8528 v. Minister of Transportation, 2014 CanLII 14992

Licence Tribunal

Appeal d'appel en Tribunal matière de permis

DATE: 2014-03-28

FILE: 8528/MED

CASE NAME: 8528 v. Minister of Transportation

Appeal under Section 50(1) of the Highway Traffic Act, R.S.O. 1990, c. H.8, from a Decision of the Minister of Transportation pursuant to Section 32(5)(b)(i) - to Change the Class or Classes of Motor Vehicles in Respect of Which the Licence was Issued

Applicant Applicant

-and-

Minister of Transportation Respondent

REASONS FOR DECISION AND ORDER

ADJUDICATOR: D. Ian Turnbull, M.D., Member

APPEARANCES: For the Applicant: Chelsea Hishon, Counsel

For the Respondent: Sonia De Santis, Agent

Heard in London: March 21, 2014

DECISION AND REASONS

This is an appeal to the Licence Appeal Tribunal (the “Tribunal”) by the Applicant respecting a decision of the Minister of Transportation (the “Respondent”) pursuant to Section 32(5)(b)(i) of the Highway Traffic Act, R.S.O. 1990, c. H.8 (the “Act”).

BACKGROUND

The Applicant is a 52-year-old truck driver who suddenly collapsed in his kitchen on April 27, 2013 hitting his head on a chair while falling to the floor. He was taken by ambulance to a local hospital and subsequently admitted.

The Registrar received a Medical Condition Report (MCR) dated April 28, 2013 (Exhibit 3, Tab 1) from an internist reporting pursuant to Section 203 of the Highway Traffic Act (HTA) indicating the Applicant had "heart disease with pre-syncope/ syncope arrhythmia." He added that the Applicant had "syncope with documented asystole, etiology unclear as there is no evidence of cardiac disease, and a primary seizure disorder has not been excluded."

In a letter dated May 6, 2013 (Exhibit 3, Tab 2), the Registrar suspended the Applicant's driving privileges under Section 47(1) of the HTA. The Registrar asked the Applicant to take the letter to his physician and "provide descriptions of any pre-syncope/ syncope history, cause and confirmation there has been no further episodes," for review by the Registrar's Medical Review Section (MRS).

In a letter to the Registrar dated July 4, 2013 (Exhibit 3, Tab 3), the Applicant's neurologist stated the 51-year-old Applicant had:

• An episode of unresponsiveness on April 27, 2013
• Likely a seizure, that was subsequently followed by asystole
• Presumably sick sinus syndrome (SSS) requiring pacemaker insertion in April 2013.
• The Applicant's cranial Magnetic Resonance Imaging (MRI) showed two cavernomas in the right peri-trigonal white matter and right occipital lobe.
• The cortical lesion could have been the source of this presumed seizure.
• An electroencephalogram (EEG) on July 4, 2014 showed no epileptic discharges.
• Neurologic examination is normal.
• He is on Keppra, 1 gm twice a day, without any complications.
• He has been compliant with therapy

The neurologist continued, "therefore, I strongly recommend that he be allowed to reapply for his Ontario Driver's Licence." The Tribunal notes that no one has to be allowed to reapply for a driver’s licence.

In a letter dated July 17, 2013 (Exhibit 3 Tab 4) the Registrar asked that the Applicant's doctor provide:

• Confirmation that you have remained seizure-free for a period of six months, and

• Confirmation of your compliance with recommended treatment, if prescribed, and/ or insight into your condition.

The Applicant's neurologist's responded to the Registrar in a letter dated October 30, 2013 (Exhibit 3, Tab 5) identical to his note of July 4, 2013 with the exception of the Applicant's age (52 instead of 51).

In a letter dated November 28, 2013 (Exhibit 3, Tab 6), the Registrar approved the Applicant for a Class "G" licence. The letter continued, "should you wish to regain your commercial licence, you will be required to file a further report from your treating physician or specialist. This report must include the following:

• Confirmation that you have remained seizure-free for a period of five years"

In a letter dated December 23, 2013 (Exhibit 2), the Applicant sent a Notice of Appeal - Downgrade of a Driver's Licence for Medical Reasons - under Section 32(5)(b)(i) of the HTA.

FACTS

The events of April 27, 2013, are best described in a note dictated April 29, 2013, by the neurologist's resident (Exhibit 2, Page 12/21). The Applicant was at home, standing, chatting with construction workers who were remodelling his kitchen.

According to his daughter, the Applicant suddenly collapsed. On the way down, he hit his head on a chair and then his head on the ground. Initially, he had reduced consciousness (but no shaking was seen). Emergency Medicine Services (EMS) were notified and when they arrived on the scene, the Applicant was slightly more lucid and responding to questions although confabulating.

Arriving at the hospital's Emergency Department (ER), according to his daughter, "They were told that en route he had generalized shaking of all four extremities; however, looking through the EMS records, we found no such documented episode."

While waiting in the ambulance bay of the ER, he apparently had generalized shaking of all four extremities lasting approximately 30 seconds, as is documented by nursing records and also according to his daughter's history. When the Applicant was assessed by an ER physician, he had an episode of "shaking of his head" which lasted for 20 seconds and was accompanied by asystole on the cardiac monitors.

A Computerized Axial Tomography (CAT), probably April 27, 2013, showed a 8 mm hyperdense focus at the right medial-parieto-occipital cortical location without mass effect, possibly a cavernous hemangioma. It was reported to be unusual in terms of a traumatic fall. The neurologist thought the CAT scan finding might be an "incidental finding", and recommended a cardiac pacemaker. He added, “the CAT head shows a hyperdensity consistent with an intracranial bleed.”

A permanent cardiac pacemaker was inserted on May 3, 2013, and the Applicant was discharged from hospital the next day. The discharge summary from the Cardiology Service (Exhibit 4 Tab 13) states:

Most Responsible Diagnosis

1. Sick Sinus Syndrome, treated with pacemaker.
2. New Diagnosis of Seizures, likely secondary to cavernomas found on MRI, started on Keppra.

Course in Hospital

• Sudden loss of consciousness and fall with injury to his head.

• In hospital ER (April 27, 2013) had episodes of what sounds like seizures with prolonged post-ictal phase.

• During these episodes, he was found to be asystolic on the monitors; however, no formal electrocardiogram (EKG) was performed.

• Asystole - his fall may have been preceded with an asytolic arrest or sinus dysfunction; because of this concern, a permanent pacemaker was inserted.

• Seizures - the abnormalities seen on CAT scan and MRI "may have triggered either the asytolic event or the seizures."

Summary and Plan

• 51-year-old gentleman with acute decreased level of consciousness secondary to either a unifying process or two separate issues of seizures and sinus dysfunction. A neurosurgical consultation was made which may be pursued by the neurologist.

A July 11, 2013 report from the Applicant’s cardiologist (Exhibit 2, Page 2 (9/21) states "complicating factor (of his April 27, 2013 hospital admission)" was diagnosis of seizures which were supported by an MRI done on April 30, 2013, showing a right occipital hemorrhage. He concluded by stating, "maintaining concerns are with respect to a possible seizure disorder which I believe is secondary to hemorrhages, secondary to trauma."

On October 30, 2013, the Applicant was seen in the hospital Epilepsy Clinic (Exhibit 4, Tab 29), and the neurologist's resident stated, "because he is more than six months without seizures, from his point of view, he can get his driver's licence back.”

The Registrar provides (Exhibit 3, Tabs 17-26) monthly Progress Notes and application forms for Mortgage Insurance and Disability completed by his family doctor, who suggests (Exhibit 3, Tab 24) the "seizure episode was secondary to hypoxia," and states in Exhibit 3, Tab 26 (Page 21/26) - "patient able to drive" (Page 21/26).

The Applicant revisited his cardiologist December 4, 2013 (Exhibit 4, Tab 26) providing him (Exhibit 3, Tab 27) with a copy of the neurologist's letter dated October 30, 2013 (Exhibit 3, Tab 5) "which clearly spells out that the restitution of his licence is supported." The Tribunal notes the neurologist only recommended the Applicant be allowed to reapply for his driver’s licence.

The cardiologist continued, "I do understand that within the ER a differential diagnosis of a seizure disorder was brought up, but has ultimately been discarded as a possibility by the University neurologist."

In a letter dated March 6, 2014 (Exhibit 5) from the Applicant's neurologist (which is follow-up to a telephone conversation he had with Applicant's Counsel on February 28, 2014.) he states:

• The Applicant had a period of unresponsiveness at home on April 27, 2013.

• Followed by a witnessed epileptic seizure in the (hospital) ER the same day.

• CT scan/ MRI subsequently showed lesion (thought to be cavernous hemangioma on April 30, 2013) known to be associated with epileptic seizures.

• Because of this known association, the Applicant was started on Keppra, 1 gm, twice a day.

• He further states - the progress of his expected recurrent seizures is very good, but never zero.

• Regarding the initial event (April 27, 2013) that caused the Applicant's collapse - "it would be highly unlikely for the cardiac arrhythmia to result in seizure in the ER when he had no evidence of anoxia at that time."

• The neurologist continues - "given the circumstances and complexity of the factors involved, it may be reasonable to reduce the interval for his ability to drive from five years down to a reasonable time interval of between one and two years."

• The neurologist refers to his letter of July 4, 2013, saying he outlined his reservations in recommending him to the Ministry of Transportation (MTO) that his Class G licence be re-instated after he was seizure-free for six months…

ISSUES

Should the decision of the Respondent to change the class or class of motor vehicles in respect of which the licence is issued in accordance with the result of the examination be varied, modified or set aside?

Does the Applicant suffer from a mental, emotional, nervous or physical disability to an extent that he should no longer be entitled to exercise the privilege of a Class A licence?

LAW

The relevant statutory provisions state as follows.

Section 32(5)(b)(i):

32. No person shall drive a motor vehicle on a highway unless the motor vehicle is within a class of motor vehicles in respect of which the person holds a driver’s licence issued to him or her under this Act.

(5) The Minister may require an applicant for a driver’s licence or an endorsement or a person who holds a driver’s licence to submit to the examinations that are authorized by the regulations at the times and places required by the Minister and to meet other prescribed requirements, and the Minister may,

(b) in the case of a person who holds a driver’s licence,

(i) impose the conditions authorized by the regulations, remove any conditions or endorsements or change the class or classes of driver’s licence held by the person, in accordance with the results of the examinations and other prescribed requirements, or

Further, 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 50 sets out the right of appeal:

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 failed to convince the Tribunal that the Applicant's driver's licence should remain suspended until he can provide confirmation of being seizure-free for five years, i.e. until April 27, 2018.

The Registrar was correct in suspending the Applicant's driving privileges following receipt of the hospital internist's MRC dated April 28, 2013. The Registrar was also correct in downgrading the Applicant's Class A driver's licence to Class G, based on Section 32 (5)(b)(i) of the HTA upon receipt of his neurologist's letter of October 30, 2013.

The Registrar relies on the Canadian Council of Motor Transport Administrators (CCMTA) guidelines (Exhibit 3, Tab 8), "Determining Driver Fitness in Canada."

Specifically referring to Chapter 17: Seizures and Epilepsy, Page 253, Section 17.6.1 Epilepsy - Commercial Drivers:

“This standard applies to commercial drivers, who have been diagnosed with epilepsy, except:

• Whose seizures only occur while they are asleep or immediately after awakening, and (17.6.12)

• Who have only simple partial seizures (no impairment in level of consciousness), the symptoms of which do not impair their functional ability to drive (17.6.13).”

See Guideline 17.6.12 for commercial drivers who meet this standard and then change medication.

STANDARD

Commercial drivers eligible for a licence if

• They have not had a seizure with or without medication for 5 years, and

• The conditions for maintaining a licence are met

Conditions for Maintaining Licence

• Routinely follows treatment regime and physician’s advice regarding prevention of seizures

• Cease driving and report to the authority and physician if a seizure occurs

Reassessment

• Routine

Information from health Care providers

• Date of the last seizure

• Details of the driver’s treatment regime, including length of time the driver has been on or off antiepileptic medication

• Opinion of treating physician on whether the driver is compliant with their treatment regime.

Epilepsy is defined on Page 240 of the CCMTA Guidelines as "a condition characterized by recurrent (at least two) seizures which do not have a transient-provoking cause. Striking his head on a chair while falling to his kitchen floor is a transient provoking cause. In reviewing multiple clinicians’ opinions, the Tribunal finds there is no consistent agreement that the shaking episodes April 27, 2013 were seizures.

There is no suggestion the sudden collapse at home on April 27, 2013 was caused by a seizure. The neurology resident’s note dated April 30, 2013 (Exhibit 2 Page 13/21) states “with regards to his decreased level of consciousness…we feel that it is less likely to be neurologic in nature.”

There is some confusion in the neurology resident's note of April 28, 2013 (Exhibit 2, Page 12/21) regarding the shaking of all four extremities in the EMS ambulance. The Tribunal believes, based on the evidence, that these witnessed movements occurred while in the hospital ambulance bay, followed shortly by head shaking for 20 seconds.

The Applicant had no seizures prior to April 27, 2013, and has had none since. The neurologist placed the Applicant on an anticonvulsant medication (Keppra, 1 gram, twice a day) because of a "likely seizure" and "presumed seizure."

In affirmed testimony, the Applicant remembers stepping around construction materials in his kitchen and then waking up in hospital. He was tired, returning home from a trip to Florida and emotionally upset at having to euthanize his dog that day. He recalls an episode in 2008, while driving to Texas, where he had to attend a hospital ER because of feeling unwell while driving. He grabbed a physician to prevent himself from falling. This 2008 episode at the Ohio hospital is referred to as palpitations in the neurologist’s note of April 29, 2013 (Exhibit 2, Pages 13 and 14).

The Tribunal reviews the consultants' reports for consistency in interpretation of the sequence of events following the Applicant's sudden collapse on April 27, 2013. Multiple physician comments regarding the monitored period of asystole following the 20 seconds of head shaking are uncertain as to whether the seizure-like activity was caused by the cardiac event (sick sinus syndrome) or the shaking movements are post-traumatic after the Applicant struck his head in the unexplained collapse in his kitchen on April 27, 2013.

There are also differing opinions among the Applicant's physicians, as to whether the lesion detected on the CAT scan and MRI (cavernous hemangioma or cavernoma) caused the seizure-like symptoms. In his letter of March 6, 2014, the Applicant's neurologist states, "the prognosis of his expected recurrent seizure is very good, but never zero."

The neurologist, in his letter dated March 6, 2014 (Exhibit 6) captures the dilemma facing the Tribunal in stating, "As for the initial event that resulted in his collapse, one could speculate that it could have been a cardiac event (resulting in insertion of a pacemaker) or an epileptic seizure causing a cardiac problem." adding “this remains highly speculative.”

The Tribunal believes there was documented evidence of cardiac disease "sick sinus syndrome," which has been appropriately managed with a permanent pacemaker and the witnessed shaking movements of April 27, 2013, may be associated with the Applicant's underlying cardiac arrhythmia.

The Applicant is compliant with anticonvulsant therapy and has had no seizures in the past 11 months.

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

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;

The Tribunal finds that based on a balance of probabilities, the Applicant does not suffer from any mental, emotional, nervous or physical disability likely to significantly interfere with his ability to drive a motor vehicle of the applicable class safely.

DECISION

Upon the application by the Applicant to appeal the decision effective November 28, 2013, of the Registrar of Motor Vehicles to downgrade his Class "A" driver's licence pursuant to Section 32 (5)(b)(i) of the HTA, 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 HTA that the decision of the Respondent be set aside.

LICENCE APPEAL TRIBUNAL

D. Ian Turnbull, M.D., Member

Released: March 28, 2014