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Steve Gursten

What happens when federal regulators give commercial drivers the benefit of the doubt?

April 14, 2016 by Jay Stefani Leave a Comment

Questionnaire

Allowing drivers to self-report their own medical history is a flawed concept and part of a broken system

CBS News has completed an investigation into self-reporting loopholes that are allowing drivers with medical conditions to circumvent systems designed to keep them off congested highways. The question CBS is seemingly posing: Is the system working in the best interests of safety?

The news network tracked the story of Ruthie Allen, a passenger on a Greyhound bus traveling on the Ohio interstate. The bus veered off the highway, rolled and crashed. Allen sustained a gruesome leg injury. After the crash, police discovered that the driver had been told by a medical examiner to get a sleep apnea exam. He failed to do so. He also failed to disclose the information on federal documents that helped him land the job. Sleep apnea is one of the many conditions that would have disqualified him from operating the bus.

Now in the aftermath, Allen is left with a chronic injury and a long road to recovery.

A commercial driver’s eligibility is determined by filling out a questionnaire, which is the basis for a physical performed by a Department of Transportation-certified medical professional. The examiner can range from a chiropractor to an entomologist to a sleep apnea specialist. As of now, the questionnaire relies on drivers to disclose a comprehensive account of their medical history.

But it’s what many specialists aren’t finding that led CBS to do some digging. The network ultimately uncovered that many drivers fail to disclose dangerous medical conditions that would, according to federal guidelines, prevent them from operating a commercial vehicle. Should it come as a surprise that drivers are unwilling to share details that would end up costing them a job?

Self-reporting – or failing to self-report – is a problem that regulators have continuously struggled to overcome. But it’s only getting harder as employers look to fill jobs and fill them quickly, a fact that some believe is influencing both the industry and federal oversight committees to look the other way. According to CBS, the Federal Motor Carrier Safety Administration granted 2,390 medical exemptions in 2013-2014 for things like diabetes, seizures, and vision and hearing loss—all of which would normally prevent drivers from operating a large vehicle.

Our friend and attorney, Steve Gursten of Michigan Auto Law, was featured as part of the CBS investigation and had this to say:

“For the trucking companies, they want to look the other way, even when they know a lot of these truckers really should not be behind the wheel because they’re too dangerous for everybody else on the road. But they need to put drivers behind the wheel so they can get paid.”

The Federal Motor Carrier Safety Administration (FMCSA), which maintains that it continues to overhaul a broken system to combat systemic shortcomings, bears some responsibility for the problem, too, and for people like Allen who suffer the consequences. At a time when the industry faces a record shortage of drivers, horror stories like Allen’s is giving the public renewed reason to question whether the industry is doing all it can to make safety a priority,

“You’re allowing this person, who could possibly kill people, drive a weapon on the highway,” Allen told CBS. “And it’s just not right.”

It’s time to reevaluate the role of the Independent Medical Examination

January 27, 2016 by Ken Levinson Leave a Comment

IME Report

If money talks, then taking it off the table is the key to preserving integrity

If you’ve ever worked with Steve Gursten of Michigan Auto Law, you know he’s a standup person and an excellent attorney. You know that he’s a man of integrity, as are the people that work for his firm. You know that he’s overseen hundreds of cases, most of which have afforded accident victims the opportunity to receive fair compensation under difficult circumstances. Most importantly, you know that Steve is honest.

That’s why it’s hard to see him in a situation as crazy as this. You can read all about it here, but I’ll provide the short version: While representing a client, Steve openly questioned the contradictory testimony of a doctor who conducted an Independent Medical Examination during the discovery process. For those who don’t know, an IME is a controversial tactic shrouded with clandestine intentions. The purpose, effectively, is to discredit a plaintiff’s testimony. An expert examiner like a doctor or a specialist is called in—rather, hired—to find out just how bad an injury or a claim may be.

No chance for objectivity

The problem here is almost too obvious and maddening for plaintiff’s attorneys and their clients to ignore. It boils down to this: An insurance company hires (therefore pays) an expert with a clear and vested interest from the get go, compensated to examine, write reports, and testify in personal injury and workers comp cases. Is it any surprise that the examination, the reports, or the testimony often skews in favor of the insurance company? Not if money talks.

Steve’s case is a clear example of how wrong this system is, and how much needs to be done to change it. After Steve and his team seemingly caught a particular IME doctor committing perjury during a cross-examination, the doctor essentially decided to go after Steve personally, filing a grievance to suppress a recent blog post and to punish him for disclosing the record. As coincidence would have it, she also sits on the Michigan Attorney Disciplinary Board, the agency that disciplines attorneys in the state of Michigan. It’s an equally shady distinction as is the attempt to frame Steve’s client as a person of sound body and mind.

If we are to truly take these IME’s at face value, then taking money off the table is the key. That’s not going to happen while insurance companies are footing the bill. Steve has decided to risk his reputation and his license by making this information public, not as a method for public humiliation, but to emphasize the element of corruption involved in similar scenarios.

I suggest attorneys and others take a good look at this case and judge for themselves. It would have been easy to simply let this fall by the wayside. Steve will be the first person to tell you that too much is on the line, including the wellbeing of those who have a hard time competing with the limitless resources of a big insurance company. The stakes could not be any higher.

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