Licence Appeal Tribunal
Appeal d'appel en matière de permis
FILE: 9268/MED
CASE NAME: 9268 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
9268 Appellant
-and-
Minister of Transportation Respondent
REASONS FOR DECISION AND ORDER
ADJUDICATOR: Kevin Flynn M.D., Member
APPEARANCES:
For the Appellant: Self-Represented
For the Respondent: Kyle Biel, Agent
Heard in Toronto January 2, 2015
DECISION AND ORDER
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
The Respondent’s Evidence
The Appellant received a notice of downgrade (from his Class ‘AC’ licence) letter from the Respondent in 1999 following his Medical Report of coronary by-pass surgery in 1996. He no longer met the National Medical Standard for commercial drivers.
Following rehabilitation and with medical waiver, his Class ‘AC’ licence was reinstated in 2002.
He was required to file an annual cardiac assessment and waiver and continued to do so.
He came under care of a new cardiologist, Dr. P., in 2007.
In 2009, Dr. P. noted recurrence of angina and a coronary angiogram indicated restenosis of the left anterior coronary artery. This was reported by letter to the family physician, Dr. O., and copied to the Respondent.
In 2010, a free chamber resynchronization cardiac device was inserted and in June 2012 Dr. P. notified the Respondent that the Appellant has New York Heart Association (NYHA) Class 1 with an estimated left ventricular ejection fraction (LVEF) in excess of 45%.
The Appellant continued to be approved for Class ‘AC’ licence.
On August 12, 2013, Dr. P. stated that the annual risk of sudden incapacitation is less than 1%.
In the course of completion of the annual Medical Report on April 3, 2014, Dr. O. reported that since the insertion of an intracardiac device (ICD) the Appellant’s congestive heart failure had improved.
The Respondent referred the case to the Medical Advisory Committee (MAC) resulting in a recommendation that due to the insertion of an ICD, a commercial driving licence should be denied permanently.
The Appellant was informed on September 29, 2014, that his licence was downgraded to Class ‘G’.
Following receipt of the notice of downgrade, Dr. P. completed a Commercial Driver Cardiovascular Assessment on October 21, 2014. In summary, he stated:
The most recent myocardial infarction was in 2010.
The most recent cardiac surgery or percutaneous intervention (PCI) was in 2007
Current condition was stable.
The Appellant did not require inotropic support in hospital for Congestive Heart Failure (CHF) or cardiomyopathy.
Hypertension was controlled.
The Appellant was compliant.
NYHA Class 1 (No limitation of physical activity or symptoms during daily activities).
LVEF greater than 50%
Annual Risk of sudden incapacitation was less than 1% in 2013. The current risk was not provided.
Dr. P. further stated:
(Appellant) had a very remote CABG (Coronary Artery Bypass Graft) in 1996.
Percutaneous intervention (PCI) in 2007.
Previously he had low EF, however on appropriate medical therapy and with cardiac resynchronization device he has had remarkable improvement in LVEF (greater than 50% now). He is NYHA Functional Class 1 for over three years.
I have been his specialist since 2007
The Respondent, following review of this report, informed that Appellant that an upgrade was denied.
The Appellant’s Evidence
The Appellant stated that he had a heart attack in 1996 followed by coronary artery bypass. Following recovery and with medical waiver, his commercial licence was reinstated in 2002. He complied with annual medical reports and came under the care of Dr. P. in 2007.
Due to recurrence of angina, a coronary angiogram showed that he had restenosis of the left anterior coronary artery. An ICD was inserted to improve his left ventricular function and since he stopped smoking and lost weight he regained his strength and took his medications as prescribed.
He attends the pacemaker clinic for monitoring of the implanted device every six months and no cardiac event has been detected in the analysis. His most recent monitoring was on December 3, 2014. The report was as follows:
Normal biventricular ICD follow-up. Bi-ventricular pacing 99%. No episodes detected. Site: good.
All testing consistent with last visit. No changes made. Next follow-up scheduled for six months.
He submitted the following report from Dr. P. to Dr. O. on December 7, 2014:
(Appellant) is followed with a history of ischemic myopathy, remote coronary bypass surgery and significant improvement in left ventricular function following cardiac resynchronization device implant.
He continues to do extremely well. He is working long hours as a truck driver and is staying active. He is able to play soccer with his grandson. And says he has no limitation from dyspnea and no angina whatsoever. His exercise tolerance remains excellent all things considered.
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 ’AC’ 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.
SUBMISSIONS
The Respondent relies on the Canadian Council of Motor Transportation Administrators, (CCMTA) Medical Standards for Commercial Drivers which states as follows:
Section 3.6.42: Congestive Heart Failure:
Eligible if:
they are assessed NYHA Class 1 or 2
LVHF of greater than 35%
not receiving intermittent inotropes.
Section 3.6.44: Left Ventricular dysfunction or cardiomyopathy
Eligible if:
they are assessed NYHA Class 1 or
LVHF of greater than 35%
not receiving intermittent inotropes
not using a left ventricular assist device
The Tribunal made reference to Section 3.6.26 which states:
“Commercial drivers have an ICD implanted as primary prophylaxis are generally not eligible for a licence. But may be eligible if:
cardiologist assessment indicates that the annual risk of sudden incapacitation is less than 1%; and
the driver meets the standard for ICD implanted as a primary prophylaxis in non-commercial drivers 3.6.25.
Rationale: ICD may sometimes be implanted in low risk patients. Individual cases may be made for allowing a commercial driver to continue driving with an ICD provided the annual risk of sudden incapacitation is felt to be 1% or less.
Section 3.6.25:
Non-commercial driver’s eligible if:
assessed NYHA Class 1, 2, or 3
4-weeks or more since ICD implant
Conditions for maintaining licence are met (if applicable)”
The Appellant relies on the recommendation for maintaining his commercial licence, by his family physician of 18-years and his cardiologist of 7-years.
He continued to drive until he received the notice of downgrade in September 2014.
He is monitored every six months and has no record of any abnormality showing up on the monitor and has never received a shock since the ICD was implanted .
APPLICATION OF THE LAW TO FACTS
The Tribunal finds that the Appellant has met the requirements for reinstatement of his Class ‘AC’ licence for the following reasons:
The coronary artery disease has been appropriately dealt with by bypass surgery and when restenosis was recognised by his cardiologist the insertion of an ICD for primary prophylaxis was appropriate and successful.
The cardiologist has followed his patient for seven years and as a result his report carries more weight than the MAC cardiologist who has not seen the patient.
The Appellant has continued to drive safely and without incident even as the Ministry had in its possession information provided well in advance of the decision to downgrade.
The Appellant has met the recommendations by the Canadian Cardiovascular Society namely NYHA Class 1, annual risk of sudden incapacitation was less than 1% in 2013.
On the basis of the foregoing, the Tribunal finds that the Appellant does not have a medical 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 September 29, 2014, 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 set aside.
LICENCE APPEAL TRIBUNAL
Kevin Flynn M.D., Member
Released: January 12, 2015