Sleep Apnea is Major Concern for Trucking Industry as New Study Finds Nearly Half of Drivers May Be Affected

April 8, 2021 by Levinson and Stefani Leave a Comment

Almost half of all truck drivers may be at risk for obstructive sleep apnea, according to a new study of 20,000 commercial motor vehicle drivers.

Obstructive sleep apnea, a medical condition that can cause severe drowsiness while driving, was studied by Virginia Tech Transportation Institute researchers who presented their findings at a Transportation Research Board committee meeting last month. They explained that although various studies on sleep apnea have been conducted previously, the number of truck drivers with either diagnosed or undiagnosed sleep apnea may have been heavily underreported. Earlier studies found that between 7.2 and 30% of truckers may have sleep apnea, whereas the latest research shows that this number may be as high as 49%.

As explained by the study, obstructive sleep apnea is a disorder causing the collapse or repeated blockage of the upper airway for at least 10 seconds at a time. When the airway is closed repeatedly in this manner, varying periods of low amounts of oxygen and high amounts of carbon monoxide in the blood will lead to the individual waking up during the night to gasp for air, therefore causing extremely interrupted sleep.

Using the STOP-Band method, 9,382 of the 20,000 truck drivers tested were found to have apnea “potential,” and 9,639 were found not to have apnea. These numbers differ greatly from a previous study that found only 6.4% of 13,724 drivers had potential sleep apnea, with 86% expected not to be affected by the disorder.

The STOP-Bang method assesses OSA risk factors like snoring, fatigue, hypertension, age, body mass index, gender, neck circumference, and observed apnea using an eight-part screening tool that incorporates these objective risks with subjective symptoms.

Drivers who participated in the study and who had undiagnosed and untreated sleep apnea were found to be at much greater risk of being involved in or responsible for moving violations and preventable crashes.

“The goal of the new study is really to get an accurate estimate of potential OSA,” said VTTI researcher Jeffrey Hickman, who worked on the study. “We’re not trying to diagnose people. We’re just screening them.”

Because long-haul truckers spend many consecutive hours on the road, they often are unable to find healthy food options or opportunities to exercise while on duty. This allows for potentially health issues to come into play, such as diabetes, obesity, and other conditions, like apnea.

“Beyond the health consequences, there are also safety consequences that are well-established in the literature that those diagnosed with OSA that is not treated increases [their] crash risk because [they’re] not getting sleep,” said Hickman at a virtual presentation with the TRB Truck and Bus Operators Health and Wellness Subcommittee. “If you’re not getting sleep, you’re tired when you’re driving, and so that results in a lot of inattention that increases your crash risk.”

Diagnosed drivers can, luckily, reduce their risk of involvement in a crash–even bringing it as low as the risk for those without apnea–by undergoing treatment. These treatment methods include C-PAP masks (positive airway pressure) or surgery, and can have very helpful and impactful effects.

“Although several studies have estimated the prevalence of obstructive sleep apnea in the commercial motor vehicle driver population, limitations such as small sample sizes and study samples that are not representative of the industry have limited the generalizability of these study findings to the general CMV population,” the study explained.

Additionally, screening methods allowing medical examiners to easily diagnose sleep apnea aren’t yet effective or common enough, Hickman noted.

“It’s not something that people raise their hands and say, ‘Yes, I want a C-PAP machine,’” he said. “There is some incentive to be less-than-truthful because drivers just don’t want that treatment.”

Still, guidance from the Federal Motor Carrier Safety Administration for certified medical examiners has had improvement, although FMCSA has not given any particular regulatory standards regarding the condition. This perpetuates the allowance of sleep apnea continuing to be a problem in the industry, explained Natalie Hartenbaum, an occupational fitness and truck driver health expert and medical doctor.

In 2017, federal regulators announced plans to withdraw a notice of proposed rule-making requesting information on ways to better assess OSA risks for transportation workers, which initially focused on those already diagnosed working within safety-sensitive roles. Therefore, the dangerous risks of obstructive sleep apnea for industry workers continues to be a major concern for the industry itself, and for everyone else on the road.

Trucking Companies Reaping Benefits of ELD Utilization

April 7, 2021 by Levinson and Stefani Leave a Comment

We recently reported on the effects of the latest ELD mandates on road safety and hours-of-service regulation compliance. But, how can ELDs also help fleets themselves better manage their businesses and employees?

“These devices help with understanding behaviors like speeding, hard braking, and over-accelerating,” said KeepTruckin vice president of product, Jai Ranganathan.

Dispatchers can even dispatch more quickly and efficiently with real-time location tracking through ELDs, which allows freight transportation to move as swiftly as possible.

“Dispatching has become the gold standard for efficiency, even in smaller fleets,” Ranganathan said.

“[ELD data] is straightforward and really leaves no room for interpretation, which is a good thing,” agreed Cargo Transporters vice president of safety, Shawn Brown, in regards to ELDs’ helpfulness with driver training.

Additionally, dispatching actions can also be improved by ELDs, explained vice president of product management at Trimble Transportation, Glenn Williams.

“By electronically capturing key hours-of-service data, fleets are also able to more readily pair available capacity with freight to reduce empty miles and backhauls, improve driver efficiency, and connect the entire supply chain to make it easier for shippers and carriers to work together,” he said, noting that supply chain transparency, vehicle utilization maximization, freight coverage boosts, and shipper-carrier communication have also seen major improvements with ELDs’ abilities to bring much higher levels of driver data access and vehicle connectivity to fleets.

ELD data can also help fleets lower overall detention time, fuel usage, and vehicle breakdowns by allowing them to better identify the best times at which certain vehicles can be properly dispatched, according to Michael Ahart, Omnitracs’ vice president of regulatory affairs.

“It can also be used to set realistic performance expectations with customers, allowing fleets to better predict arrival times based on HOS data,” he explained.

In fact, an overall decrease in delays has become a key focus in the use of ELDs, said director of operations at Grand Island Express, Deen Albert.

“It forced our driver managers to be very actively involved in the drivers’ hours, understanding where the drivers were, how much time they had left on the clock, and being able to maximize that,” he said.

For example, driver managers can track how long drivers are spending at home on their days off, explained Garner Trucking Inc. chief operating officer, Tim Chrulski.

“The data allows us, at a quick snapshot, to separate our data and look at hours,” he said. “Then, we track that weekly, so we’re fair and balanced for everyone.”

Fleets can also improve their overall route efficiency with ELDs, said Orbcomm’s director of fleet safety and compliance, Scott Stofer.

“They’re utilizing the system to the fullest to manage violations, manage fuel efficiencies, and make better decisions for dispatching,” he said.

J.J. Keller & Associates transport industry business adviser, Rick Malchow, added that fleets can track out-of-route miles and equipment-use efficiency with ELDs, as well as reduce shipper facility driver detention. If detention does occur, ELDs make it easier for drivers to get paid for that time.

Fuel consumption and vehicle idling tracking is also a helpful usage of ELDs, Ranganathan noted.

“This common-use case is helping to drive up the efficiency of trucks on the road while reducing carbon footprints across the country as more fleets utilize technology,” he said. “Data from ELDs helps eliminate the administrative burden of collecting state mileage and fuel receipts and automatically calculates this information instead.”

Driver education is another bonus of ELD implementation, said Cargo Transporters’ Brown.

“One big factor for a driver is trip planning and taking the time to think about not only your next stop, but the stop after that and where you’ll be parking for the next HOS break, etc.,” he explained. “Knowledge is power, and the ELDs provide much-needed real-time data that is very helpful in maximizing a compliant workday.”

ELDs may even be the launching-off point for further safety technology adoption, Orbcomm’s Stofer noted.

“In a lot of ways, the ELD mandate has accelerated the adoption not only from the provider side, but also from the carrier side,” he said.

HOS Compliance, Road Safety Improving with Latest ELD Mandate

April 6, 2021 by Levinson and Stefani Leave a Comment

The federal electronic device mandate, which has officially been in effect for just over a year, required hours-of service data to be recorded with electronic logging devices instead of manual, paper logbooks. Recording drivers’ HOS data manually can lead to easier mistakes or falsifications.

The mandate has reduced overall hours-of-service violations and has helped motor carriers in multiple ways, but industry experts still say ELDs’ effect on roadway safety is still yet to be determined.

“I do feel the playing field is more equal now among all carriers as to everyone’s ability to properly handle loads,” said Cargo Transporters’ vice president of safety, Shawn Brown. “I think ELDs are making the roads safer. Drivers seem to be resting when they should, resulting in more refreshed drivers on the roads.”

Hours-of-service violations found by roadside inspection have decreased by over 50 percent since the original 2017 compliance date, according to Federal Motor Carrier Safety Administration spokesman, Duane DeBruyne. Nearly nine million roadside driver inspections have been conducted between December 2017 and October 2020, and less than 1.25% of those have shown drivers failing to use the mandated method for recording their hours-of-service.

The full effect of the ELD mandate was implemented in December of 2019, and the two-year exemption for older recording devices expired at that time.

Now, drivers can much more easily record proper and accurate records of duty statuses, said Omnitracs’ vice president of regulatory affairs, Michael Ahart.

“When using paper logs, it was much easier for drivers to make mistakes, but ELDs have reduced this risk and allowed drivers to better operate within the boundaries of the HOS regulations,” he explained.

Still, overall false log violations have been increasing, which Kerri Wirachowsky, director of the Commercial Vehicle Safety Alliance’s roadside inspection program, believes is due to the misuse of personal conveyance or overall confusion regarding recent HOS regulation changes.

“The number one question I get from [the] industry is asking for clarification of personal conveyance,” she said. “In a lot of instances, they are misunderstanding what they can do with personal conveyance. I believe that has caused false [log numbers] to go up.”

When ELDs are used properly, though, their usage can help drivers avoid nearly 2,000 crashes each year, as well as save 26 lives and avoid 562 injuries annually, as estimated by FMCSA.

“While these are FMCSA estimates, our nearly two decades of experience support the idea that ELDs have a tangible, positive impact on the safety of our nation’s roadways,” said ELD provider Trimble Transportation’s vice president of product management, Glenn Williams.

Opponents of ELD implementation, however, believe that ELDs have not positively impacted roadway safety. J.J. Keller & Associates’ transport industry business adviser, Rick Malchow, noted that overall road injuries rose from 106,000 in 2010 to 176,000 in 2018.

“I don’t think that shares the entire story, because you don’t know the causality of those accidents,” he stated.

However, it may be far too early to determine ELD’s real effects on crash numbers, said Fred Fakkema, Zonar’s vice president of safety and compliance. Throughout the stay-at-home orders of the pandemic, traffic decreased significantly and many people began to speed, causing the number of overall roadway collisions to spike, he explained.

“The COVID aspect of it throws a wrench in the traffic collision and management aspect of it because there is less congestion than we’re used to, and we’ve seen an increase in speed in commercial vehicles and cars,” he continued.

Violations, though, have continued to decline, said Malchow.

“One of the largest decreases came from a reduction in form and manner violations. ELDs are pretty much logging it as you do it,” he said.

Many industry experts foresee safety metrics continuing to get better, as overall violations at roadside inspections have steadily declined. Driver violations dropped from 1,023,654 in 2018 to 784,188 in 2020.

“ELDs are making sure that companies are accountable and their drivers are operating legally,” said Garner Trucking’s chief operating officer, Tim Chrulski. “I think that is a giant success on its own, regardless of what the statistics show.”

Ken Levinson to Teach at New Lawyers Boot Camp

April 5, 2021 by Levinson and Stefani Leave a Comment

On April 12th, Levinson and Stefani’s own Ken Levinson will be giving a presentation at the American Association for Justice’s new program, New Lawyers Boot Camp.

AAJ has collaborated with its New Lawyers Division for this six-part series taking place each Monday, from 2 to 4 p.m., today until May 10th. Today’s focus will be ‘Oral and Written Advocacy Skills,’ April 12th’s will ‘Pre-trial Essentials,’ April 19th’s will be ‘Making Yourself Essential to Your Firm,’ April 26th’s will be ‘The Economics of a Case,’ May 3rd’s will be ‘Trial Teamwork–How to Create an Effective Trial Team,’ and May 10th’s will be ‘Playing Offense.’

The six-part boot camp, which Ken helped develop, aims to help new lawyers better understand the best ways to grow within their firms and become as successful and profitable as possible. It expects to do so by providing these up-and-coming attorneys with insight into how to best develop extraordinary pre-trial skills and how to boost their abilities to work efficiently with a pre-trial team.

“I am always honored to help teach fellow trial lawyers and am even more excited to help new attorneys,” Levinson said of his participation in this series.

Levinson’s presentation will take place on April 12th at 2:00 p.m. and will focus on the best methods for conducting a successful client interview and what the essential aspects taken away from such an interview should be.

Levinson will be working with Gordon and Partners’ Jennifer Lipinski on discussion topics such as: proper protocol when first meeting a client, how to be a top-notch questioner and investigator, and the best ways to find landmines during the interview.

Other discussions taking place on April 12th will be regarding witness preparation, led by Miller Weisbrod’s Luke Metzler; expert research and background checks for the plaintiff and the defense, led by Herman Herman & Katz’ Stephen Herman; and a sponsored presentation to close out the day.

AAJ hopes program participants will gain important insight regarding how to create personal marketing plans, persuade judges with pre-trial motions, and keep cases moving forward effectively.

To attend the six-part boot camp, AAJ members can register here.

Safety Advocates and Families of Truck Crash Victims Call on Biden to Reform Trucking Safety

April 5, 2021 by Levinson and Stefani Leave a Comment

“We’re hopeful that…Biden will be the one,” said Daphne Izer, who lost her teenaged son Jeffrey when he and three of his friends were struck by a Walmart truck in 1993 on the Maine Turnpike and killed. The truck driver had fallen asleep at the wheel of his tractor trailer.

Many family members of truck crash victims believe that they now, finally, have an advocate and an ally in the White House in President Biden, following many years of a lack of federal oversight in regards to these kinds of crashes and the deaths they cause.

A group of survivors and family members who, between them, have lost 28 people to roadway truck crashes, wrote a personalized letter to President Biden urging him to align with their common cause and requested more action from the White House in regards to trucking safety and in the prevention truck-related collisions on American roadways.

Biden lost his own wife and daughter in a deadly crash in 1972, and survived the incident himself. When the letter was announced, signatories mentioned his recent visit to the grave of Neilia, his first wife, and his daughter, Naomi, who both died in the tractor trailer collision. Biden’s two young sons were injured, but fortunately survived the crash.

The incident was investigated, but had no criminal charges filed against the truck driver.

Izer signed the letter, along with her husband, Steve, in collaboration with the Truck Safety Coalition, a group that works to boost efforts from the government in decreasing numbers of American truck crashes, injuries, and fatalities. According to recent numbers, more than 5,000 people died in large truck-related crashes in 2020, and that number has continued to rise over the last few years.

“The public is being massacred on the highways by big trucks, and it’s unnecessary,” said president emeritus of non-profit consumer advocacy group Public Citizen, Joan B. Claybrook. Claybrook is also the previous head of the National Highway Traffic Safety Administration.

In the letter, these families and safety advocates pushed for the federal requirement of speed limiters, automatic emergency braking becoming standard equipment on all new trucks, and stronger guards being installed for the prevention of smaller vehicles from sliding underneath large trucks in a collision. The European Union, as well as other areas around the globe, already require these kinds of safety regulations for new trucks, but the United States has yet to make such mandates, according to the letter.

“During the past four years, the U.S. The Department of Transportation has not advanced a single major safety regulation,” said the letter. “Instead, government officials have relentlessly attacked existing truck safety rules with efforts to increase the work hours of truckers and to allow teen truckers to operate in interstate commerce.”

The safety advocates urged Biden to choose new leaders without any corporate influence or industry ties who are able to provide leadership within the Federal Motor Carrier Safety Administration and the NHTSA.

“We cannot wait and allow another 20,000 truck crash deaths and 600,000 injuries in the next four years when solutions are already at hand,” the letter continued.

As of now, former Democratic presidential candidate Pete Buttigieg has appeared before senators in consideration for his nomination for transportation secretary as Biden’s pick. Once confirmed, one of Buttigieg’s deputies will be Massachusetts secretary of transportation, Stephanie Pollack. Pollack is also set to lead the Federal Highway Administration.

Biden has already named his NHTSA and FMCSA deputy administrators, but hasn’t chosen other top job candidates.

“We need somebody who wants to be a regulator,” said former president of Advocates for Highway and Auto Safety, Jackie Gillan. “What you need are standards and enforcement, and both of these are missing right now.”

In September, a study was released suggesting that safety features such as forward collision warnings and automatic emergency braking become commonplace in an effort to improve overall roadway safety. Auto insurers supporting the claim, and the Insurance Institute for Highway Safety report noted that these safety features would be able to prevent at least 40 percent of rear-end crashes instigated by large trucks.

According to the research, these kinds of systems slowed vehicle speeds by more than 50 percent when these rear end crashes occurred, decreasing injuries and vehicle damage.

NHTSA granted a safety advocate petition requiring braking systems to be implemented into large trucks in 2015, but the agency has yet to move forward with this proposal.

Adding in automated safety features and calling out government neglect in regards to truck safety regulations are the keys to bettering American roadway safety, an idea made clear in Representative Seth Moulton’s recent National Transportation Safety Board report. The Report detailed a 2019 New Hampshire truck crash that killed seven motorcyclists and clearly showed the lack of government oversight in regards to truck safety conditions.

“Trucking companies that choose to break the law can do so without fearing consequences unless there’s a tragedy,” said Moulton.

Claybrook agreed, mentioning an investigative series by the Boston Globe that pointed out the loopholes and caveats within the government’s current trucking regulation system. The series found that one in five of American commercial trucks is in such poor condition that it would immediately be removed from service if properly investigated by safety inspectors.

“It brought to light what a lot of people just don’t know,” said Claybrook. “They don’t know [or] understand that they’re dealing with rolling time bombs on the highway.”

New ‘Consult the Negotiator’ Podcast Welcomes Ken Levinson as Guest

April 4, 2021 by Levinson and Stefani Leave a Comment

In recent firm news, Ken Levinson has joined as a guest on the new podcast, Consult the Negotiator, hosted by attorney Marc Siegel.

“I believe that the power to negotiate effectively, thoughtfully, and strategically is the single most important and distinguishing characteristic of great attorneys and other professionals,” said Siegel. “I launched the Consult the Negotiator Podcast because I was troubled by the fact that this critical skill set inexplicably gets short shrift in both professional education and practice.”

Siegel aims to bring on guest attorneys to discuss leveraging negotiation skills in regards to trademark matters, business discussions, and employment disputes, and will work to provide practical strategies and tips for listeners to become the strongest negotiators possible.

“Lawyers spend every day negotiating to meet and exceed our clients’ goals and expectations,” Siegel explained. “Yet, some lawyers don’t think about the negotiation process itself or how to negotiate differently and more effectively.”

Siegel notes that throughout his years as a practicing attorney, he has taught thousands of lawyers and law students how to best negotiate. He currently provides training in areas like “testing a final offer,” “advocating in mediation,” “getting past impasse,” and “how to deal with a bully.”

Siegel believes that negotiation is a skill and a tool in its own right that can be “honed and refined to improve your overall success in practice.” Levinson’s episode of the podcast is available now on Spotify.

To check out Siegel’s negotiation training, you can visit his website here.