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 
2

medical condition.

1

Slaweski began treating with Ranjoo Prasad, O.D., (Dr. 

Prasad) an optometrist, who administered the Goldmann Perimetry test2in 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 prism3and “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.)
3

[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.
4

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 
5

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 
6

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.)
7

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...)
8

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).
9

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 
10

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.
IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Dustin Z. Slaweski, :

Petitioner :

:

v. :

:

Department of Transportation, :

Bureau of Driver Licensing, :

Respondent : No. 171 C.D. 2014

O R D E R

AND NOW, this 23rd day of July, 2014, the order of the Secretary of 

the Department of Transportation dated January 28, 2014, at No. 029 A.D. 2013, is 

affirmed.

 

 DAN PELLEGRINI, President Judge