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:
Dakota Barnhardt
Appellant
and
Registrar of Motor Vehicles
Respondent
DECISION AND ORDER
Panel: Dr. Erica Weinberg, Member
Appearances:
For the Appellant: Dakota Barnhardt, appellant
Stephanie Barnhardt, appellant’s wife
For the Respondent: Stephen Grootenboer, agent
Heard by Teleconference: November 23, 2021
A. Overview:
1Dakota Barnhardt (the “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 issue in this appeal is whether the appellant’s reported medical condition of severe hypoglycemia is likely to significantly interfere with his ability to drive a vehicle safely.
3Having considered all of the evidence and for the reasons that follow, I find that the Registrar of Motor Vehicles (the “Registrar”) has not met the burden of establishing that the appellant’s medical condition is likely to significantly interfere with his ability to drive a vehicle safely. Therefore, I set aside the decision of the Registrar to suspend the appellant’s driver’s licence for medical reasons.
B. ISSUES:
4The issue in this appeal is whether the appellant suffers from severe hypoglycemia, a medical condition, which is likely to significantly interfere with his ability to drive a vehicle safely.
5To answer that question, I will address the following issues:
a. Does the appellant suffer from severe hypoglycemia?
b. If the appellant suffers from severe hypoglycemia, is it likely to significantly interfere with his 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, on a balance of probabilities, of establishing that the licence should remain suspended.
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.
11Section 14(2)(a) of the Regulation allows the Registrar to consider the Canadian Council of Motor Transport Administrators’ Medical Standards for Drivers [February 2021] (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.
D. EVIDENCE AND ANALYSIS:
a. Does the appellant suffer from severe hypoglycemia?
12I find, on a balance of probabilities, that the appellant suffers from severe hypoglycemia.
13On October 9, 2021, the Ministry of Transportation (the “Ministry”) received an unsolicited Medical Condition Report (“MCR”) from emergency room physician, Dr. W. On the MCR, Dr. W. indicated that the appellant suffered a seizure due to hypoglycemia. Dr. O. also wrote that the appellant has insulin-dependent diabetes (“DM”) which is tightly controlled using: an insulin pump, a continuous glucose monitor (“CGM”) and finger prick checks (capillary blood glucose, “CBG”).
14By letter dated October 12, 2021, the Registrar suspended the appellant’s driver’s licence effective October 21, 2021 and requested that a Diabetes Assessment (“DA”) form be completed by the appellant’s treating physician.
15The appellant’s treating endocrinologist, Dr. B., submitted a narrative letter to the Ministry and a completed DA form both dated October 27, 2021.
16On the DA form, Dr. B. indicated that the appellant:
has Type 1 DM, treated with insulin;
demonstrates good knowledge of the condition and its management, and monitoring and assessment indicate effective blood glucose (“BG”) control;
has A1C results consistent with his BG logs;
has not experienced any episodes of hypoglycemia unawareness in the past three months and has not had more than one reported episode of hypoglycemia unawareness in the past 12 months;
had a reported episode of severe hypoglycemia requiring outside intervention in the past six months;
has regained adequate glycemic control; and
is “super compliant and knowledgeable”, his CGM misread his BG due to a technical glitch which has been addressed.
17As noted above, the Tribunal is entitled to take the CCMTA Standards into consideration but is not bound by them. The CCMTA Standards states that severe hypoglycemia is commonly defined as, “hypoglycemia that requires outside intervention to abort, or that produces an alteration in level of consciousness or loss of consciousness. The altered or reduced level of consciousness prevents a person experiencing severe hypoglycemia from taking appropriate action.”
18The appellant testified that he has been living with Type 1 DM for 16 years. He does not deny that he suffered a seizure due to severe hypoglycemia requiring outside intervention around 3:00 a.m. on October 9, 2021. The event was witnessed and aborted by his wife, and the circumstances leading up to the event will be described below.
19Based on the above, I find on a balance of probabilities that the appellant suffers from severe hypoglycemia.
b. If the appellant suffers from severe hypoglycemia, is it likely to significantly interfere with his ability to drive a vehicle safely?
20The Registrar has the burden of establishing, on a balance of probabilities, that the appellant’s medical condition is likely to significantly interfere with his ability to drive a motor vehicle safely. I find that the Registrar has not met that burden.
21The respondent acknowledged that: he had received the appellant’s three submissions from November 22, 2021; the submissions had been sent to the Medical Review department; and he did not hear back from the Medical Review department prior to the hearing.
22As per its November 12, 2021 letter to the appellant, the Registrar is currently of the opinion that it requires confirmation that the appellant has not experienced any severe hypoglycemic reactions and his condition has remained stable for a period of six months, receipt of a recently conducted A1C level which is congruent with the appellant’s blood logs and confirmation that a stable glycemic control has been re-established.
23The respondent stated that the Registrar is relying on 7.6.4 of the CCMTA Standards, “Episode of severe hypoglycemia – Non-commercial drivers”. I note that this CCMTA Standard also applies to severe hypoglycemia while sleeping and states that non-commercial drivers are eligible for a licence if:
no further episodes of severe hypoglycemia within the past 6 months;
earlier re-licensing can be considered if an appropriate specialist indicates that glycemic control has been re-established; and
conditions for maintaining a licence are met.
24The respondent acknowledged that the Registrar had reviewed Dr. B.’s letter and DA form from October 27, 2021 which indicated that: the appellant had already re-established adequate glycemic control; the appellant’s A1C results were consistent with his BG logs; Dr. B. was of the opinion that the appellant is not in any way a threat to himself or others when he drives; and Dr. B. supports reinstatement of the appellant’s driver’s licence. However, the respondent stated that given the fact that the episode of severe hypoglycemia occurred approximately six weeks prior to the hearing, a longer period of stability is prudent.
25The appellant testified that he: sees his endocrinologist, Dr. B., every three months; his A1C levels are within an acceptable range and congruent with his BG logs; denies ever having severe hypoglycemia while awake; denies having hypoglycemia unawareness (stating that, while awake, he can pick up his symptoms of hypoglycemia in the 4.5-4.0 mmol/L range); tests his CBG many times per day; carries rapid acting glucose products with him during the day; always tests his BG with CBG prior to driving (i.e. does not rely on his CGM readings); pulls over and tests his CBG regularly on longer drives; and aims to be a very well-controlled diabetic.
26The appellant went on to further testify that more than four years ago, after an episode of nighttime severe hypoglycemia and the volatility of his equipment and multiple daily insulin injections at that time, for safety reasons he switched to an insulin pump paired with both CGM hardware (Medtronic) and accompanying software (CareLink). With this system he: gets alarms or alerts (vibrating and audible) for high or low BG (which he sets differently for day and night, e.g. hypoglycemia ≤3.9 mmol/L daytime, ≤4.5 mmol/L nighttime); runs different basal insulin rates day and night; has his basal insulin delivery suspended at low glucose levels; and can manually bolus insulin based on CBG when needed. This system, which enables the appellant to take early remedial action, is in addition to the multiple daily CBG measurements he takes. The appellant stressed, as per the manufacturer, that: there can be discrepancies with readings; sensors take time to come to equilibrium (particularly the first 12-24 hours after insertion) but after that time frame the readings are quite close to CBG readings; equipment needs charging and calibrating; and malfunctions or failures can happen as with any medical device. He stated that his sensor needs changing every week and that he tries to change it over a weekend, so that if there are problems his wife would be available to drive if needed. The appellant went through chart and graph data generated from his system to show current and past glycemic control, including the period of October 2021. He emphasized that during daytime hours, when he would be awake and driving, he has good glycemic control with few alarms or alerts.
27The appellant and his wife (who is a registered nurse) went on to describe the events of October 8 and 9, 2021. At about 10 a.m. on October 8, 2021, the appellant removed his old sensor. He put in the new sensor at about 3:30 p.m. and initiated the sensor around 9 p.m. From 10 a.m. that morning, he monitored his DM with CBG. That night and on the early morning of October 9, 2021, he had “high alerts” from his system as follows. At about:
10:30 p.m. his system registered 11 vs. CBG of 4.8;
11:15 p.m. his system registered 12.5 vs. CBG of 5.3;
1:20 a.m. his system registered 15 vs CBG of 10.1; and
2:00 a.m. his system registered 16.
At 2:00 a.m., the appellant did not do a CBG, but administered a correction insulin bolus calculated based on the 1:20 a.m. CBG of 10.1.
28The appellant’s wife stated that she was up at around 3:00 a.m. to resettle their young daughter. As is her custom, as she was getting back into bed, she asked the appellant if he was “OK”. When he did not respond, she removed the blankets and found him diaphoretic (sweating heavily). She then witnessed the appellant having a tonic-clonic seizure (38 seconds). She administered intramuscular Glucagon (to raise his BG) and the appellant remained post-ictal (a post-seizure state) for about 10 minutes. She testified that the alarm on her husband’s system “did not catch the low” and did not go off until after his seizure and the Glucagon was given.
29The appellant testified that he showed Dr. B. his BG logs and charts from the event within 2-3 days of the event and that his glycemic control was back to normal within 48 hours even though his basal insulin flow (through his pump) had been stopped while he was in the emergency room.
30The appellant is of the opinion that: the above was an isolated event; he has never experienced severe hypoglycemia nor hypoglycemia unawareness during daytime hours; his BG logs/graphs reveal weeks and years of good BG control; the malfunction of his sensor occurred while he was asleep and would not occur during the day when he might be driving as he purposely does not start calibrating his sensor in the morning; and he would not jeopardize the safety of himself, his family or others.
31Dr. B., in his October 27, 2021 letter to the Ministry confirmed that the appellant “has never had hypoglycemia while awake”, tests his BG “dozens of times per day”, “carries sugar”, “prior to driving he tests with a CBG” and “does not rely on his CGM when he gets behind the wheel”. In addition, Dr. B. states in this letter that he does not think that the appellant is in any way a threat to himself or others when he drives and respectively requests that the Ministry consider reintroducing the appellant’s licence expeditiously.
32The overriding consideration in this appeal is whether the Registrar has proven, on a balance of probabilities, that the appellant’s severe hypoglycemia is likely to significantly interfere with his ability to drive a motor vehicle safely.
33I note under “Rationale” for 7.6.4 of the CCMTA Standards it states, “severe hypoglycemia indicates a lack of glycemic control and the potential for further hypoglycemic events.”
34Based on the evidence before me, I find in this particular case, that the appellant’s severe hypoglycemia episode while sleeping on October 9, 2021 was primarily due to a technical glitch/sensor problem with his system and does not, on a balance of probabilities, indicate a lack of glycemic control and the potential for further hypoglycemic events. Furthermore, it is the appellant’s practice for sensor initiation/calibration to not do this during weekday daytime hours when he might be driving.
35Moreover, based on the evidence before me, I find that the appellant has fulfilled the requirements for earlier re-licencing under 7.6.4 of the CCMTA Standards. The Standard states, “earlier re-licensing can be considered if an appropriate specialist indicates that glycemic control has been re-established”. I note there is no time frame specified for consideration of earlier re-licensing mentioned in the CCMTA Standard. Dr. B., an appropriate specialist, has clearly confirmed that the appellant’s glycemic control has been re-established and he is supportive of reinstatement of the appellant’s driving licence. Moreover, Dr. B. wrote that he does not think that the appellant is in any way a threat to himself or others when he drives.
36After a careful consideration of the totality of the evidence before me, and based on the above, I find that the Registrar has not discharged the onus of establishing on a balance of probabilities that the appellant’s medical condition of severe hypoglycemia is likely to significantly interfere with his ability to drive a vehicle safely.
E. ORDER:
37For the reasons set out above, pursuant to subsection 50(2) of the HTA, I set aside the Registrar’s decision to suspend the appellant’s driver’s licence for medical reasons.
LICENCE APPEAL TRIBUNAL
_______________________
Dr. Erica Weinberg, Member
Released: December 2, 2021