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Sleep Apnea Can Create Legal Risks for Trucking Companies

May 27, 2010

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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, experts say.

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 last month.
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.

Fertile Soil For Litigation

At the one-day conference, hosted by the American Sleep Apnea Association and sponsored by FMCSA and American Trucking Associations, Attorney Clay Porter of the Atlanta firm Dennis, Corry, Porter & Smith, said that 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."

Regulatory Guidance

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 a collective raising of 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."

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.

The agency is working on a final rule due before the end of the year that will establish new standards for Medical Examiners that are intended, in part, to heighten examiners' awareness of sleep apnea.

In general, 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 as well as sleep disorders.

The Board does not think that 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.

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.

Fatigue Management

Meanwhile, trucking companies are starting to take the issue into hand themselves.

Schneider probably is the industry's trend-setter in the area of fatigue management. Osterberg in remarks at the conference outlined a program that 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, he said. 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.

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 expensive: 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.

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 and FusionSleep to put together a company-wide voluntary program.

The company began by testing members of its management team with the same device its drivers would use, Plumlee said. This is being followed by a study of 100 drivers who are found to have sleep apnea. As of early April, the company had tested 74 drivers, of whom 56 were found to have the disorder.

When the study and treatment are done, the company plans to publish a paper on the data it has gathered, develop support groups for drivers, and commence the full voluntary program, Plumlee said.

Another carrier preparing to implement a program is British Columbia-based Coastal Pacific Xpress. Kevin Johnson of CPX explained that the sleep apnea effort is one element of a total driver health program.

"The idea is to make it as easy as possible for drivers to be aware of and address their health issues," he said.

For sleep apnea, he will use a Web-based screening service provided by a third party. If the screening comes back positive, the driver can take a self-administered overnight test that will be interpreted by a doctor who can prescribe a machine that provides continuous positive airway pressure while the driver is sleeping (known as a CPAP device). Monitoring of the treatment will be handled by wireless reporting from the CPAP machine to a web site.

"From sleep apnea and driver health, it's a very short step to a complete fatigue management program," Johnson said.

"For those who are waiting to be told what to do, I would encourage you not to wait," said Schneider's Osterberg. "We can hold ourselves to a very high standard, not to run from the litigation boogeyman but to understand that the real objective is to improve the welfare and safety not only of our own drivers but the motoring public as well."

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