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 subsection 32(5)(b)(i) of the Act.
Between:
E.F.
Appellant
and
Minister of Transportation
Respondent
DECISION AND ORDER
Panel: Dr. Erica Weinberg, Member Jennifer Friedland, Member
Appearances:
For the Appellant: Harvey Feifel, Paralegal For the Respondent: Stella Velocci, Agent
Heard by Teleconference on: April 16, 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”).
2The appellant had been a commercial truck driver. On October 10, 2017, a Medical Condition Report (“MCR”), was faxed to the Minister of Transportation (the “Minister”). On this form, the emergency room (“ER”) physician reported that the appellant had experienced the following conditions: “Seizure(s) – Cerebral” and “stroke/TIA or head injury with significant deficits.” As a result of this report, the appellant’s driver’s licence was suspended.
3On March 22, 2018, following the receipt of updated medical information, the Minister approved the appellant for a class G licence but found that he no longer met the National Safety Standards for a commercial licence. The appellant was advised that he would need to remain seizure-free for five years before his commercial licence could be regained.
4The appellant now appeals the Minister’s decision to change the class of his driver’s licence on the basis that he feels well, has had no seizures in over a year, and is currently an Uber driver, driving up to 12 hours per day.
5The intensive and lengthy medical work-up of the appellant’s neurological event that led to his emergency room visit in October 2017, revealed that he suffers from cerebral venous sinus thrombosis (“CVST”), or clots (thrombi) in the main drainage system of the brain. The CVST was the provoking factor for the appellant’s seizure(s).
6For the reasons set out below, we find that the appellant’s neurological condition, namely CVST has not been stabilized, resolved, or corrected, and is, on a balance of probabilities, likely to significantly interfere with his ability to drive a commercial vehicle safely.
7Accordingly, we confirm the Minister’s decision to change the class of the appellant’s driver’s licence.
ISSUES
8The issue in this appeal is whether the appellant suffers from a medical condition, namely a neurological condition, which is likely to significantly interfere with his ability to drive a vehicle of the applicable class safely.
9To answer that question, we will address the following issues:
a. Does the appellant suffer from a neurological condition?
b. Is the appellant’s neurological condition if any, likely to significantly interfere with his ability to drive a vehicle of the applicable class safely?
LAW
10The 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.
11Subsection 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.
12According 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.
13The 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 neurological condition?
14We find that the evidence presented establishes that the appellant suffered from a provoked seizure and another provoked neurological event that may have been a seizure. We also find that the appellant suffers from CVST. As both seizures and CVST are neurological conditions, we find that the appellant suffers from a neurological condition.
15At the hearing, the appellant described the events leading up to attending the ER in October 2017. He described that while inside his truck at the office (of the commercial driving company he worked for), he felt weak. He got out of his truck to get some air, and then went back inside the truck to lie down on its bed, as he felt sleepy. Sometime afterward, colleagues saw him lying down in the truck, and he told them that he did not feel well. His colleagues called 911. The appellant went on to state that while in the ambulance, en route to the hospital, his right hand/arm and his right leg began to shake. The appellant claimed that he did not lose consciousness at any time in the ambulance.
16The appellant explained that he was not admitted to hospital at this time, but was there for 2-3 hours, and was instructed to take daily aspirin. This is the event that led to the ER doctor making a medical report to the Minister. The ER doctor ticked two boxes on the MCR form to describe the condition being reported. One was “Seizure(s) – Cerebral,” and the other, “Stroke/TIA or head injury with significant deficits.” Other than the MCR, no records from this visit were submitted as evidence.
17The appellant had a second episode in November 2017 when he was again taken to the ER. On this occasion he described feeling numb in the fingers and being scared that he was having another seizure. It did not become clear to the panel as to whether this episode was specifically a seizure or a “neurological event”. The appellant did not file any medical records relating to this second trip to the ER. Neurological conditions/events as a whole can be caused by structural, biochemical or electrical abnormalities in the brain, spinal cord or other nerves.
18Sometime in November 2017, the appellant consulted with a neurologist, Dr. P., but did not provide the record from this consultation either.
19The appellant had a CT scan on December 6, 2017 and a brain MRI on February 2, 2018. He also did not provide either of these reports. However, a brief reference is made to the MRI in the epilepsy and seizure form (“ES form”) subsequently prepared by Dr. P. on March 13, 2018. Here the MRI is noted as showing the “evolution of old ischemic event.” An ischemic event of the brain occurs when there is insufficient blood/oxygen flow to the brain, resulting in death of brain tissue (i.e. cerebral infarction/ischemic stroke).
20Dr. P. filled in the appellant’s ES form submitted to the Minister on March 13, 2018. On this form, Dr. P. indicated that the appellant’s last seizure was “3-6 months ago,” and that the type of seizure was “not yet established.” With respect to how many seizures the appellant had suffered, Dr. P. ticked the box indicating that this was the appellant’s first seizure, however he also answered the questions that only apply if he had ticked the box indicating this was not the appellant’s first seizure. In that next section in answer to the question as to whether the previous seizure was different than the current type of seizure experienced, Dr. P. wrote “only two spell [sic] in October 2017”, and where he was to indicate the type of change between the two, he wrote “not yet specified.” Dr. P. also indicated that the appellant has been prescribed anti-seizure medication(s), and that seizures are prevented by the current medication regimen.
21The appellant was again taken to hospital in July 2018, this time complaining of headaches since October 2017 with worsening pain in the neck and head. The only record from the admission to hospital that was submitted in evidence was a Medical Imaging Report, dated July 22, 2018, showing the results of a CT scan. The clinical history on the CT report states that the appellant had previously been diagnosed with CVST in Moldova, but does not specify when this diagnosis was made, and the appellant did not provide those medical records either. The CT scan performed during this hospitalization in July 2018 was compared to the appellant’s CT scan performed December 6, 2017 and to the brain MRI performed February 2, 2018. This comparison showed “an increase in the thrombus load” (that is, an increased amount of clot blocking the main drainage system of the brain). The appellant was referred to another neurologist, Dr. T., at an outpatient Stroke Prevention Clinic at another hospital.
22The appellant saw Dr. T. on December 14, 2018. Dr. T. described the appellant’s July hospital admission as resulting from the appellant developing “new signs of increased ICP” (intra cranial pressure – i.e. headaches). Dr. T. described the results of the appellant’s July 2018 examinations as showing a “significant finding of CVST unclear if recurrence versus worsening.” It is noted that the appellant was treated at that time with oral blood thinner (Apixaban).
23With respect to the appellant’s history of seizure(s) Dr. T. noted that the appellant has “history of seizure, unclear how many.” She further remarked that the appellant was previously on phenytoin, but was switched to another anti-seizure medication due to potential interactions with Apixaban.
24Dr. T.’s report goes on to note that after taking the oral blood thinner for 5 months, the appellant had no new neurological symptoms; there had been significant improvement in his symptoms of increased ICP (i.e. headache); there had been no new seizures; and his current neurological examination was normal. She referred the appellant for a repeat MR venogram and asked him to follow up with his neurologist with regards to seizure management. A malignancy work-up was also recommended.
25The appellant did not appear to have had the recommended malignancy work-up by the time of this hearing. He did, however, undergo a further brain MRI. The report of this MRI, dated January 18, 2019 stands as the most current medical information that was before the Tribunal. The results of this MRI were compared to the appellant’s CT scan July 22, 2018 and showed that the appellant had “persistent occlusion of the distal left transverse sinus and extensive near occlusive thrombosis of the posterior superior sagittal sinus.” Allowing for differences in technique between the two tests, the “extent of the thrombosis” was deemed to be similar, “however the residual lumen of the posterior superior sagittal sinus (in the area of nonocclusive thrombus)” was observed to be “smaller”. As shall be further discussed below, this narrowing is a worsening of the appellant’s CVST.
26The above represents a summary of the relevant evidence before the Tribunal. It is apparent that there is a significant amount of information missing. The appellant underwent a number of neurological assessments but only a fraction of these were submitted as evidence.
27Based on the evidence that was provided, it is clear that the appellant suffered one seizure in October 2017. However, it is unclear whether the appellant’s neurological event (described by Dr. P. as a “spell” in his report) was also a seizure.
28A “provoked seizure” is described in Chapter 17 of the CCMTA Standards and includes a seizure that is caused by a structural brain abnormality. As per the appellant’s imaging results, his CVST is a structural abnormality in the main drainage system of the brain. We find that this was the provoking factor for the appellant’s seizure(s).
29We therefore conclude on the evidence before us that the appellant suffered at least one provoked seizure and another provoked neurological event (which may or may not have been a seizure), with the provoking factor being CVST.
b. Is the appellant’s neurological condition, likely to significantly interfere with his ability to drive a vehicle of the appropriate class safely?
30The Minister has the burden of establishing that the appellant’s neurological condition is likely to significantly interfere with his ability to drive a motor vehicle of the applicable class safely.
31Although we are not bound by the CCMTA Standards, we note that that section 17.6 of the CCMTA Standards (Guideline for all epilepsy and seizure standards) explains the rationale for all epilepsy and seizure standards. It states that “…seizures must be controlled as a prerequisite to driving.” It goes on to state that “most of the guidelines include a requirement for a seizure-free period. The purpose of the requirement for a provoked seizure is to establish the likelihood that the provoking factor has been successfully treated or stabilized.”
The Applicable CCMTA Standard
32The Minister’s position about the risk posed by the appellant’s neurological condition is premised on the basis that the appellant suffered two seizures and is ineligible for a commercial licence under Chapter 17 of the CCMTA Standards, “Seizures and epilepsy”, and specifically sections 17.6.1 (Provoked seizure caused by a structural brain abnormality) and 17.6.12 (Epilepsy – Commercial drivers).
33The appellant has submitted that the applicable CCMTA standard is 17.6.5 – which is the standard for a single unprovoked seizure for a commercial driver. However, given our conclusion that the appellant’s seizure had a provoking cause, we do not agree that this is the applicable standard.
34In our opinion, it is unnecessary to determine whether the appellant suffered two seizures or only one seizure plus another neurological event. We are satisfied that even applying the standard for only one seizure (17.6.1), he should not be eligible for a licence, as the provoking factor (CVST) has not stabilized, resolved, or been corrected.
35Section 17.6.1 establishes the following standard:
17.6.1 All drivers eligible for a licence if:
they have undergone a neurological assessment to determine the cause of the seizure, and epilepsy is not diagnosed
it has been 6 months since the provoking factor stabilized, resolved, or was corrected, with or without treatment, and they have not had a seizure during that time
the treating neurologist or neurosurgeon indicates that further seizures are unlikely
Provoking Factor not Stabilized, Resolved or Corrected
36In question 4 of Part 3 (Medications, Treatment) of the ES form, “Has the provoking factor stabilized, resolved or been corrected”, Dr. P. hand-wrote “MRI head 02/02/2018 showed evolution of old ischemic event”. Dr. P. did not check off either “yes” or “no” in the boxes indicated for question 4.
37Dr. P. also did not reference the appellant’s diagnosis of CVST, confirmed in the July 2018 CT scan note as being diagnosed sometime previously in Moldova.
38With respect to the severity and stability of the appellant’s CVST in July 2018, Dr. T. comments in her December 2018 consultation report that the appellant was admitted to hospital in July 2018 with a “significant finding of CVST.” She further remarks that it was unclear if this was a recurrence vs. a worsening (of the original CVST).
39In addition Dr. T. wrote that before starting on the blood thinner after the appellant’s hospitalization in July 2018, he was found to have thrombus (clot) in the main drainage system of the brain. While Dr. T.’s report notes that the appellant’s symptoms had stabilized after being on blood thinners for five months, her plan was to repeat the appellant’s MRI venogram (an imaging test that involves injecting contrast material to show how blood is flowing in veins) to see if there had been resolution (dissolving) of his thrombus, and to see the patient back at her office following this.
40The appellant had not returned to see Dr. T. by the time of this hearing, however on January 18, 2019, he did undergo a further MRI, six months after starting an oral blood thinner. The results of this MRI point to a worsening of the appellant’s CVST. The report’s overall “impression” states:
Persistent occlusion (complete blockage) of the distal left transverse sinus and extensive near occlusive thrombosis (near complete blockage) of the posterior superior sagittal sinus
Allowing for differences in technique, extent of thrombosis is similar
However, the residual lumen (drainage opening around the clot) of the posterior superior sagittal sinus (in the area of non-occlusive thrombus) does appear to be smaller on today’s examination (emphasis added)
41Under 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.
42As a licensed and duly qualified physician in the province of Ontario with a general practice licence, Dr. Erica Weinberg, Tribunal member has, as per SPPA s. 16(b), the qualifications and knowledge to interpret the results of appellant’s most recent MRI. This MRI indicates that the patient’s CVST has not improved. In fact, the CVST has slightly worsened based on the slightly smaller lumen size of posterior superior sagittal sinus.
43Thus, from a detailed analysis of the evidence before us, it is our opinion that the appellant’s neurological condition of CVST has not responded to over 6 months of treatment with the oral blood thinner Apixaban.
44In addition, it is our opinion from the evidence before us, that the appellant’s CVST or the provoking factor for the appellant’s seizure(s) and/or other neurological event has not been stabilized, resolved or corrected, as per 17.6.1 of the CCMTA Standards – Provoked seizure caused by a structural brain abnormality.
45Based on Dr. Weinberg’s qualifications and knowledge, the reason that the appellant’s symptom of headache has stabilized, is on the basis of the “collateralization” that is visualized on the most recent MRI - similar to new tiny tributaries opening in a river which is blocked. This collateralization does not imply that the appellant’s CVST has stabilized, resolved or been corrected. In fact, to the contrary, as stated above, the most current MRI shows a slight worsening of this condition.
46Furthermore, no evidence was provided indicating that the appellant has actually undergone a full medical workup to determine if there is an underlying reason why he is forming these unusual clots (e.g. malignancy, collagen vascular/inflammatory conditions, genetic). Should there be an underlying reason for the appellant’s unusual clotting, then it is our opinion that the treatment of this underlying reason/condition should be part of stabilizing, resolving or correcting the appellant’s neurologic condition of CVST.
47After careful consideration of all the evidence available to us, it is our opinion the appellant suffered a provoked seizure plus another provoked neurological event, (which may or may not have been a seizure), caused by the neurologic condition CVST which is not stable, resolved, or been corrected.
Risk for Future Provoked Neurological Events and their Potential Risk on Driving
48The evidence available to us indicates that the appellant suffers from the neurological condition CVST, a structural lesion within the drainage system of the brain, which is not stable, resolved, or been corrected. In addition the reason the appellant is forming these unusual clots has yet to be determined.
49Furthermore, as per MRI imaging (January 2019), after six months of blood thinner therapy, there had been no resolution (dissolving) of the appellant’s clots.
50Moreover, as of April 16, 2019 the appellant’s blood thinner therapy had not been altered.
51It is our opinion, based on Dr. Weinberg’s qualifications and knowledge, that all of the above puts the appellant at risk for the extension of pre-existing clots and/or the formation of new clots.
52Furthermore, the extension of clots or the formation of new clots in the main drainage system of the brain could, on the balance of probabilities cause further provoked neurological symptoms/events. These further provoked neurological events could include abnormal vision, symptoms of stroke such as weakness of the face and/or limbs, and seizures. All of these neurological events could cause sudden impairment/sudden incapacitation while driving.
53Although the appellant’s anti-seizure medication (assuming he continues to take it faithfully) may make it unlikely that a future neurological event provoked by his CVST would be a seizure, other potential provoked neurological events (such as abnormal vision or symptoms of stroke) from his CVST would not be prevented by the use of anti-seizure medication. It is our opinion, therefore, that as long as the appellant’s CVST is not stable, resolved, or been corrected, it could lead to sudden incapacitation/sudden impairment while driving.
Conclusion
54We are of the opinion that the risk posed by the appellant’s neurological condition on his ability to drive a commercial vehicle safely should be based on the totality of both the appellant’s CVST (structural abnormality) and its resultant effects on the appellant, particularly any significant and/or potentially hazardous provoked neurological symptom or event.
55Furthermore, we find that, without the neurological condition of CVST being stabilized, resolved, or corrected, and even with the use of an anti-seizure medication, that on the balance of probabilities, the appellant’s risk of any future provoked neurological event causing sudden impairment/incapacitation is too high to warrant reinstating his commercial driving licence.
56For these reasons, we find that, on a balance of probabilities, the appellant’s neurological condition, namely CVST that has not stabilized, resolved, or been corrected, is likely to significantly interfere with his ability to drive a commercial vehicle safely. We therefore confirm the Minister’s decision to change the class of his commercial licence.
57Although we have found that the appellant’s commercial licence should not be reinstated at this time, we disagree with the Minister’s position that the appellant must show that he has remained seizure free for 5 years with or without anti-seizure medication. Given our findings above, we are of the view that the following criteria would be more appropriate:
That the appellant be required to file a report from his treating neurologist confirming:
That the appellant’s CVST has stabilized, resolved, or been corrected based on updated imaging results (to also be provided);
That it has been six months or more since the appellant’s CVST has stabilized, resolved, or been corrected;
That the appellant has not had a seizure or any other neurological event during that period;
That the appellant has had a full medical workup (to be provided) to determine if there is an underlying reason why he developed CVST;
That the appellant is compliant with all his treatment regime, including treatment for any underlying condition (if any) causing his CVST; and
That the appellant’s treating neurologist indicates that further neurological events are unlikely, and s/he supports the appellant’s return to driving a commercial vehicle.
ORDER
58For the reasons set out above, pursuant to subsection 50(2) of the Act, we confirm the Minister’s decision to change the class of the appellant’s driver’s licence from a commercial licence to a class G.
LICENCE APPEAL TRIBUNAL
Dr. Erica Weinberg, Member
Jennifer Friedland, Member
Released: May 27, 2019