Licence Appeal Tribunal
Appeal d'appel en Tribunal matière de permis
FILE: 10328/MED
CASE NAME: 10328 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
10328 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: Sonia De Santis, Agent
Heard by teleconference: August 10, 2016
DECISION AND REASONS
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”).
OVERVIEW
The Appellant suffered a grand mal epileptic seizure while in control of a public transit bus. She has a prior history of simple partial temporal lobe seizures for which she declined medication.
The Tribunal confirms the downgrading of her commercial licence.
FACTS
Evidence for the Respondent
The Appellant, age 61, held a Class “A” commercial driver’s licence and was employed as a bus driver.
On November 7, 2015, she suffered a seizure while driving her bus and was taken by ambulance to the Emergency Room (the “E.R.”). The E.R. physician, Dr. B., completed a Medical Condition Report in compliance with section 203 of the Act.
The condition reported was:
Seizures(s)-Cerebral
Driving bus-syncope? then seizure-like activity; taken to E.R. - more like post- ictal – so probably was a generalized tonic-clonic seizure.
On November 10, 2015, the Respondent informed the Appellant that upon receiving a report of seizure it had been decided to suspend her driving privilege under section 47(1) of the Act.
In order to be considered for reinstatement she was required to take the letter of suspension to her physician and have the enclosed Epilepsy and Seizures form completed.
On November 11, 2015, Dr. V., family physician informed the Respondent that the Appellant had a seizure on November 6, 2015 and has been put on Dilantin.
By letter dated December 11, 2015, a neurologist, Dr. K., informed the Respondent that the Appellant may have a medical condition which could interfere with her ability to safely operate a motor vehicle.
Dr. K. wrote in her letter that the Appellant had been seen by her in the past regarding simple partial temporal lobe seizures but she refused to take seizure medication at that time because of side effects. In the past, the Appellant had reported complex visual hallucinations with déjà vu roughly five times a year. She also reported over the past couple of years some confusional episodes where she suddenly does not know where she is going, the last being in March 2015.
On November 7, 2015, she had a sudden confusional episode followed by a generalized tonic-clonic seizure while driving a city bus.
She had a normal MRI in 2012; previous EEG that showed some left temporal neocortical spikes.
She had cancelled a follow-up appointment in October 2013.
She had not been on any medications nor was there a history of head injury and no alcohol use during the day.
Dr. K. stated that since the November 7 episode she has been compliant on Dilantin 300 mg daily (later increased to Dilantin 330 mg at night).
She diagnosed temporal lobe epilepsy and the Appellant was to have monthly Dilantin blood levels.
The Epilepsy and Seizures Assessment was completed on December 15, 2015 by Dr. W., family physician since 1997.
In summary it stated:
Grand mal Seizures less than 3 months ago
Previous simple partial seizure different than the recent seizure
EEG in the past 12 months was not abnormal
MRI in the last 12 months was normal
Etiology unknown
Medication prescribed has no side effects that may impair driver safety
Medication is preventing further seizures
Patient is adhering to prescribed treatment and is compliant
An EEG performed December 8, 2015 shows no epileptiform activity.
On January 26, 2016, the Respondent informed the Appellant that the suspension of her driving privilege would remain. In order to be considered for reinstatement she is required to submit confirmation that she has remained seizure-free for a period of five years.
A further letter from her neurologist, Dr. K., was completed on May 6, 2016.
She stated that the Appellant was seizure-free since November 7, 2015 and is compliant on Dilantin 330 mg nightly. EEG and MRI performed in December were normal. Blood levels of Dilantin were in the therapeutic range. The patient showed good insight into her condition and she will be seen again in December 2016.
On July 15, 2016, the Respondent informed the Appellant that following review of the information submitted, including the report by the neurologist, Dr. K., and the Epilepsy & Seizures Assessment, her Class “G” licence was approved and that she will be required to submit a further report by her physician on May 6, 2017.
The letter went on to state that in order to be considered for reinstatement of her commercial licence she will be required to submit a report from her physician that she has remained seizure-free for a period of five years with or without the use of anti-seizure medication. This period may be reduced to three years upon completion of a satisfactory Epilepsy and Seizures Assessment form.
Ms. De Santis cited the Canadian Council of Motor Transport Administrators (CCMTA)
Guideline 17.6.12
Epilepsy – Commercial drivers diagnosed with epilepsy:
Commercial drivers are eligible for a licence if
- They have not had a seizure with or without medication for 5 years, and
the conditions for maintaining a licence are met.
Ms. De Santis also cited CCMTA Standard 17.6.14 that states:
Epilepsy with simple partial seizures - Commercial Drivers
Commercial drivers are eligible for a licence if
It has been 5 years since the last seizure, or
The driver is experiencing seizures but the seizure pattern has been consistent for 3 years – and therefore no seizure free waiting is required
Favourable assessment from neurologist to drive
No impairment in level of consciousness or cognition
No head or eye deviation with seizures
Evidence by the Appellant
The Appellant stated that she has been a part-time bus driver, driving 20 hours a week daytime only.
On the day in question she worked four hours in the morning before taking her lunch break. On returning to the bus she felt lightheaded and was going to pull over to the side of the road. She woke up in the Emergency Room. A passenger must have called for the ambulance when the bus rolled to a stop. She had bitten her tongue but was not incontinent.
When she came to in the E.R. she was told that she had suffered a seizure. She remained in the E.R. for EEG and MRI and was discharged the next morning.
She acknowledged that she was driving a tractor trailer in 2008 and she declined to take medication because of side effects. She had some tests ordered by her family doctor and stated that no abnormal results were reported to her. She started to drive a city bus in 2010.
She stated that she has no history of head injury or alcohol or drug abuse. She acknowledged episodes of confusion or tiredness described by Dr. K. but stated that she always knew where she was when they occurred. She stated that these episodes did not occur while driving and that she did not report them to her employer.
She stated that she started to take Dilantin in the E.R. and had blood tests ordered by Dr. K. for her Dilantin level and is aware that she must see Dr. K. yearly or if a change of her dosage is required.
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 she should no longer be entitled to exercise the privilege of a Class “B” 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.
The Agent for the Respondent relies on:
The report of seizures while driving a bus as reported by a physician in compliance with section 203 of the Act justifies the suspension of her driving privilege under section 47(1) of the Act.
Pursuant to further medical reports submitted on her behalf, the Respondent was justified in reinstating the Appellant’s Class “G” licence after a period of six months’ seizure-free and stability of Dilantin treatment.
The Minister is justified under section 32(5)(b)(i) in downgrading the commercial licence of the Appellant for a period of five years on or off medication or a period of three years upon satisfactory completion of the Epilepsy and Seizures Assessment with confirmation by her neurologist of remaining seizure free.
The Appellant was informed by Ms. De Santis of the responsibility of physicians in Ontario under section 203 of the Act to report to the Respondent any patient who is suffering from a condition that may make it dangerous for the person to operate a motor vehicle. She was further advised that it is the responsibility of the Respondent, and not the physician to issue a suspension of a driver’s driving privilege upon receipt of a Medical Condition Report. She acknowledged that the requirement under section 203 is for safety of the public as well as her own safety.
APPLICATION OF THE LAW TO FACTS
The Tribunal finds that the Respondent was justified under section 47(1) of the Act in issuing a suspension of the Appellant’s driving privilege upon receipt of a Medical Condition Report by a physician of seizures, in compliance with section 203 of the Act.
The neurologist, in her letter of December 10, 2015, stated that the Appellant had a past history of simple partial lobe seizures with visual hallucinations, and on November 7, 2015, she had a sudden confusional episode followed by a generalized tonic-clonic seizure while in control of a public transit bus. The neurologist made a diagnosis of temporal lobe epilepsy with generalized seizure and made arrangements for regular laboratory levels of Dilantin and follow-up consultation six months following the November 2015 seizure.
The Appellant has remained seizure free for a period of six months and is compliant with medication, which supports the Respondent’s decision to reinstate her Class “G” licence.
However, the Tribunal does not find, on the evidence, that a seizure-free period of less than 12 months is sufficient time to support deviation from the CCMTA guideline for a commercial licence. The Tribunal must weigh the fact of the Appellant’s diagnosis of temporal lobe epilepsy and that the most recent seizure occurred while she was driving a public transit bus.
The Tribunal notes that Dr. K., though noting that the Appellant is compliant and has insight into her condition, does not specifically indicate support for reinstatement of the commercial licence.
In conclusion, the Tribunal finds that the Appellant does suffer from a physical condition or disability likely to significantly interfere with her ability to drive a motor vehicle of the applicable class safely.
DECISION
Upon the application by the Appellant to appeal the decision dated January 26, 2016 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 confirmed.
LICENCE APPEAL TRIBUNAL
Kevin Flynn, M.D., Member
Released: August 25, 2016