The influential FMCSA Medical Review Board has five medical doctors, but currently no members or advisers representing trucking.

The board has power only to recommend regulations to FMCSA, such as the multifaceted “fitness for duty” matrix, which would likely remove an astronomical number of CDL holders from the road. Many, however, believe the board’s influence carries more weight than FMCSA lets on.

Raphael Warshaw, a former trucker from Wayne, NJ, said most or all medical practitioners who perform DOT physicals follow the board’s recommendations for fear of being sued over potential accidents caused by their drivers.

“As a result, MRB recommendations are de facto regulation,” Warshaw recently told Land Line.

OOIDA has been a key supporter of highway safety, driver health and responsible solutions to environmental issues. The Association has called for enforcement of existing laws by law enforcement officers.

The Association, however, has also been critical of FMCSA’s disregard for medical privacy protections for drivers. For instance, FMCSA continues to allow states to collect long-form physicals as a precondition to licensing.

“These people are trying to find a fix for something that is not a problem,” said Joe Rajkovacz, OOIDA’s regulatory affairs specialist.

In its 35-year existence, OOIDA has seen several rounds of proposals from regulators and politicians concerning highway safety.

Unfortunately, many are based on the premise that truck drivers are causing large numbers of accidents, a false assumption that truckers see regularly in national and hometown news stories.

OOIDA wants policymakers to remember two things:

1. The National Highway Traffic Safety Administration says that 75 percent of all wrecks involving trucks and passenger vehicles are not caused by the truck driver.

2. No government agency or academic institution has produced a credible study linking any rash of poor commercial driver health to any increase in traffic crashes 

FMCSA made headlines in spring 2008 after the agency’s medical review board recommended the requirement that drivers with body mass indexes of 30 undergo expensive one- to two-night sleep apnea study procedures. The board presented a slew of recycled studies relating to driver health and safety, including one Pennsylvania study that FMCSA itself had debunked years earlier.

Moreover, Rajkovacz said, the board’s expensive recommendations for mandates are justified by many weak arguments in the matrix document, such as: “Drivers who are not fit may present a safety hazard to themselves and to the public,” or “physical and mental disorders may reduce driver performance and increase the risk of crashes.”

“Mays, coulds and woulds should not be the basis for a rulemaking,” Rajkovacz said.

Dr. Kurt Hegmann is chairman of FMCSA’s Medical Review Board. Hegmann also is Center Director and Dr. Paul S. Richards Endowed Chair in Occupational Safety and Health and Professor of Rocky Mountain Center for Occupational and Environmental Health, Department of Family and Preventive Medicine at the University of Utah, and is board certified in Internal Medicine and Occupational Medicine. He also chairs the American College of Occupational and Environmental Medicine’s (ACOEM’s) Evidence-Based Practice Committee.

Hegmann told Land Line that his board makes recommendations based on a link between commercial driver health and public safety – though he admitted data on the subject is lacking.

“The MRB has taken repeated positions that more research is needed. I think that’s the best answer,” Hegmann told Land Line in early March. “It is correct to say that the quality of evidence stating that any one particular intervention has a known degree of impact – that clearly is lacking.”

Hegmann later wanted to add to his comments, saying “for some disorders, there is quality evidence of risk of crash and that risk can be high. However, for most disorders, the risk of crash is not known.”

The Medical Review Board, however, has recommended regulations that would mandate more doctor visits for commercial drivers and would also mandate expensive sleep studies for many drivers. The board’s justification for those measures includes studies performed in Australia and in the Middle East that blame some highway fatalities on driver health.

Again, Hegmann pointed to the Medical Review Board’s multiple actions to gather more data on driver health and commercial vehicle crashes that result in fatalities.

In April 2008, the board unanimously approved motions recommending that FMCSA collect driver health data on every driver involved in a fatal crash, and also establish a national database of commercial driver medical records.

“The quality of what is available is very weak,” Hegmann said. “The amount of evidence is very weak, and it’s really not any better overseas.”

Hegmann later added that for some health issues, including apnea, he believes research does tie a driver’s health to safety.

Referring to Land Line’s 2008 coverage showing direct financial ties between specific sleep study lobbyists and policymakers on the FMCSA medical review board, Rajkovacz said the doctors’ self-interest should be balanced with trucking industry representatives.

“You can’t load a committee up where it’s so one-sided that those sitting in an advisory capacity potentially could have financial gain,” Rajkovacz said.

Hegmann said he doesn’t see any financial benefits from the decisions he advocates on the Medical Review Board and said that, in fact, he loses income from spending about 16 days annually traveling and participating in board meetings.

“I can assure you that in this process I will have suffered financially because it takes so much time,” Hegmann said.

Dr. Barbara Phillips – another Medical Review Board member – is immediate past chairman of both the FMCSA board and the National Sleep Foundation. The National Sleep Foundation  is an association funded largely by drug companies, sleep study labs and C-Pap manufacturers – all businesses that would benefit directly from last year’s Board recommendation that drivers with a body mass index of 30 or greater take expensive sleep study tests.

Wouldn’t that be a financial benefit for at least one board member, caused by the board itself?

“You’d have to actually ask her directly,” Hegmann said.

Phillips agreed to answer questions by e-mail only.

She wouldn’t directly answer whether her roles as FMCSA medical review board member and doctor specializing in medicine made it improper for her to advocate the requirement of billions in potential sleep studies.

“My primary responsibility, as a member of the Medical Review Boards, is to consider the evidence carefully and to make evidence-based judgments about risks for crash posed by medical conditions and disorders,” Phillips responded. “My vote was based on the evidence, and reflected that responsibility.”

Phillips declined to address the recently recommended “fitness for duty matrix,” but said she believes that the link between sleep apnea and risk of crash “is amongst the strongest of the many disorders we have reviewed to date.”

Responding to whether she benefited financially from recommendations and potential rules she backs as a Medical Review Board member, Phillips stated only “since I practice sleep medicine full-time, I work in an accredited, university-based sleep center.”

In a final jab at truck drivers, the board unanimously approved a recommendation to disqualify drivers who “physically or verbally threaten medical staff,” saying such behavior “demonstrated a lack of mental fitness to drive.”

The “mental fitness” proposal stunned McElligott, who said most drivers are teddy bears and he’s never heard of a doctor being threatened in any way.

Rajkovacz, who worked as a police officer before returning to trucking, agreed.

“Allowing doctors to subjectively pick and choose how they feel threatened, or what is a threat – to be able to hold over any human being that person’s ability to make a livelihood – that is a huge violation of due process in this country,” Rajkovacz said.

The verbal or physical threat provision in the matrix was backed up by no more than secondhand, anecdotally based stories, Hegmann said. Hegmann, who said he’s examined many drivers, has never been physically or verbally threatened.

“I can tell you I have been told by more than one person – that it is an extraordinarily rare occurrence – but I have certainly been told that people have been physically threatened,” Hegmann said. “If that happens, in my opinion, that person has demonstrated questionable ability to drive a truck safely. I emphasize – I have examined many truckers, and by a rule, one after another they are really nice people. They’re fun to work with; they’re cool people. They perform hugely important things. It’s the old problem of a few – and very few – bad apples creating other problems.”

What about the few bad apples in the medical industry that may choose to use the “mental fitness” portion of the recommendation to unfairly lord it over drivers?

“Clearly, if (FMCSA) goes down this road, something would have to be set up to catch and counter that issue too – to make it a balanced system.”

Rajkovacz said nothing is balanced about the Medical Review Board’s recommendation, particularly the mental fitness recommendation.

“What’s so offensive about that recommendation is that it exhibits a prejudice against truck drivers.  It makes a baseless assumption that because you are a truck driver you are somehow prone to violence. That is offensive.”

Visit Land Line Magazine’s daily news site at www.landlinemag.com this week for part three of “Fitness for duty.”

– By Charlie Morasch, staff writer
charlie_morasch@landlinemag.com