The Applicant v. Registrar of Motor Vehicles, 2012 CanLII 12252

Licence Tribunal

Appeal d'appel en Tribunal matière de permis

DATE: 2012-03-01

FILE: 7133/MED

CASE NAME: The Applicant v. Registrar of Motor Vehicles

Appeal under Section 50(1) of the Highway Traffic Act, R.S.O. 1990, c. H.8, from a Decision of the Minister of Transportation Pursuant to Section 32(5)(b)(i) - to Change the Class or Classes of Motor Vehicle in Respect of Which the Licence was Issued

7133

Applicant

-and-

Registrar of Motor Vehicles

Respondent

REASONS FOR DECISION AND ORDER

ADJUDICATOR: DR. KEVIN FLYNN

APPEARANCES:

For the Applicant: MIKE MCCREARY, Counsel

For the Respondent: FRANCES ILARI, Agent

Heard in Toronto March 1, 2012

DECISION AND REASONS

This is an appeal to the Licence Appeal Tribunal by the Applicant respecting a decision of the Minister (the “Respondent”) pursuant to 32(5)(b)(i) of the Highway Traffic Act, R.S.O. 1990, c. H.8 (the “Act”).

FACTS

Preliminary matters

Counsel objected to admission of the report by the Medical Advisory Committee (M.A.C.) as evidence on the following grounds:

• The Registrar’s case must be clear, cogent and convincing.
• The person who signed the M.A.C. report is not identified as a physician who had examined the Applicant.
• The M.A.C. consisted of a neurologist and a non-medical Chair.
• The agent for the Minister was present during the M.A.C. meeting.

Ms. Alari on behalf of the Minister submitted that M.A.C. is an adviser to the Registrar. The neurologist member examines the medical evidence and makes a recommendation which is recorded by the non-medical Chair and referred to the Registrar.

As agent for the Ministry she stated that she was present at the meeting only as an observer and she stated that she had no input into the deliberations.

The Tribunal ruled that the report by M.A.C. dated January 31, 2012 may be admitted as a recommendation to the Registrar based on the medical documents available. The Tribunal is not bound by this report. The Tribunal’s function is to weigh all evidence presented and the weight of each item of evidence is considered before reaching a Decision.

FACTS

The Respondent’s Evidence

The Registrar received a Medical Condition Report dated September 14, 2010 from a physician at an Emergency Department, pursuant to Section 203 of the Act.

The report was based on an examination the same date and stated the condition as:

Blackout or Loss of consciousness or awareness.

Driving truck. Loss of consciousness. Bit tongue. EEG pending. ECG normal.

Had head injury in past.

The Registrar wrote to the Applicant on September 21, 2010 stating that as a result of a reported episode of Syncope/Loss of consciousness his driving privileges were suspended under Section 47(1) of the Act.

In order to be considered for reinstatement, he must arrange for the Registrar to receive an up-to-date report by his doctor to include:

• The results of all investigations, diagnosis, prognosis, current status, confirmation that the condition is controlled and that there are no other disqualifying medical concerns that may impact his ability to safely operate a motor vehicle.
• The results of all recent and pertinent investigations (i.e. ECG, EEG, Holter Monitor), a narrative of this and any previous syncope/loss of consciousness history and confirmation that there have been no further episodes.

A copy of a report by a neurologist, Dr. T. dated April 21, 2011 addressed to the Applicant’s family physician, Dr. F.was received by the Registrar on April 25, 2011.

The report stated:

(Applicant) is seen with his wife regarding seizure disorder. You will recall that he had a blackout on September 14 when he was backing up a truck and another one on October 18 when he was at home. There was a background history of back injury as a twenty six year old, when he fell off a roof. Diagnosis of seizure disorder was made. He was started on Epival 250 mg TID. This was increased to five times a day when the blood levels in November were low at 343. After the increase the level went up to 642 on February 3. ALT was 19. Other investigations included EEG which showed no abnormality and MRI scan showing large bilateral foci of encephalomomalacia within the basifrontal region. Where there is evidence of hemorrhagic products, corresponding with history of trauma. There was mild cerebellar atrophy and non specific white matter changes.

He is doing well having no further blackouts since October 18.

There are no other problems noted on functional inquiry and in particular no tremor or increasing appetite. He does not smoke and has cut down his drinking, having three drinks per week now.

The patient had post traumatic epilepsy. It is rather fortunate that he did not have any kind of seizure many years after the injury and it started in September of last year. So far he only had two attacks. He is doing well having no seizure for a little over six months. He is on sufficient amount of medication and should be safe enough to drive.

The Tribunal was not provided with a report by the neurologist dated prior to April 21, 2011 although it would appear that a report to the family physician was made on an earlier occasion. Also the medication was increased prior to April 21, 2011 and this suggests that the neurologist had seen the Applicant on a previous occasion.

The Registrar reinstated the Applicant’s class “G” licence on May 17, 2011. Because the medical reports indicated that he no longer met the National Medical Standards for a commercial licence, his Class “D” licence was suspended under Section 32 (5)(b)(1). He was informed that in order to regain his commercial licence he is required to file a further report from his treating physician or a neurologist confirming that he has established a five year seizure-free period on or off medication.

The Applicant was informed of his right to appeal.

The Applicant filed a Notice of Appeal through Counsel on December 23, 2011.

In Reasons for Appeal, Counsel listed areas of hardship to his client and family as a result of the downgrade, including loss of income, resort to RRSP funds and Canada Pension benefits five years before anticipated and therefore for a reduced amount. Because of his age he would have difficulty obtaining alternative employment but his former employer was willing to take him back provided he held a Class “D” licence. He continues to drive with the Class “G” licence including trips to the United States for distances longer than when working as a ready-mix truck driver to construction sites.

Under cross examination of the Respondent, Counsel questioned the five year requirement before consideration for reinstatement, on the following points:

• His client had no history of seizures before the episode on September 14, 2010
• Extensive medical investigations including Holter Monitor, EEG and MRI were reported normal
• He continues to be under care of the neurologist, Dr. T. and the family physician, Dr. F. and has taken the medication as prescribed. Both doctors stated that he was fit to drive.
• There have been no seizures since October 18, 2010 when he was started on medication.
• There is no medical evidence of epilepsy.

A letter to Counsel from the neurologist, Dr. T. dated January 30, 2012 stated:

It appears his appeal to the Ministry regarding his commercial licence has not been successful, following two episodes of seizures on September 14 and October 18, 2011. Because of the history of a head injury a long time ago, in fact twenty seven years ago, then the wording of post traumatic “epilepsy” had resulted in the rejection of the Ministry regarding his licence appeal.

As far as I can clarify the issue, he had a head injury twenty-seven years ago and had not had any episode of seizure over these years, only two episodes in September and October 2011, therefore it would be best to classify this as a seizure disorder with a history of a head injury in the remote past.

The term epilepsy should be used in a person who has repeated episodes of a seizure disorder over a long time, which is not in his case. Furthermore, he has been on medication and had no further seizures for more than sixteen months whereas he was never on medication previously. I feel comfortable to say that the chance of him having further seizures is rather remote. If it could be of any help to clarify the legal aspect of his clinical condition, I am prepared to use the term post-traumatic seizure or simply seizure disorder secondary to remote head injury.

In reply to Counsel’s question regarding the definition of epilepsy, Ms. Alari stated that the Registrar’s position is that Epilepsy and Seizure Disorder are the same and that more than one seizure justified using the term Epilepsy.

On February 12, 2012, the Registrar received the Case Summary from the Medical Advisory Committee (M.A.C.). M.A.C. considered the medical evidence including the January 30, 2012 letter from Dr. T. to Counsel.

Recommendation:

Deny request for commercial licence. Reconsider with confirmation from the treating physician that the driver remained seizure-free on or off medication for five years (CCMTA 6.3.1).

Reasons:

Significant brain injury causing large bilateral foci of encephalomalacia in the basifrontal region with evidence of hemorrhagic products. The area of damage is in an epileptogenic region of the brain. Hence, as he has now had two seizures, one month apart, he was prescribed anti-seizure medication as a prophylactic measure.

Concur with Dr. T.’s assessment that it is fortunate the individual remained seizure free for these

many years given the location and level of damage.

Whether diagnosis is said to be port-traumatic epilepsy or post-traumatic seizure disorder is medically insignificant. The fact remains that he had two seizures and were it not for Epival, his risk for further episodes would be even higher. The National Medical Standards and the Canadian Medical Association’s Guidelines are clear in their recommendations in this regard: No commercial driving until a five year seizure free period on or off medication has been established

The Respondent informed the Tribunal that she was present during the M.A.C. deliberations as an observer and for training purposes but that she had no input. She stated that the committee consisted of a non-medical Chair and a neurologist member.

The Registrar wrote to the Applicant on February 17, 2012 in light of the January 30, 2012 letter from Dr. T. The letter confirmed the downgrade and restated that a period of five years seizure-free on or off medication was required in order to be considered for reinstatement.

The Applicant’s Case

The Applicant stated that he had been employed as a concrete readymix truck driver for twenty two years. He drove mostly in the area close to his home an average of thirty minutes per trip on familiar roads.

He has had no seizure episode since October 2010 and continues to take Epival, an anti-seizure medication.

On September 14, 2010, he delivered a load of concrete mix to a site in the cottage country and when backing up his truck he collapsed and woke up in the ambulance. He had bitten his tongue but was not incontinent. He was taken to the local Emergency Department.

On October 18, 2010, he was operating some machinery in the basement workshop of his home when he collapsed and regained consciousness a few minutes later. He did not bite his tongue and was not incontinent. He saw Dr. F., his family doctor, and was referred to the neurologist; Dr.T. Dr. F. did not use the diagnosis of epilepsy. He was then started on anti-seizure medication.

Following reinstatement of his Class”G” licence he resumed driving his car and has driven distances farther than when driving his truck, on unfamiliar roads, including in the United States without incident.

ISSUES

Should the decision of the Minister to change the class or class of motor vehicles in respect of which the licence is issued in accordance with the result of the examination be varied, modified or set aside?

Does the Applicant no longer suffer from a mental, emotional, nervous or physical disability likely to significantly interfere with his or her ability to drive a motor vehicle of the applicable class safely?

LAW

O. Reg. 340/94, Section 14 states:

(1) An applicant for or a holder of a driver’s licence must not,

(a) suffer from any mental, emotional, nervous or physical condition or disability likely to significantly interfere with his or her ability to drive a motor vehicle of the applicable class safely; or

(b) be addicted to the use of alcohol or a drug to an extent likely to significantly interfere with his or her ability to drive a motor vehicle safely.

(2) In determining whether an applicant for or a holder of a driver’s licence of any class meets the qualifications described in subsection (1), the Minister,

(a) may take into consideration the relevant medical standards for applicants or holders of that class of driver’s licence set out in the CCMTA Medical Standards for Drivers; and

(b) may require the applicant or holder to provide evidence satisfactory to the Minister that he or she is able to drive a motor vehicle of the applicable class safely, including,

(i) any reports of examinations under section 15, and

(ii) any additional medical information.

(3) Despite clause (2) (a) and unless otherwise provided in this Regulation, if there is a difference between a medical standard set out in the CCMTA Medical Standards for Drivers and a medical standard set out in this Regulation, the Minister shall take into consideration the standard set out in this Regulation instead of the standard set out in the CCMTA Medical Standards for Drivers.

(4) In this section, the CCMTA Medical Standards for Drivers means the document entitled CCMTA Medical Standards for Drivers, published by the Canadian Council of Motor Transport Administrators and dated March 2009, as it may be amended from time to time, that is available on the Internet through the website of the Canadian Council of Motor Transport Administrators.

Sections 17 and 18 states:

17. An applicant for or a holder of a Class B, C, E or F driver’s licence whose hearing in one ear is better than in the other must be able to perceive in the better ear, with or without a hearing aid, a forced whisper at a distance of 1.5 metres or, if an audiometer is used to test the person’s hearing, must not have a loss in the better ear of more than 40 decibels at 500, 1,000 and 2,000 hertz.

18. (1) An applicant for or a holder of a Class M, M1 or M2 driver's licence must have,

(a) a visual acuity as measured by Snellen Rating that is not poorer than 20/50, with both eyes open and examined together with or without the aid of corrective lenses; and

(b) a horizontal visual field of at least 120 continuous degrees along the horizontal meridian and at least 15 continuous degrees above and below fixation, with both eyes open and examined together.

(2) An applicant for or a holder of a Class G, G1 or G2 driver's licence must have,

(a) a visual acuity as measured by Snellen Rating that is not poorer than 20/50 with both eyes open and examined together with or without the aid of corrective lenses; and

(b) a horizontal visual field of at least 120 continuous degrees along the horizontal meridian and at least 15 continuous degrees above and below fixation, with both eyes open and examined together.

(3) An applicant for or a holder of a Class A, B, C, D, E or F driver’s licence must have,

(a) a visual acuity as measured by Snellen Rating that is not poorer than 20/30 with both eyes open and examined together and not poorer than 20/100 in the weaker eye, with or without the aid of corrective lenses; and

(b) a horizontal visual field of at least 150 continuous degrees along the horizontal meridian and at least 20 continuous degrees above and below fixation, with both eyes open and examined together.

Section 32 (5)(b)(i) states:

32. No person shall drive a motor vehicle on a highway unless the motor vehicle is within a class of motor vehicles in respect of which the person holds a driver’s licence issued to him or her under this Act.

(5) The Minister may require an applicant for a driver’s licence or an endorsement or a person who holds a driver’s licence to submit to the examinations that are authorized by the regulations at the times and places required by the Minister and to meet other prescribed requirements, and the Minister may,

(b) in the case of a person who holds a driver’s licence,

(i) impose the conditions authorized by the regulations, remove any conditions or endorsements or change the class or classes of driver’s licence held by the person, in accordance with the results of the examinations and other prescribed requirements, or

Section 50 states:

50 (1) Every person aggrieved by a decision of the Minister made under subsection 32(5) for which there is a right of appeal pursuant to a regulation made under clause 32 (14) (n) or a decision of the Registrar under section 17 or 47 may appeal the decision to the Tribunal.

(2) The Tribunal may confirm, modify or set aside the decision of the Minister or the Registrar.

APPLICATION OF THE LAW TO FACTS

Counsel for the Applicant submitted:

• There is no justification for a five year ban on truck driving. The two reported episodes included tongue biting on the first but not on the second. The driver has stated that he has driven his car on long distances on unfamiliar roads including the United States, without incident compared to short distances on familiar roads with his truck for twenty two years prior to the downgrade.
• There has been no confirmation of a diagnosis of epilepsy.
• The Canadian Council of Motor Transport Administrators (CCMTA) Section 6.3.3 states:

Non epileptic seizures caused by cranial trauma or intracranial lesions will be evaluated on an individual basis. Once the underlying cause has been resolved, neurological assessment of functional or cognitive sequellae will determine fitness to drive.

The Canadian Medical Association Driver’s Guide 7th Edition Section 10.4.1

states:

Single, unprovoked seizure, (table 2 on page 38):

commercial drivers with post-traumatic seizures (single, not epilepsy) may resume professional driving if seizure free for 12 months.

• Counsel submits that more than one seizure does not mean a diagnosis of epilepsy. The letter from the neurologist Dr. T. on January 2012 stated:

The term epilepsy should be used in a person who has repeated episodes of a seizure disorder over a long time, which is not in his case.

• The report by M.A.C. on January 31, 2012 is signed by a non-medical Chair who is not identified and is not clear, and cogent and should not be admitted as evidence and is opinion evidence.
• Courts and Tribunals have ruled that medical evidence given by a physician who has examined a patient carries more weight than opinions by physicians who have not examined the patient.

He cited a number of decisions in support of his position.¹

Counsel also submits that the Registrar’s Representative at the Hearing should not have been present during the M.A.C. meeting.

The Respondent’s submission

1. The Registrar was justified in issuing a downgrade of the Applicant’s commercial licence upon receipt of a medical report from a neurologist of two seizure episodes approximately one month apart. The first episode was described as a seizure with tongue biting and loss of consciousness. The second episode was described as a syncopal or seizure episode without tongue biting.

2. The neurologist diagnosed post traumatic epilepsy, not a vaso-vagal episode.

3. CCMTA Guideline 6.3.3 under “Seizures Associated with Trauma or Intracranial Lesions” states:

Non epileptic seizures caused by cranial trauma or intracranial lesions will be evaluated on an individual basis. Once the underlying cause has been resolved, neurological assessment of functional or cognitive sequellae will determine fitness to drive.

4. CCMTA Guideline 6.3.1 states that an individual who has been seizure free on or off medication for 5 years may be considered for any class of licence.

5. Dr. T. in his letter of April 21, 2011 states:

The patient has post traumatic epilepsy. It is rather fortunate that he did not have any kind of seizure many years after the injury and it started in September of last year

He is on sufficient amount of medication and should be safe enough to drive.

By using the term “should be safe enough to drive” Dr. T. is not ruling out the possibility of a seizure if driving. Risk may be increased with factors such as lack of sleep.

6. Canadian Medical Association Guideline 10.4.1 states that commercial drivers after a diagnosis of epilepsy may resume driving if 5 years seizure free.

7. O. Reg. 340/94, Section 14 states:

(1) An applicant for or a holder of a driver’s licence must not,

(a) suffer from any mental, emotional, nervous or physical condition or disability likely to significantly interfere with his or her ability to drive a motor vehicle of the applicable class safely;

The Tribunal finds:

1. The Registrar was justified in downgrading the Applicant’s licence upon receipt of a letter from a neurologist dated on April 21, 2011 that diagnosed the condition as post traumatic epilepsy, following two episodes of loss of consciousness.

2. The Tribunal accepts the first episode of September 14, 2010 as a seizure given that the Applicant lost consciousness with tongue biting.

3. The Tribunal is not convinced that the second episode on October 18, 2010 was a seizure given that there was no tongue biting or incontinence. Neither of the two episodes were described as being witnessed and the EEG test for epilepsy was negative.

4. It was reasonable for the neurologist to use the term “post traumatic epilepsy” on his initial letter of April 21, 2011 given the past history of a head injury some 28 years previously and on finding evidence suggestive of brain injury at that time.

5. Upon stabilising the level of anti-seizure medication in October 2011, no further seizures occurred.

6. The Tribunal is aware that a syncopal episode may have occurred on October 18, 2011 rather than a seizure since that episode was not witnessed.

7. The letter from the neurologist on January 30, 2012 that amended his diagnosis to “post traumatic seizure, or simply seizure disorder secondary to remote head injury” is indicative that the Applicant did not and does not have epilepsy.

8. The Tribunal does not agree with the opinion by M.A.C. on January 31, 2012 that “whether the diagnosis is said to be post-traumatic epilepsy or post traumatic seizure disorder is medically insignificant”.

9. The Tribunal does not agree with the suggestion put forth by the Respondent that Seizure Disorder and Epilepsy are synonymous, and agrees with the neurologist when he stated “The term epilepsy should be used in a person who has repeated episodes of a seizure over a long time, which is not in his case”.

10. The Tribunal is satisfied that the Applicant has faithfully adhered to the prescribed medication and to the medical supervision that would be expected.

11. The Tribunal finds that he does not suffer from a physical condition likely to significantly interfere with his or her ability to drive a motor vehicle of the applicable class safely. (emphasis added).

12. The MAC report is not evidence of the Applicant's condition. It is the basis upon which the Registrar reached her conclusion. In making its recommendation, MAC had before it the medical reports that form the evidentiary basis for this appeal. It is open to this Tribunal, following consideration of the evidence, to reach the same conclusion as the Registrar or to come to a different conclusion, unfettered by the Registrar's decision. Accordingly, there is no need to identify the author of the report or determine the qualifications of the MAC panel members. It is the medical evidence from the Applicant's treating physicians that form the basis for the Tribunal's findings. The Tribunal admits the MAC report simply as the justification advanced by the Regstrar for reaching the decision she made.

DECISION

Upon the application by the Applicant to appeal the decision dated May 17, 2011 of the Minister (“Respondent”) to change the class or classes of motor vehicle in respect of which the licence was issued pursuant to Section 32(5) (b)(i) of the Act, and having considered the evidence filed with the Tribunal, and the submissions of the Respondent and of the Applicant;

IT IS THE DECISION OF THE TRIBUNAL pursuant to the authority vested in it under section 50(2) of the Act that the decision of the Registrar be set aside.

The Tribunal orders that the Applicant file a report with the Registrar of Motor Vehicles that includes an annual medical assessment by his physician, confirmation of absence of seizures and laboratory therapeutic levels of his anti-convulsant medications, on a yearly basis for five years from the date of his last seizure episode.

LICENCE APPEAL TRIBUNAL

Kevin Flynn M.D.

Presiding Member

RELEASED: March 8, 2012

Footnotes

1. 11. Decision No.1886/09, 2009 ONWSIAT 2361, 2009ONWSIAT 2361 2. R.v.N.L., 2009 CanLII 26355 (ON SC), 2009. 26355 (ON SC) 3. Doyley v. York Condominium Corporation No. 478, 2006 CanlII 32989 (ON SC) 4. Decision No. 777/91, 1992 CanLII 5360 (ON WSIAT) 5. Bonneau v. Friedrichs, 1990 CanLII 1351 (BC CA) 6. Decision No. 273/87, 1987 CanLII 1527 (ON WSIAT) 7. Decision LAT 6697/MED-SEIZ Suspected seizure observed by a nurse five days after craniotomy for benign meningioma. MAC recommended reinstatement of Class “G” and five years seizure free for Class “D”. Neurologist stated that the driver was fit for any class of vehicle eleven months after the procedure. MAC adhered to CCMTA Guideline 6.3.1 (seizure free on or off medication for 5 years) and Regulation 340/94 Section 14(2)(a). Applicant submitted that the neurologist who treated him had an advantage over the MAC neurologist. Downgrade was set aside 8. Decision LAT 6628-MED-COND Holder of a commercial licence was downgraded following head injury with cognitive impairment and had a single seizure related to scar seen on CT. No epileptiform changes on EEG. Stable on anticonvulsants. MAC recommended five year seizure free due to risk of seizure.. Applicant’s neurologist determined fitness to drive any class of vehicle eleven months after MAC recommended five years seizure free according to CMA guidelines (5 years seizure freeafter a diagnosis of epilepsy). MAC reaffirmed its five year recommendation five days after the neurologist’ opinion was received. Downgrade was set aside. 9. Decision LAT 6493-MED-SEIZURE(S)-CEREBRAL CMA Standard 10.8.1 recommended 12 months seizure free after removal of a tumour before resuming driving. CCMTA Standard 6.10 stated that full recovery after removal of tumour allowed driver to resume driving after an appropriate recovery period and a favourable assessment by a neurologist or neurosurgeon. Suspension was set aside.