DocketNumber： No. 7910SC290
Judges： Harry, Martin, Vaughn, Webb
Filed Date： 1/8/1980
Status： Precedential
Modified Date： 11/11/2024
The pertinent portions of the statute governing this proceeding are:
*486 (e) The Division shall not issue an operator’s or chauffeur’s license to any person when in the opinion of the Division such person is afflicted with or suffering from such physicial or mental disability or disease as will serve to prevent such person from exercising reasonable and ordinary control over a motor vehicle while operating the same upon the highways, . . ..
(g)(4) Whenever a license is denied by the Commissioner, such denial may be reviewed by a reviewing board upon written request of the applicant filed with the Division within 10 days after receipt of such denial. . . .
f. Actions of the reviewing board are subject to judicial review as provided under Chapter 150[A] of the General Statutes.
N.C. Gen. Stat. 20-9(e), (g)(4), (g)(4)f.
The Medical Review Board based its decision upon a report and letter of Dr. Neil A. Worden, setting out Dr. Worden’s findings in two places in its order. He found that petitioner “apparently has grand mal seizures — have been fairly controlled except when patient does not take prescriptions.” There is no evidence in the record that petitioner has failed to take his medicines as prescribed. Dr. Worden further found petitioner’s latest electroencephalogram was normal. In his letter, Dr. Worden stated that following petitioner’s examination at Duke University Hospital in 1976, “he has been very well controlled.” Petitioner apparently had a seizure in May of 1978 that precipitated this litigation but has had no such episodes since then. Dr. Worden recommended that petitioner “should drive at slow speeds.”
The Board’s decision is based upon its conclusion that petitioner has an uncontrolled seizure disorder that prevents him from exercising reasonable and ordinary control over a motor vehicle while operating it upon the highways. The record on appeal, including the letter and report of Dr. Worden, contains no evidence that petitioner suffered from an “uncontrolled seizure
It is true that the record shows petitioner has suffered seizures from time to time. But this is a far cry from being sufficient to support the statutory requirements when the whole record test is applied. The application of the whole record test is discussed by Justice Copeland in Thompson v. Board of Education, 292 N.C. 406, 410, 233 S.E. 2d 538, 541 (1977):
This standard of judicial review is known as the “whole record” test and must be distinguished from both de novo review and the “any competent evidence” standard of review. [Citations omitted.] The “whole record” test does not allow the reviewing court to replace the Board’s judgment as between two reasonably conflicting views, even though the court could justifiably have reached a different result had the matter been before it de novo, . . .. [Citation omitted.] On the other hand, the “whole record” rule requires the court, in determining the substantiality of evidence supporting the Board’s decision, to take into account whatever in the record fairly detracts from the weight of the Board’s evidence. Under the whole evidence rule, the court may not consider the evidence which in and of itself justifies the Board’s result, without taking into account contradictory evidence or. evidence from which conflicting inferences could be drawn.
Applied here, the whole record does not support the required finding that petitioner is suffering from a mental or physical disability that prevents him from exercising reasonable and ordinary control in the operation of a motor vehicle on the highways. Ormond v. Garrett, Comr. of Motor Vehicles, 8 N.C. App. 662, 175 S.E. 2d 371 (1970), 38 A.L.R. 3d 448 (1971).
Respondent in his brief urges us to adopt a standard that one must be free of seizures for a year before the illness may be considered adequately controlled, relying upon a publication by the North Carolina Department of Human Resources, Division of Health Services, the United States Public Health Service Guidelines, and the American Medical Association’s Physician’s Guide for Determining Driver Limitation. This is trial by pamphlet, rather than law, and we reject the suggestion.
Affirmed.