Dubious in the First Degree

While many folks from the heartland despise the New York Times for its purported coddling of criminals, its contents don’t always bear out this sensibility. It’s done it again by publishing  Lawrence Downes’ homage to ignorance in its editorial notebook.

Payback is a bitch, and to the extent Downes’ screed offers anything, it’s the insight to what motivates this tyranny of the majority against the 600 Long Island Railroad retirees on disability who had the misfortune of following the LIRR’s advice and going to Dr. Peter Ajemian. Long Islanders hate the LIRR. They hate the price of tickets. They hate having to stand on their daily commute despite the absurdly expensive cost of the ride. They hate the uncaring conductors enforcing rules that presume their passengers to be criminals seeking to get free rides. The LIRR has done much to cause this hatred, and only a fool would deny it’s well deserved.

This is payback time. Finally, the media and the government have given us an easy target of this hatred, this simmering anger, and the rest of us, the commuters, the business people who paid the hated Commuter Tax, have an excuse to unleash our venom.

For a working schlub who commutes from the suburbs, the Long Island Rail Road disability scandal of 2008 was powerful evidence that the game of life is rigged.

Hundreds of railroad employees — engineers to white-collar managers — would retire in fine health as early as 50, then become instantly and lucratively disabled. If they took their phantom neck and back pain to the right doctor and to an obscure federal railroad board that almost never said no to a disability claim, the checks would start to flow. The daily grind turned into daily golf.

Hundreds?  Name them, Downes. After years of investigation, the government has prosecuted a grand total of 33 defendants, of which 25 have pleaded guilty. Does this amount to hundreds on disability playing “daily golf” using the New York Times version of math?

The scheme cost taxpayers more than a quarter of a billion federal dollars from 2000 to 2008. It also gouged the L.I.R.R., which had to pay for all those early retirees’ pensions and for overtime and training new employees. What was most shocking about this gravy train was how many L.I.R.R. employees were on it. Every year from 2000 to 2008, between 93 percent and 97 percent of employees over 50 who retired with 20 years of service got disability payments. Experts had to wonder what other workplace, besides the gulag, crippled so many of its workers.

Experts knew exactly what happened, even if pundits were confounded. Older employees cost the LIRR a lot of money. They were paid at a much higher rate than new employees, and to reduce costs, the LIRR sought to persuade older workers to move on so they could be replaced with far less expensive employees. Nothing hard to grasp here, Downes. It’s just money.

So the LIRR held seminars for the older workers about how they could retire on disability, and steered workers to facilitators who would help them navigate their way through the Railroad Retirement Board’s disability system. These workers were sent to physicians who knew what was needed and could help them obtain a disability annuity.

Of course (and nobody seems to get this part of it), the RRB would have these retirees examined by their own physicians, who would review not only the narrative reports of docs like Ajemian, but the treatment notes, x-rays and MRI’s as well.  Suggesting that one doc like Ajemian could single-handedly defraud the federal the government is absurd, unless you eliminate the nasty facts and ignore the parts that don’t conform to the narrative of payback.

It’s not that this doesn’t give rise to issues. A railroad disability isn’t like a disability that applies to desk jockeys. It’s an occupation disability, where it’s given because of the inability to do railroad work, meaning those guys who fix the broken switches in the middle of the night in a snowstorm so you can hate them during your morning commute.

Do you really want the guy popping Vicodin because of his herniated disks responsible for the lives of a thousand people?  The potential for harm is so great that railroad workers have been singled out for random drug testing, approved by the Supreme Court in 1989 in Skinner v. Railway Labor Executives’ Assn even thought suspicionless testing would be unconstitutional if applied to, say, New York Times pundits. 

Even putting aside these and myriad other “details” wholly ignored by the media, there remains a flagrant flaw:

The Railroad Retirement Board has only now decided to cut off payments to about 600 of the dubiously disabled, months after the doctor who signed off on their diagnoses, Peter Ajemian, pleaded guilty to fraud in federal court.

Meet the new criteria for terminating rights by the federal government, dubiousness. Forget “beyond a reasonable doubt,” “preponderance of the evidence” or “probable cause.” Heck, not even reasonable suspicion. Dubiousness. And why does the New York Times endorse the new standard of “dubiousness” for deprivation?

Disenchanted riders are counting on the feds and the L.I.R.R. to get the money back, and send the belated message that the schemers will be punished.

It’s not about proof of wrongdoing. There is no proof of wrongdoing. The only “proof” is that guys with missing limbs and multiple surgeries went to Peter Ajemian (plus the unmentioned RRB doctors, but let’s not muddle up anger with facts).  As long as people are angry, we don’t need no stinkin’ evidence.

Lest someone get the misimpression that it’s just the Times feeding into the anger and ignorance that pervades the media attention,  Newsday offered an editorial as well:

Now the LIRR wants to revoke their pensions as well. Workers who are truly disabled can reapply for disability benefits — a hassle, probably, but a crucial step to whittle out those who committed fraud.

Because it would be far too hard to expect the government of the United States of America to figure out first whether someone did wrong before convicting them of dubiousness in the first degree and denying them due process?  The difference here is that expectations of thoughtfulness by Newsday are inherently lower than that of the Times. Tell the families who use the disability annuity for food that they just need to suffer the hassle of the next year without it to make the government’s job easier.

As far as I can tell, I may be the only voice speaking out for the LIRR disabled, which is itself curious given that I commuted for 25 years on the railroad and hate the LIRR as much as the next guy. But my hatred of the railroad doesn’t obscure the facts, my rage doesn’t make me desire payback from innocent targets.

For those of you who rail about constitutional violations when it comes to the police, what’s being done here isn’t materially different. These 600 have been painted with the Ajemian brush, though none have been found guilty of any fraud nor afforded a fair opportunity to challenge the taint imputed to them for committing the crime of dubiousness. 

But then, you aren’t getting a disability annuity, so why should you care if the government wrongfully beats the crap out of some other guys, as long as you get to go about your life unimpeded. And besides, everybody hates the LIRR, so it’s just too hard to muster any sympathy.  Too hard for Newsday. Too hard for Downes. Too hard for the New York Times. Thinking is too damn hard. Let’s just burn them all at the stake and call it a day.

4 comments on “Dubious in the First Degree

  1. John Jenkins

    How is it possible for the board to just suspend paying disability to those 600 without an individualized finding of fraud? I am pretty sure the disability payments are a vested property interest. I am not sure how much process is due under Matthews v. Eldridge, but I am darn sure it’s somewhere north of “None.” It just doesn’t make sense and I hope some of these retirees are able to get equitable relief here (in the absence of an individualized finding of wrongdoing in a suitable proceeding), requiring the board to continue the payments.

  2. SHG

    How it’s possible is easy. They just do it. How it could withstand legal challenge is the better question, and the answer is that if no one challenges a flagrantly unlawful action, then it stands.

  3. Eddie

    The “Board Order” issued to its employees by the Railroad Retirement Board even yanks old age pensions and Medicare from those who entered the system through an Ajemian-related disability.

    You see, every occupationally-disabled railroader’s disability annuity ends if he reaches “full retirement age,” which is between 60 and 65. Then their “old age” pension begins. At age 65, their LIRR pension is contractually reduced by half, but that’s another story.

    So according to this Board Order, old folks in nursing homes, who happened to see Ajemian, will loose their Medicare coverage, and probably their nursing home address while they reapply.

    And widows? If hubby saw Ajemian, then the Misses will also have to forensically reapply of behalf of her Lost One, while eating cat food I suppose.

    That’s if she can afford cat food during the mandatory six-months without benefits that a disabled applicant is legally required to navigate. Certainly the Board respects that law.

    Perhaps some retirees scammed. But some are certainly suffering from cancer, missing limbs and senility. And each and every one of them is being treated like a convicted scammer.

    Now I wonder which set of rules will judge the re-applicants. The present rules were instituted in 2010 after the NY Times had at the Board. The original 1946 guidelines, under which most originally applied, granted their “Request for Determination of Occupational Disability” they filed with the Board.

    It’s hard to believe that anyone with the whole picture even looked at this latest action.

  4. SHG

    But Newsday says it’s just a little hassle, and the New York Times says they are all heinous criminals, even if no one has any evidence yet. Are you suggesting that the reporting has been, oh, inadequate?

Comments are closed.