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Proposed FMCSR doesn’t address dangers of truckers with sleep apnea

Written by Steve Gursten Posted April 11th, 2013

Asleep on the job: “Nonbinding” recommendation to screen fatigued truck drivers for obstructive sleep apnea is not enough

The Federal Motor Carrier Safety Administration (FMCSA) is poised to propose new regulatory guidance that would prompt medical examiners to screen obese truck drivers for obstructive sleep apnea (OSA) before being given a medical clearance to drive a commercial truck.

OSA is the most common type of sleep apnea, and is caused by obstruction of the upper airway. It is characterized by repetitive pauses in breathing during sleep, which typically last between 20 and 40 seconds.  As a result of OSA, sufferers often experience daytime sleepiness and fatigue as a direct result of the significant levels of sleep disturbance.

The proposed guidance is just that – guidance.  And that is a shame. The agency will likely ask medical examiners who perform examinations on certain truck drivers, or other commercial drivers, to get OSA testing.  The suggestion does not have the force of law, or power of regulation, though.

It is expected that truck drivers with a body mass index (BMI) over 35 will be selected for testing.  As currently outlined, if the truck driver does test positive for OSA, it would be “recommended” that he or she be given a conditional medical certification pending treatment of the condition.

This sounds like a good idea in theory; but why is this only “recommended guidance?”

We have recently talked about how “effective” FMCSA recommendations are.  If you recall, we recently talked about how the FMCSA “recommended” that a very dangerous truck company be subjected to higher levels of inspection scrutiny.  That same company subsequently caused a deadly truck accident that killed six people in Kentucky.  This scenario of recommendations in the face of dangerous threats on the road seems all too familiar.

As it is currently, truck drivers are driving fatigued and causing accidents.  In the hundreds of truck accident cases that the Truck Accident Attorneys Roundtable have litigated, driver fatigue is a persistent theme and often a direct causal contributing factor to these crashes. Many drivers routinely drive past hours of service and keep two sets of log books (lie books).

The FMCSA should do more to stop this common and so preventable cause of so many trucking accidents. Obstructive sleep apnea causes daytime sleepiness and fatigue.  Why make this only a recommendation, rather than a proposed binding safety regulation?  Testing truck drivers for sleep apnea would  save lives and prevent trucking crashes immediately.

The FMCSA simply is not taking this action far enough.

One additional problem with this recommendation is that the body mass index cutoff is not a very good benchmark.

The body mass index cutoff (BMI), 35, is not low enough.  A more desirable BMI cutoff is 30.  A study at Stanford Medicine, in the Stanford Sleep Center, revealed that 26% of people who have a BMI above 30 suffered from sleep apnea.  That is over one in every four people.  By setting the recommendation cutoff at a BMI of 35, inevitably, truck drivers with a BMI between 30 and 34 who experience daytime fatigue brought on by OSA are going to slip through the cracks.  And that includes tens of thousands of commercial truck drivers.

Although this proposed recommendation is a step in the right direction, it is far from enough. The FMCSA needs to take a harder stance on truckers who experience sleep apnea. These truck drivers are dangerous. Their inability to sleep uninterrupted runs the risk that they could doze off behind the wheel and cause crashes.

That it is a risk that nobody should be taking, least off the FMCSA.

Steven Gursten Photo

About Steve Gursten

Attorney Steven Gursten is president of the Motor Vehicle Trial Lawyers Association and past president of the American Association for Justice Trucking Litigation Group. He has been named a Michigan Lawyers Weekly "Leader in the Law" for his efforts to prevent truck accidents and promote national truck safety. Steve was also a Michigan Lawyers Weekly "Lawyer of the Year" for a record settlement in a truck accident case. He has received the top reported truck accident jury verdict and top reported truck accident settlement in Michigan for multiple years, according to published year-end compilations of all jury verdicts and personal injury settlements by Michigan Lawyers Weekly. He has been named a "Top 50 Super Lawyer," by SuperLawyers, is listed in Best Lawyers in America, and has been awarded an AV-rating by Martindale-Hubbell, which is the highest rating for legal ability and ethics. Steve speaks to lawyers throughout the country on truck accident litigation. He is a founding member of the Truck Accident Attorneys Roundtable, head of Michigan Auto Law, and has dedicated his legal career to making our roads safer.
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