Clarence Heavy Haulage Pty Ltd v Hutchings

[2023] NSWPICMP 638

DETERMINATION OF APPEAL PANEL
CITATION:	Clarence Heavy Haulage Pty Ltd v Hutchings [2023] NSWPICMP 638
APPELLANT:	Clarence Heavy Haulage Pty Ltd
RESPONDENT:	Marten James Hutchings
APPEAL PANEL
MEMBER:	Marshal Douglas
MEDICAL ASSESSOR:	Richard Haber
MEDICAL ASSESSOR:	Mark Burns
DATE OF DECISION:	5 December 2023
CATCHWORDS:	WORKERS COMPENSATION - Assessment of respondent’s permanent impairment from injury involving several body parts and systems; whether Medical Assessor (MA), by obtaining one reading of respondent’s blood pressure, carried out an adequate examination of respondent’s cardiovascular system; whether MA erred by finding respondent did not have a relevant pre-existing condition; Appeal Panel held MA did not conduct thorough examination; Appeal Panel held that the evidence established the respondent had pre-existing hypertension and that this condition contributed to respondent’s permanent impairment, and MA consequently erred by finding respondent did not have pre-existing condition; respondent re-examined; Held – Medical Assessment Certificate revoked

BACKGROUND TO THE APPLICATION TO APPEAL

1. Marten James Hutchings, the respondent, was employed by a company of which he was the principal, namely Clarence Heavy Haulage Pty Ltd, the appellant. On 27 September 2017 he was driving one of the respondent’s trucks at a speed of approximately 100kmph. One of the rear suspension airbags of that vehicle malfunctioned causing the load the respondent was carrying to shift which in turn resulted in his truck tipping over and his sustaining severe injuries.

2. On 28 April 2022 his solicitors wrote to the appellant’s insurer advising it that he claimed compensation from it under s 66 of the Workers' Compensation Act 1987 (the 1987 Act) for 39% whole person impairment (WPI) that he claimed had resulted from injuries he sustained in the incident to his lumbar spine, cervical spine, nervous system (brain), urinary system (kidney).

3. On 14 September 2022 the insurer’s solicitors wrote to the appellant’s solicitors advising them that the appellant offered on or without purchase basis to pay compensation to the respondent for 25% WPI relating to his lumbar spine, nervous system – brain, upper urinary tract (kidney) and hypertensive cardiovascular disease.

4. The respondent did not accept that offer but rather commenced proceedings in the Personal Injury Commission (Commission) seeking determination of his claim for compensation. The matter was referred to a Commission Member, Mr Gaius Whiffin, who on 9 March 2023 with the consent of the parties remitted the matter to the President of the Commission to refer it to a Medical Assessor to assess the degree of the respondent’s permanent impairment from his injuries. The body systems/parts that were specified to be the subject of the assessment were the lumbar spine, urinary and reproductive systems (kidney), nervous system (brain – mental status), and cardiovascular system (hypertension). The certificate of determination that the Commission issued recording the determination of Member Whiffin also recorded that the respondent had discontinued a claim for injury to his cervical spine.

5. A delegate of the President referred the medical dispute between the parties to several Medical Assessors. Medical Assessor Edward Korbel was appointed to assess the respondent’s permanent impairment relating to his urinary and reproductive systems. Medical Assessor Ross Mellick was appointed to assess the respondent’s permanent impairment relating to his nervous system (brain – mental status). Medical Assessor  Christopher Grainge was appointed to assess the respondent’s permanent impairment relating to his cardiovascular system (hypertension). Medical Assessor Tim Anderson was appointed as the lead Medical Assessor and was tasked to assess the respondent’s permanent impairment relating to his lumbar spine and consolidate that assessment with the assessments that would be made by Medical Assessors Korbel, Mellick and Grainge.

6. The Medical Assessors issued medical assessments certificates dated 22 August 2023 relating to their respective assessments of the respondent’s permanent impairment for the body parts or systems that had been referred to them to assess. The medical assessment certificate of Medical Assessor Anderson issued contained the following consolidated certificate:

Body Part or system	Date of Injury	Chapter, page and paragraph number in WorkCover Guides	Chapter, page, paragraph, figure and table numbers in AMA 5 Guides	% WPI	Proportion of permanent impairment due to pre-existing injury, abnormality or condition	Sub-total/s % WPI (after any eduction in column 6)
Dr Tim Anderson	Lumbar spine	27/09/17	Chap 4 P24	P384 T15-03	6	0	6
Dr Chris Grainge	Cardiovascular		Chap 15	Chap 4 Sec 4.1 Tables 4.2 and 4.2	43	0	43
Dr Ross Mellick	Brain-mental status		Chap 5 Par 5.3,5.4,5.5,5.9	Chap 13 Sec 13-3(d), 13-2,13-4,13-5,13-6,13-7, 13-8	11	0	11
Dr Edward Korbel	Urinary and reproductive system		Chap 17 P37	Chap 7 Page 146 Table 7.2 Class 2	25	1/5	20
Total % WPI (the Combined Table values of all sub-totals)					61%

1. The appellant has appealed against the medical dispute that Medical Assessor Grainge assessed relating to the respondent’s permanent impairment of his cardiovascular system.

2. The appellant relies on the following grounds of appeal under s 327(3) of the Workplace Injury Management and Workers Compensation Act 1998 (1998 Act):

   ·        the assessment was made on the basis of incorrect criteria, and

   ·        the MAC contains a demonstrable error.

3. The delegate is satisfied that, on the face of the application, at least one ground of appeal has been made out. The Appeal Panel has conducted a review of the original medical assessment but limited to the ground(s) of appeal on which the appeal is made.

4. Rule 128 of the Personal Injury Commission Rules 2021 (PIC Rules) and Procedural Direction PIC7 - Appeals, reviews, reconsiderations and correction of obvious errors in medical disputes set out the practice and procedure in relation to the medical appeal process under s 328 of the 1998 Act. An Appeal Panel determines its own procedures in accordance with r 128(1) of the PIC Rules.

5. The assessment of permanent impairment is conducted in accordance with the SIRA NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment, 4^th ed
   1 March 2021 (the Guidelines) and the American Medical Association Guides to the Evaluation of Permanent Impairment, 5^th ed (AMA 5).

PRELIMINARY REVIEW

1. The Appeal Panel conducted a preliminary review of the original medical assessment in the absence of the parties and in accordance with the Procedural Direction PIC7.

2. As a result of that preliminary review, the Appeal Panel determined that the respondent should undergo a further medical examination. This is because the Appeal Panel, for reasons explained below, found that the Medical Assessment Certificate Medical Assessor Grainge issued (the MAC) contained a demonstrable error and the Appeal Panel would accordingly need to correct that error.  To do that, the Appeal Panel could not rely on the findings Medical Assessor Grainge made from his examination of the respondent, and hence it was necessary for the Appeal Panel to examine the respondent so as to obtain the necessary clinical data to correct the error.  The Appeal Panel appointed Medical Assessor Haber, one of its members, to undertake that examination. He did so on 15 November 2023 and provided his report to the Appeal Panel on his examination on 18 November 2023.  His report is set out below in Findings and Reasons. 

EVIDENCE

1. The Appeal Panel has before it all the documents that were sent to the Medical Assessor for the original medical assessment and has taken them into account in making this determination. 

MEDICAL ASSESSMENT CERTIFICATE

1. Medical Assessor Grainge examined the respondent on 31 July 2023.  He made the following findings from his examination of the respondent:

   “Mr Hutchings’ blood pressure was 204/132mmHg (his home machine apparently reads in the order of 145/90mmHg most days). He was 184cm tall and weighed 119kg.

   Respiratory examination was unremarkable with no peripheral stigmata of respiratory disease. Chest expansion was normal, percussion note resonant and breath sounds vesicular.

   Cardiovascularly his apex beat was displaced laterally to the anterior axillary line in the 8^th intercostal space. Pulse character was normal. Heart sounds were dual with no murmurs, no visible JVP and no peripheral oedema.”

2. Medical Assessor Grainge listed in the MAC the medications the respondent currently takes. The Appeal Panel notes that included Clonidine 200mcg daily, which is a medication for the management of hypertension.

3. The Medical Assessor noted that the respondent had a coronary angiography done on
   18 July 2017 that Medical Assessor Grainge said “did not show any coronary artery disease but had a note made that a cardiomyopathy including T wave changes on his ECG and echocardiogram stress test showed myocardial hypertrophy”.

4. Medical Assessor Grainge made a diagnosis of the respondent’s injury, in so far as it related to his cardiovascular system, of ‘hypertension leading to end organ damage’.

5. Medical Assessor Grainge assessed the respondent’s permanent impairment relating to his cardiovascular system to be 43% WPI. His calculation of that was based on the following:

   (a)his clinical findings that the respondent’s blood pressure was 204/132 mmHg, meaning the respondent was classified as having stage 3 hypertension under Table 4-1 of AMA5;

   (b)the respondent’s WPI, because he had stage 3 hypertension, was to be rated as class 3 in accordance with Table 4-2. The respondent also fell within that class because he had left ventricular hypertrophy by ECG or echocardiography with no symptoms of heart failure;

   (c)the respondent’s impairment fell within the middle of class 3 at 40% WPI, and

   (d)the respondent is on cardiovascular anti-hypertensive medications to maintain his blood pressure and reduce the risk of end organ damage and 3% WPI was to be added for treatment.

6. The Medical Assessor said at 9e of the MAC that the respondent had “no pre-existing injury, abnormality, or condition”. The Medical Assessor said at 12a of the MAC that in his opinion the respondent did not suffer from any relevant previous injuries, pre-existing conditions or abnormalities.

SUBMISSIONS

1. Both parties made written submissions. They are not repeated in full, but have been considered by the Appeal Panel.

2. In summary, the appellant submitted that, given that Medical Assessor Grainge obtained a history from the respondent measuring his blood pressure using a home machine and achieving readings of 145/90 mmHg on most days, the Medical Assessor erred by not taking more than one reading of the respondent’s blood pressure during his examination of the respondent for the purpose of classifying the respondent’s hypertension under Table 4-1 of AMA5.

3. The appellant submitted that Medical Assessor Grainge erred by concluding, based on the cardiovascular diagnostic report of 18 July 2017, that the respondent had left ventricular hypertrophy by ECG or echocardiography with no symptoms of heart failure. The appellant submitted that the report did not warrant Medical Assessor Grainge assessing the respondent’s impairment by reference to class 3 of Table 4.2.

4. The appellant submitted that there was evidence of the respondent having pre-existing hypertension that warranted a significant deduction being made under s 323(1) of the 1998 Act. The appellant submitted that the Medical Assessor erred by not making such a deduction. 

5. In reply, the respondent submitted that a presumption of regularity applies with respect to Medical Assessor Grainge’s assessment of his permanent impairment such that it can be presumed that the Medical Assessor read the evidence before him and took that into account when forming his opinion regarding the respondent’s permanent impairment.

6. The respondent submitted that the Medical Assessor was not required to refer to every piece of evidence.  Rather he was required to form his own view and evaluative judgement based on his findings on the day of assessment. The respondent submitted that historical blood pressure readings that occurred many years ago were of little relevance. The respondent noted that his most recent blood pressure reading before his injury was 135/80.

7. The respondent submitted that there was no requirement on the Medical Assessor to conduct two blood pressure readings on the day of the assessment.

8. The respondent submitted that it was a matter for Medical Assessor Grainge’s clinical judgement to determine whether he had a pre-existing condition.

9. The respondent submitted that if the Appeal Panel were to find that he had a pre-existing condition then s 323(2) should apply and the deductible proportion for the purpose of
   s 323(1) should be assumed to be 10%.

FINDINGS AND REASONS

1. The procedures on appeal are contained in s 328 of the 1998 Act. The appeal is to be by way of review of the original medical assessment but the review is limited to the grounds of appeal on which the appeal is made.

2. In Campbelltown City Council v Vegan [2006] NSWCA 284 the Court of Appeal held that the Appeal Panel is obliged to give reasons.

3. It is common for a person’s blood pressure to vary over time, including very brief periods of time. Consequently, a clinician should obtain more than one reading of a person’s blood pressure during clinical examination of the person to obtain an accurate measure of the person’s blood pressure.

4. With respect to the case at hand, given the respondent provided a history to Medical Assessor Grainge of his obtaining blood pressure readings of 145/90 mmHg on most days using his home machine and given Medical Assessor Grainge obtained a reading far in excess of that of 204/132 mmHg during his examination of the respondent, Medical Assessor Grainge should have done repeated testing of the respondent blood pressure during the examination so as to make a reliable finding regarding the respondent’s blood pressure for the purpose of classifying the respondent’s hypertension under Table 4-1 of AMA5. In other words, given the background of the respondent’s own blood pressure readings being far less than that which the Medical Assessor obtained from one reading and the fact that a person’s blood pressure can vary even over short periods of time, a single reading of the respondent’s blood pressure could not provide a reliable basis on which to make a finding of what his blood pressure was.  Medical Assessor Grainge erred by only obtaining one reading. That error is a demonstrable error.

5. The Appeal Panel also considers there is a further demonstrable error in the MAC and that is Medical Assessor Grainge concluded the respondent did not have relevant pre-existing condition. The evidence in the form of the clinical records of the respondent’s general practitioner (GP) revealed that the GP recorded that the respondent’s blood pressure on
   22 October 2007 was 140/80. The GP recorded it was 160/95 in 2014. The GP recorded it was 140/70 on 3 August 2017. The GP then prescribed the respondent amlodipine 10mg daily, which medication the Appeal Panel notes is for the treatment of hypertension. On
   18 September 2017 the GP recorded the respondent’s blood pressure was 135/80 and changed his medication from amlodipine 10mg to ramipril 10mg, nebilet 5mg, Crestor 5mg, amlodipine 5mg and aspirin 100mg.

6. Those clinical records of the GP reveal that the respondent had hypertension prior to his injury. His injury had the consequence of worsening his hypertension. His hypertension now would not be as severe if he did not have a pre-existing hypertension. Consequently, a proportion of his permanent impairment relating to his cardiovascular system is due to his pre-existing hypertension.

7. Medical Assessor Grainge by finding that the respondent did not have any relevant pre-existing condition erred. That led to a further error in that he did not make a deduction under s 323(1) of the 1998 Act for a proportion of the respondent’s permanent impairment relating to his cardiovascular system that was due to that pre-existing condition.

8. As indicated earlier, the Appeal Panel considered that would need to re-examine the respondent so to obtain the clinical data to correct the error relating to the unreliability of Medical Assessor Grainge’s blood pressure reading. The Appeal Panel appointed Medical Assessor Richard Haber to conduct that examination, which he did on 15 November 2023. He provided the Appeal Panel with the following report:

   “HISTORY FROM Mr Hutchings

   On 27 September 2017 as a driver of a truck which rolled on a corner he was involved in an accident. He had to be cut out from the truck He was airlifted to Coffs Harbour Hospital and from then he was again airlifted to John Hunter Hospital.

   He sustained multiple injuries including ‘collapsed kidney’.

   While he was treated for severe pneumonia at Gold Coast Hospital, his BP was raised for which he received some treatment. Once he got over the infection his BP returned to normal range and he was no longer taking any tablets for blood pressure, according to Mr Hutchings.

   Currently he checks his own blood pressure which is usually 140/85 but if he does not take medication for 2 or 3 days his BP rises to 190/85.

   This January he had a normal cardiac echo.

   CURRENT SYMPTOMS

   He has no cardiac symptoms but gets easily tired as he wakes up at night-time because of pain in the back and shoulders.

   CURRENT MEDICATION

   allopurinol to prevent renal calculi as he has only one working kidney

   aspirin

   clonidine

   minoxidil (loniten)

   SOCIAL HISTORY

   He is single and lives in Wooli.

   He has never smoked and has only one or 2 beers on weekends.

   He had trucking business for years.

   PAST AND FAMILY HISTORY

   In about 2014 he had a mystery infection for about a week.

   His father had hypertension and was a heavy smoker and drinker. He died at the age of 50 years from heart trouble. His sister died at the age of 75 years. There is no family history of strokes.

   PHYSICAL EXAMINATION

   When I saw him his initial blood pressure in the right arm sitting was 169/113, heart rate of 83/min and in the left arm at the same time was 159/105 with a heart rate of 82.

   His BP was 157/108 with a heart rate of 69 in the right arm when he was lying down

   10 minutes later his BP was 168/100 with a heart rate of 70 per minute in the right arm while sitting and it was 160/100 in the left arm also while sitting down.

   He weighed 123.0 kg and was 180 cm tall there was no evidence of cardiac enlargement or failure clinically.

   ECG was normal

   STUDY OF THE AVAILABLE DOCUMENTS

   On 31 October 2017 he was prescribed amlodipine and metoprolol.

   On 25 February 2019 his BP was recorded 140/90.

   On 12 July 2017 he was treated at Grafton hospital for broncho-pneumonia at which time they recorded accelerated hypertension his BP being 180/110.

   Following his accident on 27 September 2017 he was treated initially at Coffs Harbour Hospital then at the John Hunter Hospital at which time he was noted to be hypertensive.

   At the time of the examination by Dr Grainge on 31 July 2023 his BP was 204/132 but he made a note that the BP machine at home was reading 145/90 most days

   Local doctor reported:

   140/90 on 22/10/ 2007

   130/80 on 22/10/2008

   160/95 on 21/8 2014

   140/70 on 3/8/2017 at that time it was noted that he had flu-like illness treated initially at Grafton and later Gold coast Hospital

   BP was 135/80 on 18 September 2017 which is just before his accident at that time he was treated with ramipril amlodipine and nobilol

   140/80 was on 25 July 2018

   145/85 on 8 February 2022

   I note that his local doctor has prescribed amlodipine on 3^rd of August 2017 and again on 18 September 2017 and at that time he was also prescribed ramipril.

   Heart centre on 18 August 2017 commented that at that time he was on Nobivolol, ramipril 10 mg and amlodipine 10 mg daily. He was transferred from Grafton hospital with bronchopneumonia and a new diagnosis of cardiomyopathy to John Flynn hospital Coronary angiogram showed mild left ventricular dysfunction and minor coronary artery disease only. Some minor liver function derangements were consistent with his alcohol consumption. At Grafton hospital he had cardiac echo showing 35% ejection fraction and dilated cardiomyopathy. Excessive alcohol intake on weekends was recorded.”

1. The Appeal Panel adopts the findings of Medical Assessor Haber from his examination of the respondent. The average of the five readings Medical Assessor Haber obtained of the respondent’s blood pressure during his examination was 163/105 mmHg and the Appeal Panel considers that this provides a reliable measure of the respondent’s blood pressure. That reading is classified as stage 2 hypertension in accordance with Table 4-1 of AMA5.

2. The Appeal Panel considers the cardiovascular diagnostic report dated 18 July 2017 does not allow the respondent’s permanent impairment relating to his cardiovascular system being rated as class 3 under Table 4-2. This is because the report revealed the respondent had  mild reduction in left ventricular function which does not amount to extensive end organ damage.

3. In the Appeal Panel’s view because the respondent has stage 2 hypertension despite using medication to treat his hypertension, the respondent’s impairment relating to his cardiovascular system is to be rated as class 2 under Table 4-2 of AMA5. The Appeal Panel also considers that within the range of 10% WPI to 29% WPI allowed within that class, the respondent’s permanent impairment is to be rated as 14% WPI because his hypertension does not have any complications and also because there is no evidence of end organ disease.

4. The Appeal Panel also considers that there is no basis to vary that rating under paragraph 1.32 of the Guidelines for the effects of treatment and this is because the respondent’s treatment has neither totally nor substantially eliminated his impairment from his hypertension.

5. As said earlier, the respondent does have a pre-existing condition, in the form of hypertension. That pre-existing condition has made his current impairment relating to his cardiovascular system more severe.  Consequently a proportion of his permanent impairment relating to his cardiovascular system from his injury is due to that pre-existing condition. Given that, there must be a deduction under s 323(1) on account of that.

6. The situation however, is that it is simply too difficult to determine accurately the extent to which the respondent’s pre-existing condition of hypertension contributes to his current permanent impairment relating to his cardiovascular system. Consequently, in accordance with s 323(2) of the 1998 Act the Appeal Panel assumes it is 10%. That assumption is not at odds with the evidence because the evidence does not enable any accurate determination to be made of the contribution that the respondent’s pre-existing hypertension makes to his current permanent impairment.  The evidence only allows a finding that the respondent’s current hypertension is worse as a consequence of his pre-existing hypertension. That worsening could be of the order of 10%, it could be more.  It just cannot be ascertained from the evidence.  

7. For these reasons, the Appeal Panel has determined that both the MAC Medical Assessor Grainge issued on 22 August 2023 and the Consolidated MAC Medical Assessor Anderson also issued on 22 August 2023 should be revoked (given that Medical Assessor’s Anderson’s MAC combined the erroneous assessment of Medical Assessor Grainge), and that a new consolidated MAC should be issued.  The new certificate is attached to this statement of reasons.

PERSONAL INJURY COMMISSION

APPEAL PANEL

MEDICAL ASSESSMENT CERTIFICATE

Injuries received after 1 January 2002

Matter number:	W634/23
Applicant:	Marten James Hutchings
Respondent:	Clarence Heavy Haulage Pty Ltd

This Certificate is issued pursuant to s 328(5) of the Workplace Injury Management and Workers Compensation Act1998.

The Appeal Panel revokes the Medical Assessment Certificate of Medical Assessor Grainge and the Consolidated Medical Assessment Certificate of Medical Assessor Anderson and issues this new Medical Assessment Certificate as to the matters set out in the Table below:

Table - whole person impairment (WPI)

Body Part or system	Date of Injury	Chapter, page and paragraph number in WorkCover Guides	Chapter, page, paragraph, figure and table numbers in AMA 5 Guides	% WPI	Proportion of permanent impairment due to pre-existing injury, abnormality or condition	Sub-total/s % WPI (after any deductions in column 6)
Lumbar spine	27/09/2017	Chapter 4	Chapter 15	6	-	6
Cardiovascular		Chapter 15	Chapter 4 Table 4.2 and 4.2	14	1/10	13
Brain-mental status		Chapter 5	Chapter 13	11	-	11
Urinary and reproductive system		Chapter 17	Chapter 25	25	1/5	20
Total % WPI (the Combined Table values of all sub-totals)					42%