Date: 2018-08-07

Appeal under section 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:

H.S.

Appellant

and

Minister of Transportation

Respondent

DECISION AND ORDER

Panel: Joseph Smuczek, M.D., Member Joanne E. Foot, Member

Appearances:

For the Appellant: Hans Kalina, Counsel For the Respondent: Stella Velocci, Agent

Place and Date of Hearing: Teleconference June 4, 2018

REASONS FOR DECISION AND ORDER

A. Overview

1The appellant, Mr. H.S., is a 58-year-old man who has been a commercial truck driver all his working life. His Class A (commercial) driver’s licence was suspended following receipt by the Ministry of Transportation (the “Ministry”) of a letter from Dr. M.P. dated December 19, 2017 reporting that the appellant had received an appropriate shock from his implantable cardioverter defibrillator/dual chamber pacemaker device. His Class G (non-commercial) driver’s licence was reinstated in May, 2018. Mr. H.S. now appeals the downgrade of his driver’s licence from a commercial Class A licence to a non‑commercial Class G licence.

2The question for our determination is whether the appellant suffers from a physical condition that is likely to significantly interfere with his ability to drive safely.

3For the reasons set out below, we find that:

a. the appellant suffers from heart disease, specifically, non-ischemic cardiomyopathy; and

b. the Registrar has established that the appellant is affected by heart disease to an extent likely to significantly interfere with his ability to drive safely.

4For these reasons, we confirm the Registrar’s decision to downgrade the appellant’s Class A driver’s licence to a Class G driver’s licence.

B. ISSUES

5The issues to be determined in this appeal are:

a. Whether H.S. suffers from a physical condition, in particular, heart disease; and

b. If H.S. does suffer from heart disease, is that condition likely to significantly interfere with his ability to drive a motor vehicle safely?

Determination of the issue stated in paragraph 5(b) above requires consideration of the significance of the “appropriate shock” received by the appellant from his implantable cardioverter defibrillator/dual chamber pacemaker device (“ICD”) and the associated ventricular tachycardia.

C. LAW

6Pursuant to section 32(5) of the Highway Traffic Act, R.S.O. 1990, c. H.8 (the “HTA”), the Minister of Transportation (the “Minister”) has the authority to change the class of a driver’s licence where prescribed requirements are not met. One of these requirements, as set out in section 14(1) of Ontario Regulation 340/94 (the “Regulation”), is that the person holding the 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”.

7In determining whether a person meets that requirement, the Minister may, under section 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. Such evidence may include any reports of examinations that the Minister has required a person to submit to pursuant to s.15 of the Regulation.

8According to s. 14(2)(a) of the Regulation, if the Minister is determining whether the requirements of s. 14(1) are met, the Minister may take into consideration the Canadian Council of Motor Transport Administrators Medical Standards for Drivers (the “CCMTA Standards”). Similarly, the Tribunal may take the CCMTA Standards into consideration, although these standards are not binding on the Tribunal.

9The Minister of Transportation has the burden of establishing the grounds for changing the class of a licence on a balance of probabilities. Following a hearing, the Tribunal may, under section 50(2) of the HTA, confirm, modify, or set aside the decision or order of the Minister.

D. ANALYSIS

a. Does the appellant suffer from heart disease?

10It is not in dispute the appellant suffers from heart disease, specifically, non-ischemic cardiomyopathy. The appellant acknowledged this in his testimony. Non-ischemic cardiomyopathy is a term used to describe heart disease that is not caused by blocked arteries, of which there are various causes and types. In all cases, there is damage to the heart tissues and the condition makes it more difficult for the heart to fill with blood and to pump blood to the rest of the body. It can also cause abnormal heart rhythms which may result in sudden incapacitation or death.

11The evidence presented by the Minister’s agent (the “Agent”) included four Commercial Driver Cardiovascular Assessments dated, respectively, May 22, 2014, January 5, 2016, February 7, 2017 and March 8, 2018. Each indicates that the appellant suffers from “Arrhythmia or Conduction Disturbance” and “Other Cardiac Conditions”. Each also indicates the conditions of “Atrial fibrillation or atrial flutter” and “tachyarrhythmias”. Two of the four assessment reports indicate “congestive heart failure” and “dilated or ischemic cardiomyopathy” and the most recent of these assessment reports indicates “ventricular tachycardia”. A finding of heart disease is supported by other reports submitted and reviewed by the Agent and by the appellant’s oral testimony. As recently as May 17, 2018 the appellant’s internal medicine specialist, Dr. G.H., wrote the appellant’s diagnosis to be “congestive heart failure due to non‑ischemic cardiomyopathy”.

12We find that the appellant suffers from heart disease, in particular, non-ischemic cardiomyopathy.

b. Is the appellant’s heart disease likely to significantly interfere with his ability to drive a motor vehicle safely?

13The narrow question to be answered in this case relates to the “appropriate shock” received by the appellant from his ICD in August, 2017 and the associated ventricular tachycardia. It aids in understanding this narrow point to briefly review (i) background information relating to cardiovascular conditions and the CCMTA Standards for commercial drivers, (ii) the appellant’s medical history and 2014 appeal to the Licence Appeal Tribunal, and (iii) the appellant’s current medical condition.

Cardiac Conditions and CCMTA Standards for Commercial Drivers

14Non-ischemic cardiomyopathy and congestive heart failure are conditions which are known to lead to sudden cardiac events including loss of consciousness, loss of physical abilities and death. This has obvious and dire implications for the safety of both the driver and the road-using public. Public safety is at the centre of driving restrictions placed on individuals with medical conditions.

15The CCMTA Standards relating to cardiac diseases distinguish between commercial and non-commercial drivers, the standards for commercial drivers being considerably stricter. The rationale for this is that commercial drivers spend a great deal more time behind the wheel so that the likelihood of a sudden cardiac event while driving is greater. As well, commercial drivers are required to drive in inclement weather and often are unable to stop driving if they feel unwell. These factors, together with the dangerous cargo that they may carry and the very large size of their vehicles, can lead to catastrophic consequences in the event of an accident.

Appellant’s Medical History and LAT Appeal

16The appellant’s first cardiac event of which we are aware occurred in November, 2012. His internal medicine specialist, Dr. G.H., submitted a Medical Condition Report to the Ministry of Transportation pursuant to section 203 of the HTA. This section requires prescribed 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 reported condition was “non-ischemic cardiomyopathy”. The appellant’s Class A driver’s licence was subsequently suspended in January, 2013. His Class G driver’s licence was reinstated in February, 2013.

17In October, 2013, the appellant had an implantable cardioverter defibrillator/dual chamber pacemaker device inserted. In a November 2014 letter, Dr. G.H. states that the ICD was inserted “for primary prophylaxis (as a preventative measure prior to having an event) against sudden cardiac death for non‑ischemic cardiomyopathy and a cardiac ejection fracture [sic] of less than 35% (26%).”

18Through 2013 and 2014, the appellant continued his efforts to have his Class A driver’s licence reinstated. Ultimately he appealed to the Licence Appeal Tribunal. The adjudicator reinstated the appellant’s Class A driver’s licence in 9159 v. Minister of Transportation, 2014 CanLII 79254 (ON LAT) (the “9159 case”). Counsel to the appellant referred to this case and submitted that the circumstances now being considered were the same as those considered in the 9159 case.

19The adjudicator in the 9159 case referred to and gave weight to the CCMTA Standards. Section 3.6.26 of CCMTA Standards provides that commercial drivers who have had an ICD implanted as a primary prophylaxis are generally not eligible for a licence. The CCMTA Standards go on to explain that when an ICD is implanted as a primary prophylaxis, it is intended to prevent sudden cardiac death in individuals considered to be at high risk but who have not had an episode of ventricular arrhythmia [emphasis added]. The CCMTA Standards also acknowledge that, based on a recommendation of the Canadian Cardiology Society, that an ICD may sometimes be implanted in low risk patients and that “[i]ndividual cases may be made for allowing a commercial driver to continue driving with an ICD provided the annual risk of sudden incapacitation is felt to be 1% or less.”

20This is reflected in Section 3.6.26 of the CCMTA Standards that provides that a commercial driver with an ICD may be eligible to obtain a commercial licence if a cardiologist assessment indicates that the annual risk of sudden incapacitation is 1% or less and the driver meets the standard for ICD implanted as a primary prophylaxis in non‑commercial drivers in Section 3.6.25.

21The criteria set out in Section 3.6.25 are that the individual is assessed as NYHA (New York Health Association) Class I, II, or III, it has been 4 weeks or more since ICD implant, and the conditions for maintaining a licence are met (if applicable). Dr. G.H. had corresponded with the Ministry that the appellant’s annual risk of sudden incapacitation was 1% or less and that he was NYHA Class I. The Medical Advisory Committee of the Ministry did not accept this assessment and denied reinstatement of the appellant’s Class A driver’s licence.

22The adjudicator, in reinstating the appellant’s commercial driver’s licence, found that the appellant had met all the criteria set out in the CCMTA Standards and preferred the opinion of Dr. G.H., who had been treating the appellant for several years, to that of the Medical Advisory Committee, who had never examined him. The adjudicator also noted that the appellant’s ICD was examined in July, 2014 by a rhythm specialist, Dr. C.L., and referred to the consultation report of Dr. C.L. which stated that the appellant “had no episodes of treated VT (Ventricular Tachycardia)”.

Appellant’s Current Medical Condition

23On December 19, 2017, Dr. M.P., a specialist in Cardiac Electrophysiology, wrote to the Ministry that the appellant had received "an appropriate ICD discharge/shock" on August 30, 2017. In his consultation report dated the same day Dr. M.P. writes that the appellant was referred for assessment when "his routine device interrogation detected that he had received a high-voltage/shock therapy." In the consultation report, Dr. M.P. also writes that "records indicate that the device delivered a shock for sustained ventricular tachycardia" and "this man received an appropriate shock for ventricular tachycardia, which came hard on the heels of uncontrolled AF [atrial fibrillation]".

24Appellant’s counsel submits that the appellant’s current medical situation is the same as it was in 2014 when the Tribunal reinstated the appellant’s Class A licence and requests a reinstatement. The Agent takes the position that the delivery of an electric shock by his ICD disqualifies the appellant from holding a commercial licence and asks that the decision to downgrade the licence be confirmed.

25The evidence discloses that the circumstances of the appellant are, in many ways, very similar to the circumstances existing at the time of his appeal to this Tribunal in 2014. Appellant’s counsel makes this submission as a basis for reinstatement of the appellant’s commercial licence in this case.

26In the Commercial Driver Cardiovascular Assessment dated March 3, 2018, Dr. G.H. confirms that the appellant is NYHA Class l, that the appellant’s annual risk of sudden incapacitation is 1% or less and that the appellant is fit to drive commercially. In March, 2018, six months after the shock incident, Dr. M.P. wrote that there had been no recurrent ventricular arrhythmias. In April, 2018, Dr. G.H. wrote a letter to the effect that the appellant is fit to drive commercially and subsequently confirms this point in a report dated May 17, 2018. The key difference from the circumstances existing in 2014, is the indication that ventricular tachycardia occurred in August, 2017. In the 9159 case, it was explicitly stated that he had not had any “treated episodes of ventricular tachycardia”. In this case, the appellant had ventricular tachycardia that was treated with a shock.

27Again, reference to the CCMTA Standards is helpful. Section 3.6.30 states that commercial drivers are ineligible for a licence if ICD therapy (shock or ATP) has been delivered. The appellant testified that he did not feel the shock being delivered. The CCMTA Standards do not, however, make a distinction between a shock causing incapacity and one that does not when referring to commercial drivers. While we accept the appellant’s testimony on this point, we accept the evidence recorded by the device itself and find that a shock was delivered.

28Sustained ventricular tachycardia can give rise to sudden incapacitation and death. The delivery of the shock by the appellant’s implanted defibrillator successfully treated the sustained ventricular tachycardia and possibly prevented an event of sudden incapacitation or death. This is to be contrasted with the 9159 case wherein the medical report relied upon found “no episodes of treated VT (Ventricular Tachycardia)”.

29We are aware that the appellant’s employer wrote a letter confirming that it is holding a job for him. We also believe that the appellant manages his condition in an appropriate and responsible fashion, seeing his internal medicine specialist every three to four months and having his ICD checked every six months. Unfortunately, the serious and unpredictable nature of his condition poses a threat to public safety.

30After considering the evidence and submissions of the parties, we find on a balance of probabilities that the appellant suffers from a physical condition, non‑ischemic cardiomyopathy, to an extent that is likely to interfere with his ability to drive a motor vehicle safely.

E. ORDER

31For the reasons set out above, pursuant to s.50(2) of the Highway Traffic Act, the Minister’s decision to downgrade the class of the appellant’s driver’s licence is confirmed.