Date: 2019-12-27

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:

Peter Erodotou

Appellant

and

Registrar of Motor Vehicles

Respondent

DECISION AND ORDER

Panel: Dr. Erica Weinberg, Member

Appearances:

For the Appellant: Peter Erodotou, self-represented Charmaine Erodotou, appellant’s wife

For the Respondent: Nora Challis, agent Sonia De Santis, agent

Heard by Teleconference: December 13, 2019

A. Overview:

1The appellant appeals the suspension of his driver’s licence under s. 47(1) of the Highway Traffic Act, R.S.O. 1990, c. H.8 (the “HTA”).

2The appellant was referred by his former family physician for consultation to neurologist Dr. B. following concerns expressed by the appellant’s wife regarding his memory.

3Following the consultation, Dr. B. had concerns that the appellant’s cognitive condition made it unsafe for him to drive. Pursuant to s. 203 of the HTA, every prescribed person shall report to the Registrar of Motor Vehicles (“the Registrar”) any person 16 years of age or older who has or appears to have a prescribed medical condition, functional impairment or visual impairment that may make it dangerous for the person to drive. As per Dr. B.’s Medical Condition Report submitted to the Registrar, the appellant was at that time driving a van for a living.

4On October 13, 2018 following a review of Dr. B.’s report, the Registrar suspended the appellant’s class-B driver’s licence for medical reasons under s. 47(1) of the HTA.

5For the reasons that follow, I confirm the Registrar’s decision to suspend the appellant’s driver’s licence.

B. ISSUES:

6The issue in this appeal is whether the appellant suffers from a medical condition, namely cognitive impairment, which is likely to significantly interfere with his ability to drive a vehicle safely.

7To answer that question, I will address the following issues:

a. Does the appellant suffer from cognitive impairment?

b. Is the appellant’s cognitive impairment, if any, likely to significantly interfere with his ability to drive a vehicle safely?

C. LAW:

8The respondent has the burden of establishing the grounds for suspending the licence on a balance of probabilities.

9The Registrar is responsible for ensuring that drivers are medically fit to drive vehicles on the highway. The Registrar’s powers are set out in s. 47(1) of the HTA, specifically in this case, 47(1)(g) and in s. 14(1)(a) of O. Reg. 340/94 (the “Regulation”). Under s. 14(2)(b) of the Regulation, the Registrar may also require a driver to provide satisfactory evidence that he or she is able to drive safely. A person whose licence is suspended under these provisions may appeal the suspension to the Tribunal under s. 47 of the HTA. On appeal, the Registrar has the burden of establishing the grounds 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.

D. EVIDENCE AND ANALYSIS:

a. Does the appellant suffer from cognitive impairment (“CI”)?

10I find that the evidence presented establishes that the appellant suffers from CI.

11The appellant’s wife testified that 2-3 years ago she noticed some changes in the appellant’s memory plus difficulties he was having performing certain tasks.

12According to the appellant, he eventually consulted with his previous family physician who performed an in-office cognitive test, and subsequently referred him to a neurologist in his community, Dr. B.

13On September 21, 2018 the appellant was seen by Dr. B. As per the Medical Condition Report filed by Dr. B., her tentative diagnosis was “possible Lewy Body Dementia”.

14According to the appellant, Dr. B. did a number of in-office cognitive tests at the first appointment. Although Dr. B.’s original consultation note was not submitted as evidence, on September 9, 2019 when the appellant was reassessed by Dr. B., her note states that one year ago his MoCA (Montreal Cognitive Assessment) score was 18/30. MoCA is a widely used quick screening assessment for detecting CI. A score >26 is considered to be normal.

15The appellant had a Functional Driving Assessment (“FDA”) on September 25, 2018 at an approved assessment centre. His in-clinic assessment revealed a Mini-Mental Status Examination (“MMSE”) score of 23/30. MMSE is also a widely used quick screening tool for detecting CI. A score of ≥25 is considered to be normal.

16Dr. B. referred the appellant to Dr. F. a neurologist in a memory clinic in a large urban centre for another opinion.

17Although none of Dr. F.’s notes were submitted as evidence, the appellant described that following numerous tests including brain imaging, Dr. F. diagnosed him with “posterior cortical atrophy”. By definition, posterior cortical atrophy is the degeneration (atrophy) of the back (posterior) of the brain or cerebral cortex (cortical).

18In addition, the appellant stated that Dr. F. referred him to Dr. B.M. for a sleep assessment to rule out obstructive sleep apnea.

19According to the appellant’s wife, the appellant’s breathing and exercise is better since starting CPAP (a treatment for obstructive sleep apnea), but she has not noticed a significant improvement in his cognition since starting CPAP.

20In July 2019, the appellant consulted with Dr. G.M. an internal medicine and geriatric specialist in a large urban centre. The appellant stated that he wanted another opinion and obtained Dr. G.M.’s name from a former co-worker. Dr. G.M.’s initial consultation letter was not submitted as evidence.

21On September 9, 2019, the appellant was reassessed by Dr. B. Following this appointment Dr. B. submitted a completed Cognitive Assessment (“CA”) form to the Registrar indicating that the appellant suffers from mild CI or mild dementia which is stable with ongoing symptoms, but that his “MoCA score today was normal = 27/30”. Furthermore, she stated that she was not sure how to explain the discrepancy from the appellant’s previous MoCA of 18/30 one year earlier.

22On October 15, 2019 the appellant had another FDA at a different approved assessment centre. His in-class MoCA score at this FDA was determined to be 17/30.

23On November 25, 2019 the appellant was reassessed by Dr. G.M. Dr. G.M. filed a completed CA form with the Registrar on November 26, 2019 indicating that the appellant suffers from mild CI (MoCA 23/30) which is stable with ongoing symptoms.

24The appellant’s wife testified that the appellant has some memory issues and that he has fluctuations in these memory issues.

25The appellant admits that he “forgets” but denies having memory or cognitive issues. However, the appellant admitted that he was started on the medication donepezil (Aricept^®), a medication approved to be used in the treatment of dementia. Furthermore, the appellant stated that he suffered adverse effects from the medication and stopped it.

26All three of the appellant’s treating specialists have diagnosed the appellant with CI. In addition, the appellant’s wife has noticed that he has memory issues. Against this I have the appellant’s denial that he has any memory or cognitive issues.

27Considering the evidence as a whole, I accept the opinions of Drs. B., F., and G.M. and the appellant’s wife, over that of the appellant, that the appellant suffers from CI.

b. Is the appellant’s CI, if any, likely to significantly interfere with his ability to drive a vehicle safely?

28The Registrar has the burden of establishing that the appellant’s CI disorder is likely to significantly interfere with his ability to drive a motor vehicle safely. I find that the Registrar has met its burden.

29All three of the appellant’s treating specialists agree that he has CI. However, they disagree on its potential underlying cause, if any.

30Dr. B. initially thought that the appellant “possibly” had Lewy Body dementia and referred the appellant to Dr. F. for another opinion. Dr. F.’s conclusion, as per the appellant’s testimony, is that the appellant suffers from posterior cortical atrophy, or degeneration of the posterior part of the brain. Dr. G.M., as per his November 25, 2019 letter, disagrees with the clinical picture of an “atypical Alzheimer’s dementia with visual spatial difficulties suggesting occipital or posterior involvement”, and states that “visual spatial abilities appear to be preserved.” The posterior part of the brain is the main area of the brain responsible for the processing of visual information, including visuospatial perception and spatial attention.

31At the hearing, the appellant and his wife described the appellant’s visual problems over the past few years, including problems with the processing of visual information.

32The appellant’s wife described that it takes the appellant longer to do things than before and explained his difficulty performing certain tasks, such as putting a table together or fixing windows.

33Furthermore, the appellant described issues such as: trouble reading text despite the use of “cheater glasses” (i.e. over-the-counter glasses for reading); seeing double on occasion; disorientation to direction (“lost his bearings”) when he was a school bus driver (i.e. not knowing which direction to go at an intersection while driving, but only realizing the correct way to turn once he saw the school children); having seen what looked like an animal face on one occasion when he looked at a tree; and seeing “other things” that he can no longer remember.

34In response to his visual concerns, the appellant visited optometrist, Ms. M. on June 24, 2019. In her report, she states that the appellant passes the Registrar’s vision requirements without glasses on. The appellant indicated, however, that he is planning to get corrective lenses (i.e. glasses). Corrective lenses can correct or compensate for issues relating to the eyes themselves but cannot correct or compensate for issues arising from problems with the processing of visual information in the posterior part of the brain.

35Section 14(2)(a) of the Regulation allows the Registrar 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. Similarly, the Tribunal may take the CCMTA Standards into consideration, although they are not binding requirements.

36Although I am not bound by the CCMTA Standards, they provide guidance into CI and its relation to driving. 6.3 of the CCMTA Standards discusses “Cognitive impairment, dementia and adverse driving outcomes”. Specifically, it states:

1. Cognitive problems often have a direct effect upon fitness to drive and any indications of possible cognitive compromise of fitness to drive must not be neglected by clinicians.

2. Diagnosis of dementia alone is not sufficient to withdraw driving privileges.

3. Severe dementia is an absolute contraindication to driving.

4. No in-office test or battery of tests, including global cognitive screens such as MMSE or MoCA have sufficient sensitivity or specificity to be used as the sole determinant of driving fitness in all cases. However, abnormalities in these tests indicate a requirement for further testing.

5. Patients with dementia who are deemed fit to drive should be re-evaluated every 6 to 12 months or sooner, if indicated.

6. A clinician with doubts about a patient’s cognitive functioning and its effects upon driving should refer the patient for a FDA by an occupational therapist or directly to the licensing authority.

7. As with many disabling progressive diseases that lead to driving cessation, conversations regarding eventual retirement from driving should be held as early as possible.

37Furthermore, 6.5 of the CCMTA Standards (Compensation) states that “drivers with CI or dementia are not able to compensate for their functional impairment.”

38As previously discussed, the appellant has undergone numerous in-office cognitive tests or screens and two FDA assessments, the initial one on September 25, 2018 and the last one on October 15, 2019.

39The in-clinic assessment of the September 25, 2018 FDA report indicates visuospatial findings of “difficulty completing the copy design test of copying intersecting pentagons correctly and difficulty completing the clock drawing” and on UFOV^® (Useful Field of View test) he “scored in a category 5, indicating a HIGH risk”. As per the FDA report, the UFOV^® is a “standardized computer based cognitive assessment that evaluates essential competencies related to driving skills. Client’s results indicated that he demonstrated that he is experiencing central vision loss and slowed processing speed, difficulty with divided attention skills, and difficulty with selective attention skills.”

40The on-road assessment of the September 25, 2018 FDA report indicates “deficits in functional driving skills – driving not recommended”. Specifically, the appellant made critical errors during the on-road evaluation and was noted to have difficulty with information processing speed, decision making skills, visual perceptual skills, and divided attention skills. Furthermore, due to the nature and severity of the difficulties noted in the evaluation the appellant was noted not to be a candidate for lessons.

41Furthermore, in the summary section of the September 25, 2018 FDA report it states, “The skills and abilities shown by this client today indicate that there are medical related concerns that are affecting his ability to drive and there is foreseeable risk in this client continuing to do so.”

42The appellant’s second FDA was held on October 15, 2019, just over two months ago.

43The in-clinic assessment of the October 15, 2019 FDA report indicates visuospatial findings of concern including: MoCA 17/30 with score of 2/5 on the visuospatial section; Trail Making Test, Part A: 84.11 seconds, 0 errors (fail score due to age-adjusted length of time); Trail Making Test, Part B: >3 minutes (fail score due to age-adjusted length of time score); and Motor-Free Visual Perception Test (MVPT-R) 18/30 (terminated due to errors, fail score).

44The on-road assessment of the October 15, 2019 FDA report indicates “deficits in functional driving skills – driving not recommended”. Specifically, the report states that “the following driving errors were identified on road: wide turns, poor lane positioning (driving on left line), attempted to turn left from center lane before driving instructor assisted with cueing, unsafe highway merge and lane drifting on highway, unsafe left lane positioning where he was observed to turn into the wrong lane requiring driving instructor steering intervention, and trouble maintaining proper speed before driving instructor assisted with cueing. Based on the above findings, [the appellant] did not meet the minimum standard of safe and predictable driving. Continued driving is not recommended.”

45Furthermore, in the additional comments section of the October 15, 2019 FDA report it states, “[The appellant] scored below expected cognitive norms in clinic, low scores observed on visuospatial tests which manifested as critical errors on road.”

46At the hearing, the appellant described at length his impression of his recent performance on the on-road FDA. He explained that he was quite anxious during the assessment having not driven for 14 months and admitted to one wide turn only. He stated that he does not feel that he made any critical driving errors.

47At the hearing the appellant admitted that Dr. F. is against his return to driving.

48Dr. G.M. is currently supportive of the appellant in his bid to regain his driver’s licence. Having reviewed Dr. G.M.’s findings in light of the FDA results set out above, the appellant’s medical records and the appellant’s testimony, I do not find Dr. G.M.’s comments on the appellant’s ability to drive compelling.

49Dr. G.M., in his November 25, 2019 letter to Dr. H. (a walk-in clinic doctor in the appellant’s community) writes, “I had the benefit of seeing his response to sleep apnea treatment with significant improvement …”

50In the additional comments section of Dr. G.M.’s November 26, 2019 completed CA form he states, “This man has mild CI MoCA 23/30 memory loss only. Could be from sleep apnea only. Taking CPAP – good compliance. We are pursuing advance brain imaging – amyloid markers for definitive answer if there is pathology beyond sleep apnea. He appears quite good in terms for function and cognition. Driving has not been an issue.” Furthermore, Dr. G.M. indicates on the form that he is of the opinion that the appellant does not require an independent functional assessment.

51However, according the contents of the “binder” the appellant and his wife keep regarding his current medical conditions and appointments, the appellant was assessed by Dr. B.M. for obstructive sleep apnea (“OSA”) on January 18, 2019, was diagnosed with OSA, started on CPAP (a treatment for OSA) in April 2019, and had a follow-up appointment regarding his OSA in August 2019.

52Therefore, as per the above evidence, the appellant was already using and compliant with his CPAP prior to his initial consultation with Dr. G.M. in July 2019 and prior to his second FDA on October 15, 2019.

53Moreover, the appellant’s wife testified that she has not noticed a significant improvement in the appellant’s cognition since starting CPAP.

54Based on the above, it is my opinion on the balance of probabilities that Dr. G.M.’s statement regarding his benefit of seeing the appellant’s positive cognitive response to sleep apnea treatment with significant improvement, is incorrect. The appellant started using CPAP in April 2019, well before both his initial consultation and follow-up appointment with Dr. G.M.

55I acknowledge that Dr. G.M., as per his November 2019 letter and CA form, believes that: the appellant suffers from memory loss only; his visuospatial abilities appear to be preserved; he appears quite good in terms of function and cognition; he does not require another FDA; and driving has not been an issue.

56However, as per the 6.3 of the CCMTA Standards, “no in-office test or battery of tests…have sufficient sensitivity or specificity to be used as the sole determinant of driving fitness in all cases…abnormalities in these tests indicate a requirement for further testing.”

57The appellant has had further testing (i.e. FDA) done on two separate occasions, the last FDA being performed just over two months ago and approximately six weeks prior to the appellant’s November 2019 follow-up appointment with Dr. G.M.

58Both FDA reports indicate that driving safely is an issue for the appellant. Both FDA’s done at different approved assessment centres approximately one year apart, indicate that the appellant does not meet the standard for safe and predictable driving, is not a candidate for driving rehabilitation, has low scores documented on enhanced visuospatial or attention testing which manifest themselves as critical errors on the road, and that continued driving is not recommended.

59Driving is a privilege, not a right.

60While I understand the practical challenges that can result from a licence suspension, I must apply the provisions of the Act and Regulation, keeping in mind the objective of ensuring public road safety. I find that the appellant’s medical condition of CI is likely to significantly interfere with his ability to drive a vehicle safely, including both a G-class and class-B vehicle. In arriving at this conclusion, I have relied on the following:

a. No in-office test or battery of tests have sufficient sensitivity or specificity to be used as the sole determinant of driving fitness in all cases of CI.

b. The appellant started treatment for OSA prior to seeing Dr. G.M. and prior to his second FDA assessment on October 15, 2019.

c. The appellant and his wife describe a number of visual or visual processing difficulties over the past few years, despite passing the Registrar’s vision requirements in 2019 (i.e. no evidence of discernable eye disease).

d. Corrective lenses cannot correct or compensate for any potential visual issues arising from problems in the posterior part of the brain where visual information is processed.

e. The appellant has failed two FDA’s in 2018-2019, the last one being just over two months ago.

f. Both FDA’s indicated low scores on enhanced visuospatial or attention tests which manifested as critical errors on the road.

g. Neither FDA report indicated that the appellant is a candidate for driving rehabilitation.

h. Drivers with CI impairment are not able to compensate for their functional impairment.

61I acknowledge the burden that the loss of the appellant’s driver’s licence is having on him. While I understand the practical and financial challenges that can result from a driver’s licence suspension, I must apply the provisions of the HTA, keeping in mind the objective of ensuring road safety.

E. ORDER:

62For the reasons set out above, pursuant to subsection 50(2) of the Act, the Registrar’s decision to suspend the appellant’s driver’s licence is confirmed.

LICENCE APPEAL TRIBUNAL

________________________

Dr. Erica Weinberg, Member