LICENCE APPEAL TRIBUNAL

Safety, Licensing Appeals and Standards Tribunals Ontario

Date: 2017-06-22

Appeal under subsection 50(1) of the Highway Traffic Act, R.S.O. 1990, c. H. 8, from a decision of the Registrar of Motor Vehicles to suspend a driver’s licence under subsection 47(1) of the Act

Between:

N.R. Appellant

and

Registrar of Motor Vehicles Respondent

DECISION AND ORDER

Panel: Kevin Flynn, M.D., Member

Appearances:

For the Appellant: Self-represented

For the Respondent: Sanjay Kapur, Agent

Place and date of hearing:

By teleconference: May 29, 2017

REASONS FOR DECISION AND ORDER:

A. Overview

1The appellant appeals from the decision of the Registrar of Motor Vehicles (the “registrar” or “respondent”) to suspend his licence under s. 47(1) of the Highway Traffic Act, R.S.O. 1990, c. H. 8 (the “HTA”). The registrar decided to suspend the appellant’s driver’s licence after receiving a report from a neurologist that the appellant had suffered from two seizures and had declined to take medication.

2The respondent submits that the appellant’s licence should remain under suspension because he suffers from a medical condition likely to significantly interfere with his ability to drive safely, and that a six-month seizure-free period is necessary before the appellant’s licence may be reinstated. The appellant submits that his seizures have no effect on his ability to drive safely, as they occurred because he fell asleep on the couch without the equipment that he needs to treat his sleep apnea.

3For the reasons that follow, I am satisfied that the appellant suffers from a medical condition that is likely to significantly interfere with his ability to drive safely. Accordingly, I confirm the decision of the registrar to suspend the appellant’s driver’s licence.

B. ISSUES:

4The issue in this appeal is whether the appellant suffers from a medical condition likely to significantly interfere with his ability to drive safely. The fact that the appellant suffered two seizures is not in dispute. The only question is whether they are likely to significantly interfere with his ability to drive safely.

C. FACTS and EVIDENCE:

5On April 13, 2017, a neurologist, Dr. J., sent a Medical Condition Report to the registrar in accordance with s. 203 of the HTA. That section requires all physicians in Ontario to inform the registrar of the name, address and clinical condition of any patient sixteen years of age or older who is suffering from a medical condition that may make it dangerous for the person to operate a motor vehicle. The reported condition was “Seizure(s)-Cerebral”. The report indicated that two seizures had occurred – the first on February 28, 2017 and the second on April 7, 2017 – and that the appellant had declined medication.

6The registrar notified the appellant by letter dated April 20, 2017 that his licence was being suspended under s. 47(1) of the HTA based on the reported condition of “Seizure”.

7The appellant has obstructive sleep apnea. Sleep apnea reduces or prevents breathing during sleep, which interrupts sleep patterns and results in excessive daytime sleepiness. Both seizures occurred when the appellant fell asleep on the couch without his CPAP device, which the appellant usually uses while he is sleeping to treat his sleep apnea.

8A description of the seizures is found in a report from the appellant’s neurologist, Dr. J., dated April 13, 2017:

On February 28^th after dinner, [the appellant] laid down for a nap. His wife then observed him to have a tonic seizure. His face turned red and then blue, and he stopped breathing. She was unable to palpate a pulse so hit his chest 3 times and then started CPR. He bit his tongue but was not incontinent. EMS arrived and he had decreased level of consciousness for about an hour and a half. He was evaluated in the emergency department [and] discharged home.

On April 7 he fell asleep on the couch after getting up in the morning. His wife heard a gasping sound and saw him have another tonic seizure, though not quite as dramatic as the first time. His teeth clenched and he bit his tongue, again. He regained consciousness after about 10 or 15 minutes and was incontinent of urine. [The appellant] recalls waking up at home on the floor with EMS and firemen at his side. He was again evaluated in the emergency department and given a prescription for valproic acid, but he did not start it due to the concern about the lengthy list of side effects.

9A number of potential causes of the appellant’s seizures have been put forward in the medical evidence. With respect to the first seizure on February 28, 2017, the emergency room report stated that the seizure “sounds generalized and at this point appears unprovoked” and that possible explanations for the seizure include a prior traumatic brain injury, alcohol use, and metastasis, which is a spreading of cancer cells, as the appellant has a history of prostate cancer. Possible causes for his second seizure were noted on an emergency room referral form as alcohol intake and the appellant’s previous traumatic brain injury. Dr. J.’s report of April 13, 2017 indicated that the appellant typically has two alcoholic drinks per day.

10There is no indication in the medical evidence that the appellant has epilepsy. The appellant has had an MRI, an EEG and a sleep-deprived EEG performed, none of which showed any signs of epilepsy. However, a footnote attached to both EEGs stated that:

If the clinical suspicion for seizures is high, a repeat prolonged recording following sleep deprivation may increase the likelihood of detecting interictal [between seizures] epileptiform discharges.

11After the first seizure, the appellant was instructed by the emergency room physician not to drive. After the second seizure, the appellant was asked by Dr. J. not to drive.

12On April 13, 2017, Dr. J. recommended that the appellant start taking anti-seizure medication. She also referred the appellant for a sleep study with a sleep neurologist to see if the appellant is on the correct setting of his CPAP machine, as she notes that the appellant had not had a sleep study done in many years. With respect to the cause of the seizures, her report states:

[The appellant] is frustrated that he does not know the cause of the seizures given that his MRI and EEG were normal. I explained that we do not always find a clear etiology. However, given that he has now had two seizures, his risk of recurrence is significantly high and therefore I would suggest starting medication. However, he declined as he does not wish to take any medications.

13On April 27, 2017, the appellant’s family physician, Dr. S., filled out the Epilepsy and Seizures Form which the registrar had enclosed with its Notice of Suspension. The form indicated the following:

• the appellant’s seizures were nocturnal;
• an EEG was performed and did not show signs of epileptiform activity;
• the results of an MRI were normal;
• the cause of the seizure was “idiopathic/unknown”;
• anti-seizure medication had been prescribed;
• seizures were prevented by the current medication regimen;
• the patient was adherent to the recommended treatment regimen;
• the provoking factor has been stabilized, resolved or corrected; and
• the appellant has sleep apnea and the seizure occurred when he was sleeping without his sleep apnea apparatus.

14On May 1, 2017, Dr. J. sent a letter to the registrar which stated that the appellant has started taking valproic acid and has not had any seizure recurrence.

15On May 23, 2017, Dr. S. wrote a letter indicating that he had made a change to the Epilepsy and Seizures Form that he had filled out on April 27, 2017. He changed the cause of the seizure from “Idiopathic/Unknown” to “Provoked seizure with no Structural Brain Abnormality (e.g. due to a toxic illness, trauma, or medication induced)”. Dr. S. also indicated in his letter that he recommended that the appellant be weaned off of his anti-seizure medication because there is no evidence, based on the tests conducted, that the appellant suffers from epilepsy. Dr. S. states that he does “not believe that [the appellant] is a risk to road safety as his sleep apnea is under control with the use of his CPAP apparatus.”

16The appellant testified that his two seizures were caused by not being on the CPAP machine while he was sleeping on the couch. He stated that he does not have epilepsy and that the medication was causing a lot of side effects, which is why Dr. S. recommended weaning him off of the medication. He also testified that he had a sleep study completed the night before the hearing and that he had a follow-up neurology appointment on June 27, 2017. However, he indicated that he did not wish to adjourn the hearing in order to await the results of the sleep study.

17The appellant testified that before his first seizure, he had been working long hours as a geologist and was under a lot of stress, which contributed to him falling asleep on the couch rather than with his CPAP machine. He says that although he has in the past, had a couple of drinks per day, he has been pretty much alcohol-free since February, which means that his second seizure had nothing to do with alcohol.

18The appellant testified that Dr. J. told him that he was epileptic and prescribed medication for epilepsy, even though all of the tests showed that he did not have epilepsy.

D. LAW:

19The registrar has the power under s. 47(1) of the HTA to suspend or cancel a driver’s licence for any of the grounds listed in paragraphs (d), (e), (f) or (g) of that section. Paragraph (d), (e) and (f) are not applicable to this appeal as they relate to misconduct, convictions and commercial motor vehicles respectively. Paragraph (g) states that a licence may be suspended for “any other sufficient reason not referred to in clause (d), (e) or (f).”

20One sufficient reason to suspend a driver’s licence under s. 47(1)(g) of the HTA is that the driver suffers from a medical condition or addiction likely to significantly interfere with his or her ability to drive safely. Subsection 14(1) of O. Reg. 340/94 (the “Regulation”) under the HTA 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;

21Section 14(2)(a) of the Regulation allows the Minister of Transportation 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.

22Under s. 14(2)(b) of the Regulation, the Minister may also require a driver to provide satisfactory evidence that he or she is able to drive safely. The Tribunal may consider whether a driver has complied with such a request.

23The registrar has the burden to establish the ground for suspending the licence on a balance of probabilities. Following a hearing, the Tribunal may, under s. 50(2) of the HTA, confirm, modify or set aside the decision or order of the registrar.

E. Submissions

Respondent’s submissions

24The respondent submits that the appellant suffers from a condition likely to significantly interfere with his ability to drive safely, and that his licence should remain under suspension until a six-month seizure-free period has elapsed and the appellant can demonstrate insight into his conditions. The respondent submits that the Epilepsy and Seizures Form does not confirm that sleep apnea is the cause of the seizures and that they are fully prevented.

25The respondent acknowledges that there is no evidence of epilepsy. Nevertheless, the respondent submits that the CCMTA standard for drivers with epilepsy should be considered. This standard imposes a six-month seizure-free period. The respondent submits that because two seizures have occurred and the cause is not fully identified, a six-month seizure-free period would be prudent. The respondent relies on the Tribunal’s decision in 10717 v. Registrar of Motor Vehicles, in which the respondent argues that the Tribunal applied six-month waiting period even though epilepsy was not present.

Appellant’s submissions

26The appellant submits that 10717 v. Registrar of Motor Vehicles is not relevant to his case, as that case was not about sleep apnea. He submits that his seizure occurred because he was not on his sleep apnea machine and has nothing to do with his ability to drive.

F. ANALYSIS:

27For the reasons below, I find that the cause of the appellant’s seizures has not been identified, nor has it been resolved. Accordingly, and in consideration of the fact that the appellant is currently being weaned off of his anti-seizure medication, I find that his seizures are likely to recur and are therefore likely to significantly interfere with his ability to drive safely. Daytime drowsiness that may occur while driving results in a sudden impairment of the ability to drive.

28The medical evidence before me is conflicting. The report of Dr. J. states that the cause of the seizures is unknown and the risk of recurrence is “significantly high” because he has had two seizures. She therefore recommended that the appellant take valproic acid, which is an anti-seizure medication. The Epilepsy and Seizures Form completed by Dr. S. initially said that the cause of the seizure was unknown and that the seizures were being prevented by the current medication regimen. However, he subsequently changed his report to indicate that the seizure was a “provoked seizure with no brain abnormality” and recommended that the appellant be weaned off of his anti-seizure medication. Dr. S. indicated that the appellant is not a risk to road safety because his sleep apnea is under control with the use of his CPAP apparatus. I find the evidence of Dr. J. to be more reliable than that of Dr. S. for two reasons.

29First, Dr. S. indicated in his letter dated May 23, 2017 that the appellant should be weaned off of his anti-seizure medication because there was no evidence that the appellant had epilepsy. However, the appellant’s anti-seizure medication was not prescribed due to a diagnosis of epilepsy but rather based on a medical opinion that it would reduce the risk of seizures. On the Epilepsy and Seizures Form completed by Dr. S., there was an option to indicate that the seizures were caused by epilepsy. Dr. S. did not choose that option when he filled out the form. However, he did indicate that the current medication regimen was preventing further seizures. Therefore, at least when Dr. S. initially filled out the form, I find that he believed that the medication was effective at preventing seizures despite the fact that there was no diagnosis of epilepsy. I therefore find it contradictory that Dr. S. would subsequently recommend that the appellant be weaned off of his medication based on a lack of evidence of epilepsy.

30Second, Dr. S. indicated in his letter that the appellant does not pose a risk to road safety because his sleep apnea is under control with the use of his CPAP machine. However, there does not appear to be any basis for Dr. S.’s conclusion that the appellant’s sleep apnea is under control, considering that the appellant had not yet undergone the sleep study that had been recommended by Dr. J. Dr. J. noted in her report that the appellant had not undergone a sleep study for a number of years and that she will refer him to Dr. M., a sleep neurologist in order to determine if adjustments were necessary to his CPAP machine. In light of specific evidence to the contrary, I cannot accept Dr. S.’s finding that the appellant’s sleep apnea is under control.

31I accept the evidence of Dr. J. that the cause of the appellant’s seizures has not been identified and that they are likely to recur. The risk of recurrence is enhanced by the fact that the appellant is currently being weaned off of his anti-seizure medication.

32I understand that the appellant does not wish to take his anti-seizure medication because of its side effects. It is also clear that he has not been diagnosed with epilepsy. However, I accept the opinion of Dr. J. that anti-seizure medication will reduce the risk of future seizures.

33I have considered the CCMTA Medical Standards for Drivers (the “Standards”). These standards are not binding on me but may be taken into consideration. I find the most relevant section of the Standards to be section 17.6.2, which applies to drivers with provoked seizures with no structural brain abnormality. Provoked seizures are seizures that are caused by toxic illness, adverse drug reaction, trauma, or other cause that is not associated with a structural brain abnormality. Although the cause of the appellant’s seizures has not been identified, the neurological studies performed have found no brain abnormalities. I find it more likely than not that his seizures were provoked by something, whether that is the appellant’s sleep apnea, his prior traumatic brain injury or some other cause.

34Provoked seizures resolve after the provoking factor, or the condition that caused the seizure, has resolved or stabilized. Therefore, if the cause of the seizure has been corrected, the risk to road safety will be alleviated, assuming there is no other reason to expect further seizures.

35According to section 17.6.2 of the Standards, drivers are eligible for a licence if:

• they have undergone a neurological assessment to determine the cause of the seizure, and epilepsy is not diagnosed;
• the provoking factor has stabilized, resolved, or been corrected, with or without treatment, and;
• the treating physician indicates that further seizures are unlikely.

36The first criterion is met, as epilepsy has not been detected in the neurological studies conducted. However, the second two criteria are not met. The provoking factor has not been identified or stabilized. Even if the seizures were caused by sleep apnea, it cannot be said that this factor has been corrected, as the results of his sleep study are pending. Dr. J. has indicated that there is a significant risk of recurrence. I find that this remains the case now that he is being weaned off of his anti-seizure medication.

37I have considered the fact that both of the appellant’s seizures have occurred while he was sleeping on the couch, rather than on the road. However, I find that there is nevertheless a significant risk that the appellant will have an incident on the road, considering that the cause of his seizures has not been identified. I note that I have not considered sleep apnea as an independent basis for the suspension, as the respondent has not relied on it as such.

38I appreciate that the loss of a driver’s licence can have significant consequences for the individual affected. While I understand the licence suspension is affecting the appellant’s ability to earn income, I must apply the provisions of the HTA and regulations, keeping in mind the objective of ensuring public road safety.

39Accordingly, after considering the evidence and submissions of the parties, I find that it is likely that the appellant’s seizures will recur and are likely to significantly interfere with his ability to drive safely.

ORDER:

40For the reasons set out above, pursuant to subsection 50(2) of the HTA, the registrar’s decision to suspend the appellant’s driver’s licence is confirmed.