Licence Tribunal
Appeal d'appel en
Tribunal matière de permis
2014-02-11
FILE:
8557/MED
CASE NAME:
8557 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
Applicant
Applicant
-and-
Registrar of Motor Vehicles
Respondent
REASONS FOR DECISION AND ORDER
ADJUDICATOR:
Kevin Flynn, M.D., Member
APPEARANCES:
For the Applicant:
Self-represented
For the Respondent:
Sonia De Santis, Agent
Heard in Toronto:
February 5, 2014
DECISION AND REASONS
This is an appeal to the Licence Appeal Tribunal (the “Tribunal”) by the Applicant 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
Respondent’s Evidence
A Medical Condition Report was completed by an Emergency Room physician, Dr. K. in compliance with section 203 of the Highway Traffic, (the Act), based on examination November 10, 2013. The condition reported was:
Diabetes or Hypoglycemia
Secondary seizure
Advised not to drive for 7 days. Advised to follow up with family physician in 5 days.
Patient is aware of this report
The Registrar informed the Applicant by letter dated November 13, 2013 that his driving privilege was suspended under Section 47(1) of the Act.
He was requested to take this letter to his treating physician to have a Diabetes Assessment Form and an Epilepsy and Seizure Form completed and returned. He was advised that he may appeal to the Licence Appeal Tribunal.
The Registrar wrote to the Applicant on December 17, 2013 following review of the information submitted on the Diabetes and Seizure Forms on November 28, 2013.
The Registrar informed him that it had been decided that the suspension would continue and that to be reinstated he must take the letter to his treating physician and have the following information sent to the Medical Review Section:
Confirmation that he has not experienced any severe hypoglycaemic reactions and that his condition has remained stable for a period of six months.
Confirmation that his diabetic diary with blood glucose tested at least twice daily for the last 30 days has been assessed and includes the number of blood levels which are below 4 m/mol/L
A recently conducted HbA1C result must also be provided with confirmation that the level is congruent with his blood logs.
The Applicant’s Evidence
The Applicant stated that he has been on insulin since 2004 and that he attended the local Diabetes Education Centre at that time. He has been driving since age 16.
In 2013 he had been running a lot and sustained a stress fracture in his leg and stopped exercising for two months.
During a bone scan at the hospital in September 2013 he had a spell of sweating and transient unresponsiveness to questions and was sent to the E.R. for possible absence seizure. No medication was prescribed.
Following healing of the stress fracture he resumed exercise and three days later his blood sugar level dropped to 2.6 during the night. He had a witnessed seizure and was taken to the local Emergency Room.
In his evidence, the Applicant informed the Tribunal that the Registrar’s correspondence was not received by him as he had changed his address and after his former landlord informed him of the Notice of Suspension dated November 23, 2013 he downloaded the forms from the Ministry website and took them to his family physician. The letter from the Registrar dated November 13, 2013 was not seen by the family physician.
The Diabetes Assessment was completed by Dr. S., the family physician, on November 28, 2013.
Date of diagnosis of diabetes: December 2002
Date Insulin started: December 2002
Current type of Insulin used: Lantus injection once daily, 18 units once daily. Humalog insulin adjusted per carbohydrate count.
Readings handwritten, not electronically downloaded.
Readings correspond to meter readings
Blood sugar levels recorded three or more times daily
Approximate percentage of blood glucose readings below 4 mmol/L=less than 10%
Meter memory average over 30 days=6.8
Patient adjusts insulin based on readings.
Previous A1C result: May 2008 =0.071
Non-diabetic range for laboratory: 0.040-0.060
A1C results are consistent with the patient’s blood sugar logs.
Diabetic Education completed 2004/2005
Re-education not recommended
Certificate of completion has been provided (not produced)
Patient has a full understanding of diabetes and the close relationship between insulin dose or oral medication, diet and exercise
General compliance: 4/5
The patient has an awareness of early symptoms of hypoglycaemia at 3 to 3.5 mmol/l and below
Symptoms of hypoglycaemia and how is it treated:
Feels heavy in the stomach, shaking, dizziness. Treated by oral sugar followed by complex carbohydrate with continuous monitoring.
Major hypoglycaemic event on November 10, 2013 resulted in confusion.scence seizure during bone scan September 4, 2013.
Circumstances leading to hypoglycaemia: Began working out after two months off at doctor’s request, went to bed with normal blood sugar, went low during the night.
Changes since made to reduce likelihood of further hypoglycemic events: Intense exercise stopped until sliding scale adjustment made.
General health: No abnormality
No alcohol.
The Epilepsy and Seizure Form was also completed by Dr. S. on November 28, 2013.
In summary the information provided in the Seizure Form regarding the reported seizure confirmed that a hypoglycaemic seizure occurred when the Applicant began to increase his exercise following a recovery period for bone injury. There was no history of previous seizure disorder and no medication was initiated beyond insulin adjustment.
Dr. S., who completed the Diabetes and Seizure forms, has been his family physician since 1995.
The Applicant wears a Medic Alert bracelet identifying his condition as Diabetes.
He informed the Tribunal that he has not seen the Registrar’s letter of November 13, 2013 because of a change of address. He became aware of the suspension by phone from his former landlord and then he downloaded the Diabetes and the Seizure Assessment Forms from the Ministry website.
ISSUES
Should the decision of the Registrar to suspend the Applicant’s licence be confirmed, modified or set aside?
In particular: Does the Applicant suffer from a mental, emotional, nervous or physical disability likely to significantly interfere with his 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) 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.
The Respondent relies on:
A Medical Condition Report filed by a physician in compliance with Section 203 of the Act reporting uncontrolled diabetes and hypoglycaemia.
Section 47(1)(g) of the Act authorised the Registrar to issue a suspension of the Applicant’s driving privilege.
Ontario Regulation 340/94 (14) authorised the Registrar to continue the suspension until the Applicant submits confirmation that his condition has remained stable with no recurrence of hypoglycaemia for a period of six months. The onus is on the Applicant to show that he does not suffer from a medical condition that would significantly interfere with his ability to operate a motor vehicle safely.
The Canadian Council of Motor Transport Administrators (CCMTA), under section 7.6.4 applies to episodes of severe hypoglycaemia.
STANDARD: Non-commercial drivers are eligible for a licence if
Treating physician indicates stable glycemic control is re-established and the authority determines they are fit to drive. Time required to re-establish glycemic control varies individually.
No further hypoglycaemic episodes within past six months
Conditions for maintaining a licence are met.
CONDITIONS for maintaining licence:
o must test blood glucose immediately before driving and approximately every hour while driving
o 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 mmol/L after food ingested.
The Applicant submits that he has no previous history of hypoglycaemic attacks and that he has optimal readings since the reported hypoglycaemic episode.
He has maintained good control and stability since the episode on November 10, 2013 and has modified his exercise program to prevent hypoglycaemia.
He continues to do blood sugar tests before driving and also before and after his exercise.
It is now three months since the episode on November 10, 2013.
APPLICATION OF THE LAW TO FACTS
The Tribunal finds that the Respondent was justified in issuing a suspension of driving privilege upon receipt of report of hypoglycaemia that resulted in loss of consciousness and a seizure, on November 10, 2013.
The Tribunal finds that there is sound medical evidence that the cause of the hypoglycaemia has been established as being due to overexertion during an exercise program preceding the night of the episode following sustained absence from his exercise program for a medical reason.
The Tribunal finds that the onus is on the Applicant to provide the information requested on December 17, 2013 before he can be considered for reinstatement.
The Registrar is justified in continuing the suspension under O. Reg. 340/94, Section 14 pending receipt of the conditions detailed in the letter of December 13, 2013
The Tribunal finds that there is no medical evidence of a seizure disorder.
The Tribunal finds that subject to the required confirmations requested by the Registrar on December 13, 2013 meeting the standards for reinstatement, and subject to a recommendation by the attending physician for reinstatement, a period of four months of stabilisation of his diabetes would meet the Standard set by the CCMTA under section 7.6.4.
DECISION
Upon the application by the Applicant to appeal the decision effective November 23, 2013 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 Applicant;
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
___________________________
Dr. Kevin Flynn, M.D., Presiding Member
Released: February 11, 2014