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:
Christopher Korven
Appellant
-and-
Registrar of Motor Vehicles
Respondent
DECISION AND ORDER
Panel: Dr. Dimitri Louvish, Member Patricia Conway, Member
Appearances:
For the Appellant: Christopher Korven, Appellant Jessica Heckler, Spouse
For the Respondent: Sonia De Santis, Agent
Place and date of hearing: By Teleconference June 28, 2019
A. 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 is a commercial truck driver. On March 12, 2017, a Medical Condition Report (“MCR”), was faxed to the Minister of Transportation (the “Minister”). On this form, Dr. D. Macdonald of the London Health Services Centre reported that the appellant had experienced a witnessed generalized seizure on February 13, 2017, and that a medical investigation led to the discovery of a tumour on the right frontal section of the appellant’s brain. Acting on this report, the appellant’s driver’s licence was suspended on March 21, 2017 for two reasons: “seizure” and “tumour.”
3On August 2, 2017, Dr. S. Mirsattari, an epilepsy specialist, sent a second MCR to the Minister stating that most of the tumour had been successfully surgically removed in July 2017. It further reported that the appellant was undergoing chemotherapy and radiation for the remainder of the tumour. The specialist stated that the appellant had been seizure free since the February 13, 2017 incident and stated that the appellant was eligible for reinstatement of his driving privileges under a class G licence (non-commercial drivers). The Class G licence was reinstated by the Registrar on August 31, 2017.
4In its August 31, 2017 letter, the Ministry stated that it would require evidence that the appellant had remained seizure free for five years to reinstate his commercial licence. This period could be reduced to three years seizure free, with or without seizure medication, on the recommendation of a medical practitioner.
5The appellant completed radiation and chemotherapy in January 2019. He then appealed the March 21, 2017 order of the Minister and requested reinstatement of his A class (commercial) licence. In support he provided an assessment report and a letter from his treating physician, Dr. Macdonald, stating that the appellant’s treatment was a success. He had experienced no more seizures after February 13, 2017. A very small piece of the tumour remained and would be monitored by MRI periodically every three months for a year, then every four months for a year, then every six months for a year and thereafter as needed. Dr. Macdonald stated that the appellant was fit to return to work as soon as his licence was reinstated. The Registrar responded with a letter stating that the appellant must remain seizure-free for five years before his commercial licence could be reinstated.
6The appellant appeals the Registrar’s decision to the Licence Appeal Tribunal (“Tribunal”) on the basis that he feels well, has had no seizures since February 13, 2017 and has driven safely and without incident since August 31, 2017. He and his family are facing financial challenges resulting from his inability to work, and he asserts that he can safely drive a commercial vehicle and recommence supporting his family.
7For reasons set out below, the Tribunal sets aside the decision of the Registrar and orders the immediate reinstatement of the appellant’s driving privileges under a Class A licence.
B. ISSUES
8The issue in this appeal is whether the appellant suffers from a medical 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 seizure disorder/epilepsy?
b) Is the appellant’s neurological condition likely to significantly interfere with his ability to drive a vehicle of the applicable class safely?
C. 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, in 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 the Tribunal is not bound by them.
13The CCMTA Standards regarding seizures provide in part as follows:
14The 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.
D. EVIDENCE AND ANALYSIS
15The respondent presented and relied on the medical and test reports provided by the appellant evidencing his medical condition from time to time. She referred the Tribunal to the CCMTA Standards and submitted that the Registrar was correct in its decision, relying on paragraphs 17.6.10 and 17.6.12 of the Standards. She called no other witnesses.
16Mr. Korven offered testimony regarding the event leading to his hospitalization, his activities before the surgery, his health and well-being since the surgery, his driving experience since the return of his G licence, and his current frustration at not being able to return to work. Mr. Korven impressed the Tribunal as an intelligent and straightforward man who has always led a busy and productive life. He was slowed down by the brain tumour and its treatment but has bounced back and is eager to return fully to his pre-brain tumour activities and responsibilities. He answered questions without hesitation or calculation, in a forthright and candid manner. His frustration at the position of the Ministry was apparent, but so was his determination to accept it and find other ways to make a living if necessary. The Tribunal found him credible throughout.
17The appellant’s spouse, a registered nurse, gave her evidence earnestly, recognizing that as his spouse she might be thought to take a biased view in his favour. She emphasized that as a registered nurse she has a professional duty to be truthful, and to be keenly aware of and protect others from harm. She also noted her professional habit of constantly assessing anyone in her care and described how this has meant that she is highly sensitized to the appellant’s behaviour, looking for any evidence of problems or deficits. The Tribunal has no difficulty in taking her evidence as truthful, nor in taking her observations of the appellant as reliable.
a. Does the appellant suffer from a seizure disorder, i.e. epilepsy
18The onus is on the Ministry to prove to the Tribunal on a balance of probabilities that the appellant suffers from a seizure disorder. We conclude based on the evidence that the event which occurred on February 13, 2017 was a provoked seizure caused by the tumour. We find that the appellant does not suffer from a seizure disorder, i.e. epilepsy.
19At the hearing, the respondent pointed to the fact that the appellant was given Keppra during his emergency hospitalization on February 13, 2017. He has continued to be prescribed that drug, which she characterized as an anti-seizure medication, to the present time. She also pointed to the fact that the appellant was seen by an epilepsy specialist after his hospitalization and continued to be monitored by him.
20The appellant testified regarding the events of February 13, 2017 in some detail. He stated that while performing multiple tasks in the kitchen, he suddenly felt a sharp pain in his neck. He fell over and hit his head on the corner of a recycling bin and then hit it again on the floor. He believes that it was the impact of his head hitting the floor that caused his unconsciousness. He was taken to hospital with a large cut on the side of his head and a black eye. In hospital he was given an analgesic for pain. Intravenous Keppra was started; he does not know who prescribed it. He has remained on Keppra oral medication to the present.
21As the Tribunal noted earlier, the respondent places great reliance on the prescription of Keppra, an anti-seizure drug, to support its position that the appellant has a seizure disorder.
22Under s. 16 of the Statutory Powers Procedure Act, R.S.O. 1990, c. S.22, s. 16 (“SPPA”), a tribunal may, in making its decision in any proceeding, “take notice of facts that may be judicially noticed” and “take notice of any generally recognized scientific or technical facts, information or opinions within its scientific or specialized knowledge”. As a licensed and duly qualified physician in the province of Ontario with a general practice licence and with over 15 years of clinical experience, Dr. Dimitri Louvish, Tribunal member, has, as per SPPA s. 16(b), the qualifications and knowledge to opine on the clinical use of Keppra. Dr. Louvish notes that Keppra is commonly prescribed as a seizure prophylaxis medication for patients who have undergone craniotomy (surgery to remove a brain tumour) when a brain abnormality has been located. Keppra is not generally the first line medication of choice to treat newly diagnosed epilepsy. Therefore, the Tribunal does not regard the prescription of Keppra as determinative of the issue that the appellant has a seizure disorder/epilepsy.
23The appellant told the Tribunal that his stay in hospital was brief, only two days. Shortly after his release, Dr. Mirsattari conducted a series of seizure triggering tests on him without provoking a seizure. Unfortunately, the report of these tests was not available to the Tribunal. On March 15,2017 the appellant underwent an EEG. The results were submitted to the Registrar and the Tribunal as part of the appeal package from the appellant. The EEG showed no trace of epileptic activity in the appellant’s brain. Dr. Louvish notes that if the seizure was an epileptic seizure, then the evidence of epileptic-like brain activity would be detected on the EEG.
24Both the appellant and his spouse admitted that since the surgery he has experienced periodic facial twitching on the left side of his face. right frontal part of his brain. The appellant’s spouse said that from her observation, the appellant’s speech and/or gait were not affected when the twitching occurred. The appellant’s spouse told the Tribunal that when they questioned Dr. Mirsattari about this, he told them that he was unable to determine a cause for the twitching and concluded that it was probably attributable to the surgical removal of a piece of the right side of the appellant’s brain. Both the appellant and his spouse testified that the episodes of twitching have decreased over time. The appellant has experienced only one twitching episode in 2019. The appellant also reported that Dr. Mirsattari “discharged” the appellant from his care a year ago. This indicates to the Tribunal that in Dr. Mirsattari’s opinion the appellant does not have epilepsy.
25The appellant testified at the hearing that at his last meeting with Dr. Macdonald in June 2019 to review the results of the latest MRI, they discussed weaning him off Keppra. The appellant said that he instigated this discussion because he wants to be drug-free. This is required by his former employer. The appellant testified that Dr. Macdonald had no concerns with this proposal and agreed that he could be weaned off the drug. The appellant expects the weaning process will begin at his next appointment with Dr. Macdonald in September.
26On the totality of the evidence presented, the Tribunal is not persuaded on the balance of probabilities that the appellant has a seizure disorder. Therefore, the CCMTA Standard applied by the Registrar is not, in our opinion the correct standard for the appellant’s circumstances.
27A “provoked seizure” is described in paragraph 17.6.1 of the CCMTA standards and includes a seizure that is caused by a structural brain abnormality. Based on all the evidence, the Tribunal finds that this is the nature of the seizure experienced by the appellant on February 13, 2017. The standard set out in that paragraph applies to ALL drivers, including the appellant. That standard states that the appellant is eligible to have his licence reinstated six months after stabilization or elimination of the precipitating cause of the tumour. Dr. Macdonald says that the tumour has been stable since August of 2018. Paragraph 17.6.1 also requires the opinion of a neurologist that further seizures are unlikely. In his June 14, 2019 letter to the appellant, Dr. Macdonald states that the likelihood of a further seizure is low.
28Before leaving this issue, the Tribunal wishes to refer to Dr. Macdonald’s statement in his last letter to the appellant dated June 14, 2019, that the appellant experienced brief focal seizures during surgery to remove the tumour on July 5, 2017. From his knowledge and experience, Dr. Louvish knows that it is not uncommon for patients to experience seizures during brain surgery. Such an event has no bearing on whether a patient has epilepsy, and thus should not be considered as evidence either in support of or against the presence of this condition. The Tribunal also noted that Dr. Mirsattari, in his letter to the Registrar, references only the seizure of February 13, 2017. Thus, we have considered the focal seizures during the appellant’s operation to remove the tumour irrelevant to our deliberations on the epilepsy issue.
b. Is the appellant’s neurological condition, if any, likely to significantly interfere with his ability to drive a commercial vehicle safely?
29The respondent must establish that the appellant’s neurological condition is likely to significantly interfere with his ability to drive a motor vehicle of the applicable class safely.
30There is no dispute that the appellant has the remains of a brain tumour. It was partially removed by surgery in July 2017 and further reduced by radiation and chemotherapy. Dr. Macdonald’s opinion in his letter in support of the appellant’s request for reinstatement of his commercial licence states that the tumour is well controlled. It has not changed since August 2018. He further states that the appellant is fit to return to work as a commercial driver.
31The evidence proffered at the hearing by the appellant and his spouse Ms. Heckler is that since the reinstatement of his class G licence on August 31, 2017 the appellant has been driving, including driving long distances with his family, without incident. Ms. Heckler told the Tribunal that as a registered nurse she has constantly watched and assessed the appellant looking for any sign of mental or physical deficits he might experience because of the tumour and its treatment. She stated that she has observed none, except for the facial twitching earlier referred to, which, she states, has had no effect on his driving that she has observed. She stated that from her experience as a passenger while he is driving since his surgery, she is confident and comfortable putting her own safety and that of their children in his care as driver.
32The respondent did not submit evidence or argue that the appellant is unable to drive a commercial vehicle safely because of the residual tumour which, upon the review of all the medical evidence to date, appears to the Tribunal to be a non-issue from clinical and functional standpoint. In this regard, the Tribunal notes Dr. Macdonald’s opinion in his letter June 14, 2019 letter that the chances of a further seizure are remote, given the stability of the tumour.
33The Tribunal also considers the additional fact that the appellant’s tumour will be carefully and frequently monitored by his treating physician on a regular basis including MRI scans for the foreseeable future. Should there be any change in the tumour size indicating clinically significant recurrence of its growth, the appellant's treating physician will be able to have it dealt with quickly and to notify the respondent if there is any concern regarding the appellant's ability to operate a commercial vehicle (or any vehicle for that matter) safely.
E. ORDER
34For the reasons set out above, pursuant to subsection 50(2) of the Act, we set aside the decision of the Registrar and order the immediate reinstatement of the appellant’s class A licence.
LICENCE APPEAL TRIBUNAL
Dr. Dimitri Louvish, Member
Patricia Conway, Member
Released: July 23, 2019```