Licence Appeal Tribunal
Safety, Licensing Appeals and Standards Tribunals Ontario
Tribunal d’appel en matière de permis Tribunaux de la sécurité, des appels en matière de permis et des normes Ontario
Appeal under subsection 50 (1) of the Highway Traffic Act, R.S.O., 1990, H.8 as amended, from a decision of the Minister of Transportation to change the class of a driver’s licence pursuant to s. 32(5)(b)(i) of the Act
Between:
Sterling Allen Appellant
and
Minister of Transportation Respondent
DECISION AND ORDER
ADJUDICATORS: Dr. Erica Weinberg, Member Harriet Lewis, Member
APPEARANCES:
For the Appellant: Sterling Allen, Self-represented For the Respondent: Stella Velocci, Agent
Heard by teleconference: November 25, 2020
REASONS FOR DECISION AND ORDER
OVERVIEW
1Sterling Allen (the appellant) appeals the September 1, 2020 decision of the Minister of Transportation (the respondent, the “Minister”) to downgrade his commercial driver’s licence for medical reasons.
2The appellant has had a clean driving record as a professional truck driver for many years and prior to the downgrade, had a class ACZ licence which allowed him to drive many kinds of heavy vehicles, including tractor trailers and passenger transport vehicles, excluding school buses.
3On April 20, 2020 at approximately 7 a.m. EDT, he was loading cattle at an auction barn for transport to the United States when he lost consciousness. An employee of the auction barn called an ambulance which took the appellant to the emergency department of the local hospital.
4The auction barn employee believed that the appellant had been convulsing and reported that to the paramedics when they arrived at the scene.
5As a result of that incident, on May 9, 2020 the appellant’s driver’s licence was suspended for medical reasons, based on the Medical Condition Report of the emergency room doctor, Dr. P., which indicated that the appellant had a seizure.
6The appellant denies that he had a seizure. He believes that his collapse was the result of an allergic reaction to an insect bite. Since the incident, the appellant has undergone an electroencephalogram (“EEG”) and brain imaging (CT scan and MRI) which were reported to be within normal range.
7On September 1, 2020, the appellant was advised by a letter from the Minister that as a result of the diagnosis of a seizure, he no longer met the National Medical Standards for a commercial licence, and that his licence would be changed to a class G licence. He was further advised that in order to regain his commercial licence he must file a further report from his treating physician or a specialist confirming that he has remained seizure-free for a period of one year from the date of the incident. The appellant appeals that decision and asks that his commercial licence be reinstated.
8For the reasons set out below, we confirm the Minister’s decision to change the class of the appellant’s driver’s licence pending confirmation that he has been seizure-free for a period of one year.
ISSUES
9The legal 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 commercial vehicle safely.
10To answer this question, we will address the following issues:
Does the appellant suffer from the medical condition of seizures?
Is the appellant’s medical condition, if any, likely to significantly interfere with his ability to drive a commercial class ACZ vehicle safely?
LAW
11Section 32(5)(b)(i) of the Highway Traffic Act (the “Act”) provides that the Minister may “impose the conditions authorized by the regulations, remove any conditions or endorsements or change the class or classes of driver’s licence held by the person, in accordance with the results of the examination and other prescribed requirements”.
12Section 14(1) of Ontario Regulation 340/94 under the Act provides that a holder of a driver’s licence must not suffer from any physical condition or disability likely to significantly interfere with his or her ability to drive a motor vehicle of the applicable class safely. Section 14(2) permits the Minister to “require the applicant or holder to provide evidence satisfactory to the Minister that he or she is able to drive a motor vehicle of the applicable class safely”.
EVIDENCE AND ANALYSIS
Does the appellant suffer from the medical condition of seizures?
13The appellant gave evidence on his own behalf and provided in evidence the reports of his medical treatment and testing following his loss of consciousness on April 20, 2020.
14The appellant was seen in the emergency room on April 20, 2020 by Dr. P. Dr. P.’s initial notes written at 7:31 a.m. indicate that he was advised that the person on scene with the appellant found him convulsing and that “it took several minutes before he regained full consciousness and awareness as the next thing the patient remembered was being there with the paramedics.” Dr. P. noted that the appellant reported a moderate headache but presented no other symptoms except an injury to his tongue. He was oriented to person, place and time, and showed no distress. The examination revealed no abnormalities except two hematomas (collections of blood) on his tongue. Based on that examination, the reported history, a CT head scan and blood work (to be discussed below), Dr. P. concluded that the appellant had suffered a seizure and arranged follow-up with neurology.
15The appellant believes that his loss of consciousness was caused by an insect sting.
16The appellant testified that later that day of the incident, he found a dime-sized welt behind his right toe which appeared to be evidence of an insect sting. He surmised that a wasp or hornet had been in one of the work boots that he put on at the auction barn site.
17The appellant said that he previously had reactions to insect stings. One of those, sustained in the summer of 2019, caused his cheek to swell, although it was quickly and effectively treated with the antihistamine Benadryl. The second, which occurred in late June 2020, caused a substantial swelling of his forearm for two days. Neither of these insect stings resulted in loss of consciousness. Following the second sting, the appellant consulted with allergist, Dr. C. F. who provided a report dated June 25, 2020, which was submitted in evidence. That report indicated that the appellant had not been venom-tested due to COVID restrictions, but should take precautions to avoid stinging insects and should carry an Epipen with him and antihistamines. A post-venom-testing report from Dr. C. F. dated September 16, 2020, indicated that the appellant was “positive” for yellow jacket/yellow hornet and borderline positive for paper wasps, but Dr. C. F. stated that “the risk of progression from the large local reaction to a systemic allergic reaction is approximately 10% over his lifetime”.
18We do not accept that there is compelling evidence of an allergic reaction sufficient to cause loss of consciousness on April 20, 2020. We note that there was no evidence that the appellant exhibited symptoms of anaphylaxis, specifically difficulty breathing or blood pressure changes, which would have led the paramedics or Dr. P. to administer appropriate treatment for anaphylaxis. Dr. P.’s note specifically stated that the appellant showed no distress and had normal breath and normal heart sounds. Furthermore, as will be described in more detail below, an Epilepsy and Seizure form completed by the appellant’s family physician, Dr. S., on November 6, 2020 (following the appellant’s follow-up visit with Dr. P.), does not indicate that the incident in question was possibly from an insect bite.
19The appellant testified that his initial video consultation with neurologist Dr. T. F. was on April 29, 2020. The formal written consultation note from this visit was not submitted as evidence. However, the appellant testified that further tests were arranged (EEG and MRI brain) and that Dr. T. F.:
stated based on the emergency room report that he had suffered a seizure;
recommended the appellant start anti-seizure medication; and
sent in a prescription for anti-seizure medication.
20A subsequent letter from Dr. T. F. to the Minister, dated July 17, 2020, stated that the appellant:
has a diagnosis of first-time seizure;
is currently on no anti-seizure medications;
has remained seizure-free since the incident on April 20, 2020;
has no structural brain changes shown on imaging (CT and MRI);
has not yet had an EEG performed.
21On August 24, 2020 the appellant had an EEG performed which was reported as being within normal limits.
22Dr. S. in his November 6, 2020 Epilepsy and Seizure form concluded that it is “unclear” whether the incident in question was a “seizure vs. syncope”. Dr. S. indicated that the appellant had some cardiac testing done more than 12 months prior. The appellant testified that in early 2019 he had some chest pain and was referred to a cardiologist. We note that Dr. S. was not the appellant’s family physician at that time and has only been involved in the patient’s care since June 2020. Furthermore, the appellant testified that no physician following the event on April 20, 2020 recommended or sent him for any further cardiac tests.
23Having carefully reviewed the evidence available to us and for the reasons that follow we find, on a balance of probabilities, that the appellant had a generalized tonic clonic seizure on April 20, 2020. We make this finding based on the following:
The auction barn employee who found the appellant unconscious, described to the paramedics that the appellant was “convulsing”, which lead him to call for an ambulance;
The observation of “convulsing” was, on a balance of probabilities referring to movements of the appellant’s body during the incident. These movements are consistent with movements that occur during a generalized tonic clonic seizure;
The hematomas noted on the appellant’s tongue following the incident are, on a balance of probabilities consistent with the appellant having bitten his tongue in two places during a generalized tonic clonic seizure;
A normal EEG does not rule out that the appellant experienced a seizure;
Generalized tonic clonic seizures are known to lead to metabolic stress and changes in related blood markers. Syncope does not lead to such changes in blood markers;
Serum lactate is a sensitive and specific diagnostic marker to discriminate generalized tonic clonic seizures from syncope; and
The results of blood tests taken in the emergency room on April 20, 2020, roughly one hour following his incident, indicated that the appellant’s lactate level was elevated at 2.9 mmol/L (normal 0.5-2.5 mmol/L).
Having established that, on a balance of probabilities, the appellant suffered a single seizure in April 2020, is the appellant’s medical condition likely to significantly interfere with his ability to drive a commercial vehicle safely?
24The appellant was prescribed but declined to take anti-seizure medication because of possible side effects. To date he has remained seizure-free for seven months, and while it is possible that he may not experience a further seizure, it is also not unreasonable to anticipate that he may have a further seizure at some time in the future.
25The respondent’s representative referred to the Medical Standards for Drivers set by the Canadian Council of Motor Transport Administrators (the “CCMTA Standards”). These standards recognize the circumstances of commercial drivers such as the appellant, who drive a variety of vehicles including large trucks, passenger transport vehicles and emergency vehicles. Commercial drivers typically spend many more hours at the wheel, often in adverse weather or traffic conditions compared to drivers of passenger vehicles. As a generalized tonic clonic seizure causes an episodic impairment of the functions necessary for driving, a driver cannot compensate for such an event. For obvious reasons, if a driver were to suffer a seizure while at the wheel of a commercial vehicle, the results could be devastating.
26Although Dr. P. in his completed Medical Condition Report stated that the appellant suffered a seizure due to epilepsy, we find that the appellant does not suffer from epilepsy according to the CCMTA Standards (which is defined as two or more seizures which do not have a transient provoking cause). We find that the evidence presented indicates that the appellant suffered a solitary seizure.
27As stated by the respondent’s representative, the CCMTA Standards for a solitary seizure with no evidence of epilepsy in commercial drivers, recommends a seizure-free period of 12 months and a normal EEG.
28At the time of the incident in April 2020, the appellant was employed by a cattle transport company and was preparing to drive a load of cattle across the border to a destination in the United States. He stated that at the time of his loss of consciousness he had almost finished his loading and had only three cattle left to load. He said that such workdays may involve 14-16 hours of driving per day, up to five days per week. In the winter months he is employed as a driver of snow sweeping vehicles and occasionally passenger transport vehicles at an airport. The sudden loss of consciousness from a seizure while driving in any of the appellant’s job functions would have obvious and significant public safety implications. Fortunately, the appellant continues to have employment at the airport that does not require his commercial licence.
29While the Tribunal is not obliged to follow the CCMTA Standards, we find them persuasive here. We find that the CCMTA’s 1-year seizure-free period, relied upon by the Minister, is reasonable in these circumstances. We have found that the appellant has a medical condition in that he did indeed have a seizure. While it is far from certain that the appellant will have another seizure in the future, if he experienced one while driving a commercial motor vehicle the consequences would very likely be severe. For the reasons given above, we find that the appellant has a medical condition that is likely to significantly interfere with his ability to operate a class ACZ vehicle safely.
ORDER:
30For the foregoing reasons, we confirm the Minister’s decision to change the appellant’s licence from a class ACZ licence to a class G licence.
LICENCE APPEAL TRIBUNAL
________________________
Erica Weinberg M.D., Member
________________________
Harriet Lewis, Member
Released: December 16, 2020