7828 v. Registrar of Motor Vehicles, 2013 CanLII 3231

Licence Appeal Tribunal

Date: 2013-01-28

File: 7828/MED

Case Name: 7828 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 Registrar of Motor Vehicles Pursuant to Section 47(1) of that Act - to Suspend a Licence

Applicant: 7828

Respondent: Registrar of Motor Vehicles

REASONS FOR DECISION AND ORDER

ADJUDICATORS: Kevin Flynn MD, Chair of the Panel D. Gregory Flude, Vice Chair

APPEARANCES: For the Applicant: Arthur Douglas Burns, Counsel For the Respondent: Russell McKnight, Agent

Heard in Hamilton: January 18, 2013

DECISION AND REASONS

This is an appeal to the Licence Appeal Tribunal by the Applicant respecting a decision of the Registrar of Motor Vehicles (the “Registrar”) pursuant to section 47(1) of the Highway Traffic Act, R.S.O. 1990, c. H.8 (the “Act”).

FACTS

The Respondent’s Case

On August 17, 2012, a Medical Condition Report was completed at a university hospital by a specialist physician, Dr. H. in compliance with section 203 of the Act. The Report was based on an examination on August 16, 2013 by a resident physician.

Conditions named were as follows:

Drug Dependence ?Seizures-drug related Blackout or Loss of Consciousness or Awareness.

The Registrar wrote to the Applicant on September 20, 2013 to inform him that he had decided to suspend the Applicant’s driving privilege under section 47(1) of the Act due to the report of substance abuse and syncope/loss of consciousness.

In order to be considered for reinstatement the Applicant was required to submit a report by his physician containing the following information:

• If a diagnosis of substance dependence is confirmed, confirmation is required of abstinence from all illicit and/or no-prescribed medication for a period of one year. This period may be reduced with confirmation by his physician of successful completion of a drug treatment program and support of reinstatement
• A description of this and any previous history
• Confirmation that the cause has been determined and successfully treated
• Date of last episode(s).
• Completion of a Substance Abuse Assessment form

On November 1, 2012, Counsel for the Applicant wrote to the Ministry attaching a copy of the Emergency Record of the Applicant’s attendance on August 15, 2012.

The ER record shows that the Applicant attended at 20:58 hours on August 15, 2012 with “Altered Level of Consciousness”. His pulse rate and blood pressure were elevated. The physician’s handwritten assessment stated (transcribed by the Tribunal as accurately as possible):

42 year old male found with reduced level of consciousness at home. Recent travel to US for treatment of opiate addiction. Had rapid detox. (Wife does not know this). Feeling unwell all week. Today wife found him unresponsive face down in vomit.

Glasgow Coma Scale 3-6 No sign of head injury. PERL (pupils equal reacting). (lines 10-14 undecipherable) Orders: Versed 5 mg (?) Fentanyl 25 mg/hr (undecipherable)

Also attached is a laboratory drug screen report of urine from GammaDynacare dated October 9, 2012:

Drugs of abuse Random Urine: positive Oxycodone: positive. Other drugs of abuse: negative

A Substance Abuse Assessment was completed by the Applicant’s family physician, Dr. H. on October 11, 2012:

Health History: had a syncopal episode August 15, 2012 and was seen in Emergency at the Hospital. I am not aware that (Applicant) has any substance abuse issues. Physical Examination and laboratory results: normal First use: 19 First regular use: 19 First intoxication: in college at 21 Frequency of use: 2 beers per week Amount consumed on each occasion: N/A Longest period of abstinence in last 3 years: social drinker only Date of Reduction or Abstinence: N/A Current use of illicit or non-prescription: not used Current use of prescribed medication: Age 42; Oxycodone 325/5mg Frequency of use: one about three times a week; no abuse; uses for shoulder injury only. Drug Abuse Screening Test: Ever used drugs other than medical reasons: Yes Can you get through the week without using drugs: Yes Re you always able to stop using drugs if you want to: Yes

Substance Dependence (DSMIV) Criteria: No history of substance dependence.

The Ministry’s Medical Advisory Committee considered this case on November 1, 2012 and recommended:

“the driver should remain suspended and will consider reinstatement with a further report from the treating physician. To provide a copy of the Discharge Summary, results of all investigations and copied of all notes for the driver’s hospitalisation in the United States while there for a baseball game. Additionally to confirm whether the driver continues to use Fentanyl.

Reasons:

Driver presented to ER August 16, 2012. Specialist in General Internal Medicine/Endocrinology identifies drug dependence? Seizure drug related. Blackout or loss of consciousness/loss of awareness. Discharge summary notes driver went to US hospital for treatment of opiate addiction and had rapid detox. Further notes wife is not aware of this. Treating physician states no drug use. Conflicting information provided. Will require discharge Summary from hospital in US.”

The Registrar informed the Applicant on December 14, 2012 of the continued suspension and requested a report by his physician with a copy of the Discharge Summary, results of all investigations and copies of all notes of his hospitalisation in the United States, and also whether or not he continues to use Fentanyl.

The Applicant’s Case

Counsel informed the Tribunal that he had received copies of records from the university hospital and submitted them as exhibits. He also advised the Tribunal that he would call the physician who was the staff member responsible for the Applicant while an in-patient. The Tribunal recessed in order to review the hospital documents. Upon resuming, the Tribunal indicated that if the parties wished to adjourn in order to study the content of the newly disclosed documents, the hearing would adjourn. The parties agreed to continue.

In “Reasons for Appeal”, Counsel itemised the following:

1. The Applicant is making this appeal because the Emergency Room Physician at (the hospital) made significant errors in his report.
2. This erroneous report was improperly reported to the Registrar of Motor Vehicles. See Schedule 2.
3. The facts relating to the Applicant’s substance use or abuse are false.
4. The facts relating to the Applicant’s drug treatment are false.
5. The Applicant is not a drug user.
6. The Applicant’s suspension is based entirely on the significant errors made by the Emergency Room Physician at (the hospital).

Background

7. This summer, the Applicant and several of his friends went to watch a baseball game in the United States.
8. While the Applicant was in the U.S., he ate raw oysters that had spoiled. The Applicant felt violently ill and was hospitalised for a very short period of time.
9. When the Applicant returned to Canada, he attended his family physician, Dr. H. Dr. H. prescribed osxycodone 325 to treat the Applicant’s pre-existing shoulder and wrist injuries.
10. Unaware of the possible side effects, the Applicant drank several bottles of beer after returning from work. The Applicant passed out and was taken to Emergency by ambulance.
11. The Emergency Room at (the hospital) admitted the Applicant on August 15, 2012 at 20:58.

Emergency Room Physician Opinions

a. Initially the ER physician informed the Applicant’s wife that the Applicant may have a brain tumour and immediate surgery might be necessary. 12. Subsequently, the ER physician informed the Applicant’s wife, in the presence of their two young sons, that the Applicant might have had a stroke and could be paralyzed down one side of his body. 13. Both of these opinions were expressed in front of the Applicant’s young sons. 14. Within a few hours, the ER physician advised the Applicant’s wife that the Applicant likely had a reaction to the Oxycodone prescribed by his family physician. 15. The ER physician assumed that the Applicant was taking Oxycodone without a prescription. This assumption was incorrect.

Medical Report and Further Drug Tests

16. Obtaining emergency records and test results is often difficult; however, we have received both the emergency record from August 15, 2012 and the negative results of a urine test from Gamma-Dynacare Medical Laboratories.
17. The emergency record from August 15, 2012 indicates that the two additional diagnoses were without foundation. Furthermore, the information included in the emergency record is grossly inaccurate. See attached Schedule 3.
18. The urine test indicates that there is no drug dependency of any type. Furthermore, the only drug that is evidenced by the urine test relates directly and solely to the prescription provided by the Applicant’s family physician. See attached Schedule 4.
19. In spite of the ER Physician’s errors and lack of foundation for a report resulting in the Applicant’s license suspension, the Applicant has been informed that it will take a minimum of six weeks to have his license reinstated.
20. This is simply not a reasonable or proper response.

Further Documentation Supporting the Applicant

21. In addition to the emergency record and urine test results, the Applicant’s family physician and the Applicant completed the Ministry of Transportation Substance Abuse Assessment form. The assessment form clearly indicates that the Applicant does not have any substance abuse issues. See attached Schedule 5.

Requests

22. The Applicant respectfully requests: a. The reinstatement of the Applicant’s Driver’s Licence.

Attachments

24 The following attachments have been enclosed for your review: a. Schedule 2: Letter from the Deputy Registrar of Motor Vehicles dated September 20, 2012 b. Schedule 3: Emergency Rtecord dated August 15, 2012 c. Schedule 4: Gamma-Dynacare Medical Laboratories Report dated October 11, 2012. d. Schedule 5: Ministry of Transportation Substance Abuse Assessment dated October 2, 2012.

The Tribunal has made reference to Schedules 1-5 in the narrative.

Evidence of Dr. H.

Dr. H. is a specialist in General Internal Medicine & Endocrinology at the university hospital. He is not qualified in addictions medicine and therefore is not an expert witness at this Hearing. He stated that he was the most responsible physician for medicine in the Intensive Care Unit (I.C.U.) on August 15/16. The Resident Physician was Dr. F.

The Applicant was admitted to I.C.U. on August 16, 2012 having been intubated in the ER. Intubation was required because the Applicant was not in control of his breathing and in order to insert an endotracheal tube it was necessary to administer Fentanyl. He stated that he did not see the Applicant but that he referred to the notes prepared by Dr. F. when he dictated the Discharge Summary. He also completed the Medical Condition Report under section 203 of the Act based on the notes by Dr. F.

The Discharge Summary referred to the circumstances of admission to the ER. Note was made of fever, nausea and vomiting and headache prior to admission. The blood count showed elevated white blood cells and blood culture was negative. Urinary toxicology screen in the ER was positive for cannabis and positive for opioids, and positive for benzodiazepines. CT scan showed no intracranial abnormalities. EEG was normal.

As he regained consciousness and was able to breathe on his own, the endotracheal tube was removed. The Applicant indicated that, against medical advice, he wished to go home. It was explained to him that the cause of his loss of consciousness had not been determined, but that it could be cardiac and therefore life threatening. The risks were explained to him and he stated that he would return to the ER if he felt unwell. There was no suicidal ideation or depression. He left the hospital accompanied by two members of his family. He was advised to contact his family physician as soon as possible. Because of the possibility of unsafe driving, the Ministry of Transportation was informed.

Applicant’s Evidence

The Applicant stated that he was married with two children and was employed as an auto mechanic.

On July 22, 2012, he was in the United States for a baseball game with a friend. He had a meal of oysters and some beer and developed diarrhea. He went to a clinic and was advised to take pepto bismol. He stated that he has never been to a detox clinic.

On August 15, he went to his family physician after work and was given a prescription for Percocet (Oxycodone) for shoulder pain. He has been a patient of Dr. H. for ten years. He has taken Percocet for pain for one to one and a half years. He took two Percocet on August 15 and had a few drinks.

He stated that a friend gave him some non-prescription pain killer. He went home and felt dizzy. He went to shower and collapsed and woke up in the ER. He stated that he does not know why the ER physician’s record refers to him going to a detox centre. He stated that he uses marijuana “once in a blue moon”.

He decided to leave the hospital against medical advice because he felt OK. He saw Dr. H. later and was told that his blood pressure was normal and that there was no sign of cardiac problem. He has not seen Dr. H. since the Substance Abuse Assessment. He did not declare his use of marijuana to Dr. F.

ISSUES

Should the decision of the Registrar to suspend the Applicant’s licence be confirmed, modified or set aside?

Is the Applicant 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?

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.

Section 47(1) states:

Subject to section 47.1, the Registrar may suspend or cancel,

(b) a driver’s licence; …

on the grounds of,

(d) misconduct for which the holder is responsible, directly or indirectly, related to the operation or driving of a motor vehicle;

(e) conviction of the holder for an offence referred to in subsection 210(1) or (2);

(f) the Registrar having reason to believe, having regard to the safety record of the holder or of a person related to the holder, and any other information that the Registrar considers relevant, that the holder will not operate a commercial motor vehicle safely or in accordance with this Act, the regulations and other laws relating to highway safety; or

(g) any other sufficient reason not referred to in clause (d), (e) or (f).

Section 50 of the Act 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

The Respondent, in submissions, stated that the only medical records produced by the Applicant are the report by Dr.H., the ER Report including the lab report showing positive for cannabis, benzodiazepine and opioids, the Substance Abuse Assessment form and the GammaDynacare laboratory report showing positive for oxycodone.

A cause for the loss of consciousness has not been determined and the hospital was unable to complete the investigation for a cause due to the Applicant leaving against medical advice.

There is no record from the clinic attended by the Applicant in the United States and no corroborating evidence of his attendance at a clinic.

Because of the many unanswered questions, the Registrar’s submission is that the suspension should be confirmed.

Counsel for the Applicant, in his submissions, notes that Dr. H. did not attend the Applicant personally and his Discharge Summary was based in part on the ER record, which has several significant errors.

The Registrar requested information on the Fentanyl referred to in the ER report and this has been resolved by Dr. H.’s evidence that Fentanyl is used for intubation. There is no record of drug abuse according to the family physician who completed the Substance Abuse Assessment form.

Since the Applicant’s attendance at a clinic outside Canada it is not possible to summon the clinic for a report.

The “Reasons for Appeal” and written submission to the Registrar set out the Applicant’s case for reinstatement.

The Tribunal finds that the Registrar was justified in issuing a suspension of the Applicant’s driving privilege under section 47(1) of the Act upon receipt of a Medical Condition report in compliance with section 203 of the Act, stating that the Applicant suffered from Drug Dependence, possible Drug Related Seizure, and Blackout or Loss of Consciousness or Awareness.

Events preceding the Applicant’s loss of consciousness are somewhat unclear. The ER record submitted to the Tribunal is under dispute as to the accuracy of information contained therein and conclusions drawn by the Emergency Room physician. The Tribunal has not been provided with the record of the Emergency Services responding to the collapse in the home that led to his admission to the Emergency Room. The Emergency Room physician was not called to give evidence and the only hospital medical evidence was given by a physician who did not attend the Applicant.

The Tribunal is unable to determine the source of much disputed information in the ER record because of the limited information provided.

There is no evidence of drug dependence according to the family physician who has known the Applicant for ten years. Apparently the use of marijuana acknowledged by the Applicant was not known to the physician.

The report of drug dependence by the physician who completed the Medical Condition Report has not been proven. The urine analysis conducted at the ER indicated only the presence of prescribed drugs plus cannaboids. The later drug screen in October indicated only the presence of Oxycontin, prescribed by the Applicant’s physician and, from that physician’s report, the Tribunal concludes that the Applicant does not have a drug dependency or addiction.

The Tribunal finds that the Applicant is not 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.

DECISION

Upon the application by the Applicant to appeal the decision dated September 12, 2012 of the Registrar to suspend his driver’s licence pursuant to Section 47(1) of the Act, and having considered the evidence filed with the Tribunal, and the submissions of the Registrar 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.

LICENCE APPEAL TRIBUNAL

KEVIN FLYNN, Presiding Member

DAVID GREGORY FLUDE, Vice-Chair

RELEASED: January 28, 2013