10190 v. Registrar of Motor Vehicles, 2016 CanLII 50115

Licence Tribunal

Appeal d'appel en

Tribunal matière de permis

DATE:

2016-05-30

FILE:

10190/MED

CASE NAME:

10190 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:

Kevin Flynn, M.D., Member

APPEARANCES:

For the Appellant:

Self-represented

For the Respondent:

Sonia De Santis, Agent

Heard by teleconference:

May 18, 2016

DECISION AND REASONS

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”).

OVERVIEW

The Appellant, age 62, is a diabetic on oral medication and also takes Lantus insulin at bedtime in order to reduce fasting hypoglycaemia. He suffered a hypoglycaemic reaction with a seizure during the night and attributes this to a low carbohydrate evening meal and then taking his usual dose of Lantus without checking his blood glucose before sleep.

He was advised by his family physician that the nocturnal hypoglycaemic seizure was a result of failing to follow his usual routine and he has learned to avoid this in the future. His family physician gave evidence that he has been re-educated in the management of his diabetes and that he is safe to drive eight weeks following the hypoglycaemic seizure.

The Tribunal finds that he is not significantly at risk of recurrence of a nocturnal hypoglycaemic seizure, and the Tribunal sets aside the suspension of his Class ‘G’ licence.

FACTS

Evidence for the Respondent

On March 29, 2016, the Registrar received a Medical Condition Report completed by a family physician, Dr. G. in compliance with section 203 of the Act, based on an examination on March 25, 2016.

The condition reported was:

Hypoglycaemic seizure

Patient with diabetes, on insulin. Blood sugar 1.9.

Patient is responsible and diligent with his diabetes

Currently has Class ‘G’ and ‘AZ’ licences active.

On April 7, 2016, the Registrar informed the Appellant that his driving privilege was suspended under section 47(1) of the Act due to the report of seizure and diabetes.

He was requested to take the letter of suspension to his physician and to have an assessment form for Epilepsy and Seizures, and also a Diabetes Assessment, completed, and forwarded to the Medical Review Section.

The Appellant’s physician had earlier completed a Diabetes Assessment on May 27, 2015, regarding his diabetes and his commercial licence. He has been under care of Dr. G. since July 2014.

The Diabetes Assessment in May 2015 is summarized as follows:

• Diabetes Type 2 managed with oral medication and insulin
• Two blood sugar readings recorded every day
• Less than 10% of blood glucose readings have been below 4 mmol/L
• A1C results =7.1-8.0%
• He has adequate understanding of diabetes and is generally compliant
• He is aware of early symptoms of hypoglycaemia and has had no episodes of hypoglycaemia in the past 12 months
• No complications of diabetes.
• He is not on medication that has side effects that would affect his ability to drive safely.
• He checks his blood sugar before driving
• Vision test meet the standards for commercial drivers.

Following a review of the 2015 Diabetes Assessment, the Appellant was approved for a commercial driver’s licence on July 24, 2015.

Dr. G. completed another Diabetes Assessment on April 20, 2016.

In summary, her Assessment stated:

• Diabetes Type 2 managed with oral medication and insulin
• Two blood sugar readings recorded every day
• Less than 10% of blood glucose readings have been below 4 mmol/L
• He has adequate understanding of diabetes and is generally compliant
• He is aware of early symptoms of hypoglycaemia and had not more than one episode of hypoglycaemia in the past 12 months
• No complications of diabetes. and no change in insulin dosage
• He is not on medication that has side effects that would affect his ability to drive safely.
• He checks his blood sugar before driving
• He has not demonstrated any pattern of non-adherence
• Single episode of seizure with clear causation; no further episodes expected. Patient is extremely diligent with monitoring and has strategies to prevent lower (blood sugar) and also checks blood sugar before driving.

Dr. G. also completed an Assessment Form for Epilepsy and Seizures on April 20, 2016.

In summary, her Assessment stated:

• Single provoked seizure secondary to a single hypoglycaemic event
• No EEG of imaging tests required
• The underlying cause has been identified and treated
• He is adherent to treatment
• Diabetic on insulin had hypoglycaemic event from giving insulin and only a small snack resulting in lower blood sugar than expected; has been discussed to avoid future episodes.

The Registrar informed the Appellant on April 27, 2016 that his driving privilege would remain under suspension.

The Registrar’s letter indicated that in order to be considered for reinstatement, the Appellant must submit confirmation that he has not experienced any severe hypoglycaemic reactions and that his condition has remained stable for a period of six months. In addition, he must maintain his diabetic diary with blood glucose tested at least twice daily, and that includes the number of blood levels below 4 mmol/L.

Evidence for the Appellant

The Appellant stated that he has been a diabetic for five years, and the event of March 25, 2016 was the first hypoglycaemic occurrence. He stated that he keeps fit with exercises, weights and walking an hour daily. He weighs 140 lbs and takes the insulin only 3-4 times a week when his night time blood sugar is elevated. He carries a pouch of glucose tablets on his belt for use especially when he does strenuous work.

On March 24, 2016, the Appellant had a small evening snack. On that evening, he did not check his blood sugar and he took the usual dose of 6 units of Lantus insulin before going to bed at 11 p.m.

He stated that he did not drink alcohol that evening and that he does not take a sleeping pill. In addition to insulin, he takes oral diabetes agents Glicazide and Janumet, and sees Dr. G. every three months.

The Appellant’s wife awoke to his seizure and drove him to the closest hospital about 15 minutes away. He tested his blood sugar before leaving home and found the level at 1.9. He took some sweetened drink and by the time he reached the hospital, his blood sugar had reached 4.8.

The Appellant is a consultant for the forestry industry in Northern Ontario and often is away from home three times a week.

When his diabetes was diagnosed, he took a diabetes education program at the hospital; the last time was about two years ago.

Under cross examination by Ms. De Santis, the Appellant stated that he had last checked his blood sugar in the afternoon after he had been splitting firewood.

After feeling the bed shaking, his wife wakened him. He did not wet the bed or bite his tongue. Because there is no 911 service in his area, his wife drove him to the hospital after he took some sweetened drink. Dr. G. was the physician on call but was not in the hospital at that time. The nurse checked his blood sugar and notified Dr. G.

The Appellant saw Dr. G. and the diabetes team a week later. The Glicazide was then put on hold until his blood sugars began to rise and this medication was then restarted.

The Appellant stated that because his work is in an isolated part of the province, he makes sure that he has his diabetes kit with him and is aware of the early symptoms of low blood sugar.

Dr. G., a family physician, appeared as a witness for the Appellant. As part of the witness exclusion procedure, she was not present during the Appellant’s testimony.

Dr. G.’s practice is in a multidisciplinary team and she has a diabetes team at the clinic. She stated that the Appellant has been under her care for about two years. An Endocrinologist has previously seen the Appellant, and her management of his diabetes is based on his advice. The Appellant was previously on Humalog insulin, Glicazide and Janumet. Under the advice of the Endocrinologist, the Humalog insulin was changed to Lantus insulin, and since the seizure event, the Lantus insulin dose has been reduced and may eventually be discontinued.

Dr. G. noted that the Appellant has been diligent about his diabetes management and follows her advice carefully. She stated that he is aware of the disadvantages of working in an isolated area and that changes by the diabetes team will minimize a recurrence of hypoglycaemia.

Upon the Tribunal’s questioning, Dr. G. stated that in her opinion, the Appellant is safe to drive at present and she recommends that his Class ‘G’ licence be reinstated.

The Appellant submitted a letter of support by his Dietician on the diabetes team. She stated that she has known him for three years, during which time he has been diligent and is well aware of the factors that can impact his blood glucose. Since the seizure, he has accepted the advice by the team to have more frequent monitoring, especially when active and at bedtime. The Dietician is confident that the risk of recurrence has been greatly reduced.

ISSUES

Should the decision of the Registrar to suspend the Appellant’s licence be confirmed, modified or set aside?

Does the Appellant suffer from a mental, emotional, nervous or physical disability likely to significantly interfere with his 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.

Submissions by the Respondent

1. The Registrar was justified in issuing a suspension of the Appellant’s driving privilege under section 47(1) of the Act upon receipt of a Medical Condition Report of hypoglycaemic seizure by a physician in compliance with section 203 of the Act.

2. Medical assessments by the Appellant’s physician confirmed that the single nocturnal seizure resulted from the Appellant’s bedtime dose of Lantus insulin following a reduced intake of carbohydrates before bedtime and his failure to check his blood glucose prior to taking insulin.

3. His physician has given evidence that changes in his diabetes management have reduced the risk of recurrence of night time hypoglycaemia.

4. The Canadian Council of Motor Transport Administrators (CCMTA) guidelines for commercial drivers, section 7.6.7 applies to severe hypoglycaemia:

• Eligible if the treating physician indicates stable glycolic control is re-established and the authority determines he is fit to drive. Time required to re-establish glycaemic controls varies individually.
• No further hypoglycaemic episodes within the past 6 months

Submissions by the Appellant

The Appellant submits that CCMTA Guideline for commercial drivers, 7.6.7, does not differ from guideline 7.6.4 for non-commercial drivers, whereas Guideline 7.6.2 for non-commercial drivers with diabetes type 2 treated with insulin states:

• Eligible if they understand their diabetic condition and the close interrelationship between insulin and diet and exercise and
• Routinely follow the physician’s instructions about diet, medication, glucose monitoring and hypoglycaemic prevention and management.

The Appellant submits that he has met the standard for non-commercial drivers.

He submitted that he has responded carefully not only to the seizure occurrence but also to the factors that surrounded this event. He has also responded to the advice by his physician and the diabetes team, and has taken steps to greatly reduce the risk of recurrence.

The Appellant stated that he will not seek re-instatement of his commercial licence, and that the Registrar may request periodic re-assessment by his physician.

APPLICATION OF THE LAW TO FACTS

The Tribunal has carefully considered all of the evidence presented, exhibits and submissions.

The Tribunal notes in the preamble to Chapter 7 of the CCMTA, the following:

Hypoglycaemia may occur for a number of reasons, including reduced food intake, unusual level of physical exertion, and alteration of insulin dose.

The body’s immediate response to low blood sugar is to secrete hormones that counteract insulin, including adrenaline. Adrenaline causes neurogenic (or autonomic) symptoms such as tremulousness, palpitations, anxiety, sweating, hunger and paresthesias (tingling and numbness).

People with diabetes learn to recognize these symptoms as evidence of hypoglycaemia and respond by consuming sugary liquids or starchy foods to increase their blood glucose level.

Severe hypoglycaemia is commonly defined as hypoglycaemia that requires outside intervention to abort, or that produces an alteration in level of consciousness or loss of consciousness.

The altered or reduced level of consciousness prevents a person experiencing hypoglycaemia from taking appropriate action.

While the Registrar may have been justified in suspending the driving privilege of the Appellant upon receipt of Dr. G.’s initial Medical Condition Report of hypoglycaemic seizure on March 25, 2016, the later reports from Dr. G. provided enough evidence to support the reinstatement of the Appellant’s driver’s licence.

Dr. G. has been the Appellant’s family physician for two years and has managed his Type 2 diabetes with the advice of an Endocrinologist and the support of a diabetes team at her clinic. She was the physician on call after the nocturnal hypoglycaemic seizure occurred. She was not in the hospital at the time but was aware of the event and she followed up a few days later, and she gave testimony for the Appellant at the Tribunal hearing.

The Appellant had erred in taking his evening Lantus insulin without testing his blood sugar and following a low calorie evening meal, contrary to the basic diabetes education that applies to Type 2 diabetics on insulin. He had to go to the hospital and this resulted in the required notification to the Registrar about his seizure, which led to his Class ‘G’ and Class ‘AZ’ licences being suspended.

The cause of the seizure was clearly identified and corrected. His diabetes education was corrected by Dr. G. and the diabetes team, with an emphasis on prevention of future low levels of blood sugar.

Dr. G. was very supportive in her testimony before the Tribunal. She stated that the Appellant has a clear understanding of what took place and is diligent in following the medical advice given by her and the diabetes team.

She also stated her opinion that the Appellant’s condition is now stable. She stated that he is safe to drive, and she recommends reinstatement of his Class ‘G’ licence

The Appellant informed the Tribunal that he will not apply for reinstatement of his commercial licence.

The medical evidence from Dr. G.’s two reports on April 20, 2016, along with her convincing testimony at the hearing, clearly supports reinstatement of the Appellant’s driver’s licence. The combination of a definitively diagnosed and isolated reason for the Appellant’s seizure means that a recurrence can be prevented in the future if the Appellant understands the reason and can be relied upon to be diligent in avoiding a similar situation that may lead to another seizure. The evidence supports reinstatement of the Appellant’s driver’s licence now, rather than having to wait for six months of seizure-free stability. Weighing the evidence on a balance of probabilities, the Tribunal finds the Appellant is not suffering from a condition or disability which is likely to significantly interfere with his ability to drive a motor vehicle of the applicable class safely.

DECISION

Upon the Appellant’s appeal of the decision effective April 17, 2016 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 to suspend his Class ‘G’ licence be set aside.

LICENCE APPEAL TRIBUNAL

Kevin Flynn, M.D., Member

Released: May 30, 2016