Licence Appeal Tribunal
FILE: 9750/MED
CASE NAME: 9750 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
9750 Appellant
-and-
Minister of Transportation Respondent
REASONS FOR DECISION AND ORDER
ADJUDICATOR: Katherine Whitehead, M.D., Member
APPEARANCES:
For the Appellant: Self-represented
For the Respondent: Kyle Biel, Agent
Heard by teleconference: September 16, 2015
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").
FACTS
On August 14, 2015, the Appellant's commercial driver's licence was downgraded to a class G licence due to the medical condition of seizures. The Appellant is appealing the decision of the Registrar and seeking to have his Commercial AB driver's licence reinstated.
The Appellant has had previous episodes similar to the event of December 6, 2014, which ultimately caused the downgrade of his licence.
The facts from previous suspensions will be considered by the Tribunal as they are pertinent to the understanding Appellant's current medical condition.
On September 9, 1993, the Appellant's neurologist sent a report to the Respondent where he said:
...this patient experienced what sounds like a generalized major seizure on July 16th, 1993. He also suffered an unexplained blackout at work in June 1990. The neurological investigations to date have been unremarkable. Never the less one queries the possibility of a seizure disorder.
...the events of yesterday certainly are very suggestive of a cerebral seizure...
At that time, the neurologist recommended starting anti-seizure medication and further investigations.
The neurologist provided copies of his clinic notes from July 17, 1993, where he reported specific details of the "suspected generalized major cerebral seizure".
In summary, the Appellant had been feeling unwell, had experienced loose bowel movements, and later in the day had lost consciousness. During this loss of consciousness "his arms and legs were shaking" and he experienced a "period of post ictal confusion and disorientation" (post ictal is the name for the time period immediately after a seizure). He was also reported to have bitten both sides of his tongue during the episode but did not lose control of his bowels or bladder.
After the consultation with the neurologist, the Appellant had an EEG test (a test of the brain wave pattern), a sleep deprived EEG test, and a CT scan of the head. These tests were all essentially normal.
The neurologist said "despite negative tests to date the description of the even (sic) on July 16th, 1993, is most suggestive of a cerebral seizure".
A medical report was submitted by the Appellant's family doctor on January 16, 1995. The doctor listed "blackouts" (and not seizures) as the Appellant's medical condition and referenced the negative testing done by the Appellant's neurologist.
The Appellant's neurologist sent a report to the Respondent on March 16, 1995. He stated that the Appellant had been well and had suffered no further events. He said that an echocardiogram (a test of heart function) had been done and was normal. He said that both of the previous episodes had been preceded by flu-like illnesses.
The neurologist's assessment in this report was:
One is left to conclude that the spell in 1993 as well as the episode in 1990 may well have represented Vasovagal Syncopal Attacks rather than cerebral seizures.
The neurologist said that, in his opinion, there was no contraindication to the Appellant operating a motor vehicle.
The Appellant's Class AB driver's licence was re-instated on May 12, 1995.
He remained under the care of his neurologist and family doctor who submitted regular reports to the Respondent. There were no new episodes reported until May 6, 2006.
On May 6, 2006, another doctor sent a medical condition report to the Respondent. This reported that the Appellant had suffered a seizure on that day.
On August 28, 2006, a second neurologist (not the Appellant's original neurologist) sent the Respondent a letter. It said that the Appellant "had a single episode on May 6th consistent with a seizure".
On September 20, 2006, the Appellant's Class AB driver's licence was downgraded to a Class G licence.
On May 21, 2007, the second neurologist wrote a letter to the Respondent repeating that there had been a "single episode consistent with a seizure in May 2006." An MRI of the brain and a new sleep deprived EEG were reported to be normal.
The Class AB licence was reinstated September 7, 2007.
On December 6, 2014, an emergency room physician sent a medical condition report to the Respondent. This report noted that the Appellant had suffered a "witnessed seizure lasted 10 mints (sic)" and that "similar symptoms happened 10 years back".
On December 10, 2014, the Appellant's new family doctor wrote a medical report which described a "witnessed tonic clonic seizure" that had occurred on December 6, 2014.
The family doctor indicated that the Appellant had also had a seizure in 2006.
On March 23, 2015, the Appellant's Class G driver's licence was suspended for the medical condition of seizure.
On June 24, 2015, the Appellant's family doctor completed an Epilepsy and Seizures form provided by the Respondent. This form indicated a primary medical condition of seizure and that the last seizure had been 6-12 months ago. It also noted a previous seizure 10 years prior for which all follow up testing had been negative. The aetiology of the seizure was noted as "idiopathic/unknown". The family doctor stated "no repeat episodes at this time. Not concerned with re-instatement of license". It was unclear to the Tribunal if the family doctor was referring to the Class G licence or the commercial licence in her assessment of concern.
On September 16, 2015, the Appellants original neurologist sent a "To Whom It May Concern" letter stating that the Appellant had "suffered from an isolated blackout 10 years ago and one on December 6, 2014". The neurologist reported that an MRI of the brain, EEG, Sleep Deprived EEG, Echocardiogram, 48 hour holter monitor, and carotid doppler were normal and that he is on no medications. There were no specific comments on seizure or fitness to drive in the letter. It reported the above findings only.
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 AB 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.
APPLICATION OF THE LAW TO FACTS
The Appellant is seeking to have his Class AB licence re-instated. The Appellant told the Tribunal that he does not believe his 3 "blackout" episodes represented seizures and he bases this opinion on the fact that he has had infrequent episodes, that his medical investigations have been essentially normal, and that, thus far, no medical professional has been able to prove that he has epilepsy.
If the Appellant is incorrect and the "blackout" episodes were seizures, the Registrar has reasonably suspended his Class AB licence.
While it is true that the Appellant has been episode free for 8-months and has had his Class G licence re-instated, the requirements are more stringent for people with commercial driving licences that involve more risk and the possibility of greater harm if accidents occur. Seizures (and resultant impaired consciousness) can come suddenly and unexpectedly. If they occur while driving, it puts drivers and the public at significant risk. This is especially true for commercial drivers. The Appellant has, in the past, driven a fire truck and a bus.
What the Tribunal needs to consider is whether, given the evidence presented, there is a reasonable likelihood that the episode suffered by the Appellant on December 12, 2014, was a seizure and if it was not a seizure, if the Appellant still possesses a medical condition that will pose a safety risk to driving a commercial vehicle.
Since the episode of December 6, 2014, bears strong similarity to the other episodes reported in 2006, 1993, and (possibly) 1990, the Tribunal thinks it is reasonable to consider the opinions of medical professionals relating to both the most recent and previous episodes.
The Appellant's episodes are infrequent but recurrent. He has suffered 3 documented episodes in the last 22 years. The initial clinical description of all of these episodes was that of seizure. On analyzing the initial clinical history, 5 separate physicians (including 2 neurologists) described the initial presentation of each of the 3 episodes as seizures.
It is true that the investigations to date have been essentially normal.
Negative EEG, and neuroimaging cannot completely rule out seizure. It is possible, for example, to have a normal EEG at the time of the study but have suffered a seizure previously. An EEG only measures brain activity at the time of the study and may not reflect brain activity at the time of the index event.
An important factor when considering if a person has suffered a seizure, especially when tests are not diagnostic, is the history of the event. Five separate physicians, reporting on the history given at the time of the events, reported that the Appellant suffered a "seizure". The Appellant's family doctor further delineated the type of seizure to be of the tonic clonic variety. The descriptions given in the narrative of the medical records at the actual times of the episodes are convincing descriptions of seizures.
The issue is complicated by the fact that the Appellant's neurologist described the episode in 1993 as seizure in his initial consultation and later referred to the episode as a blackout. The neurologist did not explicitly say that seizure had been ruled out in this instance. He said only that the episode may have represented Vasovagal Syncope.
In his most recent clinic note of September 16, 2015, the Appellant's neurologist stated the Appellant has had normal investigations but did not offer an opinion on whether he thinks the Appellant is safe to drive a commercial vehicle or directly comment on the issue of epilepsy. Again, he refers to the episodes as blackouts but does not offer further explanation for the use of this terminology.
The Tribunal concludes, given the evidence presented, that the Appellant either suffered seizures (with subsequent normal investigations) or lost consciousness 3 times in the last 22 years for reasons not yet known.
Given (1) the clinical histories from multiple physicians which are suspicious for seizure and (2) the imprecise nature of diagnostic testing for seizures, the Tribunal believes that there is a reasonable possibility that the Appellant's "blackouts" actually represented seizures.
Even if the episodes did not represent seizures, a cause for the Appellant's blackouts has not been found. Carotid doppler, echocardiogram, CT scans, MRI scans, and 48 hour holter monitoring were all done in an attempt to identify an alternate cause for the unexpected losses of consciousness. In the end, no cause has been found
Even if the cause of the December 2014, episode was not seizure, there remains a history of sudden and unexplained loss of consciousness. If the 2014 episode were an isolated incident of non-seizure loss of consciousness, it might not have carried the same risk.
The episodes of 1990 and 1993 were associated with a history of flu like illness but there is no evidence that the episodes of 2006 and 2014 did.
As an alternate (and potentially modifiable) cause for the loss of consciousness episodes has not been established, and given that there have been multiple previous episodes, there seems a reasonable risk that they may recur while driving (whether they are seizures or not).
The recurrent nature of the episodes, regardless of cause, makes their risk equivalent to the risk of seizures. Both cause unexpected losses of consciousness which, if they occurred while driving with the Class AB licence, could result in significant harm to the driver and the public.
In conclusion, the Tribunal finds that the Appellant does suffer from a mental, emotional, nervous or 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 decision dated August 14, 2015, of the Respondent 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 confirmed.
LICENCE APPEAL TRIBUNAL
_________________________________
Katherine Whitehead, M.D., Member
Released: October 7, 2015