Licence Appeal Tribunal
Safety, Licensing Appeals and Standards Tribunals Ontario
Tribunal d’appel en matière de permis Tribunaux de la sécurité, des appels en matière de permis et des normes 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) – to downgrade a licence
Between:
RB Appellant
and
Minister of Transportation Respondent
DECISION AND ORDER
Panel: Dr. Peter Savage – Member Ted Crljenica – Vice Chair
Appearances: For the Appellant: Sandra Rowbotham, Paralegal For the Respondent: Sonia De Santis, Agent
PLACE AND DATE OF HEARING: TELECONFERENCE, DECEMBER 6, 2017
REASONS FOR DECISION AND ORDER
A. OVERVIEW:
1The appellant appeals from the decision of the Registrar of Motor Vehicles to downgrade his commercial driver’s licence (class A, C) to G. The downgrade was based on a seizure the appellant experienced in April 2016.
2The appellant’s licence was downgraded on the basis that he was at risk of experiencing another seizure. To obtain the return of his commercial licence, the Registrar required confirmation that the appellant has been seizure free for a period of five years. This requirement was based on the Registrar’s determination that the appellant’s seizure was a result of epilepsy.
3The appellant is a 67 year old man whose means of livelihood prior to the downgrade was long-haul truck driving using his own refrigerated equipment.
4In or about 2006 the appellant began experiencing cardiovascular related health issues. The respondent allowed the appellant to maintain his commercial licence provided that his health condition was reassessed annually. However, his cardiovascular health is not an issue before the Tribunal on this appeal. We are dealing only with the impact of the seizure the appellant experienced in April 2016.
5For the reasons that follow, we find that the respondent applied the incorrect section of the Canadian Council of Motor Transport Administrators Medical Standards for Drivers (“CCMTA Standards”) in its decision to downgrade the appellant’s licence and we set aside the downgrade of the appellant’s driver’s licence.
B. ISSUES:
6The issue in this appeal is whether the appellant suffers from a physical condition, namely epilepsy, that is likely to significantly interfere with his ability to drive safely.
7In order to answer decide that issue, we will address the following questions:
a. Does the appellant suffer from epilepsy?
b. What is the degree of risk that the appellant will suffer another seizure?
c. What section of the CCMTA applies to the appellant’s condition?
C. the LAW:
8Section 203 of the Highway Traffic Act (“HTA”) requires all physicians in the Province of Ontario to report to the Registrar the name, address and clinical condition of any person sixteen years of age or over who is suffering from a condition that may make it dangerous for the person to operate a motor vehicle safely.
9The Registrar has the power under s. 32(5)(b) of the HTA to change the class of a licence in accordance with requirements prescribed in the regulations.
10Subsection 14(1)(a) of O. Reg. 340/94 (the “Regulation”) under the HTA requires that a holder of a driver’s licence must not suffer from any physical condition or disability likely to significantly interfere with his or her ability to safely drive a motor vehicle of the applicable class.
11Section 14(2)(a) of the Regulation allows the Minister of Transportation to consider the CCMTA Standards when determining whether the requirements of s. 14(1) are met. Similarly, the Tribunal may take the CCMTA Standards into consideration. The CCMTA standards are not binding on the Minister of Transportation or on this Tribunal.
12The Registrar has the burden of establishing on a balance of probabilities the grounds to downgrade a driver’s licence.
13Pursuant to section 50(2) of the HTA, the Tribunal may confirm, modify or set aside the decision or order of the Registrar after a hearing.
D. THE EVIDENCE:
14In February 2016 the appellant was driving his tractor-trailer unit on a highway when the driver of a passenger motor vehicle crossed the centre line, causing his vehicle to strike the right front corner of the appellant’s vehicle. The appellant’s vehicle careened out of control and struck a rock. To the best of the appellant’s knowledge he did not strike his head nor did he experience a loss of consciousness. He was taken to a hospital, examined and released.
15In April 2016, after returning home from a long-haul trip, the appellant was in his front yard clearing snow off his tractor. His arm began to ache shortly after which he lost control of his arm. He then lost consciousness.
16While hospitalized, testing was conducted to determine the cause of the seizure. It was disclosed that the appellant has a right side subdural hematoma (“SDH”). Pursuant to section 203 of the HTA the physician who treated him in the hospital submitted a Medical Condition Report dated April 12, 2016. In it the doctor reported that the appellant experienced a seizure and a loss of consciousness. The doctor diagnosed the appellant as having suffered a partial focal seizure and opined that the SDH was temporary. He started the appellant on an anti-seizure medication.
17By letter dated April 14, 2016, the respondent notified the appellant that his driver’s licence was being suspended. To have his licence reinstated when his condition improves, he will be required to have the respondent’s standard Epilepsy and Seizures form completed by the appellant’s treating medical practitioner. In the most recent correspondence from the respondent the appellant was advised that he may apply to have his commercial driver’s licence reinstated after he has been seizure free for five years. The letters from the respondent do not provide an explanation for the five year requirement.
18The appellant provided the respondent with multiple medical reports and forms. These documents are essentially consistent with the April 12, 2016 report (see paragraph 16, above) in that they confirm that the appellant experienced a single seizure as a result of the SDH that was attributed to the February 2016 motor vehicle accident:
a. In a consultation report to the appellant’s family physician dated April 10, 2017, the neurologist who examined the appellant reported a single seizure caused by a SDH arising from the motor vehicle accident. He also advised that the appellant is stable on his anti-seizure medication and from a neurological perspective the appellant can resume his driving privileges while on the medication;
b. A report from the appellant’s family physician dated April 28, 2017 in which he reported a single seizure caused by the SDH and that a subsequent MRI showed that the SDH was smaller than as seen in the June 2016 MRI;
c. A separate undated report on the respondent’s Epilepsy and Seizure form, completed by the appellant’s family physician, likely created at the same time as the report referred to in paragraph b, above, the doctor reported a single complex partial seizure as well as reporting that an EEG conducted on the appellant did not show any sign of epileptiform activity. The appellant continues on his anti-seizure medication and is compliant. Importantly, the doctor reported that the provoking factor has been “stabilized, resolved or corrected”. In this report he repeated that on the most recent MRI the SDH is smaller than it was in June 2016;
d. A report dated June 27, 2016 from the same neurologist who authored the report referred to in paragraph a, above. He confirmed that the appellant suffered a single seizure.
e. A letter from the family physician dated July 11, 2017 in which he confirmed that the appellant suffered a single seizure in April 2016, that he has been compliant with his medication, that further seizures are unlikely and that he and the treating neurologist agree that the appellant’s commercial driving licence could be reinstated.
19The appellant testified that he has been taking his medication as prescribed and attending for any testing requested by his family physician. Prior to the seizure the appellant would consume one alcoholic drink per day on average. Since receiving advice from the neurologist in April 2017 he has not consumed any alcohol. He would like to return to driving but since his licence was downgraded he has had time to think about his work-life balance and intends to work less than he was before the seizure.
E. THE PARTIES’ POSITIONS
20The respondent’s position is that the appellant’s condition is governed by section 17.6.12 of the CCMTA Standards. That section is entitled Epilepsy – Commercial Drivers. The standard under this section provides that commercial drivers are eligible for a licence if they have not had a seizure, with or without medication, for five years. As the appellant’s seizure was in April 2016 the respondent’s position is that he is not eligible to have his commercial licence reinstated until April 2021.
21The appellant’s position is that his medical condition is governed by section 17.6.1 of the CCMTA Standards, entitled “Provoked seizure caused by a structural brain abnormality”. Under this section all drivers are eligible for a licence if it has been six months since the factor that provoked the seizure has stabilized, resolved or was corrected and the person has not had a seizure in that time.
F. DISCUSSION AND ANALYSIS
22It is our determination that the respondent has applied the incorrect section of the CCMTA Standards in its analysis of the appellant’s condition. The introduction to section 17 of the CCMTA Standards includes this explanation:
Seizures
Provoked seizures are not epilepsy, and they resolve after the provoking factor has resolved or stabilized.
Epilepsy
Epilepsy refers to a condition characterized by recurrent (at least two) seizures, which do not have a transient provoking cause.
23Section 17.6 of the CCMTA Standards is entitled Guideline for assessment. In that section it is stated:
The general approach of the guideline for drivers with epilepsy or who experience seizures is that seizures must be controlled as a prerequisite for driving.
Most of the guidelines include a requirement for a seizure-free period. The purpose of this requirement for a provoked seizure is to establish the likelihood that the provoking factor has been successfully treated or stabilized.
24Section 17.6.1 of the CCMTA Standards provides that if more than one seizure occurs the epilepsy standard is applied.
25It is clear from the medical evidence, and we accept, that the appellant suffered only one seizure, that being in April 2016. It is also clear, and we accept, that the seizure was caused by a subdural hematoma, the likely cause of which was the motor vehicle accident of February 2016. In medical terms and the terminology of the CCMTA Standards, this was a provoked seizure.
26The section on which the respondent relies, 17.6.12, applies to commercial drivers who have been diagnosed with epilepsy. The appellant has neither been diagnosed with epilepsy, nor has he suffered more than one seizure that would bring him under the epilepsy provisions of the CCMTA Standards. The respondent provided no explanation for having applied section 17.6.12 to the appellant’s condition. We agree with the appellant that he should not have been assessed under this section.
27We also agree with the appellant that he should have been assessed under section 17.6.1 – Provoked seizure caused by a structural brain abnormality. Under this section a structural brain abnormality includes a SDH.
28The appellant meets all of the standards under that section for the reinstatement of his commercial licence:
a. He has undergone a neurological assessment to determine the cause of the seizure. The cause has been determined to have been a SDH secondary to a motor vehicle accident;
b. He has not been diagnosed with epilepsy;
c. It has been six months since the provoking factor stabilized, resolved, or was corrected, with or without treatment, and he has not had a seizure in the six month period;
d. In the opinion of the treating neurologist further seizures are unlikely.
29On the latter point, although the neurologist did not specifically state that further seizures are unlikely, he did state in his report to the appellant’s family physician that the appellant’s condition appears to be stable and that he advised the appellant to reduce his intake of alcohol to avoid any further risk of seizures. The appellant testified that he has not consumed alcohol since April 2017. Moreover, the neurologist discharged the appellant to the care of the family physician. The family physician interpreted the neurologist’s report to indicate that further seizures are unlikely (per his letter of July 11, 2017). We agree with this interpretation of the neurologist’s report.
30The SDH has decreased in size between the time of the first MRI in June 2016 and the most recent MRI in April 2017. As it has been determined that the seizure was caused by the SDH, this reduction in size is an indication that the SDH is less likely to cause another seizure.
31We also accept the opinion of both the neurologist and the family physician that it is safe for the appellant to resume commercial driving.
32As for the appellant himself, his evidence was clear, compelling, balanced and presented in a straightforward manner. He is very cognizant of his medical condition and we found him to be very dedicated to being proactive so as to avoid another seizure. He has been compliant with taking his anti-seizure medication and has completely eliminated the consumption of alcohol in response to the advice of the neurosurgeon that he reduce his alcohol intake. If his commercial licence is reinstated, he intends to work less which should also benefit his health.
G. CONCLUSION
33We are satisfied on the evidence that the appellant does not suffer from a condition or disability likely to significantly interfere with his or her ability to drive a motor vehicle of the A, C class safely as:
a. The appellant does not suffer from epilepsy;
b. The degree of risk that the appellant will suffer another seizure is low;
c. Section 17.6.1 of the CCMTA Standards applies to the appellant’s condition, not section 17.6.12 as submitted by the respondent.
H. ORDER
34The Registrar’s decision to downgrade the appellant’s licence from a class A, C, to class G is set aside.
LICENCE APPEAL TRIBUNAL
_________________________ Dr. Peter Savage - Member
______________________ Ted Crljenica – Vice-Chair
Released: January 5, 2018