Who is responsible?

[chris1]

A driver has a medical condition(prior heart condition) that requires a doctor visit every year(not a DOT physical) and the doctor fails to send/the state fails to recieve the medical report and the CDL license is revoked,the driver put OOS at a scale,and the carrier gets an unquilified driver on the record.
Who is responsible to insure that the medical,license,ect are valid?
Have been dealing with this for five days,FMSCA,WIDOT,ILDOT and attorneys. There are conflicting state/federal statutes.
How about the two resident "experts"?

[Rev.Vassago]

I would say ultimately it is up to the driver to ensure that his certification is valid. But that's without checking any FMCSA regulations, which I have absolutely no intention of doing this weekend.

[golfhobo]

Uturn will be with you shortly. In the meantime... I will chime in.

I believe some of this was discussed on the following thread:

New rule goes into effect 1/30/09

If you read the ruling, [link provided on that thread] which is extremely long and "busy," you MAY find an answer to your question.

Without checking further (and I'm not sure you will find the answer IN the regs...) I would have to agree with the Rev that, especially following this new ruling, the DRIVER is going to be the one held responsible for making sure that ALL medical information has been reported to the State Licencing Agency from now on.

Not saying that the carrier shouldn't do THEIR part in preventing this to cover their OWN butts, but.... the CDL was revoked, under the new rule, due to the DRIVER not ensuring that the information was received by the DMV.

As for your discussion with your attorney, however.... I THINK I remember something in that ruling about a certain amount of "grace period" for this ruling to become well known and adhered to. I suggest that HE should read the ruling, and deal with WIDOT and ILDOT.

In fact... I don't remember reading that the CDL could be "revoked" for failure to notify UNTIL it comes up for renewal. THAT is when you would lose your CDL privileges according to the ruling. Actually.... I think I remember that the ruling says that you must be NOTIFIED by the DMV within 30 days of a revocation, giving you time to present the info.

The very idea OF this ruling is to provide the DOT AT the scale, or on the side of the road, to access a database that would show whether your CDL is valid or not based on Medical certification. We are no longer allowed to CARRY some certification (that could be forged) to prove our way out of an OOS. The doctor MUST send the info to the DMV, and it is up to US to make sure it was done.

Sounds like the system IS working! It is a shame that Safety Directors, or other company personnel, haven't made this new ruling CLEAR to anyone and everyone who works for them who might be affected by it.

Keep us posted. And if I can help you "comprehend" the ruling, I will do my best as I have time. But, it IS a very "busy" ruling!

[chris1]

Maybe i wasn't clear enough. It was not a DOT physical. It was a medical review. Large difference there. I just thought it might be interesting to see the views on this.
There are three civil actions and two criminal actions in this case.I can insure you that my comprehension of the law is more than the ability to copy and paste a regulation.

[Rev.Vassago]

I understood that it wasn't a DOT physical. I would still say that it is up to the driver to ensure the review was properly sent in and received.

[chris1]

I understood that it wasn't a DOT physical. I would still say that it is up to the driver to ensure the review was properly sent in and received.

In the civil case with the driver it is 100% on the doctor.
In the criminal case the driver is responsible to ensure his license was valid. Thats where the conflicting laws come in.
I wasn't looking for help on the regs,i know them very well. Just wondered how many would be up in arms over someone screwing up a drivers license. The end result is the driver will have an operating a CMV without a valid license on his record and i will have a "using an unqualified driver" on mine.

[Rev.Vassago]

Sure - I'd be upset over the doctor screwing up the license, and he will likely pay dearly for it in civil court (as he should). But the fact remains that at the time, his license wasn't valid, for whatever reason. And it is up to the holder of the license to make sure that it is valid, and the motor carrier to make sure those who drive for them are properly licensed to do so.

But yeah, it sounds like a sucky situation.

[chris1]

I'm not disagreeing with any of it. There is no "punitive" damages to the driver as i'm not about to terminate because of this. The doctors insurance will pay the actual costs to the driver and myself. I had a simular situation 10-11 years back,appealed to the DOT and won. Waiting for the word back from Madison on that. Would be easier if this state would give an auto-update on a license but we're a little behind the times.

[Myth_Buster]

A driver has a medical condition(prior heart condition) that requires a doctor visit every year(not a DOT physical) and the doctor fails to send/the state fails to recieve the medical report and the CDL license is revoked,the driver put OOS at a scale,and the carrier gets an unquilified driver on the record.
Who is responsible to insure that the medical,license,ect are valid?

Of course it is a DOT physical. The driver's medical certificate may be vaild for 30/90 days, six months, one or two years. If it wasn't a DOT physical why was the driver placed OOS as not qualified?

Hate to disagree but the states only accepts DOT certs. There would be no need for a physicain to send the document unless it requalified the driver.

Have been dealing with this for five days,FMSCA,WIDOT,ILDOT and attorneys. There are conflicting state/federal statutes.

Was the driver in interstate or intrastate commerce at the time of the stop?

If it was interstate commerce the federal rules apply, if it was intrastate state laws apply.

You will not find a federal rule regarding who is responsible for sending in the report.

In Wisconsin if a driver's DOT cert is not on file the CDL reverts to an intrastate only CDL.

Illinois does not currently have a requirement for the medical cert to be on file.

In Indiana if the medical cert is not on file the CDL is reverted to a regualr driver's license.

I take it IL placed a WI based driver OOS.

It is the driver's responsibility to ensure the medical cert is on file as required. It is the employer's responsibility to ensure the driver is qualified to operate the vehicle.

Be safe.

[Orangetxguy]

Maybe i wasn't clear enough. It was not a DOT physical. It was a medical review. Large difference there. I just thought it might be interesting to see the views on this.
There are three civil actions and two criminal actions in this case.I can insure you that my comprehension of the law is more than the ability to copy and paste a regulation.

I would rather that you, as a Carrier, "Assured" me, that you comprehend the regulations.

[golfhobo]

Since nothing in the Rev's response mentioned any cut 'n paste, or mentioned the word comprehension, I'm going to assume your second post was aimed at ME. I can ASSURE you that I was only trying to help you, but...

chris1 said:

Maybe i wasn't clear enough. It was not a DOT physical. It was a medical review. Large difference there.

You were perfectly clear, and I have NO problem comprehending what I read. But, apparently... the "medical review" was necessary to maintain the driver's CDL. THAT, along WITH the periodic DOT physical is discussed in the ruling I linked you to.... which "I" have read only briefly.

I just thought it might be interesting to see the views on this.

Apparently, YOU have already made up your mind and don't appear to BE very "interested" in the views on this.

There are three civil actions and two criminal actions in this case.

Interesting info that you left OUT of your original post, but.... I don't really CARE. Don't have a dog in that fight. (Actually... I would LOVE to know how you got into 3 civil actions and 2 criminal actions out of JUST having a driver put OOS for nonreporting of a medical review.... but, I DO have other things to worry about.)

I can insure you that my comprehension of the law is more than the ability to copy and paste a regulation.

Somehow, I doubt it.... but, nevertheless.... I didn't MEAN to impugn your ability to understand the "new ruling" that I mentioned. I READ it... and even "I" found it to be more than I wanted to digest at the time. I really didn't have a problem comprehending it. It basically says that the DRIVER is responsible for making sure that ALL licensing agencies have the medical info they need to keep him qualified for his CDL. I was simply offering to discuss it further with you to help us BOTH understand what it says about your situation..... WHEN I had time! I'm kinda busy, and YOUR problems are not my biggest concern.

There ARE, however, regulations incumbent on carriers to verify medical qualifications of their drivers. If YOU failed to do so, you're probably going to LOSE.

There are many "rulings" by the FMCSA and the DOT that don't make their way into the REGULATIONS. IF you are a carrier, you are responsible for knowing ALL of them. Also.... the FMCSA clearly states that STATES can have tougher regulations as long as they are not "softer" than the FMCSR's. Part of your "authority" to run in other states is your responsibility to know their regulations. But, of course.... you KNEW that!

I mentioned that UTURN was probably the other "expert" you were expecting. I don't claim to BE that "expert" in THIS type of situation. However, if I misread your "dig" about cut 'n pasting regs, and you WEREN't addressing it at me.... I apologize. But, I don't think I did.

[chris1]

If you get people wound up they reply.

Mythbuster:
The cardiologist did a medical review and submited(supposedly) A DOT physical(one year) was done two days later and submited to the DMV. They acknowledge they recieved but refused the physical as they had not recieved the medical review.

Golfhobo:
Driver versus doctor civil
Carrier versus doctor civil
Carrier appeal to DOT civil
Driver ticket criminal
Carrier audited and fined criminal
As far as the copy and paste comment i am familiar with the regulations and have an attorney who practices only in transportation so if i have any doubts that is who i ask.
The title of the thread should maybe have been "what do you think" rather than" who is responsible". My apology's for that.
As far as insure in place of assure,as i was typing i was looking at the fax from my insurance company concerning this matter.

[Skywalker]

All nonsense aside.....

I believe it is incumbent upon the driver to insure that all of his credentials are in order. It is his or her livelihood, therefore the issue of personal responsibility takes precedence.

The doctor can do all he or she can do..... But the doctor is not responsible for mistakes made by the post office or a bureaucrat. The bureaucrat is not responsible for the doctors mistakes or the post office, etc, etc, etc......ad nauseum.

If one has a medical issue, and is under constraints due to that, it is further incumbent upon that individual to have documents in his or her possession that validate their legal and physical ability to operate a CMV. Failure to "CYA" is a fault attributed to the affected party, eg; the driver.

Question: If a driver goes to the DMV, renews his license, and the endorsements on his old license were X & T.....and the driver recertifies passing the hazmat test....and gets the new license, pockets it, gets in a rig pulling a placarded load of doubles.....gets stopped in a scale, gets a level one inspection....and at that time is cited for pulling hazmat and doubles without proper endorsements.....and by golly.....the new license doesn't show the endorsements..... Whoops!!! The dumbass at the DMV screwed up the license, right? Uh-huh....yep, they sure did..... But the driver made the greater error by pocketing the license WITHOUT having made sure it was 100% correct before leaving and operating the CMV!!

Its all about personal responsibility, and protecting oneself and their income and security. The biggest single problem in this country today is that people always want to abdicate their personal responsibility and put the blame on everyone else!

[cdswans]

Here's a similar situation:

I had no bruises on my shins or forehead. It was on that basis that a Doctor concluded that I could see well enough to drive a CMV. I was in for a DOT recert, knowing I needed cataract surgery but learned I could no longer cheat on the eye chart. I would have to be screened, evaluated, surgery scheduled and so on and so forth. She didn't see any point in stopping me from driving in the meantime, for 2 very sensible reasons: I needed to keep my insurance in force and to keep the cash flow flowing. She signed a 6 month (!) medical card and made what she felt were the appropriate notations on the long form. I faxed copies* of both to Swift and eagerly awaited my next dispatch.

Your thinking Swift, with who knows how many thousands of Drivers, would receive these, rubber stamp and file them and that would be the end of it, right? Wrong. They scrutinize every one of them very carefully, apparently. The next thing I heard from them was that I was on safety hold and to not move the truck. The law is very specific as to vision and any waiver for vision has to come from USDOT themselves. The bottom line is that, while I did carry a "valid" card, there was no valid certificate to back it up. Swift saw that and I had to wait 15 weeks for the aforementioned procedures to be taken care of.

A medical card is an easy to carry substitute for the long form. Your driver got his "valid" card and drove on that basis. He's a Driver, not a lawyer or physician. It's unfortunate that he'll have to pay a lawyer but I think he'll beat the ticket. Maybe he'll be able to pay with the settlement from the MD but that money, if any, could be a long time coming.

The long form is the actual "certificate". I don't know if, as an owner, there is any requirement on your part to keep on file or review the (your driver's) certificate but it sounds to me like you never had it. Absent any greater degree of responsibility on your part, if he beats his, you automatically beat yours. Ticket, that is. Once again, too bad you're paying a lawyer for this but there's always that huge settlement, just around the corner.

*If I use CONCENTRA for the physical, Swift pays. That way, Swift also gets a seperate fax from them and they get the original long form which helps protect them from unscrupulous Drivers that might be tempted to tamper with them.

[Myth_Buster]

If you get people wound up they reply.

Mythbuster:
The cardiologist did a medical review and submited(supposedly) A DOT physical(one year) was done two days later and submited to the DMV. They acknowledge they recieved but refused the physical as they had not recieved the medical review.

Golfhobo:
Driver versus doctor civil
Carrier versus doctor civil
Carrier appeal to DOT civil
Driver ticket criminal
Carrier audited and fined criminal
As far as the copy and paste comment i am familiar with the regulations and have an attorney who practices only in transportation so if i have any doubts that is who i ask.
The title of the thread should maybe have been "what do you think" rather than" who is responsible". My apology's for that.
As far as insure in place of assure,as i was typing i was looking at the fax from my insurance company concerning this matter.

1. Which DMV? IN or WI? The key word is supposedly, obviously you don't have all of the facts. If the med cert was submitted two days later it appears the med cert was expired when the driver was stopped; therefore, the stop was valid.

IMHO the story is full of holes, the facts are not presented clearly.

2. I doubt the driver and carrier was fined criminally. Was the violation against the driver a felony by state statute? Which state was the driver placed OOS? Was the carrier cited for a felony? I doubt it, if the state or FMCSA performed a compliance review it under administrative law not criminal law. Crimianl law means the driver and carrier was subject to arrest. Since the driver was placed OOS and not arrested it was most likely an administrative law violation not a criminal law violation.

Be safe.

[chris1]

Mythbuster
391.15(a)
625 5 6 507 IL Class A Misdemeanor. (Doesn't have to be a felony to be criminal)
Medical review required 5/20
Medical review performed 5/13
Old DOT physical expires 6/25
New DOT physical performed 5/15
WI DMV recieved DOT physical not medical review
Madison DOT office had no problem comprehending the difference between the two and the consequences to both the driver and myself.