ST. LOUIS — Crete Carrier Corp. did not act improperly by requiring drivers with a body mass index (BMI) of 35 or more to undergo sleep apnea testing and treatment, the Eighth Circuit Court of Appeals ruled unanimously last month.
Crete, of Lincoln, Nebraska, is one of the nation’s largest privately-owned truckload carriers. The company required driver Robert J. Parker to undergo an examination to determine if he had sleep apnea because Parker had a body mass index or BMI over 35.
In 2013, Parker visited a certified physician assistant not affiliated with Crete, who wrote a prescription stating that it was not medically necessary for Parker to have a sleep study. Parker then refused to undergo Crete’s ordered testing, and the company “stopped giving Parker work,” the Court stated.
Parker then sued Crete, claiming that the carrier violated the Americans with Disabilities Act (ADA) by discriminating against him on the basis of a disability.
“Parker is wrong that the sleep study requirement was unlawful,” the Court ruled. “The undisputed evidence shows that Crete suspended Parker for refusing to submit to a ‘lawful’ medical examination. That does not violate the ADA. Since Crete’s stated reason for suspending him was not pretext, Parker’s claim fails.”
In 2008, the Federal Motor Carrier Safety Administration’s Medical Review Board (MRB) “found that obstructive sleep apnea causes daytime sleepiness, making drivers more likely to have accidents,” the court opinion stated. “It recommended testing some drivers for obstructive sleep apnea (OSA) … In February 2012, the MRB and Motor Carrier Safety Advisory Committee (MCSAC) recommended that drivers with BMIs over 35 receive only conditional DOT certification and undergo an additional examination for obstructive sleep apnea.”
But, the court noted, the MRB this year recommended sleep studies for drivers who either have BMIs of 40 or above, or have BMIs of 33 or above plus three additional risk factors.
In a letter dated August 26, MRB Chairman Gina C. Pervall, M.D., recommended that Certified Medical Examiners (CME) issue medical cards for no longer than one year to drivers with an “established diagnosis of OSA, regardless of severity,” but may certify a driver with an OSA diagnosis if the driver is being treated effectively. “Effective treatment,” Pervall wrote, is defined as the “resolution of moderate to severe OSA to mild OSA or better, as determined by a board-certified sleep specialist.”
Crete formerly partnered with SleepPointe LLC, a medical contractor that ran Crete’s sleep apnea program, the company stated. Since May of this year, Forward Healthcare LLC of McFarland, Wisconsin, has handled the program. Forward Healthcare is run by Tom Ludwig, a registered nurse in Wisconsin, and has sleep study facilities at three Crete terminals. Currently, Crete stated, nearly 20 percent of company drivers and owner-operators are using CPAP (continuous positive airway pressure) machines to treat sleep apnea.
“The sleep apnea program is just one more step we are taking to help our drivers,” said Tonn Ostergard, president and CEO of Crete Carriers. “Ensuring their health and safety is a top priority here.”
Parker’s attorney, Joy Shiffermiller of Lincoln, did not return a call for comment to The Trucker.
Drivers are becoming more aware of sleep apnea and how it can affect their livelihood, said Bob Perry, president of Rolling Strong, an organization that works with motor carriers and their drivers to ensure driver health.
“If they’ve been identified [as a sleep apnea candidate] and go get a study done, the driver will come to us and say, ’I was identified and I’m now in sleep therapy,’” said Perry, who also heads Rolling Strong’s venture with the Truckload Carriers Association, TCA Wellness. “We get a lot of drivers that come to us early on and they’re going in and their afraid they’re going to be [diagnosed with] sleep apnea. We start coaching them.”
The coaching includes, among other things, teaching the driver the value of weight loss, getting more rest and healthy nutrition.
“It takes a while, but it has been done, that they can get off the machine,” Perry said.
Perry said that he is a public member of the MRB and one of the board’s first public members.
“Our first meeting was on sleep apnea,” he said. It’s taken this long because nobody really wanted to open that box.”
Driver health is fast becoming a priority among motor carriers, Perry said.
“They’re starting to realize that there’s value in training these men and women to take care of their health. We could really cut down on the driver shortage if we just spent more time taking care of their health.”
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