Disqualified

| January 03, 2006

Scott Cook lost his arm when he was 5 years old. After 20 years of accident-free driving, he lost his CDL because he refused to drive with a prosthetic limb. He estimates his battle to regain his CDL has cost millions in lost income and legal fees.

For nearly 30 years trucker Gerald Huelle drove the roads of Wyoming, Colorado and California hauling loads of borax, hay and grain. In that time, he amassed millions of accident-free miles – the picture of a safe trucker and successful small business owner. Then in 2001, after a routine Department of Transportation physical, Huelle’s insurance company found out he used insulin to treat his adult-onset diabetes. Suddenly Huelle, who has used insulin without incident for more than a decade, lost not only his insurance coverage but his commercial drivers licenses as well. In effect, he was barred from the very roads he had piloted safely for years.

“I had no idea you couldn’t drive interstate and take insulin,” Huelle says. “It’s plum ridiculous.”

In April 1993, Minnesota owner-operator Tom Breth was named the state’s safe driver of the month, a distinction bestowed upon him several times over his 25-year driving career. Even though he amassed millions of safe miles hauling oversized loads from Minnesota to Fairbanks, Alaska – many of those miles on gravel roads – two months later the federal government suspended his commercial driver’s license when it found out he had vision in only one eye. “I had nothing at that point,” Breth says. “They took everything.”

For Huelle and Breth – and thousands of drivers like them – federal regulations governing medical conditions can have a chilling effect on a driving career. For some, who have a condition such as diabetes that develops over time, the regulations threaten their ability to earn a living as an interstate trucker. Others, who may have lived with a condition such as monocular vision or a missing limb all their lives, face a battle to overcome a medical limitation that may never have actually limited their ability to safely operate a truck.

And while the federal government allows exemptions for some of the disqualifications, it is reluctant to give them. If truckers are disqualified from driving on U.S. interstates and wish to apply for a medical waiver, they drive onto the highway of bureaucratic hell.

Disqualified
There are more than a dozen medical conditions that the U.S. DOT can use to disqualify drivers. Among the more common:

  • Visual acuity of less than 20/40 in each eye with or without corrective lenses

  • Loss of a foot, leg, hand or arm
  • Deafness
  • Diabetes mellitus requiring insulin for blood sugar control
  • Cardio-vascular diseases like myocardial infarction, angina pectoris, coronary insufficiency, thrombosis
  • High blood pressure likely to interfere with the ability to operate a commercial motor vehicle safely
  • A clinical diagnosis of epilepsy.

These conditions automatically disqualify a driver from holding a CDL for interstate operation of commercial motor vehicles. Over the years, the Federal Motor Carrier Safety Administration and its predecessor agencies crafted exemption programs for many of the disqualifying conditions. If a driver’s condition was under tight control and he could demonstrate safe operation of a commercial motor vehicle, he would be allowed to drive.

At least that was the premise. The actual implementation of those programs has been somewhat more contentious for drivers, according to Rinke Noonan, a Minnesota law firm which has successfully sued the DOT several times on behalf of disqualified drivers. Where the FMCSA – and before it, the Federal Highway Administration – has been required by courts and Congress to consider disqualified truckers as individuals and grant them waivers based on their ability to operate safely, the “DOT has argued that an individual driver’s demonstrated functional ability to drive will not be considered unless there is overwhelming statistical evidence that thousands of drivers with exactly the same functional impairment can safely drive.”

This approach has limited the number of disqualified drivers who have received waivers. It has created nearly impossible hurdles for waiver applicants to overcome and flaunted the intent of Congress on multiple occasions, according to truckers, driver advocates, legal counsel, members of Congress and carrier personnel who have tangled with FMCSA over exemptions. The agency would not grant an interview for this story. Still, in its oft-published denials of waivers, FMCSA frequently cites its role as the arbiter of safety on U.S. interstates.

In denying one driver’s petition for waiver in 2001, Julie Anna Cirillo, acting deputy administrator of FMCSA, wrote “FMCSA is committed to making the nation’s highways safer for all motorists by reducing large-truck involvement in highway crashes. We must hold interstate CMV drivers to a strict medical standard to achieve this goal.”

But disqualified drivers say the agency tries to keep good drivers from returning to the road at any cost. “I had one DOT person tell me I’d probably never get a waiver,” says Huelle. “There were 78 people who applied for a waiver in my program. Pretty soon it was down to five or six of us. If you didn’t dot the I’s or cross your T’s, your application is rejected. It doesn’t matter if you’re a safe driver.”

“I have a letter from Janet Reno, who was U.S. attorney general at the time,” says Breth, who successfully sued the agency in the late 1990s. “She suggested that I seek other employment outside of trucking – never mind my rights.”

Off the road
For some drivers, staying in the driver’s seat after a medically-related disqualification is still an option. Many states allow truckers to drive a Class 8 truck intrastate depending on a state’s own regulations. But such local exceptions are narrowing as the federal government pushes states to adopt driving rules that match Federal Motor Carrier Safety Administration regulations.

One egregious example of this trend deals with insulin-treated diabetics. FMCSA’s predecessor agencies outlawed insulin-treated diabetics in the 1970s at a time when such treatment was in its infancy and blood sugar monitors were nonexistent. As science and diabetes treatment advanced, Congress ordered the agency in the 1990s to re-evaluate such drivers and set up an exemption program for them. After several false starts, the agency created a program in September 2003 that was nearly impossible to qualify for because so many states had adopted FMCSA’s stringent regulations for insulin users.

“In order to even apply, a driver had to be able to safely operate a commercial motor vehicle for three years while on insulin,” explains Shereen Arent, managing director of legal advocacy for the American Diabetes Association. “This meant you had to be in a state that allowed insulin-treated diabetics to drive commercial motor vehicles. That was virtually impossible in 20 states and hard in the rest.”

During the waiver program’s brief tenure, only a few dozen drivers even applied. “People without three years of experience were looking and saying, ‘I have to have three years. I can’t apply, I can’t possibly do it,'” Arent says.

(Congress stepped in this summer to clear up the Catch 22, and FMCSA is currently redesigning the program to eliminate the requirement that drivers operate a commercial motor vehicle while on insulin.)

Disqualified drivers say they resent being told they can only drive in their state, especially after years of safe driving over the road. They have an even better reason to reject driving intrastate: they get paid less. In the case of Huelle, who was disqualified for his insulin-treated diabetes, driving intrastate forces him to make longer trips and stay on the road longer. Also, where Huelle could once pilot the relatively flat roads to Greely, Colo., driving intrastate he must now contend with more dangerous 11 and 12 percent grades with switch backs.

“Driving in-state just flabbergasts me,” Huelle says. “You get close to the border, and then you can’t cross it. I’ve got feed lots 100 miles outside the state, and I can’t go to those. I could go and deliver and come back in the time it takes me to go one-way in Wyoming on the hauls I have now. I have to drive 400 miles to get to where I need to go in state.

“I would have tried another business, but I was born and raised around trucks. Besides, I always liked trucks, and I’ve always wanted to do this.”

But Huelle was lucky. He qualified for the agency’s stringent diabetes program. In September, he was one of four insulin-dependent diabetics to receive a waiver.

No Exemption
Drivers with other disqualifying conditions have no such luck. That’s because the FMCSA has no exemption program for their condition, even though in some cases the agency’s own medical experts have recommended them. The agency is also slow to update its rules, ignoring new science and treatments. Consider the case of West Virginia trucker Terry Clawson. The veteran driver had problems with seizures when he was a teenager and began taking two epilepsy drugs, Dilantin and Phenobarbital. That was 30 years ago, and Clawson hasn’t had a seizure since.

With no major accidents in 25 years of driving and no seizures in 30 years, Clawson figured he was the kind of driver FMCSA would want on the road. But all that was irrelevant to the agency. Because he was taking epileptic drugs, he lost his CDL in 2001 during a routine DOT physical. He should have been disqualified years before, but the physician that examined him was the first to notice he was on the two drugs. Even though it was in his medical records, the same physician missed the disqualifying medications in two previous exams. As in Huelle’s case, the system finally caught up, and Clawson was out of a job.

Houff Transfer, his carrier of 20 years, regretfully let him go. “I make a lot less money now working for the state of West Virginia – probably $30,000 less a year,” Clawson says. “In the last four years, I’ve lost $130,000 in income. It could be possibly more.”

After Clawson lost his CDL, he enlisted a lawyer, his doctors, a local neurologist and several doctors at Johns Hopkins, two members of Congress and one of his U.S. senators to help. He also contacted the Epilepsy Foundation – all to no avail. The agency rejected his pleas for relief, citing its rules barring drivers who are taking anti-seizure medication from driving.

The agency’s rules concerning epilepsy are decades old and fly in the face of modern science and the circumstances of Clawson’s case, says Sandy Finucane, vice president legal and government affairs for the Epilepsy Foundation. “We have repeatedly petitioned the DOT in the past to do something about this. It’s time to look at their regs. They’re too restrictive and too blanket. They need to be updated.”

Neither Clawson nor the Epilepsy Foundation want to see FMCSA’s disqualification removed. They admit the danger of letting drivers who still suffer from seizures operate large trucks. But they would like the agency to evaluate individuals and give those epileptics living seizure-free an opportunity to drive.

The agency is inflexible and often fails to follow its own policies, says logging company owner and trucker Scott Cook, who lost his license in 2000 when the DOT decided he needed a prosthetic limb to safely drive a truck. This was news to Cook, who in two decades of driving on some of the toughest roads in the U.S. – from Coos Bay, Ore., to southern Alaska – had only one ticket, and that was in a car for driving without proof of insurance. In fact, Cook didn’t even own a prosthetic limb for his left forearm, which he lost in an accident when he was 5 years old.

“I’ve lost a couple million dollars of income since I stopped driving,” Cook says. “This dispute has cost me about everything.”

He bought his first truck in 1983 to drive for his lumber company. “At that time, if you could do the job, you did the job – it didn’t matter if you were missing an arm,” he says. “I hauled logs and cut my own timber. I did everything in my timber company and never had any trouble in the entire time of my driving.”

Cook might still be driving had he not picked a fight with a state of Oregon transportation official, who took umbrage with the one-armed driver. Still, the regulations were on Cook’s side, provided he could demonstrate safe operation of his truck with one arm. In fact, the first time he was cited, Cook went to court and had his citation overturned because the judge said he met the qualifications.

After a second citation, however, the rules changed. Another judge decided that Oregon could interpret the federal transportation regulations the way it saw fit, and Oregon told Cook to get a prosthetic or get off the highway. The state had the full support of the U.S. DOT, which sent its own lawyers in to argue against the rogue driver.

Cook, who is appealing that decision, could buy an expensive prosthetic and demonstrate his driving abilities under the FMCSA’s Skill Performance Evaluation Certificate program. But Cook says that makes little sense because he’s never used a prosthetic and such a device might get in the way. Besides, there’s a principle at stake.

“It’s absolutely wrong,” Cook says. “If I put a prosthetic on, I would be dangerous on the highway. I use my arm as another hand. My left arm is a hand. I would lose all the mobility I’ve had since childhood by just putting on a prosthetic.”

At least one agency at the U.S. Department of Transportation agrees. Cook has a federal commercial pilot’s license he obtained after he was disqualified from driving a truck. He was tested by the Federal Aviation Administration, and that agency signed off on his license. Technically, Cook could become a commercial pilot flying hundreds of passengers on a 747 jumbo jet – and he wouldn’t need a prosthetic. But he can’t operate a truck without one.

“The difference in the level of skill between a commercial pilot and a commercial truck driver is like the difference between a heart surgeon and a dental hygienist,” Cook says.

Such ironies in FMCSA’s policy decisions abound. When FMCSA denied Terry Clawson his CDL because he was on anti-seizure medication, the agency said doctors must think Clawson was a danger if they kept him on the medication.

“Mr. Clawson

Comments are closed.

OverdriveOnline.com strives to maintain an open forum for reader opinions. Click here to read our comment policy.