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 to change the class of a driver’s licence under subparagraph 32(5)(b)(i) of the Act
Between:
J.T.
Appellant
and
Minister of Transportation
Respondent
DECISION AND ORDER
Panel: Erica Weinberg, M.D., Member Avril A. Farlam, Vice-Chair
Appearances:
For the Appellant: J.T., Self-represented
For the Respondent: Sonia De Santis, Agent
Heard by teleconference: February 19, 2019
REASONS FOR DECISION AND ORDER
Overview
1A teleconference hearing was held February 19, 2019 to consider the appellant’s appeal of the downgrade of the appellant’s Class AZ driver’s licence to a Class G licence on January 12, 2018. The decision to downgrade the appellant’s licence was made by the Minister of Transportation (“Minister” or “respondent”) under s. 32(5)(b)(i) of the Highway Traffic Act, R.S.O. 1990, c. H.8 following receipt of a cardiovascular medical condition report. The appellant appeals the Minister’s decision.
2The hearing was originally scheduled to proceed on December 19, 2018. On December 19, 2018 the appellant requested an adjournment of the hearing in order to have his doctor respond in writing to the respondent’s correspondence dated December 19, 2018. An adjournment was granted. The appellant sent to the respondent’s agent a report from Dr. G. dated October 3, 2018, which the respondent’s agent said was not reviewed by the respondent’s medical advisory team or responded to by the respondent by the time of the hearing on February 19, 2019. Despite this, both parties confirmed that they wished to proceed with the hearing on February 19, 2019 and with the agreement of both parties the hearing proceeded.
ISSUE
3The issue in this appeal is whether the appellant has a medical condition, specifically cardiovascular condition, likely to significantly interfere with his ability to drive a commercial motor vehicle safely. In order to answer that question, we will address the following issues:
(a) Does the appellant have a cardiovascular condition?
(b) Is the appellant’s cardiovascular condition, if any, likely to significantly interfere with his ability to drive a commercial motor vehicle safely?
C. CONCLUSION:
4We find that the appellant has a medical condition, specifically cardiovascular condition, which is likely to significantly interfere with his ability to drive a commercial motor vehicle safely. Accordingly, we confirm the Minister’s decision to change the class of the appellant’s driver’s licence.
LAW
5The Minister has the authority to change the class of a driver’s licence under s. 32(5)(b)(i) of the HTA which states:
“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 regulations, 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
6The Minister’s decision under s. 32(5)(b)(i) is to be made in accordance with the examinations that the Minister may require and other prescribed requirements.
7One of the prescribed requirements is set out in s. 14(1) of O. Reg. 340/94 (“Regulation”) which 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;…”
8In determining whether a person meets that requirement, 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.
9Section 14(2)(a) of the Regulation allows the Minister of Transportation to consider the Canadian Council of Motor Transport Administrators Medical Standards for Drivers (“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.
10Subsection 50(1) of the HTA and s. 25.1 of the Regulation provide a right to appeal a decision made by the Minister under s. 32(5)(b)(i) to the Tribunal.
11The Minister has the burden of establishing the ground for changing the class of a driver’s 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 Minister.
EVIDENCE AND ANALYSIS
(a) Does the appellant have a cardiovascular condition?
12As set out below, we find that the appellant has a cardiovascular condition which is likely to significantly interfere with his ability to drive a commercial motor vehicle safely. Accordingly, we confirm the Minister’s decision to change the class of the appellant’s driver’s licence.
13The Registrar filed a medical report dated August 1, 2014 diagnosing the appellant with cardiovascular disease, metabolic and “other disease”. Other reports in 2017 confirm advanced bladder cancer and liver cirrhosis.
14An echocardiogram from April 27, 2017, interpreted by specialist Dr. F., reveals significant heart disease/ abnormalities which include, but are not limited to: a new diagnosis of atrial fibrillation (“AF”) - a rapid heart rate/arrhythmia which can increase the risk of stroke; cardiomyopathy - a change in the size, strength and/or flexibility in the heart muscle (which is known to reduce the amount of blood being pumped out of the heart, and may lead to congestive heart failure, and AF), and some abnormalities of the heart valves (aortic stenosis “AS” – narrowing of the aortic valve, and mitral and tricuspid regurgitation – the backward leakage of blood). Dr. F.’s report goes on to state that compared to a previous study in 2016: the ability of the left side of the heart to pump blood out (left ventricular “LV” systolic function) has deteriorated (ejection fraction, “EF”, now 36% - i.e. worsening heart failure); the right side of the heart has increased in size (right atrium, right ventricle, “RV”) and the RV is not functioning properly. Dr. F. diagnoses some features of hypertensive heart disease, and notes “…is BP well controlled? RV function (“RVF”) deteriorating, decreasing RSVP (RVF) rather worrying. Query element of ETOH (alcohol) related cardiomyopathy.”
15The recommendation of the Registrar’s medical advisory committee in October, 2017 was that the appellant was not eligible for a commercial class drivers licence because of “large number of comorbidities, mild AS, AL & MR (valve abnormalities), evidence of progressive LV and RV dysfunction, most recent EF is 36, importantly he has AF but has not been anticoagulated because of increased risk of bleeding, not on standard therapy for HF (heart failure).” As a result the appellant’s licence was downgraded to a G class licence on January 12, 2018.
16The appellant had a subsequent echocardiogram on April 10, 2018. Dr. F.’s preliminary report, dated April 10, 2018, notes numerous cardiac abnormalities including: AF, moderate AS, moderate LV systolic dysfunction, EF=37% (minimal increase/improvement in pumping of blood out of heart from 2017 EF of 36%), mild RV systolic dysfunction, severe concentric LV hypertrophy, mild mitral and mild tricuspid regurgitation, dilated aortic root and ascending aorta; …compared to the previous study … 2017, AF is noted, the left and right ventricular size is slightly smaller and tricuspid regurgitation is reduced.
17In a Medical Report submitted dated June 6, 2017, Dr. B reported that the appellant’s cardiac conditions included AS, atherosclerotic heart disease/left bundle branch block (“LBBB”). LBBB is an electrical conduction disturbance within the heart which can be seen on an electrocardiogram, and which causes the activation of the LV to be delayed. LBBB may contribute to heart failure.
18In a commercial driver cardiovascular assessment (“CDCA”) dated June 18, 2018, Dr. B. reported that the appellant’s medical history and present condition included coronary artery disease, heart valve disease (AS), an EF of 37%, an arrhythmia (AF), and conduction disturbance (known LBBB, as above). In Section C of the CDCA – Arrhythmia or Conduction Disturbance, Dr. B did not fill in that the appellant has known AF, plus the appellant’s CHAD2 score and whether or not the appellant was anticoagulated for his AF.
19Furthermore, in the June 18, 2018 assessment Dr. B. confirmed medication has been prescribed and the regime is being adhered to. Dr. B. assessed the appellant as NYHA Class II, appellant’s LV EF as 35-50% in the last three months as assessed by echocardiographic and diagnosed LBBB. The NYHA classification is widely accepted and known as a simple, clinical measure for assessing the degree of heart failure. As per the assessment form, NYHA Class II implies, “slight limitation of physical activity, comfortable at rest or during light physical activity”.
20In a revised CDCA dated August 1, 2018, Dr. B. provided the additional information that appellant’s aortic valve area (“AVA”) is >1.0 cm² - an acceptable level. Section C was not changed in the revised CDCA form. In an additional CDCA dated October 24, 2018, Dr. B. reported that appellant’s AVA >1.0 cm², diagnosed LBBB, and again assessed the appellant as NYHA Class II. Once again, Dr. B. did not fully fill in Section C of the form.
21The appellant submitted the letter of Dr. G., his liver specialist, dated October 3, 2018 who reported that appellant’s liver cirrhosis is stable and he has not required any paracentesis (tapping of the abdomen for fluid) for many months, his (bladder) cancer is now in remission and he has been abstinent from alcohol. The report of Dr. Gl., the appellant’s radiation oncologist, dated January 5, 2018 also confirms that the appellant completed his cancer therapy and there is no evidence of disease.
22The appellant testified that his health has greatly improved since his cancer therapy ended in 2017. He stated that he has recovered from cancer, substantially stopped drinking alcohol (except for a glass of wine at Christmas), continues to be treated by his physicians as recommended, takes his prescribed medication and exercises at a gym. Appellant testified that he has not seen his cardiologist in more than one year. Although he is retired, the appellant said he is a volunteer fire fighter in his community and would like to be able to drive the fire truck which he can no longer do without his commercial class driver’s licence. Currently he has to follow the fire truck in his personal vehicle. The appellant also testified that the letters and reports from Dr. B. dated October 16, 2017, June 18, 2018, August 1, 2018, and January 22, 2019 show his health has improved to the point where he should be able to have his commercial licence reinstated.
23The respondent submits that, as set out in a letter sent to the appellant dated December 19, 2018, the appellant should not be allowed to drive a commercial motor vehicle at this time because of his reported multiple comorbidities including liver cirrhosis with ascites, cancer, continued alcohol use (until 2 months ago), his history of alcohol related cardiomyopathy and type 2 diabetes. We do not accept this submission.
24The decision to change the class of licence was stated in a letter to the appellant dated January 12, 2018 to be due to his cardiovascular disease. This appeal is based on the January 12, 2018 decision to change the class of licence and the reason given at that time was limited to cardiovascular disease. The issue of comorbidities was not raised until some eleven months after the Minister’s decision to change the class of the appellant’s driver’s licence. Further, based on the report of appellant’s specialist Dr. G. dated October 3, 2018, the appellant’s liver cirrhosis (secondary to alcohol and fatty liver) is stable and he has not required any paracentesis for many months (indicating there is currently no/minimal ascites), his (bladder) cancer is now in remission and he has been abstinent from alcohol for almost 10 months. The report of Dr. Gl., the appellant’s radiation oncologist, dated January 5, 2018 also confirms that the appellant completed his cancer therapy and there is no evidence of disease. The appellant testified that he stopped alcohol “cold turkey” after his diagnosis of liver cirrhosis and he had a single glass of wine at Christmas, which he had discussed with Dr. G. at his previous appointment. We find that the appellant’s comorbidities are not the medical conditions likely to significantly interfere with the appellant’s ability to drive a commercial motor vehicle safely.
25We find that the appellant’s doctors are better qualified to assess and objectively report on the appellant’s medical condition than the appellant. In the CDCA dated June 18, 2018 Dr. B. reported that the appellant’s medical history and present condition included coronary artery disease, heart valve disease and arrhythmia and/or conduction disturbance. This diagnosis remained unchanged in Dr. B.’s revised commercial driver cardiovascular assessment dated August 1, 2018 and in Dr. B.’s commercial driver cardiovascular assessment dated October 24, 2018. It is clear based on the reports of Dr. B. and echocardiographic assessments that on the balance of probabilities the appellant continues to have a medical condition, specifically a cardiovascular condition.
(b) Is the appellant’s cardiovascular condition likely to significantly interfere with his ability to drive a commercial motor vehicle safely?
26We find that the appellant’s cardiovascular condition is likely to significantly interfere with his ability to drive a commercial motor vehicle safely. Therefore, we confirm the Minister’s decision to change the class of the appellant’s driver’s licence.
27The respondent submits that the appellant’s cardiovascular condition is severe enough that he should not be permitted to drive a commercial motor vehicle at this time and relies on the guidelines contained in the CCMTA Medical Standards for Drivers (the “Standards”) with respect to cardiovascular disease and disorders – commercial drivers (chapter 3) and particularly Guidelines 3.6.22, 3.6.36 and 3.6.37 of the Standards.
28Guideline 3.6.22 of the Standards sets out eligibility for a licence of commercial drivers diagnosed with atrioventricular (AV) or intraventricular block:
(b) Commercial drivers with
(i) Left bundle branch block (LBBB)
(ii) Bifascicular block
(iii) Second degree AV block/Mobitz I, or
(iv) First degree AV block + bifascicular block are eligible for a licence if
They have had no associated impaired level of consciousness, and
The conditions for maintaining a licence are met
29Guideline 3.6.36 of the Standards states that commercial drivers with medically treated aortic stenosis or aortic sclerosis are eligible for a licence if:
they are assessed as NYHA Class I
their condition is asymptomatic
they have an aortic valve area (AVA) > 1.0 cm²
they have a left ventricle ejection fraction (LVEF) >35%
they have had a detailed assessment by a cardiologist, including an assessment for risk of syncope, and
the conditions for maintaining a licence are met
30Guideline 3.6.37 of the Standards states that commercial drivers with medically treated aortic or mitral regurgitation or mitral stenosis are eligible for a licence if:
they are assessed as NYHA Class I
they have a left ventricle ejection fraction (LVEF) >35%
they have had no episodes of impaired level of consciousness
31Although the Tribunal may take the CCMTA Standards into consideration, they are not binding requirements.
32Based on Guideline 3.6.22 (b) of the Standards, and taking the appellant’s diagnosed LBBB into consideration, the appellant would be eligible for a commercial driver’s licence if he has not had any associated impaired level of consciousness and if the conditions for maintaining a licence are met. We find that the appellant has not had associated impaired level of consciousness; however we need to further consider any other cardiovascular conditions that may affect his ability to drive safely.
33We find that the appellant is not eligible for a commercial licence under Guidelines 3.6.36 and 3.6.37 of the Standards. Both these Standards state that (among other requirements) that commercial drivers are eligible for a licence if they are assessed as NYHA Class I. In all three CDCAs Dr. B. assessed the appellant as NYHA Class II, implying slight limitation in physical activity (as opposed to no limitation). This limitation in physical activity is consistent with appellant’s currently known EF of 37%. As per Chapter 3 of the CCMTA Standards, healthy individuals generally have an LVEF >55%.
34In a 2014 CDCA form submitted as evidence, the appellant’s previous family physician of over 25 years notes: hypertension (high blood pressure), coronary artery disease, LBBB, no arrhythmia, a presumed previous heart attack based on echocardiogram and persantine studies, an EF of 45-54% (based on echocardiogram of October 2013), and was classified as NYHA Class I (no limitation of physical activity).
35Thus, by 2014, an EF of 45-54% implies that the appellant already had a small reduction in his ability to pump blood out of his heart (mild heart failure) by echocardiogram, but did not clinically have symptoms of heart failure as per the NYHA Class I definition on the CDCA forms.
36However, it is clear that by 2017 onwards, that the appellant has a significant reduction in the ability to pump blood out of his heart (EF 36-37%, significant heart failure), and that by his clinical classification as NYHA II, he does have clinical symptoms of heart failure.
37We also note that as of February 19, 2019 the appellant had not had a recent, detailed assessment by his cardiologist, including an assessment for risk of syncope. No detailed assessments by his cardiologist were submitted as evidence.
38We do not accept the appellant’s submission that the letters/reports from Dr. B. dated October 16, 2017, June 18, 2018, August 1, 2018, and January 22, 2019 show his health has improved to the point where he should be able to have his commercial licence reinstated. In all three of the CDCAs, Dr. B. assessed the appellant as NYHA Class II. Dr. B.’s letter dated October 16, 2017 in which he states “I am not aware of any functional impairments that would restrict his ability to drive” does not refer to the driving of a commercial vehicle. This letter is now outdated and Dr. B.’s opinion is more specifically stated in the three CDCAs he completed in 2018 after echocardiographic testing had been done. Dr. B.’s letter dated January 22, 2019 does not change the information in the three reports he completed in 2018 but instead Dr. B. reconfirms “…The words that you have underlined were accurate medical diagnoses or descriptions…” Further, in the January 22, 2019 Dr. B. does not express any opinion on appellant’s ability to drive a commercial motor vehicle safely.
39We accept the evidence of the appellant that he has recovered from cancer, substantially stopped drinking alcohol, continues to be treated by his physicians as recommended, takes his prescribed medication, exercises at a gym and feels that his overall health is much improved. We also accept that, as per his 2018 echocardiogram there currently have been some small improvements in his cardiovascular health.
40However, as per the evidence presented, the appellant has not provided a detailed assessment of his risk of sudden incapacitation/episodic impairment from his cardiac conditions, including AF, AS, and heart failure. As per the registrar’s medical advisory committee’s documented comments in October 2017, the appellant is not on standard heart failure therapy, his AF without anticoagulation increases the risk of a disabling stroke, and his risk of a sudden event far exceeds 1%.
41We note that as of February 19, 2019 the preceding statement remains valid. Thus we feel that the appellant’s risk of a sudden event/episodic impairment, particularly while under stress driving a fire truck, or any commercial vehicle, is too high to put his coworkers and/or public at risk.
We find on the balance of probabilities that that the appellant has a cardiovascular condition which is likely to significantly interfere with his ability to drive a commercial motor vehicle safely at this time
ORDER
42For the reasons set out above, pursuant to subsection 50(1) of the HTA, we confirm the Minister’s decision to change the class of the appellant’s driver’s licence from Class AZ to Class G.
LICENCE APPEAL TRIBUNAL
Erica Weinberg, M.D., Member
Avril A. Farlam, Vice-Chair
Released: March 27, 2019