Licence Tribunal
Appeal d'appel en Tribunal matière de permis
DATE: 2015-10-16
FILE: 9788/MED
CASE NAME: 9788 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: Self-Represented
For the Respondent: Sonia De Santis, Agent
Heard by teleconference: October 8, 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”).
PRELIMINARY MATTERS
Ms. De Santis, the Agent for the Ministry of Transportation (MTO), asked to confirm that all documents sent to the Appellant and to the Tribunal were received and reviewed. This was confirmed.
FACTS
Ms. De Santis informed the Tribunal that the Ministry received a Medical Condition Report from the emergency room physician Dr. DB dated July 19, 2015, in which a tick box was marked for “Seizure(s)-Cerebral.” The comments below stated “First ever seizure.” A tick box was also marked indicating that the ‘patient is aware of the report.
Following the receipt of the document, on July 27, 2015, the MTO wrote to the Appellant indicating that his reported condition is “Seizure” and that his driving privilege would be suspended, under section 47(1) of the Act. With the letter, the Ministry also included the Epilepsy and Seizures 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.
The Epilepsy and Seizures Form dated August 13, 2015 was completed by Dr. JC, the family physician of the Appellant who has been involved in the ongoing management of his medical issues since September 1996. Within the form, the Appellant’s primary medical condition was listed as “Seizure.” Doctor JC went on to state that July 19th was his first seizure. The type of seizure was characterized as Generalized Tonic Clonic. Although there was no EEG done, imaging test done within the last 12 months was normal. Therefore, it was classified as “Provoked Seizure with no Structural Brain Abnormality (e.g. due to a toxic illness, trauma, or medication induced).” The physician notes that the patient demonstrates adherence to the recommended treatment regimen and does not show a pattern of misuse or missed appointments. Furthermore, the physician indicates that the provoking factor has stabilized, resolved or has been corrected. Under the additional comments section, Dr. JC writes:
“Probable Hypoglycaemic episode causing seizure. Insulin dependent diabetic.”
Upon receipt and review of the Epilepsy and Seizures Form, on August 22, 2015, the MTO wrote to the Appellant informing him that his reported conditions were Diabetes and Seizure. With the letter, the Ministry sent the Diabetes Assessment Form to be completed by his treating physician, specialist or nurse practitioner and sent to the Medical Review Section along with results of all investigations conducted, a diagnosis, treatment, current status and confirmation that the condition is controlled. The Ministry also informed the Appellant that a confirmation of having remained seizure free for a period of six months and confirmation of compliance with recommended treatment, if prescribed, and/or insight into the condition is required to be considered for the reinstatement of his licence.
Dr. DZ, an endocrinologist who has been involved in the Appellant’s diabetes management since 2009, completed the Diabetes Assessment Form, dated August 27, 2015. Information within the form indicates that the Appellant has Type I Diabetes, treated with insulin. There were no changes to the insulin therapy and the percentage of blood glucose readings during the past 30 days that have been below 4 mmol/L were less than 10%. The most recent Haemoglobin A1C (indicator of blood glucose stability over past three months) was 7.2%, which was consistent with the blood glucose logs. The physician indicates that the Appellant has adequate understanding of diabetes and is compliant with respect to diet, self-monitoring, attendance at doctor’s office, lifestyle and exercise.
Information in the form also states that the Appellant has awareness of early symptoms of hypoglycaemia during the day. Dr DZ reported that in the last 3 months, the patient experienced episodes of hypoglycaemia unawareness only at night, which required outside intervention. In the last 12 months, the patient did not have more than one reported episode of hypoglycaemia unawareness. According to the physician, the patient has regained adequate glycaemic control after insulin doses have been reduced. The Appellant reports adherence to recommended treatment regimen and there was no pattern of misuse of medications or missed appointments. Under additional comments, the physician writes:
“Patient recently experienced an episode of nocturnal hypoglycaemia complicated by seizure MRI normal EEG pending. He does have adequate warning symptoms of hypoglycaemia during daytime.”
Along with the Diabetes Assessment Form, the Appellant also provided a copy of Dr. DZ’s consultation note to Dr. JC, an ambulance call report, ER records, and CT and MRI test results.
Dr. DZ’s consultation note to Dr. JC states the following:
“Diabetic control is close to target. He has lost his license though certainly the most likely cause of the seizure was severe hypoglycaemia rather than a primary seizure disorder. I would certainly endorse appealing his suspension. We again discussed the risks, appropriate management and techniques to avoid hypoglycaemia. I have not made any changes in his management.”
A CT of the head done on July 19, 2015 and MRI-head done on August 11, 2015 showed no abnormalities. The ambulance call report and the emergency room records indicate that at 0445 hrs on July 19, 2015, the patient had full body Tonic Clonic Seizures that lasted 2 minutes and were witnessed by his wife. Confirmation of low blood glucose level could not be done as the blood glucometer was broken. Nevertheless, the Appellant’s wife gave sugars orally before calling the ambulance.
Ms. De Santis referred the Tribunal to page 167 of the Canadian Council of Motor Transport Administrators (CCMTA) document and table 7.6.4 – “Episode of severe hypoglycaemia-Non-commercial drivers”, indicating the recommendations for reinstatement, which requires no further hypoglycaemic episodes within past 6 months. Ms. De Santis also referred the Tribunal to page 245 of the Canadian Council of Motor Transport Administrators (CCMTA) document and table 17.6.2 – “Provoked seizures with no structural brain abnormality” indicating the recommendations for reinstatement, which requires neurological assessment to determine the cause of the seizure, and that the provoking factor has stabilized, resolved or corrected with or without treatment.
The Appellant’s presented his own case. Under affirmation, the Appellant stated that he had voluntarily lost over 55 lbs of weight in the last year. He had started to take control of his medical issues and had started on a strict diet and exercise regimen. One month prior to the incident, he started to have low blood sugars and so he had started to reduce his insulin. Particularly, the insulin ‘Lantus’ was affecting him significantly overnight. On July 19, 2015, he was sleeping when the seizure occurred and it was his first seizure in his life. He states that during the daytime, he has symptoms of hypoglycaemia and usually knows his sugars are low when he becomes dizzy, clammy and fatigued.
Following this episode, the Appellant stated he had an insulin monitor provided by the Diabetes Clinic that accurately calculates the amount of insulin needed. He also does strict monitoring of his blood sugars and his insulin doses were decreased and split by his endocrinologist. He keeps dextrose tablets and liquid with him all the time. He states that he has good insight into his medical condition. The Appellant believes that the seizure was due to hypoglycaemia. His blood sugars have now stabilized. He states he has an appointment to see the neurologist.
Ambulance records indicate that the Appellant’s glucometer was broken on the day of the incident. When asked about this, the Appellant stated that two weeks prior to this incident the glucometer had broken and he was unable to do any insulin checks. He stated that he still continued to drive and did not go to get a replacement glucometer due to the costs.
The Appellant states that he works at an Information Technology Help Desk and the position requires him to drive.
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 her 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 was justified in issuing the suspension of driving privilege upon receipt of the medical condition report of ‘Seizure’ dated July 19, 2015. After submission of the Epilepsy and Seizures Forms, the Respondent also identified diabetes as a medical condition in its letter dated August 22, 2015.
The issue before the Tribunal is to determine from the evidence submitted whether the Appellant is 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 physicians, specialists, medical records and statements given by parties under affirmation.
The simple fact that the Appellant suffered from a hypoglycaemic episode does not, in itself, significantly interfere with his ability to operate a motor vehicle safety.
The Appellant did not check his blood sugar levels for 2 weeks prior to the incident since he did not have a functioning glucometer. The fact that he was driving without having his blood sugars checked and also mismanaging his treatment is concerning to this Tribunal. These actions indicate lack of insight and poor judgement of the Appellant. The Appellant’s physician and his specialist both attribute hypoglycaemia to be the cause of the seizure. Hypoglycaemia likely was a result of incorrect self-administered insulin dose.
While, the doctors point to diabetes as the likely cause for the seizure, an appointment with a neurologist is still pending to definitely rule out neurologic causes.
Although, the endocrinologist states that she has not made any changes in the management of the Appellant’s diabetes, it is apparent that insulin doses have been modified and adjusted. The Appellant has been using the Insulinx meter since his dose modification and accurately delivers his insulin. With major adjustments to his medications and concurrent lifestyle changes, the Tribunal feels that a longer monitoring period is necessary to ensure stability of the Appellant’s blood glucose level.
Considering these factors, the Tribunal finds the Appellant is 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 July 27, 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
Dybesh Regmi, M.D., Member
Released: October 16, 2015