Licence Tribunal
Appeal d'appel en
Tribunal matière de permis
2014/08/26
FILE:
8949/MED
CASE NAME:
8949 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-
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 De Santis, Agent
Heard by teleconference:
August 12, 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
Sonia De Santis, Agent for the Respondent advised the Tribunal of a Medical Condition Report received by the Ministry, regarding the Appellant, July 29, 2005. It was signed by Dr. S. There had been two grand mal seizures with none previous. Extensive studies were done.
On August 31, 2005, the Respondent wrote to the Appellant to say they had received a report indicating that he suffered from a medical condition, which may impair his ability to safely operate a motor vehicle. The Appellant’s driving privilege was suspended for medical reasons under Section 47(1) of the Act. In this letter, the Respondent explained that they could reconsider the Appellant’s case upon receipt of medical information satisfactory to them. They asked for an up-to-date report from a physician familiar with his medical history or a neurologist regarding his seizure. This report was to include the results of all investigation initiated by his doctor (i.e.: EEG, CT scan), prescribed treatment and cause for the seizure. A narrative of this and any previous seizure history was also required. The Agent’s next entry was a note from Dr. A. (neurologist) to the Respondent dated January 11, 2006, which stated as follows:
This is to advise that the above patient has been seen in neurological consultation on several occasions with the initial visit August 16th, 2005 and then again on October 5th, 2005 and his last visit January 11th, 2006. He was seen at the request of his family physician owing to two seizures occurring in quick succession on the morning of July 29th, 2005. His past history revealed that he had cerebral concussions concomitant with the episodes on July 29th, 2005. He had a flu like illness and was likely hypoglycaemic and was also sleep deprived. Hence his threshold for seizure I believe was significantly lowered.
This man underwent extensive investigations. An MRI scan of the brain was entirely normal. A routing EEG was normal and he was then sent for a follow up EEG with sleep deprivation and T1 and T2 electrodes and this proved to be normal as well.
I believe that this man’s neurological situation is entirely stable at this point. I see no need for anticonvulsant medications. It is requested at this point that his driver’s permits be reinstated.
I would be pleased to discuss this case with you further.
On February 7, 2006, the Respondent wrote to the Appellant saying his Medical Report has been approved and that a notice of reinstatement would be mailed to him under separate cover.
The next entry in the Agent’s presentation consisted of a Medical Condition Report signed by Dr. C. dated June 13, 2011, and the tick box was marked for seizure(s) – cerebral. There were no added notes.
On August 12, 2011, the Respondent wrote to the Appellant indicating that he had a condition which impairs his ability to safely operate a motor vehicle. The problem was listed as seizure and the Registrar had decided to suspend his driving privilege under: Section 47(1) of the Act. For the Respondent to consider reinstatement, they requested:
The results of all investigation, diagnosis, prognosis, treatment, current status, confirmation, that the condition is controlled and that there no other disqualifying medical concerns that may impact your ability to safely operate a motor vehicle.
In addition, they required “a reference to your reported seizure(s), including a narrative of your seizure history, cause and confirmation that you have remained seizure free”
On December 12, 2011, Dr. A. wrote to the Respondent stating as follows:
This is to confirm that the Appellant was seen by me in neurological consultation on October 27th, 2011 at the request of his family physician, Dr. L. The Appellant has a history of cerebral seizure disorder and had remained neurologically quite well until June 2011 when he suffered a further generalized major seizure.
The Appellant continues on Keppra 500mg b.i.d. and is tolerating this well. He has remained seizure free since June 2011. Subsequent to his assessment in October 2011, the Appellant has had an MRI scan of the brain as well as an EEG on his medication. Both of these tests were normal.
At this point I see no contraindication to this man operation a motor vehicle and request that his driver’s licence be reinstated.
On January 18, 2012, the Respondent wrote to the Appellant stating that his Medical Report has been approved for a Class “G” licence.
The Respondent went on to state that:
As this report indicates that he no longer meets the national standards for a commercial licence due to your reported history of loss consciousness or awareness due to a chronic or reoccurring condition, your commercial licence will be changed to a Class “G” licence.
Should he wish to regain his commercial licence, he will be required to file a further report from his treating physician or specialist. The report must include the following:
Confirmation that you remain seizure free for a period of five years, on or off medication; Confirmation that medication is within therapeutic range and that you are compliant, if prescribed.
The Agent then presented a copy of a lengthy consultation note from Dr. A., dated October 27, 2011. A synopsis of this report is as follows:
The Appellant was 31 years old and he had been seen initially by Dr. A. in 2005 with a history of two generalized major seizures occurring in quick succession. On July 8, 2005, his seizure investigations were normal. It was observed that the Appellant was sleep deprived and had not been eating well prior to the event. His driver’s permit was suspended for a period of time and then reinstated. He was on no medications.
He experienced significant mid-back pain at that time following the seizures and X-ray showed compression fractures of thoracic vertebrae. The Appellant was seen in 2009 with a history of severe protracted headache and an MRI scan of the brain and an MR cerebral angiogram showed no abnormality.
The Appellant remained neurologically stable until mid-June of 2011 when, shortly after awakening, he experienced a generalized major seizure; his wife found him convulsing. He was taken to hospital and another generalized seizure was observed. At a regional medical centre, investigations were performed including a normal CT head scan and blood work was said to be unremarkable. He was started on Keppra and currently takes 500mg b.i.d. Attempts to go as high as 1000 b.i.d. were poorly tolerated.
The Appellant has subsequently remained seizure free. The Appellant is now in some position of conflict with the City where he works regarding their ability to accommodate him in a modified capacity for long term disability (without his commercial licence). The insurance company says that he is not disabled. This matter is being pursued by his union. The Appellant is now using Tylenol and Advil, hot baths and massage to control his back pain from the previous fractures. He now has some problems with insomnia and is using Gravol.
Neurological examinations were normal.
Investigation: A routine EEG on June 17, 2011, showed intermittent paroxysmal dysrhythmic activity without focal or lateralized features. A repeat EEG with sleep deprivation on July 27, 2011, showed spike bursts and wave complexes maximal in the anterior regions. The features were epileptiform in nature. X-ray of the thoracic lumbar spine on June 29, 2011, showed mild anterior wedging of several mid thoracic vertebral bodies comparable what was seen on the previous x-ray in December 2010.
CT head scan was normal.
Impression: In summary this patient has suffered two further generalized major seizures. They seem to have occurred once again at a time of sleep deprivation. He consumed a very modest amount of alcohol only. EEG is now showing an epileptiform disturbance. As the Appellant was to continue on Keppra 500mg b.i.d. he should have a follow up EEG on medication and a further MRI scan of the brain.
The doctor suspected that the seizure aggravated the pre-existing compression fractures of the thoracic vertebrae and probably also caused some soft tissue injury to the mid-thoracic spine and stated:
I am going to complete the assessment with an MRI scan of the thoracic spine.
In the meantime he is to continue with physiotherapy and his medication regimen including Tylenol and Advil. I have added Diazepam 5 – 10mg one hour before retiring to improve sleep patterns and effect some muscle relaxation.
Should the Appellant remain seizure free for another six weeks then a favourable letter will be sent to the Ministry of Transportation. He feels capable of returning to his previous job as a supervisor for his City in the Department of Public Works.
On July 22, 2014, the Respondent wrote to the Appellant that further information is required in order to consider his case for a commercial licence. Again, they require of the Appellant:
Confirmation that you remain seizure free for a period of five years either on or off anti-convulsive medication and confirmation of your compliance with recommended treatment, if prescribed and/or insight into your condition.
A copy of the Appellant’s driving record showed that on August 22, 2011, his licence was suspended for medical reasons. It was reinstated on January 18, 2012, (this would have been a “G” licence).
The Agent’s final submission was a copy of the CCMTA document in reference to Section 17.6.11 on page 253. Herein this report outlines the standards of commercial driver eligibility if they have not had a seizure with or without medication for five years and the condition for maintaining a licence are met. The Agent indicated that this be a downgrade to a “G” licence.
THE APPELLANT’S CASE
The Appellant questioned the Agent in reference to the CCMTA report Section 17.6.12 page 254 wherein he observed that the standard is that commercial drivers are eligible for a licence if the driver is experiencing seizures but the seizure pattern has been consistent for at least five years with no prolonged postictal impairment in wakefulness.
He submitted that the Respondent should consider Section 17.6.12 of the CCMTA. His seizure pattern is always something that occurs early in the morning before breakfast and this is always before he goes driving. He also noted that since 2011 he has been on his medications, tolerating them well and is stable with no further trouble.
The Agent then wanted further details of the events in 2005 at which time the neurologist showed no concern, with no medications being required and also all investigations were normal. The Appellant thought possibly concussions while playing hockey might be a neurological factor. The Appellant also confirmed that there have been no further seizures since 2011 and that he has been discharged from care - to see his GP if needed. He has been told that he needs no further neurological consultations.
The Agent drew attention to the medication that he is using and that it is Keppra and that the dosage is 500mg b.i.d. He does not tolerate higher doses very well.
SUBMISSIONS
The Respondent’s Agent submitted that this is an appeal regarding the downgrade of the Appellant’s commercial licence. He has suffered two consecutive seizures in 2011. They occurred in the early morning and were observed. She underlined the fact that a routine EEG has now shown an epileptiform pattern.
The Agent outlined the Respondent’s position that there must be five years of stability with no further seizures before a commercial licence can be restored.
On questioning from the Tribunal, the Appellant stated that while he has a “G” licence, it is the policy of his City’s administration that to maintain a supervisor position he must have a commercial rating and that no further advancement can be achieved until his commercial licence is restored.
The Appellant also said that this matter has resulted in a grievance being filed by his union and this is under consideration.
ISSUES
Should the decision of the Respondent to change the class or class of motor vehicles in respect of which the licence is issued be varied, modified or set aside?
Does the Appellant 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 DZ licence?
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
The Appellant, following his two seizures in 2005, was considered not to need medication. His clinical progress was satisfactory until the two consecutive seizures which occurred in 2011 and now an EEG shows an epileptiform disturbance. Other than that, as a result of these events of 2011, the neurologist at a regional medical centre started him on Keppra – 500mg b.i.d. At the time of Dr. A’s further consultation on October 27, 2011, he concurred with the use of this drug and stated in his note that:
If he remains seizure free for another six weeks, then a favourable letter will be sent to the Ministry of Transportation. At this point the Appellant feels that he could return to his previous job as a supervisor for his City in the department of Public Works. I certainly concur.
The Appellant has made a helpful comment for his case in his reference to 17.6.12 of the CCMTA page 254 – Standard – commercial drivers eligible for a licence if, “the driver is experiencing seizures but the seizure pattern has been consistent for at least five years.”
Further in support of the Appellant’s case, it is recorded and the information given to the Tribunal is that his seizure pattern is exactly the same: two consecutive seizures, early morning, sleep deprivation, or hypoglycaemia. He is now stable on his drug – Keppra. His neurologist states that he is no longer a risk.
The Ministry’s position is a result of the requirements of the Highway Traffic Act and it acted accordingly.
The Appellant has had no further problems since mid-June of 2011 and it is therefore almost 3 years and 3 months since his last seizure and he is now being covered with and anti-epileptic drug.
Given that his seizures have been almost identical in nature and occurred at the same time of each day, before he would be driving and the fact that he is now controlled on Keppra, based on the evidence before the Tribunal, it concludes, on a balance of probabilities, that the risk of the Appellant having a seizure on the highway is minimal to non-existent.
DECISION
Upon the application by the Appellant to appeal the decision dated January 18, 2012, of the Respondent to change the class of motor vehicle in respect to 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 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., Presiding Member
RELEASED: AUGUST 26, 2014.