Licence Appeal Tribunal
Appeal d'appel en Tribunal matière de permis
FILE: 10315/MED
CASE NAME: 10315 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 of Classes of Motor Vehicles in respect of which the Licence was issued
10315 Appellant
-and-
Minister of Transportation Respondent
REASONS FOR DECISION AND ORDER
ADJUDICATOR: Kevin Flynn, M.D., Member
APPEARANCES:
For the Appellant: Appellant’s Family Member, Agent
For the Respondent: Sanjay Kapur, Agent
Heard by teleconference: August 3, 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 “Minister” or the “Registrar”) pursuant to section 32(5(b)(i) of the Highway Traffic Act, R.S.O. 1990, c. H.8 (the “Act”).
The issue in this appeal is whether the Appellant’s heart condition is likely to significantly interfere with his ability to drive a commercial motor vehicle safely.
FACTS
The Appellant, now age 60, had an acute myocardial infarction in 1993 at age 37, secondary to critical coronary artery disease, heavy smoking for 20 years, dyslipidemia and a positive family history for fatal myocardial infarction.
He was treated by angioplasty, smoking cessation, dietary management, cardiac rehabilitation and betablocker therapy. At that time, his cardiologists estimated his risk of ventricular tachycardia was extremely low in spite of unfavourable risk factors.
The Appellant’s commercial driving licence was suspended at that time in 1993. In December 1994, following a favourable cardiology assessment and waiver, his Class “A” driving licence was reinstated on the recommendation by the Medical Advisory Committee in the Ministry of Transportation, with annual re-assessment and waiver certification. The Ministry provides a Medical Waiver Certificate to be completed by a driver's physician when the driver’s condition may justify departing from existing standards.
In August 1997, the Appellant suffered a second myocardial infarction and his licence to drive was suspended under section 47(1) of the Act. His Class “G” licence was reinstated in December 1997, upon recommendation by the Medical Advisory Committee. His Class “A” licence was reinstated in February 1998 with annual assessment and waiver.
On May 24, 2001, the Ministry received a medical report of cardiac rhythm disturbance with cardiac arrest, syncope and inducible VT (ventricular tachycardia), and possible cognitive impairment due to cerebral hypoxia. An implantable defibrillator (ICD) was inserted on May 17, 2001. The medical waiver was removed and a Class “GM2” licence was issued.
During the period between 2003 and 2007, the Appellant’s cognitive impairment was monitored by a specialty clinic, and in 2008, he was deemed to have normal cognitive function. Meanwhile, in 2008, his ICD showed that it did not have to deliver any shocks since its implant. He was approved for a Class “D” licence in September 2008.
In 2012, the Appellant applied for reinstatement of his commercial licence.
A cardiologist assessment was completed by Dr. B. on January 28, 2013. Some modifications were added by him in 2016 (in italics).
In summary, this stated:
- Coronary Artery Disease is stable and the most recent myocardial infarction (MI) was more than 12 months ago
- Cardiac arrest following MI in 2001 and is controlled
- ICD more than 12 months ago for secondary prophylaxis
- Annual risk of sudden incapacitation is not less than 1%
- Dilated or ischemic cardiomyopathy has required inotropic support in hospital for CHF (congestive heart failure) [The cardiologist stated in a note to the Appellant in April 2016 that inotropic support was not required.]
- Medication prescribed and is compliant
- New York Heart Association (NYHA) functional class 1 (No limitation of physical activity)
- Left ventricular ejection fraction (EF) less than 35% 6-12 months ago by echocardiogram. [On February 23, 2016 – EF= 35-40%]
- A single episode of syncope not a typical vasovagal event
- Underlying stable condition with ICD but never fired
The Appellant was approved for a commercial licence on February 11, 2013.
The Ministry required further medical reports in January 2016.
On January 29, 2016, the cardiology assessment stated that the ICD implanted in 2001 was for secondary prophylaxis. The Tribunal notes that this information was also contained in the cardiology assessment on January 11, 2013.
On February 16, 2016, the Minister informed the Appellant that following review of the medical reports received, he no longer met the National Standards for a commercial licence due to his heart condition.
On March 4, 2016, the Minister informed the Appellant that commercial drivers are not approved for a licence if the reason for the ICD implantation was for secondary prophylaxis, and also noted if the ischemic cardiomyopathy required inotropic support.
The Ministry relies upon the December 1, 2015, edition of the Canadian Council of Motor Transport Administrators (CCMTA) Guideline 3.6.32, approved by the Canadian Cardiovascular Society:
ICD implanted as secondary prophylaxis for VF or VT-Commercial drivers:
STANDARD: Commercial drivers are not eligible for a licence
He was approved for only a Class “G” licence.
The Agent for the Appellant questioned Mr. Kapur as to why the medical reports in 2013 that resulted in reinstatement were not applied in 2016 when the medical evidence was the same. Mr. Kapur stated that the standard had changed and the current CCMTA Guidelines in 2016 were applied.
The Agent for the Appellant did not introduce additional evidence.
ISSUES
Should the decision of the Respondent to change the 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?
In particular:
Does the Appellant suffer from a mental, emotional, nervous or physical disability likely to an extent that he no longer be entitled to exercise the privilege of a Class “A” 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 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 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 the person, in accordance with the results of the examinations and other prescribed requirements, or
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 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.
APPLICATION OF THE LAW TO FACTS
The Tribunal finds that the Registrar was justified in issuing a suspension of the Appellant’s driving privilege under section 47(1) of the Act following receipt of a medical report of acute myocardial infarction in 1993. The Registrar was justified in reinstatement of the commercial driving licence in 2013 following medical reports of stability and compliance with the therapeutic regime with waivers.
Following the scheduled medical assessment in 2016, the Appellant’s cardiologist reported that the ICD implanted in 2001 was for secondary prophylaxis.
Guideline 3.6.32 of the Canadian Council of Motor Transport Administrators, (CCMTA), December 1, 2015 edition, states that commercial drivers with ICD implanted as secondary prophylaxis for VF or VT are not eligible for a licence. This guideline is also recommended by the Canadian Cardiovascular Society.
The current CCMTA guideline does not have the accommodations contained in previous editions, such as the March 2009 edition reviewed by the Tribunal. That edition stated that Class 5-8 commercial drivers with ICD for secondary prophylaxis for VF or VT with decreased level of consciousness and NYHA Class I-III are eligible six months after the event. The six-month period begins at the time of the last documented episode of sustained VT or syncope judged to be likely due to VT or cardiac arrest.
The Appellant’s cardiologist made no reference in his assessment reports to the current applicable CCMTA guideline, possibly through lack of awareness of the December 1, 2015 change. The Tribunal notes that this revised CCMTA guideline no longer refers to the possible reinstatement of the driver’s licence after six months of no further episodes. This more restrictive guideline for commercial drivers was accepted by the Canadian Cardiology Society in December 2015. While this guideline is not binding on the Tribunal, there are enough concerns about the Appellant’s situation to support the application of this guideline. The Tribunal notes the extensive cardiac history of the Appellant, commencing at an early age with significant risk factors and with an unfavourable family history of cardiac death, plus a series of three critical cardiac events that required the implantation of an intracardiac defibrillator for secondary prevention. This all points to an unacceptable level of risk for a commercial driver.
Weighing the evidence on a balance of probabilities, the Tribunal finds that the Appellant is suffering from a condition or disability which is likely to significantly interfere with his ability to operate a Class “A” motor vehicle safely.
DECISION
Upon the application by the Appellant to appeal the decision dated February 16, 2016, of the Minister to change the class or classes of motor vehicles 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 Minister 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 Minister be confirmed.
LICENCE APPEAL TRIBUNAL
Kevin Flynn, M.D., Member
Released: August 11, 2016