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 pursuant to section 32(5)(b)(i) of the Act to change the Class of a Driver’s Licence.
Between:
M.J.
Appellant
and
Minister of Transportation
Respondent
DECISION AND ORDER
Adjudicators: Dr. Dimitri Louvish, Member Marisa Victor, Member
Appearances:
For the Appellant: Self-represented For the Respondent: Kyle Biel, Agent
Heard by Teleconference on: January 28, 2019
REASONS FOR DECISION AND ORDER
Overview
1The appellant, M.J., appeals to this Tribunal from the downgrade of his driver’s licence from a commercial licence to a Class-G licence due to a seizure he experienced in October 2016. The licence was downgraded pursuant to s.32(5)(b)(i) of the Highway Traffic Act (the Act).
2The appellant appeals on the basis that he only had one nocturnal seizure and that it was caused by his efforts to lose weight rapidly, together with his sleep apnea. He disputes that he has epilepsy. He has been seizure-free since the incident.
3The respondent is seeking a five-year seizure-free period before reinstating the commercial licence on the basis that the appellant suffers from epilepsy.
4For the reasons that follow, we allow the appeal on the basis that the respondent has failed to establish that the appellant has a medical condition that is likely to significantly interfere with his ability to drive a commercial vehicle safely.
ISSUES
5Is the appellant’s medical condition likely to significantly interfere with his ability to drive a commercial vehicle safely?
6To answer that question, we must determine whether the testimony and medical evidence shows that the appellant has epilepsy or is likely to continue to suffer from seizures.
LAW
7The Registrar has the burden of establishing, on a balance of probabilities, that the applicant has a medical condition likely to significantly interfere with his ability to drive a commercial vehicle safely.
8The Registrar has the power, under subparagraph 32(5)(b)(i) of the Act, to downgrade a driver’s commercial licence in accordance with prescribed requirements. Subsection 14(1)(a) of O. Reg. 340/94 (the Regulation) of the Act states that a holder of a driver’s licence must not suffer from any mental, emotional, nervous or physical condition or disability likely to significantly interfere with their ability to drive a motor vehicle of the applicable class safely.
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 Guidelines) when determining whether the requirements of s. 14(1) are met. The CCMTA Guidelines at s.17.6.12 state that a commercial driver who suffers from epilepsy can have their licence reinstated after a five-year seizure-free period.
10We may take the CCMTA Standards into consideration, although they are not binding on us.
EVIDEnCE & ANalysis
The Cause of the Appellant’s Seizure
11The appellant testified his seizure was caused by efforts to lose weight which he believes he took too far. Leading up to the seizure, he had successfully lost 20 lbs. in six weeks. His weight loss efforts included eating 1000 calories less per day than he needed, taking supplements, and spending 15 hours in the gym per week. He was taking synthetic melatonin, an over the counter fat burner supplement he had been taking for 10 weeks, and protein powders. He states that as a result of the supplements he was taking he was sweating a lot.
12The appellant testified that he was sleeping when he had a seizure, and his wife called 911. He was taken to the hospital but was discharged that same day and referred to a neurologist. He had EEG testing done which was reportedly normal. A few weeks later he was sent for a sleep-deprived EEG which came back abnormal. The neurologist then advised him that based on the EEG, he had epilepsy. He was then prescribed anti-seizure medication. In the following year, he was seen by a second neurologist who maintained the diagnosis of epilepsy, however it appears that was based on the previous diagnosis as no new testing was done. He was also followed by his family physician. His family physician submitted a letter supporting the appellant’s return to driving.
13The appellant states that after the EEG tests he had his CPAP prescription re-evaluated. It was then discovered that, at the time of the seizure, his prescription was only half the strength it should have been. The appellant states that his sleep apnea was first diagnosed by another neurologist due to an abnormal EEG and that the abnormalities seen on the EEG post-seizure were a result of his sleep apnea and not epilepsy. He provided some documentation that medically supports that sleep apnea produces an abnormal EEG reading.
14The appellant states that according to medical definitions, a diagnosis of epilepsy requires more than one seizure.
15He says that he believes his seizure was caused by his rapid weight loss and the supplements he was taking, together with an inadequate CPAP prescription. The appellant testified that he had explained his theory to his first neurologist, however, she advised him that she would not change the diagnosis due to liability. She stated that she had to make her decision based on the EEG report.
16The respondent submits that the appellant has been diagnosed with epilepsy by two neurologists, the one he saw first after the seizure who diagnosed him based on a sleep-deprived EEG, and then by a second neurologist who the appellant began to see at a later date. The diagnosis of epilepsy is noted in both epilepsy and seizure forms each neurologist submitted to the respondent. The respondent also relies on the appellant’s continuing prescription for anti-seizure medication as an indication he has epilepsy.
17We note that the epilepsy and seizure forms submitted by both neurologists contain some inconsistencies. In the form submitted by the first neurologist, she indicated the appellant had epilepsy and that she had seen an abnormal sleep-deprived EEG in the last 12 months. On the other hand, she indicated the provoking factor had stabilized. The second neurologist also indicated a diagnosis of epilepsy but did not order any EEGs or other independent tests to confirm the diagnosis. Contrary to a diagnosis of epilepsy, he also indicated that the provoking factor had resolved.
18We find that the appellant’s testimony supports a finding that the appellant is not suffering from epilepsy. The supplements causing the appellant to sweat were stimulants that likely caused dehydration. It is likely that the dehydration, stimulants, weight loss and an ineffective CPAP prescription led to his one nocturnal seizure. Further, we agree with the appellant that the medical definition of epilepsy is that of a condition characterized by two or more seizures that do not have a provoking cause. In addition, treating epilepsy normally requires some trial and error to determine the appropriate medication required to prevent further seizures. In this case, however, the appellant went several weeks without medication, during which time he completed the two EEG studies. He was then was placed on medication. He did not suffer any seizures during the time he was unmedicated. Further, there are no copies of the EEG reports, no medical notes and no other records from the neurologists that provide any further support for an epilepsy diagnosis or clarify their inconsistent epilepsy and seizure forms.
19We therefore do not accept the diagnoses of epilepsy because epilepsy is defined as two or more seizures that do not have a provoking cause, and in this case there was only one seizure and the neurologists noted that the provoking cause had resolved. This is inconsistent with a diagnosis of epilepsy. We conclude that the appellant had a provoked seizure, and that the diagnosis of epilepsy indicated on the epilepsy and seizure form is incorrect.
20The question remains as to whether the appellant’s condition has resolved and when it is appropriate for the appellant to resume commercial driving.
The Application of the CCMTA Guidelines
21The CCMTA Guidelines prescribe standards for when a driver can resume driving following a seizure. The standards vary according to the cause of the seizure, the type of seizure, the diagnosis and whether the driver is a commercial or non-commercial driver.
22The respondent relies on the CCMTA Guideline described in 17.6.12 which states that a commercial driver suffering from epilepsy must be seizure-free for five years before resuming driving. However, as explained above, we have already determined that the appellant does not suffer from epilepsy, but instead suffered a provoked seizure. Therefore, s. 17.6.12 is not the appropriate section of the CCMTA Guidelines to rely on.
23We find that the more applicable section of the CCMTA Guidelines is found under s. 17.6.2 which describes the standard for a commercial driver who suffers a provoked seizure with no structural brain abnormality. This section states that a driver is eligible for a licence if they have undergone a neurological assessment, epilepsy is not diagnosed, the provoking factor has resolved, and the treating physician indicates that further seizures are unlikely.
24The appellant has met the eligibility requirements of s. 17.6.2:
a. He has undergone neurological assessments:
b. As stated above, we find that the diagnosis of epilepsy is incorrect, therefore we are assessing him as not diagnosed with epilepsy;
c. The provoking factor has resolved. We know this through the appellant’s testimony that he has discontinued all weight loss supplements, extreme dieting and now has the appropriate CPAP prescription. Both neurologists’ epilepsy and seizure forms also indicated that the provoking factor has resolved; and
d. The appellant’s family physician, who the appellant states is aware that he is a commercial driver, submitted correspondence requesting the reinstatement of the appellant’s commercial driver’s licence.
25We find that the appellant meets the criteria for re-licensing as a commercial driver under the CCMTA Guidelines. He does not have a condition likely to significantly interfere with his ability to drive safely as the provoking factor that caused his seizure has resolved.
CONCLUSION
26We do not find that the appellant suffers from a medical condition likely to significantly interfere with his ability to drive a commercial vehicle safely.
ORDER
27For the reasons set out above, pursuant to subsection 50(2) of the HTA, the Registrar’s decision to change the class of the Appellant’s driver’s licence is set aside.
LICENCE APPEAL TRIBUNAL
_________________________
Dimitri Louvish, M.D.
_________________________
Marisa Victor
Released: March 6, 2019