Taylor v Victorian WorkCover Authority
[2015] VCC 1829
•15 December 2015
| IN THE COUNTY COURT OF VICTORIA COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
| SERIOUS INJURY LIST |
Case No. CI-14-05551
| STACEY LEA TAYLOR | Plaintiff |
| v | |
| VICTORIAN WORKCOVER AUTHORITY | Defendant |
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JUDGE: | HIS HONOUR JUDGE O'NEILL | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 3 and 4 December 2015 | |
DATE OF JUDGMENT: | 15 December 2015 | |
CASE MAY BE CITED AS: | Taylor v Victorian WorkCover Authority | |
MEDIUM NEUTRAL CITATION: | [2015] VCC 1829 | |
REASONS FOR JUDGMENT
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Subject: ACCIDENT COMPENSATION
Catchwords: Serious injury application – injury to left knee – Chronic Regional Pain Syndrome – credibility of the plaintiff – disentangling psychological consequences from physical injury – whether consequences “very considerable” – whether 40 per cent loss of earning capacity – plaintiff under 26 at time of incident
Legislation Cited: Accident Compensation Act 1985, s134AB(16)(b)
Cases Cited: Meadows v Lichmore Pty Ltd [2013] VSCA 201
Judgment: Leave to the plaintiff to issue proceedings for pain and suffering and loss of earning capacity damages.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr P Jewell QC with Mr C D Griffin | Maurice Blackburn Pty Ltd |
| For the Defendant | Mr J Gorton QC with Mr J Angenent | Thomson Geer |
HIS HONOUR:
Preliminary
1 The plaintiff, Ms Taylor, suffered an injury to her left knee in the course of her work with her employer, the Russell Corporation. Over time, the injury developed into a Chronic Regional Pain Syndrome Type 1 (“CRPS”) and Ms Taylor claims she has been very significantly debilitated as a result.
2 She claims a range of recreational, social, domestic and work-related activities have been affected or lost. She has not worked since the date of the incident, save on a couple occasions on lighter duties. She regularly walks with a limp, and requires a crutch on occasions. She has had a range of treatment from different practitioners, principally pain management specialists.
3 This is an application for leave to bring proceedings pursuant to s134AB(16)(b) of the Accident Compensation Act 1985 (“the Act”) for injury suffered by Ms Taylor in the course of her employment on 25 May 2011.
4 The body function said to be lost or impaired is the left leg. The application is thus brought under ss(a) of the definition of “serious injury” contained in s134AB(37) of the Act. Leave is sought in respect of pain and suffering and loss of earning capacity.
5 The plaintiff was the only witness called to give evidence and be cross-examined. In addition, her affidavits, various medical and vocational reports, surveillance material and other documents were tendered into evidence. I shall not refer to all of that material in the course of this judgment, but rather to those parts of the evidence and reports which appear to me to be most relevant and which I have relied upon in coming to the conclusions referred to later in this judgment. The statutory scheme set forth in the Act which prescribes and regulates applications of this nature and the principal authorities of the Court of Appeal are well known, and it is unnecessary for me to revisit the various relevant sections and those authorities.
Relevant background
6 Ms Taylor was born in 1986 and is now twenty-nine. She was twenty-five at the date of injury. She is a single mother with a nine-year-old son, and lives with her parents.
7 Ms Taylor completed Year 12 and was an average student. She started work as an apprentice hairdresser. She worked in a bakery and then as a waitress, before commencing work with the Russell Corporation in October 2008. She worked in a warehouse on a production line packing products into cartons. The work required a fair bit of bending and twisting.
8 Ms Taylor had some psychological issues in the past relating to an assault when she was fifteen. She was treated for bouts of depression in 2001, 2005 and 2007. On several occasions, she was prescribed antidepressant medication. Neither this condition, nor its treatment, required her to have any significant time away from work.
9 Prior to the injury, she said she was fit and well. She had no physical injuries nor problems, in particular to her left leg. She enjoyed regular Latin dancing and a full social life. She played competition netball and was involved in other outdoor activities including snowboarding and surfing.
The injury and its consequences
10 On 25 May 2011, Ms Taylor had been working considerable overtime. While pushing a carton on rollers, she twisted her legs to the left and developed what she described as extreme pain in her left knee. She stopped work and reported the incident to her supervisor. She had recently purchased a manual car, and drove herself to a local doctor.
11 Ms Taylor went to the workplace general practitioner, Dr Oon, who noted left knee pain and tenderness. He referred her to Mr Ton Tran, orthopaedic surgeon, who saw her on 8 June 2011. Mr Tran performed a left knee arthroscopy on 20 June 2011, which showed “moderate chondral wear on the lateral facet of the patella”.[1] He said the rest of the knee was structurally sound.
[1]Plaintiff’s Court Book (“PCB”) 73
12 On review in September 2011, Ms Taylor complained of ongoing pain. Mr Tan diagnosed a patellar subluxation with a secondary chondral tear of the patella.
13 Ms Taylor was referred to Mr Eden Raleigh, orthopaedic surgeon, in October 2011. Mr Raleigh noted there was a restriction in straightening her left leg, with pain and swelling. He arranged an MRI scan, which showed some mild swelling but was otherwise normal. He referred her to a pain specialist, thinking that she had a Chronic Pain Syndrome.
14 After the injury, Ms Taylor was away from work for a period and then returned in the first week of July on light duties. After the surgery, she again returned to work on light duties in September 2011, but was unable to continue because of the pain, and stopped in October 2011.
15 Ms Taylor was referred to a number of pain specialists, and eventually saw Mr Tim McCarthy in July 2012. He treated her until his unfortunate death about a year ago.
16 Mr McCarthy diagnosed CRPS, with pain in the left knee, extending to the hip and back. To Mr McCarthy, Ms Taylor complained of weakness in the left knee, changes in temperature and a mottling or discolouration around the area. On his initial examination in July 2007, he noted a bluish tinge and a lowered temperature on the left knee. He referred her for physiotherapy and later, in 2012, performed a “sympathetic block”. This provided no prolonged relief. He performed a ketamine infusion in November 2012 and further infusions the next year. This provided very good pain relief, but for a limited period.
17 At the present time, Ms Taylor complains of constant pain in and around her left knee. At times, the pain radiates to her foot and to her lower back. She said frequently it is at 8 out of 10. Her condition has been deteriorating over the last year. On occasions, the left knee gives way. She regularly walks with a limp, and sometimes needs a crutch or walking stick. She says that she is only able to stand for about 20 minutes, and sitting is a problem, as she becomes restless. It is difficult to use her laptop. She still drives her manual car, but has pain using the clutch and only drives for shorter distances. She described walking as “extremely difficult” and can only walk for 10 to 12 minutes. Weight bearing on her left leg causes pain, as does walking up steps. She has been unable to resume any of her recreational and sporting activities and has difficulty playing with her son. Her intimate life is affected.
18 Ms Taylor commenced a course in “vertebrate zoology” which provides interest, but is unlikely to result in any long-term work prospects. Since May 2014, she has been involved in selling candles, but this is a modest activity.
19 Ms Taylor takes Panadeine Forte, between two and ten per day, and occasionally Endone when the pain is very bad. She takes Lyrica to help with sleep, and Valium occasionally.
20 She says her sleep is affected and she has become anxious. The anxiety makes the left knee pain worse. She was referred to a psychiatrist, Dr Megan Davis, but the insurer would not approve payment. She goes to physiotherapy at “Bounce” each second week or so and also does hydrotherapy. She uses a TENS machine from time to time and heat packs.
21 Ms Taylor drives her son to school and picks him up. She can only do light housework, and finds shopping difficult.
22 She says she would love to be able to return to work but does not believe she would be able to hold down any of the positions which have been suggested.
Medical opinions
23 Dr Peter Blombery, vascular physician, when he saw Ms Taylor in July 2015, said she complained of ongoing pain in the left knee, ankle and hip. She rated the pain overall as 8 out of 10. The pain prevented her sleeping and she took Lyrica to help her sleep. She had low-back pain that she attributed to the way she was walking and that her left leg became cold and purple. The symptoms were overall becoming worse. She used a crutch 90 per cent of the time.
24 Dr Blombery observed that Ms Taylor walked using a crutch in her right arm and she tended to slope her body to the right side. The left knee was 2 degrees cooler than the right and there was 2-centimetre wasting of the left thigh. The left leg was generally mottled and blue, and there was allodynia over the left calf.
25 Dr Blombery diagnosed CRPS, complicating soft issue and cartilage damage to the left knee. He noted she had autonomic disturbance, both on history and on examination. He said this condition was a consequence of the incident of 25 May 2011.
26 Dr Blombery said Ms Taylor’s work restrictions were permanent and she had no fitness for unrestricted work:
“Given the severity of her pain, the need for ongoing use of Lyrica … and her secondary depression … she has no capacity for alternate duties or suitable work at the moment.”[2]
[2]PCB 48
27 Her prognosis for recovery was relatively poor and Dr Blombery felt it likely that she would be left, in the long term, with a very marked disability. He was hopeful this could be improved a little with specific treatments.[3]
[3]PCB 45 – 48
28 In December 2015, Dr Blombery reported that Ms Taylor had no capacity for her pre-injury work duties as a result of the physical injury only and that her incapacity was likely to remain for the foreseeable future.[4]
[4]PCB 52A
29 Dr Benjamin Wallis, the treating general practitioner, in June 2014, agreed with the diagnosis of CRPS and noted her symptoms were worsening, with Ms Taylor experiencing pain over a wider area, from above her knee down to the ankle.
30 Dr Wallis believed that she had a limited capacity for work, for 3 to 4 hours per day, every second day or so, if she was not required to stand or sit for long periods or take weight over the left knee.[5]
[5]PCB 54 – 55
31 Dr Wallis revised his opinion in April 2015, saying that Ms Taylor had no current capacity for work, and that that was likely to continue indefinitely.[6]
[6]PCB 56
32 Rachael Sheat, treating physiotherapist, in January 2015, reported that she saw Ms Taylor weekly in a functional restoration pain class where she performed a measured 6-minute walk test. She noted Ms Taylor reported persistent low-back pain and intermittent unpredictable leg pain and giving away without any obvious triggers.
33 She noted Ms Taylor’s psychological co-morbidities associated with the development of the Complex Pain Syndrome was a barrier to returning to work, and that CRPS had a poor prognosis.[7]
[7]PCB 58
34 Dr Timothy McCarthy, treating specialist anaesthetist, in August 2013, noted Ms Taylor’s knee had a bluish tinge and was 2 degrees colder than the right. She had no significant swelling, but had cold hyperalgesia of the leg to a cool roller, with brush dysaesthesia of the leg below the knee to the foot. The medial port site was very sensitive. The range of movement of the knee was markedly limited.
35 Dr McCarthy diagnosed CRPS of the left leg, and advised that she did not have a capacity to work.[8] In May 2014, he described it as “quite severe CRPS”.[9]
[8]PCB 61 – 63
[9]PCB 59
36 Dr Joseph Slesenger, specialist occupational physician, in September 2015, said Ms Taylor reported that her left knee had become swollen and stiff with purple discolouration in a honeycomb effect. The pain level was 8 out of 10 and was dull, burning and sharp in character. She was reliant on a walking stick to mobilise and her left knee had regularly given way. She reported pain in her ankle, left hip and back, depression and anxiety.
37 Dr Slesenger observed that she walked with a pronounced limp, leaning heavily onto her walking stick. He diagnosed CPRS affecting her left knee and left ankle, and mechanical lower back pain secondary to postural changes.
38 Dr Slesenger said Ms Taylor’s symptoms were unlikely to improve significantly, and that she could not return to her pre-injury duties, or alternative duties. He was cautious as to her prognosis, noting her symptoms, the length of her impairment and the severity of her occupational disability.[10]
[10]PCB 78-87
39 Mr Russell Miller, orthopaedic surgeon, in July 2015, reported quadriceps wasting, and hypersensitivity involving all of the left lower extremity. Ms Taylor walked with a chronic limp, mobile only with a crutch, and the lower left leg had a slight blue discolouration. He diagnosed Severe Chronic Pain Syndrome secondary to the injury to her knee and wrote that her injuries had substantially stabilised:
“… She has clearly developed a very major psychological reaction following this incident. … .”[11]
[11]PCB 93
40 Mr Miller concluded she would not be fit for pre-injury duties on a full-time or part-time basis.
41 Mr Iain McLean, orthopaedic consultant, saw Ms Taylor in April 2015 after first seeing her in June 2013. Ms Taylor said she had pain in her knee all the time. She hobbled around the house, but if going further, used a single crutch. On examination, she entered the room using a single crutch, and when attempting to walk without the crutch, she had a marked limp. She had thigh and calf wasting compared to the right leg.
42 Mr McLean diagnosed secondary CRPS. Given the four years’ duration, her disabilities had a poor prognosis, short and long-term. He said she did not have a current work capacity.
43 In a supplementary report of 16 September 2015, Mr McLean reiterated Ms Taylor –
“… has a complex organic pain; and psycho-emotional problems; initiated by her work injury, that is chronic and ongoing.
Given her age of 28 years; if assisted and directed through the multidisciplinary program; then I would be hopeful that at some time in the future, she may gain the capacity to perform some form of meaningful employment.
At this stage … no present capacity.”[12]
[12]Exhibit B
44 Kaye Angel of Flexi Personnel, said work of the lightest sedentary type requires punctuality, regular attendance and consistent capacity to do the work. Ms Taylor’s disabilities meant that she would struggle to be a reliable employee.[13]
[13]PCB 107
45 A report by Paul Hartley of Vocational Directions said Ms Taylor was substantially disenfranchised from the workforce.[14]
[14]PCB 124
46 Professor G Littlejohn, rheumatologist, in February 2014, observed Ms Taylor walking with a significant limp, and noted that she usually used crutches. He diagnosed CRPS. He thought it likely she would have further improvement over time.
47 Dr Rasanjali Rathnayake, consultant psychiatrist, in October 2013, reported Ms Taylor was mildly depressed and not anxious, or hopeless. She diagnosed Adjustment Disorder with Depressed Mood in the context of chronic pain affecting her left knee. Her psychiatric symptoms were mild and did not prevent her from returning to work with her pre-injury employer or another employer.[15]
[15]PCB 149 – 151
48 Dr Kevin Fraser, rheumatologist, in June 2015, reported, on examination, Ms Taylor walked with a marked limp, favouring her left leg and leaning heavily on a walking stick held in her right hand. There was mild diffuse local tenderness of her knee and mild quadriceps wasting. There was no discoloration or temperature differential compared to the right leg. He reported significant overreaction on physical examination.
49 Dr Fraser was not convinced of the diagnosis of CRPS and thought Ms Taylor may have a conversion disorder. He believed her presentation was due to non-organic factors, the prognosis was poor and it was unlikely to improve in the foreseeable future. From a physical perspective, she had a current work capacity.[16]
[16]Defendant’s Court Book (“DCB”) 2 – 3
50 The report of Dr Fraser is of little assistance, given all of the other practitioners accept the diagnosis of CRPS. Mr Gorton, for the defendant, although saying the effect on Ms Taylor was not as severe as she made out, did not take issue with the diagnosis.
51 Dr Christine Kotsios, consultant psychiatrist, saw Ms Taylor in March 2014 and August 2015. Ms Taylor told her that she began to experience psychological symptoms several months after the injury when her condition did not improve. Her symptoms became worse after she received the diagnosis of CRPS.
52 In a report dated 10 August 2015, Dr Kotsios diagnosed:
“…. chronic adjustment disorder with depressed mood that developed in the context of a physical injury at her workplace … .”[17]
[17]DCB 21
53 From a psychiatric perspective, she had a capacity for work and could return to her pre-injury duties and hours. Dr Kotsios reported no conscious nor unconscious exaggeration of her symptoms.[18]
[18]DCB 7 – 9
54 Dr Dominic Yong, specialist occupational physician, in August 2015, confirmed his opinion of October 2014 that Ms Taylor had a capacity for work within the following restrictions:
· Reduction in working hours
· Avoid squatting or kneeling tasks
· Avoid firm pushing or pulling
· Avoid prolonged standing or walking
· Avoid lifting more than 4 kilograms on a repeated basis.[19]
[19]DCB 30
55 Dr Yong believed the following tasks would comply with the restrictions:
· despatch clerk
· receptionist
· enquiry clerk/information officer
· call centre manager.[20]
[20]DCB 31
Credibility of the Plaintiff
56 The plaintiff gave evidence and was cross-examined. Mr Gorton submitted that Ms Taylor had exaggerated the extent of her limp and in her reliance on a crutch in her presentation to doctors, and that as a consequence, the opinions of the doctors as to her work capacity and the permanence of her disability should not be accepted.[21]
[21]T79, L16
57 Ms Taylor told Kaye Angel from Flexi Personnel that she could walk at a very slow pace and using a crutch for support;[22] Dr Slesenger, that she was reliant on a walking stick to mobilise;[23] Dr Blombery, that she used a crutch 90 per cent of the time and Mr Miller, that she walked with a limp.[24] Ms Taylor’s evidence was that two to three times a week, she walked without a crutch or a limp, and said that half the time she did not use the crutch.[25]
[22]PCB 98
[23]PCB 78
[24]PCB 90
[25]T22, L3; T24, L3 – 6
58 Video surveillance was shown of 13 October 2014, 30 April 2015 and 3 June 2015.[26] On the first occasion, Ms Taylor was seen to walk without a limp and in an unrestricted manner from her car for about 50 metres. She was also seen to walk around the shops, again without a crutch, and with very little limp. In April 2015, she was able to walk to her car for about 20 metres in a free and unrestricted manner. Later, she walked from her car to her son’s school. In June 2015, she walked into a shop with a dog. She seemed to hesitate on the step and it is difficult to determine whether that hesitation was because of difficulty climbing the several stairs, or because she became entangled with the dog.
[26]Exhibit 1
59 Mostly, she was shown on the surveillance walking without a crutch, with little or no limp, and in a relatively unrestricted manner.
60 When challenged in cross-examination about the discrepancies in her evidence, Ms Taylor said that she was attempting to walk without a limp on the advice of the physiotherapist[27] and that sometimes, she limped and sometimes she did not.[28] If she needed the crutch she would use it, but otherwise she would not.[29] The days shown on the video were good days when the knee was not so bad, otherwise she would not have been outside walking around.[30]
[27]T22, L19 – 20
[28]T21, L29 – 30
[29]T23, L3 – 5
[30]The defendant admitted that in total there was 44 hours when the plaintiff was under surveillance, although she was not actually observed for all that time.
61 Mr Jewell conceded the discrepancies in Ms Taylor’s evidence but submitted that the credit or reliability of the individual must be looked at in the light of all the objective evidence. He said the examination findings of four years demonstrate an entrenched condition in terms of permanency. In particular, the evidence regarding wasting of the thigh and calf was consistent with genuine pain and with complaints that the injury was becoming worse.
62 Mr Jewell also said that the surveillance was consistent with Ms Taylor’s evidence, in that in a lengthy period of surveillance, only a very short part of the film shows her walking.
63 Mr Gorton submitted Ms Taylor exaggerated the amount of Panadeine Forte taken. In her affidavit dated 26 June 2014, she said she often took up to ten Panadeine Forte a day when the pain was at its worst.[31] She told Dr Kotsios that she took, on an as needed basis, approximately eight tablets a week,[32] and told Dr Slesenger she took two tablets a day.[33]
[31]PCB 35
[32]DCB 8
[33]PCB 79
64 I accept the submission of Mr Gorton that there is an element of exaggeration in Ms Taylor’s evidence about her consumption of Panadeine Forte. That causes me some caution when assessing her evidence.
65 Ms Taylor did say that there were times where she did not use a crutch when walking. The video surveillance shows her moving freely over very short distances on a very few occasions. Given the amount of time during which Ms Taylor was under surveillance, I do not accept that the surveillance itself translates into a significant credit issue. The surveillance is a snapshot in time. Again, it causes me to take some care in assessing her evidence, but does not cause me to reject her claims as to pain and disability in the left knee.
Conclusions
66 Mr Gorton pointed to the opinions of Dr McCarthy[34] and to Dr Slesenger, that Ms Taylor had a psychological impairment, in addition to the CRPS, which affected her presentation. He said that that psychological impairment had a significant impact upon her work capacity and had to be disentangled and extracted from any working capacity arising from the CRPS. However, I note the opinions of the psychiatrists, Dr Kotsios and Dr Rathnayake, that from a psychological perspective, Ms Taylor has little impairment and nothing to prevent her returning to work. Further, if there is an element of non-organic presentation, it is only a modest comorbidity and does not affect Ms Taylor in any significant way.[35]
[34]PCB 65
[35]See Meadows v Lichmore Pty Ltd [2013] VSCA 201 at paragraphs [21] – [23]
67 Ms Taylor accepted that when she was particularly anxious, that led to an increase in her levels of pain. That increase thus has a psychological basis. However, I am not satisfied that there is any significant disentangling exercise to be undertaken. The consequences arising solely from her psychological reaction are modest and of little significance when compared to those arising from the organic CRPS.
68 I accept, as do almost all of the practitioners, that Ms Taylor contracted, and still suffers from, CRPS. It is accepted as an organic condition arising from the workplace injury to her left knee. Over the years, Ms Taylor has had extensive treatment including ketamine infusions, physiotherapy and treatment by pain specialists. She is due to undertake treatment by another pain specialist and is waiting an appointment. I accept that she takes a range of medication including Panadeine Forte, Lyrica and occasionally, Endone.
69 There is objective confirmation for the disorder and its effect upon her, in that she has some muscle wasting in the left leg, and mottling and discolouration. I was able to observe this myself in Court.
70 Mr Gorton submitted that I could not be satisfied that the condition is permanent. The authorities have defined “permanent” as “for the foreseeable future”. She is a young woman, said Mr Gorton, engaging and bright, and it is likely she will resume many social and domestic activities and return to employment.
71 It is true that Ms Taylor is now only twenty-nine. She has many years ahead of her. However, there is no doctor offering any hope for resolution of the condition in the foreseeable future:
· Dr Slesenger was of the view that the symptoms were not likely to significantly improve.[36]
[36]PCB 86
· Mr Miller said the position was stabilised.[37]
[37]PCB 94
· The general practitioner, Dr Wallis, thought Ms Taylor would need ongoing treatment, that she had no current work capacity and that that was likely to continue.[38]
· Dr Blombery, an acknowledged expert in the field of CRPS, said Ms Taylor’s situation was permanent.
[38]PCB 55 – 56
72 While probably Ms Taylor’s situation will improve with time given her young age, that will have more to do with her accepting the disability and finding ways to cope with it. There is no prospect of any treatment to alleviate the current situation. I am satisfied that her situation will remain one of significant disablement for the foreseeable future.
73 Although I have some reservations about Ms Taylor’s credibility, I am nonetheless satisfied that she suffers extensive pain in the left leg which translates into a restriction in her recreational, domestic and work activities. I accept she was relatively fit before the incident and her enjoyment of dancing and a range of outdoor activities is now lost.
74 As Mr Gorton says, Ms Taylor has a range of past experiences and work histories which would assist in finding employment. She has worked in sales, hospitality and has some experience managing people in the workplace. She has an engaging personality, good concentration and a range of skills.[39] She is able to drive a manual car, at least for short distances, and to take her son to and from school most days. Mr Gorton said I ought to rely on the opinion of Dr Yong, the specialist occupational physician, who was provided with the extensive vocational material. Dr Yong said Ms Taylor could perform a range of tasks with some restrictions.[40] He thought she could work as a despatch clerk, receptionist, enquiry clerk or call centre manager, providing she could rotate her posture and move between sitting and standing. However, in his second report of 31 August 2015, he said her capacity would be within restrictions, including “reduction in working hours”. He did not say what that reduction was.
[39]See DCB 47
[40]DCB 30 – 38
75 On the other hand, many of the practitioners, both treating and consultant, in the plaintiff’s camp, are of the view Ms Taylor has little, if any, work capacity. Dr Blombery thought her prognosis was relatively poor and that she had no capacity for alternative duties or suitable work, although said that this was as a result of CRPS and a “secondary depression”.[41] The general practitioner, Dr Wallis, thought Ms Taylor had a limited capacity for work, possibly three to four hours every second day or so.[42] In May 2014, Dr McCarthy, the treating pain specialist, said she had no capacity for work. Dr Slesenger, in a recent report, said Ms Taylor had no capacity to return to alternative duties.[43]
[41]PCB 48
[42]PCB 55
[43]PCB 87
76 On balance, I prefer the opinions, in particular of the general practitioner and Dr McCarthy, who have each treated Ms Taylor over a considerable period. Ms Taylor probably does have a capacity for work on reduced hours in employment which would accommodate her physical difficulties. However, her capacity to perform any such duties is considerably reduced, and reduced beyond the 40 per cent prescribed by the legislation.
77 In summary, given the pain and consequent restriction to the left leg suffered by Ms Taylor which restricts her in a number of ways and is likely to continue for the foreseeable future, I am satisfied that the consequences of the injury achieve the “very considerable” test. Further, I am satisfied that she has suffered an impairment of working capacity of 40 per cent or more. That situation is likely to remain permanent.
78 Ms Taylor’s application thus succeeds. I shall make consequent orders.
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