Licence Tribunal
Appeal d'appel en Tribunal matière de permis
DATE: 2014-09-04
FILE: 8948/MED
CASE NAME: 8948 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:
The Appellant’s husband , as Agent
For the Respondent:
Kyle M. Biel, Agent
Heard in Toronto
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 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
The Notice of Appeal contained an outline of the events, prepared by the Appellant’s husband. From this narrative, certain observations have been made by her husband. He said that the ambulance driver told an attending doctor on arrival at hospital that the patient had had a seizure but the medical staff had never witnessed the seizure. They assumed this from what the husband had told them. All of this had developed at seven in the morning that day when the Appellant passed out in the bathroom leading to a 911 call. Her husband stated that through all of the medical reports there was never a complete or definite conclusion that his wife had had a seizure. He said she was treated for various electrolyte deficits and was given a two week prescription for assorted electrolytes to take at home.
Her husband also provided copies of two medical reports from her family doctor and two from her neurologist.
This Agent also provided the Tribunal with a copy of a “physician progress and order record” from a regional health centre. Comments from Dr. W. are as follows:
1: Her ETOH (Ethyl alcohol intake) is more like one mickey per day rather than 3oz. She has been in rehab. It is not clear to me that she actually had a witnessed seizure.
2: K+ (potassium level in the blood stream) was 2.8. The urine K+ was appropriate, the MG++ (serum magnesium level) was down at 0.53, after magnesium infusion yesterday.
3: CT of head – normal.
Mr. Biel, opened his presentation by referring to a Medical Condition Report filed with the Ministry of Transportation (“M.T.O”.) on August 30th, 2011 in which the comments in the tick box indicated alcohol dependence, seizure(s) – alcohol related. Under optional notes, there is a comment about a first seizure and also consumption of 16oz per day intake (presumably alcohol). This form was signed by Dr. S. F.
On August 31st, 2011, the M.T.O. wrote to the Appellant indicating that she had a condition which impairs her ability to safely operate a motor vehicle. This report was submitted in compliance with the Highway Traffic Act.
In the letter, the Ministry noted the following conditions:
- Alcohol dependence
- Seizure(s) – alcohol related
The M.T.O. also indicated that they could reconsider her case for reinstatement upon receipt of information satisfactory to the Registrar.
The report was required to include the following:
The results of all investigations, diagnosis, prognosis, treatment, current status, confirmation that the condition is controlled and that there are no other disqualifying medical concerns that may impact her ability to safely operate a motor vehicle.
Completion of the enclosed Substance Assessment Form.
If as a result of the assessment, your physician confirms a diagnosis of alcohol dependence, the Ministry will require confirmation that you have remained abstinent from alcohol for a period of one year.
A clinical explanation must be provided for the results of any biochemical marker (MCV, GGT, AST & ALT) that are outside the normal laboratory range.
A reference to your reported seizure(s)
Details of the circumstances surrounding the reported seizure as well as details of any previous seizure whether alcohol related or not.
Mr. Biel’s next entry was a copy of the Substance Abuse Assessment Form.
Mr. Biel then presented a copy of the Physician Progress and Order Record mentioned earlier, filled in by Dr. W. wherein he said he had spoken with the Appellant’s husband one day previously and that her ETOH(Ethyl alcohol intake) is more like one mickey per day rather than 3oz in rehab.
Mr. Biel also entered a copy of a consultation note from Dr. B.K. dated February 7, 2012. Pertinent comments are extracted.
Thank you for asking me to see this 48 year old lady for a long history of alcohol abuse and recent episode for a possible seizure.
She has a longstanding history of alcohol abuse for 25 years. She admits that she now drinks about 5 – 6oz of Vodka daily for the past two months. This has been a decrease as she previously drank 10oz per day. She had a possible seizure which occurred in late August 2011.
She was admitted to a regional health care centre for four days and was found to be suffering from low potassium and low magnesium, being corrected prior to her discharge.
CT of the head showed no abnormality.
She had no previous seizures. There is also no family history of seizures.
Neurological examination - normal.
Impression – the patient has a longstanding history of alcohol abuse. The episode which occurred in August 2011 is quite suggestive of seizure which can be related to her alcoholism or from metabolic disturbance as she was found to have hypokalemia (low potassium) and hypomagnesimia at that time. Arrangements were made for an EEG to look into any epileptiform activity.
A second letter from the neurologist Dr. B.K. dated May 10, 2012 was entered.and the following extract was noted
She had an episode of seizure which occurred in August 2011. She also has a history of alcohol abuse. EEG March 13th, 2012 was normal, no epileptiform form activity. No further seizures. She has gradually cut down her drinking and is now down to one glass of wine at dinner daily.
Neurological examination was normal. Final comment “I think the episode of seizure which occurred last year is either from alcohol withdrawal or from metabolic disturbance”. No further visits are scheduled.
Mr. Biel then entered a short note from Dr.E.L. (family physician) quoted as follows:
“This is to certify that “Appellant” who has been my patient for 13 years had no reported seizure episodes since August 30th, 2011. She was seen by Dr. B.K. the neurologist who has ordered an EEG and this has not shown any abnormal brain activities. She believed that the only one possible seizure on August 30th, 2011 was either metabolic or related with alcohol withdrawal. She does not require any medical treatment nor follow up and she has been seizure free since then. I hope that the above information will be useful for reinstating her driving licence.”
This same Dr. E.L. sent a further note stating:
“This is to certify that the “Appellant” who has been my patient for 14 years has no reported seizure episodes since August 30th, 2011. She does not require any follow up, or treatment from her neurologist Dr. B.K. who believes that her one possible seizure was either metabolic or due to alcohol withdrawal. She had an EEG done which showed no brain abnormality.
Please take the above information for consideration of reinstating her driver’s licence”.
On July 18th, 2014 the Ministry wrote to the Appellant noting the subsequent reports filed on her behalf and that it had been determined that her driving privilege should remain under suspension. The ministry asked that the following information be sent to the Medical Review Section:
- The enclosed form(s) completed in full and all questions answered
- 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 next entry from Mr. Biel was his second copy of the Substance Abuse Assessment Form which has never been filled in.
Mr. Biel then entered a certified copy of the Appellant’s driving record indicating only a suspension for medical reasons on September 10th, 2011.
Mr. Biel also provided the Tribunal with a copy of the CCMTA medical standards for drivers with emphasis on section 15.6.3, page 230 wherein it states.
All drivers eligible for a licence if
Meets the criteria for remission and/or has abstained from the substance for 12 months.
Earlier re-licencing may be considered upon favourable recommendation from an addictions specialist and/or treating physician recognized by the licensing authority and the successful completion of a drug rehabilitation program.
Mr. Biel went on to state that a total of three copies of the Substance Abuse Form have been sent to the Appellant and none of them have been completed. He observed that there is a diagnosis of alcohol abuse with no evidence of abstinence, no evidence of treatment at a rehab centre, and total disregard of the Substance Abuse Form.
He then presented to the Tribunal a summary by her husband, the progress notes by Dr. W. indicating the excessive amounts of alcohol being ingested.
Mr Biel conceded that this seizure which has been mentioned by the doctors was not witnessed and while it may well have occurred either due to withdrawal from alcohol or metabolic disturbances, for the purposes of this hearing this matter can be waived.
SUBMISSIONS FROM THE AGENT FOR THE APPELLANT
He began by questioning whether his wife needs to be abstinent for life. Mr. Biel responded by saying that for licencing the Appellant must show a well-documented one year interval of abstinence and evidence from an up-to-date treatment program and this plus suitable comments from her doctors could reduce this interval. At this moment, it was observed by the Tribunal that the Appellant admitted to only one month of abstinence to date. Her husband admitted the letters from Dr. K. and Dr. L. both indicate that the Appellant had an alcohol problem ( the Tribunal observes that Dr. L. did not mention this problem). He went on to describe his wife’s admission to an addiction treatment centre for 30 days on each occasion, once in the early 90’s and again in the late 90’s. There are no details of these episodes at the addiction centre, but her husband said they did not really feel there was a problem with alcohol or seizure. He went on to say that the M.T.O. hasn’t proven their case particularly and that his wife hardly drinks now. He explained that she was suffering from electrolyte problems and these caused her admission to hospital and what may have only been a fainting spell, not due to alcohol and not a seizure.
Detailed questioning from the Tribunal indicated that she first used alcohol in her late teens. Vodka was the alcohol which she consumed with family and/or friends three days a week. She has been married to her husband, J.L. for 29 years. She used to drink once a week and is now consuming wine with the evening meal. Inquiry about the visits to the rehab centre gave the Tribunal the information that she went of her own volition as she thought it was a good idea regarding her drink. She then was consuming possibly 3 – 4 one ounce drinks of vodka per day. She went to rehab on both occasions because this had become a daily event. No doctors were involved in her referral there. No one at the rehab centre told her to quit. She was given no follow up appointments and direct questioning about an information sheet or summary bulletin stated that none of this had been presented to her. She said she was not an alcoholic.
Mr. Biel cross examined the Appellant to clarify her consumption with dinner was 3 – 4 ounces of alcohol. Mr. Biel indicated that based on comments of Dr. W. in his progress notes when she was taken to a regional medical centre, he believed she was abusing alcohol significantly with a consumption of a mickey a day (which indeed was estimated by her husband to be 13 ounces daily). Mr. Biel submitted that the Appellant is not being truthful to the Tribunal. At this point, her husband told the Tribunal that the reason she had gone to the rehab centre on two occasions was because he threatened divorce if she didn’t do something about her drinking problem. He informed the Tribunal that at that time, she was getting through a “mickey” a day for the past six or seven months.
SUBMISSIONS FROM MR. BIEL
He explained that the Ministry had no option but to act on the receipt of a Medical Condition Report indicating possible seizure and alcohol abuse, (see section 47(i) of the Highway Traffic Act).
He told the Tribunal that the information provided to the Ministry and to the Tribunal by the Appellant at the hearing is inadequate and much more is needed. He strongly emphasized the importance of the completion of the Substance Abuse Assessment Form and the receipt of more reports from Dr. K. and Dr. L. regarding alcohol abuse. He was prepared to waive the problems of the seizure as it was not witnessed and there is little documentation about it. He surmised that when the Appellant had gone to rehab on two occasions seeking help, she was consuming 3oz of vodka a day – and still does so.
The Appellant’s Agent summarized by conceding the M.T.O had the right to suspend her licence. He stated that Dr. L., his wife’s physician for 25 years knew of her drinking habits, but she has not indicated a problem this in her statements to the M.T.O.
ISSUES
Should the decision of the Registrar to suspend the Appellant’s licence be confirmed, modified or set aside?
In particular:
Is the Appellant addicted to the use of alcohol or a drug to an extent likely to significantly interfere with 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.
Section 47(1) of the Act gives the Registrar the power to suspend or cancel a driver’s licence on the ground(s) set out in section 14 (1) of the Regulation set out above.
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’s licencing problem came to light when the M.T.O. received a Medical Condition Report dated August 30th, 2011 with a tick mark for alcohol dependence and seizure(s) – alcohol related.
The Ministry was obliged by the Highway Traffic Act to suspend the Appellant’s driving privilege.
The Appellant does admit that in the1990s she twice took herself to an addiction centre for rehabilitation because she was concerned about her consumption of vodka. Having said that, on direct questioning from the Tribunal at the hearing, she stated quite clearly that she was just a casual mild drinker, with no problem at present or even before. Her husband, interjected in her comments, to note that the reason she went to the rehab centre was because he threatened divorce if she didn’t do something about her alcohol abuse.
Dr. K. (neurologist) in her consultation note of February 7th, 2012 refers to the Appellant’s long history of alcohol abuse expanding this further by saying this was a longstanding history of alcohol abuse for 25 years. She also observed that her patient, the Appellant, now drinks about 5 – 6 ounces of vodka daily for the last two months. Her Agent has not helped his wife very much when stating that on one occasion that he could leave his wife for 4 – 5 days when he was away at the cottage and she did not take a drop but also almost in the next breath described how he threatened divorce to get her to seek help with her alcohol problem.
Mr. Biel voluntarily waived the matter of the seizure which may or may not have happened, but could have happened on the basis of either alcohol withdrawal or metabolic disturbance. Since this event was not witnessed, the Tribunal concurs. The problem remaining, however, is that one must determine if the Appellant has an alcohol addiction.
On direct questioning at the hearing and combining this with the observations in Dr.K.’s initial submission, it is very likely, on a balance of probabilities that the Appellant suffers from alcohol dependence. Unfortunately, very little laboratory evidence has been presented regarding the condition of the Appellant’s liver.
The Tribunal’s view is that the Ministry has acted correctly on receipt of this Medical Condition Report and the Appellant has failed totally as regards to the Substance Abuse Form survey. The Ministry’s CCMTA guidelines suggest a minimum period of one year of abstinence before a driver is re-licensed .On the facts of this case, the Tribunal finds no good reason why the guideline should not be followed. The Appellant ’s period of abstinence should be documented by suitable medical scrutiny, and a follow up study of her liver function tests, and more information should be requested and obtained from her family doctor regarding her patient’s alcohol consumption.
DECISION
Upon the application by the Appellant to appeal the decision effective August 31st, 2011 of the Registrar to suspend her 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 confirmed.
LICENCE APPEAL TRIBUNAL
David W. Hurst, M.D., Member
Released: September 4, 2014