Licence Tribunal

Appeal d'appel en

Tribunal matière de permis

DATE:

2013-01-25

FILE:

7820/MED

CASE NAME:

7820 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 32(5) of that Act - to Downgrade a Licence Downgrade.

Applicant

Applicant

-and-

Registrar of Motor Vehicles

Respondent

REASONS FOR DECISION AND ORDER

ADJUDICATORS:

Kevin Flynn, MD, Member and Panel Chair

Gregory Flude, Vice-Chair

APPEARANCES:

For the Applicant:

Joseph Dallal, Counsel

For the Respondent:

Kyle M. Biel, Agent

Heard in Thorold

January 16, 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 32(5)(b)(1) of the Highway Traffic Act, R.S.O. 1990, c. H.8 (the “Act”).

FACTS

The Resgristrar’’s Case

On February 7, 2011, an unsolicited Medical Condition Report was completed at a general hospital by a physician, Dr. A. in compliance with section 203 of the Act.

The report, based on an examination of the Applicant on February 7, 2011, stated the condition as:

Seizure(s)-Central

First time seizure, will see neurologist.

Patient is aware of this report

The Registrar informed the Applicant by letter dated February 8, 2011 that it had been decided to suspend his driving privilege under section 47(1).

A letter from a neurologist, Dr. C. was received on June 6, 2011.

On February 2^nd he experienced an apparent generalized motor seizure. He has no prior history of seizures and no abnormality was noted on examination. Subsequent EEG in the alert and sleep-deprived states was normal. Imaging studies indicated the presence of small venous angiomas. He was placed on Dilantin 300 mgs with no adverse effects and no further activity suggesting seizures.

(Applicant) has had a single seizure event. The only finding was of venous angiomas on imaging studies. He is considered a low risk candidate for further seizures although with added protection with Dilantin. From a neurological viewpoint he should be able to safely operate a motor vehicle.

On June 27, 2011 the Registrar informed the Applicant that he was approved for a Class ”G” licence and that his case would be reviewed further to determine whether he meets the medical standard for a Class “A” licence (commercial).

On July 29. 2011, he was informed that he no longer met the standards for a commercial licence. To be considered for a commercial licence a report from his treating physician was required confirming that he has remained seizure free on or off medication for a period of five years. This decision followed upon a recommendation by the Ministry’s Medical Advisory Committee. The reason given was that venous angiomas constitute a seizure focus and are known to cause seizures or hemorrhage.

The Ministry received an up- to- date letter from Dr. C. on September 21^st, 2012 stating:

Date of last episode: February 7, 2011

Investigation results: EEG normal in the alert and sleep-deprived states

Residual deficit or other disqualifying medical concerns: Nil

(Applicant) has had a single seizure with no clinical evidence to suggest that his seizure will be recurrent. No seizure focus has been found on electrophysiolical testing. He has been put on Dilantin 300 mgs daily as a precaution. The decision to negate his class A licence seems unreasonable as he does not have the criteria for a seizure disorder.

The Medical Advisory Committee reviewed the letter from Dr. C. and recommended that the suspension should remain. Their reasons were as follows:

Driver had a tonic clonic seizure on February 7, 2011. Driver further noted to have had a concussion 2 years earlier (2009). Dr. C. states in his report of June 2, 2012 normal EEG alert and sleep-deprived states and small venous angioma presents on imaging studies. CT report of 7/2/11 notes ‘multiple partially calcified lesions in the right temporal lobe, left lentiform nucleus and left frontal lobe, previously documented as multiple cavernous malformations. (MRI report of 5/6/09 referred to is not on file). This report identifies significant focus for seizure particularly in temporal and frontal lobe, irrespective of normal EEG. MAC does not concur with Dr. C. in this matter. Driver continues to remain at risk for seizure. Indeed epilepsy cannot be ruled out.

The Registrar informed the Applicant on January 14, 2013 that it had been decided to continue the suspension of his Class “A” licence. In order to be considered for reinstatement, he must arrange for a letter from his treating physician or specialist that he has remained seizure free for a period of five years, with confirmation of compliance with recommended treatment if prescribed and insight into his condition.

The Applicant’s Case

The Applicant is a truck driver, age 55 at the time of the occurrence. He had been driving trucks for two years, both short haul and long haul. He had no medical problems and did not abuse alcohol. He was employed by a company with about 15 employees.

On the evening prior to the occurrence he had a normal night’s sleep. On February 7, 2011, he was using a torque wrench in an enclosed space at work. He was dressed in five layers of clothing and there were strong paint fumes from the paint booth nearby. A large capacity fan extracted fumes from the paint area into the area where he was working. He felt hot and sweaty and apparently passed out and woke up in the ambulance. He was taken to the local Emergency Room where he was examined by a nurse and a doctor. His ER record states that he had a witnessed seizure that was described as generalised, tonic-clonic and he was combative following this when the ambulance arrived. He did not bite his tongue and was not incontinent. He had nausea and vomiting following the seizure. He stated that neither the WSIB or Ministry of Labour were involved.

He stated that he had no past history of seizures, but in 2009 he fell and struck his head but was not unconscious. He had an MRI scan at that time. He was seen by a neurologist who was aware that he was a truck driver. Calcified venous angiomas were reported. The Tribunal did not receive a copy of that report.

CT and MRI scans in February 2011 were normal for intracranial hemorrhage The MRI showed multiple partially calcified cavernous malformations, unchanged from 2009. He continued to see Dr. C. after the event, in March, April and June 2011, and March and August 2012. Dr C. prescribed Dilantin 300 mgs daily in April 2011 but after the Applicant ran out of medication he did not take Dilantin because he was not driving. In August 2012, he saw Dr. C. who prescribed Dilantin again but he did not fill the prescription. He states that Dr. C. did not order that he must not stop Dilantin. He states that he did not inform Dr. C. that he was not taking Dilantin. He has not seen Dr. C. since August 2012. A diagnosis of epilepsy was not made by either neurologist in 2009 or 2011.

Upon being informed that he failed to qualify for a Class “A” licence, he decided to appeal and retained legal counsel.

Counsel for the Applicant wrote to the Registrar on May 5, 2012 claiming that the CCMTA Guideline 6.3.1 under “Epilepsy” was misapplied and that Guideline 6.3.2 under “Solitary Seizure” should be used. He wrote:

The term epilepsy should be used in a person who has repeated episodes of a seizure disorder over a long time which is not the case with his client. The Applicant should be reconsidered for Class “A” commercial licence since has been seizure free for over twelve months.

The Canadian Council of Motor Vehicle Administrators (CCMTA) Guideline 6.3.1 under “Epilepsy” states:

An individual who has been seizure free on or off medication for 5 years, and receives a favourable report from their usual treating physician and/or neurologist may operate any class of motor vehicle.

CCMTA Guideline 6.3.2 under “Solitary Seizure” states:

The individual who has suffered a single unprovoked seizure should not be considered for any class of motor vehicle until a detailed neurological assessment and EEG have been performed and are satisfactory. The individual whose seizure cannot directly be related to toxic illness can continue to drive safely provided full neurologic assessment is normal and EEG reveals no epileptiform activity. The individual may be considered for a classified (1-4) licence after 12 months if the EEG is normal and there has been no recurrence of seizure.

The Canadian Medical Association’s Guideline 10.4 states:

Individual circumstances may warrant prolonging or reducing the time period suggested.

The Canadian Medical Association’s Guideline 10.4.1 states:

If a complete neurological evaluation, including waking and sleep EEG and appropriate neurologic imaging, preferably MRI, does not suggest a diagnosis of epilepsy or some other condition that precludes driving, it is safe to recommend a return to commercial driving after the patient has been seizure free for 12 months.

We request that (Applicant) be considered for his Class “A” licence since there has been no sign of epileptiform activity and he has been seizure free for 15 months. He has no prior history of seizures. He has not been diagnosed with epilepsy and the neurologist, Dr. C. has confirmed in a letter dated June 2, 2011 that he should be able to safely operate a motor vehicle. The venous angiomas do not preclude him from driving a motor vehicle.

ISSUES

Should the decision of the Registrar to suspend the Applicant’s licence be confirmed, 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 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 relies on the following:

1. The unsolicited report of seizure on February 7, 2011 by a physician in compliance with section 203 of the Act. A neurologist considered environmental factors that may have triggered a seizure and prescribed Dilantin.
2. Examination by MRI scan showed the presence of multiple lesions in the left side of the brain. The Applicant had a head injury in 2009 involving the left side of his head.
3. The lesions were identified as venous angiomas which the Ministry’s Medical Advisory Committee (the “M.A.C.”) states can be associated with seizures or haemorrhage.
4. The M.A.C. has considered the letter by Dr. C. recommending reinstatement and does not agree that the Applicant is safe to be reinstated to Class “A” licence until he has evidence showing that he has been seizure free for a period of five years.
5. The Applicant chose to discontinue Dilantin and is at higher risk of another seizure.

Counsel for the Applicant relies on the absence of a diagnosis of epilepsy. According to the CCMTA Chapter 17.1 pp 240, 241:

Seizures may occur in people who do not have epilepsy. These non-epileptic seizures are often referred to a provoked seizures. Some are caused by transient factors with no structural brain abnormality such as:

• fever

• low blood sugar

• electrolyte imbalance

• head trauma

• meningitis

• simple fainting, and

• alcohol or drug toxicity or withdrawal

Provoked seizures are not epilepsy, and they resolve after the provoking factor has resolved or stabilised.

Epilepsy refers to a condition characterised by recurrent (at least two) seizures.

The issue is not that there is risk of seizure, but the application by the ministry of the CCMTA Guideline 6.3.1 that refers to a five year period seizure free on or off medication before reinstatement in cases of epilepsy whereas Guideline 6.3.2 under “solitary seizure” states that:

The individual who has suffered a single unprovoked seizure should not be considered for any class of motor vehicle until a detailed neurological assessment and EEG have been performed and are satisfactory.

The individual may be considered for a classified (1-4) licence after 12 months if the EEG is normal and there has been no recurrence of seizure.

Counsel submits that the Applicant’s neurologist, Dr. C. has reported that the EEGs were normal in the alert and sleep deprived states and imaging studies in 2009 indicated the presence of small venous angiomas with no evidence of intracranial trauma. Imaging studies in 2011 showed no interval change and neurological examination was normal.

The Applicant has been seizure free for more than twelve months.

The Tribunal finds that the Registrar was justified in suspending the Applicant’s driving privilege on February 8, 2011 upon receiving a Medical Condition Report of seizure(s), under section 47(1) of the Act. This suspension was reinstated to Class “G” on July 27, 2011 upon receiving a medical report of a solitary seizure from a neurologist. The Applicant’s Class “A” licence was downgraded on the recommendation of the Ministry’s Medical Advisory Committee because of the finding of venous angiomas in the MRI scan of the brain. M.A.C considers that venous angiomas constitute a risk of seizure.

The neurologist who examined the Applicant identified the condition as a solitary seizure and stated in his report on June 6, 2011:

He is considered a low risk candidate for further seizures although with added protection with Dilantin. From a neurological viewpoint he should be able to safely operate a motor vehicle.

The finding of small venous angiomas in the Applcant’s MRI in 2011 showed no change from a previous MRI conducted in 2009. Dr. C. was aware of this when he prepared his report in June 2011.

The Tribunal finds that CCMTA Guideline 6.3.2 should apply to a case of a solitary seizure.

The Tribunal finds that it is reasonable to attribute the seizure to a combination of the five layers of clothing worn by the Applicant on February 7, 2011, the atmosphere in which he was working, namely heavy paint fumes and even the possibility of carbon monoxide toxicity, even though according to evidence given, the occurrence was not brought to the attention of WSIB or the Ministry of Labour.

The Applicant had a solitary seizure and has been seizure free for almost twenty- four months. The venous angiomas have not shown any change since 2009 and since partial calcification was also noted in 2009 the angiomas had very likely been present for a significant number of years prior to 2009 without resulting in seizure. The Applicant is entitled to place greater weight on the opinion of the neurologist Dr. C. who examined the Applicant as opposed to the M.A.C. neurologist who did not examine him. Dr C. in a letter to the Ministry dated September 20, 2012 stated:

(Applicant) has had a single seizure with no clinical evidence to suggest that his seizure will be recurrent. No seizure focus has been found on electrophysiological testing. He has been put on Dilantin 300 mgs daily as a precaution. The decision to negate his class A licence seems unreasonable as he does not have the criteria for a seizure disorder.

The revised CCMTA Guideline in the September 2012 draft edition states that the diagnosis of epilepsy should be made when there are two or more seizures. The prescription of Dilantin by Dr. C. “as a precaution” is considered by the Tribunal to be discretionary since a diagnosis of epilepsy has not been made and Dr. C. did not order the Applicant to take Dilantin.

After considering all of the evidence, the Tribunal finds that the Applicant does not 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.

DECISION

Upon the application by the Applicant to appeal the decision dated June 27, 2011 of the Registrar to downgrade his driver’s licence pursuant to Section 32(5)(b)(i) 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 M.D. Member and Panel Chair

Gregory Flude Vice-Chair

RELEASED: January 25, 2013