Above and Beyond
24 02 2008In a recent letter the assistant to the Adjutant General of the Michigan National Guard made the following statements. “I have performed an exhaustive investigation.” “I feel the national guard has gone above and beyond for you.” I’m willing to, as a matter of forensic tradition, accept that he believes what he’s saying. Good will and a charitable rendering of an opponent’s position is standard, although these courtesies have not been reciprocated.
I’m going to share the Guard’s score card as I see it. I’ll list each action they’ve elected to take or each action they’re required by law to take, and briefly describe how they’ve performed.
Exhaustive investigation: An action the Guard elected to take. In it the investigator spoke to me on one occasion by phone and maybe three or four times by email. He asked for no email traffic between various Guard members involved in this case or other documents I may have in my possession that may support my position. He did request medical records, but did so in a manner difficult to respond to - he asked the documents be scanned and emailed to him when it was clear to him my wife and I did not have a scanner readily available to us. I asked for more time to comply with his requests. He ignored me, and used this single act of not complying with his request to establish (in his mind) a pattern of ‘purposely ignoring requests for information.’ He founded the rest of his position on the sworn statements of those who’ve been criticized. He has not yet responded to the documents he has in his possession contradicting the sworn statements of his soldiers.
Medical care for a line of duty injury: Action the Army and the Guard are required by law to take. I have been home since April of last year. I have had an approved Line of Duty investigation since September of last year. To date I have only received authorization for two of three specialists my doctor has been requesting since May of last year. Pain management - epidural steroid injections - and physical therapy were requested together. The reason was to provide some relief from pain caused by inflammation during the physical therapy - to make the physical therapy more effective and less painful. Pain management was authorized in mid November, a full six months after my doctor’s initial request, and a full two months after my Line of Duty investigation was complete. Physical therapy would not be approved until mid December, a full seven months after the initial doctor request, and a full three months after my Line of Duty investigation was complete. I didn’t learn of the approval for physical therapy until mid January of 2008, and when I did find out about the authorization it wasn’t through a member of the Guard (but from Sheila Marolla, Carl Levin’s VA/Military Affairs case manager). Each came separately, ignoring my doctor’s request that these treatments would be most effective if received together.
For authorized treatments, the explanation of what was covered was not very specific. From a casual reading of the authorization document one might believe only the doctor’s visit, and none of his or her treatments were authorized. A problem I brought to the attention of Michigan National Guard Health Services in October of last year. A problem they have still not responded to. My wife and I have since been paying between $200 and $300 a month for prescriptions and canes and back braces, etc., necessary to relieve some of the pain associated with this injury.
This past weekend I learned my doctor’s request to see a neurosurgeon had just been answered. He began making these requests in the treatment plan section of my medical records, through personal conversations by phone with ‘military medical personnel,’ through faxes, mailed records, and through me sharing this need with my unit and with the Guard since May of 2007. That the request has finally been answered is something of a victory I suppose. Though, as implied by the previous paragraph, authorization for a visit with a specialist doesn’t necessarily mean approval for the treatments he recommends. (It is important to note that I have had symptoms of Cauda Equina Syndrome since around June of last year. This is considered a surgical emergency.)
Incapacitation Pay: Action the Guard is required by law to take to supplement income when a Guard soldier is injured on active duty and is unable to work because of that injury. By law Guardsmen are entitled to six (6) months of incapacitation pay. This itself is somewhat problematic, as often injured Guardsmen are incapacitated for far longer than six months. But of the six months of incapacitation pay I’m entitled, I received one (1) month. The reason I was given: a) Health Services had no records beyond the month of May for this injury; b) Health Services did not have ‘sufficient’ documents from specialists speaking to the disabling nature of my injuries. The first statement is patently false. Ms. Marolla received close to 50 pages of mostly printed fax receipts to my unit with medical records and other forms filled out by my doctor speaking to my injuries after the month of May. The second statement is true. However, Health Services had not authorized me to see the specialists whose notes approval of incapacitation pay was conditioned on. Ms. Marolla has explained to me the Guard’s intention of reconsidering my application for the month of September, but not the other four (4) months I’m eligible for. Quite magnanimous.
This result, to date, is the fruit of a year’s struggle. One involving the members at the highest levels of the Michigan National Guard, members of the US Senate, the media, Church leadership, and promises of action in federal court (writs of mandamus, for example). To recap, the Guard’s position is that it has gone above and beyond for me. Of three requests for specialist care the Guard has approved two: 66%. Of the treatments these specialists and my doctor have prescribed, the Guard has specified coverage of zero: 0%. (And my wife and I have paid over $1400 in the last 10 months on prescriptions alone.) Of incapacitation pay the Guard has approved one of the six months for which I’m eligible, but promised to reconsider one additional month. Let’s give that one to them. Two out of six: 33%.
When working as a TA it always pained me to give out poor grades. I accepted late work without penalty, and even the most absurd excuses would satisfy me. I wanted the students to succeed. But in spite of my best efforts, the Guard’s performance doesn’t allow for anything other than a poor grade. .66 + 0 + .33 = .99. .99 / 3 = .33. The Guard has earned a 33%. This is what the Guard considers above and beyond.
But mock report cards aside, a serious problem is revealed. The Guard has not done what it is required by law to do. Because of that, I am permanently disabled, addicted to prescription pain medications, and I am in constant pain. I will never, as long as Feres is in place, achieve anything even resembling justice. In going above and beyond, the Guard destroyed my life and the many lives of those who care for me.
The pushover grader in me is responsible for this addendum. Let’s give the Guard 100% in its investigative efforts to place blame on me - that is to say, within this organization this process did succeed in its purpose. Let’s call it an extra credit assignment. .66 + 0 + .33 + 1.0 = 1.99. 1.99 / 4 = >.5. Shit, that’s still an E. But they can’t say I didn’t try.
Categories : Feres Doctrine
