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Should truck drivers with high BMI be required to take a sleep apnea test?

December 2, 2016 by Steven M. Gursten

As Court upholds dismissal of trucker for refusing sleep study, our attorneys examine the balance between preventing a truck accident caused by a tired trucker with discrimination against people who are overweight


Last month, a federal court ruled that a truck driver with a body mass index (BMI) of 35 must submit to a sleep study or risk losing his job – even though he showed no other factors for sleep apnea.

The case, heard by the 8th Circuit Court of Appeals, involved Crete Carrier Corp.’s driver Robert J. Parker, who was fired in 2013 after he refused to abide by company policy requiring all drivers with a BMI over 35 to take a sleep study. Parker’s attorney contends that Crete’s policy violated the Americans with Disabilities Act (ADA) on the basis of a perceived disability. She also said the Court cited the details of a pending FMCSA rule on sleep apnea as if it was already a regulation, according to a recent story in Fleet Owner, “Court upholds dismissal of driver for refusing carrier-requested sleep study.”

According to the story, the pending regulation would require all drivers with a BMI of 40 to submit to a sleep study as would a BMI of 33, in addition to several other factors, including:

  • Being a male older than 42,
  • Loud snoring,
  • Heart disease,
  • Diabetes and,
  • Witnessed apnea.

What is sleep apnea, and why is sleep apnea causing so many truck accidents?

Obstructive sleep apnea is a sleep disorder that causes a person to stop breathing in periods throughout the night. The disturbed sleep leads to sleepiness during the day. This is probably the most common area that attorneys unfamiliar with truck accident litigation miss during the discovery period. The issue is often never explored by the attorney for the person injured or killed, even though a trucking company has a duty to hire safe drivers.

And there is reason for concern. With statistics showing that overweight truck drivers account for 13% of fatal truck accidents in the U.S. and further studies showing that there are nearly 600,000 commercial truck drivers with dangerous medical conditions (who qualify for full federal disability payments) on the roads today, our own attorneys believe we need to take a harder look at medical testing standards for truck drivers. As the pending safety regulation I discussed above proposes, an “ounce of prevention” is needed now more than ever, and is far preferable to the “pound of cure” when an innocent motorist is killed or seriously injured by another truck driver who fell asleep and crashed into the back of her car.

This is a fascinating legal issue, however, because it also encompasses the well-being of other drivers on the road and maintaining the rights of truck drivers who may be overweight, especially for those truckers who may have a higher BMI but who claim not to have any symptoms that would suggest sleep apnea.

But how can we know if an overweight trucker has sleep apnea if he or she is not required to be tested for this condition?

Here, the court ruled that Crete’s requirement for a sleep study was a lawful business necessity, because it kept drivers and the motoring public safer which is an imperative for carriers, according to Fleet Owner.

Parker maintained he had no characteristics of sleep apnea, other than a high BMI. The truck driver had a clean bill of health from his doctors and a great employment history with no accidents. Yet he lost his job.

As a past president of the American Association for Justice Truck Accident Lawyer Group, I write and speak often about safety issues facing the trucking industry today based upon the cases I litigate. This often includes how difficult it is for commercial truck drivers to keep a healthy diet and exercise regimen.

The problem in this case is that it goes far beyond Mr. Parker. Sleep apnea is causing or contributing to thousands of preventable truck accidents every year. As an attorney and safety advocate, I believe the court got it right.

I was recently interviewed as a truck accident attorney and safety expert on the CBS Evening News with Scott Pelley.

Scott, CBS and its producers did a comprehensive investigative report on truckers with serious medical conditions — who are driving on our roads and putting all of us in danger. These truck drivers and the trucking companies who deliberately hire them to save money turn a blind eye to serious medical conditions that should often disqualify the sick or medically disqualified truck drivers.

One of the most common medical conditions, that was also highlighted in the CBS story, is sleep apnea. For instance, in my $34 million truck accident settlement in Ohio in 2014, we were prepared to present evidence that the most likely explanation for the crash that injured my client was the driver falling asleep. When a truck driver denies falling asleep, as they often do, an attorney can still prove by circumstantial evidence that this is what most likely happened. Physical weight and neck size that would strongly suggest sleep apnea can also be raised.

The CBS story also cited a case involving a truck driver who injured 35 passengers in another Ohio crash – this time a bus accident.

In the bus accident case, the bus driver blacked out – after he had been told to get a sleep apnea test by a DOT-certified medical examiner.  This was never pursued  until after the crash. In another case cited by CBS, a Greyhound driver who didn’t disclose he had sleep apnea collided with a pickup truck, killing the driver.

So what are the safety regulations for truck drivers with sleep apnea?

The FMSCA has been weighing the issue of sleep apnea for years now.

There are no FMCSA regulations that specifically address sleep apnea yet, which I find astounding considering that it is likely causing or contributing to at least 13% of the fatal truck accidents on our roads today.

What the feds do mandate is that a person with a medical history or clinical diagnosis of any condition likely to interfere with their ability to drive safely cannot be medically qualified to operate a commercial motor vehicle (CMV) in interstate commerce.

However, once successfully treated, a driver may regain his “medically-qualified-to-drive” status.
As to the responsibilities of the motor carriers regarding their truck drivers with sleep apnea, the FMSCA states:

“A motor carrier may not require or permit a driver to operate a CMV if the driver has a condition — including sleep apnea — that would affect his or her ability to safely operate the vehicle.

It is critical that persons with sleep apnea fully use the treatment provided by their doctor. They should not drive if they are not being treated. Being effectively treated, and complying with that treatment, offers the best hope of a commercial driver with sleep apnea to  do his or her job safely and be fully alert.”

But should a truck driver lose his or her job if they have sleep apnea?

Crete’s attorney, in the oral argument before the court, noted that no driver who had submitted to a sleep study based on their BMI has ever lost their job. She said, “They may have mild sleep apnea that requires no treatment whatsoever. Or they may have severe apnea that may require a referral to a physician beyond a CPAP machine. They’re not getting pulled out of service because they’re getting a diagnosis. This is a treatable condition which keeps them in their employment;” and noted that employees sign an agreement acknowledging that they may be required to take a sleep study if they meet the company’s criteria for the study. Parker signed the agreement after he had been working for Crete for several years.

What honestly troubles me about this case is we are, in part, making generalizations that can be made to this group as a population, but not as it applies to any one individual.  As I said last week in my post about elderly truck drivers. I recognize this is an extremely sensitive and emotional issue. As I’ve said when I’ve been interviewed on the subject of elderly drivers, the answer must be better and more frequent testing of drivers to make sure they are safe.

The same point can also be made here. We know there’s already a very dangerous problem with tired truck drivers on our roads who fall asleep or become so drowsy that they smash into people. Simple testing for sleep apnea can save hundreds of lives every year.  That is why I fall on the side of sleep apnea testing for people who are suspected to have it.  It isn’t because I’m an attorney, it’s because I care about safety and taking simple steps that can prevent truck accidents from ever occurring.

Weight, in the truck driving industry, is unfortunately a correlating factor of many serious safety and health issues like obstructive sleep apnea. But weight, similar to advanced age, is not a cause in and of itself.

I’m not saying we should take away all overweight drivers’ rights to drive or that someone should be banned from driving trucks at a certain BMI; that is by definition discriminatory.

But we can and must strike a balance between protecting the rights of the individual and protecting the safety of the public and our families on the road.  Hopefully, the FMCSA moves on its proposed rules for required testing of truck drivers with sleep apnea very soon.

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