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

Date: 2020-07-30

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:

Denise Jackson

Appellant

and

Registrar of Motor Vehicles

Respondent

DECISION AND ORDER

Panel: Dr. Erica Weinberg, Member

Appearances:

For the Appellant: Denise Jackson, self-represented

For the Respondent: Kyle Biel, agent

Heard by Teleconference: July 16, 2020

A. Overview:

1The appellant appeals the suspension of her Class G1 driver’s licence under s. 47(1) of the Highway Traffic Act, R.S.O. 1990, c. H.8 (the “HTA”).

2The issue in this appeal is whether the appellant’s ability to drive safely is likely significantly affected by the neurological condition Chronic Regional Pain Syndrome (“CRPS”).

3Having 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 for medical reasons.

B. ISSUES:

4The issue in this appeal is whether the appellant suffers from a medical condition, specifically CRPS, which is likely to significantly interfere with her ability to drive a vehicle safely.

5To answer that question, I will address the following issues:

a. Does the appellant suffer from CRPS?

b. If the appellant suffers from CRPS, is it likely to significantly interfere with her ability to drive a vehicle safely?

C. LAW:

6Under the HTA the Registrar is responsible for ensuring that drivers are medically fit to drive vehicles on the highway. In this case the Registrar acted pursuant to s. 47(1) of the HTA and s. 14(1)(a) of O. Reg. 340/94 under the HTA (the “Regulation”).

7Under 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.

8A person whose licence is suspended under these provisions may appeal the suspension to the Tribunal under s. 50(1) of the HTA.

9On appeal, the Registrar has the burden of establishing that the licence should remain suspended on a balance of probabilities.

10Following 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 CRPS?

11I find on a balance of probabilities that the appellant suffers from CRPS.

12The appellant testified that in 2011 she suffered an injury at work when a keg of beer fell on her feet and lower legs. She stated that in the latter part of 2012 or early 2013 she was diagnosed with CRPS.

13The appellant attended a multidisciplinary or interprofessional clinic (e.g. occupational therapists, physical therapists, physicians, etc.) in the city in which she resided at that time for the treatment of her CRPS. The appellant was off work from the date of her injury and by late 2013 she no longer needed crutches or a cane to walk.

14In 2014 the appellant moved to another city in Ontario in an effort to upgrade her schooling and change careers.

15The appellant testified that in 2018 she needed to start driving again to advance her career, having not driven since her work accident in 2011, barring some attempted driving lessons in 2016. She stated that she had a discussion with Dr. N. regarding this and elected to attend an approved Functional Driving Assessment (“FDA”) centre as she “felt more comfortable” going there as opposed taking lessons from a driving instructor again.

16On September 17, 2018 the appellant had a FDA at an approved driving centre.

17In the in-class portion of the FDA report the occupational therapist (“OT”) Ms. H., indicated that the appellant had:

A medical history of:

• a workplace injury in 2011 resulting in soft tissue and neurological injuries;

• a diagnosis of CRPS around 2012 with symptoms of chronic pain, stiffness, numbness and spasms in both lower legs;

• being told that the CRPS would likely worsen; and

• discontinuing her pain medications as she did not find them helpful.

A physical examination showing:

• neuropathy in both shins;

• pain and swelling in her feet;

• moderately slowed coordination in both of her feet; and

• no mention of weakness in the appellant’s lower limbs.

18The appellant stated that on occasion she attends a specific medical walk-in-clinic (“WIC”) near her home for care when her physician is not available.

19On March 9, 2019 the appellant presented to Dr. G. at the WIC to complete a Musculoskeletal (“MSK”) Condition/Motor Function Ability Impairment form requested by the Registrar. Dr. G. stated on the completed MSK form that:

• she has not been involved in the ongoing management of the appellant;

• the appellant’s primary physician is Dr. S. who was away until April 2019;

• the MSK condition in question was a fracture/sprain in 2011 (as opposed to “other”);

• the condition is temporary; and

• on physical examination there was no evidence of MSK or neurological abnormality of the lower extremity.

20On May 2, 2019 the appellant presented to Dr. F. at the WIC to provide further information to the Registrar. In his note to the Registrar Dr. F. stated that his note was an addendum to the MSK form submitted by Dr. G. and, based on his clinical assessment and review of the appellant’s records at the WIC clinic, the appellant’s condition is “treated and well controlled”.

21The appellant submits that her CRPS has completely resolved.

She stated that:

• her night pain and spasms resolved by the time she moved in 2014;

• the muscle spasms she experienced in 2016 while attempting driving lessons were caused by anxiety or nervousness, not CRPS;

• during the on-road part of the FDA on September 17, 2018 her body was weak, she did not suffer from pain, discomfort or muscle spasms in her legs and that any on-road problems noted by Ms. H. (including the slowed coordination) were from nervousness or anxiousness from not driving in so long;

• she frequently has swelling in her feet when she sits for a while; and

• she is now able to walk distances, can go up and down stairs and even run.

22For the reasons set out below, I prefer the opinions and observations of Ms. H. and Dr. F. over that of the appellant and Dr. G. with respect to the current status of the appellant’s CRPS.

23The appellant submits that her CRPS has resolved and there is nothing physically wrong with her. However, the appellant did not submit any up-to-date medical information from Drs. N. and S., the two physicians who have known her far more comprehensively since 2014, than either Drs. G. or F.

24Furthermore, the appellant is of the view that the slowed coordination in her feet noted by Ms. H. in September 2018 was due to her inexperience in driving and her weakness at that time. However, in the FDA Ms. H. did not mention that either of the appellant’s legs or feet were weak on examination. In addition, although the appellant admits to saying “ow” during the FDA, she denied having pain or a muscle spasm during the FDA.

25Dr. G., who stated she had never been involved in the appellant’s ongoing medical management, based her opinion of the appellant’s current medical condition on the appellant’s self-reporting on direct questioning, plus a physical examination. Dr. G. stated that she asked the appellant to supply a copy of the FDA. I find that the latter statement means that the WIC did not have a copy of the appellant’s FDA at that time.

26Some of the answers on Dr. G.’s March 9, 2019 MSK form are inconsistent with other evidence before me. Dr. G. checked off that the appellant’s MSK condition was “fracture/sprain” in 2011, rather than “other”. No where on the MSK form did Dr. G. indicate that the appellant’s condition was CRPS. Furthermore, Dr. G. answered negatively to “Is this a significant physical condition that may impair the patient’s ability to operate a vehicle” and wrote in by hand that “patient states was assessed by OT and road test January 2018.” As previously stated, the FDA was done in September 2018 and Ms. H. on physical examination noted ongoing sensory, motor and potentially autonomic abnormalities bilaterally in the appellant’s lower limbs, which are medically consistent with ongoing CRPS. Taking the above into consideration and the fact that many primary care or WIC physicians are not very familiar with CRPS, including the nuances involved for a precise examination for ongoing signs of CRPS, I place less weight on Dr. G.’s report.

27Dr. F. in his note to the Registrar dated May 2, 2019 indicated that based on his clinical assessment and review of their records at the WIC, “the patient’s condition is treated and well controlled.” In medical terms, “well controlled” does not mean resolved.

28As previously stated, at the FDA Ms. H. found on physical examination of the appellant, ongoing sensory, motor and potentially autonomic abnormalities bilaterally in the appellant’s lower limbs, which are consistent with ongoing, albeit likely less severe, CRPS than the appellant experienced from 2012-2014.

29Furthermore, I find that Ms. H., a trained OT who performs FDAs at an approved centre, would have on a balance of probabilities more knowledge on the relatively uncommon medical diagnosis of CRPS over that of Drs. G. and F.

30Moreover, I find on a balance of probabilities that, based on her qualifications, Ms. H. would know how to perform a more thorough and directed examination of the appellant’s lower extremities looking for subtle signs of CRPS, over that of Dr. G. An examination looking for subtle signs of CRPS involves far more than observing posture and reflexes, which, as per the appellant’s Notice of Appeal and her testimony, her doctor checked and were found to be fine.

31Therefore, I put greater weight on Ms. H.’s examination over that of Dr. G. done approximately six months later.

32Furthermore, although the appellant does have explanations for some of Ms. H.’s physical findings at the FDA, I cannot overlook the facts that Ms. H. found that the appellant had moderately slowed coordination in both of her feet and Ms. H. did not report that the appellant’s lower extremities were weak. Changes in limb coordination is a known potential consequence of CRPS in the affected limb.

33Therefore, I put greater weight on Ms. H.’s physical findings over the lack of symptoms expressed by the appellant at the hearing. Ms. H.’s physical findings are medically consistent with ongoing CRPS.

34Taking all the evidence into consideration and based on the above, I find on a balance of probabilities that the appellant suffers from ongoing CRPS.

b. If the appellant suffers from CRPS, is it likely to significantly interfere with her ability to drive a vehicle safely?

35The Registrar has the burden of establishing that the appellant’s CRPS is likely to significantly interfere with her ability to drive a motor vehicle safely. I find that the Registrar has met that burden.

36As previously stated on September 17, 2018 after having consulted with Dr. N., the appellant underwent an elective FDA.

37In the ‘Additional Comments’ section of the FDA report, Ms. H. described some of the events of the on-road FDA.

38Specifically, Ms. H. wrote that “on-road, emergency braking was tested d/t (due to) slowed coordination. As 2nd attempt was slower, another was attempted which caused a spasm & discomfort in her right calf, shin & quadriceps muscle. A break was taken to perform leg stretches. After drive resumed, there appeared to be a deterioration in her performance with vehicle positioning, late braking & more rolling through stops, therefore drive was aborted. It was recommended that in collaboration with Osteopath, she commit to a regular stretching program for about 2 weeks to see if she could better manage the spasms & then do 3-4 training sessions as needed with reassessment. Unfortunately she had to decline for financial reasons at this time. Therefore, driving cessation had to be recommended.”

39The appellant’s recollection of the on-road testing and conversations with Ms. H. are significantly different. The appellant stated that she did not feel the on-road test was finished early and it was not aborted as no one took over the controls. The appellant denied having a muscle spasm or discomfort in her lower extremities at any time during the test and believes that the problem with her braking was from her lack of driving for years and that she was using her toes, not the flat part of her foot, to apply the brakes. The appellant also testified that Ms. H. did not recommend going back to her Osteopath and did not say that another FDA would be necessary.

40I find on a balance of probabilities that Ms. H.’s report completed following the FDA is a more reliable reflection of the events on September 17, 2018 than that of the appellant some 22 months later.

41The Registrar is of the opinion that in order to determine whether the appellant can safely operate a vehicle, that a satisfactory FDA from an approved rehabilitation centre is required.

42The appellant is of the opinion that she is a novice driver (having previously obtained a G2 licence but never a full G licence) who needs to take driving lessons again, is currently medically fine and capable of driving.

43Furthermore, the appellant stated that as a single mother she does not take chances and would not go behind the wheel if she felt she were not capable of driving.

44However, in 2016 the appellant did go behind the wheel for driving lessons, which were abandoned secondary to lower limb muscle spasms. Although the appellant attributes these muscle spasms to anxiety or nervousness, I find on a balance of probabilities that these episodic or involuntary muscle spasms in 2016 while driving were the result of the appellant’s ongoing CRPS at that time.

45Section 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.

46I find Part 1 and chapters 11 and 12 of Part 2 of the CCMTA Standards provide guidance in this matter.

47The CCMTA Standards describe important considerations when making a driver fitness evaluation. They emphasize a functional ability approach because many medical conditions may result in a wide range of impairment (from mild to severe) and drivers may vary in their own ability to compensate for the impairment. The CCMTA Standards categorize the functions necessary for driving as either cognitive, motor (including sensorimotor functions) or sensory (i.e. vision and hearing).

48There is no evidence before me that suggests that the appellant has either cognitive or sensory functional impairments.

49According to the CCMTA Standards, motor functions needed for driving (including sensorimotor) include: coordination, dexterity, gross motor abilities, range of motion, strength, flexibility and reaction time.

50Furthermore, the CCMTA Standards recommend reviewing and considering the best information available (e.g. medical assessments, functional assessments (including OT assessments, standard road tests, driver rehabilitation assessments, informed opinion, etc.) and other information such as the driver’s insight into their medical condition when making a driver fitness risk analysis evaluation.

51I acknowledge that the medical information submitted by Drs. G. and F. is chronologically more recent than that of Ms. H.

52However, I find the best information available to me to consider in the appellant’s case regarding her motor functions needed for driving is Ms. H.’s FDA report. Ms. H., a qualified OT who performs FDAs, found on physical examination of the appellant moderately slowed coordination bilaterally in her feet which translated in the on-road testing to impaired emergency braking, spasm and discomfort in her right calf, shin and quadriceps muscle, and necessitated a break in the on-road driving for stretching. Muscle spasm, as described by Ms. H. in this case, would be considered an involuntary spasm and potentially an episodic or unpredictable impairment in the motor functions necessary for driving.

53In addition, I acknowledge that the appellant feels that she is medically fine, is capable of driving, attributes her driving issues in 2016 and 2018 to nervousness or anxiousness and states that as a single mother she would not go behind the wheel if she felt were not capable of driving.

54However, I find that the above demonstrates lack of acceptance, poor judgment and poor insight into the ongoing chronic nature of her CRPS. Good insight and judgment are important factors in understanding how her CRPS may impair her functional ability to drive.

55I acknowledge the burden and stress that the lack of a driver’s licence is continuing to have on the appellant and her daughter, however driving is a privilege, not a right.

56While I understand the practical challenges that can result from a licence suspension, I must apply the provisions of the Act and Regulation, keeping in mind the objective of ensuring public road safety.

57I encourage the appellant to undergo another FDA to see whether her CRPS is still affecting her motor functions needed for safe driving or whether the OT involved can assist the appellant in finding ways to compensate for any residual motor function impairment, should it still exist.

E. ORDER:

58For the reasons set out above, pursuant to subsection 50(2) of the HTA, I confirm the Registrar’s decision to suspend the appellant’s driver’s licence for medical reasons.