Before Judges King, P.G. Levy and Carchman.
The opinion of the court was delivered by: P.G. Levy, J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted: January 12, 2000
On appeal from the Division of Motor Vehicles.
John Mernick appeals from the final order of the Director of the Division of Motor Vehicles (DMV) that indefinitely suspended his New Jersey bus driving endorsement because he suffers from chronic atrial fibrillation. *fn1 We conclude that the Director's order is invalid, because DMV has failed to consider the individual characteristics of Mernick's particular cardiovascular disease and has applied an administrative rule as a general standard that is not expressly authorized and cannot otherwise be inferred from its source in 49 C.F.R. § 391.41(b)(4). We remand for further consideration in accordance with this opinion.
In New Jersey, every bus driver must have a special license, sometimes known as a passenger-carrying endorsement to a commercial driver's license. Additionally, "[e]very holder of a special license ... shall furnish to the Director satisfactory evidence of continuing physical fitness, good character and experience at the time of application renewal or such other time as the Director may require, and in such form as the Director may require." N.J.S.A. 39:3-10.1. Regulations require all bus drivers to submit proof of continuing physical fitness every twenty-four months by providing a "satisfactory medical report submitted by a New Jersey licensed physician." N.J.A.C. 13:21-14.5(c)6. Moreover, the Director may revoke or suspend a bus driver's endorsement whenever an individual has "[f]ailed to meet the medical and physical qualifications set forth in the regulations of United States Department of Transportation, Bureau of Motor Carrier Safety, 49 C.F.R. 391.41, effective January 1, 1971, and as thereafter amended." N.J.A.C. 13:21-14.5(c)11.
Those USDOT regulations state:
A person is physically qualified to drive a commercial motor vehicle if that person--
(4) Has no current clinical diagnosis of myocardial infarction, angina pectoris, coronary insufficiency, thrombosis, or any other cardiovascular disease of a variety known to be accompanied by syncope, dyspnea, collapse, or congestive cardiac failure.
[49 C.F.R. §91.41(b)(4).] Mernick has a cardiac condition known as atrial fibrillation. The type of physical examination prescribed by the USDOT regulations for a bus driver with such a condition requires the examining physician to note "any past or present history of cardiovascular disease, of a variety known to be accompanied by syncope, dyspnea, collapse, enlarged heart, or congestive heart failure. *fn2 " An electrocardiogram is required when findings so indicate. Ibid.
When Mernick submitted the February 9, 1995 report of Shawn Crabtree, M.D. to DMV, the diagnosis of non-insulin diabetes apparently attracted attention and a "case" was generated, but it appears DMV took no action at this time. *fn3 The following year, Mernick submitted a report from Bruce T. Loughlin, D.O., dated August 19, 1996, indicating that Mernick had a history of cardiovascular disease as well as diabetes, more specifically "noninsulin dependent diabetes, atrial fibrillation 8/20/96 controlled with medication, normal angiogram 9/5/96." That was followed by another report from Dr. Loughlin dated September 7, 1996, acknowledging the USDOT regulation disqualifying a bus driver with a "current clinical diagnosis of ... cardiovascular disease of a variety known to be accompanied by syncope, dyspnea, collapse or congestive heart failure" and attesting, as an examining physician, that Mernick's bus driving privileges should be approved. The report of another examination on February 3, 1997 by a cardiologist, D.N. Das, M.D., recounted the results of an angiogram as normal and "[revealing] no evidence of coronary artery disease," interpreted an EKG of the same date as indicating "atrial fibrillation with rate 92 BPM," and concluded that Dr. Das "believe[d] this patient is physically and medically able to drive a motor vehicle safely."
In 1996, Dr. Loughlin submitted the "attending physician's report on cardiovascular condition," a form supplied by DMV for submission to its Medical Fitness Review Unit. Using that same DMV form, on December 29, 1996, Dr. Loughlin observed atrial fibrillation at 80 beats per minute and concluded that Mernick was able to drive safely. Obviously, both Dr. Das and Dr. Loughlin were of the opinion that Mernick's cardiovascular condition had not been accompanied by syncope or any of the other three listed symptoms. The attending physician's report that both doctors received, reviewed and completed, listed these conditions as disqualifying symptoms, and each doctor stated Mernick was qualified to drive a bus. By implication, the doctors must have found he did not suffer any of these disqualifying symptoms. DMV asked its Medical Advisory Panel of four cardiologists, none of whom appear to specialize in electrophysiology, to review these reports. Each of the four doctors on the panel recommended that DMV permit Mernick to retain his driver's license but suspend his passenger- carrying endorsement due to his atrial fibrillation. It is clear that each of these doctors was of the opinion that any bus driver diagnosed with atrial fibrillation, without consideration of its effect on the individual, must have his or her bus driver's endorsement revoked, automatically.
The Director issued an order on June 10, 1997, immediately removing Mernick's bus endorsement, but later stayed the order when Mernick requested a conference. At the conference in September, Mernick submitted a letter from Dr. Loughlin stating:
Mr. Mernick's atrial fibrillation is also under excellent control. He is presently taking Coumadin to prevent embolization and stroke and his prothrombin times have been consistently therapeutic. He has no symptoms from his left ...