DocketNumber： 107 C.D. 2011
Judges： Jubelirer, Leavitt, Brobson
Filed Date： 5/8/2012
Status： Precedential
Modified Date： 10/26/2024
DISSENTING OPINION BY
Respectfully, I dissent. The trial court held that the documentary evidence presented by the Department of Transportation (PennDOT) did not prove that Shawn M. Meter (Licensee) was medically incompetent to drive by reason of alcoholism. The trial court, as fact finder, has the discretion and responsibility to weigh the evidence, and I do not believe the court abused its discretion in this exercise. The more serious issue presented by this case is PennDOT’s disregard for the statutory procedure by which medical incompetency to drive is to be determined.
The Vehicle Code has established a specific procedure for recalling a driver’s license from one who is medically incompetent to drive. Section 1519(a) of the Vehicle Code
In a recall appeal proceeding, it is Penn-DOT’s burden to prove by a preponderance of the evidence that the licensee is medically incompetent to drive as of the date of the recall. Byler v. Department of Transportation, Bureau of Driver Licensing, 883 A.2d 724, 728 (Pa.Cmwlth.2005), petition for allowance of appeal denied, 588 Pa. 784, 906 A.2d 544 (2006). Penn-DOT may make a prima facie case of incompetency “by the introduction of the medical report which [it] relied upon in recalling the driver’s license.” Id. The burden then shifts to the licensee to present evidence to rebut the finding of Penn-DOT’s appointed expert or present evidence “that he has become competent to drive since the time that his license was recalled....” Id. If the licensee is successful, the burden shifts back to PennDOT to prove incompetency through testimonial evidence. Id. Notwithstanding the shining burden, the burden of persuasion remains with PennDOT. Id.
Here, the trial court held that PennDOT failed to prove Licensee’s incompetency.
The trial court held that the only evidence relevant to Licensee’s medical competency was the Initial Reporting Form. Incompetency must be proven by medical reports or medical testimony. Knoche v. Department of Transportation, 70 Pa.Cmwlth. 430, 453 A.2d 690, 693 (1982).
PennDOT’s medical report, entitled “Initial Reporting Form,” is a one-page form created by PennDOT for receipt of provider information about “your patient’s medical fitness to safely operate a motor vehicle.... ” R.R. 49a. The form has four blocks for reporting the information sought by PennDOT. In Section A, the provider sets forth the name and address, and other identifying information, about the patient. Section B requests a “diagnosis of disorder or disability,” followed by 12 specific medical conditions, ranging from “cardiovascular disease” and “vision deficiency” to “alcohol abuse,” with boxes for a checkmark and a space for comments. Id. The form then asks: “Do these conditions affect the patient’s ability, from a medical standpoint only, to safely operate a motor vehicle?” followed by a “yes” and “no” box. Id. Section C requests information about seizure disorder, and Section D requests information about the provider filling out the form. Id.
Here, the Initial Reporting Form was completed by a physician’s assistant who examined Licensee at a hospital on the night of his July 25, 2010, accident. As noted by the trial court, this was the first and only time that the physician’s assistant met or examined Licensee. The form does not contain a single declarative sentence about Licensee’s diagnosis or disorder. The physician’s assistant simply entered three checkmarks. The first was a check for “Alcohol Abuse,” a second was for
The Initial Reporting Form was sufficient to give PennDOT “cause to believe” Licensee was medically incompetent and, thus, “require” him to undergo an examination by a medical professional of Penn-DOT’s choosing. 75 Pa.C.S. § 1519(a). However, PennDOT treated it as the report of the medical examination done by the medical professional of its choosing.
Under the Vehicle Code, PennDOT should not have issued its recall notice until after Licensee was given the opportunity to provide PennDOT’s appointed “qualified person” with a second medical report, ie., one by a physician of Licensee’s choosing. 75 Pa.C.S. § 1519(a). PennDOT’s qualified person must consider “all medical reports” before he determines “the competency of the driver or the applicant to drive.” Id. By making the recall decision solely on the basis of the Initial Reporting Form, and not giving Licensee a chance to submit a medical report, Penn-DOT’s “qualified person” acted in derogation of the procedure mandated in Section 1519(a).
PennDOT offered the Initial Reporting Form as the medical report evidence contemplated by 75 Pa.C.S. § 1519(a), and it was admitted as PennDOT’s privia facie case. However, the trial court assigned little value to the medical report, explaining:
The Court believes the value of the medical opinion in this case (the Initial Reporting Form completed by the physician’s assistant), is relatively low because the physician’s assistant had, at best, an incomplete picture regarding [Licensee’s] use of alcohol. The Court simply does not believe the physician’s assistant could have ascertained with any precision, whether [Licensee] has an alcohol-related medical condition that renders him incapable of safe driving during this single instance of emergency treatment.
Opinion Filed in Response to Matters Complained of on Appeal, at 4. Accordingly, the trial court held that “only a relatively small amount of evidence was necessary to rebut this scant evidence of medical incompetence.” Id.
Licensee’s mother testified that she had not observed Licensee consume any alcohol since the accident on July 25, 2010. Further, since the accident, she had observed Licensee operating a vehicle on numerous occasions, including times when he drove her. She testified that he drove safely. The trial court credited her testimony, and her testimony directly contradicted the statements in the Initial Reporting Form that Licensee abused alcohol and that this medical disorder affects his ability to drive safely. I agree with the trial court that the mother’s testimony, who, as in Byler, was a lay witness who knew Licensee, rebutted PennDOT’s medical report, which amounted to no more than three checkmarks.
The majority reverses, in part, because it believes that the trial court erred in not assigning PennDOT’s recall notice and Licensee’s driving history probative eviden-tiary value. I would affirm the trial court’s evidentiary rulings.
Licensee’s driving history consisted of two 2007 speeding violations and a 2009
The trial court held that Licensee’s driving record was not relevant to his medical competency as of the date of recall. I agree. First, a DUI does not prove the medical disorder of alcoholism. If it did, then PennDOT would initiate recall proceedings against every licensee convicted of DUI. Second, a DUI does not prove that a licensee is still an alcoholic a year after the DUI. Here, there was a gap of thirteen months between Licensee’s DUI and the subsequent report of his alcoholism by a physician’s assistant who examined him on one occasion.
I also agree with the trial court’s finding that PennDOT’s recall notice in and of itself had no evidentiary value with respect to the substantive issue of Licensee’s medical competency to drive. PennDOT’s recall notice did not provide any information about Licensee’s physical or mental condition; it merely gave Licensee notice that his license was being recalled and informed him of his appeal rights. The recall notice has value as background information, but it is not evidence that Licensee was, in truth, medically incompetent as asserted in the recall notice.
Finally, the majority would reverse the trial court’s holding that Licensee rebutted PennDOT’s prima facie case. Again, I believe the trial court got it right.
In Byler, the licensee’s family physician notified PennDOT by letter that the licensee was an alcoholic and suffered from cerebellar degeneration.
On appeal to this Court, PennDOT argued that the lay testimony of licensee and his neighbor was not sufficient to overcome its medical evidence. We disagreed, noting
that nothing in the applicable statutory or regulatory provisions or in the case precedents ... requires that only medical evidence may be presented by the licensee to rebut a prima facie case of*912 the license’s incompetency based on a medical provider’s report.
Id. at 728. We reasoned that PennDOT’s medical report provided no details about the diagnosis of alcoholism or offered any pertinent facts about the licensee’s driving ability. By contrast, the licensee and his neighbor presented facts regarding his lifestyle and driving habits. We held that it was within the province of the trial court, as factfinder, to find licensee’s evidence more persuasive and credible than PennDOT’s medical report.
Here, as in Byler, PennDOT’s Initial Reporting Form contained no explanation for the medical opinions expressed therein.
The majority also notes that Licensee’s mother testified that she had not seen her son consume alcohol or illicit drugs, not that he had not actually done so. This is a semantic quibble. No witness can truthfully testify to more than what she has personally observed. Licensee’s mother testified that she has not seen him drink since 2010 and that she has seen him safely operate a vehicle. Notably, this was far more information about his behavior than what was reported in the Initial Reporting Form. The trial court observed the mother testify and found her credible. He found the substance of her testimony sufficient to rebut the Initial Reporting Form. It is for the trial court as fact finder to determine whether a licensee’s witnesses are credible and his evidence sufficient. Byler, 883 A.2d at 729 (citing Department of Transportation, Bureau of Traffic Safety v. O’Connell, 521 Pa. 242, 555 A.2d 873 (1989) for the premise that “questions of credibility and conflicts in evidence are for trial courts to resolve and not the appellate courts.”).
I would affirm the determination of the trial court. The trial court did not err or abuse its discretion in its evidentiary rulings or in how it evaluated PennDOT’s evidence. More troublesome is the fact that PennDOT did not give Licensee an opportunity to submit his own medical evidence before making a determination of medical incompetency and issuing its recall notice.
. It states:
General rule. — The department, having cause to believe that a licensed driver or applicant may not be physically or mentally qualified to be licensed, may require the applicant or driver to undergo one or more of the examinations authorized under this sub-chapter in order to determine the competency of the person to drive. The department may require the person to he examined by a physician, a certified registered nurse practitioner, a physician assistant or a licensed psychologist designated by the department or may require the person to undergo an examination by a physician, a certified registered nurse practitioner, a physician assistant or a licensed psychologist of the person’s choice. If the department designates the physician, a certified registered nurse practitioner, a physician assistant or licensed psychologist, the licensed driver or applicant may, in addition, cause a written report to be forwarded to the department by a physician, a certified registered nurse practitioner, a physician assistant or a licensed psychologist of the driver’s or applicant’s choice. Vision qualifications may be determined by an optometrist or ophthalmologist. The department shall appoint one or more qualified persons who shall consider all medical reports and testimony in order to determine the competency of the driver or the applicant to drive.
75 Pa.C.S. § 1519(a) (emphasis added).
. It states:
Recall or suspension of operating privilege. — The department shall recall the operating privilege of any person whose incompetency has been established under the provisions of this chapter. The recall shall be for an indefinite period until satisfactory evidence is presented to the department in accordance with regulations to establish that such person is competent to drive a motor vehicle. The department shall suspend the operating privilege of any person who refuses or fails to comply with the requirements of this section until that person does comply and that person’s competency to drive is established. Any person aggrieved by recall or suspension of the operating privilege may appeal in the manner provided in section 1550. The judicial review shall be limited to whether the person is competent to drive in accordance with the provisions of the regulations promulgated under section 1517 (relating to Medical Advisory Board).
. The trial court is the ultimate finder of fact and our review is limited to determining whether the necessary findings of fact are supported by the evidence, whether an error of law was committed or whether an abuse of discretion occurred. Byler, 883 A.2d at 727 n. 2, 729.
. If so, PennDOT did not explain how it required Licensee to undergo a medical examination on the night of his accident, let alone how or why it chose the physician's assistant who did the exam for medical competency.
. A minor is guilty of driving while intoxicated if his blood or breath alcohol concentration is .02% or higher. 75 Pa.C.S. § 3802(e).
. Simply proving a licensee’s alcoholism does not prove inability to drive safely. In Byler, 883 A.2d 724, this Court explained that it is not enough for PennDOT to establish that the licensee is an alcoholic; it must also prove that "a person’s alcoholism is 'likely to impair the ability to control and safely operate a motor vehicle[.]' ” Id. at 726 (quoting 67 Pa.Code § 83.5(b)). In Byler, the licensee acknowledged his alcohol abuse disorder, but he testified that he did his drinking at home and never drove after drinking. His neighbor confirmed the licensee’s account of his drinking behavior, and the trial court credited this testimony. We affirmed, holding that Penn-DOT must prove that a licensee's alcoholism actually affects his driving. PennDOT offered no evidence that, as of the date of its recall, the licensee was driving under the influence of alcohol.
.Notably, no evidence was presented on the question of the licensee's cerebellar degeneration.
. The Initial Reporting Form is less compelling than the report used in Byler, where the report came from the licensee’s own physician. Here, the report came from a medical professional who had no history with Licensee. She examined him on one occasion.
. It may be that Licensee’s counsel simply decided that Licensee’s testimony, which would be self-serving, lacked the value of his mother’s testimony. Given the danger presented by drinking and driving, a mother is not likely to enable such risky behavior by assisting her child in restoring his driving privileges and also commit perjury in the enabling process.
.PennDOT argued that Licensee should have submitted to an examination as instructed by the recall notice before filing his appeal. This argument misstates the law. A licensee challenging a determination of incompetency need not submit to a medical examination unless the licensee is attempting to prove that he has regained competency. In the present case, Licensee is not claiming to have regained competency, only that PennDOT was incorrect in recalling his license for incompetency.