Licence Appeal Tribunal
FILE: 10483/MED
CASE NAME: 10483 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
10483 Appellant
-and-
Registrar of Motor Vehicles Respondent
REASONS FOR DECISION AND ORDER
ADJUDICATOR: Dr. David Borenstein, Member
APPEARANCES:
For the Appellant: Self-represented
For the Respondent: Kyle Biel, Agent
Heard by teleconference: October 25, 2016
REASONS FOR DECISION AND ORDER
This is an appeal to the Licence Appeal 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
On August 23, 2016, the Appellant's physician (from her Cardiac Defibrillator Clinic), Dr. H., wrote to the Ministry of Transportation of Ontario ("MTO") stating that the Appellant's defibrillator "experienced an episode of ventricular tachycardia requiring pace termination from her device on August 14, 2016. No shock was delivered by the device. No further events have been detected since that date. The event occurred at the time of admission to the hospital with congestive heart failure. The latter has now resolved and the patient is asymptomatic".
The MTO responded in a letter dated September 16, 2016. They required the following information from a health care practitioner:
a) Confirmation that the defibrillator has delivered no shock or anti-tachycardia pacing therapy.
b) A period of at least six months has elapsed since the last episode of ventricular tachycardia (VT) or ventricular fibrillation (VF).
The Appellant's licence was suspended, for medical reasons, on September 26, 2016.
The Appellant provided the MTO with an another letter from Dr. H dated October 18, 2016 in which Dr H. stated: "The ventricular tachycardia lasted 12 seconds in duration followed by 3 seconds of overdrive pacing. Device settings have now been adjusted to shorten the duration to detection of arrhythmia. There were extenuating circumstances in that the event occurred on the evening of an admission to hospital with congestive heart failure. The latter has now resolved and the patient is asymptomatic. No further events had been detected when the patient was assessed on August 23, 2016 and the device is due to be re-interrogated on November 24, 2016. If no further events have been detected in the 3 months since the initial event and the extenuating circumstance of congestive heart failure has been corrected, then resumption of driving seems reasonable".
The MTO response, dated October 21, 2016 was to require:
- Confirmation that the defibrillator has delivered no shock or anti-tachycardia pacing therapy.
- Confirmation that a period of at least six months has elapsed since the last episode of ventricular tachycardia or ventricular fibrillation.
- Confirmation you are assessed as NYHA Class I, II or III.
- Confirmation you are not receiving intermittent inotropes.
- Confirmation as to whether a left ventricular assist device is required, and if so, a statement from your cardiologist indicating stability for 2 months post implantation.
The Registrar's Submissions
The Registrar's Agent submitted that the reason for the additional criteria to be met in the second letter stemmed from the diagnosis of congestive heart failure. The Registrar takes the position that based on the Canadian Council of Motor Transport Administrators (CCMTA) Guidelines, the Appellant falls either into section 3.6.10 (Hemodynamically unstable VT) or 3.6.29 (ICD Therapy [shock or ATP] has been delivered) which both require six months observation since the last episode of VT. The latter section applies to non-commercial drivers where an ICD therapy has been delivered and there is an associated impaired level of consciousness, or the therapy delivered by the device was disabling. The Registrar's Agent submitted that no physician has explicitly said the Appellant was not disabled by the pacer treatment in August 2016. They also submitted that this is a complicated case, and the Appellant and public are best served with a six month observation period.
The Appellant's Submissions
Supported by her daughter, the Appellant submitted that her physician has told her she is NYHA Class I, is not taking Inotropes and that she actually falls under the guidelines of section 3.6.27 for patients with ICD implanted, as secondary prophylaxis for sustained VT. The Guidelines under this section require a NYHA Class I, II or III assessment, one week since ICD implantation, and three months since the last episode of VT. The Appellant and her daughter stated that a period of 'unstable VT' is typically classified as greater than 30 seconds in duration and that she had a VT of 12 seconds, as reported by Dr. H. She reports that there were no symptoms of shock, or impaired consciousness. When asked by the Registrar's Agent, the Appellant freely offered that her current cardiac medications include coversyl and bisoprolol. Neither is inotropic. Her daughter is very supportive of her driving after three months observation, confirms the Appellant's recollection of events, and they both believe that the MTO is now trying to justify a six month suspension despite her physician's written recommendation.
ISSUES
Should the decision of the Registrar to suspend the Appellant's licence be confirmed, modified or set aside?
In particular, is the Appellant suffering from a condition or disability that is likely to significantly interfere with his ability to drive a motor vehicle safely?
LAW
O. Reg. 340/94 ("the Regulation"), section 14(1), 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.
Section 47(1)(g) of the Act gives the Registrar the power to suspend or cancel a driver's licence for any "sufficient reason" not referred to elsewhere in s. 47(1), which would include section 14(1) of the Regulation, cited above.
Section 14(2) of the Regulation permits the Minister to take into consideration the CCMTA Medical Standards for Drivers in determining whether the requirements of s. 14(1) are met.
Section 50 of the Act permits the driver to appeal the Registrar's section 47 decision to the Tribunal, and the Tribunal "may confirm, modify or set aside the decision of the Minister or the Registrar."
APPLICATION OF THE LAW TO FACTS
Having reviewed the record and considering the submissions of the parties, the Tribunal is troubled by the letter dated October 21, 2016 which appears to move the proverbial "goal post" by increasing the number of criteria the Appellant is required to meet over what was stated in the original letter dated September 16, 2016.
The submission that this new letter reflected, that the MTO was now worried about congestive heart failure, is not convincing since the very first letter they received stated, "the event occurred at the time of admission to the hospital with congestive heart failure". Additionally, the 5th criteria that the MTO listed, "confirmation as to whether a left ventricular assist device is required, and if so, a statement from your cardiologist indicating stability for 2 months post implantation," is negated by the fact that the Appellant already has ICD that created a paced termination of VT. This is the very reason why the Appellant had her licence suspended in the first place. The Registrar's Agent submitted that this apparent contradiction arose from the medical officer at MTO merely writing down the Guideline criteria verbatim, without noticing the opposing dichotomy of the two criteria the Appellant was required to fulfill.
The evidence of the Appellant and her daughter is convincing. The Tribunal accepts that they spoke with Dr. H, which is how they knew which Guideline she was applying. The Appellant has made a compelling argument for the application of section 3.6.27 in this case. This section recommends a period of three months since the last VT episode. It would be rather unusual for the physician and the Appellant's family to ignore a decreased level of consciousness should it have happened, and a VT of only 12 seconds is not considered medically unstable (as the Appellant and her daughter noted). Accordingly, neither sections 3.6.29 nor 3.6.10 of the CCMTA Guidelines apply.
The Tribunal finds, based on the evidence of the VT episode in August 2016, that the Appellant does, at this time, suffer from a physical condition likely to significantly interfere with her ability to drive a motor vehicle safely. Furthermore, based on the evidence and submissions from the parties, it is reasonable to turn to the CCMTA Guidelines in assessing an appropriate time period of observation before licence reinstatement. The Tribunal agrees with the Appellant that she should be assessed against the standard set out in s, 3.6.27 and further notes that the Appellant has an appointment with her doctor on November 24, 2016 which will, at that point be three months post incident. Based on the results of that assessment, the Registrar may wish to reconsider its position in light of the applicable Guideline.
DECISION
Upon the Appellant's appeal of the Registrar's decision dated September 26, 2016 to suspend the Appellant's 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 at this time.
LICENCE APPEAL TRIBUNAL
David Borenstein, M.D., Member
Released: November 9, 2016