8443 v. Registrar of Motor Vehicles, 2013 CanLII 87772

Licence Appeal Tribunal

Appeal en matière de permis

Date: 2013-12-27 File: 8443/MED Case Name: 8443 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

8443, 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: December 12, 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

Mr. McKnight opened his presentation acknowledging receipt of a Medical Condition Report dated March 26th 2013 and signed by Dr. F.H. concerning the Applicant. Boxes had been ticked for:

• Alcohol or drug abuse
• Seizure or loss of consciousness

Situation is a serious road safety risk and the patient is aware of this report. The doctor added some optional comments:

1. The patient is under active investigation for a clear diagnosis
2. The patient is co-operative and following my advice
3. The patient is trying to reduce alcohol intake

On May 24th, 2013, the M.T.O. wrote to the Applicant saying they had received a report indicating that she has a condition that affects her ability to drive safely. The reported condition was related/withdrawal seizure and went on to state that the Applicant's driving privilege had been suspended under section 47(1) of the Highway Traffic Act.

To achieve the reinstatement this letter outlined the Ministry's requirements:

• Your physician confirms a diagnosis of alcohol dependence and/or that you have experienced an alcohol withdrawal/related seizure. The Ministry will require confirmation that you have remained seizure free and abstinent from alcohol for a period of one year. This period may be reduced to six months if your physician confirms that you have fully completed an alcohol treatment program and is supportive of your driving privilege.
• The enclosed form is to be completed in full and all questions answered (this was a Substance Abuse Assessment form).

The Agent then entered a report of a CT scan of the head dated 06/02/13 which indicated as follows:

• No acute disease. If the patient has persistent symptoms, MRI examination is suggested. The report was signed by Dr. K.J.

Next was an EEG report dated February 7th, 2013 – medications at that time were listed as:

1. Ativan
2. Mirtazapine
3. Atenolol
4. Accuretic

The reason given for the study: the patient has a history of "coughing fits", unable to breathe, her face becomes red, eyes roll back and the patient starts shaking for three to six minutes. The report stated this is a normal adult awake EEG, signed by Dr. S.K.

The Agent's next entry was a duplex carotid Doppler ultrasound: this study was two views of the chest and a view of the neck. The findings were considered to be normal. A chest X-Ray showed lung base pneumonia and/or fibrosis and was signed by Dr. J.H.

The Agent's next entry was a lengthy consultation report by Dr. G.S. dated May 2nd, 2013. This report is condensed as follows.

The patient is 56 years old. Dr. F. H.'s referring note described a history of alcohol abuse, elevated GGT, and fatty liver. He described her as alcoholic, consuming 20oz of alcohol daily for at least 11 years. She quit drinking and her last drink was March 27th, 2013. She may have had two or three drinks since then. She has not attended AA or gone to counselling. She may have been consuming several drinks a day for at least 29 years. A consumption of vodka and Pepsi (up to 6 cans of Pepsi a day) has been discontinued. Since that time she has lost over 40lbs but is still overweight. She continues to smoke 15 cigarettes per day.

She had suffered some spells of loss of consciousness and in the last one to two weeks without alcohol consumption, but previously probably due to alcohol. She has suffered occasional choking episodes of coughing and retching dysphagia in the upper chest area.

Past medical history: angioplasty with three stents placed in 2003, abdominal hysterectomy, 15 – 20 years ago, ventral hernia repair ligation.

Medications: Atenolol 50mg, ASA 81, Accuretic 20mg, Crestor 30mg, Allopurinol 300mg, Mirtazapine 30mg for the last 10 – 15 years, Lorazepam 1mg H.S., Symbicort inhaler, two puffs B.I.D.P.R.N.

Family history: Mother died of heart disease at age of 55, father died of heart disease at 60, brother died of probable lung disease and heart failure at 79, sisters in their early 60's are healthy.

Patient diagnosed with celiac disease as a child but not certain if she follows a gluten free diet. Her father's aunt died of cirrhosis.

Examination: she is 189lbs, height 5'1.5" B/P 140/70, Obesity, high colour, Telangiectasis (facial veins) and a few spider nevi (small veins in the face) palmar erythema (heightened red colour of palms found in cirrhotics). Her liver was severely enlarged, 15cm below the right rib cage suggesting that she is probably cirrhotic.

Blood work March 7th, 2013 – elevated MCV, normal creatinine, bilirubin 17, mild elevation alkaline phosphatase with normal ALT, GGT markedly elevated at 482.

Assessment: alcoholic cirrhosis and fatty liver. Continued cessation of alcohol recommended and should continue her current course of abstinence. She needs to stop smoking with suspected chronic bronchitis and a history of coronary disease. Colonoscopy done five years ago and should be required now. Gastroscopy indicated (study of the oesophagus and stomach) to rule out the cause of dysphagia (difficulty swallowing). Ultrasound recommended every six months to screen for hepatoma (liver tumour).

The Agent's next entry was a consultation note from Dr. S.B. Pertinent comments are extracted as follows: 58 years old, right handed female for neurologic consultation on May 6th, 2013 and seen today with seizures which began in August 2½ years ago. Both her sister and her daughter had seen these events where she suddenly becomes unaware, turns bright red and purple with seizure activity. She is out of touch with the environment for a half of a minute to three or four minutes at a time. The patient during these spells has noted shaking of her arms and legs. Of significance at the age of 13 she was diagnosed with a subdural hematoma and treated with drill holes on the right side of her head. CT scan and EEG are normal. She discontinued alcohol in March of 2013. She is smoking a pack of cigarettes daily.

Physical examination was normal.

Summary: No focal neurological findings. I think she does have a seizure disorder with partial complex seizures with secondary generalization. She was to be started with Topamax for treating seizures and chronic daily headaches. MRI study of the brain to be arranged. May require a sleep deprive EEG due in 8 weeks. She is not to drive until seizure free for about one year.

Mr. McKnight's next entry was a consultation note dated May 23rd, 2013 by Dr. J. H. (cardiologist).

This doctor reported to Dr. F.H. as follows:

A 57 years old woman, with an extensive history of ischemic heart disease, myocardial infarction (heart attack) in April 2003, which required three stents PCI to her right coronary artery. In March 2010 she was found to have moderate size mild intensity reversible defects in the anterior wall (poor blood flow) to coronary artery. Abnormal liver function tests, higher doses of Lipitor.

Currently experiencing recurrent syncope (fainting). EEG, CT of the head and carotid Doppler all negative. Complaining of daily chest heaviness and shortness of breath on exertion. Peripheral oedema (swelling of legs). The bottom line – it had not been clear whether her heart is compromised by seizures or vice versus.

Cardiac risk factor: Continues to smoke, hypertension, dyslipidemia and family history of ischemic heart disease.

Physical examination appeared well. B/P 110/60, pulse 58 and regular. EEG: normal sinus rhythm, Holter Monitor study on April 25, 2013 – significant for multifocal atrial tachycardia (irregular heart rate coming from numerous trigger centres in the upper heart), degenerative valvular changes noted. I am not clear on the etiology of the patients' syncopal events. I am not certain it is cardiac. Further studies to be done.

The Agent submitted a report from Dr. F.H., dated June 6th, 2013 which was an MRI of the head. The opinion was no cause for seizure is evident, signed by Dr. P.B.

On June 25, 2013, Dr. S.B. wrote to Dr. F.H. after seeing the patient on June 24th, 2013. There had been no further seizures. She was presently using Topamax 75mg at bedtime. This dose was to be increased.

On July 18th, 2013, Dr. J. H. (cardiologist) once again wrote to Dr. F. H. that this was a follow up appointment after her myocardial perfusion study showing a new large area of ischemia (poor blood flow) involving the distal half of the anterior wall and apex (of the heart). This was due to poor blood flow in the left anterior descending coronary artery. Not sure if this was responsible for her syncopal events. This doctor recommended proceeding with angiographic dye study.

On August 2nd, 2013, Dr. R.C. performed and recorded on a cardiac catheterization, to Dr. J. H. and Dr. F. H. The procedure describes selective coronary and left ventricular angiograph done in standard views.

Comments on angiography: The left anterior descending artery appears to have a small filling defect she has a 70% lesion.

1. The first diagonal showed 80 – 90% occlusion by a lesion
2. Right coronary artery. A long stent seen in the proximal mid and distal third and an in-stent stenosis (narrowing) in the mid segment and at the level of the distal third it was totally occluded. The distal vessel (beyond this narrowing) filled via collateral from the first RV branch. As well as from the left system. The left ventricular angiography showed normal function.

Conclusion: An occluded RCA stent and LAD lesion, blockage of the previously placed stent and now a new blockage in the left anterior descending artery. Surgery is the better option.

A Substance Abuse Assessment form of September 2013 and signed by Dr. F.H. stated that there was liver disease, chronic anxiety and seizures:

1Hepatomegaly (large liver).

2Medications.

3Seizure disorder, currently under control by Topamax, laboratory work slightly elevated MCV, GGT (287) with a normal AST and ALT.

A study of alcohol use disorders gave a total score of 6 indicating moderate problems. The LEEDS dependence questionnaire indicated that there was no serious dependence.

The diagnosis on this Substance Abuse form was alcohol abuse. She had then gone six weeks without alcohol. The patient has plans to become involved with AA.

On September 16th, 2013, Dr. F.H. wrote to the Deputy Registrar of Motor Vehicles stating that the Applicant is diagnosed with a seizure disorder and prescribed Topamax. Being seizure free since March 26, 2013, Dr. F. H. supported reinstatement of her driving privilege.

On October 22nd, 2013, the M.T.O. wrote to the Applicant indicating her driving privilege should remain suspended.

The Ministry asked for the following:

• Confirmation that you have remained abstinent from alcohol for a period of one year and this period may be reduced if your physician confirms that you have successfully completed an alcohol treatment program and is supportive of your driving privilege.
• The results of recent biochemical markers (MCV, GGT, AST, and ALT)
• Confirmation that you remain seizure free
• Confirmation of your compliance with recommended treatment, if prescribed and/or insight into your condition.
• The enclosed form to be completed in full and all questions answered.
• Details of your heart condition, and information that your condition is controlled and
• Details of any residual deficits, cognitive, perceptual, visual, physical and other disqualifying medical concerns (if any).

The next report sent to the Ministry by the Applicant and received on December 5th, 2013 indicated as follows:

1. The Applicant disclosed confirmation of her heart conditions.

2. Rectifications with a triple coronary artery bypass, confirmation by the neurologist Dr. S.B that she has remained seizure free since March 2013. An optimum Topamax level.

3. Biochemical markers (GGT) showing further decrease in levels.

4. Documentation by the Applicant also included a discharge summary by cardiac surgeon Dr. C.T. The surgical procedure was done October 3, 2013. A clinical note described the Applicant as having a history of hypertension, dyslipidemia, an active smoker with a one pack per day habit, family history of coronary artery disease. This medical history included seizure, stage two fibrosis of liver and also symptoms of syncope. Imaging of the heart showed that there was a new large area of ischemia of the anterior wall and apex. Severe two vessel coronary heart disease. She was discharged on the following medications: Enteric coated aspirin, Metoprolol, Rosuvastatin, Lasix and Dilaudid. She was to continue pre-op medications: Mirtazapine, Allopurinol, Topiramate, Symbicort and Lorazepam.

A letter from Dr. S.B. to Dr. F.H. dated October 29th, 2013 reviewed her recent cardiac surgery, following which she is doing well. She continued on Topamax 50mg twice daily. She said that her last seizure was mid March and is anxious to drive again. Laboratory work confirmed her Copiramate was in satisfactory blood level range. GGT is 231, (still elevated, but declining).

On December 9th, 2013, the M.T.O. wrote to the Applicant with new information marked as Exhibit 3.

The Ministry in this letter said that she should remain under suspension. They wanted:

• Confirmation she has remained abstinent from alcohol or that her alcohol consumption is within minimal risk of drinking levels [i.e. no more than 14 drinks per week (male,) and 9 drinks per weeks (female)] for a period of six months.
• The results of recent biochemical markers (MCV, GGT, AST and ALT).

Next, the Agent entered a certified copy of the Applicant's driving record disclosing on June 3rd, 2013 a suspension for medical reasons. Current demerit points were zero.

With the explanation that the Ministry continued the suspension, the Agent entered the pertinent portions of the CCMTA document including section 15.6.3 – substance abuse or dependence – all drivers. The Agent informed the Tribunal that the M.T.O. was making concessions to the Applicant but said that six more months of total abstinence are required, a concession being made because of the Applicant's excellent reports with coping with her addiction and a favourable medical report.

The Applicant presented her case stating she saw her doctor in mid March regarding seizures or possible blackouts. She said the doctor did not mention alcohol withdrawal seizures. The doctor observed her enlarged liver and told her she must quit drinking at the end of March 2013 when her GGT was approaching the level of 500. She remained abstinent and the GGT level came down to 231. She referred to her heart problems, and that Dr. S. B. had done the required brain studies and no sign of epileptiform lesions were noted. The seizures had ceased on suitable medication with no more seizures since March 26th, 2013.

Her coronary bypass surgery was done October 3rd with very successful results. The Applicant then observed that she has a spotless driving record for 20 years and stressed the importance of getting back her licence to continue with her current employment. She said she has been abstinent since early April, with one very briefly relapse of about five drinks in mid-July and has been abstinent since then.

The Agent questioned the Applicant about her involvement with the AA. While explaining her difficulties in the post-operative phase in October, she now stated that she would go to them and get a sponsor. The treatment programs have been precluded because of the high cost of taxis to get to such agencies. The Agent confirmed the Ministry's current position asking that she remain abstinent with good documentation for six more months. He stated that this significant concession was made because of the excellent improvement in her lab reports and also supportive comments by her doctors. The Agent questioned the Applicant and confirmed that she understood the term syncope and described these as fainting and/or epileptic seizure in March. Since that time she has been on a suitable drug to control this problem. The Agent reviewed the very brief relapse with four or five drinks in mid-July. The Applicant replied that she will not drink anymore because of her heart difficulties and family commitments.

Mr. McKnight summarized the diagnoses of alcohol abuse and the dictates of the CCMTA document. He observed the importance of the Applicant's support and treatment and that laboratory reports were good and improving with the support of messages from her doctor. Because of the minor relapse with drinking in July, the Agent said that it is reasonable therefore that she does six more months of total abstinence, well documented. At that time the M.T.O. could consider reinstatement provided that there is an adequate follow up program.

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 Applicant has had a difficult time over many years with her health, due to her two dependencies – alcohol and tobacco. Much of this is of her own doing but she has also had to cope with a very bad family history of coronary artery disease. Her excessive drinking has resulted in serious obesity and has now improved considerably. As well, she has made excellent progress on the path to sobriety and total abstinence. She has had excellent medical care having survived a myocardial infarction and now a coronary bypass (October), she has been totally abstinent (excluding a short relapse in July). She is progressing well. If she remains on this path her liver condition (cirrhosis) should subside and there is evidence that this is happening.

Based on the evidence before it, the Tribunal, concludes, on a balance of probabilities, that the applicant is addicted to the use of alcohol to an extent likely to significantly interfere with her ability to drive a motor vehicle safely. The Ministry as observed by the Tribunal has been very encouraging. They have the responsibility to enforce the Highway Traffic Act and have insisted on six more months of abstinence. This is a balanced and fair decision given the Ministry's role in ensuring safety on the highways.

Decision

Upon the application by the Applicant to appeal the decision dated May 24th, 2013 of the Registrar to suspend her 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 confirmed.