Licence Tribunal
Appeal d'appel en
Tribunal matière de permis
FILE: 8899/MED
CASE NAME: 8899 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
Appellant
Appellant
-and-
Registrar of Motor Vehicles
Respondent
REASONS FOR DECISION AND ORDER
ADJUDICATOR: David W. Hurst, M.D., Member
APPEARANCES:
For the Appellant: Self-represented
For the Respondent: Sonia DeSantis, Agent
Heard by teleconference: July 9, 2014
DECISION AND REASONS
This is an appeal to the Licence Appeal Tribunal by the Appellant 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”).
REGISTRAR’S EVIDENCE
Ms DeSantis disclosed a Medical Condition Report which was filed with the Ministry of Transportation (“M.T.O.”) regarding an examination of the Appellant on the 15th of May, 2014 in which a box was ticked for alcohol dependence and another for seizure(s) – alcohol related. An optional note said that the Appellant had been referred for EEG and for neurological consultation. This report was signed by Dr. J.L.D.
On May 23rd, 2014, the M.T.O. wrote to the Appellant advising that they had received a report indicating that he had a condition that affects his ability to drive safely. The report indicated there were seizure(s) – alcohol related problems.
Under section 47(1) of the Act, the M.T.O. issued an official notice of suspension and stated that:
- If 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 successfully completed an alcohol treatment program and is supportive of your driving privilege.
- The enclosed form(s) must be completed in full and all questions answered.
The Ministry then indicated their requirements to determine whether his licence could be reinstated.
The Agent then presented a copy of the Substance Abuse Assessment Form, a very detailed questionnaire which would have to be completed and returned to the Ministry.
The next entry by the Agent was a consultation note from Dr. B.F., neurologist, which is reported here in full:
“This man had an isolated probable seizure on May 13th, 2014 which was unwitnessed. Several factors likely lowered his seizure threshold at the time including chronic alcohol use, being on Wellbutrin, which he started ten days earlier and being sleep deprived because of insomnia from the Wellbutrin. He says that he is now abstaining from alcohol. His Wellbutrin has been stopped and he now takes Celexa and is sleeping much better.
I feel that if he continues to abstain from alcohol and he remains seizure free for a total of three months that he would be safe to have his driving privileges reinstated.
Current Encounter:
Clinical Notes
Subjective/objective
Thank you for asking me to see this 43 year old insulation salesman for his possible alcohol-related seizure. On May 13th 2014 he was found by co-workers to be slouched over in his car unconscious. He had been incontinent of urine and his foot was on the gas pedal, but the car was not in gear. I do not believe there was any witness, tonic or clonic activity, but the feeling is he probably had an unwitnessed seizure and was found in a postictal state. He was assessed in the emergency room and was admitted and treated for probable alcohol withdrawal. He was quite agitated and confused for a day or two and was given Valium. He admits to drinking a few beers at night. The exact amount is not really clear and different amounts are found in his chart, between two to three cases a week or just couple of bottles of beer a day. He has never had a seizure in the past. There is no history of head injury, concussion or CNS infection. There is a history of depression and he was taking Wellbutrin 150mg daily at the time of his seizure. This had been restarted on May 4th, 2014. While on it he says that he had insomnia and was not sleeping well. He had tried it previously, but it caused hallucinations so it had been stopped. Following his probable seizure the Wellbutrin was stopped and he is now on Celexa 20mg daily. He says that his mood is great and that he is sleeping well. He is otherwise healthy and takes no other medications.
No family of history of seizures.
His neurological examination today is entirely normal.
He has been investigated with a normal CT brain scan on May 17th, 2014 and a normal EEG on May 21st, 2014. His LFTs are slightly elevated with AST 136, ALT 65, and GGT 335. ALP is 116. In hospital his CK was elevated at 588 with negative Troponins, (tests for heart damage). MCV was elevated slightly at 102.7. His drug screen including alcohol was negative.
Impression:
I agree that he most likely had an isolated unwitnessed seizure. It was likely provoked by a combination of being on Wellbutrin and alcohol use. His risk of further seizures will be extremely low providing he abstains from alcohol and is not placed back on Wellbutrin. He said that he is abstaining from alcohol. I do not think that he needs to be on an anticonvulsant. I feel that he is safe to regain his driving privilege providing he abstains from alcohol. His family physician, Dr. C., will likely need to provide information to the Ministry of Transportation that he does not have an alcohol problem. He knows that he is currently not allowed to drive. I will forward a letter to the Ministry of Transportation and he will wait to hear from them.
No specific follow up has been booked but if he has any future episodes I will be happy to assess him.
Sincerely,
Dr. B.T.F.”
Ms DeSantis then entered a letter dated June 23rd, 2014 from Dr. S.C. regarding the Appellant. That letter states as follows:
“I would think that you already have a copy of the consultation from a neurologist Dr. F., from June 5th, 2014. I am in total agreement with his opinion that the Appellant’s probable seizure was a combination of alcohol and Wellbutrin. The Appellant now is no longer taking Wellbutrin and Dr. F., says that he’s been seizure free. He is also abstaining from alcohol and, in all honesty, I think this gentleman will continue to abstain from alcohol and alcohol will no longer be an issue with this gentleman’s ability to drive. I would encourage you to reinstate this gentleman’s driver’s licence immediately, as again, I think he is quite safe to drive a motor vehicle.”
On June 25th, 2014, the M.T.O. again wrote to the Appellant stating that his driving privilege should remain under suspension.
The Ministry required the following:
- 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 successfully completed an alcohol treatment program and is supportive of your driving privilege.
- The results of recent biochemical markers, (MCV, GGT, AST and ALT) with a clinical explanation for any levels outside the normal laboratory range is required.
A certified copy of the Appellant’s driving record was entered. There was one offence for driving with more than 80mg of alcohol in the blood in the year 2011 and in 2014 the Appellant was suspended for medical reasons. There were no demerit points.
The Agent then presented a copy of the CCMTA document determining driver fitness in Canada. On page 246, section 17.6.3, alcohol – related provoked seizure, the standard says that all drivers eligible for a licence if:
- They have undergone an addiction treatment and have received a favourable report from an addiction counsellor.
- It has been at least six months since they have used alcohol and have not had a seizure.
The Agent then directed the Tribunal’s attention to section 17.6.4, unprovoked seizure – non-commercial driver. The standard says – non-commercial drivers are eligible for a licence if:
- Complete neurological assessment has been conducted to determine the cause of the seizure, and epilepsy is not diagnosed and
- CNS imaging and EEG results are satisfactory
As part of the Agent’s presentation, new information was received by the Tribunal, by email, for purposes of the hearing:
- A letter dated June 23, 2014 which is a copy of a previous letter from Dr. C. which has been entered.
- A copy of the report already filed by Dr. B.T.F. (neurologist).
With this email, the Tribunal received a copy of laboratory reports dated June 24th, 2014 showing normal liver function tests and a completely normal haematological picture. Testing was negative for alcohol and its related products.
The Tribunal was then informed by the Agent that the current position of the M.T.O. has been altered in favour of the Appellant that while the suspension continued, they now would need information of only six months abstinence from alcohol with current applicable biochemical markers.
In completing her presentation, the Agent presented the Substance Abuse Assessment Form which had been entered by Dr. C. Pertinent facts that appeared in summarizing this document disclosed that his regular use of alcohol (beer) began at the age of 20 in 1990 when ingestion was basically a few beers on the weekends. His last drink of alcohol was two months ago. The Assessment Form also revealed the following:
- In regards to drug use the Appellant does not indulge.
- The section on Audit regarding use showed that the Appellant drank beer two to four times a month and on a typical day will consume one to two beers. Five beers might be consumed less than monthly. Categories in this section on alcohol use disclosed that there were no problems whatsoever.
- In the section on the drug abuse screening test, his responses were all complimentary indicating that he had no problems with the use of beer. The next section pertaining to the Leeds Dependence Questionnaire showed that the Appellant had no problems.
- The rest of this document was not completed simply because he had no problems. Blood tests presented with this document showed completely normal liver function tests. Haematology screen was unremarkable.
THE APPELLANT’S EVIDENCE
The Appellant began his comments by saying that he had no alcohol problems and that he enjoyed good health. He had been with Dr. C. as his family doctor for 17 years. He described his seizure as slight and said that there were no seizure problems in his family. He went on to note that his employer was very sympathetic and helpful with the matter of getting around while he had no licence. His new pill he described as Celexa which he uses intermittently for an anti-depressant. He explained that he is absolutely no threat on the highway and, of course, he has to drive in order to remain employed. He has very good support from his family on this matter. He says he has never had an accident and also volunteered to comply with all requested blood tests. He explained that he has not been involved in any courses regarding alcohol dependency because he isn’t dependant and considers himself not to have a problem. Also regarding dependency he says that it is obvious no treatment is needed because he has no dependency.
Regarding his seizure he notes that he was using Wellbutrin intermittently and had gone back on it as an anti-depressant a month before the seizure occurred in April 2014. The intermittent use of the drug Wellbutrin was questioned by the Agent and his explanation was that it was a random medication used as per his mild problems with depression. When he arrived at the emergency on the day of the seizure, the drug was discontinued.
He described the events around the time of the seizure at the request of the Agent: a work colleague was driving him and he did feel ill on route to a job assignment. He admitted to having taken a couple of beers the day before this event. At emergency, he was taken off Wellbutrin and his new drug was prescribed.
His last drink of alcohol was on May 12th, 2014. Regarding the Substance Abuse Assessment Form he had no explanation for the fact that Dr. C. didn’t actually sign the form when he took it to him to be processed.
Questioning by the Tribunal indicated that he was about 18 years of age when he had his first drink which is nearly always consisted of beer. Daily amount varied between zero and 3 to 4 beers. The 3 to 4 number is reached usually on the weekend while watching a hockey game. A case of beer would last him in his house with his wife participating for probably 1½ weeks. He denied that he is alcoholic.
SUBMISSIONS
The Agent indicated that she had no need to summarize and that all of her important points have been made. She describes the seizure as alcohol related and the suspension by the M.T.O. was correct. She said they need complete information and are now ready to accept a six month period free of seizure and alcohol use and she asked that the Tribunal confirm this stance by the M.T.O.
The Appellant, in summary, stated that he desperately needs his driver’s licence now and that he is doing everything that is required by way of compliance. He is willing, if necessary, to attend appropriate meetings and submit to all blood testing.
ISSUES
Should the decision of the Registrar to suspend the Appellant’s licence be confirmed, modified or set aside?
Is the Appellant addicted to the use of alcohol or a drug to an extent likely to significantly interfere with his ability to drive a motor vehicle safely?
LAW
O. Reg. 340/94, Section 14 states:
(1) An Appellant 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 Appellant 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 Appellants or holders of that class of driver’s licence set out in the CCMTA Medical Standards for Drivers; and
(b) may require the Appellant 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
On receipt of the Medical Condition Report with reference to seizure and alcohol abuse or dependency, the M.T.O. is required by law to suspend the Appellant’s driving privilege. Having noted this, there are numerous points to be raised in this case:
- Both doctors, in the reports filed, feel that the problem has been resolved and that the Appellant should have his driving privilege restored.
- The Substance Abuse Form elicits virtually nothing that would cause concern
- The M.T.O. has already reduced the period of suspension from 12 months to 6 months
- The Appellant has given a clear description of his use of beer when socializing either with friends or with his wife. His explanations on this matter of beer consumption show his rate of consumption would not cause any concerns for the Tribunal
- Liver function tests are all in the normal range, except an early GGT.
Of some possible concern is the finding of one driving offence with a blood alcohol higher than 80mg on April 26, 2011.
It is likely that the seizure occurred because of the combined impact of Wellbutrin and beer. This mood altering drug has been removed from his regimen. His doctors are confident that this, plus his new policy of abstaining from alcohol, will prevent any further troubles.
The Tribunal observes there has been no evidence to indicate that the Appellant has an alcohol abuse problem. In fact, his consumption rate probably would be considered to be average. Having stopped taking Wellbutrin, the chance of the Appellant having another seizure would very likely be reduced to the same risk to which the population at large is exposed.
The Ministry has acted promptly and correctly in this matter. Review of the information provided to the Tribunal at the hearing indicates that the problem, if any, has already been resolved by good medical advice and the Appellant is no greater a driving risk than the general population.
DECISION
Upon the application by the Appellant to appeal the decision dated May 23, 2014 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 of the Appellant;
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
David W. Hurst, M.D., Member
RELEASED: July 18, 2014