Date: 2019-07-30

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:

C.D.

Appellant

-and-

Minister of Transportation

Respondent

DECISION AND REASONS

ADJUDICATOR: Dr. Erica Weinberg, M.D., Member Raymond C. Ramdayal, Member

APPEARANCES:

For the Applicant: C.D., Self-represented

For the Respondent: Kyle Biel, Agent

Heard by Teleconference: May 15, 2019

OVERVIEW

1The appellant appeals the decision of the Minister of Transportation (the “Minister” or “respondent”) to downgrade his commercial licence to a Class G licence as a result of his medical condition.

2The appellant is a 59-year-old male with a with a history of cardiovascular (“CVS”) disease, or disorders relating to the heart and blood vessels. It is the appellant’s position that his current medical condition does not compromise his ability to safely operate a commercial vehicle, a profession which he has been engaged in for the past 30 years.

3The Minister’s decision to downgrade the appellant’s commercial licence is based on the premise that he no longer meets the National Medical Standards for a commercial licence. It is the respondent’s position that the appellant’s multiple heart conditions make it unsafe for him to hold a commercial driver’s licence.

ISSUE

4The issue to be determined is whether the appellant suffers from a medical condition or disability, specifically the CVS conditions including congestive heart failure (“CFF”), cardiomyopathy, and/or aortic stenosis, to an extent likely to significantly interfere with his ability to drive a motor vehicle of the applicable class safely.

CONCLUSION

5For the reasons that follow, we find that the appellant suffers from medical conditions that are likely to significantly interfere with his ability to drive a commercial vehicle safely. Accordingly, we confirm the Minister’s decision to downgrade the appellant’s driver’s licence to a class G licence.

LAW

6The 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.

7Subsection 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;

8According 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.

9The 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

10Effective July 1, 2018 with a mandate of safeguarding public interest, the Ontario Ministry of Transportation began asking commercial Class D licensees to submit medical reports at time intervals in keeping with other commercial licensees to ensure the driver’s ability to safely operate a commercial vehicle.

11To comply with this requirement, the appellant filed a medical report with the Minister for his commercial driver’s licence which he has held for a number of years. On March 15, 2019, the Minister advised the appellant that based on the review of the medical report, he no longer meets the National Medical Standards for a commercial licence due to his multiple heart conditions. As a result, the appellant’s licence would not be able to be upgraded back to a commercial licence.

12The appellant was advised that should he wish to regain his commercial licence that he would be required to file a further report from his treating physician or specialist indicating:

a. Confirmation of an aortic valve area (“AVA”) of ≥ 1.0 cm which must be supported by imaging/testing conducted within the last 12 months

b. Confirmation based on recent imaging/testing of a left ventricle ejection fraction (“LVEF”) ≥ 35%

c. Confirmation that the driver is assessed as New York Heart Association (“NYHA”) Class I (as of May 10, 2019 the Minister changing this to Class I/II)

d. Confirmation of annual risk of sudden incapacitation being 1% or less

13On April 17, 2019, the appellant appealed the decision of the Minister to the Licence Appeal Tribunal (the “Tribunal”).

14The respondent relies on the CCMTA Standards as a non-binding guideline to determine driver suitability. The respondent also relies on the test results from medical testing performed on the appellant. It was noted that the appellant’s file did not go to the Medical Advisory Committee of the Ministry. The respondent testified that it did not warrant being escalated to that level. They further testified that it is clear that the appellant is not meeting the benchmarks prescribed in the CCMTA Standards.

15The appellant testified that he has done everything he can to prove his suitability to drive a commercial vehicle. He stated that: he has “no problems with his heart”; he “feels fine/strong/is getting better”, he has not had heart failure in the last seven years; he has a LVEF >35%; and that his heart specialist says “he is good to go”. Evidence before the Tribunal provides significantly different information (to be discussed below).

16The appellant was adamant that he wants to return to work to provide for his family and can only do so if he is able to maintain his commercial driver’s licence. He states he has never been in an accident and has received only one speeding ticket in all of his years of driving. He regards himself as a calm person and states that nothing stresses him out behind the wheel. He considers himself a hard worker and would prefer not to resort to government assistance as a means of supporting himself.

17Evidence presented to the Tribunal from the appellant’s primary heart specialist since 2011, Dr. J., and family physician, Dr. B. demonstrates that the appellant suffers from a number of CVS conditions including: aortic stenosis; cardiomyopathy; CHF reduced LV ejection fraction; is classified as New York Heart Association class II; had an episode of acute CHF in late 2018; and is at risk for a rapid/irregular heart beat/rhythm and its potential complications.

18Aortic stenosis (“AS”), as per the CCMTA Standards, is a disease affecting the aortic valve (the valve going out of the heart). In AS the valve opening is smaller than normal due to hardening or fusing of the valve’s leaflets. AS may cause the heart to have to work harder to pump blood through the valves.

19The technical report of a March 2019 echocardiogram states that the appellant has moderate to severe AS, with a measured AVA of 0.86 cm2. Dr. J.’s personal interpretation of the echocardiogram is that the AVA is likely incorrectly low as the valve seems to open quite well despite a low stroke volume. Furthermore Dr. J. interprets the echocardiogram to show no more than moderate and probably mild stenosis.

20Cardiomyopathy, as per the CCMTA Standards, refers to a change in the size, strength or flexibility in the heart muscle. These changes can reduce the amount of blood being pumped out of the heart and may lead to CHF. Cardiomyopathy is associated with an increased risk of arrythmias.

21As per the evidence before the Tribunal, the appellant has severe non-ischemic (not related to problems with his coronary arteries) cardiomyopathy with severe enlargement of his left ventricle (“LV”), the main chamber of the heart that pumps oxygenated blood out of the heart to the rest of the body.

22CHF, as per the CCMTA Standards, is usually a chronic, progressive condition in which the heart is unable to pump the quantity of blood required to meet the body’s needs.

23As per the CCMTA Standards, the severity of CHF can be assessed by measuring the fraction of blood being pumped out of the LV with each beat. This is expressed as a ratio called the left ventricle ejection fraction (“LVEF”). Healthy individuals generally have an LVEF greater than 55%.

24According to Dr. J.’s evidence, since 2011 the appellant’s LVEF has never been higher than 32%. As per his April 2019 note, the appellant’s recent LVEF was 25%. As per the evidence, some of the appellant’s heart medications were recently altered and he stopped smoking, but no evidence was submitted to indicate whether or not there has been improvement in the appellant’s LVEF.

25As per the CCMTA Standards, the New York Heart Association (“NYHA”) functional classification system provides a simple, clinical measure for assessing the degree of heart failure. This system describes the effect of CVS disease on an individual’s general physical activity in Categories I-IV.

26Dr. J. has classified the appellant as NYHA functional class II – i.e. mild symptoms and slight limitation during ordinary activity; comfortable at rest. However, Dr. J. also has stated that his being Class II (as opposed to Class I = no symptoms and no limitation in ordinary physical activity; comfortable at rest) is likely on the basis of his respiratory (lung) issues.

27At the hearing, the appellant stated that since he recently stopped smoking and his medications were altered, he can do more (e.g. walk further). However, it is the Tribunal’s opinion, that by definition this would (still) classify him as NYHA functional class II.

28Furthermore, the evidence before the Tribunal indicates that the appellant was hospitalized in late 2018 for an episode of acute CHF, where his chronic heart failure acutely deteriorated for a brief period of time.

29As per paragraph [20], cardiomyopathy is associated with an increased risk of arrythmias, or irregular heart beat/rhythm.

30In 2015, based on cardiac testing, Dr. J recommended that the appellant have an implantable cardioverter defibrillator (“ICD”) for primary prophylaxis. As per the CCMTA Standards, when implanted as primary prophylaxis, the ICD is implanted to prevent sudden cardiac death in individuals considered to be at high risk, but who have not had an episode of ventricular arrhythmia (a rapid irregular heart rate/rhythm). According to Dr. J., the appellant was “very reluctant getting defibrillator fearing that will lose licence.

31In a November 2017 note, Dr. J. again states that he discussed a defibrillator with the appellant and notes that he has a “bit less risk of arrhythmia compared to ischemic myopathy”.

32However, in 2019, following cardiac testing, Dr. J.’s report stated that the appellant “has agreed to get defibrillator after he saw Dr. P.” At the hearing, the appellant expressed that the ICD is a “safety feature” and he is willing to get it if it will demonstrate to the Ministry his compliance in doing whatever he has to do in order to get his commercial licence back.

33Chapter 3 of the CCMTA Standards describes the effect of CVS disease on an individual’s functional ability to drive to episodic or persistent. Furthermore, the CCMTA Standards state that individuals with CVS disease are not able to compensate for their functional impairment.

34In section 3.4 of the CCMTA Standards (Effect of CVS disease on functional ability to drive it states that: valvular heart disease (such as AS) and tachyarrhythmias (fast rate/altered heart rhythm) can cause episodic driving impairment, and CHF can result in both persistent and episodic driving impairment.

35Section 3.6 of the CCMTA Standards (Guidelines for assessment) states that “the Canadian Cardiovascular Society recommendations focus exclusively on the potential episodic impairment associated with CVS disease.”

36Furthermore, section 3.4 of the CCMTA Standards (Effect of CVS disease on functional ability to drive) further discusses CVS conditions such as CHF and arrhythmias, the need for medical assessment – likelihood of impairment, and the primary functional ability affected (All – sudden incapacitation).

37The Minister asked directly in its communications that the appellant’s treating physician or specialist to confirm whether the appellant’s risk of sudden incapacitation (“SI”) is ≤ 1%.

38Nowhere in any evidence before the Tribunal, does Dr. J. directly answer this question. In his follow-up letter dated May 8, 2019, Dr. J. refers to the risk of SI as being “extremely low” for the appellant but does not provide a number percentage.

39Although not binding on us, we note that the appellant does not meet the CMMTA Standards for a commercial driver for any of the conditions: medically treated AS (3.6.36); CHF (3.6.42); and cardiomyopathy (3.6.44).

40We also note that in CCMTA Standard 3.6.26 (Declined an ICD… - commercial driver) that commercial drivers generally are not eligible for a licence, but may be eligible if: the driver meets the CCMTA Standard 3.5.25 (Declined an ICD … - non-commercial driver) AND a cardiologist assessment indicates that the annual risk of sudden incapacitation is 1% or less. The Minister asked the directly in its communications with the appellant, that his treating physician or specialist confirm whether the appellant’s risk of sudden incapacitation (“SI”) is ≤ 1%.

41Nowhere in any evidence before the Tribunal, does Dr. J. directly answer this question. In his follow-up letter dated May 8, 2019, Dr. J. refers to the risk of SI as being “extremely low” for the appellant but does not provide a number percentage.

42The appellant stated on multiple occasions the importance of his commercial licence for supporting his family and paying his mortgage. The appellant also raised the concern about being able to afford his medication without benefits or insurance if he can no longer work with his present employer. We do not contest the fact that the appellant has an impeccable driving record and that there has been no indication to date that he is not a safe driver. However, we must balance the risk to public safety and the right for the appellant to hold a commercial driver’s licence.

43It is the Tribunal’s opinion that the appellant does not appear to have the necessary insight into the significance and severity of his multiple CVS conditions both on his health and the risk they potentially pose with respect to episodic impairment/SI.

44Based on a careful consideration of all the evidence before us, it is our opinion that the appellant’s CVS conditions, specifically his aortic stenosis, cardiomyopathy, congestive heart failure with a LVEF <35%, and declined ICD for primary prophylaxis, 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.

45Pursuant to the powers vested in us by s. 50(2) of the Act, we confirm the decision of the Minister to downgrade the appellant’s commercial driver’s licence due to a high risk for episodic impairment/SI from multiple CVS conditions.