Slaweski v. Department of Transportation, Bureau of Driver Licensing , 2014 Pa. Commw. LEXIS 376 ( 2014 )


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  •           IN THE COMMONWEALTH COURT OF PENNSYLVANIA
    Dustin Z. Slaweski,                 :
    Petitioner :
    :
    v.                      :
    :
    Department of Transportation,       :
    Bureau of Driver Licensing,         : No. 171 C.D. 2014
    Respondent : Submitted: July 3, 2014
    BEFORE:      HONORABLE DAN PELLEGRINI, President Judge
    HONORABLE PATRICIA A. McCULLOUGH, Judge
    HONORABLE ROCHELLE S. FRIEDMAN, Senior Judge
    OPINION BY
    PRESIDENT JUDGE PELLEGRINI                     FILED: July 23, 2014
    Dustin Z. Slaweski (Slaweski) petitions for review of an order of the
    Pennsylvania Department of Transportation (Department) denying in part his
    exceptions to the Department Hearing Officer’s proposed report finding that
    Slaweski did not meet the minimal visual-safety standards set forth in 67 Pa. Code
    §83.3 and, therefore, denying his request to restore his license. For the reasons that
    follow, we affirm the Department’s order.
    I.
    The following facts are not in dispute.           In April 2010, the
    Department’s Bureau of Driver Licensing (Bureau) recalled Slaweski’s driver’s
    license after receiving information from his doctor that he was unable to comply
    with the peripheral-vision requirements set forth in 67 Pa. Code §83.3(e) due to a
    medical condition.1        Slaweski began treating with Ranjoo Prasad, O.D., (Dr.
    Prasad) an optometrist, who administered the Goldmann Perimetry test2 in March
    2011 upon Slaweski’s left and right eyes, individually (monocularly), and upon
    both eyes simultaneously (binocularly). The test yielded a baseline result showing
    a combined, maximum field of vision of 97 degrees. In April 2011, Dr. Prasad
    administered the test again, this time testing only binocularly and permitting
    Slaweski to use a Fresnel prism3 and “scanning.”4 Following the examination, Dr.
    Prasad issued a report concluding, “Dustin Slaweski’s total binocular ( both eyes )
    [sic] horizontal visual field was measured to be approximately 125 degrees, (85
    degrees left and 45 degrees right), using a 25 prism diopter, Fresnel prism placed
    temporally over the right lens of his glasses.” (Certified Record [C.R.] Exhibit 9,
    at 7-1.) In another report dated May 2011, Dr. Prasad added, “With the prism,
    1
    67 Pa. Code §83.3(e) provides, “A person shall have a combined field of vision of at
    least 120° in the horizontal meridian, excepting the normal blind spots.” Slaweski did not appeal
    the recall of his license, but rather sought medical treatment to resolve his visual deficiency. In
    November 2010, he provided the Bureau with a medical report indicating that his combined field
    of vision totaled less than 120 degrees in the horizontal meridian.
    2
    The Goldmann Perimetry test is a dynamic field-of-vision test whereby light emerges
    from behind the subject, and the subject presses a button to indicate when he first sees light in his
    peripheral vision. (Reproduced Record [R.R.] at 9a–10a, 14a.)
    3
    A Fresnel prism is “a plastic stick-on prism that bends light and when placed on your
    glasses with the base…[i]t bends the light towards your central vision and it allows you to be
    more aware by scanning into the field.” (Id. at 31a.)
    4
    “Scanning” describes “rapid eye movements into the direction of your field loss.” (Id.
    at 32a.) It “means moving your eye into the prism where it’s placed on your glasses and
    recognizing objects that are in that field loss, in that area of loss…where the Fresnel is
    positioned.” (Id.)
    2
    [Slaweski] meets Pennsylvania’s visual standards of 120 degrees combined visual
    field for driving.” (Id. at 7-5.)
    In November 2012, Dr. Prasad administered the Goldmann Perimetry
    test binocularly a third time and permitted Slaweski to use the prism and to scan.
    This examination yielded a combined, maximum field of vision of 120 degrees. A
    report followed, advising:
    Dustin Slaweski’s total combined binocular ( both eyes )
    [sic] horizontal visual field was measured to be 120
    degrees, (80 degrees left and 40 degrees right), using a 20
    prism diopter…prism placed temporally over the right
    lens of his glasses, and with scanning….
    ***
    With the prism, he meets Pennsylvania’s visual
    standards of 120 degrees combined visual field for
    driving.
    (C.R. Exhibit 9, at 17-1.) Slaweski requested that the Bureau restore his license
    and submitted the above-referenced reports in support of his application, which the
    Bureau ultimately denied.          An administrative hearing before the Department
    followed.5
    5
    Slaweski asserts that on December 23, 2011, the Bureau orally denied his request.
    Following the denial, Slaweski filed an appeal in the Court of Common Pleas of Bucks County
    (trial court), which was dismissed as untimely on the basis that the 30-day appeal period running
    from the Bureau’s April 2010 recall had expired. Subsequently, Slaweski filed a writ of
    mandamus and a motion for summary relief in this Court at Docket No. 684 M.D. 2012. We
    ordered that the Department hold an administrative hearing on Slaweski’s request for restoration
    for the purposes of creating a record and remanded the matter.
    3
    II.
    At the administrative hearing, the Department presented the testimony
    of Robert L. Owens, O.D., F.A.A.O., (Dr. Owens), a member of the Department’s
    Medical Advisory Board, who assists in evaluating the Department’s vision
    standards and proposes appropriate changes to them, and who was qualified as an
    expert in the fields of optometry vision standards and motorist vision. He testified
    that the Goldmann Perimetry test must be administered monocularly rather than
    binocularly, and that this procedural deficiency, alone, invalidated Slaweski’s test
    results. (R.R. at 10a.) He further stated that the test requires its subject to look
    straight ahead at a fixed point during the examination and that scanning or
    “looking from side-to-side,” is not permitted. (Id. at 10a–11a.) Specifically, he
    explained that “[s]canning means that you’re no longer holding a fixation reference
    point but moving it towards a different target,” and that it invalidates a visual-field
    test because “[i]f you move your reference point you move the entire visual field.
    So you can’t get an accurate measurement from point one—the zero point if you
    will, to the full extent. You’re shifting the whole peripheral field.” (Id. at 11a.)
    On cross-examination, he conceded that 67 Pa. Code §83.3(e) does not specifically
    preclude scanning or the use of a prism, and that he has not proposed changes to
    the regulation that would accomplish this end. (Id. at 14a.)
    Therefore, Dr. Owens concluded that Slaweski did not satisfy the
    visual-field requirements because they “do not allow any attempt at enhancing the
    natural peripheral visual field,” and “[t]he entire field would move with the
    scanning of a fixation point.     So we have a moving target.         We don’t have
    4
    something that we can actually measure the extent. The whole field is changing.”
    (Id.) He analogized:
    [Y]ou’ve got a tape measure and you’re trying to
    measure a section of the board. You have to start with
    the zero point, stretch the tape measure out, that’s its
    length. If somebody moved the tape measure down it’s
    not the same reference point. You’re shifting. You have
    to have a standard point and you’re measuring from that
    point. If you shift it it’s not the same measurement.
    (Id. at 14a–15a.) Dr. Owens also testified that these principles were standard,
    medically accepted procedures employed in administering the Goldmann
    Perimetry test, of which Dr. Prasad should be aware. (Id. at 15a.)
    In support of his request for restoration, Slaweski presented the
    testimony of Dr. Prasad, who was qualified as an expert in the field of optometry.
    Dr. Prasad testified that two different types of the Goldmann Perimetry test exist,
    one which permits scanning and one which does not. (Id. at 19a.) Dr. Prasad
    stated that the test with scanning is used “to determine how your peripheral visual
    field can extend or how much they [sic] can be further aware of it from a
    functional standpoint.” (Id.) Using the prism and scanning, Dr. Prasad testified
    that Slaweski satisfied the visual-field requirements of 67 Pa. Code §83.3(e). (Id.)
    On cross-examination, Dr. Prasad conceded that the Goldmann
    Perimetry test is generally administered monocularly, but stated that because the
    standard for driving was binocular, the test was administered to Slaweski
    binocularly. (Id. at 20a.) She further admitted that the binocular test yielded a
    5
    combined, maximum result of 95–97 without scanning, which falls short of the
    mandated 120 degrees, but she relied on his score with scanning. (Id.) When
    challenged about the procedure she employed, Dr. Prasad testified as follows:
    Q. And if you’re allowing someone to look from side
    to side while you’re conducting a test you’re not really
    testing their [sic] peripheral vision; isn’t that correct?
    A. Well he’s getting to the periphery so I would say yes.
    But that test is for peripheral vision scanning.
    Q. But if I look to the right I lose my vision to the
    left; correct?
    A. You’ll lose part of your vision to the left; yes.
    Q. Right.
    A. For field—if your field increases that side that you’re
    looking.
    Q. It doesn’t increase, it shifts; doesn’t it?
    A. I’m sorry. Oh, you’re aware of it more. It’s more of
    a peripheral awareness. An increased visual awareness I
    should say.
    Q. But nonetheless, Mr. Slaweski has 95 degrees field
    of vision. He may shift that 95 degrees to the right
    and he may shift that 95 degrees to the left by moving
    his eyes to the right or to the left. But he continues to
    have a 95 degree field of vision across the horizontal
    meridian; is that not correct? Is that correct?
    A. Correct. If he continues to look at the direction; yes.
    (Id.) Still, Dr. Prasad maintained that when Slaweski scans, he has a minimum,
    combined field of vision of 120 degrees in the horizontal median. (Id.)
    6
    Following the hearing, the Department’s Hearing Officer issued a
    proposed report and order, recommending that the matter be dismissed because
    Slaweski “cannot meet minimal visual safety stands [sic] as per the applicable
    regulations.” (C.R. Exhibit 14, at 12.)6 Specifically, the Hearing Officer found
    that the “accepted medical testing conditions” for the Goldmann Perimetry test
    require the subject to look at a fixed point, and that Slaweski’s use of scanning
    invalidated his test results because scanning “does not increase the field of vision,
    but merely shifts it in the direction in which the eyes are focused.” (Id. at 2–3, 4.)
    The Hearing Officer further concluded that scanning constituted an adaptation
    prohibited under Byers v. Department of Transportation, Bureau of Driver
    Licensing, 
    735 A.2d 168
    (Pa. Cmwlth. 1999). Noting that Slaweski’s March 2011
    test yielded a maximum combined field of vision of 97 degrees without scanning,
    the Hearing Officer found that Slaweski did not satisfy the minimum vision
    standards.
    Slaweski filed exceptions to the proposed report, after which the
    Secretary of the Department (Secretary) conducted a de novo review and denied
    them on substantive grounds.7 Relying as the Hearing Officer did on Byers, 735
    6
    The Hearing Officer also determined that Slaweski’s appeal was procedurally deficient
    because (1) he filed his appeal with the trial court on January 27, 2012, over 30 days after he was
    orally informed that the Bureau denied his request to reissue his license on December 23, 2011;
    (2) Slaweski failed to appeal the trial court’s determination that his appeal was untimely; and (3)
    the Bureau’s recall notice should have been appealed to the trial court, but instead, Slaweski filed
    an action with the Commonwealth Court in its original jurisdiction. (C.R. Exhibit 14, at 6–7.)
    Regardless, these grounds are not presently before us.
    7
    The Secretary struck the portion of the Hearing Officer’s proposed report which
    dismissed the matter for procedural reasons, finding that a restoration decision by the Bureau is
    not appealable until a formal denial has been issued, and because such a formal denial was never
    (Footnote continued on next page…)
    
    7 A.2d 168
    , the Secretary found that “evidence of adaption, e.g. scanning and use of
    a prism placed over the right lens of ones [sic] glasses during testing, is not
    relevant to a determination of competence under the regulations.” (C.R. Exhibit
    16, at 5.) As such, the Secretary adopted the Hearing Officer’s report regarding the
    merits of Slaweski’s request, and this appeal followed.8
    III.
    On appeal, Slaweski contends that the Secretary erred insofar as he
    denied the exceptions because 67 Pa. Code §83.3(e) does not specifically prohibit
    scanning, and, therefore, the scores from his tests during which he scanned are
    valid measurements of his peripheral vision.9
    (continued…)
    issued, the Department was responsible for the procedural confusion.        That portion of the
    decision has not been challenged.
    8
    Our review of an order issued by the Secretary of the Department is limited to
    determining whether the findings are supported by substantial evidence, whether the agency
    committed an error of law, whether the procedural provisions of the Administrative Agency
    Law, 2 Pa. C.S. §§501–508, 701–704, have been complied with, or whether any of the
    petitioner’s constitutional rights have been violated. 2 Pa. C.S. §704; Realmuto v. Department of
    Transportation, 
    637 A.2d 769
    , 770 n.1 (Pa. Cmwlth. 1994).
    After the Secretary issued his decision, Slaweski discontinued his action at Docket No.
    684 M.D. 2012 on the basis that it was moot. Slaweski then filed the instant appeal of the
    Secretary’s order in the nature of a petition for review.
    9
    We note that in Slaweski’s petition for review, he asserted nine grounds for appeal.
    Because the remaining grounds are not addressed in Slaweski’s brief, they are deemed waived.
    See Van Duser v. Unemployment Compensation Board of Review, 
    642 A.2d 544
    , 548 n.3 (Pa.
    Cmwlth. 1994).
    8
    While Slaweski is correct that the regulation does not specifically
    prohibit scanning, scanning is impermissible as it invalidates the very measure 67
    Pa. Code §83.3(e) seeks to create. 67 Pa. Code §83.3(e) seeks to ensure that all
    individuals possessing a driver’s license have a minimum, combined peripheral
    vision of 120 degrees.         Slaweski’s own treating physician, Dr. Prasad,
    acknowledged that when Slaweski’s sight was fixed on an object, his peripheral
    vision fell below the mandated 120 degrees. Nonetheless, Slaweski attempts to
    skirt this requirement by employing scanning, a practice which allows rapid eye
    movement. As Dr. Owens explained, such a practice invalidates the very purpose
    of a peripheral-vision test; scanning does not allow peripheral vision to be
    measured because the subject’s eyes are constantly moving and render
    measurement impossible. Dr. Prasad admitted that when one scans to the right, he
    loses part of his vision to the left, and although she testified that scanning increased
    visual awareness, “visual awareness” is not the standard measured under 67 Pa.
    Code §83.3(e). Indeed, it is undisputed that Slaweski failed to obtain a score of
    120 degrees on all tests during which he could not scan.
    Moreover, we agree with the Secretary’s determination that scanning
    is an adaptation not properly considered in determining Slaweski’s compliance
    with 67 Pa. Code §83.3(e). See 
    Byers, 735 A.2d at 172
    . In Byers, the petitioner
    suffered from impaired vision for nearly 60 years and had been licensed to operate
    a vehicle for over 40 years. 
    Id. at 169.
    Although the petitioner did not satisfy the
    then-applicable minimum peripheral-vision requirement under 67 Pa. Code §83.3,
    he argued that his driving privileges should not be suspended because he learned
    how to adapt his driving to minimize the effects of his disability. 
    Id. Recognizing 9
    that the qualifications promulgated by the Department’s regulations are mandatory
    and not merely advisory, we held that evidence of the petitioner’s adaptation “was
    not relevant to a determination of competence under this regulation.” 
    Id. at 172.
    Similarly, Slaweski seeks to demonstrate his competency by showing
    that he can achieve the minimum visual standards when he performs the test with
    an adaptation, i.e., scanning. Because our precedent is clear that adaptations are
    not relevant, the Secretary properly refuted this evidence.10 The uncontroverted
    evidence establishes that without this adaptation, Slaweski is incapable of
    satisfying the visual requirement.
    Accordingly, we affirm the Secretary’s order denying in part
    Slaweski’s exceptions to the Department Hearing Officer’s proposed report.
    DAN PELLEGRINI, President Judge
    10
    Because Slaweski is unable to satisfy the minimum visual standards without scanning,
    we need not address his alternate argument that he was permitted to use a prism during his
    testing.
    10
    IN THE COMMONWEALTH COURT OF PENNSYLVANIA
    Dustin Z. Slaweski,                 :
    Petitioner :
    :
    v.                      :
    :
    Department of Transportation,       :
    Bureau of Driver Licensing,         :
    Respondent : No. 171 C.D. 2014
    ORDER
    AND NOW, this 23rd day of July, 2014, the order of the Secretary of
    the Department of Transportation dated January 28, 2014, at No. 0
    29 A.D. 2013
    , is
    affirmed.
    DAN PELLEGRINI, President Judge
    

Document Info

Docket Number: 171 C.D. 2014

Citation Numbers: 96 A.3d 1127, 2014 Pa. Commw. LEXIS 376, 2014 WL 3608717

Judges: Pellegrini, McCullough, Friedman

Filed Date: 7/23/2014

Precedential Status: Precedential

Modified Date: 10/26/2024