Saturday, January 20, 2018

Supreme Court will not hear driver’s appeal of sleep apnea treatment ruling for Crete


Thursday, April 6, 2017
by JACK WHITSETT

WASHINGTON — The U.S. Supreme Court has refused to hear an appeal filed by former Crete Carrier Corp. driver Robert J. Parker against the Lincoln, Nebraska-based motor carrier. The April 3 decision upholds an Eighth Circuit Court of Appeals ruling that Crete, one of the largest privately-owned trucking companies in the U.S., did not act improperly by requiring drivers with a body mass index (BMI) of 35 or more to undergo sleep apnea testing and treatment, clearing the way for companies nationwide to enforce such policies.

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 did not give Parker any more work.

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. A federal court granted summary judgment to Crete, and the Appeals Court unanimously upheld the decision.

“Parker is wrong that the sleep study requirement was unlawful,” the Appeals 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.”

Drivers across the nation have protested having to undergo testing and, often, treatment for sleep apnea, simply on the basis of BMI or neck size. Most truckers are required to pay for the treatment machines, an expensive proposition.

“The way they decided our case was that Crete had a guideline which they said would predict whether or not you might be in danger of having sleep apnea,” said Parker’s attorney, Joy Shiffermiller of Lincoln. “Because the medical safety team had determined that you were at a higher index, they can ask you to take a test because that’s consistent with business necessity.”

Parker was unsatisfied with the Crete policy, Shiffermiller said, in part because the company contracted to do the testing, Forward Healthcare LLC, sold drivers the treatment machine.

“They had a contracted service provider that came in to do all the tests,” Shiffermiller said. “In the event you were found to have sleep apnea they were the people that would sell you the machine. They (Crete) would withhold it from your check but it was quite expensive.”

Crete had not responded to a request for comment on this report at press time.

Crete formerly partnered with SleepPointe LLC, a medical contractor that ran Crete’s sleep apnea program, the company stated. Since May 2016, Forward Healthcare has handled the program. F

Parker was not satisfied with the Crete policy, Shiffermiller said, in part because the company contracted to do the testing, Forward Healthcare LLC, also sold drivers the treatment machines.

“They had a contracted service provider that came in to do all the tests,” Shiffermiller said. “In the event you were found to have sleep apnea they were the people that would sell you the machine. They (Crete) would withhold it from your check but it was quite expensive.”

Crete had not responded to a request for comment on this report by press time.

Crete formerly partnered with SleepPointe LLC, a medical contractor that ran Crete’s sleep apnea program, the company stated. Since May 2016, Forward Healthcare has handled the program. Forward Healthcare is a Utah based sleep medicine company owned by David Silver and managed by registered, licensed healthcare professionals. FWDHC operates sleep programs nationally in hospital based facilities, free-standing sleep centers and for transportation companies, including Crete Carrier.  Court documents said Forward Healthcare 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.

Currently, Crete stated, nearly 20 percent of company drivers and owner-operators are using CPAP (continuous positive airway pressure) machines to treat sleep apnea.

“My client had never had any fatigue, any accidents,” Shiffermiller said. “He’d been given a safe driving award.

“I think the Eighth Circuit Court of Appeals is very friendly to the corporation and not to the individual worker,” she said. “I’m not sure that decision would have been upheld across the nation.”

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