Taylor and Military Rehabilitation and Compensation Commission
[2007] AATA 1176
•28 March 2007
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2007] AATA 1176
ADMINISTRATIVE APPEALS TRIBUNAL )
) No N2005/1269
GENERAL ADMINISTRATIVE DIVISION ) Re RONALD DEREK TAYLOR
Applicant
And MILITARY REHABILITATION AND COMPENSATION COMMISSION
Respondent
DECISION
Tribunal Professor Ivan Shearer, Senior Member
Dr. M.E.C. Thorpe, MemberDate28 March 2007
PlaceSYDNEY
Decision The decision under review is affirmed, subject to the direction that the matter be remitted to the Respondent to determine the actual quantum of compensation that is payable, in the light of these reasons.
...................[Sgd].......................
Professor Ivan Shearer
Senior Member
COMPENSATION - General Anxiety Disorder – Post Traumatic Stress Disorder – Permanent Impairment of his Psychiatric Condition - Service in Australian Army – Incapacity Benefits – Decision Under Review is Affirmed
Legislation
Safety, Rehabilitation and Compensation Act 1988
Military Rehabilitation and Compensation Act 2004
Motor Accidents Act 1988
Crimes Act 1900
Case Law
Ronald Derrick Taylor v. De Luxe Cab Company Limited (Unreported, DC(NSW), Ainslie-Wallace J, No5040 or 2000, 13 February 2002)
Re Prica and Comcare (1996) 44 ALD 46
Telstra Corporation v. Hannaford (2006) 90 ALD 263
REASONS FOR DECISION
March 2007 Professor Ivan Shearer
1. The decision under review by the Tribunal is the decision of the Military Rehabilitation and Compensation Commission (“MRCC”), dated 15 August 2005, that the Applicant was not chronically unemployable but capable of working full-time as a taxi driver for disabled persons. That decision also determined that the Applicant was entitled to “top-up” incapacity payments on and from 25 March 2004.
2. The applicable legislation is the Safety, Rehabilitation and Compensation Act 1988 (“the SRCA”), section 64 of which provides for applications for review of reviewable decisions to be brought to this Tribunal. Although the Applicant’s accepted condition of generalised anxiety disorder resulted from his service in the Australian Army, the injury giving rise to the condition occurred before the entry into force of the Military Rehabilitation and Compensation Act 2004, and is thus covered by the SRCA.
THE BACKGROUND FACTS
3. The Applicant is Mr Ronald Taylor, presently aged 60.
4. Mr Taylor enlisted in the Australian Regular Army on 19 April 1967 and was discharged at the end of his engagement on 18 April 1969.
5. Most of Mr Taylor’s time in Army service was spent in Malaysia, during a period of emergency in that country. He was engaged in jungle patrols as a member of the 8th Battalion, ARA. Pursuant to the applicable rules of engagement contact with the insurgents was largely avoided. However, he experienced episodes of fear when lying still on patrol and having snakes and scorpions crawling over him.
6. When Mr Taylor left the Army he described himself to one of his later treating doctors as “a nervous little boy. I couldn’t hack it. The jungle thing.” He started to drink heavily in the Army and joined Alcoholics Anonymous in 1972 or 1973. After giving up drinking he noticed his other symptoms more, namely severe headaches, short-temperedness, a fear of confined spaces, lack of concentration, and difficulty in sleeping.
7. Although a trained sheet metal worker, after discharge from the Army Mr Taylor found that work too difficult as it required him to work indoors. He then turned to the installation of air conditioning equipment, but found that that also involved too much indoor work. It was then that he took up taxi driving, and he continued in that work for some 20 years.
8. During the latter part of his occupation as taxi driver Mr Taylor became specialised in taxi services for disabled persons. He preferred this custom because the disabled passengers were courteous and grateful, unlike the generality of taxi passengers who tended to upset him. He owned his own taxi, modified for use by disabled passengers, until 1988, when he suffered a knee injury caused by slipping off a wet chair lift at the rear of his taxi. He then ceased to drive any sort of taxi.
MR TAYLOR’S APPLICATIONS FOR COMPENSATION
9. Mr Taylor lodged a compensation claim in August 2002 in respect of “post traumatic stress disorder/anxiety”, claiming that the condition had been caused by patrolling at night in the jungles of Malaya with loaded weapons in 1967 to 1969.
10. By a determination dated 14 March 2003, liability was accepted by the Commonwealth for Mr Taylor’s condition. As stated by the delegate:
“On the basis of the available evidence I determine that you have suffered a contraction of a disease to which your military service contributed in a material degree, namely ‘generalised anxiety disorder’. …I further determine that date of injury is 19/12/2002, as this is the date that you first sought medical treatment and the condition was confirmed….Although the Commonwealth has admitted liability for your condition, payment of money to a client is not automatic. There is a range of benefits for which you may qualify, depending on your circumstances….”
11. Mr Taylor then applied for a lump sum payment for permanent impairment on account of his accepted condition of generalised anxiety disorder. By a determination dated 2 May 2003 the delegate held that, on the basis of the available medical evidence, Mr Taylor was suffering a 5% whole person impairment in accordance with Table 5.1 of the Comcare Australia Guide, whereas eligibility for permanent impairment compensation payments was conditioned on the attainment of a degree of whole person impairment stabilised at 10% or more. She accordingly determined that no payment could be made to Mr Taylor under sections 24 and 27 of the SRCA.
12. In a further determination, dated 17 June 2003, a different delegate determined that Mr Taylor was not entitled to receive incapacity payments in respect of his accepted condition. The delegate stated: “I am satisfied on the basis of Dr Kollar’s (sic) opinion that any incapacity for work you may have is a result of your non-compensable right knee injury, and that you are not incapacitated for work as a result of your compensable generalised anxiety disorder condition.” Mr Taylor did not request a reconsideration of this decision.
13. On 3 February 2004, Mr Taylor through his solicitors requested a reconsideration of the determination of 2 May 2003 on the basis of medical reports that showed his degree of permanent impairment from his psychiatric condition as within the range 15%-20%.
14. On 23 June 2004 the reconsiderations officer revoked the determination dated 2 May 2003 and determined that there existed a 10% whole person impairment. This decision was followed by a calculation of Mr Taylor’s lump sum entitlement in respect of his permanent impairment in the total amount of $26,300.71. It was noted in a further letter from the Department of Veterans’ Affairs, dated 31 August 2004, that this decision did not affect any of his other entitlements such as incapacity, medical expenses and rehabilitation.
15. Mr Taylor applied on 12 December 2004 for further compensation in the form of incapacity benefits, earlier rejected on 17 June 2003.
16. On 13 May 2005 the delegate of the Military Compensation and Rehabilitation Service (“MCRS”) rejected Mr Taylor’s claim for incapacity benefits. She stated, inter alia, that “I am satisfied on the basis of the opinions of all three doctors that any incapacity for work you may have is a result of your non-compensable knee injury, and that you are not incapacitated for work as a result of your compensable generalised anxiety disorder condition.”
17. Re-consideration of that decision was sought by Mr Taylor. On 15 August 2005 the reconsiderations manager of MCRS revoked the determination dated 13 May 2005 and determined that Mr Taylor was able to work full-time as a taxi driver for disabled individuals. He determined also that, as a result, Mr Taylor was entitled to “top-up” incapacity payments on and from 25 March 2004.
18. Since this is the reviewable decision which is the subject of the present proceedings before the Tribunal, it is desirable to set out some key sections of the reasoning of the Reconsiderations Manager:
“I note that your entitlements to incapacity payments up to 17 June 2003 have previously been determined by the Department. I am therefore willing to consider only your entitlements to incapacity payments on and from 18 June 2003.
“The first available report regarding your condition, after 18 June 2003, was provided by Dr Dinnen on 30 October 2003. Dr Dinnen did not comment on whether you were incapacitated for work. It was not until March 2004 that Dr Ding expressed the opinion that, although your inability to work at the time was as a result of non-compensable factors [the knee injury], your psychiatric condition would have impinged on your ability to work with people. I am therefore satisfied that, at that time, you would have suffered from some incapacity for your pre-injury [deemed to have occurred on 19 December 2002] employment.
“I note, however, that there is conflicting evidence regarding your present ability to work, having regard to your accepted condition. All of your doctors accept that your irritability and anger related to your accepted condition could impinge on your ability to work with others and considered that you were not suitable for direct supervision. The only doctors, however, to opine that you were totally incapacitated for work due to your psychiatric condition were your general practitioner [Dr Ajam] and Dr Koller. I am unable to accept the opinion of Dr Koller as he has provided no reasons for his opinion other than noting that you were chronically unemployable, and due to the conflict in the evidence provided by him in his report dated 30 October 2004 and in his medical certificate dated 10 December 2004.
“Although your general practitioner considered that you were totally unfit for work due to your psychiatric condition, this is not reflected in the comprehensive reports of Drs Ding and Brown, who are specialists in the area. Dr Brown considered that, having regard to your psychiatric condition only, you would be able to work as a taxi driver for disabled people. He noted that you left this employment due to unrelated musculoskeletal injuries. I prefer the opinion of Drs Brown and Ding to that of Drs Ajam and Koller as they are specialists in the area and have provided comprehensive reports regarding your conditions.
“There is also conflicting evidence regarding the extent of your musculoskeletal injuries affecting the left knee and back. Irrespective of the extent of these injuries, I am satisfied that, having regard to your generalised anxiety disorder, as at 25 March 2004, you were not capable of performing your pre-injury duties in the military service. I consider, however, that you were capable of working full-time as a taxi driver for disabled individuals.”
THE APPLICANT’S EVIDENCE AT THE HEARING
19. Mr Taylor recounted his service in the Army and his lack of happiness thereafter. After discharge he engaged in a variety of jobs in his trade as sheet metal worker, but found that he was irritable and quarrelsome. He also suffered from headaches.
20. He first started driving taxis in 1976 and drove for 22 years with Southern Districts Cabs. He became an owner/driver in about 1988. He gave up his taxi in 1998 after injuring his knee in an accident. In that accident he slipped and fell off a chair lift used for assisting disabled taxi passengers. He was rendered unconscious. Within about 12 months he developed arthrosis of that knee.
21. His irritability continued during his service as a taxi driver. He got into a number of fights with people and other incidents with passengers.
22. As a result, in 1993 he turned to driving taxis exclusively for disabled persons. He found this less stressful since the passengers were easier to deal with. The company supplied him with a vehicle adapted for wheel chairs. He built up a successful business serving disabled customers and established a regular client base.
23. Some time after his knee injury, in 1999, he went back to driving taxis for other owners. However, he had in the meantime lost his regular client base and by reason of company policy had to accept a mixture of ordinary customers and disabled customers. He found himself getting into arguments again with ordinary customers and so resigned from the company after about one month. He was thus convinced that it was no longer a viable proposition for him to drive exclusively for the disabled.
24. Mr Taylor then undertook a course in traffic control with the Roads and Traffic Authority in 2000, but found himself in trouble with his temper during his subsequent employment in that occupation. It was a similar situation with respect to another job in 2001.
25. He stated that he has not worked since 2001. He “gets too angry” and fears he may injure someone. He was not willing to return to driving taxis “because I can’t control myself”. He suffered from “road rage”.
26. His left knee does not prevent him from driving. He can manage a clutch. He now drives his wife’s car, and also a van that he uses for trading in furniture at markets.
27. He agreed in cross-examination that he had told doctors that his knee injury was the cause of his ceasing taxi-driving, but they had misunderstood the extent of his incapacity from that cause. “My knee only gives me trouble occasionally”.
28. Mr Taylor stated that he takes medication for his mood, sleep, knee, and headaches.
THE MEDICAL EVIDENCE AT THE HEARING
29. Dr Karl Koller, FRANZCP, FRCPsych, was called by the Applicant to give evidence. He was taken through his written reports, and confirmed them, in particular his opinion that Mr Taylor is unemployable by reason of his generalised anxiety disorder. In his opinion the knee injury in 1998 was merely “the straw that broke the camel’s back”; the real cause of Mr Taylor’s inability to work was his generalised anxiety disorder.
30. The Respondent called Dr Phillip Brown, MBA, MAPS, MRCPsych. He had examined Mr Taylor on 31 March 2005 and had furnished a report. He had been asked for a supplementary report by the Respondent having regard to additional information. This report, dated 5 May 2006 was admitted into evidence.
31. In the report of 5 May 2006 Dr Brown had stated, in response to the question how Mr Taylor could have suffered as generalised anxiety disorder some 33 years after he had completed his military service, as follows:
“There are two possibilities.
“The first possibility is that the ongoing anxiety symptoms associated with his military service were of insufficient degree for him to have sought treatment until recent years. Accepting his history as valid then he describes such symptoms over the intervening years and so it was not unreasonable that these would be exacerbated by any salient stresses of the time. Thus the limitations and consequences of his recent knee injury would be one such stress. In my opinion [that] is the reason for any significant difference in the severity of his psychological symptoms and but for it he would still be able to work as he did before it.
“The second possibility is that he did not have symptoms to justify the diagnosis of a Generalised Anxiety Disorder or other psychological condition until recent years and that before this he was primarily an angry person who blamed circumstances for his problems and is now retrospectively attributing his current psychological symptoms and condition to his military service for his own purposes….
“Conclusion. The additional information does not alter my opinion in any way. One has to accept his account of his psychological symptoms over the intervening years to attribute any current psychological condition to his military service, otherwise his psychological condition is the reaction of his psychological constitution to his present situation and particularly to the change in income earning and other circumstances occasioned by the injury to his knee. In any event, in my opinion the limiting aspects of any current psychological symptoms are the result of the consequences of his knee injury rather than any military service.” [Emphasis added]
32. In cross-examination Dr Brown agreed that the knee injury was the stressor that brought out the Generalised Anxiety Disorder.
OTHER MEDICAL EVIDENCE
33. In the decision under review the decision-maker referred to two written reports by doctors other than Doctors Brown and Koller. These were the reports of Dr Ajam, Mr Taylor’s general practitioner, and Dr Ding, consultant psychiatrist. These reports were in evidence in the T-Documents.
34. Dr Les Ding, FRANZCP, in his report dated 31 March 2004, stated that Mr Taylor suffered from Generalised Anxiety Disorder of which the principal cause was “probably” his military service. He regarded his impairment as likely to continue indefinitely and estimated his whole person impairment under the Guide Table at 15%. Regarding his ability to work, Dr Ding stated:
“Mr Taylor’s inability to perform his duties as a taxi driver or his pre-military service occupation of sheet-metal worker relates to his musculoskeletal conditions [caused by the accident in 1998] rather than his psychiatric disorder. However, I suspect that as his psychiatric symptoms have accentuated in recent years, he would have become somewhat more irritable and intolerant. This may well impinge upon his ability to work with people. His psychiatric condition should not prevent him from returning to taxi driving, tending a bar, or patrolling traffic.”
35. Dr Ajam’s report of 7 June 2005 was brief:
“It is the opinion of the writer, who is also the family physician of Mr Taylor, that he has been unable to work because of the following conditions: post-traumatic stress disorder; generalised anxiety disorder. He has injured his left knee in the past when he worked as a taxi-driver, however this is not the condition which prevented him from working. It is however deteriorating and may require knee replacement surgery in the future.”
A NEW ELEMENT IN THE CASE
36. In view of the difference between the parties as to the significance of the knee injury to Mr Taylor’s claim based on generalised anxiety disorder resulting from military service, at the conclusion of the hearing on 1 September 2006 Mr Dube sought leave to adjourn the proceedings in order to be able to summons material relating to Mr Taylor’s accident compensation claim. This had not previously been mentioned in evidence, nor was it part of the record contained in the T-documents.
37. Without objection, the proceedings were adjourned to a date to be fixed.
38. The hearing resumed on 21 January 2007.
39. The Respondent tendered a bundle of documents relating to the accident claim, produced under summons by the Applicant’s former solicitors. Included in the bundle were several medical reports on Mr Taylor’s condition after the accident.
40. There was a report by Dr Christopher Canaris, FRANZCP, forensic psychiatrist, dated 2 November 1999. Dr Canaris had seen Mr Taylor some 14 months following the accident in September 1998. That report contained the following passages relevant to the point at issue in the present proceedings:
“In essence he has chronic pain and attendant limitations in his lower back and knee. He has unfortunately found his changed situation very difficult to handle.
“His personality has changed dramatically since his injury. He has become extremely irritable….
“He has never been depressed before….
“[Mr Taylor] gives an unmistakable history consistent with a diagnosis of Major Depressive Disorder characterised by sadness, irritability, suicidal thoughts, social withdrawal, lack of motivation, sleep disturbance, psychomotor retardation, excessive eating, weight gain and greatly diminished libido. All this has occurred in the context of an injury sustained at work which appears to have given rise to chronic pain, impairment and attendant physical limitations all of which have prevented him from getting back to his job. It is difficult to escape the conclusion that his depression is a direct consequence of his accident and its sequelae. This man’s injuries, pain and unemployment have brought in its train a cascade of losses which have devastated his self esteem. …
“It is imperative that this man has treatment for his depression….”
41. A later report was that of Dr. Derek Lovell, FRANZCP, FACLM, consultant forensic psychiatrist, dated 2 November 2000. His report ended with the following opinion:
“Currently Mr Taylor describes some irritability and initial insomnia associated with left knee pain and low back pain…..He certainly does not suffer from Major Depressive Disorder at present. The symptoms described by Dr Canaris in his report of 2 November 1999 have abated. He does not describe pervasive sadness, suicidal thoughts, lack of motivation or social withdrawal. I was unable to obtain a clear history of Major Depressive Disorder previously. He has not been treated with therapeutic doses of antidepressants nor referred by his general practitioner for any psychological treatment. At present I would not regard him as meeting the criteria for any psychological condition. Psychological factors do not render him unfit for work.”
42. Dr Lovell examined Mr Taylor again 12 months later. In his report dated 6 November 2001 Dr Lovell noted that Mr Taylor had been working for a film company “Who Dares”, until he had a heart attack in August/September 2001. After then he had not been working, and was receiving workers compensation of $375 a week. His opinion concluded:
“Mr Taylor found work with “Who Dares” on film sets and worked 12 hours a week and sometimes longer hours. However, he suffered a myocardial infarction around August/September 2001 and has not worked since this time. He continues to complain of low back pain and knee pain, which he states results in some irritability and causes him initial insomnia. He has had no psychological referral and is not treated with a therapeutic dose of antidepressant medications. I do not believe that he suffers from any psychological diagnosis. He should be assessed on his underlying physical pathology….His heart attack has been the most significant factor in him ceasing employment. I would not consider this as related to his work injury. …I do not believe that he requires any psychological treatment.”
43. Neither Dr Canaris nor Dr Lovell expressed an opinion regarding Mr Taylor’s present or future fitness to undertake work.
44. The Respondent also tendered the reasons for judgment of Her Honour Judge Ainslie-Wallace in the District Court of New South Wales in Plaint No. 5040 of 2000 Ronald Derrick Taylor v. De Luxe Cab Company Limited. Judgment was given on 13 February 2002.
45. It is to be noted that De Luxe Cab Company took over the business of Southern Districts Cabs, for whom Mr Taylor started working in 1975, in about 1995.
46. This was an action under the Motor Accidents Act 1988 (NSW) in respect of Mr Taylor’s knee injury of 17 September 1998 when he slipped on the hoist at the back of his taxi van when assisting a disabled passenger to alight from the vehicle. The Court found in favour of Mr Taylor, awarding him damages for non-economic loss of $91,340, and for future economic loss of $101, 558. Past economic loss was agreed at $57,065, much of which had already been paid under Workers Compensation. Further awards were made for out of pocket expenses ($31,060) and in respect of past ($20,468) and future ($82,940) domestic assistance.
47. Subsequently the Court amended the award since superannuation had inadvertently been omitted. The total amount of the judgment was thus entered for Mr Taylor in the sum of $428,220.86.
48. At the hearing Mr Taylor was asked to comment on the fact that, included in his heads of claim in the under the Motor Accidents Act in 2000 was “depression”. He stated that he had no knowledge of such a claim having been included: “it was put in by my solicitors”.
49. Judge Ainslie-Wallace, in her reasons for judgment, stated, under the heading “depression”:
“The plaintiff said that as a result of his accident and injuries and his consequent inability to work, his personality changed and he said he ‘got very down’ and became short-tempered and irritable with his family.
“In late 1999 the plaintiff’s general practitioner commenced to treat the plaintiff with anti-depressant drugs because, to his observation, the plaintiff’s emotional condition was deteriorating. He was referred to a psychiatrist, Dr Canaris, who, in 1999, found that he suffered from a major depressive disorder ….
“Later reports on the plaintiff tendered by the defendant do not describe the plaintiff’s condition as did Dr Canaris, which is consistent with the plaintiff’s evidence that his emotional condition has improved.”
50. Judge Ainslie-Wallace did not separately assess an amount of damages in respect of “depression”. Her Honour took generally into account, in assessing non-economic loss, that “by reason of the accident and the injuries and continuing difficulties suffered by him, the plaintiff’s day to day life has been severely compromised both in the past, and will be in the future.”
51. At the resumed hearing the Applicant tendered letters from Taxi Training Australia and from the NSW Taxi Council, the effect of which was that even taxis specially adapted for the carriage of disabled persons are normally required to pick up ordinary passengers on request. The implication of this evidence is that Mr Taylor could not work exclusively as a taxi driver for disabled passengers.
52. Indeed, this barrier to his preferred work was confirmed by the fact of Mr Taylor’s prosecution in 2005 for offences under section 178DD of the Crimes Act 1900 (NSW) arising out of the misuse of Taxi Transport Subsidy Scheme dockets and his use of a private vehicle for the carriage of disabled passengers for reward. Evidence of his conviction and his having been placed on a good behaviour bond for three years was put into evidence at the resumed hearing.
THE APPLICABLE LAW
53. Section 19 of the SRCA provides for the payment of compensation for incapacity which arises out of a compensable condition. Under that section, if a person is incapacitated for work, the amount of compensation is to be determined by a formula which is the person’s normal weekly earnings minus their ability to earn.
54. In the present case, that formula involves calculating the earnings of Mr Taylor in the Army, as indexed for what a person in his rank would now receive, minus his present earnings. Present earnings are either those actually earned or those that Mr Taylor is able to earn in suitable employment, having regard to his skills, qualifications and experience.
55. Section 19(4) of the Act sets out matters to which Comcare shall have regard in determining the amount per week payable. These include the reasonableness of the employee’s failure to engage in employment (19(4)(f) and “any other matter that Comcare considers relevant” (19(4)(g)). These provisions were considered by this Tribunal in Re Prica and Comcare (1996) 44 ALD 46.
56. Section 24 of the Act provides for the payment of compensation for injuries resulting in permanent impairment. Under subsection (5), Comcare shall determine the degree of permanent impairment of the employee from an injury under the provisions of the approved Guide.
57. The respondent also drew the attention of the Tribunal to section 119 of the Act governing the situation of payments of compensation under the SRCA where compensation has been paid under a specified law of a State. However, this would not appear to have application in the present case since the Motor Accidents Act 1988 (NSW), under which Mr Taylor received compensation in 2002, is not one of the Laws specified pursuant to section 119(7): Gazette S365 of 30 November 1988, as amended by Notice No 1 of 1989.
58. The Respondent submitted that the Tribunal, if it were of the opinion that Mr Taylor’s generalised anxiety disorder was attributable to, or was precipitated by, the accident with the taxi hoist in 1998, then it could set aside the determination of the MCRS of 14 March 2003, reaffirmed on 15 August 2005, that accepted that condition as resulting from military service. He cited in this connection the decision of a full court of the Federal Court of Australia in Telstra Corporation v. Hannaford (2006) 90 ALD 263, in particular the dicta of Conti J at paragraphs 57-58 where His Honour described the scheme of the Act as allowing for “progressive and evolving decision-making.”
59. The Respondent’s principal argument was that Mr Taylor’s present inability to work, if any, was entirely attributable to his non-compensable (under the SRCA) knee injury of 1998 and not to his military service.
CONCLUSIONS
60. Despite certain inconsistencies, having regard to all the evidence, we are of the opinion that there is no occasion in the present case to revisit the acceptance of Mr Taylor’s generalised anxiety disorder. It ranks relatively low in the scale of Mr Taylor’s medical conditions but not low enough, in our opinion, altogether to be discounted.
61. We are also of the opinion that, even if the award of damages by the District Court in favour of Mr Taylor could be taken into account, it is not clearly established that the amount assessed for non-economic loss included consideration of “depression” as a distinct element, or that it excluded the possibility of any anterior generalised anxiety disorder.
62. We find that the reason why Mr Taylor left his employment as a taxi driver for the disabled in 1999 was his non-compensable knee injury. We also find that the reason for Mr Taylor’s continuing inability to find suitable work is principally related to the consequences of the injury he sustained in September 1998, which is not compensable under the SRCA.
63. We prefer, on the balance of probabilities, the medical evidence that Mr Taylor is not totally incapacitated for work as a result of his accepted generalised anxiety disorder condition, or any other psychiatric condition. We found, in relation to the claim under the SRCA, the oral and written evidence of Dr Brown to be more convincing than that of Dr Koller, and the written evidence of Dr Ding more convincing than that of Dr Ajam.
64. While we understand the practical difficulties faced by Mr Taylor in resuming work as a taxi driver exclusively for the disabled, resulting from taxi company policy and licensing rules, we do not consider that this is the only kind of work for which he might be suited.
DECISION
65. The decision under review is affirmed, subject to the direction that the matter be remitted to the Respondent to determine the actual quantum of compensation that is payable, in the light of these reasons.
I certify that the 65 preceding paragraphs are a true copy of the reasons for the decision herein of
Signed: ................[Sanjiv Shah]....................
AssociateDates of Hearing 30 August 2006, 1 September 2006, 22 January 2007
Date of Decision 28 March 2007
Counsel for the Applicant Mr B. Winship
Solicitor for the Applicant Winship LawyersCounsel for the Respondent Mr B. Dube
Solicitor for the Respondent Sparke Helmore
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