Court: New Prime medical process likened to 'hurdle jumping'

By Jami Jones, Land Line managing editor | Thursday, May 19, 2016

Since August 2010 when John Lisotto decided it was time for a career change and to leave his job as a correctional officer in South Carolina, to be a trucker with New Prime Inc. That didn’t work out and since then, Lisotto claims the Springfield, Mo., based motor carrier has effectively prevented him from landing a trucking job.

He brought a case against New Prime Inc. in 2013, under the Americans With Disabilities Act, but it was dismissed.

The U.S. Court of Appeals for the 4th Circuit recently reversed a lower court’s dismissal, saying that the court ruled in error and Lisotto was to get his day in court.

The South Carolina man learned to drive trucks in 1971. He had about seven years of over-the-road experience under his belt at the time he was talking to recruiters at New Prime in August of 2010, according to court documents.

In late August 2010, he got the green light to go to Springfield, Mo., and go through orientation at New Prime. The recruiter told him he would have to pass a medical exam and his pre-employment drug screen.

According to court documents, Lisotto had a condition “believed to be or diagnosed as narcolepsy.” He was under the care of his personal physician who had prescribed Dexedrine to control the condition.

His physician gave Lisotto a letter stating: “the prescribed medication would not adversely affect (Lisotto’s) ability to safely operate a commercial motor vehicle as (Lisotto) had for many years been driving commercial trucks safely … while taking (Dexedrine) and had experienced no problems with narcolepsy.”

Through a series of medical exam and drug testing “hurdles” New Prime not only denied employment of Lisotto, but also prevented him from securing a trucking job elsewhere. After securing the right to sue New Prime from the Equal Employment Opportunity Commission, Lisotto took New Prime to court.

Lisotto quit his job as a correctional officer and traveled to Springfield for orientation in September 2010.

When he reported for his medical exam and drug screen, court documents state he presented Prime’s medical examiner the letter and his prescription. He was told following the exam and the drug test that was positive for methamphetamines that New Prime would only accept Provigil narcolepsy treatment and he would have to be on it and stable for six weeks before employment.

Lisotto returned home to South Carolina to work on complying with New Primes orders. Shortly after returning home, he got a call from New Prime’s medical review officer.

The MRO needed to verify directly with Lisotto’s personal physician the diagnosis and prescription for Dexedrine, according to court documents. If the MRO did not hear back within five days, the pre-employment drug test would be reported as a positive test.

The court’s opinion states that Lisotto’s personal physician tried a number of times to contact the MRO and did not receive a return call.

After completing six weeks on the Provigil, Lisotto called New Prime on Nov. 1. According to court documents, he was transferred to the personnel office where an employee told him, “You cannot work for Prime because you tested positive for amphetamines,” and then hung up on Lisotto.

Lisotto attempted to get the MRO to revise the positive drug test result and sent a letter to the doctor on Nov. 19, 2010, asking him to re-evaluate. Two months later the MRO responded, according to court documents, and told Lisotto “even though you have a prescription for amphetamine, in my opinion you have a disqualifying medical condition since narcolepsy is a safety concern.”

After receiving that letter, Lisotto participated in a sleep study and found out he did not have narcolepsy, but rather sleep apnea. After undergoing treatment for the apnea, he wrote the MRO again on May 25, 2013, explaining the change in diagnosis and that he no longer needed medication. He asked the MRO to reconsider clearing his name so he could drive again.

According to court documents, he received no response.

Lisotto tried to find work in trucking only to be told by one company that he had a “record of abusing amphetamines.” He eventually became homeless and suffered extreme emotional distress according to the court records.

The EEOC greenlighted Lisotto to sue, and he filed suit on Sept. 5, 2013. The lower court ruled against Lisotto saying he did not exhaust his administrative remedies to argue New Prime’s decision that he was not a qualified individual.

The 4th Circuit said the lower court’s dependency on an FMCSA regulation pertaining to a disagreement over diagnosis was in error and New Prime’s arguments to that end were not relevant.

However, the court found a “discrete issue before us” – an issue that paralleled another case, according to the 4th Circuit opinion.

The court cited Stevens v. Coach U.S.A., where a bus driver took a medical absence from work with Coach U.S.A. His physician and Coach’s medical examiner medically cleared him to return to work.

However, according to court documents, before Coach allowed the bus driver to drive on a permanent basis, it “sent him through a series of hurdles that prevented his medical fitness from ever being determined. …Hurdle jumping, rather than medical disagreement is precisely what happened here.”

The 4th Circuit vacated the dismissal of Lisotto’s case on those grounds and remanded the case back to the lower court for further proceedings.

Requests for comment from New Prime’s attorney and Lisotto’s attorney were not returned.

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