8954 v. Registrar of Motor Vehicles, 2014 CanLII 53664

Licence Tribunal

Appeal d'appel en

Tribunal matière de permis

DATE:

2014-08-19

FILE:

8954/MED

CASE NAME:

8954 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 Appeal a Suspended Licence

Appellant

Appellant

-and-

Registrar of Motor Vehicles

Respondent

REASONS FOR DECISION AND ORDER

ADJUDICATOR:

Kevin Flynn, Member

APPEARANCES:

For the Appellant:

Self-represented

For the Respondent:

Sonia de Santis, Agent

Heard by teleconference:

August 13, 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”).

FACTS

On April 15, 2014 an unsolicited Medical Condition Report was completed by Dr. H., the Appellant’s family physician for over ten years, in compliance with section 203 of the Act.

The conditions reported were:

Seizure

Hypoglycemia

Nocturnal hypoglycaemia with seizure, treated at Emergency Room. Never had hyperglycemia before.

May have misdosed insulin. No daytime hypoglycemia. Check before driving.

Am referring to his diabetes specialist.

On April 22, 2014 the Registrar informed the Appellant that his driving privilege was suspended under section 47(1) of the Act. In order to be considered for reinstatement he was required to have two assessment forms completed:

• Diabetic Assessment

• Epilepsy and Seizure Assessment

The Diabetic Assessment was completed on May 29, 2014 by Dr. M. who has been his diabetes specialist since 2000.

• Diabetes diagnosed in 1998 and started insulin the same year
• Current insulin is Humalog 10-12 units with meals and Lantus insulin 18 units daily
• Blood sugar test readings logged by hand and correspond to meter readings
• Tests three or more times daily, results less than 4 mmol/L = 10%.
• Seven day average = 6.9; 14 day average = 7.9; 30 day average =9.1
• Patient adjusts dosage based on readings
• Most recent A1C April 3, 2014=0.086; previously in January 2014=0.084, consistent with blood sugar logs.
• Diabetes re-education recommended
• Has full understanding of diabetes
• General compliance 4/5
• Aware of early symptoms of hypoglycaemia when blood sugar reaches low of 3.5 mmol/L, with symptoms of feeling anxious, palpitation and tingling of the tongue
• No hypoglycaemic episodes prior to April , 2014 when he had loss of consciousness and convulsion
• Hypoglycaemic episode possibly due to taking an extra dose of insulin at suppertime and had seizure at 1 a.m.
• As a result he now is using a memory insulin pen and has reduced his basal (Lantus) insulin dose

General health:

• Has diabetic retinopathy

• History of myocardial infarction with coronary artery stent in 2003

• History of Lymphoma in 2001.

Hyopglycemia episode was not associated with alcohol.

His blood sugars have been stable since May 12, 2014.

The Epilepsy and Seizure form was completed by Dr. M. on May 13, 2014.

In summary, Dr. M., who is also the diabetes specialist, stated that the Appellant had a seizure that was provoked by hypoglycemia, not requiring an EEG or CT scan and anti-seizure medication was not required. The Appellant’s hypoglycemia has not recurred since May 12, 2014, and corrective measures have been instigated to prevent a recurrence.

The Registrar informed the Appellant on July 2, 2014, that the licence suspension will remain and that consideration for reinstatement required the following:

• Confirmation that he has not experienced any severe hypoglycaemic reactions and has remained stable for a period of six months

• Confirmation that his blood sugar diary is completed at least twice daily for 30 days and contains the number of readings below 4 mmol/L

• Recent HbA1C that is congruent with his blood logs

• Compliance with diabetes re-education program

• Eye test by an optometrist in compliance with the standards

The Appellant submitted a report dated July 10, 2014 by an optometrist showing compliance. He also submitted a copy of a letter sent by Dr. M., his endocrinologist to Dr. H., his family physician, on April 16, 2014.

Dr. M. described the circumstances surrounding the hypoglycaemic episode when the Appellant took a second dose of his evening insulin in error. He awoke at 1 a.m. feeling sweaty, and he had a seizure which resulted in an ambulance attending and transporting him to the hospital. She saw him a week after the episode and instituted changes to his diabetes regimen that included use of a memory insulin pen and closer attention to his blood sugar logs.

The Appellant was advised to check his blood sugar in the middle of the night 2 or 3 times to detect unrecognised nocturnal hypoglycaemia. He was prescribed Glucagon to use if needed to correct hypoglycemia. His Lantus insulin dose and bedtime insulin were reduced. He was asked to keep a log of his blood sugars.

It is possible that he did make a mistake and double dosed his insulin. He was advised to use a memory pen for Humalog.

A report by the Diabetes Education Program dated July 10, 2014 stated that he had not been seen at the DEC program for 25 years when he was first diagnosed.

He received two hours of Diabetes Education including use of the memory insulin pen, balancing his insulin against calories consumed and exercise and logging his blood sugar results. He was recommended to arrange a follow-up appointment.

On July 8, 2014 Dr. M. submitted a letter to the Registrar. The letter includes the following excerpt:

He had a serious hypoglycaemia event on April 2, 2014 at night and accompanied by a seizure.

He has attended my office three times on April 16, May 29 and July 8. He has not had a recurrence of serious hypoglycaemia in that time.

A review of his log book and meter from June 1 to July 8 showed 96 tests. 5.2% were less than 4. He is testing three times a day. The most recent A1C on July 8 was 0.079. This is consistent with his logs.

He has followed my advice and was seen at the Diabetes Education Centre. He has follow-up appointment with me on August 11.

At this time I am unable to say that he has been free of severe hypoglycaemia for a period of six months

The Appellant’s Evidence

The Appellant works two swing shifts at a plant 45 minutes drive from his home. The shifts are 6:30 a.m to 2:50 p.m, and 3:15 p.m. to 11:18 p.m, and recently the plant has been more busy than usual. He finished work at 15:30 and on arriving home on the day in question he did 90 minutes of exercise, as per usual. After exercise his blood sugar was between 7 and 8 mmol/L. He followed his usual insulin routine during the day, took his suppertime insulin, 12 units at 6:30 p.m. At bedtime he tested at 14 and took a correction dose of 5 units of Humalog.

He was tired after work and was forgetful and he believes that he inadvertently took his Humalog insulin twice. He awoke at 1 a.m. very sweaty and had a seizure during which he bit his tongue. His partner called an ambulance and he stated that he arrived at the E.R. at 1:30 am. He was unconscious until 3 a.m. and does not know what his blood sugar levels were during that time.

He was coherent at 6 a.m. He stated that he was not given documentation when he was discharged but was advised to follow up with his family physician.

He stated that this was the only severe hypoglycaemic event in 26 years. He has followed the advice given by his family physician, his endocrinologist, and the Diabetes Education Centre. He carries Glucagon everywhere he goes.

He acknowledged that he has not contacted the DEC for a follow-up appointment mainly due to the distance without ready use of a car.

ISSUES

Should the decision of the Registrar to suspend the Appellant’s licence be confirmed, modified or set aside?

Does the Appellant no longer suffer from a mental, emotional, nervous or physical disability 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 Respondent relies on:

1. The Medical Condition report from a physician in compliance with section 203 of the Act, of severe hypoglycemia and seizure authorised the suspension of his driving privilege under section 47(1) of the Act.

2. The Canadian Council of Motor Transport Administrators, (CCMTA), guideline 7.6.4 for non-commercial drivers section applies to severe hypoglycaemia, which states that:

Eligible for a licence if

Treating physician indicates stable glycemic control is re-established and the authority determines that he is fit to drive, Time required to re-establish glycemic control varies individually

No further hypoglycaemic episodes within the past six months

Conditions for maintaining a licence are met.

Conditions for maintaining licence:

Must test blood glucose immediately before driving and approximately every hour while driving

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 6.0 mmol/L after food ingested.

Reassessment:

Reassess based on opinion of the treating physician or at the discretion of the Authority

The Appellant relies on

1. The hypoglycemic event took place at night and he has never experienced a daytime hypoglycemic event.

2. He inadvertently took a double dose of the bedtime insulin due to tiredness and forgetfulness.

3. His A1C results have shown consistency with his glycemic control since April 2, 2014, as stated by his endocrinologist.

4. With use of the memory insulin pen and following the advice given by his family physician, his endocrinologist, and the Diabetes Education Centre, it is unlikely that this event will recur.

The Tribunal finds as follows:

1. The Registrar was justified in issuing a suspension of the Appellant’s driving privilege upon receipt of a physician’s report in compliance with section 203 of the Act, of severe hypoglycemia and seizure.

2. The probable reason for the nocturnal severe hypoglycemia and seizure has been document by the diabetes specialist. The Tribunal concurs.

3. Corrective measures to prevent a recurrence have been in place since the reported event.

4. The follow up report by the endocrinologist indicates good glycemic control and compliance.

5. The Tribunal finds that the period of six months suspension under CCMTA Guideline 7.6.4 may be safely reduced. The guideline acknowledges that the time required to re-establish glycemic control varies individually.

6. The Tribunal finds that the Appellant no longer suffers from a medical condition likely to significantly interfere with his ability to operate a motor vehicle safely.

DECISION

Upon the application by the Appellant to appeal the decision dated May 2, 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

Kevin Flynn M.D. Presiding Member

Released: August 19, 2014