Licence Tribunal
Appeal d'appel en Tribunal matière de permis
DATE: 2015-07-30
FILE: 9641/MED
CASE NAME: 9641 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: Dybesh Regmi M.D., Member
APPEARANCES:
For the Appellant: Amanda Swarbeck, Counsel
For the Respondent: Kyle Biel, Agent
Heard in Toronto: July 21, 2015
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
Mr. Biel, the Agent for the Ministry of Transportation (MTO), informed the Tribunal that the Ministry received a Medical Condition Report from Dr. LM, an emergency room physician, dated April 19, 2015. In the report a tick box was marked for “Diabetes or Hypoglycemia – uncontrolled.” The comments section below stated “known DMI X 34 years, did not eat breakfast, went to park with small children, and LOC &? Seizure (bit tongue) with BG by EMS 4.2; resolved with D50 X 1 amp + meal; concerned with Sz & hypoglycemia & driving. Was not driving @ the time.” A tick box was also marked indicating that the patient is aware of the report.
Following the receipt of the document, on May 22, 2015, the MTO wrote to the appellant indicating that his reported condition is Diabetes and that his driving privilege would be suspended, under section 47(1) of the Act. With the letter the Ministry also included the Diabetes Assessment Form and instructed the Appellant to take the letter and the forms to his treating physician, specialist or nurse practitioner and have them send the information to the medical review section. Other requirements from the Ministry included the following:
- a confirmation that the Appellant had not experienced any severe hypoglycemic reactions and that his condition remained stable for a period of six months,
- a confirmation that the Appellant’s diabetic diary with blood glucose tested at least twice daily for the last 30 days has been assessed within an indication after number of blood glucose levels which were below 4 mmol/L, and;
- a recently conducted HbA1C result confirming that the level is congruent with the blood logs.
The Diabetes Assessment form dated June 10, 2015 was completed by Dr. VM, an Endocrinologist of the Appellant who has been involved in the ongoing management of his diabetes since 1997. Within the form, the Appellant’s diagnosis was identified as Type 1 Diabetes treated with insulin. The result of the most recent A1C test (within the last six months), which measures blood glucose levels, was 7.1 – 8.0% and was consistent with the Appellant’s blood glucose logs.
The specialist indicates that:
- the Appellant has awareness of early symptoms of hypoglycemia.
- there have not been any episodes of hypoglycemia unawareness in the past three months.
- the Appellant has regained adequate glycemic control.
- the Appellant has an adequate understanding of diabetes and the close relationship between insulin, oral medications, diet and exercise.
- the Appellant is generally compliant with respect to self-monitoring, attendance at the doctors office and is adherent to the recommended treatment regimen.
- the Appellant has the complications of retinopathy, severe neuropathy, nephropathy, and hypertension (treated and controlled).
- the Appellant does not demonstrate any pattern of non-adherence.
Under the additional comments section, Dr. VM writes: “I have no issues with him operating a motor vehicle.”
A copy of the lab test results dated June 9, 2015, of the Appellant ordered by Dr. VM, reveals a Haemoglobin A1C of 7.9 mIU/L.
Upon receipt and review of the documents above, on June 19, 2015, the MTO wrote to the Appellant informing him that they would require further information, which included confirmation of greater than six months episode-free and stable glycemic control re-established under repeat A1C, Musculoskeletal Condition/Motor Function Ability Impairment Form, detailed assessment regarding nephropathy, Visual field and acuity testing.
The Musculoskeletal Condition/Motor Function Ability Impairment Form dated June 24, 2015 was completed by the endocrinologist Dr. VM and revealed no impairments. Under additional comments, Dr. VM writes: “He does not have any functional limitations.”
A letter dated June 24, 2015 by Dr. VM clarifies that the Appellant does not have a decline in renal function but only the presence of albumin in his urine.
Another letter from the MTO dated July 2, 2015 advised the Appellant that his reported conditions are severe hypoglycemic episodes, severe neuropathy and retinopathy. The letter still requested much of the information asked for in the letter dated June 19, 2015.
The Appellant requires corrective lenses for driving. Vision and field testing performed by optometrist Dr. ED on July 7, 2015 did not show any impairment.
Having received the documents outlined above, the MTO in a letter dated July 13, 2015 requested from the Appellant a confirmatory letter that he had not experienced any severe hypoglycemic reactions and that his condition has remained stable for a period of six months. Along with this information, the MTO also requested his diabetic diary, blood glucose levels that are below 4 mmol/L and a recent Hemoglobin A1C result that is congruent with the blood logs.
A copy of the lab test results dated July 10, 2015, ordered by Dr. VM, reveals a Hemoglobin A1C of 8.2 mIU/L. A letter dated July 13, 2015 from Dr. VM confirms that the Appellant has re-established stable glycemic control. Both of these documents were submitted to the MTO, and on July 16, 2015, the MTO responded to the Appellant indicating that his licence was still suspended as he had not been episode-free of severe hypoglycemia for six months.
The Appellant’s driver’s licence was previously suspended in November 2002 following a nocturnal hypoglycemic episode. At that time a medical condition report was submitted by the Appellant’s family doctor. Having been satisfied with the response from the Appellant’s endocrinologist, Dr. PC, and the confirmation of glycemic control, the Ministry had reinstated the Appellant’s licence on January 8, 2003.
The MTO’s representative, Mr. Biel, referred to page 167 of the Canadian Council of Motor Transport Administrators (CCMTA) document and table 7.6.4 – “Episodes of severe hypoglycemia – Non-commercial drivers”, indicating the recommendations for reinstatement, which require no hypoglycemic episodes within the past six months. The MTO’s position was that the duration of the Appellant having been free of amy hypoglycemic episodes has not been long enough.
The Appellant provided testimony in a credible manner. He is 57 years old, educated, and a grandfather. He has been working as a commission sales representative for 14 years and therefore relies on a fleet vehicle to earn a livelihood. He has a 34 year history of Type I Diabetes which requires insulin. Currently he utilizes a pump to inject himself with the insulin and has been on the pump for the last six years. The Appellant sees his endocrinologist approximately three to four times a year, sees his family doctor approximately five to six times a year, and visits the diabetic clinic to see his nurse on a monthly basis. The Appellant has a very good understanding of his condition and has early awareness of hypoglycemia, which includes shakiness, sweating and tremor. While he tests his blood sugar before driving and ensures that it is always above six, he nevertheless prepares for a possibility of hypoglycemic episodes by keeping carbohydrates or juice in his vehicle. He states that there has never been a hypoglycemic episode while driving.
On the morning of April 19, 2015, the Appellant was walking from his home to a nearby restaurant with his grandchildren for breakfast. He had plans of eating pancakes that morning, and therefore he gave himself a slightly higher bolus of insulin. On his way to the restaurant, his grandchild asked to take a detour to the park before going to the restaurant. This detour prevented him from eating within 10 to 15 minutes of taking the insulin. While at the park, he developed symptoms of hypoglycemia, and in fact asked bystanders to assist and also texted his wife to come. He lost consciousness and the next thing he recalls is being in the ambulance with EMS personnel.
The Appellant felt very guilty and was visibly upset about the error in judgment. He certainly has come to understand the bigger implications of a hypoglycemic episode. To ensure that such episodes do not happen again, the Appellant is currently utilizing a continuous glucose monitoring system. He wears this device constantly as it allows active monitoring of his sugar levels. The machine warns him when there is risk of hypoglycemia sooner then when he develops symptoms.
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
The Tribunal finds that the Respondent Registrar was initially justified in issuing the suspension of driving privilege upon receipt of the medical condition report of Diabetes or Hypoglycemia dated April 19, 2015.
The matter before the Tribunal is to determine from the evidence submitted whether the Appellant is currently suffering from a mental, emotional, nervous or physical disability likely to significantly interfere with his ability to safely drive. The evidence in this case consists of relevant forms, letters from specialists and testimony of the Appellant.
The simple fact that the Appellant suffered from a hypoglycemic episode does not, in itself, significantly interfere with his ability to operate a motor vehicle safety.
The hypoglycemic episode did not occur when the Appellant was driving. The Appellant recognized manifestations of the hypoglycemic event. He has excellent insight into his condition and has been able to manage his diabetes effectively. His desire to further decrease the risk of these episodes occurring has led him to seek and wear a continuous glucose monitoring device. Furthermore the risk of hypoglycemia in the Appellant is decreased because he understands the relationship of his treatment with diet and also recognizes the warning signs.
In this situation, the Appellant took the medication and did not have his meal within a specified time. He is educated and is aware of how to ensure that this does not happen in the future. He is now going to carry some form of glucose on himself rather than only in his vehicle.
Medical reports from his specialist indicate that the Appellant has achieved stable glycemic control. It is now almost three months since the episode on April 19, 2015. No episodes of hypoglycemia have occurred over these three months. With the additional precaution of a continuous glucose monitoring device, sound insight regarding the disease, warning symptoms, compliance, adherence and regular follow up with healthcare professionals, there is no reason to believe that this condition is likely to interfere with his ability to drive safely. There are very clear reasons on the facts of this case why the Appellant should not have to wait for the six months of being episode-free under the CCMTA guidelines.
Weighing the evidence on a balance of probabilities, the Tribunal finds the Appellant is not suffering from a condition which is likely to significantly interfere with his ability to operate a motor vehicle safely.
DECISION
Upon the application by the Appellant to appeal the decision effective May, 22, 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 set aside.
LICENCE APPEAL TRIBUNAL
Dybesh Regmi, M.D., Member
Released: July 30, 2015