DECISION AND ORDER
File Number: 11448 MED
Appeal under subsection 50(1) of the Highway Traffic Act, R.S.O. 1990, c. H.8 (the “HTA”), from a Decision of the Minister of Transportation pursuant to section 32(5)(b)(i) of the HTA to Change the Class or Classes of a Driver’s Licence
Between:
D.B. Appellant
and
Minister of Transportation Respondent
Panel: Dmitri Louvish, M.D., Member Harriet Lewis, Member
Appearances: For the Appellant: D.B., Appellant For the Respondent: Kiel Biel, Agent
Place and Date of Hearing: By Teleconference August 22, 2018
REASONS FOR DECISION AND ORDER
A. OVERVIEW:
1The appellant D.B. is a 60-year-old professional truck driver with a long and unblemished driving record. He has been employed for many years by a waste management company, operating a large garbage truck pursuant to a Class D licence. On May 7, 2018, while stopped at a customer’s lot and while exiting the vehicle, he fell, hitting his head on the ground. Whether he lost consciousness before falling, or whether it was when he hit his head on the pavement, is a matter of dispute, but when he regained consciousness, he was in an ambulance which had been called by an unknown person. There were no witnesses to the fall. D.B. was taken to the emergency department of a nearby hospital.
2He was seen shortly after by Dr. S.N. who upon examination of D.B., found no acute distress or other symptoms of his fall (prodromes), other than an abrasion at the back of his head. All tests given at that time were within the normal range. However, a CT scan revealed a “tiny acute right-sided subarachnoid hemorrhage”, which was deemed non-operative, and D.B. remained asymptomatic in that regard.
3Although overall D.B.’s ECG was within normal range, it showed multiple premature ventricular contractions (PVCs) that were concerning from a cardiac perspective. Consequently, D.B. was admitted for further testing so that cardiac issues could be ruled out as a cause of his syncope.
4On May 10, 2018, D.B. was discharged. Despite numerous tests, and some evidence of PVCs, the tests showed no medical reason for his loss of consciousness. Notwithstanding, because this was an unexplained syncope, it was reported to the Minister of Transportation with a suggestion that D.B.’s class D commercial licence be suspended for a period of twelve months, but with the strong recommendation that he be given a G licence.
5By letter of May 11, 2018, D.B.’s driving privileges were suspended by the Deputy Registrar of Motor Vehicles (the Registrar), who requested a medical history and evidence of the successful treatment of any ascertainable medical cause of this incident. On May 23, 2018, the Registrar requested confirmation that D.B.’s alcohol consumption is “within minimal risk drinking levels”.
6Confirmation of D.B.’s moderate alcohol consumption was provided on May 29, 2018, by R.F., a Nurse Practitioner. As a result, on June 15, 2018, the Ministry wrote to D.B. advising that he had been approved for a “Class G” licence, but that his commercial licence would remain suspended until a further medical report was received that confirmed that he has been syncope-free for twelve months.
7On June 25, 2018, D.B. filed a Notice of Appeal (the appeal) of the Registrar’s decision to change his licence from a Class D to a Class G licence. He argues that his loss of consciousness was the result of his falling and hitting his head after slipping off of the steps to the cab of his truck, and that his medical test results show that he is in good health.
8The Registrar takes the position that driving a commercial vehicle involves significant risks to other road users. Notwithstanding that no cause of syncope has been determined, in order to regain his commercial licence, D.B. must remain free of syncope and/or seizure-like episodes for a period of twelve months.
9For the reasons that follow, we confirm the Minister's decision.
B. ISSUES:
10The issue in this appeal is whether the appellant suffers from a mental, emotional, nervous or physical condition or disability likely to significantly interfere with his ability to drive a Class D motor vehicle safely. More specifically, is the appellant’s health such that it is likely to significantly interfere with his ability to drive a Class D motor vehicle safely.
11We are of the view that at this time, there is sufficient evidence in this matter to answer this question in the positive and therefore we determine that the Minister’s decision to downgrade D.B.’s Class D licence should be confirmed.
C. THE LAW:
12As this is an appeal of a decision, which on medical grounds changed D.B.’s licence from a Class D to a Class G, the applicable law is as follows:
- The Minister has the authority to change the class of a driver's licence pursuant to section 32(5)(b)(i) of the Highway Traffic Act, R.S.O. 1990, c. H.8 (the “HTA”). As stated in that section:
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 regulation, 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
- Section 14(1) of O. Reg. 340/94 (the “Regulation”) 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;
13In determining whether a person meets the standard set by s.14(1) 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.
14Paragraph 14(2)(a) of the Regulation allows the Minister to consider the Canadian Council of Motor Transport Administrators Medical Standards for Drivers (the “CCMTA Standards”) when determining whether the requirements of s.14 (1) are met.
15The Tribunal may take the CCMTA Standards into consideration although they are not binding requirements. In this case, the respondent referred the Tribunal to s.19.6.10 of the CCMTA standards pertaining to a “single or recurrent unexplained syncope – Commercial drivers”, which recommends suspension for a period of 12 months since the last episode of syncope, routine follow-up and treatment by a physician, and reassessment after one year.
D. EVIDENCE and ANALYSIS:
16We found D.B. to be a credible and sincere witness on his own behalf. He related with clarity the events of the day leading up to the fall from the truck, although he has no memory of the fall itself. He was the solo operator of a large garbage truck which was a model that had recently been brought into service by his employer. The new vehicle has a number of steps up to the cab, with hand-holds on either side of the door. On the day of the incident he was up and on his route very early and without having had breakfast. Upon arrival at his customer’s location, he noticed a larger-than-permitted load of refuse waiting for pick up, and in accordance with company policy, took a picture of it with his tablet. He mounted the steps of the truck and placed the tablet on the driver’s seat, intending to descend and load the refuse into the truck. That was his last recollection prior to regaining consciousness.
17Upon being questioned, D.B. admitted that from time to time he had mounted the steps to his cab holding an item in one hand, such as a cup of coffee. On one occasion, he had slipped on the steps while descending from the truck, and grazed his shin. He is small of stature (approximately five feet three inches) and admitted that entry to and exit from the new vehicle is more difficult than with a previous model.
18D.B. has returned to work two days per week on a two-person truck which he does not drive. He is currently also receiving short-term-disability benefits to supplement his wages during the period of his post incident accommodation. He has continued some follow-up at the community medical clinic in his home town to monitor his general health post incident.
19The medical evidence in this case, including numerous tests, a CT scan and two MRI’s, has not confirmed a medical cause for D.B.’s syncope. Other than some intermittent irregularity in his heartbeat (PVCs), and the subarachnoid hemorrhage which remains asymptomatic, he is in good health for his age. In her report, the emergency room physician Dr. S.N. suggests that D.B. “might benefit from a Holter monitor” and the hospital discharge report from Dr. G.J. recommends that if D.B. “has frequent issues with palpitations, or lightheadedness, or dizziness he should go to his doctor and obtain a referral to Cardiology as well as the consideration of starting a beta blocker or calcium channel blocker if this is due to frequent PVCs”.
20We place significant weight on D.B.’s testimony that he has no recollection of losing his grip and falling to the ground. In our judgement, this is consistent with syncope which could have resulted from his PVCs, the physical effort in ascending the steps, low blood sugar from not having breakfast, or other causes. It is our judgement that at this time, there is an unacceptable risk that D.B. suffers from a condition that is likely to significantly interfere with his ability to operate a Class D motor vehicle safely. Given the relatively short time that has elapsed since the syncopal incident in this case, and the presence both of the small cerebral hemorrhage and the PVCs, we believe that it would be in D.B.’s best interest to continue to be monitored by physician for a further period of time and to address any outstanding cardiac concerns, so that any risk of further syncope can be mitigated. This also would provide the required further assurance that the risk to public safety posed as a consequence of his operation of a large commercial vehicle will be minimized. For those reasons, we think it is reasonable that there be a twelve-month period of commercial licence suspension, with the requirement of follow-up and further medical evidence that would attest to D.B.’s remaining asymptomatic and having no recurrent syncope-like episodes.
E. CONCLUSION
21For the reasons set out above, pursuant to subsection 50(2) of the HTA, we confirm the Minister's decision to suspend the appellant D.B.’s Class D. driver’s licence and to issue a Class G licence. As required by the Minister, reinstatement of the commercial licence will be dependent on the filing of a report from D.B.’s family physician or specialist confirming that he has been syncope-free for twelve months from May 5, 2018.
LICENCE APPEAL TRIBUNAL
________________________
Dimitri Louvish, M.D., Member
_________________________
Harriet Lewis, Member
Released: September 5, 2018