8337 v. Registrar of Motor Vehicles, 2013 CanLII 69335

Licence Tribunal

Appeal d'appel en

Tribunal matière de permis

DATE:

2013-10-24

FILE:

8337/MED

CASE NAME:

8337 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:

Kevin Flynn, M.D., Member

APPEARANCES:

For the Applicant:

Self-represented

For the Respondent:

Russell McKnight, Agent

Heard in Sault Ste Marie

October 17, 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

An unsolicited Medical Condition Report was completed in compliance with section 203 of the Act on May 10, 2012 by Dr. S. family physician to the Applicant for 6 years, based on examination on February 16, 2012.

Seizure(s)-Alcohol related

No medication

EEG normal

CT head normal

MRI head-mild chronic microangiopathy

Patient is aware of this report

The Registrar informed the Applicant on May 30, 2012 that his driving privilege was suspended under section 47(1) of the Act.

In order to be considered for reinstatement he was requested to take the Notice of Suspension to his physician and to have a Substance Abuse Assessment completed and forwarded to the Medical Review Section. If a diagnosis of alcohol dependence or alcohol withdrawal seizure was confirmed he must provide confirmation that he has remained seizure free and abstinent from alcohol for a period of one year. This period may be reduced if his physician confirms that he has successfully completed an alcohol treatment program and is supportive of his driving privilege.

Internist Dr. J. completed the Substance Abuse Assessment on June 7, 2012.

Hospitalised February 4, 2012 for seizure activity

No history of previous seizure

No other hospitalization in last 12 months.

Physical assessment and laboratory results were normal.

First drink at age 18 and denies regular use. Frequency once a month 4-5 drinks and none in the last 3 months.

Longest period of abstinence in last 3 years=6 months.

No drug use.

Alcohol Use Disorders Identification Test (AUDIT): Scored 0.

No diagnosis given for alcohol disorder and no treatment facility or 12 Step Program.

Diagnosis: Seizure –associated with binge episode (5-6 drinks). This behaviour is not usual

Patient was advised to reduce drinking on February 18, 2012

A letter from an Internist, Dr. J. Dated May 9, 2012 suggested that the Applicant may be underestimating the amount of alcohol used on February 3, 2012. The hospital physician who attended him on admission was Dr. B. who found a blood alcohol level of 52mmol/l equals 240 mg/l of alcohol, i.e 3 times the legal limit for driving.

He described an episode of unresponsiveness with flailing of his arms and legs on the evening of February 3, 2012 and also the following morning. Serum osmolarity was 366 which is also significant for alcoholism.

CT scan and MRI were normal and an EEG a month later was normal.

The Applicant admitted to binge drinking which was confirmed by his wife. On March 20, 2012 the Applicant drank a few beers to see if it would bring on a seizure. It did not.

Dr. J. reiterated that the Applicant should abstain from alcohol entirely. He informed Dr. S. that the Ministry of Transportation had not been informed and he recommended that this should be done.

The Discharge Summary by Dr. F. (Hospital Staff Doctor) noted that the Applicant had two episodes of partial seizures on the morning of February 5, 2012 and a further episode that evening and he also advised the Applicant not to drink.

On August 15, 2012 the Registrar informed the Applicant that following a review of the reports received it had been decided that the suspension should continue and reiterated the conditions required for reinstatement, i.e. seizure free and abstinent from alcohol for a period of one year. This period may be reduced if he has successfully completed an alcohol treatment program and if the physician is supportive of reinstatement.

A Neurologist, Dr. M. wrote to the Ministry on September 30, 2012 recommending reinstatement. He described the episodes as syncopal events, not seizures and as he was free of recurrence for seven months he stated that he was safe to drive. He had received information from the Applicant that he had worked on the day in question in a hot factory environment where he was required to wear a mask but neglected to do so. He continued working and that evening had friends at the house where he consumed 7-8 beers and 1-2 glasses of wine and collapsed at the table. Following his collapse he was taken to hospital.

Dr. M. stated that in his opinion the description given suggested syncope and not epileptic seizures, likely due to the inhalation of gas at work and the alcohol consumed at home later the same day.

The Medical Advisory Committee (M.A.C.) on November 7, 2012 recommended continuation of the suspension for a period of abstinence of one year and noted that the driver had continued to drink in spite of being advised not to do so by his physicians.

The Applicant was informed of the decision to continue the suspension until confirmation of abstinence for one year.

Dr. M. wrote to the Registrar on June 6, 2013 reaffirming his opinion that the Applicant had syncopal and not epileptic events. He also stated that the Applicant was not an alcoholic as he only drank on weekends, and on the day in question about 7 or 8 drinks of beer and 1-2 glasses of wine and that he did not require an alcohol treatment program. Recent laboratory tests on June 6, 2013 showed normal biological markers.

In response MAC advised the Registrar on June 13, 2013 that there was no longer an issue with the seizures but that the alcohol binge drinking and the history of alcohol induced seizure required a period of abstinence for one year, completion of a substance abuse treatment program.

The Applicant was informed accordingly by the Registrar on August 12, 2013.

The Applicant’s Evidence

The Applicant was accompanied to the Hearing by his wife.

He stated that he works with the gas coke oven in a hot atmosphere at a foundry and that on Friday, February 3, 2012 around 11:00 a.m. he was exposed for a significant period of time to hot gases of combustion while not wearing a respirator mask; he continued working and did not seek assistance from the health office, and the incident was not reported to WSIB. He finished his shift at the usual time and went home where he consumed 7 or 8 beers and a couple of glasses of wine. He had an unwitnessed collapse in the bathroom. When he awoke almost immediately he was sweating but did not bite his tongue or lose control of his bladder. His wife stated that he had no speech changes and that he had several episodes of rolling to his right side and flailing with both arms and was gasping for air. These episodes lasted about 30 seconds.

He was taken by ambulance to the Emergency Room at about 9:00 p.m. where he was given some sedation. Similar episodes occurred in the hospital the next morning.

He stated that he has been driving since age 16 and that he regularly drinks only on weekends when his usual consumption is five or six beers on Friday and three or four on Saturday and none on Sunday. Usually he only drinks beer. He admits to binge drinking. He last drank on the weekend prior to the Hearing. He insists that the collapse was due in large part to the gas exposure the same day and that he has been assigned to other work at the plant since his return to work. He is no longer taking an anti-convulsant prescribed at the hospital as it was discontinued.

He acknowledges that a few weeks after the incident he tried a few beers to see if it would bring on a seizure. It did not.

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 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.

Section 47(1) of the Act gives the Registrar the power to suspend or cancel a driver’s licence on the ground(s) set out in section 14 (1) of the Regulation set out above.

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.

The Respondent relies on:

1. The Medical Condition Report of Alcohol Dependence completed in compliance with section 203 of the Act in May 2012 stating that the Applicant had Alcohol-related Seizures on February 3, 2012.
2. The laboratory tests performed on the evening of the seizures showed blood alcohol level of 52mmol/l equals 240 mg/l of alcohol, i.e 3 times the legal limit for driving.
3. The continued weekend drinking acknowledged by the Applicant.
4. The recommendation by the Medical Advisory Committee to the Registrar that the Applicant must submit a report by his physician that he has consistently remained abstinent from alcohol for a period of 12 months and that earlier relicensing might be considered with a report from a physician specializing in addictions medicine confirming successful completion of a substance abuse treatment program.

The Applicant relies on the recommendations by his neurologist that the seizures were caused by a combination of gas exposure at work and the excessive alcohol intake on the evening of February 3, 2012.

Also he has been seizure free since February 4, 2012 although he continues to drink only on weekends when he does not drive.

APPLICATION OF THE LAW TO FACTS

The Tribunal finds that the Applicant’s assessment of the amount of alcohol consumed on the evening of February 3, 2012 was greatly understated, as the blood alcohol level found at the hospital shortly after his admission that evening was 52 which is far in excess of the limit for driving and in the opinion of the internist who attended him, Dr.J,

Is nearing the level for acute alcohol poisoning...and

his serum osmolarity of 366 was significantly elevated.

Significantly, when asked by Dr. J. how much he had to drink on February 3, 2012, he at first said two beers and a glass of wine.

The Tribunal agrees with Dr. J. that the episodes, while not epileptic, were alcohol related seizures. There have been no seizures since February 4, 2012.

The Substance Abuse Assessment performed by the family physician, Dr. S. gave a diagnosis of

Seizure associated with binge drinking. This behaviour is not usual.

The recommendation by Dr. S. was to reduce to Low Risk Level.

The Ministry’s Glossary regarding alcohol consumption is as follows:

Binge drinking can be defined as drinking over half the recommended number of units of alcohol per week in one session. For example this would mean, for men, drinking more than 7 ounces at one time.

Low Risk Drinking Guidelines:

Men:

-no more than 14 drinks per week

-2 standard drinks in any one day

-At least one hour between drinks

The Tribunal finds that based on the blood alcohol level and the elevated osmolarity recorded at the hospital, the Applicant consumed an amount of alcohol far in excess of the amount claimed and that his collapse was due to alcohol excess and not to the gas exposure some ten hours previously.

The Tribunal finds that a diagnosis of alcohol dependence or addiction has not been confirmed by the Substance Abuse Assessment.

His neurologist, Dr. M. in his letter to the family physician, Dr. S. on September 30, 2012 stated:

I do not find that these were epileptic seizures. The description suggests syncope with some anoxic stiffening of the body, likely due to the combined factors of the gas inhalation at work and vasodilatation caused by the excess alcohol. There is no history of seizures in the past and investigations including EEG are normal. He does not require anticonvulsant medication. I will write to the Ministry of Transportation regarding reinstatement of his driver’s licence.

On September 30, 2012 Dr. M. wrote:

He is neurologically and cognitively normal and I feel he is safe to drive.

In response to the continuation of the suspension as recommended by MAC on November 7, 2012, Dr. M. wrote:

This man is not an alcoholic; on the day in question he had had friends over for a gathering and therefore drank more than usual – 7 or 8 beers and 1 or 2 glasses of wine over the course of the evening.

He does not require an alcohol treatment program.

Weighing the evidence on a balance of probabilities, the Tribunal finds the Applicant is not suffering from a condition which is likely to significantly interfere with his ability to operate a motor vehicle safely.

DECISION

Upon the application by the Applicant to appeal the decision effective August 12, 2013 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, M.D., Member

Released: October 24, 2013