Licence Appeal Tribunal
Tribunal d'appel en matière de permis
FILE: 9159/MED
CASE NAME: 9159 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
9159 Appellant
-and-
Minister of Transportation Respondent
REASONS FOR DECISION AND ORDER
ADJUDICATOR: Kevin Flynn M.D., Member
APPEARANCES:
For the Appellant: Peter M.B. Eberhard, Counsel
For the Respondent: Sonia de Santis, Agent
Heard in Toronto: December 2, 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”).
PRELIMINARY MATTERS
Mr. Eberhard asked if the cardiologist on the Medical Advisory Committee would be available as a witness at the Hearing. Ms. De Santis replied that a summons to attend had not been issued. The Tribunal advised Mr. Eberhard that if he wished to formally request the appearance of the cardiologist at any stage of the hearing he could do so. The Appellant elected to proceed with the hearing.
FACTS
The Registrar’s Evidence
The Registrar received an unsolicited Medical Condition Report completed on November 2, 2012 by Dr. P, a family physician, in compliance with section 203 of the Act.
The reported condition was: Non-ischemic Cardiomyopathy
The Registrar informed the Appellant, on January 23, 2013 that it had been decided that his driving privilege was suspended under section 47(1) of the Act. The Appellant is 53 years old and the holder of a Commercial Driver Licence,
In order to be considered for reinstatement, he was instructed to take the letter of suspension to his treating physician. A Cardiological Assessment for Commercial Drivers was enclosed and was to be forwarded, when completed, to the Medical Review Section. When received, this information would be reviewed against the National Medical Standards.
On January 31, 2013 the Appellant’s Cardiologist, Dr. H., completed the assessment form.
The conditions reported were:
“Arrhythmia or Conduction Disturbance
Other Cardiac Conditions.
Details:
Atrial fibrillation, on anticoagulant therapy; CHADS score 1
Tachyarrhythmia for 3-5 months.
Pacemaker or Implantable cardioverter not implanted.
Arrhythmia has been successfully treated or controlled
Congestive heart failure
Inotropic support in hospital has been required.
Medication has been prescribed.
The patient is compliant and has appropriate insight into the condition and the impact on his functional ability to drive.
New York Heart Association (NYHA) functional class 1. (No limitation of physical activity and no symptoms during daily activities).
Left ventricular ejection fraction less than 35% in the past 3-6 months obtained by ECHO (Echocardiogram)
Additional comments: Patient is medically stable and asymptomatic. I believe him to be fit to resume non-commercial driving”
The Registrar informed the Appellant on February 28, 2013 that his Class ‘G’ licence had been approved. The report received from his cardiologist indicated that he no longer met the National Medical Standards for a commercial licence.
In order to be considered for a commercial licence he was required to submit a further report that confirms significant improvement in his heart condition with NYHA functional class 1 or 2 and a left ventricular ejection fraction of 35% or greater.
On May 22, 2014, the Appellant’s cardiologist, Dr. H. completed a second assessment.
Details:
“Atrial fibrillation, on anticoagulant therapy; CHADS score 1
Tachyarrhythmia for more than 6 months.
Pacemaker has been implanted
Implantable cardioverter defibrillator (ICD) has been implanted 6-12 months ago. No shock or device intervention in 6-12 months. Implanted for Primary Prophylaxis.
Annual risk of sudden incapacitation is less than 1%.
Arrhythmia has been successfully treated or controlled
Congestive heart failure
Inotropic support in hospital has not been required since October 2012.
Dilated or ischemic cardiomyopathy has required hospital inotropic support in October 2012, but not since.
Medication has been prescribed.
The patient is compliant and has appropriate insight into the condition and the impact on his functional ability to drive.
New York Heart Association (NYHA) functional class 1. (No limitation of physical activity and no symptoms during daily activities).
Left ventricular ejection fraction (E.F.) 35-50% in the past 3-6 months obtained by MUGA Scan
No evidence of cognitive impairment.
Additional comments: (Appellant) wishes to drive in Canada and the US. He originally presented in October 2012 with heart failure which required inotropcs. Since then symptoms have resolved and E.F. has improved from 35% to 39%.”
Dr. H. stated as follows, in a letter directed To Whom It May Concern on May 22, 2014:
(Appellant) is medically fit to return to his previous occupation (commercial truck driving), without restriction, pending Ministry of Transportation reinstatement of his licence.
The Medical Advisory Committee reviewed the reports received up to May 30, 2014.
The Committee recommended on September 19, 2014 that reinstatement to Class ‘A’ be denied.
The reasons: The driver has an ICD, has had heart failure and a non-normal EF. Despite the fact that the physician has filled out the form indicating that the risk of sudden incapacitation is less than 1%, these data would not support that calculation.
The driver is ineligible for any class of commercial licence. However is eligible for a Class ‘G’ licence.
The Registrar informed the Appellant accordingly on September 26, 2014.
The Registrar’s Agent cited the following applicable standards recommended by the Canadian Council of Medical Transportation Administrators, (CCMTA):
Section 3.3: Research indicates that drivers with cardiovascular disease as a whole have a higher risk for adverse driving outcomes than those without cardiovascular disease. However, there is relatively little research on the effects of specific cardiovascular disorders and driving outcomes.
Section 3.6.26: For commercial drivers who have an ICD implanted as primary prophylaxis.
When implanted as a primary prophylaxis, the ICD is implanted to prevent cardiac death in individuals considered to be at high risk but who have not had an episode of ventricular arrhythmia.
Individuals whose ICD also regulates pacing for bradycardia must also meet the standard for permanent pacemakers in section 3.6.24.
Standard: Commercial drivers generally not eligible for a licence. May be eligible if
Cardiologist assessment indicates that the annual risk of sudden incapacitation is 1% or less, and
The driver meets the standard of ICD implantation as a primary prophylaxis in non-commercial drivers 3.6.25.
Canadian Cardiovascular Society (CCS) recommendation:
An ICD may sometimes be implanted in low risk patients. Individual cases may be made for allowing a commercial driver to continue driving with an ICD provided the annual risk of sudden incapacitation is felt to be 1% or less.
Section 3.6.25: Standard for non-commercial drivers:
Eligible if
They are assessed as NYHA Class 1,2 or 3
It has been 4 weeks or more since ICD implanted
The conditions for maintaining a licence are met if applicable
Section 3.6.29: ICD therapy (shock or ATP) has been delivered and there is an associated impaired level of consciousness – Non-commercial drivers.
Section 3.6.30 ICD therapy (shock or ATP) has been delivered
Standard: Commercial drivers are ineligible for a licence.
Section 3.6.44: Left ventricular dysfunction or cardiomyopathy –Commercial drivers.
Standard: Commercial drivers are eligible for a licence if
They are assessed as NYHA Class 1 or 2
They have a LVEF of equal or greater than 35%
They are not receiving intermittent inotropes, and
They are not using a left ventricle assist device.
Ms. De Santis was asked if the Appellant would qualify for re-instatement of his commercial licence if he did not have an ICD/Pacemaker. She replied that provided he had an ejection fraction of 35% or greater he would qualify. However she stated that the Medical Advisory Committee had other concerns, for example, a history of heart failure requiring the use of inotropes in hospital, and abnormal ejection fractions. She also responded that it would be unreasonable for the Appellant to have the ICD removed.
The Respondent’s Evidence
Under affirmation, the Appellant stated that on October 20, 2012 while driving in the U.S. he had a sudden onset of chest pain similar to a rib injury. He returned home and was admitted to hospital where he was found to have heart failure. He was treated by the cardiologist Dr. H. and saw his family physician, Dr. P. following discharge three weeks later.
Dr. P. made the report to the Ministry. At that time, his left ventricular ejection fraction (E.F.) was 15%. Following treatment, the E.F. rose to 27% prior to the implantation of the ICD in October 2013.
In May 2014 the E.F was 39%. He saw Dr. H. for adjustment of his medications. He had quit smoking one pack per day and his exercise tolerance improved.
On November 20, 2014, Dr. H. wrote:
(Appellant) had an implantable cardiac defibrillator/dual chamber pacemaker inserted on October 25, 2013 for primary prophylaxis (as a preventative measure prior to having an event) against sudden cardiac death for non-ischemic cardiomyopathy and a cardiac ejection fraction of less than 35% (26%).
He has never had an event which would necessitate treatment with a defibrillator, either before or after insertion of the device.
Neither has (he) ever had slow cardiac rhythm which required pacing.
Since the device was inserted his cardiac ejection fraction has improved to greater than 36% (39%) and he is NYHA functional class I (normal), and if he presented now, an implantable cardiac defibrillator/dual chamber pacemaker would neither be required or recommended and he would not qualify for device insertion.
I believe that (he) is fit to resume commercial driving, and that his annual risk for sudden incapacitation due to cardiac cause if less than 1%.
A review of the Appellant’s cardiac device on July 20, 2014 (forwarded to the Ministry in October, 2014) by a rhythm specialist, Dr. LF, noted that despite lack of shock symptoms the Appellant had recurrent events of atrial fibrillation with a very rapid ventricular rate which were interpreted as ATP (Antitachcardia Pacing). His medication was increased and the device was reprogrammed to intercept further rhythm events.
Dr. LF. notes that the Appellant had no episodes of treated VT (Ventricular Tachycardia).
The Registrar informed the Appellant on November 5, 2014 and on November 13, 2014 that following review of additional reports he did not qualify for reinstatement of his commercial licence.
ISSUES
Should the decision of the Respondent to change the class or class of motor vehicles in respect of which the licence is issued in accordance with the result of the examination 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 ’A’ licence?
LAW
The relevant statutory provisions state as follows.
Section 32(5)(b)(i):
- 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.
Submission by the Respondent
The Registrar was obligated to issue a downgrade of the Appellant’s driving privilege from Class AZ to Class G upon receipt of a Medical Condition Report that indicated a cardiac condition with an Ejection Fraction below the National Medical Standard for a commercial licence.
On the recommendation by the Medical Advisory Committee (MAC), the Registrar denied reinstatement after the Appellant received an implant of a dual chamber cardioconverter defibrillator (ICD) for primary prophylaxis. MAC disagreed with the assessment by the Appellant’s cardiologist that showed an ejection fraction of 39% with an annual risk of sudden incapacitation of less than 1%.
MAC is concerned by the occurrence of ATP in the absence of symptoms experienced by the Appellant.
The CCMTA section 3.6.44 stipulates an ejection fraction of equal or greater than 35% for commercial drivers
Submission by Mr. Eberhard on behalf of the Appellant
The standard for commercial drivers under CCMTA section 3.6.26 states that commercial drivers may be eligible if the cardiologist assessment indicates that the annual risk of sudden incapacitation is 1% or less and the driver meets that standard for ICD implanted as a primary prophylaxis in non-commercial drivers under section 3.6.25
The evidence by the Appellant’s cardiologist, Dr. H. is that the ejection fraction is now 39% as demonstrated by MUGA scan on May 16, 2014.
Dr. H. also certified that the Appellant meets the NYHA standard of Class I
Cardiac disease, but no symptoms and no limitation in ordinary physical activity, e.g. shortness of breath when walking, climbing stairs etc.
On the balance of probabilities evidence by the cardiologist, who has been attending the Appellant since 2012, carries more weight than the MAC cardiologist who has not examined the Appellant.
APPLICATION OF THE LAW TO FACTS
The Tribunal finds that the Appellant has met the requirements for a commercial licence for the following reasons:
According to evidence by the Appellant’s cardiologist the dual chamber ICD inserted in the Appellant in October 2013 is for primary prophylaxis to prevent sudden incapacitation.
The annual risk of sudden incapacitation is 1% or less.
The Appellant meets the NYHA Class I functional classification
The Appellant’s current ejection fraction is 39%.
The Appellant has had no symptoms of arrhythmia since insertion of the ICD even though analysis of the device in October 2013 detected an event that occurred without symptoms. The device was reprogrammed to increase sensitivity and monitoring continues as is normal in such cases.
The rhythm specialist who reviewed the ICD device record on July 20, 2014 stated that there is no evidence that shock was experienced by the Appellant when ATP was delivered to the Appellant while on ICD. Also that the Appellant had no episodes of treated VT (Ventricular Tachycardia).
CCMTA section 3.6.26 states :
- Commercial drivers (with an ICD) generally are not eligible for a licence.
They may be eligible if the cardiologist assessment indicates that the annual risk of
sudden incapacitation is 1% or less, and
- The driver meets the standard for ICD implanted as a primary prophylaxis in non-commercial driers 3.6.25:
Section 3.6.25: Standard for non-commercial drivers:
Eligible if
They are assessed as NYHA Class I,II or III
It has been 4 weeks or more since ICD implanted
The conditions for maintaining a licence are met if applicable
The CCS recommendation is that an ICD may sometimes be implanted in low risk patients. Individual cases may be made for allowing commercial driver to continue with an ICD provided the annual risk of sudden incapacitation is felt to be 1% or less.
The Tribunal finds that the assessment by the Appellant’s cardiologist who has attended him since 2012 carries more weight than the MAC member who has not examined the Appellant.
The Tribunal therefore concludes, based on the foregoing, that the Appellant does not suffer from any 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 Appellant to appeal the Respondent’s decision, dated September 26, 2014, 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 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 Respondent be set aside.
LICENCE APPEAL TRIBUNAL
Kevin Flynn M.D., Member
Released: December 17, 2014