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Sleeping With the Enemy

Posted: August 1, 2014 by Passenger Service: State troopers ride-along with truckers in crash study

For a very long time Marc Paquin knew something was wrong. He just didn’t know what. After shutting down his rig and bunking down at the end of the day, disjointed interludes of feather-light sleep would often get interrupted by forgettable nightmares, bouts of cold-sweated panic and shortness of breath.

Whenever the 10-year trucking veteran awoke, his clock would show he had slept for eight or nine hours, but his wobbly knees and severe exhaustion told him that it couldn’t be.

"I would drive two or three hours and had to go back to bed for a couple of hours." he says. "The fatigue never left me."

Then, while on a run through Toronto in 2001, Paquin had — quite literally — a rude awakening. "Without knowing how or why, I found myself in my truck, overturned on the highway."

Upon return to Montreal, his fleet manager wanted to know what had happened. There wasn’t much Paquin could say except that he had blacked out.

Soon after, Paquin was diagnosed with obstructive sleep apnea (OSA), which, as the trucking community is now coming to realize with more frequency, is a sleep disorder that causes the closing of the airway passage at the back of the throat, leading to cessation of breathing during sleep. You’re usually not conscious of your inability to draw a breath, which can occur dozens of times an hour for periods that can be as long as a minute each.

It was discovered that Paquin, severely affected, stopped breathing 36 times for every hour he slept. Effectively, the truck driver was getting just over an hour’s sleep in an eight-hour period. Hours-of-service downtime meant nothing in his world.

"I felt like my working days were endless," he recalls. "I needed 15 hours to drive 600 miles. And I often stopped to nap. If I had to wait five minutes at a customer, I leaned within the framework of the door and I slept."

Although the troubling symptoms persisted for years, Paquin, like most truck drivers afflicted with the disorder, knew little, if anything, about sleep apnea until he was diagnosed with it.

With treatment, he can breath easier now. But the same can’t be said for the hundreds of thousands of other unsuspecting North American drivers who probably have the disorder.

According to Dr. Allan Pack, director of the Sleep Center at the University of Pennsylvania, roughly 28 percent of commercial drivers are likely afflicted with some degree of sleep apnea. The disease is most common in overweight males with a body mass index (BMI) of 25 or larger and a collar size more than 17 in. Loud snoring, frequent night wakings, shortness of breath, and of course, unexplainable daytime fatigue are all telltale signs.

CPAP machines are the most common form of
OSA treatment, but they’re not too comfortable at first.

More recently, studies have drawn clear lines between OSA-related fatigue and vehicle crashes. A Cambridge University study concluded that car and truck drivers who suffer from sleep apnea are as much as seven times more likely to be involved in an accident.

That number, points out Don Osterberg of Schneider National, would likely be even higher if the study focused specifically on commercial drivers who, since they’re generally more obese and lead less healthy lifestyles than the average citizen, are over represented in the aggregate sleep apnea percentage.

Osterberg, who as VP of safety and training runs one of the few fleet-managed sleep-apnea screening and treatment programs for truck drivers in North America (see sidebar, pg.40), says fatigue is the primary causal factor in 36 percent of high-severity accidents. And much of that, his experience tells him, has to do with undiagnosed sleep apnea.

The OSA proportion among truck drivers has arguably reached epidemic-like levels. And that hasn’t gone unnoticed by the
U.S. government.

The Federal Motor Carrier Safety Administration (FMCSA) began working on a rule this summer that toughens the current 15-year-old physical qualification rules for drivers. And all signs point to a mandatory sleep-apnea screening rule as part of that mandate.
The Notice of Proposed Rulemaking, based on recommendations from medical experts, is slated for publication this month or in January.

It’s unclear what the final standard will look like, but there are strong indications that new drivers seeking their CDL would have to undergo screening for sleep apnea at the medical exam level; while the existing pool of drivers could eventually be monitored by their carrier companies for screening and ongoing treatment much like how existing drug-testing rules work. (Depending on the severity, drivers with OSA could still be permitted to work if they’re in a treatment program).

The issue is also top of mind in Canada, where government and industry officials are watching the proceedings in the U.S. very closely.

Stephen Laskowski of Ontario Trucking Association (OTA) doesn’t know if there’s genuine appetite to put forth similar Canadian legislation but he says, "we’ll still have to deal with it one way or another.

"The question is how? Whether we mandate it or not, what we need is reciprocity [with the U.S.]," he says. "We need the government of Canada and the provinces to at least get behind a made-in-Canada [screening] program that can be recognized."

LEGAL LIMBO

As more attention is paid to the problem, carriers, including Canadian cross-border haulers, find themselves in legal limbo waiting for concrete federal guidelines while at the same time trying to insulate themselves from overly litigious trial lawyers.

There’s little doubt, says Indianapolis-based labor lawyer Angela Cash, that plaintiffs’ attorneys are sharpening their claws as the dangers of sleep apnea become more familiar. In fact, trial lawyers are using the available OSA literature — some which suggests that extremely fatigued drivers could threaten highway safety as much as drunk drivers do — to their Machiavellian advantage in court.

"[Plaintiffs’ attorneys] love these kinds of stats and studies because it allows them to say ‘drunk’ six times during the trial even if the [driver] didn’t have a drop of alcohol pass through his lips," Cash tells Today’s Trucking.

The safety related justification for OSA testing is
obvious, but the liability ramification should be just
as clear for anyone operating in the U.S.

A handful of cases have already tested this approach, with varying degrees of success, she says. Clearly, though, lawyers are increasingly winning judgments by claiming carriers are vicariously liable if their drivers are involved in fatigue related accidents — and more so if drivers are diagnosed with OSA.

"It’s kind of a Neverland for carriers because there’s enough information out there that suggests this is a problem, so it opens up the question [of liability] if you have such information on a driver and perhaps look the other way."

Even the mistake of "not noticing" could cause the gavel to come down on you. The sort of "information" a carrier is supposed to be alerted to is also open to interpretation. In one case involving a fatality, a judge dismissed a carrier’s "sudden emergency" defence even though the driver didn’t make the company aware of his OSA condition.

The plaintiffs’ lawyer reasoned, and the judge agreed, that a single fatigue-related accident on the driver’s abstract should have raised flags. Cash says that any fatigue or health-related communication between the driver (or his family) and the company — unexplained accidents, dispatch correspondence related to tiredness, or frequent sick days or lateness records — could convince a judge or jury that a company "should have known."

Fatigue wasn’t even an issue in another tragic case in New Mexico where a truck driver suffered a heart attack and struck a road worker after he lost control of his vehicle. Both the trucker and worker died, but that didn’t stop the families’ lawyers from going after the carrier, arguing that the heart attack was a result of an underlying OSA condition the employer should have been aware of.

Luckily for the company there was little evidence to link OSA and the heart attack, but, if anything, the case shows that plaintiffs’ attorneys "are being creative in connecting what dots they can with regard to sleep apnea to get to liability," says Cash. "And now there’s a lot more dots for them to follow."

This is all the more reason to move ­forward quickly on a federal rule that provides clear procedural guidelines for carriers, says Osterberg.

That’s not to say trial lawyers won’t circle around anyway, but a legal road map drawn up by the feds would better protect carriers who do their due diligence.

TESTING, TESTING

For Canadian-based NAFTA haulers — as any carrier required to test U.S.-bound drivers for drugs knows all too well — things could get even more complicated if mandatory OSA testing gets on the books in either country.

Outside of insurance costs, the issue north of the 49th isn’t so much crash liability — claims are usually controlled by legislation and Canadian courts don’t hand out the punitive damages the Americans do — but there are health and safety pitfalls to mind.

Like drug and alcohol dependence, sleep apnea has already been ruled to be a "perceived" disability by Provincial Human Rights Commissions, says Christopher Andree, a partner with mega law firm Gowling Lafleur Henderson LLP.

In Dashwood Industries Ltd. v. United Steelworkers of America, an Ontario arbitrator found that OSA was a disability under health and safety legislation, and therefore all the reasonable anti-discrimination rules, including a prohibition on random testing, would apply.

"It would fall in the same category as drug testing," says Andree. "If you tried to test for sleep apnea, you’d face the same kind of challenge that you are perceiving someone to have a disability; and if they do have a real disability you have to accommodate them."

How do you accommodate someone who can’t sleep or is constantly fatigued? Andree speculates: "My immediate reaction would be to say, for example, you can’t let them keep the same driving hours because they might get tired much faster than someone who gets a normal amount of sleep."

The anti-discrimination angle isn’t lost on Angela Cash in regards to U.S. protections. That’s why until legislators pass a firm mandate, she recommends that carriers who want to preemptively protect their liability adopt either an "all-in" policy — screening all drivers regardless of whether they fit the profile for OSA — or the less expensive, but perhaps riskier approach of addressing drivers on a case-by-case basis, depending on the apparent evidence that a sleep disorder could be a factor.

"You can’t just assume that just because someone shares physical characteristics with those who generally test higher for sleep apnea, that you should to test for it," she says.

Taking action in advance of FMCSA legislation surely seems complicated. Plus, any testing and treatment policy involving owner-operators involves putting your foot down on an entirely separate legal minefield. Just ask the carriers in both the U.S. and Canada who have watched courts and arbitrators rule that independent contractors need to be treated like company drivers — and, in some cases, even unionized — because the company may have exercised what was deemed to be too much day-to-day control over the owner-ops.

Still, it’s apparent that not having any screening and treatment policy at all, even in the absence of a government directive, is a big gamble if your drivers travel on U.S. roadways.

"Quite frankly," says Cash, "with target defendants like trucking companies, unless you can go in there and prove there is absolutely no evidence that you could have known or suspected a driver [involved in a crash] had sleep apnea, then it’s very risky because juries want to hold trucking companies responsible because they put people out there behind the wheel of those big rigs.

"I don’t think juries will look kindly on trucking companies that in their opinion turn a blind eye."

Montreal trucker Marc Paquin is one big rig operator who’s glad his sleep problems, while made plainly apparent once they spilled out on the highway, didn’t lead to any serious injuries or land him in a court room before he could get medical treatment and overcome his "enemy."

Sounding a bit like an infomercial, Paquin says, very genuinely: "The results are fantastic. I am alert and energetic all day long.

"If you have several of the symptoms of sleep apnea, you should not hesitate," he says. "The examination lasts one night and your life will be completely changed."

One down. A few hundred thousand to go.

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