A few issues ago I wrote about (excuse the pun) waking up to the dangers of sleep apnea, thanks to a conference on the subject I moderated for Northbridge Insurance.
Referencing first-hand accounts from people in our own industry I focused on the consequences of allowing sleep apnea to go untreated (see my column in the June issues of Truck News and Truck West).
The chronic sleep deprivation caused by sleep apnea results in daytime sleepiness, slow reflexes, poor concentration, and an increased risk of accidents. Sleep apnea can also lead to serious health problems over time, including diabetes, high blood pressure, heart disease, stroke and weight gain.
With this column I want to focus on the consequences that extend beyond the obvious health concerns.
I want to look at the legal and insurance implications you, as a motor carrier manager or owner, face if you have drivers on your staff suffering from sleep apnea and do nothing about it, particularly in the case that an accident is linked to a driver suffering from sleep apnea.
While the US is waiting for the Federal Motor Carrier Safety Administration (FMCSA) to provide a formal ruling on dealing with sleep apnea, it has already set guidance on factors that need to be considered in determining whether employees should be tested for sleep apnea – neck size, BMI, etc.
Although the guidance is just that – guidance that doesn’t carry any legislative weight – many US carriers are already testing their drivers for sleep apnea.
The result of those companies already testing sets a new standard. There are companies testing in Canada too. The fact they’re testing for sleep apnea sets a new standard in Canada as well.
Carriers that choose not to test, even though they know some of their competitors are testing, will face a higher probability of being found negligent by the courts in cases where sleep apnea is found to be a factor in a crash.
The fact that we don’t have any current legislation that specifically mandates testing is going to be irrelevant because once there’s an accident the prosecutor is simply going to say, “Well, if you knew about the consequences of sleep apnea, why didn’t you do any testing?”
The risk of not testing becomes even more significant for carriers hauling into the US where prosecutors are keen to “inflame and inflate” – inflame the jury to inflate the award. In such cases all the things that you are doing, or not doing, around sleep apnea – the diagnosis and treatment of it, the way you approach it, the records you keep, the communications you have with your drivers – will come into play into determining the size of the award.
The consequences of sleep apnea are becoming well known.
As an industry we have an obligation to make sure that we deal with this head on. If we don’t, the trial lawyers are going to ensure that we do.