AOHC Encore 2023-125 Current and Complex Issues in Commercial Driver Medical Certification Part II

125 Current and Complex Issues in Commercial Driver Medical Certification Part II

Video Transcription

Start up, it's now. That's a little too loud. All right, we're going to keep on going. They only gave us two hours today, and there's about 10 hours of content.  So, National Registry updates, what are we going on? They've redone the website. It really has a lot more information. They've talked about security.  You've got to get through a new security system. Make sure you are updated on that.  I tried to highlight a couple of the information pieces. The medical examiner's forms are all up there. The, what do we have here? Training programs, the core curriculum.  That really tells you what the 10-year certification needs to be covering.  The bulletins to examiners are all now available under the NRCME website. So, check that resource out. Again, the resource guide, the frequently asked questions,  the five-year training resource, all really good refresher information of what FMCSA expects you to be thinking about. Now, just some other topics.  So, this is going to be kind of a quick throw, and then we'll go on. Medical Review Board meetings.  They haven't really met a whole lot lately. They met earlier, I guess, when was the last one? 20, October of 2022.  Talked a bit about the handbook, talked about the seizures, talked about the research projects. Website is there, but more importantly,  I like to include this with every session I give. FMCSA still does not have a really, really easy way of finding out when did we talk about driver wellness,  when did we talk about circadian rhythm disturbances, when did we talk about seizures, when did we talk about dot, dot, dot, dot, dot. So, this is a nice little chart.  Date, boom, boom, when everything was discussed. Now, how do you find it? Go back to the website itself, the MRB website. Look under either Proceedings or Meetings.  The older stuff was under Proceedings, the newer stuff is under Meetings. And from there, just go to pick the right date and then you can find what you're looking for.  CBD, marijuana, just a reminder, CBD, buyer beware. Drivers can use CBD, it is not an automatic disqualifier. However, if they pop positive on a drug test for THC,  it is a violation. They don't care where you got it from. If you were in the MRO session, Catherine Russo talked about low THC states, CBD rules for medical use.  You've gotta keep in mind, some states will allow, not above .3%, will allow 9% of THC per volume  in each product. That's a lot of THC.  You have a couple of those gummies with the high THC, low CBD, high CBD, low THC, low THC content, they can pop a positive. So, it is buyer beware for CBD.  They do not really care about state law.  I just always like looking, whenever we can get a hold of a driver, a company, an examiner that did the wrong thing, yes, there are criminal charges against drivers,  against examiners for falsifying examinations, for lying on exams and so forth. Additional resources.  FMCSA, if you have information that you need information on either the hearing or seizure exemptions, that's the new emails. If someone is abusive, is threatening,  there is a contact you can reach out to. Send it to Alex, also there's a phone number there.  FMCSA, what are we going through here?  Oh, this is the resource links. Talked about the resource table.  Please look at that, has lots of information. And then, lots and lots of other links for more information. So, I am not gonna take questions right now  because I think some of them may be answered by Dr. Berniking, and we're just gonna keep on going.  Perfect, thank you.  All right, hello.  We'll give you a minute to get situated here.  My name is Mike Berniking. I probably don't have the name recognition, Natalie does. I'm the Medical Director for Bronson ProHealth in Kalamazoo, Michigan.  And I'm very pleased to be leading a team of very skilled occupational medicine people providing occupational medicine services to Southwest Michigan.  I also am fortunate enough to be paid to fly around in Blackhawks from time to time as an Army flight surgeon as well.  So, I have two jobs.  Some of you may remember me from Concentra, where I spent almost 15 years.  And I'm very happy to be here today. Nothing to disclose, okay?  I'm not speaking on behalf of the military. I'm not speaking on behalf of FMCSA, not on behalf of Bronson Hospital. This is educational stuff only.  I'm not gonna read everything to you. So, this slide is kind of irrelevant because we've kind of covered all that. So, in the interest of time, let's just move right on.  So, what keeps us up at night, right?  Why are we concerned about this handbook? And I suspect that a lot of this has to do with the, and I get questions about this a lot,  the lack of consistency between examiners, right? One examiner may be very diligent about applying guidance and reviewing medications, making sure they've got all their information,  maybe limiting certification. That same driver may go down the road to another examiner who may be more of a no questions asked style  and get very different certification decisions, right? Many of us examiners may feel that the agency that regulates these drivers is not supporting us very well, all right?  They're pushing it all back to the examiner to use our own judgment. That has advantages and disadvantages, right? It gives me a lot of leeway to do the right thing.  But for people that maybe not as experienced, who have a different training background, who may not do as many of these, this can be a struggle, okay?  So, we're gonna talk about the draft medical examiner handbook. Again, this is a draft. This is a draft, this is a draft, this is a draft. None of this is set in stone.  None of this is locked in, okay?  So, when I talk about the handbook, I'm referring to the draft.  We're not gonna just complain. We're gonna point out some guidance along the way that is available to you. And Natalie's already covered a lot of that.  So, we're not gonna belabor any points, but that's our goal today. That's my second job.  All right, so I wanna tell a little story here. Where do we start? So, for those of you that have been doing this a while, like me, there was a medical examiner handbook.  And it was not bad, but it wasn't the best, it wasn't the worst, but it was guidance, right? This is what we recommend you should do with a driver with X condition.  It had a lot of information in one place. It was easy to reference, okay? That's what the training curricula were developed from.  It wasn't perfect, it was a good start, but we blew it. We all blew it, why? Because a lot of examiners started to tell drivers that that was the rules.  You need a stress test because the FMCSA, the DOT says you need a stress test.  Every two years after you've had an MI, it's in the book. You need a sleep study because the regs say so. No, they didn't. So drivers, employers, carriers, they know the regs too,  and they started to call and complain.  So bye-bye book. 2015, it went away, and we've really not had anything since. There's been some technical struggles, and Natalie kind of alluded to those.  It's there, the guidance is still there. It's sometimes hard to find. It's getting a lot better. So now the first, the new one was first approved in 2019.  It's gone through several drafts. Natalie pointed out the last one was in 2022. She also pointed out the changes to the medical advisory criteria. That was the appendix.  That's kind of codified.  It's a little more strict because it's in the Code of Federal Regulations, but it's still guidance.  So regulation guidance. This is a constant point of friction. Regulation, you have to do it. You have no discretion. All right. I say there's four,  hearing, vision, epilepsy, and insulin use. You saw Natalie said, feds say now there's only two, which is epilepsy and hearing.  I still think vision and insulin are pretty much you must because 391.44 and 391.46, the alternative standards, really have a strict set of criteria they have to meet  in order to be qualified. And if they don't meet those, you're supposed to disqualify them. All right. Guidance, what you can do, what you maybe should do. Okay.  The examiner has discretion. Just because you don't have to do something doesn't mean you shouldn't do it.  We've talked about vision. We're gonna go into sections here. I'm keeping an eye on the time. Vision, what's in the draft? It's a review of the vision standard.  It's a review of the alternative standard. They did a good job with that, but they did not discuss the issues that Natalie talked about who shouldn't be eligible  for the alternative standard, right? The person that maybe has cataracts and they can get that cataract fixed, technically shouldn't be qualified under that.  They need to get their eyes fixed. It really is for somebody who's got permanent fixed monocular vision.  But they did give me a Snellen chart.  Hearing.  Good discussion about the exemption, how to mark the MUC. Natalie already covered that, but it did not discuss any other ear conditions that might affect the ability of a driver  to operate that 80,000 pound tractor trailer safely.  And it also did not link to the cochlear implant reports. By the way, AECOM commented on all of this, and we're really taking this material  from the AECOM comments on the latest draft. This is not gonna be an all-inclusive thing, right? You can read that AECOM. It's online. You can find it. You can read our response.  There's a lot more detail there. We're just hitting the highlights right now. But that cochlear implants report is important.  You should be looking at that when drivers have ear conditions. Hypertension, all right. Bear with me. I gotta review my notes. This gets crazy. That's a busy slide, I'm sorry.  The handbook doesn't make any specific hypertension recommendations. Remember the old stage one, two, three? They even printed it on the medical examiner report, right?  And that's gone. So they didn't make any specific, but they did point to the 2013 cardiovascular recommendation table. And you notice the first thing up at the top  is two year for essential hypertension.  Doesn't define essential hypertension. There's no blood pressure cutoffs there. I'm assuming that means less than 140, 90, but it doesn't specifically state that  in the handbook or on that slide. Gets better.  All right. And how many drivers have high blood pressure, right?  So, and they don't clarify whether that's with meds, without meds. And, all right.  Back up here.  My apologies. My cursor seems to be absent.  Okay. So the next row down is stage two. And it looks there to me like you can give them a one year card if they're less than 170 over 110.  It says if the driver has no history of hypertension, you can give them a year card. But then also, at research, you can give them a one year card if they're less than 170 over 110.  So, stage two, I guess we're to a year. Stage one or what? Yeah, it gets confusing. Then, it gets even better because at the recheck, if they're at stage three, right,  they can't have, and they come back, and they're less than 170 over 110,  you can give them a six month cards. But that's assuming you knew that they were disqualified in the first place for their blood pressure.  But, yeah. This is just a mess, right?  Where is the cursor on this thing?  Is this a touch screen? Nope.  All right, I am just loving life right now here.  I can't see it on mine, so. All right.  So, at any rate, this is a very, I'm gonna move on because of time, but at the same time, we've got some discrepancies here.  You know, in the recertification, you can't certify them for the year if they've had a history of stage three hypertension. Six months isn't a year.  Okay, so there's some work to be done here. All right.  Natalie already kind of talked about this. They say the high elevated blood pressure becomes confirmed with two readings. Yes, we know that you don't diagnose hypertension  with one reading. They suggested that we do that, right? We can put them in pending and have them come back another day. Two issues with that.  Number one, the MRRB didn't recommend that.  Their point, I believe, was that if you as an examiner find an elevated blood pressure, you should repeat that blood pressure,  particularly if you're gonna make a certification decision about that blood pressure, right? It's a good practice. If I am going to change someone's life  because of their blood pressure, I'm gonna do that myself. I'm not gonna leave it to my medical assistant. Secondly, examiners are not treating clinicians.  I'm gonna let the treating clinician evaluate and treat. So the treating clinician can bring them back on multiple days and check their blood pressure  to see if they have high blood pressure. So there's a discrepancy there. Renal, it's in the cardiovascular section, so that's not exactly intuitive. They did not really discuss  a lot of the causes of renal failure, but they did give us a very medical school level what dialysis is, why we do dialysis on patients, what kinds of dialysis there are.  They did not reference that chronic kidney failure medical expert panel report, which is a big deal to me, okay? They didn't discuss the risk of severe chronic kidney disease,  which is actually sudden cardiac death, okay, or advanced coronary heart disease when it's advanced, right? They also did not discuss in the handbook  how a driver is going to meet that dialysis schedule and comply with the demands of a commercial driver, okay? Remember, you can't certify the guy that drives a box truck locally  any different than you certify the guy that drives an 80,000 pound tractor trailer across the country is gone for a month.  You gotta certify him for all demands of driving. How they're gonna do that 80,000 pound tractor trailer for a month and still get into dialysis was questionable.  The medical expert panel report did discuss those things. So again, when you're seeing these drivers, I recommend you check that out.  Cardiovascular, this is another fairly busy slide. I'm going to, they had another detailed, very different, you know, a primer on what an echo is,  what an ETT is, tells us they're interpreted  by a cardiologist.  Cardiologist recommend that an ETT performed every four to six weeks or four to six weeks after an MI and repeated every two years. But the 2013 guidelines don't say that.  There's nothing in that box that says they need an echo.  Okay, I'm not convinced that, I think there are a lot of cardiologists that would not do an echo every two years because some guidance now suggests something different.  This is another slide about the echocardiogram in the interest of time, we're not gonna, it's the same kind of information. Again, I'm punting out, they talk about what a PCI is,  what a CABG is, that's medical, if I was asleep in medical school during those times, this would be very handy information. I don't, I'm not criticizing it  because there are some examiners  that may not get that information when they're trained. But at the same time, there's kind of a disconnect, then they stop and then they don't give us anything more.  And they just said, okay, see the guidelines.  So is this gonna be a basic level instruction book or is this gonna be a, here's the guidance, go read it.  Respiratory, this is near and dear to my heart, the proposed criteria are very watered down in the MAC, Natalie already covered that. It didn't talk about the risk of hypoxia  and driving a commercial vehicle, I'd argue those two are not compatible.  Or what happens to your vehicle there on top when you have oxygen that gets out of control?  And not twice, not once, but twice, the draft handbook points out that there are no regulations regarding sleep apnea. Okay, you don't have to screen them,  you don't have to have them evaluated, you do not have to monitor their compliance. Okay, it's not in the regs. They did reference the task letter,  the Medical Review Board task letter, which recommended specific things about testing, treatment, screening, and is really the most current guidance, right?  But if you're a new or kind of timid examiner that doesn't like to confront drivers about uncomfortable subjects, how would you take that?  The regs say I don't have to do it.  That was a concern.  MS and Parkinson's, we're gonna kinda, again, we're just pointing out here  that they did not link to the MEP. They just said consider on a case-by-case basis. The MEP report had some very, very specific recommendations that you follow to get these drivers  with progressive and unpredictably progressive diseases if you're gonna put them behind the wheel what you should be doing. Neurology, Meniere, same thing.  It says consider on a case-by-case in the draft handbook, whereas they did not reference the relevant medical expert panel reports, which actually recommended disqualification. Why?  It's unpredictable. The treatments aren't perfect.  Cerebrovascular disease, let me kind of, you guys talked about that already, and so I'm gonna just point out that they did not include a reference  to the stroke in commercial motor vehicle driver safety. It sounds like there's some things changing. We're all kind of familiar with the one-year wait post-TIA  because the recurrence, five-year for the seizure risk. The science is evolving there, so I'm not gonna belabor the point, but again, the point is that they did not include  the link to the relevant guidance.  TBI, they did reference the brain injury MEP report,  which is nice, but they didn't discuss the other things that examiners need to consider when you're seeing these drivers. Seizure risk, fatigue risk, cognitive impairment.  This is a big issue.  We have a lot of people coming back from overseas wars that have these kind of problems, and they're entering the civilian workforce.  I see this a lot.  Syncope, busy slide. I'll let you read that on your own time. They put it in the cardiovascular section, but not all causes of syncope are cardiovascular in nature.  Diabetes, they talk about the insulin standard,  the alternative standard for insulin quite extensively.  I'm not gonna cover that because they already do cover that. Again, this is not anything new. They need the 5870 completed prior to the physical, 45 days prior to the physical.  I'm gonna put him into termination pending, and he can come back within 45 days.  This, though, is non-insulin treated diabetes. The handbook is not very helpful, and in fact, they point out that you can certify them for up to two years.  I would argue that if I'm having to, if I have a condition that my doctor wants to see me for periodically, we should probably be seeing him that frequently as well. All right?  So they don't discuss anything about it. Stability, efficacy of treatment, compliance, side effects, complications, hypoglycemia.  They don't have any kind of discussion around that. This is really pretty limited.  There's still this question about, okay, severe proliferative or non-proliferative retinopathy is disqualifying if you're on insulin, but not on insulin?  She talked about the draft form.  I'm gonna tell you that bus driver crashed as a result of elevated blood sugar leading to impaired distance vision.  NTSB said this crash and the people that died as a result of it were because this driver had poorly controlled non-insulin dependent diabetes.  There's real world consequences to this stuff.  I see a lot of examiners that rely very heavily on A1Cs.  ADA actually doesn't recommend you use the A1C as a sole determination of fitness for duty.  It's one piece of a bigger picture. Natalie talked about the trend. Okay, what about hypoglycemic complications? What about side effects from the medication?  Compliance, monitoring, et cetera. But I see a lot of times on these exams is A1C 8.0, good to go, if they even write that down.  How common are psychiatric disorders?  Again, a lot of basic education here, what's PTSD, what's bipolar, et cetera, but very little substance. Recommendations about specifically what to do.  They do link to the psychiatric disorders medical expert panel report, which has a lot of very good recommendations in there, a lot of good guidance in there  that I recommend that examiners look at. But they did not link to the medication medical expert panel or medical review board reports. And those can be very relevant  because a number of those medications that they discuss in those two reports are used to treat psychiatric conditions, and they may not be covered in the other MEP.  Drugs and alcohol. We talked extensively already about CBD.  I'm gonna, that guy, by the way, went into the ditch after running over a couple people near my house. He was high as a kite.  I'm gonna give you my two cents on this non-regulated drug test as part of doing a fitness for duty commercial driving medical exam. Beware.  If you were in the MRO controversies session before this, you know there's a lot of state and local laws. It's one thing if you're obtaining a drug or alcohol test  in the context of medical treatment. I'm concerned this person is ill, and it could be due to a drug or alcohol. I want to test them.  But when you start to use it for a fitness for duty,  then state and local law may apply. It might get even more complicated. What about the driver who lives in one state, his company's headquartered in another state,  and he's being tested in a third state?  Beware. That's all I'm saying. I'm not a lawyer. I don't wanna sort that out. I refer, if I think they've got a drug or alcohol problem, I refer them to a specialist.  Have the specialist assess them.  Methadone was already covered.  We're almost done.  This one is good. They pointed out that you need to do a physical exam. They reminded you you need to do a physical, including a hernia check.  I think it needs to be strengthened. You see that truck coming across the median? How would you feel if you were in that van?  This is a prime example of how the medical community absolutely failed the people that died. This guy was driving on a two-year medical card. Nothing was disclosed.  Granted, there's some on the driver, too. Significant cardiovascular history, including a bypass.  He's driving on a two-year card. There was nothing on the medical certification to indicate that he had cardiovascular disease.  The NTSB noted his midline sternotomy scar on his chest. I bet no one looked at his chest.  Had somebody taken his shirt off when they did his physical and seen the midline sternotomy scar, I would hope that that examiner would have asked some questions.  But it didn't happen, and that was not even the first time. That guy had been driving a two-year card for a while. There was a study a while back that indicated  a number of examiners don't do a full physical exam. That's very distressing to me. It's a physical. You have to be able to defend this to an investigator  or a law enforcement officer in the future.  Enough, I won't be, okay. The summary, it's inconsistent. We need some work, all right?  What can you do? Give us the feedback. The transportation section will reach out to you saying give us some comments. Last time, we got almost none.  If you don't want to comment to us, comment yourself. Go on regulations.gov, give your feedback. Be constructive, okay? You can say, yeah, this sucks, this is stupid.  They'll read it, but they're not gonna do anything with that  just because you don't have to do something doesn't mean you shouldn't. We've drilled that point home to you. For those of you who are Jack Reacher fans, do the right thing, okay?  Each driver is unique, treat them that way. Case by case, don't pigeonhole them. Every driver that anyone see of nine is disqualified. Every driver that ever smoked weed in his life  needs a SAP evaluation. Don't cite guidance as regulation. Make use of your resources, MEP reports, MRB reports, FAQs. All right, that's very important.  Document, document, document. I can't tell you how crappy I see documentation on these things. It's a medical record with all the legal implications  that come with that and keep them driving safely. We're not here to be punitive. We're not here to take away people's livelihoods.  We need them, but we want them to be healthy and safe. A lot of them don't see anybody else.  I'm gonna take questions later. I thank you for the opportunity to be here. Thank you to the staff who've worked very hard on this.  And I appreciate everyone's time and we'll turn it over.  The references that I talked about are all available to you in the handout.  Do you want me to use the microphone or the mic? Thank you. Thank you. Thank you. Thank you. Thank you. Do you want this? Yeah.  Thank you. Thank you. Thank you, Dr. Bernicke. I'm just gonna stop right now for a brief meeting. Let me read.  30 member Doug Marcello has been present in the past year. He's been presenting, he's an employment attorney. First, and it's not in here. Malvern, Saxton and Stowe.  Saxton and Stowe. So, he's an employment attorney. We've had a lot of discussions about the work of other medical issues. We're gonna give us a little bit of a kick-off  and things you need to be aware of in ADA and commercial driver medical exam. Give us two cases, one of which I can probably address a few other questions later on.  Then we will take questions.  Hello, everyone. It's a pleasure to be here. I wanna thank the AOHC for having me and also my co-presenters as well.  As Dr. Hartenbaum just said, we're gonna explore two cases today that really look at the interplay between the Americans with Disabilities Act  and the Federal Motor Carrier Safety Regulations.  So, we'll figure out how to work this here.  There we go. My bio. All right, so the first case we're gonna look at today is EEOC versus Western Distributing Company. It's a case that ultimately was brought  in the U.S. District Court for Colorado. If I'm not in Colorado, if the employer's not in Colorado, why do I need to know about it?  And the simple answer is that because we are dealing with a federal statute, the Americans with Disabilities Act, you will find that generally speaking,  most federal courts throughout the country are going to interpret things, if not quite in the same way, in a very similar way. So, cases that are taking place in other districts  are often very persuasive for the district you may be in. So, this District of Colorado case might be viewed as, again, persuasive in Pennsylvania, in Florida, in Arizona.  This is a case where the EEOC, the Equal Employment Opportunity Commission, brought suit on behalf of a former employee, Clinton Kallenbach, and 56 other current  or former employees of the defendant in this case, Western Distributing Company.  In terms of procedure, as all complainants are required to do when you are filing a claim under the ADA, you don't get to go directly to court.  You first have to file with a state or federal agency. If you're going the federal route, you're filing with the EEOC. When that happens, the EEOC conducts an investigation,  and the EEOC will find whether there's reasonable cause or not supporting the complaint brought by the complainant, Mr. Kallenbach and the 56 others in this case.  In this particular case, the EEOC did find reasonable cause  that there was a violation of the ADA by the employer, Western Distributing Company.  When that happens, the EEOC will conduct what they call a conciliation. Their attorneys will meet with Western Distributing's attorneys, and they try to reach a resolution.  In this case, they were not able to reach a resolution, whether that's because the EEOC was requiring too much in the way of penalties, and or Western Distributing  simply didn't want its name in an EEOC press release saying that they were at fault in whole or in part for some violation of the ADA.  This case also illustrates two different types of suits that trucking companies and other employers will find themselves on the receiving end of.  One of those types of cases like this one is where the EEOC itself is the plaintiff. They file suit on behalf of these current and former employees.  The other type of case that you see more regularly is where a particular employee or a group of employees, if this were a class action,  brings the case directly against the employer. So in this case, if it was not brought by the EEOC, it could have been brought by the employee himself, Mr. Kallenbach.  But...  All right, let's check out the factual history in this case. So this case, Dr. Hartenbaum and I were talking about it a little bit just earlier,  because she was involved in this case as an expert, but this case, there was a lot going on in it, okay? But in terms of some of the more important facts that the court viewed,  Mr. Kallenbach was hired in July of 2007 as an over-the-road trucker, no performance deficiencies, satisfactory employee with WDC. In May 2009, he informs his employer  that he has a heart condition requiring open-heart surgery. He goes out on Family and Medical Leave Act, March 24th of 2009.  In May of 2009, while he's out on FMLA leave,  he ultimately gets approval from his physician to return to work. It's okay to go back to work, no restrictions.  WDC, of course, requires a medical examiner to certify the employee. We're just not, you know, we can't take your word for it, your personal physician.  So, Mr. Kallenbach goes to see the medical examiner.  He sees the medical examiner just five days after the note from Mr. Kallenbach's own personal doctor saying that cleared him to return to work.  The medical examiner issues a note on that day five days later and says, quote, "'No work for now. "'Earliest return to work is 626. "'See me prior,' end quote."  The medical examiner, of course, can't place restrictions. The medical examiner doesn't have the luxury of Mr. Kallenbach's own personal physician if it were necessary to impose  various return to work restrictions. So, Kallenbach ultimately makes an appointment with the medical examiner on 626, the date that the medical examiner says,  "'Come back and see me.'" The problem is his FMLA leave expired about a week before that, on June 17th. And so, ultimately, the employer, Western Distributing Company,  terminates Mr. Kallenbach on that date nine days before his appointment with the medical examiner. Employer says, your FMLA leaves up.  We're not gonna give you that additional nine days. They terminate Mr. Kallenbach.  Western Distributing Company, I will say, arguably, because it was a point of great dispute in the litigation, has a full-duty and maximum medical leave policies  in effect at all times. The employee manual says, if the employee is not able to return to work at the end of the 12 weeks of FMLA leave, that employee's going to be terminated.  I say, the employer argues that the employer arguably has these policies because, ultimately, what Western Distributing argues at trial is that those policies  that are found in the employee handbook are under the workers' compensation section of the employee handbook. They're taken out of context. We really don't require,  we really don't have full-duty and maximum medical leave policies.  The EEOC ultimately says, as well, that the employer made no effort to make any type of reasonable accommodation and does not engage in the interactive process  as required by the ADA with that particular employee, Mr. Kallenbach. The EEOC also says that return-to-work physicals that were required by Western Distributing Company  are discriminatory. Among those physicals and what was required, there were 11 different physical tests as part of Western Distributing Company's return-to-work physical exams.  One of them was a lifting requirement. Kallenbach says all of that is discriminatory.  So what is, ultimately, the EEOC need to prove at trial in this case? What is the test under the ADA? And the test is Kallenbach, the employer considered Kallenbach disabled  or regarded him as disabled, that he had the qualifications to perform the essential functions with or without reasonable accommodations, and he took adverse action,  the employer took adverse action due to an actual or perceived disability. Actual should be up there in that third bullet point.  In terms of what Western Distributing Company  defends itself with, as I said earlier, Western Distributing says, look, we did not have a maximum leave policy or a full-duty clearance policy.  Again, that was taken out of context. Regardless of what our policy may or may not have been in terms of a written policy, our actual policy was that we accommodated our employees.  We accommodated Mr. Kallenbach in the past, we accommodated other employees. So we did not discriminate in this particular case.  The employer also says the physical tests are a non-discriminatory screening tool. They are consistent with the businesses, job-related and consistent with a business necessity.  And lastly, they say, if we were to engage in the interactive process and make a reasonable accommodation under the ADA, we couldn't grant it  because it would create an undue hardship for us as the employer.  Both sides in this litigation ultimately file motions for summary judgment. Motion for summary judgment is a motion that's filed just before trial,  after all of the evidence is in, after discovery closes, and the party moving for summary judgment says, judge, look, this cannot get to a jury.  There are no issues of material fact, and as a matter of law, we are entitled to judgment in our favor.  The judge in this case ultimately denies both parties motions for summary judgment and says, you know what, this needs to go to a jury.  There were a couple different categories of claims bought by Kallenbach, desperate treatment and desperate impact. Desperate treatment is sometimes called  intentional discrimination.  Kallenbach and the EEOC are saying, the employer discriminated against me because it denied me a few extra days of leave before I could go see my medical examiner  where I may have been cleared to return to work. You intentionally discriminated against me. There were also claims of desperate impact. This is unintentional discrimination.  It's often called. The physical testing requirements that we spoke of. The EEOC says, look, they disproportionately affect people with particular disabilities.  Again, it's a policy that unintentionally serves to discriminate in this case against those with certain disabilities.  The EEOC also says, you know, whether, the court also denied the motion with respect to the employer's argument regarding undue hardship. There is ultimately a 14 day trial  that took place in January of 2023. The verdict is for, it's a split verdict, verdict for the employer on the desperate treatment claims,  verdict for the EEOC on the desperate impact claims.  What are some of the takeaways from this case? Clearly written and consistently implied employee policies on behalf of the trucking company would certainly be helpful.  Again, there was confusion as to whether there was even these two policies that are in dispute, whether it was an actual policy of the employer or not.  The interactive process under the ADA is always required. And importantly, additional leave can be an accommodation under the Americans with Disabilities Act.  He was out of leave under the FMLA, but under the ADA, he very well may have been entitled and the jury apparently felt that he was entitled to additional leave.  The second case we'll get to, and I wanna be cognizant of the time here, so we'll move through this rather quickly, but Talcott versus Barnum Transportation, Inc.  This is that other type of case where it's brought by a employee, not by the EEOC, but Mr. Talcott goes to the EEOC, ADA and PHRA violation.  What is the PHRA? The Pennsylvania Human Relations Act, it is the Pennsylvania specific version of the ADA. And you will find that in many other states,  they have state specific ADA statutes that often impose more requirements than the ADA itself.  Ultimately, in this case, the EEOC found no reasonable cause that does not prevent the employee from bringing a lawsuit though. It's just, you have to go through  that investigative process. EEOC says no reasonable cause, employee files the lawsuit anyway. This case is filed right here in Pennsylvania.  Factual background, Talcott's an over the road trucker. Factual background here is a bit complicated, but the critical thing for our purpose is that Talcott does have diabetes.  He has high blood pressure, and he has bronchitis. He, too, goes out on FMLA leave. He's out on medical leave.  He, like the plaintiff in our first case, Mr. Talcott also exhausts his FMLA leave. Critically, on the day he's to come back, he tells his employer that he lost consciousness  while attempting to accept a load for his truck. He volunteers that information on the day he comes back. The following day, the employer talks to Talcott.  He says his doctors are still trying to figure out what's going on, what's wrong with him, don't know when I'm going to be back. The employer, perhaps not surprisingly,  terminates him at that point. You're out of leave. I don't know when you're coming back. You're telling me you lost consciousness when picking up a load. I'm calling it a day.  What is the test under the PHRA? It's the exact same as the ADA, same exact components. And the central issue here is, was Talcott qualified  to perform the work as an over-the-road trucker? What does that mean? Does he possess the requisite skill, experience, education, and other job-related requirements?  And BENT, not surprisingly, says, look, he's not qualified. He does not possess certain job-related requirements. Namely, he admitted to loss of consciousness that disqualifies him  under the Federal Motor Carrier Safety Regulations. And I put the regulation in effect at that time. A person is physically qualified if he has no established medical history  or clinical diagnosis of epilepsy or any other condition which is likely to cause loss of consciousness or any loss of ability to control a motor vehicle.  Talcott says, I had high blood sugar. That's a condition that's, quote, not likely to lead to loss of consciousness. That is the dispute in this case.  What caused the loss of consciousness? And was it a condition that is, quote, unquote, likely to cause a loss of consciousness in the future? Both parties, just like the last case,  file motions for summary judgment. The court again denies those motions. The court critically does say that an ability of the over-road trucker to operate a truck  is an essential function of the job. That sounds self-explanatory and acceptable.  But to put a finer point on that, what the court is saying is that an essential function of the job includes being certified under FMCSA criteria.  It includes both driving and non-driving tasks. That is the essential function of the over-the-road trucker. The case ultimately settles in June of 2022.  So it ultimately never reaches a jury. And in terms of our key takeaways, it's an interesting case. It's unclear how the jury would have ruled in this case.  I would just point out that in terms of  the evidence in this case, it did show that BNT had a history, again, of accommodating Telcot and other employees. That's an important defense that's gonna be raised  by employers in this type of litigation. And ultimately, in terms of reasonable accommodations,  this is what the EEOC and other courts have found to be reasonable accommodations in almost all cases. The problem is that in the context of Federal Motor Carrier Safety Regs,  for employers subject to those regulations, an employee may still be unable to be certified by the medical examiner, notwithstanding these quote-unquote reasonable accommodations.  If the employee is able to drive without restrictions pursuant to the FMCA criteria, or he is not.  You can or you can't. That's the medical examiner's determination. So unfortunately, what you see in the case law in terms of reasonable accommodations,  it's not particularly helpful for us or for employers subject to those regulations.  The one that probably is, is again, what we saw in the last case. There's a question of does an employer need to extend leave  above and beyond the FMLA, above and beyond the medical leave to allow for the medical examiner to have time to feel comfortable to be able to say,  yes, you can go back to work, you qualify under the regs.  And so that's the end. I think we're gonna take some questions now and I'll turn it back over to Dr. Hartenbaum, perhaps.  Oh, yeah.  Thank you.  Thank you, everyone. A couple of things we're gonna do. I see if you have questions, please come to the podium. I have a few questions that have come up through the chat,  so I'll get to those as well. Dr. Berniking does have a list of references in the handouts. I'm gonna ask to make sure if you can put it in your slides as well.  Somehow there was not a handout for the slides. I don't know. We'll talk to staff about that, but the references are all there. Okay, very good. So a couple of questions came up.  One of the questions was on drivers over age 70. I'm gonna say, and I'm looking at somebody in particular, the driver over age 70, the answer is it depends  because if it's a driver over age 70 who is in perfectly good health, no medical conditions, no medications, you treat him like any other individual who's basically healthy.  Yes, there were some recommendations that you should certify drivers who are, I hate to say the word older, but more seasoned for a shorter period of time,  but it has to be based on their medical status. Question about estimated metric of risk for X medical condition. Generally, we look at a 2% annual risk  of sudden or gradual impairment or incapacitation. What does that mean? Easy, greater than the general population. It's a little easier to qualify.  There's not really any great scientific studies on that. And I think there was one more evidence that the genital urinary system, including hernia, really increases safety.  I'm gonna move on to other questions.  Was that judging? Whether hernia exams really increase safety or not. Doesn't matter, it's part of the deal. Exactly. Dr. Aravack. Thank you, excellent presentation,  and your speed was great, Natalie. Does that mean it was too fast or it was okay? No, it was pretty good.  At first, a comment. I believe it was you who said, it's your signature on the form. And I've lived by that credo. You, the medical examiner, are signing the form,  and you wanna feel comfortable that if the FMCSA, or the safety inspector, whoever's gonna be doing it, comes to your office, as has happened to me,  that your paperwork is gonna stand up and it's not going to reflect badly on you. It's your signature, your decision. So my question is, I understand the ADA cases,  and thank you, they were very interesting. Are there cases against examiners? Have there been any case law in that regard? Yeah, there have been some cases against examiners.  We presented them in past years. So yes, it does happen.  I want to just get a clarification that if we are seeing a patient who holds a CDL, and we uncover, while seeing the patient for an injury,  that would otherwise disqualify this person,  we do not need to notify the FMCSA or the employer. We notify the driver that they would likely be disqualified, and they need to go get another examination.  I wanna give my opinion, and I'll let Dr. Burnick give his view as well. First of all, you would not be notifying FMCSA, okay? Were you the certifying examiner?  This is very much like the MRO cases, I see it, where you can take off one hat and put on the other hat. You are now a treating provider. You're in the same office.  You know that your office has certified you. Not gonna pick on any of Dr. Burnick's former employers. But if you happen to have that in the records  at this practice, certified driver X, and you're now seeing him for something else, and you're giving him medications, or you're referring him to a cardiologist  because he's having chest pain, then I do think it's your responsibility to say, I think this driver may not be medically certified and may need to be reexamined to the employer  and to let the individual know as well.  Mike. Yeah, I agree with that. That's pretty straightforward. Safety trumps, I mean, this is public safety, so it trumps some of the other things that otherwise might be considered.  Yes, you try to do the right thing. You try to get the driver to go, but if you find out that the guy's got a seizure disorder and you didn't disclose it,  you absolutely have to do something about that. I think that's expected. But that's what I'm saying is that what do we do? Because we had a case where we notified the FMCSA,  and Christine said, you don't need to do anything, and- Think of my statement. My statement was, you don't notify FMCSA, you notify the employer if you know who the employer was.  If you notify, if it is a driver that you don't have a relationship with the employer, you haven't done the medical exam, you notify the driver that he needs to talk to his employer  because, and document it, have him sign off if you feel the need to.  But FMCSA cannot hold a certification based on the, I'm seeing him for something else.  Any comment from a legal perspective? No, I- Okay. No, I don't. You guys can share that. Yeah, I was gonna say, I don't have anything to add beyond that. Okay, thank you.  Thank you very much for very insightful presentations. My question relates to employment law. So, when the employer sends the employee to an occupational medicine physician  or any other physician for a fitness for duty evaluation,  if we make the wrong call, we can't enable the employer to make an employment decision that is gonna be detrimental to the employee and open themselves up for liability.  In the first case, did the medical examiner make the right call in not certifying him on that first occasion?  And in the second case,  did anyone examine the driver to assess their medical fitness? So, it's a good question. With respect to the first case, there was no allegation in that lawsuit  that the medical examiner in that first instance who said, you know, come back and see me on 628, that he made an incorrect decision.  You know, that was not an issue in that litigation. So, we have to assume, you know, again, that was a proper decision by the medical examiner.  You know, with respect to the second case,  you know, ultimately, the medical examiner,  you know, that was the issue in that case. You know, ultimately, whether he in fact, you know, what was the cause of that loss of consciousness?  And again, ultimately, the employer decides to step in and say, we're not going to give you an opportunity to kind of investigate that. You're out of leave.  You know, we're not gonna give you time for, you know, an evaluation. You're correct that a medical examiner, you know, based on the decision that you make,  potentially, you know, tends to, one way or another, either insulate the employer or potentially put the employer at risk. But as long as you're making those decisions,  you know, in an ethical manner and in conformance with the regulations and your, you know, standards of practice, you know, you're doing what you need to do.  And the employer is right to be able to rely upon you. They have to. I mean, that's the way this works. I don't know if you have anything else, Doctor? Yeah, a couple of things.  First of all, the case I was referring to with an examiner getting sued was actually the allegation that the examiner was in collusion with the company  to have this gentleman disqualified. The examiner did a lot of right things in how they did the assessment. Secondly, I have seen examiners being sued for doing the wrong thing.  I encourage employers to let the medical examiner make decisions, not the employer taking that decision on their own. The problem we run into is that we send someone to an exam,  oh, you did an MI last week, I can't examine you.  So they walk out. Doesn't give them an answer. Other times, it really is just easier to say, no, they don't meet the medical criteria, they had a loss of consciousness.  They're not qualified at this point in time because it just happened right at that situation. Maybe coming back, go back to the treating provider.  The other thing was, just to keep in mind with that first case, we talked a lot about Callenbeck. It was actually a pattern and practice case  where there were at least 58 plaintiffs. And probably, I think there were three more. 57, I think. Yeah, I think you have to, it was a crazy number. It was up and it was down,  and how many finally carried all the way through. So the issue was, really, could the company  put somebody to work as an over-the-road driver if they did not meet the medical standards? And that was really a lot of the focus in the end. The question that came through was,  is leave without pay considered a potential accommodation? And yeah, there's some things that have changed over the past probably 10, 15 years.  Where in the past, employers could say, you exhaust your family medical leave. If we need to, if it's a business need, we can replace you.  EEOC pushed back, it was a hospital case in New Jersey that really said, no, additional leave has to be considered as long as it's a reasonable duration  as a reasonable accommodation. So this could be done if the company has the opportunity to do it. If they have four drivers and two of their drivers  are out on family medical that's then exhausted, they probably need to go ahead and terminate and hire somebody new. A lot of times, these companies will rehire someone.  They're out, they're okay medically, reapply, please come back. And that did happen in a number of the Western cases. The individuals had gone out, been terminated,  and then came back to work several months later.  Okay. Next. My question is, do you certify somebody with colostomy bag? And if you certify him, how long do you certify him?  Question was, do you certify someone with a colostomy bag and if so, for how long? It depends. Yes. And in all, it depends. If they had a colostomy for 10 years  and they have no problem with it,  there's no reason you can't certify them for two years. Often, they have a colostomy bag and they have some renal problems and they have incontinence and they have ABCDEFG  and they're on three impairing medications, you may not certify them at all.  Helpful to think about why they have that colostomy, right? Is it because they have metastatic cancer that might metastasize to their brain or their spinal cord  and potentially impair them? Or do they have proof of life? He's been that way for 10 years and not had any complications?  So I'm gonna go back to a bread and butter question.  When we first started doing this, there was that beloved blood pressure chart that went back into the 1990s. And then in the 2019 thing, it said,  measure the blood pressure a second time if you think they're hypertensive. That's all they said. The 2021 version of the book, 2022, whatever you wanna call the current one,  has both the old charts in and then the completely dysfunctional chart you put up. They're both in there that says, this is one way you can do it, this is another way you can do it.  How in the world do you resolve that?  We have two different contradictory recommendations in addition to the fact that the one table is contradictory with itself. Use your clinical judgment.  There's nothing magical about 170. There's nothing magical about 110. There's nothing magical about diastolic of 90. Is there any magic in the FAAs,  155 over 95 and just call it a day?  If you wanna use FAA? There's science. There's science behind a lot of this, but the idea being FMCSA has not taken a stand on pretty much anything  and has really come down to say, these are starting points. These are where you can start. If you think this is reasonable, look at the bigger picture.  Do you use chart one, chart two, chart three? The problem that they had done with the 2013 report was pure and simple. It was never presented to anybody.  It was not presented to the medical review board. It was not presented to the public. Every other evidence-based review was presented to MRB and public comment was open to it.  At that time, we said, hey guys, this is stupid because this is inconsistent. Can you please clarify for it?  And then generally, either the MEP itself or the MRB went back and they clarified what the confusion in those reports were. We were looking at the 2020, I think, draft  of the ME Handbook where someone said, isn't there something more recent on? And there actually was a more recent update than the old, old cardiovascular guidance,  but nobody knew about the 2013 report except for FMCSA who then somehow dumped the entire thing in the new handbook without anybody really looking at it and evaluating it.  And that was one section we really made a lot of comments through AECOM is this has not been vetted, this has not been thought of as best practice  and it really needs further review before implemented. So basically, you don't have to use it. Case by case basis, right? How I certify somebody that's got a blood pressure  of 140 over 90 that has no cardiac risk factors, is not diabetic, is not overweight, may be very different than how I certify somebody who's got a BMI of 50 who's on two different  blood pressure medicines and is diabetic as well, right? Kind of common sense.  I have a concern and a question to ask about the timing of the medical exam. So very often we would have a client company who would send or who would request us  to see their driver who recently was treated by a surgeon or underwent some procedure, which require us to review some medical documentation.  And my position is I would rather see a driver and make my decision sometimes put in the determination pending category, sometimes disqualified depending on the situation.  But a lot of my colleagues, they would require medical documentation to be sent prior to the visit of this driver. So they say, I want the clearance  from the orthopedic surgeon before I want to see this. And I would like your opinion so I can have a little bit more ground to kind of stand against it.  I was just told I have to stop. We have to turn this room over for the general session. So I think your question really is information before, information after.  If you can get information before, it may help you make it more expedited. If you get it, you may still need more afterwards. So really either way is fine.  But to avoid the cases like this. Again, sometimes it's just easier to say, we'll tell you what we need afterwards and go get it. Others say, bring everything in to me  and if I need more, I'll ask for more afterwards anyway. So there is no answer? As I was saying, it's not just take-out time. It's your choice.  Can you sleep or something? Yeah. Thank you.

Video Summary

Summary Not Available