Article

Sleeping Monster? Sleep Apnea Can Create Legal Risks for Trucking Companies

November 2010, TruckingInfo.com - Feature

by Oliver B. Patton, Washington Editor, Washington Editor - Also by this author

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Sleep apnea is a public health problem and a truck safety problem that could soon morph into a legal problem for the trucking industry.


Three in 10 truck drivers suffer from mild to severe sleep apnea, says Anne Ferro, chief of the Federal Motor Carrier Safety Admin­istration.

"Drivers with severe sleep apnea are at greater risk of being involved in a crash," Ferro said in remarks at a conference on the disorder earlier this year. Apnea promotes fatigue, and fatigue is estimated to be an associated factor in 13 percent of all truck crashes and 28 percent of single vehicle crashes, she said.

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Sleep apnea, a disorder in which breathing problems disrupt sleep, is one of a host of ills that beset truck drivers as a consequence of the challenges of the job and the life style. Citing data from the federal Centers for Disease Control and Prevention, Ferro said the average life expectancy for a truck driver is 61 - 16 years younger than the average American. "That is simply unacceptable."

At the conference, hosted by the American Sleep Apnea Association and sponsored by FMCSA and the American Trucking Associations, attorney Clay Porter of the Atlanta firm Dennis, Corry, Porter & Smith, said the sleep apnea problem is fertile soil for plaintiff's attorneys involved in truck accident lawsuits.

He has not seen it happen yet, but Porter predicted that sleep apnea is going to become a complicating factor for trucking companies involved in fatigue-related accident litigation.
"It's now possible to demonstrate that a carrier can be aware that a certain percentage of his driver population is likely to suffer from this condition, which will create fatigue," he said. "This opens the door for a plaintiff's attorney to say there is a lack of management at this company on fatigue issues."

Porter said this circumstance arises from a transition in truck litigation over the past five years toward a much more dangerous environment for companies, as plaintiff's attorneys share information about carriers, driver health and fatigue.

"Plaintiff's attorneys can show driver health reports that indicate the driver had symptoms of sleep apnea before an accident that a carrier should have caught. (They) are not really interested in a verdict against the carrier for its conduct in an accident. What they want to show is that this is an act of corporate recklessness."

Regulations needed

Porter's warning underscored a theme that emerged from the conference: Sleep apnea is a problem that requires regulatory attention and action by individual trucking companies, as well as raising the industry's consciousness about driver health and wellness.

Don Osterberg, senior vice president of safety at Schneider National and an industry leader in sleep apnea treatment, delivered this message to FMCSA: "We need some regulatory guidance. I have to make decisions about levels of treatment, and I'm not really qualified to make that decision. We could certainly use your help."

FMCSA's current rules were written more than a decade ago, before sleep science became a mainstream discipline, and do not explicitly require testing and treatment for sleep apnea.
The issue is covered through a requirement that a driver not have a respiratory dysfunction that impairs his performance. This gives DOT medical examiners the authority and responsibility to require screening for sleep apnea if a driver exhibits symptoms or has the physical characteristics that indicate the possibility of the disorder - excessive weight or a large neck, for example.

The agency is working on a final rule that will establish new standards for DOT medical examiners that are intended, in part, to heighten examiners' awareness of sleep apnea.
But despite close study by health experts who advise the agency, there is no consensus yet among the regulators on whether there should be specific sleep apnea standards in the rules.

The agency is looking at recommendations from its Medical Review Board regarding more than a dozen different driver health concerns, including diabetes, cardiovascular disease, seizure disorders, renal disease and musculoskeletal disease along with sleep disorders.

The board does not think a diagnosis of sleep apnea should necessarily bar a driver from certification, but that certification should be conditioned on the severity of the apnea and its impact on a driver's sleepiness, or on whether the driver is getting the treatment he needs.

The board has recommended that all drivers be screened for obstructive sleep apnea. It has posted a long and detailed list of specific criteria for denying medical certification, including having been involved in a crash associated with falling asleep at the wheel and failing to comply with prescribed sleep apnea treatment.

Of particular interest are the Board's recommendations regarding overweight drivers. Doctors say obesity can be an indicator of sleep apnea, although it is not necessarily decisive - other factors such as age and blood pressure are also important. Studies show that a person's body mass index, a ratio of weight to height that measures obesity, can signal the possibility of sleep apnea, and the Board recommended that a BMI of 33 or greater be grounds for rejecting a driver's application pending the outcome of a sleep study.

FMCSA is considering these recommendations, but a specific sleep apnea rule would require more scientific data than is now available.

This is a point that is stressed by the owner-operator segment of the industry, in particular, which is alarmed by the possibility of drivers being sidelined as a consequence of what they see as unproven judgments about fatigue.

"We want to be sure that if someone is going to be denied employment, that it's for a scientifically valid reason," said Ray Warshaw, speaking on behalf of the Owner-Operator Independent Drivers Association at the conference. "At this point there is not enough research to justify taking away a person's livelihood."

Trucking takes action

Trucking companies are starting to take the issue into hand themselves. This is mainly out of concern for the health of their drivers and their safety performance, but also in anticipation of a toughening legal environment.

Schneider probably is the industry's trend-setter in the area of fatigue management. Osterberg outlined a program the company has built piece by piece over a number of years.
Early on the company did a study of 339 drivers who had been treated for sleep apnea. They looked at performance 12 months before and 12 months after treatment, and found a 30 percent reduction in crash rates and a 48 percent reduction in the median cost of crashes. An unexpected benefit: Driver retention after treatment was 60 percent better than the fleet average.

The kicker was that the program reduced health care costs by $539 per driver per month. "A staggering number," Osterberg said.

Fleet strategies

Schneider uses a third party, Precision Pulmonary Diagnostics, to screen all driver applicants, do a sleep study on those who test positive, provide treatment if necessary, and follow up for as long as 90 days.

It's not cheap. The initial screening is only around $200, but the overall cost can run up to $3,500 if a driver needs to be treated and monitored. Osterberg considers it money well spent, in a practical and ethical sense.

"I can say without fear of contradiction that after sleep apnea treatment you will see a favorable return on investment, a favorable reduction in health care costs and favorable safety performance," he said.

There were a number of trucking companies at the conference looking for more information on this issue. Among them was J.B. Hunt, which is developing its own sleep apnea treatment program.

Debra Plumlee, special projects manager, explained that Hunt has partnered with apnea service providers SleepSafe Driver

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