LICENCE APPEAL TRIBUNAL

Safety, Licensing Appeals and Standards

Tribunals Ontario

Date: 2017-05-18

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:

G.H.

Appellant

and

Minister of Transportation

Respondent

DECISION AND ORDER

Panel: Katherine Whitehead, M.D., Member

Appearances:

For the Appellant: Self-represented

For the Respondent: Kyle Biel, Agent

Place and date of hearing:

Toronto, Ontario

April 20, 2017

REASONS FOR DECISION AND ORDER:

A. Overview

1G.H. (the “Appellant”) appeals the decision of the Minister of Transportation (the “Minister” or “Respondent”) to downgrade his commercial licence to a Class G licence as a result of his heart condition.

2The Appellant is a 73-year-old man who drove a school bus prior to the downgrade of his licence. As the Appellant has diabetes and a heart condition, the Ministry of Transportation (the “Ministry”) requires him to periodically provide the Ministry with medical assessments of his diabetes and cardiovascular condition in order to maintain his commercial licence. His diabetes is not at issue in this appeal.

3On June 10, 2016, the Ministry advised the Appellant that his commercial licence would be changed to a Class G licence due to his heart condition. The main issue is that the Appellant’s left ventricular ejection fraction (“LVEF”) was less than 35%. The LVEF is the fraction of blood being pumped out of the left ventricle with each beat and is used to assess the severity of heart failure.

4The Respondent relies on the Canadian Council of Motor Transport Administrators (“CCMTA”) Medical Standards for Drivers (“CCMTA Standards”), which recommend that commercial drivers have an LVEF of more than 35%. The Appellant argues that the CCMTA Standards should not apply to his specific medical condition and requests that the Registrar’s decision be set aside.

5For the reasons that follow, I find that the Appellant suffers from a physical condition that is likely to significantly interfere with his ability to drive a commercial vehicle safely. Accordingly, I confirm the Registrar’s decision to downgrade the Appellant’s driver’s licence.

PRELIMINARY ISSUES

6The Appellant filed a motion to exclude the “Respondent’s irrelevant evidence”. In the hearing, he clarified that he was requesting to exclude the items in the Respondent’s file that related to a medical review of conditions that were not specifically related to the current appeal. He said that the evidence was irrelevant, voluminous, and possibly prejudicial.

7Mr. Biel clarified that the Respondent is required to disclose all of the information in the Ministry’s file. He said that his intent was to focus mainly on the documents relating directly to the current appeal and not to go through the prior documents in the file in any detail.

8I explained the role of the tribunal member and said that I am able to assess all of the information presented for relevance, and rely on, or disregard evidence as is appropriate to the current appeal.

9The Appellant was satisfied and agreed that the hearing could proceed with all of the Respondent’s submissions entered as evidence.

B. ISSUES:

10The issue in this appeal is whether the Appellant suffers from a medical condition or disability likely to significantly interfere with his ability to drive a motor vehicle of the applicable class safely. It is not in dispute that the Appellant suffers from heart failure. The question to be determined is whether the Appellant’s heart failure is likely to significantly interfere with his ability to drive a commercial vehicle safely.

C. EVIDENCE:

Documentary evidence

11In 2015, the Appellant sent the Ministry a Commercial Driver Cardiovascular Assessment Form completed by his Cardiologist at the time, Dr. B. This Report indicated that the Appellant had dilated or ischemic cardiomyopathy, and that his LVEF was between 35-50%. Based on this report, the Respondent determined on October 15, 2015 that the Appellant was eligible at that time for a commercial licence.

12On May 6, 2016, the Appellant had a Radoinuclitide Ventriculogram (i.e., a scan to determine his heart function, also commonly called a MUGA scan). This showed an LVEF of 29%. The study also noted, “Septal findings may be due to LBBB or infarction and inferior infarction and apical infarction are also suspected.” LBBB refers to a problem with the heart’s conducting system. An “infarction” means a heart attack. Accordingly, the radiologist was noting that some of the Appellant’s heart changes could be due to a problem with the heart’s conducting system (“LBBB”) or heart attack (“infarction”) and the radiologist suspected a previous heart attack of the underside and tip part of the heart.

13On June 10, 2016, the Respondent wrote a letter to the Appellant stating that his commercial licence would be changed to a Class G licence due to his heart condition. The letter stated that the Appellant would need to provide the following if he wished to be considered for a commercial licence.

1. Confirmation of a LVEF of 35% or greater.

2. Confirmation that he was assessed as NYHA class 1 or 2.

3. The Commercial Driver Cardiovascular Assessment and the Diabetes Assessment Forms.

14The New York Heart Association (“NYHA”) functional classification system is a measure for assessing the degree of heart failure, in which class II refers to mild symptoms and slight limitation during ordinary activity.

15On October 21, 2016, Dr. R., a Cardiologist who is currently treating the Appellant, wrote a letter to Dr. H., the Appellant’s family physician. The letter states that the Appellant’s LVEF was 29%. It states that the Appellant underwent successful implantation of a CRT pacemaker on September 20, 2016. Dr. R. notes that the Appellant thinks that his “clinical status has improved slightly” since the implantation of the pacemaker. He states that the Appellant is able to walk for approximately one block and that his status is compatible with a NYHA class II. Dr. R. also noted, “The patient would like to renew his commercial driving licence. For this purpose his [LVEF] should be more than 35%.”

16The Appellant had a repeat MUGA on December 5, 2016. This showed a LVEF of 28%. The study also noted “Septal/apical akinesis, suggesting infarction or possibly in part due to LBBB or pacemaker.” This means that part of his heart was not functional and the radiologist was questioning whether he had suffered a heart attack or if this could be attributed to his LBBB or pacemaker. This report was similar to the previous report.

17On December 16, 2016, Dr. R. wrote a letter to Dr. H. He reported the results of the scan above and stated, “His MUGA is 28%. He is still not eligible for commercial driving”.

18The Appellant had an echocardiogram performed on February 28, 2017. It showed the LVEF to be in the range of 21-25% based on the “Simpson’s method”. On that same day, Dr. R. wrote a letter to Dr. H. summarizing a follow up clinic visit. The letter states that the Appellant reports that on a six-minute walk, he was able to walk about 500 metres. The letter states that the Appellant has impaired LV (Left Ventricular) function and should continue with the present regimen. The plan was for the Appellant to follow up in six months. There was no specific recommendation for driving.

Appellant’s testimony

19The Appellant gave oral testimony of his medical condition and personal circumstances. The Appellant also made legal submissions on why the CCMTA Standards should not apply to him, which are set out below.

20The Appellant testified that he believes that the original damage to his heart was caused by a viral infection, as his heart condition was discovered through a Holter Monitor test, which was ordered following a chest X-ray conducted after the Appellant presented with flu-like symptoms.

21He testified that he has had a heart condition for many years with no incident, which shows that he is stable. He is able to perform a “six-minute walk” test and can carry heavy boxes. He also stated that his LVEF has been stable.

22He also stated that he wanted to get his CRT pacemaker implanted before he actually got the pacemaker. However, he stated that he was advised that he didn’t qualify for a CRT pacemaker unless his LVEF was less than 35%. It was not until his LVEF fell to below 35% that he was able to get the CRT pacemaker. He feels that he is not getting the maximum benefit out of his pacemaker.

D. LAW:

23The 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…

24The 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.

25One 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.”

26In 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.

27Section 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.

28Section 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

29The Respondent submits that the decision to downgrade the Appellant’s licence should be confirmed, as his licence was downgraded based on a medical report which indicated that he no longer met the CCMTA Standards for a commercial licence, as his LVEF was 29%.

30The Respondent relies on section 3.6.42 of the CCMTA Standards, which states that individuals with congestive heart failure are eligible for a commercial licence if:

• they are assessed as NYHA Class I or II

• they have an LVEF of > 35%

• they are not receiving intermittent inotropes.

31The Respondent submits that the Ministry applies the CCMTA Standards consistently to all drivers. However, each driver is reviewed on an individual basis, and decisions are made in the interest of road safety for all road users.

32The Respondent told the Tribunal that, although each case is assessed individually, on the issue of heart failure, the Ministry generally defers to the CCMTA Standards, as those standards are based on a regular review of the evidence by medical experts and are generally accepted as the optimal standard. The Respondent submits that an LVEF of less than 35% increases the risk of sudden incapacitation or death to an unacceptable level for commercial drivers. If an event were to occur while driving a school bus, the result could be catastrophic.

33The Respondent also notes that the Appellant’s physician wrote that the Appellant is “still not eligible for a commercial licence.”

Appellant’s submissions

34The Appellant does not dispute that his LVEF is less than 35% and that he does not meet the requirements set out in the CCMTA Standards. However, he submits that the standards should not apply to him for a number of reasons.

35First, he submits that the CCMTA Standards are outdated, as they are based on the Canadian Cardiovascular Society (CCS) Consensus Conference Assessment of the Cardiac Patient for Fitness to Drive and Fly (the “CCS guidelines), which he states have not been updated since 2003. He submits that the CCS guidelines were based on outdated data from patients who did not receive the same treatment for heart failure as is now standard. He specifically referenced the fact that very few people in the original studies took a class of medication called beta blockers, which the Appellant takes and is now standard treatment. The Appellant submitted a summary of his own research, which referenced the CCS guidelines, the CCMTA standards, and two other studies (one from the New England Journal of Medicine from 1996 and another from the Canadian Journal of Cardiology in 2007). In his opinion, the research supports the idea that he is in a specific sub-group of people with heart failure who should be judged apart from the CCMTA guidelines.

36Second, he submits that the CCMTA Standards should not be applied to everybody without consideration of their individual circumstances. He relies on the Supreme Court of Canada case in British Columbia (Superintendent of Motor Vehicles) v. British Columbia (Council of Human Rights), 1999 CanLII 646 (SCC), [1999] 3 S.C.R. 868 (“Grismer”) to argue that the standards should be adapted to accommodate for his specific disability. He states that the CCMTA Standards should not apply to him in consideration of the following individual circumstances:

1. The Appellant’s report that his heart condition stems from a prior viral infection and thus does not qualify as typical heart failure;

2. The Appellant’s opinion that his LVEF has been “stable” and that it should not be the actual number that is focused on but rather how stable that number is over time;

3. The Appellant’s own finding that he can carry heavy boxes do a “six minute walk” without symptoms.

37The Appellant proposes that a driver with an LVEF of less than 35% should be eligible for a commercial licence if the individual can walk 426 metres on a six-minute walk test, there is no evidence of any incapacitating cardiac event, and the LVEF is stable.

38Third, the Appellant submits that the standards result in age discrimination, as most drivers who suffer from cardiomyopathy are in the older age groups.

F. ANALYSIS:

39As set out below, I find that the Appellant’s heart failure is likely to significantly interfere with his ability to drive a commercial vehicle safely.

40The Appellant readily admits that he has heart failure. This is not in dispute. The medical evidence is also clear that his LVEF was 28% as of December 5, 2016. This is a decline in heart function from 2015 when it was reported to be between 35-50%. There is also evidence from the cardiac function tests and the letters from Dr. R. that the Appellant has suffered a “cardiac infarction,” commonly known as a heart attack, has had a pacemaker inserted, and takes medications to treat his heart disease.

41Heart failure may interfere with the ability to drive safely. Congestive heart failure usually is a chronic, progressive condition in which the heart is unable to pump the quantity of blood required to meet the body's needs. The severity of congestive heart failure may be assessed by measuring the LVEF, which is the fraction of blood being pumped out of the left ventricle with each beat. People with heart failure present a risk to driving due to the risk of mortality and sudden cardiac events while driving. Death or sudden onset alterations in consciousness or physical abilities while driving can have obvious and disastrous consequences for drivers and other road users. The evidence reviewed in the CCS guidelines shows that there is an increased mortality in people with a lower LVEF.

42The risk to road safety is greater for people with commercial licences than for those who hold a Class G licence. People who hold commercial licences often spend more time driving because they do so for their livelihood. This increases the probability that, if a sudden cardiac event occurs, it will occur while the person is driving. The potential for harm is also greater for commercial drivers, as loss of control of a commercial vehicle can result in a more devastating accident than a Class G automobile.

43In assessing whether the Appellant’s condition is likely to significantly interfere with his ability to drive safely, I have considered the CCMTA Medical Standards for Drivers (the “CCMTA Standards”). These standards provide a helpful means to assess the risk to road safety, as they represent a current medical consensus based on regular review of the medical evidence by experts. However, I note that they are not binding on the Tribunal. The question of whether a medical condition is likely to significantly interfere with the ability to drive safely must be assessed in light of the individual circumstances of each driver.

44Section 3.6.42 of the CCMTA Standards states that individuals with congestive heart failure are eligible for a commercial licence if:

• they are assessed as NYHA Class I or II

• they have an LVEF of > 35%

• they are not receiving intermittent inotropes.

45There is evidence that the Appellant is assessed as NYHA Class II and there is no evidence that he is receiving intermittent inotropes. However, his LVEF of 28% falls significantly below the standard for commercial drivers of 35%.

46I have also considered the statement of the Appellant’s Cardiologist, Dr. R., that the Appellant is not eligible for a commercial licence. The Appellant’s Cardiologist stated explicitly on two occasions that the Appellant needed an LVEF greater than 35% to qualify for commercial driving. I find it significant that the Cardiologist saw fit to apply these guidelines in the specific case of the Appellant.

47Dr. R., being both a specialist in cardiology and a medical professional with an in depth knowledge of the Appellant’s personal medical condition, is likely the best individual professional to assess the Appellant’s cardiac risk of driving. Dr. R.’s letters demonstrate an in-depth knowledge of the Appellant’s objective measures of cardiac health (e.g., the MUGA scans, ECGs, vital signs, past cardiac procedures and events), his subjective abilities (i.e., the Appellant told the Tribunal that he had discussed his physical abilities with Dr. R. and Dr. R.’s letters reflect this), and his current therapy (a medication list and therapeutic plan appear in every letter).

48I also find it significant that the Appellant’s MUGA is indicative of a previous heart attack and that his LVEF has decreased from between 35-50% in 2015 to 28% in 2016. A previous heart attack puts him at a higher risk of a future sudden cardiac event. The decrease in his LVEF indicates that his condition may not be stable, which also increases the risk of a future event.

49The Appellant does not believe the CCMTA Standards are relevant to his situation. He sees himself as not being the typical type of person for whom the guideline is intended. He has made a number of specific submissions in this regard, which I address below.

1. The Appellant’s opinion that the guidelines are not based on current medical therapies or evidence.

50The Appellant submits that the CCS guidelines, on which the CCMTA Standards are based, are flawed because they were developed in 2003, prior to the widespread use of beta blocker type medication to treat congestive heart failure. The Appellant emphasized many times in the hearing that he is on beta blockers, and therefore the CCMTA Standards should not apply to him.

51The Appellant noted that he had read two studies in reputable medical journals that, in his opinion, supported the idea that the CCMTA Standards are not applicable to his personal condition. I have not conducted my own independent analysis of these articles, as I am not in a position to perform an exhaustive review of the medical literature on heart failure. I am not convinced that the Appellant’s review of the medical literature is representative of the body of research on the risk presented by drivers with heart failure, as the Appellant appears to have selected studies which he believes support his theory that the CCMTA standards should not apply to him.

52I prefer the estimate of the risk provided by the CCS, which I find to be comprehensive, unbiased, and based on the expertise of medical practitioners and specialists across the country.

53I note that both of the medical journals the Appellant cites are widely available in the medical community and are almost certainly accessible to members of the CCS committee. The CCS does review the guidelines when new medical information comes to light. For example in 2012, the CCS published an update to the 2003 guidelines when a new therapy became commonly available for people with heart disease. This update did not change the recommendations for commercial drivers with heart failure.

54I further note that the CCS guidelines specifically address the issue that patients on beta blockers may be underrepresented in the studies on which the guidelines are based. The Appellant points to this as a flaw in the guidelines. I see this point differently. I find it likely that the authors of the CCS guidelines were aware of this issue, considered it, and despite this, came forward with their recommendations. They did not see fit to revise the guidelines for the subgroup of people on beta blockers.

55Accordingly, I accept that individuals with an LVEF of less than 35% present a higher risk for sudden or terminal events while driving. The consensus of the medical community is that an LVEF of less than 35% generally represents an unacceptable level of risk for commercial drivers. Further, the Regulation is clear that I may consider the CCMTA Standards.

56That is not to say that someone with an LVEF of less than 35% will never be eligible for a commercial licence. However, it is clear based on the Appellant’s LVEF of 28%, which has decreased or at least fluctuated in recent years, his prior heart attack, and the lack of support from his physician for reinstatement of his commercial licence that his heart condition is likely to significantly interfere with his ability to drive safely.

2. The Appellant’s opinion that the guidelines should not apply to him personally.

57The Appellant submits that the CCMTA Standards should not apply to him because of his personal circumstances.

58First, he states that his heart condition stems from a prior viral infection and thus does not qualify as typical heart failure. However, I see no evidence to support differentiating between a heart condition that stems from a prior viral infection as compared to any other cause.

59Second, he believes that his LVEF has been “stable” and that the focus should not be on the actual number but rather how stable that number is over time. However, the Appellant’s heart failure is not stable. The medical evidence supports the finding that his heart condition is progressive or at least fluctuant. This is supported by the fact that his LVEF has been generally trending down in the last few years. This would seem to put him in a higher risk category.

60Third, he states that he can carry heavy boxes and do a “six minute walk” without symptoms. The Appellant admits that he is physically limited by his condition, albeit less than he would expect. Assuming that this is the case, I am not convinced that his ability to carry out those tasks decreases the risk of a sudden cardiac event while driving.

61Accordingly, I do not find that the Appellant’s personal circumstances put him in a lower risk group. As I note above, his MUGA scans show evidence of a likely prior heart attack, which puts him at a higher risk for a repeat event. Accordingly, given the medical evidence, I find that the risk posed by the Appellant’s condition is at least comparable to other commercial drivers with a LVEF of less than 35%.

3. The Appellant’s opinion that the CCMTA guidelines are discriminatory based on age.

62The CCMTA Standards do not specify age as a determinant in the fitness to drive of an individual with heart disease. The guidelines are based on an objective assessment of the driving risk associated with heart disease. The fact that older people are more likely to have more severe heart disease does not make the guidelines discriminatory. The guidelines necessarily impose restrictions on individuals with medical conditions or disabilities but indicate that those restrictions are to be imposed only to the extent necessary to prevent unacceptable risk to road safety.

63Individuals with a disability must be accommodated to the extent possible without creating an unreasonable risk to road safety. An individual should not be denied a licence if he or she can compensate for the medical condition. However, the risk to driving in the Appellant’s case is that of a sudden cardiac event. It is not possible to compensate for that given its sudden, unexpected, and possibly catastrophic nature.

Conclusion

64I appreciate that the loss of a commercial driver’s licence can have significant consequences for the individual affected. While I understand the Appellant’s concerns about the practical challenges that result from the downgrade of his licence, I must apply the provisions of the HTA and regulations, keeping in mind the objective of ensuring public road safety.

65The evidence is that there is a significant risk that the Appellant would suffer a sudden cardiac event while driving a commercial vehicle. As stated above, the risk of having an event while driving is higher for commercial drivers and the severity of potential harm is greater.

66The Appellant has an LVEF of 28%, which is significantly below the standard of 35% for commercial drivers set out in the CCMTA Standards and the CCS guidelines. His LVEF has fluctuated in recent years and generally declined. He also appears to have had a prior heart attack. Further, his cardiologist does not support the reinstatement of his commercial licence.

67Accordingly, after considering the evidence and submissions of the parties, I find on a balance of probabilities that the Appellant suffers from a physical condition that is likely to significantly interfere with his ability to drive a commercial motor vehicle safely.

G. ORDER:

68Pursuant to subsection 50(2) of the HTA, I confirm the Minister’s decision to downgrade the Appellant’s licence from a commercial licence to a Class G licence.