10515 v. Registrar of Motor Vehicles, 2017 CanLII 17574

Licence Appeal Tribunal / Tribunal d'appel en matière de permis

DATE: 2017-01-10

FILE: 10515/MED

CASE NAME: 10515 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

10515 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: January 6, 2017

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’s driving privilege was suspended effective November 2, 2016 due to an episode of severe hypoglycemia that occurred at his home on July 27, 2016. This was the second episode in 25 years. The Registrar requires a period of stability of six months with no recurrence of severe hypoglycemia.

The Tribunal finds that the reason for the hypoglycemic event on July 27, 2016 was identified and resolved by his family physician and his diabetes specialist, both of whom have stated that the diabetes is now stable.

The suspension is set aside.

FACTS

Evidence for the Respondent

The Appellant is a self-employed horse farmer and as such he requires a commercial licence to drive when moving horses from one location to another. He is an insulin dependent diabetic Type 1 since 1986 and is required to file a medical report at regular intervals in order to keep a Class ‘A’ commercial licence.

He is under the care of his family physician, Dr. W., since 1990. He has also been seen regularly by a diabetes specialist, Dr. B., who has filed the periodic medical reports required by the Registrar, including Medical Waiver Certification. This medical waiver was required under former legislation that was changed in 2011 when the government streamlined the commercial driver medical review process.

The Appellant’s diabetes record obtained by the Registrar indicates that the Appellant attended a Diabetes Education Centre in 1986 when his diabetes was first diagnosed. The record also shows that, except for two episodes of severe hypoglycemia in 25 years, the diabetes has remained stable and that his blood sugars have been congruent with regular A1C levels.

Severe hypoglycemia is diagnosed when a patient requires outside intervention or when the condition produces an alteration in level of consciousness or loss of consciousness.

A1C, also known as HbA1C, is a laboratory test that indicates if the blood sugar levels over the previous three months have been within therapeutic levels.

The records also show that the Appellant tests his blood sugar before driving and that he carries a source of glucose in his vehicle. He also tests his blood glucose level before driving.

The Registrar was informed through the scheduled regular medical report on October 11, 2016 that a severe hypoglycemic event had occurred on July 27, 2016. Although the Appellant was treated at a local Emergency Room for severe hypoglycemia on July 27, 2016 the Registrar was not notified. Section 203 of the Act requires medical practitioners to inform the Registrar when a patient suffers from a condition that may make it dangerous for the person to operate a motor vehicle.

Dr. W.’s scheduled Diabetes Assessment form on October 11, 2016 had the following points:

• Diagnosis is Type 1 diabetes, insulin dependent
• Approximate percentage of blood glucose readings in the past 30 days that have been below 4 mmol/L: less than 10%
• Most recent A1C in the last 3 months: 7-8%
• A1C results are consistent with blood glucose readings
• Patient has an adequate understanding of diabetes and of the relationship between insulin, diet and exercise.
• He is generally compliant with monitoring, diet, exercise, rest and attendance at the doctor’s office
• He has awareness of early symptoms of hypoglycemia
• He had an episode of hypoglycaemia in the last 6 months requiring outside intervention, but not more than one in the last 12 months.
• General health has been normal.
• He has been adherent to the recommended regimen

After receiving this information, the Registrar informed the Appellant on October 25, 2016 that his driver’s licence was suspended under section 47(1) of the Act. The effective date of suspension was November 4, 2016. He was informed of his right to appeal, and he appealed on November 2, 2016.

The Registrar’s letter asked the Appellant to go to his physician, specialist or nurse practitioner and have the following information sent to the Medical Review Section of the Ministry:

• Confirmation that he has not experienced any severe hypoglycemic reactions for a minimum of six consecutive months
• Confirmation that his diabetic diary with blood glucose tested at least twice daily for the last 30 days, has been assessed and where less than 5% of readings are below four (4) mmol/L
• A recently conducted HbA1C result must also be provided with confirmation that the level is congruent with his blood logs.

Dr. W. wrote to the Registrar on November 30, 2016:

“(Appellant) has been a patient of mine for over 25 years. He has an excellent understanding and control of his long standing insulin dependent diabetes. This is evident by his very good haemoglobin A1C results.

He has had two isolated hypoglycemic episodes over the past 25 years. The last one was July 31, 2016 [Note: the Appellant testified that the correct date was actually July 27]. He was working on his farm and unfortunately mismanaged his food intake and attempted to complete his work requirements. Normally he has excellent control of the blood sugars.”

The Registrar acknowledged the information submitted and informed the Appellant on December 1, 2016 that the suspension would remain with the same conditions referred to in the letter of October 25, 2016.

On December 6, 2016 Dr. W. submitted a computer generated line graph of the Appellant’s A1C results between 2011 and December 2, 2016 , roughly every six months, ranging between 0.077 in 2011 and 0.073 on December 2, 2016, performed every three months in 2016.

Dr. W. also submitted copies of twice daily blood sugar logs which he had reviewed and which confirm congruence with the A1C levels. All results were within the recommended therapeutic range.

The Registrar acknowledged this new information and informed the Appellant on December 14, 2016 that the conditions previously stated continued to apply.

Evidence by the Appellant

On July 31, 2016, the Appellant suffered a severe hypoglycemic event while working on his farm. He normally has two assistant workers who were absent that day. He miscalculated his caloric intake with the work requirement and delayed his meal due to a prolonged telephone call. His family was alerted by the person on that call and 911 was contacted. He was found unconscious, with a blood sugar level of less than 2 mmol/L and was taken to the local emergency room where he was assessed and discharged after two hours.

When diabetes was diagnosed 30 years ago he attended a Diabetes Education Program in Toronto for insulin dependent diabetics. His family physician, Dr. W. and his diabetes specialist, Dr. B., monitor his diabetes control by regular A1C tests. He provides his sugar log when he has an A1C blood test.

He balances his insulin requirements with his activity level.

Since July 27, 2016, he has revised his diabetes management. He takes insulin according to the recommended scale. He checks his blood sugar before driving and approximately every hour while driving.

He uses his commercial licence only when moving stock from the farm.

This was the second episode of severe hypoglycemia in 25 years. In 2004, he had an episode of severe hypoglycemia that required intervention by paramedics. This episode was attributed by his endocrinologist to a social event where alcohol was involved.

Dr. B. notes in the Diabetes Assessment that the Appellant has good insight into his diabetes and is aware of the consequences of hypoglycemia in relation to operation of a motor vehicle.

ISSUES

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

In particular:

Does the Appellant suffer from a mental, emotional, nervous or physical condition or disability 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.”

Submissions by the Parties

Ms. De Santis, on behalf of the Registrar, submits that the Registrar has received information from the Appellant’s family physician that shows that two episodes of severe hypoglycemia were reported in the past 25 years. The records of his A1C levels provided by the family physician have been reviewed by the Medical Review Section. She stated that these records indicate that the Appellant has an excellent record of control. Despite this, the Registrar depends on the Canadian Council of Motor Transportation Administrators (CCMTA) guidelines in assessing commercial drivers with insulin dependent diabetes.

CCMTA guidelines are a consensus of guidelines by medical specialists across Canada that assist the Registrar in cases where a medical condition may be a safety factor for drivers and public safety. The relevant guideline standard in the case of commercial drivers treated with insulin is 7.6.3 that states:

Commercial drivers treated with insulin are eligible if:

• They obtain and retain an initial certificate of competency in blood glucose measurement from a specialist in diabetic care (when required) or a treating physician
• Blood tests do not indicate uncontrolled diabetes which are HbA1C > 12% or <10% of blood glucose levels <4.0 mmol/L.
• There is no significant change in insulin therapy (i.e. insulin was introduced, change in insulin type or number of injections) or, if there has been a significant change in therapy, monitoring and assessment indicates stable and effective blood glucose control,
• No evidence of inadequate blood glucose self-monitoring (unreliable or no home blood glucose measurement) or inadequate knowledge regarding causes, symptoms and treatment of hypoglycemia and,
• Annual medical review.
• Conditions for maintaining a licence are met.
• Conditions for maintaining licences:
• Their work schedule is approved by their treating physician as compatible with their insulin regimen
• Carries a blood glucose self-monitoring equipment and an available source of rapidly absorbing glucose
• Tests blood glucose concentration 1 hour or less before driving and approximately every four hours while driving
• Doesn’t begin or continues to drive if glucose level falls below 6 mmol/L and doesn’t resume driving until glucose level rises above 6 mmol/L after food ingested.
• Reassessment annually.

Also Guideline 7.6.7 applies to commercial drivers with severe hypoglycaemia or hypoglycemia during sleep:

Eligible for a licence if

• Treating physician indicates stable glycemic control is re-established and the authority determines are fit to drive. Times required to re-establish glycemic controls varies individually
• No further severe hypoglycemic episode while awake or asleep within 6 months
• Conditions for maintaining a licence are met.
• Conditions are: provide the treating physician with blood glucose log of at least 4 readings per day for 30 days, where less than 5% of readings are below 4.0 mmol/L
• Must test blood glucose immediately before driving and approximately every hour while driving
• Doesn’t or continue to drive if blood glucose falls below 6 mmol/L and doesn’t resume driving until blood glucose rises above 6 mmol/L after food is ingested.

The Registrar submits that the relevant guidelines require a period of six months free from severe hypoglycemia before consideration can be given to reinstatement and that the six month period has not lapsed. Also, the Registrar requires confirmation by the attending physician that the Appellant’s diabetic diary, with blood glucose levels performed twice daily, has been assessed and includes the number of blood levels which are below 4 mmol/L. Overall, the Registrar notes that there is no medical evidence that the Appellant has been free of a severe hypoglycaemic event for at least six months.

The Appellant declined to make a final submission at the end of the hearing.

APPLICATION OF THE LAW TO FACTS

The Tribunal has carefully reviewed the evidence and submissions by the Parties, the exhibits and relevant guidelines cited by the agent for the Registrar.

The Appellant has submitted medical evidence that shows appropriate monitoring and control of the insulin dependent diabetes over a period of approximately 25 years. During that period he has suffered two episodes of severe hypoglycemia, which is defined as episodic impairment which the driver is unable to compensate.

He has complied with the Registrar’s requirements for reinstatement in all respects except confirmation of six months free from severe hypoglycemia.

The two episodes occurred in 2004 and 2016, and in each case a cause was established and resolved. The Appellant’s Diabetes Assessment completed by the diabetes specialist, Dr. B., in October 2016 following the episode on July 27, verified that the Appellant has adequate awareness of the relationship between insulin requirements and diet, exercise and regular monitoring and that he is compliant with management and monitoring.

While the CCMTA guidelines are a valuable tool for managing reports of severe hypoglycemia from a perspective of road safety, a rate of two episodes in 25 years appears to be unusually low for commercial drivers on insulin. The CCMTA guidelines are not binding, and Regulation 340/94 states that the Minister

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.

The incidence of severe hypoglycemia was estimated to be 0.31 episodes per person per year, according to the preamble to CCMTA, at Chapter 7 on Diabetes, page 160 (December 2015 edition).

The Appellant has demonstrated how he has responded to the July 27, 2016 incident by more frequent blood sugar testing and increased awareness of balancing his food intake with his level of activity and more frequent A1C testing and attendance at his physician’s office. In these circumstances, the Tribunal sees no need for the Appellant to have to wait a full six months before his licence is reinstated.

Weighing the evidence on a balance of probabilities, the Tribunal finds the Appellant is not suffering from a condition which is likely to significantly interfere with his ability to operate a motor vehicle safely.

DECISION

Upon the appeal of the Registrar’s decision to suspend his driver’s licence effective November 4, 2016, 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 set aside.

LICENCE APPEAL TRIBUNAL

Kevin Flynn M.D., Member

Released: January 10, 2017