Licence Tribunal
Appeal d'appel en
Tribunal matière de permis
DATE:
2013-06-28
FILE:
8125/MED
CASE NAME:
8125 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
Applicant
-and-
Registrar of Motor Vehicles
Respondent
REASONS FOR DECISION AND ORDER
ADJUDICATOR:
David W. Hurst, M.D., Member
APPEARANCES:
For the Applicant:
Self-represented
For the Respondent:
Russell McKnight, Agent
Heard in Toronto:
June 19, 2013
DECISION AND REASONS
This is an appeal to the Licence Appeal Tribunal (the "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
Mr. McKnight, Agent for the Ministry of Transportation ("MTO") began with a presentation of a report of an agency known as Back on Track which had been asked by the MTO to review the Applicant's status as a driver. This report is reviewed as follows:
July 23rd, 2011 - The candidate presented as frail, shaky, bent over and using a cane to walk. An odour of alcohol was detected and he said his last use of alcohol was two nights before of about seven or eight drinks. A first saliva test failed and the second one showed a reading of .03 milligrams. It was the client's observation that this was due to alcohol still in his system from the drinking two days before. This client was advised to leave the class and that he could not drive his truck home.
He was escorted to a bus and while waiting, he disclosed that he drinks about seven to eight drinks daily and that he also takes morphine daily for spinal deterioration pain. Mention of these facts led to the comment to the client that he was a risk while driving due to the amount of alcohol that he drinks, his low body weight and that he was not eating well and taking extra pain killing medication. Explanation of the shaking was that it was due to the back problems. It may also be due to the fact that he hadn't had any alcohol for the last 24 hours. This client was advised to contact the head office at BOT and they advised him that he had failed the exam.
On September 7th, 2011, MTO wrote to the Applicant stating that his driving privilege should be reviewed for medical reasons. They asked him to arrange for an enclosed Substance Abuse Assessment Form to be completed by his treating physician. This letter noted that if his physician confirmed the diagnosis of alcohol dependence, the Ministry will require confirmation that he has remained abstinent from alcohol for a period of one year. The usual note about reducing this one year period was given with request for biochemical markers (MCV, GGT, AST & ALT).
As well the MTO asked for an up to date review of other medical issues such as tremors, spinal pain and physical condition.
On October 28th, 2011, MTO received a completed Substance Abuse Assessment Form regarding the Applicant in which the health history disclosed the presence of liver disease with recent hospitalization. As part of a neurological exam, a written note stated that the Applicant cannot walk on a straight line. Blood work showed that the MCV was slightly elevated while the GGT was markedly elevated at 133 (normal range being less than 60).
The Applicant admitted to frequent use of alcohol. A note about medication mentioned morphine SR 60mg. which appears to be taken more than once daily. The audit section of this report regarding alcohol use disorders showed that there were no serious problems and that in fact his score was 0. A written note stated that the Applicant claimed that he has no craving for alcohol and is not drinking at all. This note stated that he has advanced cirrhosis of the liver. The doctor had recommended a Drive Able Assessment and "I don't think he will be safe on the road". Diagnosis was dependence. The note was signed by Dr. V. on October 26th, 2011.
On January 5, 2012, the Ministry wrote to the Applicant stating that the reports they received showed that he has a condition that affects his ability to drive safely. The reported condition was alcohol abuse/dependence. In this standard letter, they listed the requirements for reinstatement.
On February 1, 2013, the Ministry received a letter from Dr. V. with no date and the date given here was provided by the Applicant to the best of his recall. The doctor's letter, quoted here in full, has caused some confusion for the Tribunal:
"I am writing with notes of my previous letter in support of the Applicant. He has not been drinking any alcohol and consecutive laboratory tests confirm this. I also confirm that he has abstained for one year. A copy of the results are included for you pursual. I support his application for reinstatement of his driver's licence.
Clinical examination reveals that he has no tremor. He uses a cane to walk. He suffers from cirrhosis of the liver. I have talked to him about driving. In view of his neuromuscular coordination I would recommend that he avoid driving at night time and avoid highway driving at least initially for a period of one year".
Blood work was appended to Dr. V's letter:
Ethyl alcohol none detected. MCV, MCH both in the normal range. Alkaline phosphatase, GGT, AST and ALT all within the normal range.
On March 4, 2013, the Ministry wrote again to the Applicant stating that further information must be provided:
Reference to your neuromuscular coordination
Reference to severity of impairment and details of symptoms (if any), treatment, current status, confirmation that the condition is controlled.
Details of residual deficits (i.e. cognitive, etc.) and other disqualifying medical concerns.
In this letter, the Ministry indicated that:
They would review the information provided, against the national medical standards
Determine whether his licence can be reinstated
Send you a letter in approximately 30 business days with the outcome of their review.
On March 8, 2013, the MTO received a letter from Dr. V. which stated that the Applicant suffers from back pain and he has been using the cane due to the back pain. He does not have any neuromuscular coordination issues. His back pain is of chronic nature and he is not taking any prescription medications for his back pain. He does not suffer from any residual or cognitive deficits which would be a contraindication to driving.
On April 5, 2013, the MTO wrote to the Applicant stating that to determine whether he can safely operate a Class "G" vehicle they would require a satisfactory driving evaluation from a rehabilitation centre and that an appointment can be arranged by his physician.
Mr. McKnight then attached to his presentation a certified copy of the Applicant's driving record indicating two offences with a blood alcohol in the BAC warning range. He was then suspended for medical reasons on January 15th, 2012.
Mr. McKnight also appended pertinent sections of the Ontario Highway Traffic Act. Included were Section 203 (1),(2),(3), and, as well, he entered Ontario Regulation 340/94 section 14(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 any extent likely to significantly interfere with his or her ability to drive a motor vehicle safely.
THE APPLICANT'S CASE
The Applicant began by questioning the first letter by Dr. V. which he said should be dated February 1st, 2013 The Applicant's impression was that Dr. V. indicated in this letter that he had a neuromuscular problem. But as the Tribunal notes and has quoted, it was described as neuromuscular coordination with limits of his driving being recommended. (The Tribunal suggests that this only makes sense if the two letters "in"- were added in front of coordination and in fact he would then be making sense by saying neuromuscular in-coordination. This matter still remains confusing). The Applicant then went on to say that in the letter a month later he had no neuromuscular in-coordination. This, in fact, is confirmed in Dr. V.'s letter of March 8th.
The Applicant referred to the statement by Dr. V. in the Substance Abuse review that "cannot walk on a straight line". At this point the Applicant got up and demonstrated his ability to walk which showed only some limitation with limping due to his low back disorder and that he sometimes uses a cane.
The Applicant then addressed the matter of his drinking habits and MTO.'s request for more documentation. He affirmed that he has had no alcohol whatsoever since September of 2011. He then stated that Dr. V. had sabotaged his position ever since he consulted with him in January 2013. There appears to have been some lack of communication as to whether the liver function tests were requested. At a later date, Dr. V. told the Applicant that all of his blood tests were in the normal range. The Applicant complained that the report from Dr. V. did not state that he was abstinent when in fact he was. The Applicant did underline the fact that Dr. V. had recorded that he was abstinent in the February 1letter. Again, the Applicant emphasized that he limps simply because of his lower back pain and that this in no way affects his driving ability and he very much wants his driving privilege restored.
In Mr. McKnight's cross examination, he referred to the February 1, 2013 letter observing that Dr. V. recommended the Applicant to be allowed to drive if he avoided driving at night time or on major highways for a period of a year. The Agent pointed out that no such licence is permitted by law. He gave special emphases to the Substance Abuse report which gave Dr. V.'s recommendation that the Applicant have a Drive Able Assessment and didn't think he will be safe on the road. The Applicant emphatically told Mr. McKnight, Dr. V. is not concerned about his ability to drive and that he did not take the test.
MR. McKNIGHT'S SUMMARY
Mr. McKnight noted that the MTO. is firm in its request that the Applicant take the Drive Able exam, (the advanced cirrhosis mentioned by his doctor is not a problem for the Ministry at present). Mr. McKnight also stressed the importance of the comment in the medical report that the Applicant cannot walk a straight line. The Agent observed that the Applicant is carefully picking out only the good things in the various Medical Reports, but emphasizes that it is clear that the doctor has serious concerns about the Applicant's ability to drive safely. Mr. McKnight also observed that all of the medical information has come from one doctor. He closed by stating that the Ministry has made it mandatory that the Applicant take the Drive Able test and that their decision be confirmed.
The Applicant's final statement is that the doctor clearly was intent on undermining and/or delaying the possibility that his driving privilege be reinstated noting:
Failure to ask for the AST test
Not stating that he was abstinent
The doctor has obviously contradicted himself in his letters
ISSUES
Should the decision of the Registrar to suspend the Applicant's licence be confirmed, modified or set aside?
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
Mr. McKnight informed this Tribunal the M.T.O. questioned an appraisal from Back on Track, an Addiction Assessment and Referral Centre. This review focussed on medical problems including substance abuse (alcohol) and in fact indicated that the Applicant was drinking seven to eight drinks a day, often using morphine for his chronic back pain. Shaking was noted at that time and was attributed by the Applicant to the fact that he hadn't had a drink in a couple of days. The MTO. was, and remains, very concerned about a statement in this report that the Applicant "cannot walk on a straight line".
Since that date, the Applicant has subsequently ceased using alcohol for approximately the last 18 months and probably inadvertently has complied with standard dictate of the M.T.O. that he remain abstinent for one year. Concurrently a series of liver function tests has been done which are all within normal limits despite the fact that he is known to have significant cirrhosis of the liver. The MTO's chief concern now is the statement by Dr. V. that he have a Drive Able test and the Ministry is determined that this be done.
The Applicant has complied with the standard request of the Ministry that he be abstinent for a minimal of 12 months and was able to document this with laboratory tests and clinical evaluations. The matter of his cirrhosis has not been causing any concern for the Ministry. Interestingly, despite this condition his liver function tests are within the normal range. Indeed, the Applicant has suggested his liver function may be recovering since he stopped drinking. The Applicant has indicated in his submissions there was conflict with Dr. V. and maintained that he is quite capable of driving. His limitation is his difficulty getting around because of his chronic low back disorder. He demonstrated to the Tribunal at the hearing that he is quite capable of walking, but with a limp and maintains this in no way impairs his ability to drive a car.
The negative report from the Back on Track examination presented by a non-physician may have been coloured by the fact that at that time the Applicant indeed was indulging in significant excessive drinking. Not long after that he became abstinent.
The Ministry now has little or no concern about the previous alcohol abuse/dependency and the ongoing story of his cirrhosis of the liver, which now appears to be subsiding. All that remains is the adverse comments by one doctor indicating that he should have a driving test. One must indeed weigh the evidence on the balance of probabilities; the Tribunal finds that the Applicant is not suffering from a condition which is likely to significantly interfere with his ability to operate a motor vehicle safely. He is a chronic alcoholic with cirrhosis, but has already complied with the Ministry's strictures regarding such matters.
DECISION
Upon the application by the Applicant to appeal the decision dated January 5, 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
David W. Hurst, M.D., Member
RELEASED: June 28, 2013