LICENCE APPEAL TRIBUNAL
Safety, Licensing Appeals and Standards
Tribunals Ontario
Appeal under subsection 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) of the Act to change the Class or Classes of a Driver’s Licence
Between:
Appellant
Appellant
and
Minister of Transportation
Respondent
DECISION AND ORDER
Panel: Kevin Flynn, M.D.
Appearances:
For the Appellant: Self-represented
For the Respondent: Kyle Biel, Agent
Place and date of hearing:
By teleconference
April 12, 2017
REASONS FOR DECISION AND ORDER
A. Overview
1The Appellant appeals the decision of the Minister of Transportation to change the class of his driver’s licence from Class A to Class G pursuant to s. 32(5)(b)(i) of the Highway Traffic Act, R.S.O. 1990, c. H.8 (the “HTA”). The Appellant is a 54-year-old man who is employed as a machine operator. Before his driver’s licence was downgraded, he was also employed as a part-time truck driver.
2On July 22, 2016, the Appellant suffered a heart attack and collapsed as he was spreading hot asphalt on a hot summer day. The Appellant was diagnosed with ventricular fibrillation (“VF”), which is defined as abnormal twitching of the heart muscle usually secondary to underlying heart disease or hypertension. He had an implantable cardioverter defibrillator (“ICD”) implanted as secondary prophylaxis to prevent a recurrence of VF. An ICD is an electrical device attached to the left ventricle to detect fibrillation and administer an electrical shock to convert fibrillation to regular rhythm.
3The Registrar of Motor Vehicles (the “Registrar”) suspended his driver’s licence on July 26, 2016 after receiving a Medical Condition Report submitted in accordance with s. 203 of the HTA, which requires all medical practitioners to report any person older than sixteen who is suffering from a condition which may make it dangerous for the person to drive. The Appellant’s Class G licence was subsequently reinstated after the Appellant provided evidence that his ICD had not delivered any therapies and six months had elapsed since his last episode of VF. However, the Appellant was advised that he was no longer eligible for a commercial licence due to his cardiac arrest, ventricular fibrillation and ICD implant.
4The Appellant submits that his Class A licence should be reinstated because he has been healthy since his heart attack. The Respondent submits that according to section 3.6.32 of the Canadian Council of Motor Transport Administrators (“CCMTA”) Medical Standards for Drivers, individuals who have an ICD implanted as secondary prophylaxis for VF are not eligible for a commercial licence.
B. ISSUE:
5The issue in this appeal is whether the Appellant has a medical condition likely to significantly interfere with his ability to drive a Class A motor vehicle safely.
C. facts and EVIDENCE:
Registrar’s Evidence
6On July 22, 2016, a physician in an Intensive Care Unit sent a Medical Condition Report to the Registrar of Motor Vehicles (the “Registrar”) pursuant to s. 203 of the HTA. The reported condition was “Cardiac Arrest”. The Medical Condition Report stated, “Patient is a truck driver, had a cardiac arrest likely cardiogenic (ischemic vs arrhythmia).”
7Based on that report, the Registrar decided to suspend the Appellant’s driver’s licence pursuant to s. 47(1) of the HTA. The Registrar notified the Appellant of the suspension by letter dated July 26, 2016. Attached to the letter was a Commercial Driver Cardiovascular Assessment (“CDCA”) Form. The letter stated that in order to be reinstated, the Appellant must have that form completed by his treating physician, specialist or nurse practitioner and sent to the Ministry of Transportation, and that the Ministry would determine whether his licence can be reinstated.
8The Appellant had the CDCA Form completed on September 14, 2016 by Dr. T., a specialist who had been involved in the treatment of the Appellant since July 2016. Dr. T. indicated on the CDCA Form, among other things, the following medical information about the Appellant:
The Appellant had cardiac arrest.
The Appellant had ventricular fibrillation, which occurred less than three months prior to the report and was not due to a reversible cause.
The Appellant had undergone an implantable cardioverter defibrillator (ICD) implant.
The reason for the implantation was secondary prophylaxis.
It is unknown whether the annual risk of sudden incapacitation is felt to be 1% or less.
The Appellant has no limitation of physical activity and no symptoms during daily activities.
The Appellant’s left ventricular ejection fraction is greater than 50%.
He had an accessory pathway ablated. He then received an ICD.
Coronary [catheter] shows mild [coronary artery disease] CAD only.
His VF function is preserved.
9The Registrar reviewed the CDCA Form and then sent a letter to the Appellant on October 12, 2016 advising that a decision had been made that his driving privilege should remain under suspension. The letter stated that in order to have his Class G licence reinstated, he was required to submit confirmation that:
The defibrillator has delivered no shock or anti-tachycardia pacing therapy; and
A period of at least six months has elapsed since the last episode of ventricular tachycardia or ventricular fibrillation.
10The letter stated that he was no longer eligible for a commercial licence because of his ICD:
Based on your reported cardiac condition you are no longer eligible for a commercial licence due to your reported cardiac arrest, ventricular fibrillation and ICD implant. You are only eligible to obtain a class G licence once you submit the information requested above.
11On September 14, 2016, the Appellant saw his family physician, Dr. B., who wrote a report stating that the Appellant’s cardiovascular status was clinically stable and that he had normal ICD function with no therapies delivered. The report stated that the Appellant had cardiac arrest on July 22, 2016 while shoveling pavement on a hot day. He was defibrillated twice and had a full neurological recovery. The report also noted that the Appellant has a family history of sudden death, referring to his father who died in his early thirties.
12On a prescription dated October 22, 2016, Dr. B. included a note requesting the reinstatement of the Appellant’s “regular” driver’s licence. She stated that his arrhythmia is currently safely prevented from his ICD and it has not fired.
13On a prescription dated January 14, 2017, Dr. B. wrote another note in which she stated that she spoke to someone at the Ministry of Transportation and was advised that the Appellant must wait six months since his last ventricular fibrillation or ventricular tachycardia attack. She confirmed that he has not had any attacks since July 22, 2016 and that his pacemaker has not fired since July 22, 2016.
14Based on that information, the Appellant’s Class G licence was reinstated on January 24, 2017.
Appellant’s Evidence
15The Appellant testified about the day that he had the heart attack. It was a very hot day in a hot summer. He was spreading asphalt on the ground and blacked out. He does not have a recollection of what happened next, as he was unconscious. The Appellant’s coworkers told him that a security guard from a nearby shopping centre used a defibrillator on him. Then an ambulance showed up and took him to the hospital. He was then transferred to another hospital, which is where he regained consciousness.
16The Appellant testified that he felt healthy after three days of being in the hospital. He said that he was able to move around while in the hospital. He testified that he received the ICD implant approximately a week and a half after his heart attack. He stayed in the hospital for a total of two weeks and was told that he could return to work after two additional weeks at home.
17The Appellant testified that the doctors explained to him at the hospital that the ICD was being implanted into his chest in order to monitor his heart condition. He said that he did not question the recommendation to have the ICD implanted.
18The Appellant explained that it benefits him at work to have a Class A licence, as he is a machine operator and part-time truck driver. He stated that he remains employed with the same company, as he has been for the last 20 years.
19With respect to the sudden death of his father, the Appellant testified that he does not know the cause of his death or whether it was due to a heart condition, and that there is nobody alive today who would know the cause.
D. LAW:
20The Minister of Transportation (the “Minister”) has the authority to change the class of a driver’s licence under s. 32(5)(b)(i) of the HTA. That section states:
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…
21The Minister’s decision under s. 32(5)(b)(i) is to be made in accordance with the examinations that the Minister may require and other prescribed requirements.
22One of the prescribed requirements is set out in s. 14(1)(a) of O. Reg. 340/94 (the “Regulation”), which states that a holder of a driver’s licence must not “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.”
23In determining whether a person meets that requirement, the Minister may, under s. 14(2)(b) of the Regulation, require him or her to provide satisfactory evidence that he or she is able to drive a motor vehicle of the applicable class safely. That evidence may include any reports of examinations that the Minister has required the person to submit to pursuant to s. 15 of the Regulation.
24Section 14(2)(a) of the Regulation allows the Minister to consider the Canadian Council of Motor Transport Administrators (“CCMTA”) Medical Standards for Drivers when determining whether the requirements of 14(1) are met. Similarly, the Tribunal may take the CCMTA Medical Standards for Drivers into consideration, although they are not binding requirements.
25Section 50(1) of the HTA and section 25.1 of the Regulation provide a right to appeal a decision made by the Minister under s. 32(5)(b)(i) to the Tribunal. Following a hearing, the Tribunal may, under s. 50(2) of the HTA, confirm, modify or set aside the decision or order of the Minister.
E. SUBMISSIONS:
Respondent’s Submissions
26The Respondent submits that s. 32(5)(b)(i) of the HTA permits it to change the class of a driver’s licence in accordance with the results of examinations or other prescribed requirements. In this case, the Respondent submits that the class of licence was changed in accordance with the results of medical examinations.
27The Respondent submits that based on the medical evidence, the Appellant cannot be granted a higher class of licence than Class G. The Respondent relies on standard 3.6.32 of the CCMTA Medical Standards for Drivers, which states that a driver who has an ICD implanted as secondary prophylaxis for VF is not eligible for a commercial licence.
28The Respondent submits that the CDCA Form filled out by Dr. T. indicated that the Appellant has VF and has an ICD implanted for secondary prophylaxis. Based on standard 3.6.32 of the CCMTA Medical Standards for Drivers, the Appellant cannot be granted a commercial licence.
29The Respondent also notes that Dr. B. requested the reinstatement of the Appellant’s “regular driver’s licence”, which the Respondent submits refers to a Class G licence. The Respondent also emphasized the fact that the Appellant has a family history of sudden death.
Appellant’s Submissions
30The Appellant submits that his Class A licence should be reinstated. He relies on the fact that the doctors recommended that he return to work after two weeks in the hospital and two weeks recovering at home. He submits that his doctors would not have said that he could return to work if it was not safe for him to drive a commercial vehicle, as they knew that he was a part-time truck driver.
31The Appellant submits that he is healthy. He submits that his understanding was that the ICD was being implanted for the purpose of monitoring his heart, and that he should not lose his commercial licence as a result of it. He submits that it benefits him at work to have his Class A licence as part of his job is driving trucks.
32With respect to the early death of his father, the Appellant submits that this is not relevant as he has a number of siblings who are all fine.
F. Analysis:
33I am satisfied that the Appellant has a medical condition that is likely to significantly interfere with his ability to drive a Class A vehicle safely.
34The Appellant collapsed at the roadside due to VF arrest. He subsequently had an ICD implanted for secondary prophylaxis against recurrence of VF.
35I have considered section 3.6.32 of the CCMTA Medical Standards for Drivers, which applies to commercial drivers who have had an ICD implanted as secondary prophylaxis for VF or ventricular tachycardia (“VT”). This standard states that commercial drivers are not eligible for a licence.
36I understand that the Appellant feels healthy and believes that the ICD was implanted for the purpose of monitoring his heart. However, I find based on the medical evidence contained in the CDCA Form filled out by Dr. T. that the ICD was implanted as secondary prophylaxis for VF. Accordingly, I consider section 3.6.32 of the CCMTA Medical Standards for Drivers as instructive in this matter.
37Although I am not bound by the CCMTA Medical Standards for Drivers, I find that they provide a helpful guide to consider the evidence of the Appellant’s medical condition in this case. There may be cases where the risk of sudden incapacitation is low and an ICD implanted as secondary prophylaxis for VF would not be likely to significantly interfere with the ability to drive a commercial vehicle safely. However, I find that this is not one of those cases. In particular, I note that Dr. T. stated on the CDCA Form that it was unknown whether the annual risk of sudden incapacitation was felt to be 1% or less.
38With respect to the Appellant’s submission that his doctors believed it was safe for him to drive a truck, I find there is insufficient evidence to reach that conclusion. The Appellant was cleared to return to work, but that does not mean he was medically cleared to return to truck driving. The Appellant continues to work for the same employer as a machine operator despite no longer being able to carry out tasks that require a commercial vehicle licence.
39Accordingly, upon consideration of all of the evidence and the submissions of the parties, I find that the Appellant suffers from a physical condition likely to significantly interfere with his ability to drive a Class A vehicle safely.
ORDER:
40For the reasons set out above, pursuant to subsection 50(2) of the HTA, the Minister’s decision to change the class of the Appellant’s driver’s licence pursuant to s. 32(5)(b)(i) of the HTA is confirmed.
Released: April 27, 2017
LICENCE APPEAL TRIBUNAL
____________________________ Kevin Flynn, M.D., Member