Licence Tribunal
Appeal d'appel en
Tribunal matière de permis
DATE:
2016-11-09
FILE:
10415/MED
CASE NAME:
10415 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:
Katherine Whitehead, M.D., Member
APPEARANCES:
For the Appellant:
Self-Represented
For the Respondent:
Sonia DeSantis, Agent
Heard by teleconference:
October 20, 2016
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”). For the reasons provided below, the Tribunal is dismissing this appeal and confirming the Registrar’s decision to suspend the Appellant’s driver’s licence.
FACTS
On August 13, 2016, Dr. S filed a Medical Condition Report with the Registrar, under section 203 of the Act, which requires a physician to report a person who has a medical condition that may make it dangerous for them to operate a motor vehicle. The condition listed was Seizure (Cerebral). There were no comments on the form from the physician.
On August 15, 2016, the Registrar sent the Appellant a letter to inform him that his driving licence was being suspended. The Registrar sent a medical report form, an epilepsy and seizures form, and a request for further information from his physician if he wished to be considered for re-instatement of his licence.
On August 18, 2016c Dr. S wrote a clinic note about the Appellant. It said:
“Had a seizure activities in the mall Aug 13 and was taken to hospital. CT head was normal. Only K was high.”
The Tribunal notes that “K” is the accepted short hand notation for “potassium” and “hyperkalemia” means high potassium levels in the blood.
The letter went on to say that the Appellant was feeling well and had a normal physical exam, and he was being referred to a cardiologist and a neurologist for further assessment.
On August 24, 2016, Dr. G (a neurologist) wrote a consultation report. The Impression and Plan section stated:
“…one clearly witnessed paroxysmal episodic event of alter level of consciousness and whole body shaking. His neurological examination is normal. My impression is at this point there is only evidence of one generalized motor seizure. I am not quite certain about episode that he woke up with severe musculoskeletal pain; it is very possible that it a seizure but there was not witnessed. At this point I am initiating the required investigation from epilepsy prospective…”
(sic)
In the consult, Dr. G noted that the Appellant was taking the anti-seizure medication Dilantin, and advised the Appellant to continue to take this medication.
On October 5, 2016, Dr. G filled the Epilepsy and Seizures Form, and reported the following:
-The primary medical condition was seizures.
-The last seizure was 3-6 months ago.
-The type of seizure was Generalized Tonic Clonic or Grand Mal.
-It was the first and only seizure.
-There had been a normal EEG.
-There had been a normal imaging test (the type of test was not specified).
-No further imaging was required.
-The etiology of the seizure was “idiopathic/unknown” (the Tribunal notes that it was possible to check the box for “Primary Epilepsy” but Dr. G chose “idiopathic/unknown”).
-The episode is not consistent with vasovagal syncope.
-The physician wrote “was first epileptic seizure.”
-There had been a normal holter monitor test.
-The Appellant had been prescribed anti-seizure medication.
-In response to the question “Are the seizures prevented by the current medication regimen? Dr. G checked “yes”.
-In response to the question “Has the underlying cause of syncope/LOC been identified?” Dr. G checked “yes”.
-In response to the question “has the underlying cause of the syncope/loss of consciousness been treated and/or resolved/” Dr. G checked “yes”.
-Dr. G wrote “first clearly witnessed epileptic seizure treated and prevented by dilantin” in the additional comments form.
The Appellant told the Tribunal that he had not suffered an actual seizure. He described what happened as a “simple faint”. He said that he is a bodybuilder and had been training for a show. On the day of his loss of consciousness it had been quite hot and he had been dehydrated. He said that his family doctor had told him that the cause of his episode had been hyperkalemia and that he did not have epilepsy. He said that he had done some research on the internet and felt that he was too old to be diagnosed with epilepsy.
The Registrar’s Agent asked him why hyperkalemia was not listed as the cause for his seizure on any of the forms or reports from his physicians. He said that “there was not room on the form”.
The Appellant told the Tribunal that Dr. G advised him to remain on the Dilantin for six months and then he could taper off the medication. This was not noted in any of the written documents from Dr. G.
The Registrar’s position is that the Appellant has epilepsy and as such has followed the Canadian Council of Motor Transport Administrators (CCMTA) guidelines, that indicate a six-month period of stability before a licence should be reinstated.
The Appellant’s position is that he does not have epilepsy, that his loss of consciousness was related to “fainting”, and that the factors which caused him to faint have since resolved.
He asked for his licence to be re-instated without a six-month seizure-free period.
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. Similarly, the Tribunal has taken the CCMTA Medical Standards for Drivers into consideration.
Section 50 of the Act permits the driver to appeal the Registrars 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
The Tribunal finds that the loss of consciousness episode represented a seizure and not “fainting” (commonly called “syncope” in medical terms).
Two of the Appellant’s physicians referred to the episodes as seizures. Dr. G specifically stated on the Epilepsy and Seizures Report that the episode was not consistent with vasovagal syncope. Reports from witnesses to the episodes (as interpreted by the physicians) were consistent with seizure. Dr. G was sufficiently convinced of the diagnosis that he sent the Appellant for several standard tests to investigate seizures and started the Appellant on anti-seizure medication, Dilantin, which he continues to take.
Seizures are dangerous if they occur while driving. The Appellant’s seizure occurred without warning and resulted in loss of consciousness. If this occurred while he was driving it would seriously impair his ability to safely drive.
The Tribunal is not bound by the CCMTA guidelines but may consider them. The Tribunal notes the following standards in the guidelines which were submitted by the Registrar:
17.6.2 – Provoked Seizures with no structural brain abnormality
All drivers eligible for a licence if
they have undergone a neurological assessment to determine the cause of the seizure, and epilepsy is not diagnosed
the provoking factor has been stabilized, resolved, or been corrected, with or without treatment, and
the treating physician indicates that further seizures are unlikely.
17.6.4 – Single unprovoked seizure
Non-commercial drivers eligible for license if
Complete neurological assessment has been conducted to determine the cause of the seizure, and epilepsy is not diagnosed, and
CNS imaging and EEG results do not suggest an increased likelihood of seizure recurrence.
17.6.6 – Epilepsy
Non-commercial drivers eligible for license if
- It has been 6 months since the seizure occurred with or without medication
The Registrar submitted that the Appellant’s condition is epilepsy and thus followed the CCMTA guidelines 17.6.6. and suspended the licence.
While the Tribunal finds that the episode of August 13, 2016 was a seizure, the evidence is not clear that a diagnosis of primary epilepsy has been made.
The CCMTA guidelines refer to epilepsy as “a condition characterized by recurrent (at least two) seizures, which do not have a transient provoking cause. The cause of the epileptic seizures may be known or unknown (idiopathic).”
The Appellant has only had one seizure documented. Although there was a possible second, unwitnessed seizure, Dr. G was clear that only one could be definitively diagnosed.
In his letter of August 24, 2016, Dr. G does not refer to the diagnosis as “epilepsy” but rather “one generalized motor seizure”. He also initiated “required investigations from an epilepsy perspective” but did not, at that time, appear to diagnose epilepsy.
In the Epilepsy and Seizures Report, Dr. G noted that the etiology of the seizure was “idiopathic/unknown”. He did not check the “primary epilepsy” box.
When he wrote “first clearly witnessed epileptic seizure treated and prevented by Dilantin” in the Epilepsy and Seizures Report, the Tribunal is not clear on why Dr. C used the word “epileptic” as an adjective to describe the seizure that he had indicated had no known cause.
The Tribunal finds, on the balance of evidence presented, that a diagnosis of primary epilepsy has not been clearly made or excluded. But this does not necessarily mean that the Registrar has not been able to prove its case.
The Appellant told the Tribunal that he believes his loss of consciousness was provoked by heat, overexertion, and hyperkalemia. He said that Dr. S told him that the hyperkalemia was the cause of his episode. However, the Tribunal finds that the cause of the seizure is not clear, for the following reasons:
In his letter of August 18, 2016, Dr. S notes that there was high potassium, but does not specifically identify this as causative of seizure.
In the Epilepsy and Seizures Report, Dr. G wrote that the etiology of the seizure was “idiopathic/unknown”.
There was sufficient space in the comment section of the two forms filled by Dr. S and Dr. G where they could have written their impression of the cause of the seizure but both failed to do so.
The Appellant gave evidence of other possible contributory factors (heat and overexertion) that were not addressed directly by the physicians.
The Tribunal notes that Dr. G answered “yes” to both of the questions in the Epilepsy and Seizures report, dated October 5, 2016:
Has the underlying cause of syncope/LOC been identified?
Has the underlying cause of the syncope/loss of consciousness been treated and/or resolved?
This could be interpreted to mean either that there is a diagnosis of syncope and not seizure, and/or that there was an underlying (and now corrected) cause for the loss of consciousness.
Given that Dr. G has quite clearly diagnosed seizure elsewhere (see above) and also did not identify the cause of the seizure (see above), the Tribunal finds that the neurologist was most likely indicating seizure as the “cause” of a loss of consciousness, and since those seizures are “treated and prevented by Dilantin” (as noted on the same form) then the “cause” is “treated and/or resolved”.
Overall, it is not clear to the Tribunal if a cause has been determined for the seizures and, if so, what the cause is and whether it is resolved. The Tribunal finds that the evidence is clear that the Appellant has a seizure disorder of some kind, even if it may not be diagnosed as primary epilepsy.
In reviewing the CCMTA guidelines, the Tribunal notes that the guidelines are more permissive if there is a single unprovoked seizure or a provoked seizure where the cause has resolved. This reflects the fact that there are situations where seizures are less likely to occur.
The Tribunal must consider how likely the Appellant is to have another seizure that would significantly interfere with his ability to drive a motor vehicle safely. When considering this point the Tribunal notes, in particular, the following statements from Dr. G, in the Epilepsy and Seizures report, dated October 5, 2016:
“First clearly witnessed epileptic seizure treated and prevented by Dilantin”
“Are the seizures prevented by the current medication regimen?” “yes.”
These statements speak clearly to a seizure disorder that is being treated with an anti-epileptic medication. This means that there is sufficient risk of recurrence that the neurologist finds it necessary for the Appellant to remain on the anti-epileptic medication. Further, the Appellant testified that Dr. G recommended that he remain on the anti-epileptic medication for six months before tapering off the medication.
It is not clear to the Tribunal what the cause of the seizure was. What is clear is that no cause has been found and that Dr. G felt it was advisable for the Appellant to continue taking Dilantin. This supports a finding of a significant enough underlying risk of recurrence remaining. This arises from the fact that the Appellant has only had a two month period of stability on Dilantin and this medication may be preventing the recurrence of further seizures at this time.
The Tribunal finds that the evidence supports a finding that there remains a sufficient risk of recurrence that the Appellant’s seizure disorder is a physical condition or disability likely to significantly interfere with his ability to drive a motor vehicle safely.
DECISION
Upon the appeal of the Registrar’s decision effective September 12, 2015 to suspend the Appellant’s driver’s licence pursuant to section 47(1) of the Act, and having considered the evidence before 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
Katherine Whitehead, M.D., Member
Released: November 9, 2016