S.B. v. Minister of Transportation, 2019 CanLII 37529

Date: 2019-04-15

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 s. 32(5)(b)(i) of the Act

Between:

S.B.

Appellant

and

Minister of Transportation

Respondent

REASONS FOR DECISION AND ORDER

Panel: Dr. Erica Weinberg, Member

Appearances:

For the Appellant: Self-represented

For the Respondent: Sanjay Kapur, agent

Heard by Teleconference on: April 8, 2019

OVERVIEW

1The appellant appeals the change in class of his driver’s licence under s. 32(5)(b)(i) of the Highway Traffic Act, R.S.O. 1990, c. H.8 (the “Act”).

2A periodic Medical Report form, dated October 16, 2018, was submitted to the Ministry of Transportation (the “Minister”) by the appellant’s previous family doctor, Dr. S. This form indicated that the appellant suffers from a cardiovascular (“CVS”) condition, and pre-diabetes.

3Following the receipt of a Commercial Driver Cardiovascular Assessment form (“CDC Assessment form”), from the appellant’s current family doctor, Dr. C., and under s. 32(5) of the Act, the Minister changed the appellant’s class of driver’s licence from a commercial licence to a class “G” licence, effective February 19, 2019.

4The appellant now appeals the Minister’s decision to downgrade his driver’s licence on the basis of his “feeling well”, “being in good health”, “if something were amiss, he would not drive”, and a recent report from Dr. N., his cardiologist and electrophysiologist (a physician who monitors pacemakers and other devices).

5For the reasons set out below, I find that the appellant does suffer from a CVS condition. I also find, on a balance of probabilities, that this CVS condition is likely to significantly interfere with his ability to drive a commercial vehicle safely.

6Accordingly, I confirm the Minister’s decision to change the class of the appellant’s driver’s licence.

ISSUES

7The issue in this appeal is whether the appellant suffers from a medical condition, namely a CVS condition, which is likely to significantly interfere with his ability to drive a vehicle of the applicable class safely.

8To answer that question, I will address the following issues:

a. Does the appellant suffer from a CVS condition?

b. Is the appellant’s CVS condition, if any, likely to significantly interfere with his ability to drive a vehicle of the applicable class safely?

LAW

9The Minister has the power under s. 32(5)(b)(i) of the Act to change the class of a person’s driver’s licence in accordance with examination results and other prescribed requirements.

10Subsection 14(1) of O. Reg. 340/94 (the “Regulation”) under the Act 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;

11According to s. 14(2)(a) of the Regulation, if the Minister is determining whether the requirements of s. 14(1) are met, the Minister may take into consideration the Canadian Council of Motor Transport Administrators Medical Standards for Drivers (the “CCMTA Standards”). The Tribunal may also take the CCMTA Standards into consideration, although they are not binding requirements.

12The Minister has the burden of establishing the grounds for downgrading the licence on a balance of probabilities. Following a hearing, the Tribunal may, under s. 50(2) of the Act, confirm, modify or set aside the Minister’s decision or order.

EVIDENCE AND ANALYSIS

a. Does the appellant suffer from a CVS condition?

13I find that the evidence presented establishes that the appellant suffers from a CVS condition.

14A CDC Assessment form, dated November 28, 2018 and submitted as evidence indicates that the appellant suffers from a number of CVS conditions. These CVS conditions broadly include coronary artery disease (“CAD”), an arrhythmia (abnormal heart rate/rhythm), and heart valve disease.

15The appellant is known to have suffered a myocardial infarction (“MI” or heart attack) in 1996, and his current state of angina (chest pain caused by reduced blood flow to the heart) is considered stable.

16He is known to have suffered from a dangerous tachyarrhythmia (fast heart rate), notably ventricular tachycardia (“VT”).

17Furthermore, the appellant is also known to suffer from aortic regurgitation (“AR”) (a leaking of the aortic valve, which allows some of the blood that is pumped out of the heart’s main pumping chamber, the left ventricle (“LV”), to leak back in). According to the CDC Assessment form, the appellant’s current LV ejection fraction (“EF”), a measure of the ability of the heart to pump oxygenated blood to the rest of the body), was measured via echocardiogram to be <35%.

18As stated in Chapter 3 of the CCMTA Standards, healthy individuals generally have a LV EF >55%.

19Under the Statutory 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.

20As per section 3.1 of the CCMTA Standards, “in valvular regurgitation or leaky valve…as the leak worsens, the heart has to work harder to make up for the leaky valve, and less blood may flow to the rest of the body.”

21As a licenced 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 the appellant’s LV EF of <35% confirms that the pumping ability of his heart is significantly/severely below normal and that the appellant has significant heart failure (“HF”).

22According to the appellant, more than six years ago he had a consultation with Dr. N., who recommended an implantable cardioverter defibrillator (“ICD”) for his VT as a “precautionary measure”. Due to some scheduling issues, Dr. N. himself did not perform the procedure, and the ICD was implanted by another specialist. However, the appellant has had routine follow-up of his ICD by Dr. N., either in person or via Ontario Telemedicine Network (“OTN”) since its implantation. OTN uses two-way videoconferencing to provide clinical health care for remote regions.

23A November 21, 2018 note from Dr. N. submitted as evidence, confirms that the appellant has a “CRT device, BiV … and still having 2.1 years of battery left on this six years old device” (i.e. a cardiac resynchronization therapy, biventricular paced ICD device).

24The CDC Assessment form indicates that the appellant’s ICD was implanted as “secondary prophylaxis” for VT.

25Taking all the evidence into consideration, I find that the appellant suffers from a number of CVS conditions, including: CAD, MI, stable angina, previous VT, AR, LV EF <35%, HF, and has an ICD implanted as secondary prophylaxis for VT.

b. Are the appellant’s CVS conditions, if any, likely to significantly interfere with his ability to drive a vehicle of the applicable class safely?

26The Minister has the burden of establishing that the appellant’s CVS condition(s) is/are likely to significantly interfere with his ability to drive a motor vehicle of the applicable class safely. The Minister’s position about the risk posed by the appellant’s condition(s) appears to be premised completely on the basis that the appellant is ineligible for a licence of the applicable class under the CCMTA Standards.

27The Minister’s agent referred to Chapter 3 of the CCMTA Standards, “Cardiovascular disease and disorders”, and specifically to 3.6.32 and 3.6.37.

28In 3.6.32 (ICD implanted as secondary prophylaxis for VF (ventricular fibrillation) or VT – Commercial drivers), commercial drivers are not eligible for a licence.

29In 3.6.37 (Medically treated aortic or mitral regurgitation or mitral stenosis – Commercial drivers), commercial drivers are eligible for a licence if:

• They are assessed as NYHA Class I

• They have a LV EF ≥35%

• They have had no episodes of impaired level of consciousness

30In an effort to more completely understand both the CCMTA Standards’ and therefore the Minister’s rationale for the ineligibility of a driver with an ICD implanted as secondary prophylaxis for VT and/or medically treated AR in certain circumstances to drive a commercial vehicle, the Minister’s agent was questioned if the Canadian Cardiovascular Society (“CCS”) guidelines would provide any further guidance in this case. The Minister’s agent had no answer to this question.

31As I will explain below, I find from careful consideration of all the evidence before me that, on a balance of probabilities, some of the appellant’s CVS conditions, namely his ICD implanted as secondary prophylaxis for VT and/or his AR with LV EF <35%, individually and/or in combination are likely to significantly interfere with his ability to drive a commercial vehicle safely.

32The appellant described that the ICD procedure was done at a large hospital, not in his community. He recalls receiving a booklet regarding the “do’s and don’ts” of his ICD before he left the hospital the day following the ICD procedure. Initially the appellant did not recall any information regarding driving restrictions following the procedure, but later at the hearing stated that he could not drive a vehicle for two weeks following the procedure.

33When questioned whether he discussed his commercial (“D”-class) licence with Dr. N. at the initial consultation over six years ago, the appellant stated that he did not remember the topic coming up.

34Furthermore, the appellant stated that he does not recall any of the treating cardiologists involved in his care (including Dr. G. his local cardiologist, Dr. Ca. another cardiologist where Dr. N. works, or the physician who performed the ICD procedure), asking him whether he had a commercial driver’s licence. The appellant went on to further comment that he believes the first time that he brought the subject up of having had a commercial driver’s licence to Dr. N., was at the November 21, 2018 OTN visit. However, the appellant stated that Dr. N. “did not focus on this subject at the visit”. This is confirmed in Dr. N.’s November 21, 2018 note which does not mention anything about the appellant’s recent downgrade of his driver’s licence.

35The appellant stated initially that he is retired, but later called himself semi-retired. The appellant explained that until his driver’s licence downgrade, he was helping a friend who is in the restoration business to haul and dump supplies 2-3 times per week. The vehicle being used is of sufficient weight, that as per the appellant, it requires a D-class licence. He went on to further state that this D-class vehicle was typically driven within town and for relatively short distances.

36Chapter 3 of the CCMTA Standards states for VF or VT that “when implanted as secondary prophylaxis, the ICD is implanted to prevent sudden cardiac death in individuals who have suffered a cardiac arrest or who suffer from malignant arrhythmias that do not respond readily to medical treatment.”

37In Question 4 of Section C – Arrhythmia or Conduction Disturbance of the CDC Assessment form (“Has the patient undergone an ICD implant”), Dr. C. indicated with respect to the ICD, that the appellant: had the implant for >12 months; never had an ICD shock or device intervention that impaired his level of consciousness; the reason for implantation was for secondary prophylaxis; and his annual risk of sudden incapacitation (“SI”) is felt to be 1% or less.

38Although the appellant stated that Dr. C., his new family doctor, would have access to his previous records, it is not clear to me how Dr. C. would have the knowledge or qualifications to accurately assess the appellant’s annual risk of SI, particularly with the numerous and complicated CVS conditions from which the appellant suffers. In addition, Dr. N.’s note written one week prior to Dr. C. filling in the CDC Assessment form, did not mention anything about the appellant’s annual risk of SI. Furthermore, I note that in only two sections of the CCMTA Standards (i.e. 3.6.26, 3.6.34), is there reference to the “annual risk of SI”. Both of these sections of the CCMTA Standards specifically refer to this assessment being done by a cardiologist (“cardiologist assessment indicates that the annual risk of SI is 1% or less”). Therefore based on the above, I give little weight to the indication by Dr. C. that the appellant’s annual risk of SI is less than 1%.

39The CCMTA Standards refer to the New York Heart Association functional classification system (the “NYHA classification system”) as providing for the simple assessment of the degree of a person’s HF. As per the evidence submitted, Dr. C. considers the appellant to be currently functional Class I under the NYHA classification system, indicating that as per the CDC Assessment form, the appellant clinically has no limitations of physical activities and no symptoms during daily activities – i.e. that he clinically has no symptoms of HF. However, the appellant admitted that he does not do any formal exercise, and that his daily activities include walking, doing mechanical things, driving, and hauling building materials 2-3 times per week.

40As per my qualifications and knowledge, the appellant’s recent LV EF of <35% indicates by cardiac testing, that despite having an implanted CRT BiV ICD device, the pumping ability of the appellant’s heart is significantly/severely impaired and he has significant HF.

41Although I am not bound by the CCMTA Standards, I note that as per 3.6.37 which includes medically treated AR for commercial drivers (as per paragraph 29) that the appellant does not satisfy this standard based on his LV EF of <35%.

42In addition, I note that in section 3.4 of the CCMTA Standards (Effect of CVS disease on functional ability to drive): valvular heart disease (such as AR) can cause episodic driving impairment; and congestive HF can result in both persistent and episodic driving impairment. In section 3.5 (Compensation), the CCMTA Standards state that “individuals with CVS disease are not able to compensate for their functional impairment.”

43Furthermore, I note that section 3.6 of the CCMTA Standards states that “the CCS recommendations focus exclusively on the potential episodic impairment associated with CVS disease.”

44In Dr. N.’s November 21, 2018 note, he states that the appellant “…has done remarkably well with his device. As far as medications, he is stable on Bisoprolol 10 mg po od (by mouth daily), Ramipril 5 mg po od, Aspirin 81 mg po od, and Metformin 500 mg po bid (twice daily). He has no complaints and is doing well with no arrhythmias detected on his device. I see no issues at all with regards to his device function and we plan to see him back in six months.”

45As per his testimony, the appellant did mention to Dr. N. at this November 21, 2018 OTN two-way videoconferencing visit, that his commercial driver’s licence had recently been downgraded. However, nowhere in Dr. N.’s November 21, 2018 note does he: mention that the appellant previously was driving a commercial vehicle with an ICD implanted as secondary prophylaxis for VT; that the appellant previously was driving a commercial vehicle with AR with a LV EF <35%; specifically state that he feels the appellant can safely drive a commercial vehicle with an ICD implanted for secondary prophylaxis for VT, and/or with AR with a LV EF <35%; and state his opinion as a qualified cardiologist and electrophysiologist, on the appellant’s annual risk of episodic impairment/SI.

46Furthermore, the appellant testified that he subsequently contacted his other cardiologists, Drs. G. and Ca. regarding writing a letter supporting his driving of a commercial vehicle. The appellant stated that both Drs. G. and Ca. commented that “Dr. N.’s letter should be good enough.”

47I accept the appellant’s testimony that no cardiologist had previously asked him if he was driving a commercial vehicle of any kind, at any time. I found the appellant’s testimony to be truthful, and do not fault him for not disclosing this issue previously.

48I acknowledge that based on the appellant’s Extended Driving Record submitted as evidence, he has been safely driving a commercial vehicle for the past six years with an ICD implanted as secondary prophylaxis for VT, and with AR with a LV EF <35%. I also commend the appellant for wanting to continue to help load and haul materials part-time driving a D-class vehicle.

49Furthermore, I also acknowledge that the appellant stated that he would not drive if he felt “anything was amiss.” However, episodic impairment/SI cannot be predicted.

50Based on the evidence before me, none of the appellant’s current cardiologists (Drs. N., G., or Ca), once finding out that the appellant had been driving a commercial vehicle for the past six years with his CVS conditions, directly offered him a letter in support of his driving a commercial vehicle.

51In my opinion, the lack of expressed support for a long-standing patient in their practice regarding regaining his commercial driver’s licence, is a clear indication that all three cardiologists have significant concerns regarding the annual risk of episodic impairment/SI that the appellant’s CVS conditions individually and/or combined present for his ability to drive a commercial vehicle safely.

52Therefore, based on a careful consideration of all the evidence before me, it is my opinion that the appellant’s CVS conditions, specifically his ICD implanted for secondary prophylaxis for VT and/or his AR with a LV EF <35%, individually and/or in combination, put the appellant’s annual risk of episodic impairment/SI at a sufficiently high level that, on a balance of probabilities, they individually and/or in combination are likely to significantly interfere with his ability to drive a commercial vehicle safely.

53Accordingly, I confirm the Minister’s decision to change the class of the appellant’s driver’s licence.

ORDER

54For the reasons set out above, pursuant to subsection 50(2) of the Act, I confirm the Minister’s decision to change the class of the appellant’s driver’s licence.