8453 v. Registrar of Motor Vehicles, 2013 CanLII 83559

Licence Tribunal

Appeal d'appel en

Tribunal matière de permis

DATE :

2013-12-19

8453/MED

8453 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

-and-

Registrar of Motor Vehicles

Respondent

REASONS FOR DECISION AND ORDER

ADJUDICATOR:

D. Ian Turnbull, MD

APPEARANCES:

For the Applicant:

Self-Represented

For the Respondent:

Kyle Biel, Agent

Heard in St. Catharines:

December 9, 2013

DECISIONS AND REASONS

This is an appeal to the Licence Appeal Tribunal (The "Tribunal") by the Applicant respecting a decision by 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") under Section 50(1) of the Highway Traffic Act.

PRELIMINARY MATTERS

When entering Exhibits, the Applicant stated he did not have a copy of the tabbed submission of the Registrar (tab 1-18) dated November 26, 2013.

The Registrar's agent provided a copy of the courier's "tracking details" indicating delivery "at the door" November 28, 2013 to the address provided on the Applicant's Notice of Appeal (Exhibit 2).

The Applicant wished the hearing to proceed. A recess was called and the Applicant was provided with a copy of the Registrar's tabbed submission. The Applicant reviewed the document, and stated that much of the material was included in his Notice of Appeal.

The Applicant and his son both agreed to proceed with the hearing; and the Registrar's tabbed submission of November 26, 2013 was entered as Exhibit 3.

FACTS

The 83-year-old Applicant was taken to a local hospital following a witnessed syncopal episode May 16, 2012.

An Emergency Room ( ER) physician sent a Medical Condition Report (MCR) (Exhibit 3 - tab 1) dated May 16, 2012 pursuant to Section 203 of the Highway Traffic Act (HTA). The physician checked off "Heart disease with Pre Syncope/Syncope Arrhythmia", circling "Syncope" and adding "Aortic Stenosis".

The Registrar suspended the Applicant's driving privileges in a letter dated May 31, 2012 (Exhibit 3 – tab 2), and requested the following medical information.

description of any presyncope/syncope history, cause and confirmation there has been no further episode.
date of last episode(s)
results of all investigations conducted
a diagnosis
treatment
current status
confirmation that the condition is controlled
details of residual deficits and other disqualifying medical concerns, if any

A letter dated July 10, 2012 (Exhibit 3 – tab 6) from his family physician states "the Applicant is suffering from Calcified Aortic Stenosis. He fainted one time and he has poor prognosis without the aortic valve surgery. It could be sudden death. Til now the patient refuses to go to surgery."

In a letter dated August 23, 2012 (Exhibit 3 – tab 8), the Registrar continued the Applicant's driver's licence suspension and again asked the Applicant to supply medical information to the Medical Review Section (MRS).

The Registrar received a letter dated September 6, 2012 (Exhibit 3 – tab 13b) from the Applicant's family doctor saying – "the Applicant's heart condition is stable. He hasn't had any fainting episodes since May 16, 2012."

In a letter dated September 20, 2012 (Exhibit 3 – tab 16), in addition to the medical information previously requested, the Registrar asked for "an up-to-date report referencing your Aortic Valve from a Cardiac Surgeon as requested by your treating physician" to be sent to the Medical Review Section (MRS).

The Applicant submitted a 20 page Notice of Appeal dated November 12, 2013 (Exhibit 2), and the Tribunal arranged an in person hearing for December 9, 2013.

ISSUES

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

In particular:

Does the Applicant suffer from a mental, emotional, nervous or physical disability 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.

APPLICATION OF THE LAW TO FACTS

The Registrar has made the case that the Applicant's driving privileges should remain suspended. Until the medical information repeatedly requested by the Registrar has been supplied by the Applicant to the MRS, the Registrar has no choice but to continue the suspension of the Applicant's driving privileges.

The Registrar refers to "Determining Driving Fitness in Canada" (Exhibit 3 – tab 18), published by the Canadian Council of Motor Transport Administrators (CCMTA), and highlights Section 3.6.35 on page 109. The STANDARD is:

Medically treated valvular heart disease – non-commercial drivers

In the Applicant's case, the standard applies to aortic stenosis, stating non-commercial drivers are eligible for a licence if:

they are assessed as New York Heart Association (NYHA) Class I or II and
they have no episodes of impaired level of consciousness

His cardiologist states (Exhibit 3 – tab 15) the Applicant is Class I – "Cardiac disease, but no symptoms or limitations in ordinary physical activity."

The second part of the Standard is important because the Applicant had an episode of impaired level of consciousness on May 12, 2012 – that is a fact; the cause is debatable.

The hospital ER physician and three cardiologists believe the fainting episode of May 16, 2012 is linked to the Applicant's calcific aortic stenosis and the Applicant disagrees. This matter may be unresolved, reasonable arguments can support each conflicting viewpoint.

In addition to CCMTA Standard 3.6.35, the Registrar relies on consultations from three cardiologists who have seen the Applicant since the fainting episode of May 16, 2012.

Cardiologist A (who had initially seen the Applicant on March 23, 2009) sent a letter dated January 17, 2013 to the Applicant's family doctor saying the Applicant's "only concern" is that his driver's licence has been suspended."

Cardiologist A said the 2009 echocardiogram (ECHO) showed severe calcific aortic stenosis. Aortic valve replacement (which had previously been discussed with cardiologists B and C) was reviewed. The physician stated there "is no point in him going for an angiogram if he is not willing to have the surgery".

Cardiologist B who attended the Applicant at the hospital on May 16, 2012 also saw the Applicant in March 2012 and August 2013.

Incidentally, Cardiologist B also submitted a MCR dated May 16, 2012 (Exhibit 3-tab 3) and in the "Optional" area stated "there is a critical calcified aortic stenosis", he (the Applicant) will not accept a cardiac cause for syncope nor does he wish to consider aortic valve surgery. He (the Applicant) is a serious risk to road safety."

Cardiologist B's hospital discharge summary dated May 16, 2012 (Exhibit 2 –pp 9-12/20) stated the Applicant had "critical calcific aortic stenosis" demonstrated by a repeat echocardiogram. He explained that "with a syncopal event this drastically changed his long term outcomes with respect to his aortic valve disease", and "the Applicant was now at a significant risk for cardiac death within the next 3-5 years".

In a letter dated August 12, 2013 (Exhibit 3 – tab 15) to the Applicant's family doctor, Cardiologist B mentioned a March 2012 follow up visit with the Applicant and that another opinion had been obtained from Cardiologist C considering aortic valve replacement.

Cardiologist B states the ECHO findings have changed from an ECHO performed August 8, 2013 and the study dated May 16, 2012, the Applicant now showing "significant left ventricular dysfunction".

In Cardiologist B's "Final Impression" he states "it is of my opinion that this gentleman's risk for a cardiac event is high, and he has decompensated since his last assessment. He is at risk for sudden death".

In a letter dated June 28, 2012 (Exhibit 3 – tab 7c) Cardiologist C saw the Applicant in consultation, saying "he completely agreed with Cardiologist B's assessment and recommendations", and told the Applicant "he would not be able to drive at all unless he has his aortic valve replaced".

The Applicant believes the Registrar should restore his driving privileges for the following reasons.

The May 16, 2012 hospital ER visit followed a fall. He had felt lightheaded while mowing his lawn on a warm, sunny day, shut off the mower, sat down and fainted.

The Applicant does not associate this fainting spell with his documented aortic valve stenosis.

Laboratory results about the time of his fainting episode showed vitamin B12/iron deficiency, and the family believes this was the cause of the fainting episode. He has not had a similar episode in the 19 months since the incident, and believes his general health has improved. Because of the Applicant's good health and lack of symptoms, he believes his licence suspension was premature.

The Applicant is reluctant to have coronary angiography for evaluation of his aortic valve. He is "allergic to a lot of things", and is concerned about an anaesthetic involved in the procedure.

The Applicant states if aortic valve surgery was recommended – "if I go for the operation, I'll be done, I'm finished."

The Applicant wants his driving privileges restored because it is "stressful" to have to rely on others for trips to the grocery store, church and medical and dental appointments.

He states he only drove 2500 km last year. If his driving privileges were restored he would only drive within a 5 mile radius of home, and would agree to an annual driving assessment. He would not drive on a major highway and would agree to stop driving in 2 years. He states it is inconvenient to have had his driver's licence suspended and he wishes to regain his independence.

The September 6, 2012 letter from his family physician states "the Applicant's heart condition is stable".

The Applicant does not dispute the details of the medical evidence; "the facts are what they are!" The Applicant does disagree with the assessment of the cardiologist's clinical opinions on his risk of sudden death.

The Applicant heard from his physicians that he was at risk for sudden death because of his "critical" calcified aortic stenosis. Consulting the website of the American Heart Association (Exhibit 3 – tab 7a) he quoted a report stating "the aortic valve calculator cannot be relied upon alone in determining critical stenosis."

Seeking to quantify his risk of sudden death, the Applicant cites Appendix F in the 8th edition of the Canadian Medical Association's publication – "Determining Medical Fitness to Operate Motor Vehicles".

Appendix F is a "risk of harm" mathematical formula attempting to quantify an acceptable level of risk in patients with cardiac disease, and is derived from the 2003 Consensus meeting of the Canadian Cardiovascular Society.

The Applicant's son has "plugged in" numbers to the formula which he believes represent his father (Exhibit 2 pg 5/20). The calculation shows the Applicant's risk of sudden death for the next year is 44.6%, which produces "a risk of harm that is within acceptable norms".

The Tribunal agrees with the Registrar that the Applicant does have a condition (calcific aortic stenosis) which could have sudden unexpected consequences, including sudden death. As the Applicant has failed to provide any strong evidence to the contrary, the only reasonable conclusion is that his driving privileges remain suspended.

The Registrar is correct is suspending the Applicant's driving privileges since it has not received medical information reasonably and repeated requested from the Applicant. Rather than address the problem of critical calcific aortic stenosis, the Applicant has failed to put forth an alternate plan, so he must be recognized as a possible road hazard and should not be allowed to drive.

The Tribunal is mindful of the safety of both the Applicant and the motoring public

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:

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

DECISION:

Upon the application by the Applicant to appeal the decision dated May 31, 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 the Applicant and weighing the evidence on the basis of probabilities;

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 confirmed.

LICENCE APPEAL TRIBUNAL

D. Ian Turnbull MD, Member

RELEASED: December 19, 2013