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 pursuant to section 47(1) of that Act – to suspend a licence
Between:
M.K.
Appellant
and
Registrar of Motor Vehicles
Respondent
DECISION AND ORDER
Panel: Dr. Erica Weinberg – Member Ted Crljenica – Vice Chair
Appearances: For the Appellant: M.K., Self-represented For the Respondent: Sanjay Kapur - Agent
PLACE AND DATE OF HEARING: TELECONFERENCE, AUGUST 8, 2018
REASONS FOR DECISION AND ORDER
A. OVERVIEW
1This is an appeal from a decision of the respondent, the Registrar of Motor Vehicles, to suspend the appellant’s class B driver’s licence, effective June 3, 2017.
2The appellant is a 68-year-old male who suffers from type 2 diabetes. The respondent’s decision to suspend the appellant’s class B driver’s licence was made as a result of receipt of a Medical Condition Report, dated May 19, 2017 regarding, among other things, the appellant’s understanding and monitoring of his blood glucose levels, including his ability to correctly use the newly started insulin therapy in addition to his oral diabetic medication, his diabetic treatment, and a diabetic foot infection with gangrene in his right big toe.
3Subsequently, the respondent received updated information advising that the big toe on the appellant’s right foot had been amputated and that he suffers from peripheral vascular disease (“PVD”).
4Diabetes can affect driving performance because of its potential chronic complications that may impair sensory function or motor function (e.g. amputation, PVD) and/or transient episodes of confusion or loss of consciousness due to hypoglycemic episodes. Certain diabetic medications, in particular treatment with insulin, may induce more frequent hypoglycemic episodes.
5Following receipt of the May 19, 2017 Medical Condition Report the respondent wrote to the appellant requesting updated information from the appellant’s treatment providers on the Ministry of Transportation’s forms which were included in the letter. The information received from the appellant’s treating physician did not provide all of the information requested by the respondent. The respondent wrote to the appellant indicating that the appellant’s licence would remain under suspension pending receipt of more detailed medical information from which it can be determined if the licence can be reinstated.
6This pattern of non-compliance continued up to and including March 6, 2018 when the respondent again received incomplete medical information from a February 24, 2018 medical examination. By letter dated March 9, 2018 the respondent again wrote to the appellant advising that the appellant’s driver’s licence would remain suspended pending receipt of more detailed information from which it can be determined if the licence can be reinstated.
7By Notice of Appeal dated April 30, 2018 the appellant appealed the March 9, 2018 decision to maintain the licence suspension. In his Notice of Appeal the appellant provided information regarding his current awareness of appropriate A1C levels which is the measure of a 3-month average of blood glucose levels.
8For the reasons that follow, Tribunal confirms the decision by the Registrar to suspend the appellant’s class B driver’s licence.
B. LAW
9Section 203 of the Highway Traffic Act (“HTA”) requires all physicians in the Province of Ontario to report to the respondent 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.
10The respondent has the power under s. 32(5)(b) of the HTA to suspend a licence in accordance with requirements prescribed in the regulations.
11Subsection 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 drive a motor vehicle of the applicable class safely.
12Section 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.
13The Registrar has the burden of establishing on a balance of probabilities the ground or grounds to suspend a driver’s licence.
14Pursuant 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.
C. ISSUE
15The legal issue for the Tribunal to determine is whether any of the appellant’s medical conditions are likely to significantly interfere with his ability to drive safely.
D. THE RESPONDENT’S EVIDENCE AND SUBMISSIONS
16The evidence presented by the respondent, the Registrar, is straightforward. The respondent received a Medical Condition Report dated May 19, 2017. The physician who completed the report advised that the appellant’s type 2 diabetes was poorly controlled on oral diabetes medication and expressed concerns as to whether the appellant was able to use his newly prescribed insulin medication correctly. He also advised that secondary to the diabetes, the appellant’s right foot was infected with gangrene and that the appellant should not drive or weight bear on his right foot. According to the report the appellant advised the doctor that he “will try to drive anyway”.
17Between May 2017 and the hearing, the respondent received from the appellant’s treating physicians information indicating that the gangrene infection in the appellant’s right foot resulted in the amputation of the appellant’s right big toe, and that the appellant suffers from PVD.
18Each of these conditions has the potential to significantly interfere with the appellant’s ability to drive safely.
19On numerous occasions the respondent wrote to the appellant requesting medical information on these conditions. Each letter sent by the respondent to the appellant was triggered by receipt of medical information regarding the appellant’s conditions. Each request was in the respondent’s standard format and indicated that the appellant’s licence would remain suspended pending receipt of the respondent’s medical forms, fully completed, and the review of their medical contents to determine if the appellant’s driver’s licence can be reinstated. The relevant medical forms were included in each of the respondent’s letters. The dates of the various letters and reports were:
a. The initial Medical Condition Report dated May 19, 2017 in response to which the respondent wrote to the appellant on May 25, 2017 advising that his licence was going to be suspended;
b. Forms dated November 21, 2017 were sent to the respondent by the appellant’s family physician, Dr. S. Dr. S was not able to provide information regarding the appellant’s blood glucose levels as the appellant did not provide Dr. S. with blood glucose logs. Dr. S. also advised that the appellant’s visits to Dr. S. had been infrequent and the appellant’s diabetes was poorly controlled;
c. By letter dated December 12, 2017, the respondent again wrote to the appellant requesting more detailed medical information. In response the respondent received a letter from a Chiropodist from an examination conducted on November 30, 2017 advising that the appellant requires foot orthotics;
d. The respondent wrote to the appellant on January 19, 2018 requesting more detailed medical information. The respondent received a form dated January 27, 2018 from a nursing clinic advising that the appellant’s foot wound was healed;
e. By letter dated February 9, 2018 the respondent again requested more detailed medical information. In response, the respondent received from a walk-in clinic a report dated February 9, 2018. The doctor who examined the appellant had only met the appellant that day. In the report the doctor advised that the appellant walks with a limp but his locomotion is otherwise normal, that the appellant is taking his diabetes medications and that he has reported no incidents of hypoglycemia or loss of consciousness;
f. The last letter sent by the respondent to the appellant prior to the filing of this appeal is the respondent’s letter of March 9, 2018. The respondent advised that the appellant’s driver’s licence would remain suspended pending receipt of detailed medical information from which it can be determined if the appellant’s driver’s licence can be reinstated;
g. Subsequent to the filing of the Notice of Appeal the respondent received from a different physician at the walk-in clinic another completed form, dated July 8, 2018. The physician reported that the appellant’s gait was normal, he has had no incidents of hypoglycemia and that since February 2018 the appellant has much better control of his diabetes. In the report it is also indicated that there has been a change in the appellant’s medication as of April 2018;
h. Lastly, a letter from the respondent dated July 27, 2018 by which the respondent again requested more detailed medical information to determine if the appellant’s driver’s licence can be reinstated.
20The respondent asks that the appeal be dismissed on the basis that the appellant has not provided a report from a treating physician confirming that the appellant has been regularly testing his blood sugar levels or that he has been maintaining a log of such tests. The respondent submits there is insufficient information to establish that the appellant’s diabetes is controlled. Further, he takes the position that the appellant has not provided sufficient medical information regarding the change of his diabetes medication in April 2018.
21As for the PVD, the respondent submits it has no information as to its nature and cause. The respondent submits it requires confirmation from the appellant’s treating physician that the appellant’s PVD is controlled.
22Lastly, regarding the current musculoskeletal issue, that being the amputation of the big toe on the appellant’s right foot, the respondent is seeking information from the appellant’s treating physician as to whether any tests are required to determine if the amputation has affected the appellant ability to drive safely.
23The respondent’s agent advised the Tribunal that the respondent accepts that the appellant’s foot wound has healed as stated on the form from the nursing clinic dated January 27, 2018 (paragraph 19 (d), above).
E. THE APPELLANT’S EVIDENCE AND SUBMISSIONS
24The appellant acknowledged that he suffers from type 2 diabetes and that the big toe on his right foot has been amputated. He stated that he is unaware that he has PVD.
25It was the appellant’s testimony that he is aware of the need to keep his blood glucose levels down in order for his driver’s licence to be reinstated. He would like to keep his blood glucose level at between 7.0 and 9.0 mmol/L. He also testified that his blood glucose levels are under control, although he indicated that his most recent A1C reading was ‘less than 9’ mmol/L.
26The appellant also testified that he measures his blood glucose levels two or three times a day and has been keeping a log for about 50 days. He has not shown the log to any of his treating physicians. The appellant also testified that since March 2018 he has been on a strict diet and that he exercises regularly by walking.
27The appellant’s diabetes has been under the care of an endocrinologist since December 2017. When the appellant was asked by the Tribunal why the most recent medical reports have been from physicians at a walk-in clinic, the appellant responded that it is more convenient for him to get to the walk-in clinic than to get to his family doctor’s office but that he is still seeing his family doctor (Dr. S).
28When asked if he knows the signs of hypoglycemia, the appellant responded that he does. He described the symptoms as being extreme hunger, sweating, shaking and loss of consciousness.
29The appellant was also asked by the Tribunal if he has experienced any of the hypoglycemia symptoms he identified. He responded that he has. He has felt extreme hunger and shakiness, and on some occasions when this has happened he has measured his blood sugar level and it has been between 2.2 and 3 mmol/L. The episodes have been more frequent since his insulin medication was changed by his endocrinologist in April 2018 (NovoMix 30 three times daily from Lantus twice daily). The appellant stated that he has not experienced these symptoms in the past month but has had maybe “a couple” hypoglycemic episodes the previous month. He is learning to eat small amounts on a more frequent basis to avoid such hypoglycemic episodes. He also carries with him water, sugar pills, his medication, his insulin monitor and a pastry or chocolate for use in case he experiences such symptoms.
30The appellant’s next appointment with his endocrinologist is in September 2018. He would like to get his class G licence reinstated pending resolution of the suspension of his class B licence.
F. ANALYSIS
a. Peripheral Vascular Disease
31In Dr. S’s report of November 21, 2017 he reported that the appellant suffers from PVD and hypertension. PVD is common among persons with type 2 diabetes and it could have been one of the contributing factors of the appellant’s toe amputation. As indicated in section 13 of the CCMTA manual, PVD can result in sudden incapacitation if it is caused by an aneurism, an aortic dissection or deep vein thrombosis, thus making it unsafe for persons suffering from one of the these conditions to drive. There is no indication in the evidence that the appellant’s PVD is related to any of these. As such there no evidence to suggest that the appellant’s PVD is likely to significantly interfere with his ability to operate a motor vehicle safely.
32It is our determination that the appellant’s PVD is not likely to significantly interfere with his ability to drive a motor vehicle safely.
b. Musculoskeletal Condition
33In support of its request for information as to whether the amputation of the appellant’s big toe on his right foot, the respondent relied on section 11.6.1 of the CCMTA manual. That section deals with the loss of arms or legs. It does not apply to the appellant’s toe amputation. The most recent medical evidence is that he has been fitted with orthotic footwear and his gait is normal. During the hearing, the appellant’s agent acknowledged that the respondent accepts the January 27, 2018 report from nursing clinic that the appellant’s wound has healed.
34Based on this evidence we are satisfied that the amputation of the appellant’s right big toe or the wound which has healed, is not likely to significantly interfere with his ability to drive a motor vehicle safely.
c. Diabetes
35It is our view based on the evidence that, although the appellant’s diabetes is currently better controlled, it is still inadequately controlled. In addition, it is our view that the appellant’s understanding of this condition, especially the interrelationship between insulin, diet and exercise is still evolving.
36The Canadian Council of Motor Transport Administrators Medical Standards Manual for Drivers manual (CCMTA), section 7.6.1 recommends, among other things, that drivers with type 2 diabetes on oral medications are eligible for any class of driver’s licence if:
a. They understand their condition;
b. Routinely follow their physician’s instructions about diet, medication, glucose, glucose monitoring and hypoglycemia prevention.
37Section 7.6.2 also provides that non-commercial drivers with type 2 diabetes treated with insulin (as opposed to oral medication) are eligible for a driver’s licence if, in addition to the above, they understand their diabetic condition and the close interrelationship between insulin, diet and exercise, and routinely follow their physician’s instructions about hypoglycemic management.
38Section 7.6.3 of the CCMTA manual provides, among other things, that commercial drivers (which includes Class B vehicles) with type 1 or type 2 diabetes treated with insulin are eligible for a driver’s licence if:
a. Blood tests do not indicate uncontrolled diabetes, which are hba1c > 12% or, > 10% of BG levels < 4.0 mmol/L;
b. If there is no significant change in insulin therapy (i.e. insulin was introduced, change in insulin type or number of injections) or, if there has been a significant change in therapy, monitoring and assessment indicate stable and effective blood glucose control; and,
c. There is no evidence of inadequate blood glucose self-monitoring.
39The CCMTA manual is not binding on the respondent Registrar or this Tribunal but it is good guide to determine if the appellant’s type 2 diabetes is likely to significantly interfere with his ability to drive a class B and/or G motor vehicle commercial safely.
40Having received the initial medical report of May 2017, in order to determine if the appellant’s physical condition is likely to significantly interfere with his ability to drive safely, the respondent has requested from the appellant on many occasions:
a. Confirmation that the appellant’s A1C results are consistent with his blood logs;
b. Confirmation that he is generally compliant with respect to diet, self-monitoring, doctor’s appointments, lifestyle etc.;
c. Results of all investigations regarding the appellant’s PVD including treatment, current status and confirmation that the condition is controlled.
The appellant has not provided this information.
41The Tribunal is satisfied that the respondent was justified in requesting this information in light of the initial information received in May, 2017.
42Not only did the information presented at the appeal hearing not provide a sufficient response to these concerns, it raised more concerns:
a. The February 24, 2018 and July 8, 2018 medical reports indicate that the appellant reported to the physicians who completed those reports that he has not experienced any hypoglycemic episodes. At the hearing, the appellant admitted that he has experienced hypoglycemic episodes, in particular since his insulin was changed (both in type and in frequency of injections) in April 2018. It appears that the appellant has not been forthcoming with these physicians;
b. The July 8, 2018 medical report indicates that the appellant reported to the physician who completed this report that he was still on a twice daily insulin regime (Lantus as per February 24, 2018), not the three times daily NovoMix 30 insulin in addition to his oral diabetic medication. Again, it appears that the appellant has not been forthcoming with this physician;
c. The change in medication in April 2018 was a “significant change in therapy” as contemplated by section 7.6.3 of the CCMTA manual which deals with commercial drivers whose diabetes is treated with insulin. This change requires monitoring and assessment indicating stable and effective blood glucose control. The appellant has not provided either the respondent or this Tribunal with sufficient evidence of monitoring and assessment indicating stable and effective blood glucose control;
d. As with any person with type 2 diabetes who is applying for or who has a driver’s licence of any class the appellant is required to follow his physician’s instructions regarding, among other things, monitoring of his blood glucose levels. Dr. S, who has been the appellant’s primary care physician since 2004 reported on December 21, 2017 that the appellant has not been monitoring his blood glucose levels and that his visits to Dr. S have been infrequent and that the appellant’s diabetes is poorly controlled.
e. The most common method of determining if someone with type 2 diabetes has been regularly monitoring his or her blood glucose levels is to provide to his physician his test logs. These logs can then be compared to the results of an A1C test to determine if they are consistent. The appellant testified that he began monitoring his blood glucose levels about 50 days prior to the hearing. He also testified that prior to this no one had recommended to him that he monitor his levels. The appellant acknowledged that he has not provided the logs to any of his doctors.
43Thus, despite the respondent’s letters advising the appellant what information he needs to provide to be considered for the licence suspension to be lifted, the appellant has not complied with those requests. We are also satisfied that the appellant has not been sufficiently compliant with his physician’s instructions regarding monitoring of his blood glucose levels. It is also our determination that the appellant has not been honest with the doctors at the walk-in clinic. Nor do we accept that he was not told until 50 or so days ago that he should be regularly monitoring and recording his blood glucose levels.
44On the basis of the appellant’s diabetes, concerning which he has not provided the respondent with the information he requires to determine if the appellant’s driver’s licence can be reinstated, the appeal is dismissed.
F. ORDER
45Pursuant to subsection 50(2) of the Highway Traffic Act we confirm the Registrar’s decision to maintain the suspension of the appellant’s driver’s licence.
LICENCE APPEAL TRIBUNAL
_________________________
Dr. Erica Weinberg - Member
_________________________
Ted Crljenica, Vice-Chair
Released: September 4, 2018