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: 2020-12-07

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 downgrade a 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) 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 an ACZ licence which allowed him to drive many kinds of heavy vehicles.

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 Ottawa Hospital.

4The 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 April 29 the appellant’s driver’s licence was suspended for medical reasons, based on the medical condition report of the emergency room doctor, which indicated that the appellant had 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 EEG and an MRI which indicate his brain health is within normal range.

7On September 1, 2020, the appellant was advised by a letter from the Ministry of Transportation 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 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 uphold the Minister’s decision to downgrade the appellant’s licence pending confirmation that he has been seizure free for a period of one year.

ISSUES

9The issues to be addressed are:

• Does the Minister have reasonable grounds to believe that having regard to the appellant’s medical status, he will not operate a commercial motor vehicle safely?
• Given the appellant’s medical status, is it reasonable to require that he be “seizure free” for a period of one year from April 20, 2020. in order to have his commercial licence reinstated.

LAW

10Section 32(5)(b)(i) of 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”.

11Section 14(1) of Ontario Regulation 340/94 under the Act (“the Regulation”) 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 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

12The 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.

13The appellant was seen in the emergency room of the Ottawa Hospital at 7:31 a.m. on April 20, 2020 by Dr. J. P., who examined the appellant. Dr. P.’s notes 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.’s report 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. His heart sounds were normal as was his breath. He had a full range of motion in his limbs. The examination revealed a hematoma on each side of his tongue. Based on that examination, Dr. P. concluded that the appellant had had a new onset epileptic seizure.

14The appellant believes that his loss of consciousness was caused by an insect sting.

15The 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 house site.

16The appellant said that he had 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 Benadryl. The second, which occurred in late June 2020, caused a substantial swelling of his arm. Following that sting, the appellant consulted an 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 tested due to COVID restrictions, but should take precautions to avoid stinging insects and should carry a an Epipen and antihistamines. A post- testing report from Dr. F. dated September 16, 2020 indicated that the appellant was positive for yellow jacket/yellow hornet sensitivity and borderline positive to paper wasps, but stated that “the risk of progression from the large local reaction to a systemic allergic reaction is approximately 10% over his lifetime”. We do not accept that there is compelling evidence of an allergic reaction sufficient to cause loss of consciousness. We note that there was no evidence that the appellant exhibited symptoms of anaphylactic shock, specifically difficulty breathing, which would have led the paramedics to administer appropriate treatment for anaphylaxis.

Was this a seizure?

17The medical report of Dr. P. which led to the suspension of the appellant’s licence indicated that the appellant had several tests while in the hospital emergency room on April 20, 2020. These included an MRI, a CT scan of his head, an EEG and blood tests. An examination of his mouth indicated 2 hematomas, one on each side of the tongue. Dr. P. determined that a seizure had taken place and diagnosed “new onset epilepsy”. The appellant subsequently had additional tests from a neurologist which showed no brain abnormalities and the diagnosis of epilepsy has not been confirmed.

18An Epilepsy and Seizure Report by the appellant’s family physician D.J., dated November 6, 2020, concludes that it is “unclear” whether the incident in question was a “seizure vs. syncope”.

19Having carefully reviewed the appellant’s test results, we find there is substantial evidence that the appellant did have a generalized tonic clonic seizure for the following reasons:

• The auction house employee who found the appellant unconscious, described to the paramedics that the appellant was “convulsing”, which lead him to call for an ambulance.
• The appellant did not remember anything that happened prior to seeing the paramedics.
• The hematomas on both sides of the appellant’s tongue indicated the likelihood of his having bitten his tongue, a common sign of seizure.
• The results of the blood test taken in the emergency room indicate metabolic stress at a level which would distinguish a seizure from a simple syncope. Specifically, the lactate level of his blood, which is a known marker of tonic clonic seizure, exceeded normal limits. His lactate level at 8:08 a.m. was 2.9 as compared to the reference range of 0.5-2.5 mm/L.

Is it reasonable to require that the appellant be seizure free for 1 year following the April 2020 incident?

20The 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 its 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.

21The 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 spend many hours at the wheel, often in adverse weather or traffic conditions. The CCMTA standard for a solitary seizure with no evidence of epilepsy, recommends a seizure free period of 12 months and a normal EEG.

22At 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. In the winter months he is employed as a driver of snow sweeping vehicles and occasionally passenger transport vehicles at the Ottawa Airport. In either case, a loss of consciousness would have resulted in a disaster for the appellant and others. Fortunately, the appellant continues to have employment at the Ottawa Airport that does not require his commercial licence.

23While this Tribunal is not compelled to follow the CCMTA Standards, in these circumstances, we find it reasonable for the Minister to require a seizure free period of one year prior to considering reinstatement of the appellant’s commercial

DECISION AND ORDER:

24Based on the evidence, we find that at the time of the original medical suspension and at the time of the September1, 2020 downgrade, there were reasonable grounds for believing that the appellant suffered from a medical condition which would impair his ability to operate a motor vehicle of the ACZ class safely.

25The appeal is denied.

LICENCE APPEAL TRIBUNAL

Erica Weinberg M.D., Member

Harriet Lewis, Member