K.P. v. Registrar of Motor Vehicles, 2019 CanLII 37528

Date: 2019-04-30

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:

K.P.

Appellant

and

Registrar of Motor Vehicles

Respondent

DECISION AND ORDER

Panel: Dr. Erica Weinberg, Member

Appearances:

For the Appellant: K.P., self-represented

For the Respondent: Kyle Biel, agent

Heard by Teleconference: April 18, 2019

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 “Act”).

2The appellant’s current family doctor, Dr. R., submitted an unsolicited Medical Condition Report to the Registrar on March 19, 2018, citing heart disease with pre-syncope/syncope/arrhythmia, and diabetes (“DM”) or hypoglycemia – uncontrolled.

3On March 31, 2018, the Registrar suspended the appellant’s driver’s licence for medical reasons under s. 47(1) of the Act.

4Following the suspension of the appellant’s driver’s licence, Dr. R. and the appellant’s eye specialist submitted numerous medical reports, letters, and completed forms to the Registrar, describing the appellant’s other medical conditions of potential concern including: chronic kidney disease, diabetic peripheral neuropathy of the feet, eye/vision conditions (cataracts, diabetic retinopathy, and macular degeneration), other cardiovascular/heart issues, and a chronic musculoskeletal (“MSK”) condition, notably osteoarthritis (“OA”) of the cervical spine (“C-spine”)/neck.

5By July 2018, the Registrar established that the appellant’s currently known medical conditions would not put any Occupational Therapist (“OT”) or driving instructor involved in a functional assessment (“FA”) at any undue risk of harm.

6By letter dated July 3, 2018 the Registrar informed the appellant that he required a satisfactory driving evaluation (FA) from a rehabilitation centre, as per Dr. R.’s indication on the appellant’s completed MSK Condition/Motor Function Ability Impairment form.

7On December 1, 2018, the appellant had a FA at an approved FA centre. The position of the examiners present was that there were deficits in the appellant’s functional driving skills and that driving is not recommended.

8Dr. R., after finding out that the appellant did not pass his FA, informed the Registrar that the appellant had been diagnosed with mild cognitive impairment (“CI”) (dementia), in October 2018 by an in-office test.

9The appellant now appeals his suspension on the basis that: “he can drive as good as ever”; his “driving test was perfect”; he “passed with flying colours”; the examiners “were biased by reading Dr. R.’s reports beforehand”; and “Dr. R.’s reports exaggerated everything”.

10For the reasons set out below, I find that the appellant suffers from CI to an extent that is likely to significantly interfere with his ability to drive safely.

11For these reasons, I confirm the Registrar’s decision to suspend the appellant’s driver’s licence.

ISSUES

12The issue in this appeal is whether the appellant suffers from any mental, emotional, nervous or physical condition or disability that is likely to significantly interfere with his ability to drive safely.

13As confirmed by the respondent at the hearing, the Registrar is no longer concerned about the appellant’s: DM, diabetic peripheral neuropathy, cardiovascular/heart disease, chronic kidney disease, and vision, including the effect of the aforementioned medical conditions on the ability of the appellant to drive safely.

14Rather, the only issues that the Registrar is concerned with in this appeal are:

1. Whether the appellant suffers from a chronic MSK condition, notably OA of his C-spine/neck, to an extent that is likely to significantly interfere with his ability to drive safely.

2. Whether the appellant suffers from CI to an extent that is likely to significantly interfere with his ability to drive safely.

15To answer this question, I will address the following issues:

1. Does the appellant have one of the noted medical conditions?

a. Is the appellant suffering from the chronic MSK condition, OA of the C-spine/neck?

b. Is the appellant suffering from CI?

2. If the appellant has one or both of these medical conditions, is either likely to significantly interfere with his ability to drive safely?

LAW

16The Registrar has the power under s. 47(1) of the HTA to suspend or cancel a driver’s licence for any of the grounds listed in paragraphs (d), (e), (f) or (g) of that section. Paragraph (g) states that a licence may be suspended for “any other sufficient reason not referred to in clause (d), (e) or (f).”

17One sufficient reason to suspend a driver’s licence under s. 47(1)(g) of the HTA is that the driver suffers from a medical condition or addiction likely to significantly interfere with his or her ability to drive safely. Subsection 14(1)(a) of O. Reg. 340/94 (the “Regulation”) under the HTA 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;

18Section 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.

19Under s. 14(2)(b) of the Regulation, the Minister may also require a driver to provide satisfactory evidence that he or she is able to drive safely. The Tribunal may consider whether a driver has complied with such a request.

20The Registrar has the burden of establishing the ground 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.

EVIDENCE AND ANALYSIS

Issue 1: Does the appellant have one of the noted medical conditions?

a. Does the appellant suffer from the chronic MSK condition, OA of the C-spine/neck?

21I find that the evidence presented establishes that the appellant suffers from the chronic MSK condition, OA of the C-spine/neck.

22A MSK Condition/Motor Function Ability Impairment form, completed by Dr. R. on May 1, 2018, indicates that the appellant suffers from OA of the C-spine causing decreased rotation of the neck. Furthermore, Dr. R. stated that: this condition is permanent; there is evidence of loss of movement or numbness; it is a significant physical condition that may impair the patient’s ability to operate a vehicle; and she recommends a FA (i.e. a comprehensive in-clinic and on-road assessment conducted by an OT and licenced driving instructor).

23The appellant testified that he does have a “stiff neck”, but did not use the word OA.

24Based on the aforementioned evidence, I find that the appellant suffers from the chronic MSK condition of OA of the C-spine/neck.

b. Does the appellant suffer from CI?

25I find that the evidence presented establishes that the appellant suffers from CI.

26In Section 2 – Medical History of the completed Functional Driving Assessment form (“FDA form”) entered into evidence, the diagnoses listed are: “DM – Type 2 and ?CI”.

27The in-clinic section of the completed FDA form, under “Assessment Findings” -“Cognitive Assessment”, states that the appellant failed 75% of the cognitive assessment.

28Furthermore, in a letter from Dr. R. to the Registrar dated March 29, 2019, Dr. R. states: “…since filling out the initial report to the Ministry…Mr. (K.) P. has been diagnosed with early and mild cognitive decline (“MOCA” 22/30 in October 2018)”.

29As per the CCMTA Standards, the MOCA (Montreal Cognitive Assessment) is designed to assess cognitive functions.

30Under the Statuatory Powers Procedure Act, (“SPPA”) R.S.O. 1990, c. S.22, s. 16, a tribunal may, in making its decision in any proceeding,

a. take notice of facts that may be judicially noticed; and

b. take notice of any generally recognized scientific or technical facts, information or opinions within its scientific or specialized knowledge.

31As a licensed and duly qualified physician in the province of Ontario with a general practice licence, I have, as per SPPA s. 16(b), the qualifications and knowledge that a MOCA of 26 or higher is generally considered normal. Likewise, a score of 22/30 is thought to represent mild CI, as stated by Dr. R.

32At the hearing, the appellant did not answer affirmatively when questioned if he suffered from CI/dementia. However, when further questioned, the appellant stated that he has “forgetfulness”. In addition, the appellant’s wife stated that “things change with age physically and mentally”.

33Based on a comprehensive consideration of the evidence before me, I find that the appellant suffers from CI.

34Now that I have found that the appellant suffers from both OA of the C-spine/neck and CI, I must consider if either of these medical conditions is likely to significantly interfere with his ability to drive safely.

Issue 2: If the appellant has one or both of these medical conditions, is either likely to significantly interfere with his ability to drive safely?

a. Is the appellant’s OA of the C-spine/neck likely to significantly interfere with his ability to drive safely?

35I find from the evidence presented that the appellant’s OA of the C-spine/neck is not likely to significantly interfere with his ability to drive safely.

36The Respondent referred to Chapter 11 of the CCMTA Standards, and specifically to 11.6.2 “Chronic MSK condition” as the basis for their concern. This standard states that all drivers are eligible for a licence if:

• The driver retains sufficient movement and strength to perform the functions necessary for driving

• Pain associated with the condition, or the drugs used to treat the condition, do not adversely affect ability to drive safely

• Where required, a road test or other FA indicates ability to compensate for any loss of functional ability required for driving, and

• The conditions for maintaining a licence are met

37Dr. R.’s March 29, 2019 letter to the Registrar states that “Mr. (K.) P. does have a restricted range of motion of the C-spine affecting head and neck movements. However, we have talked about ways to compensate for this while driving including leaning forward to use side mirrors to check blind spots.”

38At the hearing, the appellant testified that his stiff neck does not affect his side vision.

39Section 11.4 of the CCMTA Standards refers to MSK conditions and their effect on the functional ability to drive. Specifically this section states that MSK conditions may cause a persistent impairment of motor functions necessary for driving, and that these functional abilities affected may include: muscular strength, range of motion, flexion and extension of upper and lower extremities, joint mobility and trunk and neck mobility.

40The completed FDA form entered into evidence, in Section 2 under “Assessment Findings”, and “Physical Assessment” states: neck/trunk rotation WNL (within normal limits). U/E (upper extremity) and L/E (lower extremity) ROM (range of motion) WNL and strength WNL. That is, as per the OT’s assessment, the appellant’s neck/trunk/upper and lower extremity rotation, and his upper extremity and lower extremity strength are all within normal limits. The OT, doing this physical assessment was aware the appellant used a cane for ambulation.

41Furthermore, in the completed FDA form entered into evidence, in Section 2 under “Assessment Findings”, and “On Road Assessment” the examiner states: inadequate check for safety before a lane change x3; rolling stop x4; straddled lanes; drove too close to the centre line; drove too close to the curb and parked vehicles; wide turn (right) x2; wide turn (left) x1; no awareness of a stop sign, failed to stop; examiner intervened. Road test aborted due to safety concerns. Driving cessation is strongly recommended.” In my opinion, none of the aforementioned on road safety concerns are likely, on a balance of probabilities, due to or caused by the appellant’s MSK condition of OA of the C-spine/neck or his known use of a cane for ambulation.

42Thus, I find based on the OT’s physical assessment recorded in the FDA form, and my opinion that none of the on road safety concerns noted in the FDA form are likely, on a balance of probabilities, due to or caused by the appellant’s MSK condition of OA of the C-spine/neck (and/or his use of a cane for ambulation), that the appellant fulfills the requirements of 11.6.2 of the CCMTA Standards.

43Thus, although the appellant suffers from the medical condition of OA of the C-spine/neck, it is my opinion that this medical condition is not likely, on a balance of probabilities, to significantly interfere with his ability to drive a vehicle safely.

b. Is the appellant’s CI likely to significantly interfere with his ability to drive safely?

44I find that the appellant’s CI is likely, on a balance of probabilities, to significantly interfere with his ability to drive safely.

45The appellant testified that he is as good a driver as ever, and that he feels he can drive perfectly well as he has no accidents, tickets, or convictions on his record. In addition he stated that he is a good mechanic and was a private helicopter pilot for 40 years. He testified that everything Dr. R. wrote about him was exaggerated, he is in perfect health, and that the FDA people failed him on purpose based on Dr. R.’s report. Furthermore, the appellant stated that he feels that he passed the on road portion of the FDA with flying colours, that the stop sign was a trick, and that everything in the FDA report is false except that he does use a cane for ambulation.

46Dr. R.’s letter of March 29, 2019, written nearly three months after the appellant’s FA, states, “…Mr. P has been diagnosed with early and mild cognitive decline (MOCA 22/30 in October 2018). At this point, I do not believe that his cognition would impact his driving ability in a negative way, although this may of course change in the future.”

47Although I am not bound by the CCMTA Standards, I note that section 6.3 of the CCMTA Standards states that:

1. Cognitive problems often have a direct effect upon fitness to drive and any indications of possible cognitive compromises 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 functional driving assessment by an OT 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.

48Furthermore, I note that section 6.5 of the CCMTA Standards states that drivers with CI or dementia are not able to compensate for their functional impairment.

49The respondent referred to section 6.6 of the CCMTA Standards, “Guidelines for assessment” and specifically to section 6.6.1 as the basis for their concern. Section 6.6.1 of the CCMTA Standards states that individuals with CI are eligible for a licence if:

• Complete medical assessment indicates cognitive functions necessary for driving are not impaired, or

• Where required, FDA shows condition does not affect ability to drive

• Conditions for maintaining a licence are met

50Furthermore, the respondent referred to the appellant failing 75% of the in-class cognitive assessment as per the FDA form (paragraph 27), and how this result was congruent to the findings in the appellant’s on road assessment.

51As per my qualifications and knowledge, the MOCA done by Dr. R. in her office contains elements that test for visuospatial (e.g. depth perception, spatial awareness), executive function (e.g. the ability to organize, plan and carry out a set of tasks), and task switching (e.g. cognitive flexibility in switching attention between competing sets of stimuli), all of which are important when considering cognitive issues that are necessary for safe driving/may impact road performance. However, the MOCA does not include measures of motor processing speed (e.g. setting time limits/time cut-offs to the measurements of executive function and task switching).

52Furthermore, I have before me only the appellant’s total MOCA score (22/30), not his score on the individual sections of the MOCA. For example, I do not know how the appellant scored on the executive function/visuospatial/task switching/attention sections, as opposed to the sections in the MOCA on naming, memory, language, abstraction, delayed recall, and orientation.

53As per my qualifications and knowledge, in-class cognitive testing done by an OT at a FA, is a more comprehensive cognitive assessment which looks at difficulties in cognition, perception and processing abilities, including measures of motor processing/task switching speed. This more in depth testing can reveal cognitive difficulties that may impact road performance to a greater extent than the single in-office cognitive test such as the MOCA. In addition, based on my knowledge, cognitive testing done by an OT at a FA is in general, more congruent with on road functional assessments.

54Thus, based on the consideration of both completed cognitive tests before me, plus their potential ability to reflect and/or predict the impact of cognition (CI) on road performance, I prefer the results of the in-class cognitive testing done by the OT at the FA over the in-office testing done by Dr. R., the former which indicated that the appellant only passed 25% of the cognitive testing.

55As per my knowledge, performance-based, comprehensive on road driving evaluation remains the most accurate method of determining driving fitness status.

56I note as per the written evidence, the appellant failed the on road FDA on December 1, 2018. In fact the FDA report states that the road test was aborted due to safety concerns. In addition, the FDA report specifically states that the appellant has deficits in functional driving skills, and driving is not recommended. Furthermore, the appellant was not recommended as a candidate for rehabilitation.

57I appreciate that the appellant feels that he drives as “good as ever” and that he “passed the test with flying colours”.

58However, the FDA on road report submitted as evidence states: inadequate check for safety before a lane change x3; rolling stop x4; straddled lanes; drove too close to the centre line; drove too close to the curb and parked vehicles; wide turn (right) x2; wide turn (left) x1; no awareness of a stop sign, failed to stop; examiner intervened. Road test aborted due to safety concerns. Driving cessation is strongly recommended.”

59Furthermore, it is my opinion that the appellant lacks insight into his CI, his driving capabilities, and many of his other medical conditions (“my health is perfect”).

60I also acknowledge that Dr. R. believes that the appellant’s current cognition would not impact his driving ability in a negative way at this time.

61However, as per CCMTA standard 6.3, no in-office test or battery of tests, including global cognitive screens such MOCA, have sufficient sensitivity or specificity to be used as the sole determinant of driving fitness in all cases, and abnormalities in these tests indicate a requirement for further testing (i.e. a formal FA).

62The appellant did go on to further testing, although Dr. R.’s initial premise for this further testing was for the appellant’s chronic MSK condition of OA of the C-spine/neck (paragraph 22).

63This further testing, as per the FDA report (paragraphs 27, 56, 58), clearly demonstrates that the appellant has CI, his CI includes impairment of cognitive abilities that are necessary for safe driving/may impact road performance (as per failing 75% of the in-class cognitive testing), and he also does not possess the functional abilities necessary for driving safely (as per the results of the on road test).

64Safe driving is dependent on multiple cognitive and functional skills, and clinicians should carefully consider many factors when determining if cognitive concerns affect driving safety.

65Thus, based on a careful consideration of all the evidence before me, I find that the appellant has CI, that his CI is likely, on a balance of probabilities to significantly impact road performance/safe driving, and that he does not possess the functional abilities necessary for driving safely.

66Therefore, I find based on the totality of the evidence that the appellant’s medical condition, namely CI, is likely, on a balance of probabilities, to significantly interfere with his ability to drive safely.

67I acknowledge the burden that the loss of the appellant’s driver’s licence is having on him and his wife. While I understand the practical challenges that can result from a driver’s licence suspension, I must apply the provisions of the HTA and regulation, keeping in mind the objective of ensuring public road safety.

ORDER

68For 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.