1998. (IO Exhibit 2, Rsp. 

Exhibits A, B, and C). Those DTCCF were signed by Mr. Kinneary who certified as 

follows: 

I certify that I provided my urine specimen to the collector; that I have not 

adulterated it in any manner; that each specimen bottle used was sealed 

with a tamper-evident seal in my presence and that the information 

provided on this fom1 and on the label affixed to each specimen bottle is 

correct. 

9. Mr. Kinneary now asserts that he substituted water for his urine on two of those tests. (Tr. 

195-96). 

10. Mr. Kinneary also passed a urine drug test on October 2, 1992. (Rsp. Exhibit I). 

8 
III. 

STATUTES AND REGULATIONS INVOLVED 

1. This proceeding is governed by the Administrative Procedure Act , which is incorporated 

into these proceedings under 46 U.S. C. 7702, which reads: 

§ 7702. Administrative procedure 

(a) Sections 551-559 of title 5 apply to each hearing under this chapter about 

suspending or revoking a license, certificate of registry, or merchant mariner's 

document. 

2. 46 U.S.C. §§ 7701-7705 sets out the general procedures governing the suspension and 

revocation of merchant mariners' licenses and documents. 46 U.S.C. § 7702 (c)(2) 

provides in pertinent part that the Coast Guard (as delegated by the Secretary of the United 

States Department of Transportation) shall require drug tests for merchant mariners as 

follows: 

(2) The Secretary shall require the testing of the holder of a license, 

certificate of registry, or merchant mariner's document for use of alcohol 

and dangerous drugs in violation ofhiw or Federal regulation. The testing 

may include preemployment (with respect to dangerous drugs only), 

periodic, random, and reasonable cause testing, and shall include postaccident testing. 

3. The Coast Guard regulations governing chemical testing for dangerous drugs are codified at 

46 CFR § 16. 

4. The regulations governing the performance of chemical tests for dangerous drugs adopted 

by the United States Department of Transportation are codified at 49 CFR § 40. The 

section governing the procedures to be followed where an employee does not provide a 

sufficient amount of urine for a drug test is 49 CFR § 40.193. That rule in its entirety is set 

out at Attaclunent A. 

9 
IV. 

RULINGS ON RESPONDENT'S PROPOSED FINDINGS OF FACT AND 

CONCLUSIONS OF LAW 

On January 2, 2003, the Respondent submitted a pleading entitled Respondent's Proposed 

Findings of Fact and Conclusions of Law. My rulings on each are set out at Attachment C. 

The Investigating Officer's pleading entitled "Findings of Fact and Conclusions of Law" 

does not set out proposed findings. 

v. 

CONCLUSIONS OF LAW 

1. On December 27, 2001, Joseph J. Kinneary.was the holder of License No. 035506 and 

Merchant Mariner's Document Number 134 46 5008 issued by the U.S. Coast Guard. 

2. On that date the Respondent reported for assignment as Master of the NEWTOWN 

CREEK, a vessel owned and operated by the City ofN ew York, Environmental Protection 

Department, Marine Division. He was required to hold a Coast Guard license to serve as 

Master of that vessel. 

3. The Respondent was selected on a random basis for a chemical test for dangerous drugs 

pursuant to the Coast Guard and U.S. Department ofTransportation regulations. 

4. The Respondent's failure to produce a urine sample caused the Medical Review Officer to 

conclude that a Refusal to Test was involved. That conclusion is supported by the 

applicable law and regulations. 

5. The Jurisdictional and Factual Allegations of the Complaint are PROVED by the 

preponderance ofthe evidence. 

10 
VI. 

OPINION 

1. Congress has mandated that the holder of a Coast Guard License or Merchant Mariner's 

Document, serving aboard a U.S. vessel like Mr. Kinneary here, be subject to testing for the use 

of alcohol and dangerous drugs. (46 U.S.C. § 7702(c)(2)). Tests maybe conducted on a random 

basis as in this case. (!d.). The Coast Guard rules governing chemical testing for dangerous 

drugs are codified at 49 CFR part 16. The purpose of the regulations is to minimize the use of 

into xi cates in the merchant marine and to promote a drug free and safe work environment. ( 46 

CFR. 16.101). The rules provide that such testing is to be conducted "in accordance with the 

procedures detailed in 49 CFR part 40." (46 CFR 16.201(a)). 

The DOT regulations specifically cover instances where an employee engaged in the 

process of undergoing a drug test is unable to produce a sufficient amount of urine as is the case 

here. 49 CFR 40.193 which is reproduced in its entirely in a preceding section hereof, details the 

procedure to be followed. It includes urging the Donor to drink up to 40 ounces of fluid over a 

period up to three hours. 49 CFR 40.193(a)(3). Where a sufficient specimen is not produced, the 

collection must be discontinued and that fact noted on the "Remarks" line of the DTCCF. (!d. at 

40.193 (a)(4)). At that point, the Collector is to notify the so-called "designated employee 

representative" (DER). (Jd.). See also 49 CFR 40.3. In this case, Mr. Kinnerydid not produce a 

urine specimen during the nearly 3.5 hours the Collector Mr. Drain afforded him starting at 0710 

on December 27, 2001. (Tr. 155-56). When the collection was terminated over three hours later, 

Drain notified Mr. Chen, the Department of Environmental Protection, Marine Division, 

supervisor responsible for drug testing. Mr. Drain also advised his supervisor at N.E.D.P .C., Mr. 

Brucas. (Tr. 160). 

11 
The DOT regulations require that the DER, after consulting with the Medical Review 

Officer, direct the employee to obtain within five days, an evaluation from a licensed physician 

with expertise in the medical issues raised by the employee's failure to provide a sufficient 

specimen. ( 49 CFR 40.193( c). Here Mr. Chen directed Mr. Kinneary to go to the City Sanitation 

Clinic and visit the doctor there. Accordingly, Kinnery was driven to the clinic and Dr. Obas 

interviewed him. The doctor concluded that there was no physical reason for Mr. Kinneary's 

inability to produce a specimen. (Tr. 51). He gave Kinneary the Information and Instruction 

sheet which provided detailed information regarding the need to obtain an evaluation from a 

specialist within five days and send the Doctor's recommendation to the Medical Review 

Officer. (Tr. 211). At that point, Mr. Brucas conveyed the doctor's report to Dr. Mark Horowitz, 

the Medical Review Officer. (Tr. 52-53). Dr. Horowitz spoke with Mr. Kinneary and told him 

to see a doctor and provide medical documentation as to why he was unable to provide a 

specimen. (Tr. 105). The documentation received was the note from Dr. Calderbrank, dated 

December 28, 2001, the day following the unsuccessful collection, that stated: "this man has 'shy 

bladder syndrome' -this is a chronic condition which can be helped" by medication. The referral 

physician commented that the patient "is not a substance abuser." (Rsp. Exhibit D). Upon 

receipt of the note, Dr. Horowitz telephoned Dr. Calderbank. At the hearing, Dr. Horowhz 

described his reason for the call as follows: 

Q. What, in Dr. Calderbank's note, did you find insufficient in 

explaining Mr. Kinneary's condition? 

A. Quite simply, the doctor provided me with no documentation 

that Mr. Kinneary had visited previously, previous to the time of the 

testing, for documentation of his condition. 

12 
Q. Would you expect to see anything in the documentation that 

would explain Mr. Kinneary having a medical problem that would have 

prevented him from urinating on demand? 

A. I would expect to. 

Q. Did you see anything in the documentation that indicated shy 

bladdersymdrome? 

A. Not at all. 

Q. What would you find acceptable documentation of a preexisting medical condition? 

A. Documentation in the record pre-existing before the date of the 

test. 

Q. If you could be a little bit more descriptive. An en~ry? 

A. An entry in the patient's record, some diagnostic test, 

diagnostic test indicating existence of the condition. 

Q. Why couldn't it be a medical condition? 

A. We're talking about a specific medical illness. There are 

specific criteria for making diagnoses, and those criteria are usuallythose criteria are usually tested for and documented by a physician. I 

can't imagine a nonphysician testing for this condition. 

Q. Is it fair to say that only a physician is capable for documenting 

this condition? 

A. That's correct. 

(Tr. 1 08-09). 

The DOT regulations are explicit that the referral physician recommend that a medical 

condition with a high degree of probability has or could have precluded the employee from 

providing a sufficient amount ofurine. (49 CFR 40.195(d)(l). Alternatively, the referral 

physician maY conclude there is not an adequate basis for determining that a medical condition 

has or could have precluded the employee's ability to produce a specimen. In this case, Dr. 

13 
Calderbank' s note simply said that Mr. Kinneary had a chronic condition (shy bladder 

syndrome). When Dr. Horowitz contacted him to obtain documentation for this diagnosis, no 

supporting data was available. (Tr. 1 08). 

The DOT regulations provide that it is the Medical Review Officer who must make the 

final determination whether to accept the referral physician's recommendation. (49 CFR 

40. 195(h)). The regulations provide that an acceptable medical condition includes an 

ascertainable physiological condition such as a urinary system dysfunction. ( 49 CFR 40. 193( e). 

There is no evidence on this record that Mr. Kinneary had a physical impairment causing a 

urinary track dysfunction. Indeed, the evidence reveals that there is no such physical impediment 

in this case. (Rsp. Exhibit E,'IO Exhibit 1). The rule also provides that a medical condition can 

include a medically documented pre-existing psychological disorder. However, that 

psychological disorder cannot be founded on unsupported assertions of"situational anxiety or 

dehydration." (Id.) 

Indeed, the .latter situation is exactly what Dr. Horowitz was confronted with in this case. 

Neither the referral physician nor Mr. Kinneary himself were able to produce any documentation 

of a pre-existing psychological condition supporting Dr. Calderbank's conclusion that Kinnerary 

suffered from "shy bladder syndrome." Accordingly, Dr. Horowitz correctly concluded that this 

collection involved a "Refusal to Test" for the reason that the employee failed to produce a 

sufficient specimen. I agree with the Investigating Officer that Dr. Horowitz had no other 

alternative. Dr. Calderbank's note does not an adequate basis for determining that a medical 

condition precluded or with a high degree of probability, could have precluded Mr. Kinnear)' 

from providing a sufficient amount of urine at the collection. 

14 
2. Not only is the record devoid of any medical data supporting Dr. Calderbank's 

conclusion, the evidence in this case reveals that Kinneary successfully provided a urine 

specimen on three occasions in connection with DOT drug tests conducted during the six years 

prior to the one here. (See Rsp. Exhibits A, B, and C). The DTCCF which Mr. Kinneary signed 

on each of those occasions includes his certification as follows: 

I certify that I provided my urine specimen to the collector; that I 

have not adulterated it in any manner; that each specimen bottle 

used was sealed with a tamper-evident seal in my presence and that 

the information provided on this form and on the label affixed to 

each specimen bottle is correct. 

Mr. Kinneary testified at the hearing that on two of those tests he substituted or diluted 

his urine. (Tr. 195-96). Thus, Mr. Kinneary's defense necessarily invokes two admitted 

violations of the DOT regulations. He diluted or substituted his urine sample and falsely 

certified on the Custody and Control Form that the sample was his and that it was not adulterated 

in any manner. Mr. Kinneary's disavowal now of these impmiant certifications on the Custody 

and Control Forms, cause me to doubt the credibility of his testimony on this and other issues. 

Mr. Kinneary testified in this case is that he did not seek medical help for his "condition" 

because it was embarrassing and that was the way things were with him. (Tr. 260). Yet he is an 

officer in the merchant marine holding a Coast Guard-issued license. One of the well-known 

safety conditions imposed on all mariners is the requirement to take occasional drug tests. 

Indeed, the evidence here shows that Mr. Kinnemy himself has taken at least four tests in the past 

ten years. (Rsp. Exhibits A, B, C, H, and I). His failure to seek medical help for an alleged 

condition which he claims caused him to commit serious violations of the DOT regulations 

(substitution or adulteration of water for his urine on a drug test and falsely certifying that the 

substance provided was not adulterated) is difficult to understand. The offenses he allegedly 

15 
committed could have lead to the revocation of his license and the abrupt tem1ination of his 

career as a merchant mariner. 

3. The Respondent urges that Dr. Horowitz erred in concluding that the failure to produce a 

urine specimen amounted to a "Refusal to Test" because a sufficient medical explanation was not 

provided. Kinneary asserts that 49 CFR 40.193(e) defines a "medical condition" which prevents 

a donor from providing a sufficient amount of urine, as "a medically documented pre-existing 

disorder." He points out that Dr. Calderbank's note refers to Kinneary's shy bladder syndrome as 

a chronic condition which thus must have pre-dated the drug test collection the previous day. It 

is asserted that standing alone the note is enough to document the fact that the Respondent had 

this pre-existing condition at the time of the test. Kinneary continues that the word "preexisting" refers to the condition itself and not the required documentation. 

I reject that argument. Dr. Calderbank's note simply concludes that Mr. Kinneary has shy 

bladder syndrome and that it is a chronic condition which can be treated. No medical data such 

as tests or earlier treatment were provided. Dr. Horowitz called the physician to find out the 

basis for Calderbank's conclusion but supporting data was not provided. Dr. Horowitz correctly 

concluded that the note itself was not sufficient. 

Indeed, the Medical Review Officer's conclusion is keeping with the Department of 

Transpmiation's interpretation of its own regulation. The Department published.its Final Rule 

revising its Drug and Alcohol testing procedures in the Federal Register on December 19, 2000 

(Vol. 65, No. 244, pp 79461-79510). Those amendments and revisions became effective on 

January 18 and August 1, 2001 or prior to the drug test under review here. In the Department's 

comments to 49 CFR § 40.193, the specific provision under discussion here, involving the need 

16 
for medical documentation of an employee's urinary problems prior to the test is discussed, as 

follows: 

We incorporated in this section an existing DOT interpretation 

concerning psychological conditions alleged as reasons for a failure 

to provide a sufficient specimen. The meaning of this 

interpretation (see paragraph (e)) is that to be regarded as a preexisting psychological disorder, it is not necessary that the 

condition be diagnosed before the time ofthe test, but the 

symptoms have to have been medically documented before the 

time of the test. For example, an individual may have brought 

urination problems to the attention of his urologist over a period of 

time, but the urologist did not enter a specific diagnosis of a 

psychological disorder into the medical records. In this situation, 

the examining physician has the discretion to determine that there 

was a pre-existing psychological condition, if the physician is 

convinced that the medically documented symptoms support such a 

diagnosis. 

Federal Register (Vol. 65, No. 244)(December 19, 2000). 

Importantly, the Department interpretation of its own regulation makes it abundantly clear that 

psychological conditions affecting the donor's ability to produce a specimen must be medically 

documented before the test. In this case, there is no such documentation. Indeed, the evidence of 

record reveals that Mr. Kinneary successfully provided specimens on drug tests in recent years. 

4. The second argument advanced by Respondent is that the Medical Review Officer did not 

instruct Mr. Kinneary nor Dr. Calderbank regarding the need for medical documentation of the 

Respondent's difficulty in urinating in this drug test. The evidence in this record reveals that Dr. 

Obas, the Medical Director of theN ew York Depmiment of Sanitation, interviewed Mr. 

Kinneary within an hour after the unsuccessful urine collection and provided him with a sheet 

entitled "Information and Instructions to Examining Physician." (Rsp. Exhibit J): That 

instruction letter directed Mr. Kinneary to obtain \Vi thin five working days an evaluation from a 

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licensed physician. The sheet includes the language of the regulation regarding the 

recommendation to be made to the Medical Review Officer. (ld.). See also 49 CFR 40.193( d). 

That same day too, Dr. Horowitz called Mr. Kinneary and asked him to provide medical 

documentation of his disorder. (Tr. 1 07). The Doctor told him he needed to see a physician. 

Clearly, Mr. Kinneary had notice of exactly what he was required to do under the regulations as a 

consequence of his failure to provide a urine specimen. Later, Dr. Horowitz went beyond those 

basic requirements and called Dr. Calderbank to see ifhe could obtain some documentation. The 

referral physician however did not have any. (Tr. 1 08). The DOT regulations were met in this 

case. 

5. Mr. Kinneary also urges that he brought his urinary difficulty to the attention of Dr. 

Beverly, the Medical Review Officer, at the 1992 drug test which he passed. (Rsp. Exhibit I). 

The DOT regulations make it clear however that a Medical Review Officer reviewing the results 

of a drug test does not establish a doctor-patient relationship with the employee involved. ( 49 

CFR 40.123(d)). Mr. Kinneary testified that Dr. Beverly was not his personal physician and the 

doctor would not have any reason to know his personal history. (Tr. 249-50). In any event 

beyond the results of the drug test itself, no documentation regarding his alleged urinary 

d~fficulty was provided. 

6. With regard to the Respondent's reliance on Dwyer v. DuBois (Respondent's Proposed 

Findings of Fact and Conclusions of Law, p. 20), it appears that this decision ofthe Suffolk 

County Superior Court is unpublished. A copy of the decision has not been obtained. Moreover, 

the DOT regulations here apparently were not involved in that case and thus it is oflittle 

relevance. 

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VI. 

ORDER 

Both sides have 10 days from service of this Decision and Order to recommend the 

sanction to be issued against the Respondent's license and document. The Coast Guard is to 

explain the Proposed Order sought in the Complaint which reads "12 Months Outright 

Suspension 6 months Suspension on 12 Months Probation." It is not clear whether a) an Outright 

12 month suspension is sought suspending the Respondent from working under his credentials 

during the entire period; b) whether the 12 ~onth suspension is to be remitted on probation; or c) 

a combination of both. Also, the basis for the recommendation is to be provided. 

Done and Dated on February 20, 2003 at 

Norfolk, Virginia 

<f~ a ~·-YJ:;J 'PETER A. FITZPAT~ix.-­ Administrative Law Judge 

United States Coast Guard 

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