newsUpdates

May 2007

Questions & Answers

Question #1: May a reasonable suspicion alcohol test be based upon any information or observations of alcohol use or possession, other than a supervisor’s actual knowledge?

Answer #1: No. Information conveyed by third parties of a driver’s alcohol use may not be the only determining factor to conduct a reasonable suspicion test. A reasonable suspicion test may only be conducted when a trained supervisor has observed specific, contemporaneous, articulable appearance, speech, body order or behavior indicators of alcohol use.

Question #2: Why does §382.307(b) allow an employer to use indictors of chronic and withdrawal effects of controlled substances reasonable suspicion test, but does not allow similar effects of alcohol use to be used for an alcohol reasonable suspicion test?

Answer#2: The use of controlled substances remain present in the body for a relatively long period, withdrawal effects may indicate that the driver has used drugs in violation of the regulations, and therefore must be given a reasonable suspicion drug test.
Alcohol is generally a legal substance. Only its use or presence is sufficient concentrations while operating a CMV is a violation of FMCSA regulations. Alcohol withdrawal effects, standing alone, do not therefore, indicate that a driver has used alcohol in violation of the regulations, and would not constitute reasonable suspicion to believe so.

Sleep Deprivation

This month I would like to emphasis the effects of sleep deprivation and the association with Obstructive Sleep Apnea (OSA). Many people are not aware of the role sleep deprivation plays in many of our daily lives and the severity of the effects. As well as the legal implications that have been in recent news publications and published studies.

Inadequate sleep affects quality of life including:

Of course for various reasons this in turn would also affect work performance:

Overall effects include the lack of the follow functions:

 

Sleep deprivation facts:

Driving performance in sleep deprived people with less than 8 hours sleep in a 24 hour period is similar to the blood alcohol levels in a person that has consumed the following:

Sleep Apnea
The Greek word “apnea” literally means without breath. There are three types of apnea; obstructive, central, and mixed. In all three types, people with untreated sleep apnea stop breathing repeatedly during their sleep, sometimes hundreds of times during the night and often for a minute or longer.

Obstructive sleep apnea (OSA) is caused by a blockage of the airway, usually when the soft tissue in the rear of the throat collapses and closes during sleep. In central sleep apnea, the airway is not blocked but the brain fails to signal the muscles to breathe. Mixed apnea, as the name implies, is a combination of the two. With each apnea event, the brain briefly arouses people with sleep apnea in order for them to resume breathing, but consequently sleep is extremely fragmented and of poor quality. Fortunately, sleep apnea can be diagnosed and treated.

In a community-based study, men were found to be 2 times more likely than women to have OSA. However, men are 8 times more likely to be treated for OSA than women. This suggests that the symptoms of OSA in women are often attributed to other conditions, such as chronic fatigue syndrome, depression, and fibromyalgia.

Symptoms
Snoring: In most cases, patients with OSA snore loudly. The snoring pattern is not steady, and is interrupted by periods when the person stops breathing. The arousal from sleep can result in a gasp or choking sound, followed by a couple of snores and then quiet again as the next event starts.

Drowsiness: For some people OSA causes extreme daytime drowsiness, slower reaction times, and impaired memory. Studies have shown that driving performance in severe sleep apnea patients is similar to driving with a blood alcohol level above the legal limit. Untreated OSA patients are 3 to 7 times more likely to be involved in industrial and motor vehicle accidents.

Cardiovascular: Abnormal breathing during sleep induces stress on the cardiovascular system and causes hypertension (high blood pressure). Studies show that up to 50% of OSA patients have hypertension. OSA has also been correlated with permanent cardiovascular abnormalities (problems with your heart or blood vessels), and can increase risk for a heart attack or a stroke. People with severe OSA have twice the chance of dying during sleeping hours than those without OSA.

OSA Treatments
Weight Loss: The most common cause of OSA is obesity, so losing weight is important -for those who are overweight regardless of OSA severity. For mild sleep apnea, this might be enough.

Sleep Position Restriction: Gravity promotes sleep apnea when a person sleeps on his or her back (supine). The ARES measures OSA by position, so if it is shows difficulty only or mostly on the back, then simply avoiding sleeping on the back may be successful. Patients who have OSA primarily while on their back are also more likely to be helped by an oral appliance.

Oral Appliance: An oral device is fitted by a dentist and worn much like a retainer or sport mouth-guard.

Surgery: A variety of surgical techniques have been used to reconfigure the upper airway so that it remains open during sleep, but these procedures may not be helpful in every patient, and their long term effectiveness is unproven.

Continuous Positive Airway Pressure (CPAP): Nasal Continuous Positive Airway Pressure, or CPAP treatment, requires the patient to wear a mask over the nose during sleep.

Further information will be available at the CDTOA Board Meeting June 23rd in Rancho Mirage following a presentation on Sleep Deprivation – A Major Preventable Cause of Accidents at Work and on the Road by Chris Berka from Advanced Brain Monitoring in Carlsbad, CA, or visit their website at www.b-alert.com.

Be sure to make your reservations for the June Meeting which will be very informative with a full agenda. Looking forward to seeing everyone there!

Prevalence & Legal
Implications of OSA

In a study published in the April 2007 issue of Sleep Diagnosis and Therapy, the Apnea Risk Evaluation System (ARESTM) confirms previous reports on the prevalence of undiagnosed Obstructive Sleep Apnea (OSA) in pre-hires and managers of a U.S. based trucking company.

Results replicated the Stanford University Sleep Disorders Center estimated prevalence of important undiagnosed sleep disordered breathing at 50% in commercial drivers. “The prevalence in this population is two- to three-times greater than the estimates of undiagnosed OSA in the general male population,” stated Dr. Philip Westbrook, Chief Medical Officer of Advanced Brain Monitoring.

In an analysis of 608 cases, the prediction of OSA severity is especially useful to clinicians who need to identify those in the most urgent need of care when screening community populations such as truck drivers and patients undergoing general anesthesia.

The clinical study was combined with commentary pertaining to the legal implications for truck drivers, employers and physicians who are involved in the transportation industry.

“Several recent events have increased the potential legal exposure for transportation companies who choose to do nothing about OSA,” stated Don Carper, professor emeritus at the College of Business Administration California State University, Sacramento and one of the authors. “First, the prevalence of undiagnosed OSA in commercial drivers is exceptionally high, much higher than the general population. Second a recent major initiative by Trucking Industry leader, Schneider International, has demonstrated the cost of diagnosis and treatment of OSA can be rapidly recouped by savings in annual health care expenditures alone. Finally and most importantly, treating drivers will significantly reduce the number of avoidable accidents with lost lives and serious injury. Schneider International’s initiative reported a 73% reduction in preventable accidents in diagnosed and treated drivers.

Expanding the perspective on the legal implications of OSA, the commentary discusses the legal issues for drivers and physicians as well as employers. A number of cases whereby a driver faces imprisonment or is in prison as a result of OSA are referenced.

“One of the most common symptoms of OSA is drowsiness,” stated Dr. Westbrook, “and most drivers are unaware that they could face prison sentences if they continue to drive when fatigued and then have an accident causing loss of life.”

The paper also points to the need for additional scrutiny by occupational medicine physicians who perform Department of Transportation (DOT) mandated fitness-for-duty physicals. Some drivers fear that a diagnosis of OSA might limit employment options and many are concerned this fear can lead to less than candid responses to the usual diagnostic questions. The study found that responses to questions similar to those mandated by the DOT physical (i.e., do you snore or do you wake up choking) were unusually normal for the pre-hires as compared to the managers.

“Unlike some of the other questionnaire-based screening tools available, we have incorporated multiple analyses techniques in order to reduce the likelihood of a false-negative result if the driver provides a misleading response,” stated Dan Levendowski, the lead investigator in the clinical study. “Once driver’s realize that misleading responses places them in legal jeopardy this problem may disappear. Until that time, systematic use of the ARES and treatment of drivers for OSA is one way transportation companies and DOT physicians can reduce their legal exposure.

 

Note that throughout this article, when I refer to the applicable federal regulations, I’m referring to CFR 49, Parts 40 & 382; these regulations can be found in Section 5 of the AADT Company Compliance Manual or in the AADT website at www.aadrugtesing.com under links at DOT Office of Drug and Alcohol Policy and Compliance at www.dot.gov/ost/dapc or Federal Motor Carrier Safety Administration at www.fmcsa.dot.gov.