Licence Tribunal
Appeal d'appel en Tribunal matière de permis
2015-05-28
FILE:
9492/MED
CASE NAME:
9492 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:
Katherine Whitehead, M.D., Member
APPEARANCES:
For the Appellant:
Self-represented
For the Respondent:
Kyle Biel, Agent for the Registrar of Motor Vehicles
Heard by teleconference:
May 12, 2015
DECISION AND ORDER
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 Appellant is appealing the suspension of his Class G driver’s license.
The following is a summary of the facts presented to the Tribunal on May 12, 2015.
The Appellant is diagnosed with a seizure disorder. His first seizure was on July 24, 2007. Original investigations of his condition were all within normal limits and he was not started on any anticonvulsants. He again seized on November 2, 2007 and was then started on Dilantin anti-convulsant therapy.
In March 2008, the Appellant was diagnosed with moderate sleep disordered breathing and began using Continous Positive Airway Pressure (CPAP) therapy.
The Appellant’s Internal Medicine physician said, in his consult of October 28, 2008, “It is questionable as to whether his sleep apnea was the cause of his nocturnal seizures but his sleep apnea was severe enough that treatment with CPAP was recommended”.
A follow up sleep study showed that his sleep disordered breathing was well controlled on CPAP.
The Appellant eventually stopped using his CPAP as he felt it was disruptive to his sleep routine.
The Appellant remained seizure free and on stable doses of dilanitin for 6 years.
On February 20, 2015, the Appellant presented himself to his nurse practitioner. At that time, he reported that on February 8, 2015 he had suffered 8 consecutive seizures in one night. The Appellant reported that he had failed to take his Dilantin for 2 days due to an unusual night schedule at work and resultant fatigue. He reported that he was very tired when he went to bed the night of his seizures. He did not seek medical care at the time of his seizures.
The nurse practitioner filed a Medical Condition Report and the Appellant’s license was suspended March 26, 2015 for reasons of seizure and sleep disorder.
The Appellant’s nurse practitioner filled out a supplemental form provided by the Ministry which confirmed the information above and also noted that the Appellant had completed a new sleep study and had a pending neurology consult.
The Appellant clarified to the Tribunal that, although he had completed his sleep study, he was still waiting for a July 2015 follow up appointment with the sleep clinic to discuss the results. The Appellant also told the Tribunal that his nurse practitioner was trying to get him an appointment to see a neurologist but, due to the waiting time to see a neurologist, that appointment might not be until next year.
The sleep study of March 27, 2015 showed moderate sleep apnea with an Apnea Hypoxia Index (AHI) of 20.1. The sleep medicine specialist indicated “a repeat sleep study with titration of CPAP to determine optimal fixed pressure setting could be considered. Other options include oral appliance and ENT consultation.”
The representative for the Ministry cited the CCMTA guidelines and indicated that the Ministry requires, in the case of sleep disordered breathing, either an AHI<20 and no daytime sleepiness, or obstructive sleep apnea that has been treated successfully. He also noted that the Ministry required a 6-month seizure free period before lifting the driving suspension.
The Ministry representative confirmed that both conditions (seizure disorder and sleep disordered breathing) are being considered for this license suspension and that the Ministry’s position is that both conditions should be adequately resolved before the license is re-instated.
ISSUES
Should the decision of the Registrar to suspend the Appellant’s licence be confirmed, modified or set aside?
In particular:
Does the Appellant 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) 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
Weighing the evidence on a balance of probabilities, the Tribunal finds the Appellant is suffering from a condition (or conditions), which is likely to significantly interfere with his ability to operate a motor vehicle safely.
There are two distinct but possibly related conditions under consideration for this appeal.
They are the seizure disorder and sleep disordered breathing.
In the case of the seizure disorder, there is a clear history of multiple seizures having occurred on the night in question.
The Appellant attributes this to having missed his medication twice in a row.
He argues that this was an isolated incident and thus he feels that he is no longer in danger of seizing.
The Appellant’s nurse practitioner, despite being privy to the medication history is still sufficiently concerned that she has referred the Appellant to a neurologist for further investigation.
While it is certainly possible that the failure to take the medication may have contributed to lowering the Appellant’s seizure threshold, the number of seizures and their quick reappearance with the missed doses may imply a condition that is unstable.
Given this, a consult with a neurologist seems reasonable.
If the Appellant is suffering from a lowered seizure threshold, he presents a safety risk as he would be more likely to suffer a seizure while driving.
The Tribunal does sympathize with the fact that there will be a delay in accessing a neurologist. The lack of this expert consultation, however, seems all the more reason to demonstrate a 6-month seizure free period.
In the case of the sleep disordered breathing, the Appellant does meet the criteria for moderate sleep apnea. This puts him at risk for excessive daytime sleepiness, difficulty with concentration, attention, problem solving and short-term recall.
Given that the Appellant has not been compliant with his CPAP therapy and he has not had a follow up sleep study to titrate his CPAP pressure (which may have changed since his last visit to the sleep clinic in 2008) he has not adequately demonstrated that his sleep apnea is controlled by simply stating that he has restarted his prior CPAP therapy on his own accord.
It is mentioned in the consult from the Sleep Medicine Clinic, that this degree of sleep apnea may pose a driving risk. It is the Tribunal’s position that re-starting the CPAP at the 2008 levels after a period of non-use with no follow up from the Sleep Medicine Clinic has not adequately mitigated that risk.
Thus the Appellant has two medical issues that pose a risk which will significantly interfere with to his ability to drive a motor vehicle safely.
The Tribunal finds there is insufficient evidence to depart from the 6-month period of stability recommended by the Ministry.
DECISION
Upon the application by the Appellant to appeal the decision effective February 9, 2015 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 confirmed.
LICENCE APPEAL TRIBUNAL
Katherine Whitehead, M.D., Member
Released: May 28, 2015