James F. Mahoney, Attorney

April 2012

Hiring Skinner Drivers

If a driver is obese, his or her Workers’ Comp claim is very likely to
become more complex, last longer and end up costing a lot more

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A few recent research reports seem to confirm what we already knew:

The range of medical treatments and costs, as well as the duration of a claim, typically is greater for obese workers than those who are not obese who incur similar injuries. If a driver is obese – and more than a third of the general population is obese – his or her Workers’ Comp claim is very likely to become more complex, last longer and end up costing a lot more for permanency awards, multiple surgeries that don’t fix the problem, physical therapy and lengthy drug use.

The Transportation Research Board and the FMCSA along with the National Institute for Occupational Safety and Health issued a report on a major seminar, Research on the Health and Wellness of Commercial Truck and Bus Drivers, TRB, Washington D.C. 2012.

Guess what they found in 2012 compared to studies in 2003?

Drivers have poor health habits, including tobacco smoking, obesity, lack of physical activity, chronic diseases such as diabetes, and elevated suicide rates; Half of all driver injuries involving lost workdays were due to sprains caused by overexertion such as lifting heavy objects; Work-related environmental exposures (to toxic fumes, continuous noise, and whole-body vibration) may cause respiratory diseases, reductions in pulmonary function, lung cancer, allergic inflammation, hearing loss, musculoskeletal injuries, lower back pain, and other conditions having safety implications.

And, of course, the illness de jour that plagues drivers, our now infamous and dreaded sleep apnea, is causing driver fatigue and operational errors, unsafe driving practices, injuries and deaths. It's difficult to prove the causal connection, but it sounds quite sexy delivered to a jury.

A few large motor carriers presented power point evidence at the seminar asserting that their Health and Welfare programs teach workers to be health conscious and these programs were delivering significant ROIs.

Other keynote addresses included such topics as: Health as a Serious Business Strategy; Cardiovascular Disease and Driving; Implementing Sleep Apnea Programs for Commercial Motor Vehicle Drivers.

I can hear the cash registers ringing already as we all strive to control our workers’ personal habits and curb their individual lifestyle choices and/or hereditary illnesses.

I've always felt that most businesses operated on the communist-community model: top down, dictatorial requirements from the little guy with the over-sized shades and big hair.
These health and welfare initiatives seem to confirm my suspicions. We cannot legislate personal behavior. But if there's a buck to be made...

Pre-hire screening drivers or workers for obesity, health risks, sleep apnea opens us up to (A) employment discrimination claims; and (B) negligent hiring and supervision tort claims in trucking accidents (“If his driver manager knew he had sleep apnea, Ladies and Gentlemen of the Jury, why didn't the Company monitor his use of the C-PAP equipment to be sure he was compliant with doctor’s orders?”)

So if you’re looking to put fannies in those unseated trucks, consider the weighty problems you may face down the road in added Work Comp claims or other insurance expenses, or labor law claims or discrimination claims or tort claims. Hire owner-operators and contractually require them to have viable occupational accident and non-occupational accident insurance coverage and buy yourself a contingent Work Comp policy. It’s cheap.