Appeal under subsection 50(1) of the Highway Traffic Act, R.S.O. 1990, c. H.8, from a decision of the Registrar of Motor Vehicles to suspend a driver’s licence under subsection 47(1) of the Act
Between:
Cesar Ochoa Calle
Appellant
and
Registrar of Motor Vehicles
Respondent
DECISION AND ORDER
Panel: Dr. Erica Weinberg, Member
Appearances:
For the Appellant: Cesar Ochoa Calle, self-represented
For the Respondent: Sonia De Santis, agent
Heard by Teleconference: July 16, 2019, October 31, 2019 and March 24, 2020
A. Overview:
1The appellant appeals the suspension of his Class G driver’s licence under s. 47(1) of the Highway Traffic Act, R.S.O. 1990, c. H.8 (the “HTA”).
2The process that led to the Registrar’s decision began when the appellant attended neurologist Dr. L.’s office on January 25, 2019. Following an assessment, Dr. L. filed a Medical Condition Report (“MCR”) with the Registrar of Motor Vehicles (“the Registrar under s. 203 of the HTA because he was of the opinion that the appellant was a danger on the road.
3In the report, Dr. L. wrote that the appellant was involved in motor vehicle accidents (“MVAs”) in 2009 and November 2018, both with concussions and with current significant aftermath. He indicated that the appellant was still suffering from debilitating headaches, sleep disturbance, and had a low in-office cognitive screening test score, although there may be an influence of language.
4On February 8, 2019 following a review of Dr. L.’s report, the Registrar suspended the appellant’s driver’s licence for medical reasons under s. 47(1) of the HTA.
5Over the following 13 months, new issues were raised about the cause of the appellant’s inability to drive safely. His licence currently remains suspended and I am tasked with reviewing the written and oral evidence before me, and either upholding the Registrar’s decision to suspend or reinstating the appellant’s licence.
6Having considered all of the evidence and for the reasons that follow, I confirm the Registrar’s decision to suspend the appellant’s driver’s licence.
B. ISSUES:
7The 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 safely.
8To answer that question, I will address the following issues:
a. Does the appellant suffer from a medical condition or conditions?
b. Are the appellant’s medical conditions, if any, likely to significantly interfere with his ability to drive a vehicle safely?
C. LAW:
9The Registrar is responsible for ensuring that drivers are medically fit to drive vehicles on the highway. The Registrar’s powers are set out in s. 47(1) of the HTA, specifically in this case, 47(1)(g) and in s. 14(1)(a) of O. Reg. 340/94 (the “Regulation”). Under s. 14(2)(b) of the Regulation, the Registrar may require a driver to provide satisfactory evidence that he or she is able to drive safely. A person whose licence is suspended under these provisions may appeal the suspension to the Tribunal under s. 50(1) of the HTA.
10On appeal, the Registrar has the burden of establishing that the licence should remain suspended on a balance of probabilities.
11Following a hearing, the Tribunal may, under s. 50(2) of the HTA, confirm, modify or set aside the decision or order of the Registrar.
D. EVIDENCE AND ANALYSIS:
a. Does the appellant suffer from a medical condition or conditions?
12The evidence before the Tribunal indicates that the appellant suffers from or recently suffered from a number of medical conditions.
13The respondent’s agent confirmed at the hearing on March 24, 2020 that only the appellant’s reported diagnoses of cognitive impairment and obstructive sleep apnea are currently of concern with respect to driving safely.
i) Does the appellant suffer from cognitive impairment (“CI”)?
14I find on a balance of probabilities, that the appellant suffers from CI.
15Dr. L.’s January 25, 2019 MCR stated that the appellant had a low in-office cognitive screening test score, although there may be an influence of language. The appellant scored 19/30 on the MoCA (Montreal Cognitive Assessment), with a score of 26 or higher considered to be normal.
16Dr. R., the appellant’s primary care physician since 2015, completed a Cognitive Assessment form on March 24, 2019. In this form she indicated that she has not performed any in-office cognitive screening tests but that the appellant suffers from mild CI which is stable with on-going symptoms (base-line symptoms from 2009 MVA), that his memory has improved and that he is adherent to his treatment regimen.
17Dr. L.’s February 3, 2020 follow-up note indicated that this office visit was regarding post traumatic headaches, obstructive sleep apnea and short-term memory dysfunction.
18The appellant testified that his memory has improved since his November 2018 MVA, but that he still has some short-term memory issues. When questioned if he had a recent in-office cognitive (memory) test done, he stated that in December 2019 he was referred to a new psychiatrist for a second opinion, and an in-office memory test was performed. This consultation note was not submitted as evidence and the appellant does not know the cognitive test score.
19Based on the evidence presented I find that the appellant suffers from CI.
ii) Does the appellant suffer from obstructive sleep apnea (“OSA”)?
20I find that the evidence presented establishes that the appellant suffers from OSA.
21The appellant underwent an overnight sleep study on September 2, 2019, the results of which were submitted as evidence. Respirologist Dr. K., in her follow-up note dated October 16, 2019, stated that the appellant had been diagnosed with OSA.
22The appellant testified that he has been diagnosed with mild OSA.
23Based on the evidence presented, I find that the appellant has OSA.
b. Are the appellant’s medical conditions, if any, likely to significantly interfere with his ability to drive a vehicle safely?
24The Registrar has the burden of establishing that the appellant’s medical condition or conditions are likely to significantly interfere with his ability to drive a motor vehicle safely. I find that the Registrar has met its burden.
25Section 14(2)(a) of the Regulation allows the Registrar to consider the Canadian Council of Motor Transport Administrators Medical Standards for Drivers (the “CCMTA Standards”) when determining whether the requirements of s. 14(1) are met. Similarly, the Tribunal may take the CCMTA Standards into consideration, although they are not binding requirements.
26Although I am not bound by the CCMTA Standards, Chapters 6 (CI including dementia) and 18 (Sleep disorders) provide guidance in this case.
i) Is the appellant’s CI likely to significantly interfere with his ability to drive a vehicle safely?
27I find on a balance of probabilities, that the appellant’s medical condition of CI is likely to significantly interfere with his ability to drive a vehicle safely.
28The Registrar is of the opinion that without completion of a satisfactory functional driving assessment (“FDA”), the appellant’s condition of CI is likely to significantly interfere with his ability to drive a vehicle safely.
29In January 2019, under s. 203 of the HTA, neurologist Dr. L. filed a MCR, indicating that he was of the opinion that the appellant was suffering from a medical condition that may make it dangerous for the appellant to operate a motor vehicle. Neither of Dr. L.’s follow-up office notes (June 17, 2019 and February 3, 2020) have indicated that he has changed his opinion on this matter.
30Dr. R. in her many completed forms and communications to the Registrar (March – June 2019) stated that: the appellant’s medication regimen does not result in side effects that may impair his ability to safely operate a motor vehicle, he does not have any active symptoms which can affect driving, she does not have concerns regarding the appellant’s ability to operate a vehicle safely and that she does not believe that he requires a FDA.
31It is not clear to me what Dr. R. is basing her opinion on. She stated that the appellant has mild CI, yet she has not performed any in-office cognitive screening tests on the appellant in 2019-2020. Furthermore, the Canadian Medical Association Driver’s Guide (https://joulecma.ca/evidence/CMA-drivers-guide), a guide prepared to help Canadian physicians determine whether or not their patients are medically fit to drive a motor vehicle safely, states that good cognitive ability is the foundation of competent driving and people with mild dementia (CI) should receive comprehensive off- and on-road testing at specialized driving centres. Moreover, there is no indication in Dr. R.’s reports or communications in evidence that she ever considered that the appellant may have OSA, a diagnosis that can cause CI when left untreated (to be discussed later).
32Although I am not bound by the CCMTA Standards, Chapter 6 states that cognitive problems often have a direct effect upon fitness to drive and any indications of possible CI compromises fitness to drive and must not be neglected by clinicians. Furthermore, this Chapter states that no in-office test or battery of tests, including a cognitive screen such as MoCA have sufficient sensitivity or specificity to be used as the sole determinant of driving fitness in all cases. However, abnormalities in these tests indicate a requirement for further testing.
33The appellant acknowledged that he believes in ensuring public road safety. However, he is of the opinion that his memory has improved enough that he can drive safely without hurting others.
34By letters dated April 11, 2019 and May 15, 2019 the Registrar requested that the appellant complete a satisfactory FDA at an approved centre.
35However, the evidence before me indicates that the appellant chose not to complete a FDA even though he was granted temporary driver’s licences for June 6, 2019 and July 10, 2019 FDA assessments.
36I prefer the opinion of neurologist Dr. L. over that of Dr. R. and the appellant with regards to the appellant’s known CI and the need for a FDA to determine fitness to drive. It is not clear what Dr. R. is basing her fitness to drive opinion on, her opinion is not in keeping with the Canadian Medical Association Driver’s Guide recommendations for patients with mild CI and the appellant chose not to complete two scheduled FDA’s.
37Taking all the evidence into consideration, I find on a balance of probabilities, that the appellant’s medical condition of CI is likely to significantly interfere with his ability to drive a vehicle safely.
ii) Is the appellant’s OSA likely to significantly interfere with his ability to drive a vehicle safely?
38I find on a balance of probabilities that the current status of the appellant’s OSA is likely to significantly interfere with his ability to drive a vehicle safely.
39On June 17, 2019 the appellant saw Dr. L. for a follow-up visit. The office note indicated that the appellant looked very fatigued, the fatigue will impact profoundly on the appellant’s cognitive function, and he strongly urged the appellant to go through with the sleep study that he previously recommended. Furthermore, Dr. L. stated, “Once the sleep is managed, I feel he should be allowed to undergo a detailed on-road driver’s safety test…”.
40The appellant first consulted with Dr. K. on July 31, 2019. At this visit, Dr. K. noted that the appellant’s verbal Epworth Sleepiness Score (“ESS”) was elevated at 16. The ESS questionnaire is a reliable and valid scale for measuring a person’s general level of daytime sleepiness. A score of 10 or greater (out of 24) raises concerns (https://epworthsleepinessscale.com/about-the-ess/).
41On October 16, 2019 the appellant was seen in follow-up by Dr. K. and CPAP equipment was prescribed for his OSA. However, the appellant testified that due to financial issues (now unemployed and using ODSP for partial coverage) he only received his CPAP equipment days before the March 24, 2020 hearing. He further elaborated that he has not yet been shown how to use the CPAP and that the clinics are now closed due the current conditions in Ontario and Canada.
42As per Dr. L.’s February 3, 2020 note, untreated OSA will deprive the appellant of normal alertness during the day, can influence mood and short-term memory function, and of course he cannot drive.
43The appellant testified that despite a weight loss of 12 pounds he still, sometimes, requires day time naps (i.e. still has some daytime sleepiness). No formal ESS has been performed since July 2019.
44I note that Chapter 18 of the CCMTA Standards indicates that drivers with sleep disorders: are not able to compensate for their impairment; that their impairment is episodic sudden incapacitation; and that the majority of studies reveal that individuals with OSA have a 2 to 4 times greater risk for a crash and the crashes result in more severe injuries. Furthermore, Chapter 18 indicates that CPAP is the most effective treatment for OSA and the only one which has been shown to reduce the risk of MVAs.
45Taking all the evidence into consideration, I find on a balance of probabilities that the appellant’s untreated OSA is likely to significantly interfere with his ability to drive a vehicle safely.
46I acknowledge the burden and stress that the lack of a driver’s licence is continuing to have on the appellant and his family, however driving is a privilege, not a right.
47While I understand the practical challenges that can result from a licence suspension, I must apply the provisions of the HTA and Regulation, keeping in mind the objective of ensuring public road safety.
48In summary, I find on a balance of probabilities that individually or cumulatively the appellant’s medical conditions of CI and OSA are likely to significantly interfere with his ability to drive a vehicle safely. In arriving at this conclusion, I have relied on the following:
The appellant has been diagnosed with CI by more than one physician.
The appellant admits to ongoing short-term memory issues.
Causes of CI can be multifactorial (e.g. post traumatic brain injury, OSA, Alzheimer’s disease etc.).
Good cognitive ability is the foundation of competent driving.
Recommendations by the Canadian Medical Association state that people with mild CI should receive comprehensive off- and on-road testing at specialized driving centres.
The appellant has yet to complete a FDA.
The appellant has been formally diagnosed with OSA which is currently untreated.
Impairment from OSA is episodic sudden incapacitation. Studies indicate that individuals with OSA have a 2 to 4 times greater risk for a crash and the crashes result in more severe injuries.
The appellant’s ESS (daytime sleepiness score) recorded July 31, 2019 was elevated at 16, with a score of 10 or greater raising concerns.
Despite losing weight, the appellant admits that he still, on occasion, suffers from some daytime sleepiness.
The appellant has not yet been instructed on the use of his CPAP equipment which he only very recently obtained.
CPAP is the most effective treatment for OSA and the only one which has been shown to reduce the risk of MVAs.
The appellant’s treating neurologist, Dr. L., still recommends a FDA once the appellant’s OSA is treated and controlled.
49When able, I encourage the appellant to continue working with his team of health care professionals to improve his medical conditions and to liaise with the Registrar with regards to his ongoing progress.
E. ORDER:
50For the reasons set out above, pursuant to subsection 50(2) of the HTA, the Registrar’s decision to suspend the appellant’s driver’s licence is confirmed.
LICENCE APPEAL TRIBUNAL
_______________________
Dr. Erica Weinberg, Member
Released: March 30, 2020