8740 v. Minister of Transportation, 2014 CanLII 23595

Licence Tribunal

Appeal d'appel en

Tribunal matière de permis

DATE:

2014-05-08

FILE:

8740/MED

CASE NAME:

8740 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

Appellant

Appellant

-and-

Minister of Transportation

Respondent

REASONS FOR DECISION AND ORDER

ADJUDICATOR:

Kevin Flynn M.D., Member

APPEARANCES:

For the Appellant:

Self-represented

For the Respondent:

Sonia de Santis, Agent

Heard by Teleconference

May 1, 2014

DECISION AND REASONS

This is an appeal to the Licence Appeal Tribunal (the “Tribunal”) by the Appellant 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”).

FACTS

The Respondent’s Evidence

On May 3, 1995 the Ministry received notice of the Appellant’s admission to hospital, signed by Dr. C. in compliance with section 203 of the Act.

The condition reported was:

• Seizure
• He is on anti-epileptic medication.

A copy of a letter sent on June 15, 1995 to Dr. O., his family physician, by a neurologist, Dr. S. was received by the Ministry on July 4, 1995. The letter confirmed that the Appellant was stable on Dilantin 400 mg daily, to be taken in two divided doses. An EEG and CT scan were normal.

The Appellant was informed by his physician that he must not drive.

On January 30, 1996, the Appellant was informed by the Registrar that a report from a neurologist was required.

The Appellant was employed as a tractor trailer driver and held a Class ‘A’ licence.

On March 13, 1996 Dr. S. informed the Ministry that the Appellant remained seizure free and remained on Dilantin 400 mg daily.

“I do not feel there is a contraindication to his driving nor to the Class AB licence.

Physical examination and MRI scans are normal.”

The Medical Advisory Committee, M.A.C., requested more information with a medical background.

On April 24, 1997 Dr. S. reported that when seen on April 17, 1997 the Appellant remained symptom free and remained on Dilantin. In November 1997 Dr. S. offered the option of discontinuing the Dilantin but the Appellant wished to continue.

A Medical Report was completed by Dr. O. on May 11, 2000. All systems were reported normal.

“Current status – Seizure free – no health problems. First and only seizure was on April 29, 1995

On Dilantin 100 mg 2 twice daily.

Neurological exam is normal.”

M.A.C. recommended waive to Class ‘A’ licence with a neurologist’s report in one year.

The Registrar informed the Appellant that he was approved for Class ‘A’ licence with a follow up report in May 2001.

A new neurologist, Dr. W. submitted a report on November 19, 2002. He stated that the Appellant had a ‘seizure’ in April 1994 while cutting logs. He noted that the patient was only sleeping about four hours a night, eating poorly and drinking too much coffee. He denied any alcohol intake. He awoke in the ambulance and was transferred from the local hospital to a teaching hospital where he had normal EEGs, CT scan and MRI. He saw him between 1994 and 2002 and found that there were no further seizures and the Appellant was compliant with Dilantin. Furthermore, he stated that he saw the Appellant again in August 2001 and November 2002 and noted a normal EEG in 2001.

The Registrar informed the Appellant on January 6, 2003 that his Class ‘A’ licence was approved and that a medical report was required in November 2003.

A Medical Report by Dr. O. in June 2003 stated that the date of the first and only seizure was in April 1995, not 1994.

He completed a Medical Report in November 7, 2003 stating that the Appellant remained seizure free and compliant with prescribed medication.

The Registrar approved the continuation of the Class ‘A’ licence and requested further follow up in June 2006.

Dr. O. completed a Medical Report on May 8, 2007 and reported that the Appellant remained seizure free and compliant with prescribed medication. Because the doctor reported myopia a waiver of visual function was required. An Optometrist completed the waiver on October 20, 2007. The report was approved by the Registrar.

In May 2012, a Medical Condition Report was completed by a neurosurgeon (name undecipherable).

The condition reported was:

• Seizure(s) – cerebral –May 28, 2012
• Witnessed seizure after collapse and head injury

The Registrar informed the Appellant on July 25, 2012 that it had been decided that his driving privilege was suspended under section 47(1) of the Act.

He was requested to have an Epilepsy and Seizures form completed.

Dr. W., the Appellant’s neurologist, completed the form on January 16, 2013. He has been involved in ongoing management of the patient since 1994.

The form completed on January 16, 2013 reported that:

• The Appellant had his latest seizure less than six months ago.
• The type of seizure the patient experienced is Generalised Tonic Clonic or Grand Mal.
• His first seizure was more than five years ago. There was no difference between the two seizures.
• An EEG within the last six months was normal with no sign of epileptiform activity.
• Imaging was abnormal, with evidence of brain contusion.
• Anti-seizure medication was prescribed and there were no side effects.
• He has an appropriate insight of his condition and the impacts on his functional ability to drive.
• The diagnosis was skull fracture with brain contusion which had healed.
• Dilantin was continued and he remains seizure free and compliant with prescribed medication.

On January 29, 2014, Dr. W. Sent an addendum to his report dated January 16, 2014:

“Applicant has not had any further seizures since I last saw him December 20, 2012.

under Question 3: Does the patient have an appropriate insight of his medical condition and the impacts on functional ability to drive?” The correct answer is “Yes”.”

M.A.C. reviewed the file on January 16, 2013 and recommended downgrade to Class ‘G’ with reconsideration for a commercial licence with a report from the treating physician to confirm the driver has remained seizure free for five years on or off medication.

Reasons:

“Driver had a seizure post head concussion in May 2012. He had already been placed on anti- seizure medication in 1995.

Driver to continue on anti-seizure medication. Now one year post seizure. Can approve for Class ‘G’ however require 5 years seizure free on or off meds.”

M.A.C. reviewed the file again on January 29, 2014 and denied change of class and reiterated the requirement of five years seizure free on or off medication.

The Registrar informed the Appellant accordingly on March 10, 2014.

The Appellant filed an appeal on April 3, 2014.

In Reasons for Appeal he stated:

“The seizure reported to MTO on May 28, 2012 was a direct result of an acute head trauma and fractured skull.

Dr. W.’s report dated January 16, 2014 confirms that the MRI, CT scan and two EEG tests were negative. Dr. W. Also reported “Had a fall in May 2012 with head injury and acute symptomatic seizure.”

The only previous incident of seizure was in 1994. This incident occurred on a very hot day, and while I was taking sinus medication. All tests performed at this time came back negative. I was prescribed anti-seizure medication at the time, and continued on this medication until present as a prophylactic measure. There were no further incidents of seizure.

My driving records have been exemplary, both commercial and personal.

I submit that the incident reported on May 28, 2012 should be deemed to fall under CCMTA Medical Standards section 17.6.2: Provoked seizures with no structural brain abnormality.

In consideration of this standard:

• I have undergone a full neurological assessment, and none of the medical reports contain a diagnosis of epilepsy
• My head injury and skull fracture have completely healed and are stabilised
• As evidenced by Dr. W.’s note dated December 6, 3013, I remain seizure free, and he believes I should have my AZ licence back.
• (Note: The Tribunal is unable to identify a note by Dr. W. Dated December 6, 2013)”

The Appellant’s Evidence

The Appellant stated that his first seizure occurred while he was cutting wood. He collapsed at the site and had a witnessed seizure. He regained consciousness in the ambulance that took him to the local hospital and was transferred to a secondary hospital where he was seen by Dr. S. a neurologist. He had tests and was started on Dilantin 400 mg daily.

The second seizure occurred the day after he started medication prescribed by a nurse practitioner for a sinus infection. He took his son to a soccer game and then to a hardware store where he collapsed and had a seizure. He was later told that the seizure occurred after his head struck the floor. He did not remember anything for two days.

He has seen Dr. W. the neurologist two or three times since May 2012.

He acknowledges the decision by the Registrar to suspend his driving privilege following the seizure but disagrees with the period of 5 years seizure free required before being considered for reinstatement.

ISSUES

Should the decision of the Respondent to change the class of motor vehicle 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.

The Respondent relies on the Canadian Council of Motor Transportation Administrators, (CCMTA), Section 17.6.11 criteria for holding a commercial driver’s licence following a downgrade for medical reasons. This stipulates a five year seizure free period since the last seizure. The Ministry considers two or more seizures evidence of epilepsy.

Section 17.6.11 Standard for commercial drivers states:

Commercial drivers are 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
• Routinely follow treatment regime and physician’s advice regarding prevention of seizures

The Appellant relies on section 17.6.2 of the CCMTA Guidelines;

Provoked seizures with no structural brain abnormality.

STANDARD: All drivers eligible for a licence if

• They have undergone a neurological assessment to determine the cause of the seizure, and epilepsy is not diagnosed
• The provoking factor has stabilised, resolved, or been corrected, with or without treatment, and
• The treating physician indicates that further seizures are unlikely.

APPLICATION OF THE LAW TO FACTS

The Tribunal finds that the Registrar was justified in suspending the Appellant’s privilege

upon receipt of a report of seizure by a physician in compliance with section 203 of the Act.

The Appellant had a previous seizure in 1995 while cutting logs on a hot day, after sleep deprivation and excessive coffee intake. He was seen by a neurologist, Dr. S..

After appropriate investigation by the neurologist including normal EEG, CT scan and MRI. a diagnosis of epilepsy was not made.

Dr. S. prescribed Dilantin, an ant-convulsant medication which has continued to the present time.

Dr.W., a second neurologist and Adjunct Professor in the Department of Clinical Neurosciences at a University in Ontario, later became involved in his care in May 2012 when the Appellant fell and sustained a fractured skull and brain contusion and had another seizure. Investigations again included EEGs, CT scan and MRI that showed no evidence of epilepsy. He was treated for the skull fracture and the brain contusion resolved.

Dilantin was continued and no further seizures have occurred.

In 2001 Dr. W. was previously consulted regarding the ‘seizure’ in April 1995.

When he saw the Appellant in November 2002 he stated that no restrictions were placed on the Appellant’s activities and that he was fit to operate a motor vehicle.

The Canadian Council of Motor Transport Administrators (CCMTA) definition of Epilepsy (page 240) is:

Epilepsy refers to a condition characterised by recurrent (at least two) seizures, which do not have a transient provoking cause,

The Tribunal finds that the seizure reported on May 28, 2012 did have a transient provoking cause, i.e. a fall resulting in a skull fracture and contusion of the brain. This condition was identified, treated, and resolved.

The Tribunal finds that if a normal adult falls and sustains a skull fracture with contusion of the brain, a seizure is not unusual and investigation to exclude epilepsy is appropriate. No such epileptic activity was found in the Appellant’s case in 2012 or since.

A diagnosis of Epilepsy is not appropriate in this case.

The Appellant continues to see his family physician who has known him for almost 20 years and who supervises the anti-convulsant medication.

No further seizures have occurred and no other medical condition has been identified which might affect his ability to operate a motor vehicle of the appropriate class safely.

The Tribunal finds that the Appellant does not suffer from a physical condition or 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 dated March 25, 2013 of the Respondent to change the class or classes of motor vehicle in respect of which the licence was issued pursuant to Section 32(5)(b)(i) of the Act, and having considered the evidence filed with the Tribunal, and the submissions of the Respondent 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 Respondent be set aside.

LICENCE APPEAL TRIBUNAL

Kevin Flynn, M.D., Member

Released: May 8, 2014