Licence Appeal Tribunal
Licence Tribunal Appeal d'appel en Tribunal matière de permis
FILE: 8481/MED
CASE NAME: 8481 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: Kyle Biel, Agent
Heard in Toronto: December 27, 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
Respondent’s Evidence
A report by a police officer dated September 6, 2013 was submitted in compliance with the Highway Traffic Act, reporting loss of consciousness of the driver, that resulted in loss of control of her vehicle and collision with another vehicle at 0806 hours on September 6, 2013 in a city street.
Driver suffers from diabetes and had low blood sugar. Driver went the wrong way and struck another vehicle. Driver does not recall what happened.
A Medical Condition Report was completed by Dr. B., an Emergency Room physician on the same day.
The condition reported was:
Diabetes or Hypoglycemia-Uncontrolled
Patient involved in low speed motor vehicle collision and found to be hypoglycaemic at the scene.
The Registrar informed the Applicant by letter dated October 22, 2013 that her driving privilege was suspended under Section 47(1) of the Act.
She was requested to have a Diabetes Assessment form completed by her physician and notified of her right to appeal.
The Diabetes Assessment was completed by Dr. S., an internist, on November 4, 2013.
Date of diagnosis of diabetes: June 2010
Date Insulin started: June 2010
Current type of Insulin used: Lantus injection once daily, 15 units once daily. Humalog insulin adjusted per carbohydrate count.
Readings handwritten, not electronically downloaded.
Readings correspond to meter readings
Blood sugar levels recorded three or more times daily
Approximate percentage of blood glucose readings below 4 mmol/L= 0
Meter memory average over 7 days=6.4
Meter memory average over 14 days=6.2
Meter memory average over 30 days=7.1
Patient adjusts insulin based on readings.
Previous A1C result: April 2013 =0.071
Non-diabetic range for laboratory: 0.040-0.060
A1C results are consistent with the patient’s blood sugar logs.
Diabetic Education completed 30 October, 2013
Re-education not recommended
Certificate of completion has been provided
Patient has a full understanding of diabetes and the close relationship between insulin dose or oral medication, diet and exercise
General compliance: 5/5
The patient has an awareness of early symptoms of hypoglycaemia at 5 mmol/l and below
Symptoms of hypoglycaemia and how is it treated:
Sweaty skin, fatigue, confusion, lack of concentration, headache. Treated by consuming carbohydrates 10-15 carb. and rechecking blood sugar
Major hypoglycaemic event on September 6, 2013 resulted in confusion
No previous event in two years.
Circumstances leading to hypoglycaemia: Just started attending exercise gym and did too much physical exercise without consuming enough carbohydrates often.
Changes since made to reduce likelihood of further hypoglycemic events: Cut back on gym activity and when attending the gym has increased carbohydrate intake and reduced insulin as well as more frequent blood sugar testing.
General health: No abnormality
No alcohol.
A certificate of attendance at the Diabetes Education Centre dated October 30, 2013 was provided.
She has a strong understanding of how her insulin works in relation to her food and activity. She is also aware of looking at patterns and trends to make appropriate changes to her regime. A review of low blood sugars in detail was also completed.
Detailed records of blood sugar readings were submitted.
One reading of 2.5 was reported by the laboratory on November 29, 2013 when she went for fasting blood tests. A similar low reading was reported by the laboratory on April 13, 2012 also when fasting.
Also submitted by the Applicant were copies of correspondence by her specialist, Dr. S to her family physician.
On January 30, 2013 the internist, Dr. S. in a letter to the Applicant’s family physician wrote:
Diabetes Type 1 control almost optimal.
She will start exercise soon and in the past her blood sugar control was very difficult with exercise. I have told her to cut down the insulin dose by about 20% when she starts moderate exercise and titrate the insulin dose according to blood sugar levels. Insulin pump was discussed.
On May 2, 2013 Dr. S. wrote to the family physician:
If she goes to the gym within two hours after supper, she cuts down supper dose (Novorapid insulin) by 1-2 units. She is checking blood sugars 5-8 times daily, readings between 5 and 8. She is not getting any significant hypoglycaemia readings.
On November 7, 2013 Dr. S. wrote to the family physician:
Since last seen she had a motor vehicle accident on September 6, 2013 secondary to hypoglycaemia. She checked her blood sugar about 45 minutes before driving. It was 5, felt a bit confused when she was driving and tried to have candy but before she realized she lost consciousness. Fortunately, her car was going very slow and she didn’t have any injury. Her blood sugar at that time was 1.6 and she was taken to the E.R. by ambulance
The night before she had hypoglycaemia she exercised quite vigorously for 2 hours which most likely precipitated it. Currently she is exercising but less than one hour a day and also after exercise she has some complex carbohydrate with protein to avoid hypoglycaemia later.
On November 27, 2013 the Registrar informed the Applicant that following a review of reports provided on her behalf it had been determined that will be required to provide confirmation that she has no hypoglycaemic reactions and that her condition has remained stable for a period of six months.
The Applicant’s Evidence
The Applicant, 24 years old, works at a medical centre. She developed Type 1 diabetes in 2010 and was started on insulin, under the care of Dr. S., an internist.
She commenced a fitness program in February 2013, and was working out for about half an hour after work, three days a week. She routinely tests her blood sugar before and after her workout.
She has experienced nocturnal hypoglycaemic episodes between 0530 and 0645 hours and takes some sugar to correct it.
On the night before the accident she attended the gym and took her usual Humalog insulin before breakfast. She drives 5 km to work and while driving she “felt a little odd”, like “walking on a cloud” and took two sugar tablets before losing consciousness and loss of control of her car which crossed into opposite traffic at low speed before colliding with another vehicle.
An ambulance attended and her blood sugar at the scene was found to be 1.6.
Since the event she has been for re-education at the Diabetes Education Centre and has modified her exercise program. She tests her blood sugar before driving and before and after exercising and takes complex carbohydrates and protein following exercise. She always carries sugar tablets when driving.
She carries a MedicAlert bracelet in her bag but not on her person.
She has been informed about an insulin pump but has not decided to start one, partly due to the cost.
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 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.
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.
The Respondent relies on:
A report by a police officer of a collision by a vehicle driven by the Applicant on September 6, 2013 when she suffered a hypoglycaemic event.
A Medical Condition Report filed by a physician in compliance with Section 203 of the Act reporting uncontrolled diabetes and hypoglycaemia.
Section 47(1)(g) of the Act authorised the Registrar to issue a suspension of the Applicant’s driving privilege.
Ontario Regulation 340/94 (14) authorised the Registrar to continue the suspension until she submits confirmation that her condition has remained stable with no recurrence of hypoglycaemia for a period of six months. The onus is on the Applicant to show that she does not suffer from a medical condition that would significantly interfere with her ability to operate a motor vehicle safely.
The Canadian Council of Motor Transport Administrators (CCMTA), under section 7.6.4 applies to episodes of severe hypoglycaemia.
STANDARD: Non-commercial drivers are eligible for a licence if
Treating physician indicates stable glycemic control is re-established and the authority determines they are fit to drive. Time required to re-establish glycemic control varies individually.
No further hypoglycaemic episodes within past six months
Conditions for maintaining a licence are met.
CONDITIONS for maintaining licence:
o must test blood glucose immediately before driving and approximately every hour while driving
o doesn’t begin or continue to drive if blood glucose falls below 6.0 mmol/L and doesn’t resume driving until blood glucose rises above 6 mmol/L after food ingested.
The Applicant submits that she has no previous history of hypoglycaemic attacks and that she has optimal readings for three years as evidenced by her specialist.
Her exercise program is not a cardio program and is aimed at maintaining fitness.
She is surrounded by a number of physicians at work who would be willing to give her urgent advice if required.
She has maintained good control and stability since the episode on September 6, 2013 and has modified her exercise program to prevent hypoglycaemia.
She continues to do blood sugar tests before driving and also before and after her exercise.
It is now almost four months since the episode on September 6, 2013.
APPLICATION OF THE LAW TO FACTS
The Tribunal finds that the Respondent was justified in issuing a suspension of driving privilege upon receipt of reports of hypoglycaemia that resulted in loss of control of the car driven by the Applicant.
The Tribunal finds that there is sound medical evidence that the cause of the hypoglycaemia has been established as being due to overexertion during an exercise program the evening before the collision, and that corrective measures have been initiated under the supervision of the Applicant’s diabetes specialists.
The Tribunal is satisfied that the time required to re-establish glycemic control has met the requirement of the CCMTA guideline as outlined above and that the 6 months requested by the Registrar before reinstatement is not mandatory in this case.
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 her ability to operate a motor vehicle safely.
DECISION
Upon the application by the Applicant to appeal the decision effective November 1, 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 set aside.
LICENCE APPEAL TRIBUNAL
Kevin Flynn, M.D., Member
Released: December 31, 2013