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Accident Compensation Cases

Chalmers v Accident Compensation Corporation (DC, 07/08/12)

Judgment Text

JUDGMENT OF JUDGE RODERICK JOYCE QC 
Roderick Joyce QC Judge
Reason for appeal 
[1]
Ms Chalmers dislocated her left knee on 16 November 2001 as she was making her way down a flight of steps. At the time she was employed full time as a call centre operator. 
[2]
She sought and was granted cover from the Corporation on account of that injury and, having been certified unfit for work, was in receipt of weekly compensation from 26 November 2001 until 6 February 2002. 
[3]
She then returned to part time work which continued until 17 December 2003 when she lost that position. Thereafter she was again in receipt of weekly compensation. 
[4]
On 26 May 2008 and in substantial reliance on reports from Dr W E D Turner, an occupational medicine specialist, the Corporation determined that Ms Chalmers' then condition did not preclude her from returning to her pre-injury occupation. 
[5]
Thus it wrote to her on 26 May 2008 to advise that in its view she was no longer entitled to loss of earnings support from the Corporation so that weekly compensation payments would be suspended from 25 June 2008. 
[6]
Ms Chalmers sought a review of that decision the hearing of which commenced on 14 October 2008 and was concluded on 10 December that year. 
[7]
In a decision dated 16 December 2008 the reviewer dismissed her application and it is from that dismissal that she now appeals to the Court. 
Delay 
[8]
The considerable delay between the filing of that appeal and the hearing of it is in no way attributable to the Tribunals' registry or the Court. 
Background 
[9]
As has been noted, the injury that Ms Chalmers had suffered involved a dislocation of her left knee. Ms Chalmers has had the misfortune of suffering several knee injuries. In a 1 March 2004 report to her general practitioner Mr Russell Tregonning, orthopaedic surgeon and knee specialist, set this history: 
Left knee injured in 1992 in the course of a civil defence exercise, the accident involving a direct anterior blow to that knee; 
Subsequent recurrent episodes of patella dislocation followed by surgery in 1993; 
Subsequent recurrence of instability leading to further surgery in 1996; 
In the accident principally under consideration now, she suffered a further dislocation; 
In March 2002 after further dislocation problems a tibial tubercle transfer was performed with the intent of achieving stabilisation; 
There were subsequent wound healing/infection problems with healing taking many months and further surgery being required in 2003 in the form of a skin draft; 
It was her lot after that operation to suffer a deep vein thrombosis for which she had been placed on Warfarin; 
Then in October 2003 her right knee was injured in the course of an awkward endeavour to get into a car in a confined space. 
[10]
At that point Mr Tregonning thought that Ms Chalmers might require surgery on the right knee and recognised that the left knee was probably painful and unstable feeling because of the right's weakness. Ms Chalmers was encouraged to persist with exercise and to decrease her weight as much as was possible, 
[11]
On 23 June 2004 Dr Michael Antoniadis (who specialises as an occupational health medical practitioner) provided the Corporation with an IMA having seen Ms Chalmers that day. He recorded a similar history to that gained by Mr Tregonning. He noted as regards the left leg that even after the last of the then concluded operations she had continued to have episodes of “dislocation” of her patella. 
[12]
Ms Chalmers told the doctor that her left knee was “unstable if I turn the wrong way” and that after prolonged standing or walking of up to 30 minutes she was “sore” in the knee area, He also noted ongoing problems with the right knee which, as she reported, included “locking straight” events. 
[13]
Dr Antoniadis reported that his history and examination findings confirmed what she had told him, but that a diagnosis explaining her symptoms remained elusive, particularly as regards her right knee. (Here he recorded that she was under the care of Mr Kiddle, orthopaedic surgeon.) 
[14]
Dr Antoniadis was of the view that any future work should avoid repetitive heavy lifting, pushing, pulling or carrying and that she could consider work as a telephone switchboard operator. 
[15]
Mr Kiddle wrote to Ms Chalmers' general practitioner after seeing her on 28 October 2004. He noted that an MRI scan showed a small anterior horn tear of the lateral miniscus and that she was still getting pain both laterally and medially, and there were still problems of instability in the left knee. 
[16]
He had put her down for an arthroscopy of the left knee (with the intention of exploring the situation and addressing the tear) but had warned her that this would make no difference at all to the instability problem which in his view was something she would simply have to live with. 
[17]
Around this time Ms Chalmers was referred a for work site assessment with an occupational therapist, Ms Nordhoff. She noted that Ms Chalmers was at that time eager to return to work and, in particular, to her previous role as a call centre operator. 
[18]
In a report of 24 November 2009 Dr Antoniadas confirmed his opinion that she was fit for that job - a conclusion reached with the knowledge that Mr Kiddle intended to operate. 
[19]
By January 2005 the Corporation had sought the opinion of Dr David Hartshorn, a specialist in occupational and environmental medicine, concerning Ms Chalmers' ability to engage in her pre-injury call centre operator employment. 
[20]
In what I would count a very thorough report the doctor came to the conclusion that Ms Chalmers was best directed towards work activity at the sedentary end of the physical spectrum - work that was performed in a primarily seated position - and he saw the call centre operator job as appropriate for her “looking ahead”
[21]
He went on to say that he did not consider her immediately able to engage in this employment - this because of her then difficulties with recurrent episodes of locking and increasing frequency dislocation, and the secondary functional limitations that these episodes were causing. 
[22]
He also said that he believed that following the intended surgical intervention (which he saw as likely to reduce the episodes of locking and dislocation1
| X |Footnote: 1
A view not shared by the orthopaedic surgeon Mr Kiddle - see [16] above. 
) Ms Chalmers was likely to gain a capacity for her former occupation. 
[23]
By May 2007 (and still awaiting the intended surgery) Ms Chalmers had been referred by the Corporation to the Wellington Community Pain Team for a psychological screening. Their recommendations included a reassessment of her medications, further weight loss work and “mood lifting” assistance. 
[24]
A 2 December 2007 report of Dr Thomas, a consultant in pain management, spoke of her as independent in her daily living though requiring her husband's assistance with some chores. 
[25]
In early March 2008 the Corporation arranged for Dr Turner, a specialist in occupational medicine, to see Ms Chalmers. It is obvious from his report that he was well-provided for when it came to access to the then available medical evidence. 
[26]
With that plainly at hand, he wrote that: 
“Currently, Justine stated that her left knee is unchanged. Her name has still not come up on the waiting list for the arthroscopic meniscal debridement procedure. Justine indicated that she had been on the waiting list for well over 18 months, The issue of expediting the situation by having the operation done in private is somewhat confounded at the present time as Justine's surgeon is concerned about her tendency to DVTs and required medical cover in the post operative period. Justine, as would be expected, continues to complain of a problematic knee. She has persistent pain, which she is never free of, … her knee gives way on her, on a daily basis, this occurring two to three times during the day without warning. 
… she doesn't see herself as fit for work at the present time because of her pain and instability symptoms. In addition she finds that the high dose Tramadol, which she needs to take to quell the pain affects her cognitive functions. She takes the view that she will not be fit to return to work until such time as she has had her surgery and been rehabilitated. ”
(Emphasis added) 
[27]
Under the heading “diagnosis and discussion” Dr Turner said that: 
“Clearly Justine has a significant problem with her left knee giving a background patellar dislocation, thereafter undergoing three corrective surgeries, which have only been partially successful. She has now developed a neuropathic/noceceptive pain disorder in her left knee and is on the waiting list at Wellington public hospital for arthroscopic medial meniscal debridement. Unfortunately it is likely that she will be left with continuing pain in her left knee despite the surgery2
| X |Footnote: 2
A view sitting alongside that of Mr Kiddle that (he speaking of stability) surgery would not be a cure-all. 
. However there is little doubt that it would be beneficial with respect to knee function, improving her range of movement and reducing her instability. 
In terms of her work capacity I agree with Dr Hartshorn that she really is only fit for sedentary physical demand occupations where the emphasis is upon sedentary posturing. 
… ”
[28]
In terms of jobs she would be capable of undertaking for 35 or more hours per week, he said that those of call or contact centre operator, switchboard operator and medical receptionist were sustainable and that Ms Chalmers had agreed that to be so. 
[29]
The Corporation was thereafter in communication with Ms Chalmers' general practitioner who then wrote: 
“I think a definitive treatment plan, where we can get an orthopaedic assessment and a plan of attack via the orthopaedic surgeons with regards to any treatment they can offer, and then to move on to a rehabilitation plan and looking at employment would be the way to go. At present, I think this is still in the grey area with regards to the orthopaedic assessment and if she could be seen, possibly by Mr Grant Kiddle, her specialist, and get a full assessment this would be ideal. ”
[30]
Dr Turner saw Ms Chalmers again on 30 April 2008 reporting on 3 May that year. He recorded that he had considered the job task analysis relating to her previous call centre job in Wellington and the conclusion of Ms Nordhoff that this was a sedentary physical demand type, placing minimal strain on her knee and allowing opportunities for changing posture and walking/standing if needed. 
[31]
He then rehearsed his previous advice to the Corporation before coming to the current (as at the end of April 2008) situation. Here he noted that Ms Chalmers continued to experience ongoing discomfort and disability in her left knee. There had been a further recent incident of patella dislocation that had led to acute swelling and she had been wearing a full knee brace in order to immobilise the knee. She was due to see Mr Kiddle again at the end of the May. 
[32]
Dr Turner covered next the matters of functional ability/limitation psychosocial history, examination and investigation findings before arriving at the point where he said: 
“In terms of work capacity it is my view that she is fit to resume sedentary physical demand call centre work as detailed by Vivienne Nordhoff. Vivienne assessed this work as being sedentary, placing ininimal strain on the knees and allowing opportunities for changing posture, positions and walking/standing if needed. It is appropriate for Justine to undertake part time work, which are the hours that she was undertaking prior to leaving the position, namely four hours per day, five days per week. ”
[33]
He was conscious that Ms Chalmers had concerns about returning to work on account the quantity of Tramadol she needed to take. So he recommended the trialling (through her general practitioner) of alternative forms of medication. 
[34]
The Corporation then advised Dr Turner that at the date of the injury in question Ms Chalmers had in fact been working 40 hours per week, thus clarification was sought as to whether he considered she could “substantially (work) at the level she was doing at the time of her injury”
[35]
Dr Turner responded that she was in fact fit for 40 hours per week of work in the terms already identified. He opined that active employment would be beneficial to her, given her weight. (Noting the continuing emphasis on an ability only to manage substantially sedentary work, I take it that Dr Turner intended commonsensically to convey that getting away from home into the city to work, and the breaks and events that would mark a working day, would lead to that benefit.) 
[36]
The last medical report is from Dr Wigley and was prepared for Ms Chalmers', unsuccessful in the event, review application. He practises as a consultant in rheumatology and rehabilitation medicine. He advises that he is qualified to make vocational independence medical assessments under the Corporation's legislation. 
[37]
In the first part of his report (one following upon a 15 August 2008 examination) he set out the history including that which Ms Chalmers herself gave. He commented that he suspected that she under-rated her symptoms due to her enthusiasm to return to work. 
[38]
His diagnosis was of: 
Valgus and recurvatum of the knees with patella alta; 
Recurrent dislocation of the patella on the left; 
Meniscus injury to the right knee; 
Secondary pain syndrome. 
[39]
In terms of rehabilitation he noted that she had been instructed to increase the strength of her left quadriceps and the advice he had given her as to what she might do on that account. He noted, too, that weight reduction was clearly indicated but would be difficult because of her limited exercise capacity, adding that “the pain leads to some depression and resort to eating”
[40]
In his opinion she was not getting sufficient relief with her present medication and he concurred in the view that Neurontin should be tried with her then medication, although that might further reduce her concentration span and thus work ability. 
[41]
He considered that she was unable to sit for more than 15 minutes and so would not be able to sustain work in a call centre to the satisfaction of any employer. He rehearsed here the distraction of the pain, the clouding of her ability to think on that account and the related requirement for medication. His view was that she was unable to work effectively in a call centre either full or part time to the satisfaction of any employer. 
[42]
The views expressed by Dr Wigley were then referred to Dr Turner for comment. In his consideration Dr Wigley's picture of the functional difficulties suffered by Ms Chalmers represented
“significantly less function capacity than was present when I assessed her on 30/04/083
| X |Footnote: 3
i.e. 14 weeks before and 3 prior to the decision. 
.”
 
[43]
He went on to say that: 
“At that time she could walk one kilometre when walking her children to school (one presumes she still does this however Dr Wigley did not specifically ask this question), she could stand for half an hour and she could sit for half an hour. She could drive a car for one hour clearly indicating a discrepancy between her ability to sit at a computer and her ability to drive. This is particularly so when driving, which is definitely more of an onerous activity with respect to knee function than computer work through the requirement to use the legs, ”
[44]
Dr Turner was quite critical of Dr Wigley's report which indeed he considered to be flawed. He said: 
“Firstly, his report does not deal satisfactorily with section 103 issues4
| X |Footnote: 4
See [45] just below. 
. Secondly, his functional capacity evaluation is incomplete and does not truly reflect Justine's actual capacity. Thirdly, Dr Wigley has not adequately analysed from a biomechanical perspective the requirements of call centre work. 
I accept that Justine has a neuropathic pain syndrome involving her left knee and there is also a complicating medial meniscus problem requiring debridement surgery. I reiterate my view that this surgery is unlikely to relieve her of her neuropathic pain as the underlying cause of her symptoms is different for these two diagnoses. Finally, the evidence on file corroborates my assessment findings. Dr Wigley's report (bearing in mind that he is a rheumatologist and not an occupational physician) is the only one that finds that Justine has a problem with sitting. It remains my view that she has vocational independence to work for 35 or more hours per week as a call centre operator …  ”
Submissions for the Corporation 
[45]
Mr Hack helpfully reminded the Court of the relevant provisions of s 103 of the Act being: 
“103 Corporation to determine incapacity of claimant who, at time of incapacity, was earner 
(1)
The Corporation must determine under this section the incapacity of 
(a)
A claimant who was an earner at the time he or she suffered the personal injury: 
(b)
A claimant who was on unpaid parental leave at the time he or she suffered the personal injury. 
(2)
The question that the Corporation must determine is whether the claimant is unable, because of his or her personal injury, to engage in employment in which he or she was employed when he or she suffered the personal injury. 
(3)
If the answer under subsection (2) is that the claimant is unable to engage in such employment, the claimant is incapacitated for such employment. ”
[46]
Mr Hack also mentioned s 102 in terms of it providing as at May 2008 that: 
“102 Procedure in determining incapacity under section 103 or section 105 
(1)
The Corporation may determine any question under section 103 or section 105 from time to time. 
(2)
In determining any such question, the Corporation - 
(a)
must consider an assessment undertaken by a registered medical practitioner; and 
(b)
may obtain any professional, technical, specialised or other advice from any person it considers appropriate. ”
[47]
Mr Hack went on to refer to various decisions in this Court and to that of Irving (AP53/01) in the High Court where Laurenson J affirmed that the assessment was not task specific and could be applied to a wider sphere of work engaged in for the purposes of pecuniary gain. 
[48]
As an example of this approach Mr Hack mentioned Trask (68/06) where the Court found that the claimant, formerly an unqualified caregiver/social worker, was able to engage in the work type of social worker in spite of the fact that the claimant's pre-injury job included physically heavier tasks than the generic social worker description. 
[49]
In the way I view this case it is not necessary further to review the catalogue of decided cases helpfully provided by Mr Hack. Instead I turn to what he had to say, in terms of making his argument, of the medical history. His end focus, so far as the Corporation's evidence was concerned, was on the reports of Dr Turner and in particular the advice he gave the Corporation between March and May 2008. 
[50]
Since Dr Turner's last reports came approximately five months after Dr Thomas's pain assessment, he argued that there must have been some improvement in a state of affairs which, in any event, was based to a large extent on the self reporting of Ms Chalmers. He contended that Dr Turner's views were “corroborated” by the earlier ones of Drs Antoniadis and Hartshorn, and those of Joanne Williams5
| X |Footnote: 5
See [67]-[70] below. 
[51]
In his November 2004 report Dr Antoniadis had opined that Ms Chalmers could return to call centre work because it was a “sedentary job with static positioning of the upper body” and in January 2005 Dr Hartshorn had said that: 
“It appears very clear that Mrs Chalmers is best directed toward work activity at the sedentary end of the physical spectrum that is performed in a primarily seated position. In this regard the job of call centre operator is appropriate for her looking ahead. ”
[52]
Mr Hack submitted (and the Court would accept) that generally speaking a call centre job was a sedentary one and that brought him to rehearse that Dr Turner had said on 3 May 2008 that Ms Chalmers was fit for sedentary physical demand occupations. 
[53]
The essence of the Corporation's submission was that it was recognisable that Dr Wigley's views on sitting ability - and the suitability of call centre type work - were based almost exclusively on Ms Chalmers' report of her limitations rather than medical evidence. 
[54]
Submitting that Dr Turner had a better grasp of the realities than was the case with Dr Wigley, counsel contended that it was surely difficult to see how Ms Chalmers carried out the activities of daily living6
| X |Footnote: 6
See [43] above for what Dr Turner recorded on this account. 
if her limitations were such as she had most recently claimed. 
[55]
He argued that when it came to capacity or not for work the opinion of a specialist in occupational medicine such as was Dr Turner should be preferred unless that of itself was shown to be fundamentally flawed. 
Case for Ms Chalmers 
[56]
As a preamble to the case for Ms Chalmers, I identify the core issue in this case as the evidential justification or otherwise for the determination that the Corporation made in May 2008 that Ms Chalmers was in fact then able to engage in employment in which she was employed when she suffered her knee dislocation. 
[57]
That that was, and is, the issue was indeed recognised in her advocate's submissions in that, very shortly, they turned to the opinions of Dr Turner upon which, self evidently, the determination was based. 
[58]
I summarise Mr Dixon-McIver's submissions on this account as follows: 
In his report to the Corporation dated 9 March 2008 Dr Turner had said that he agreed with Dr Hartshorn that Ms Chalmers was only fit for sedentary physical demand occupations while omitting to mention that Dr Hartshorn had also said that she did not have the capacity to return to her former call centre operator role7
| X |Footnote: 7
Back in January 2005 this doctor had said that role would be suitable for her “looking ahead”
In his 3 May 2008 report Dr Turner had noted that Ms Chalmers required further surgery to her left knee and that following that surgery she might well require further rehabilitation8
| X |Footnote: 8
As at the date of the decision, she had yet to have that surgery but the limitations on the relief it would potentially offer have already been noted. 
. Dr Turner had gone on to recommend the trial of an alternative pain related medication regime. 
The submission here was that this recommendation was an indication that pain related rehabilitation had not achieved its goal, making it unreasonable for him to consider that Ms Chalmers was employable as formerly. 
In his later, 15 May 2008, response to the specific enquiry of the Corporation about Ms Chalmers' work capacity Dr Turner had said that in his view a return to call centre work should be seen as part of her treatment (and therefore rehabilitation) rather than part of her problem. 
In contrast and in January 2005, Dr Hartshorn, referring to Ms Chalmers' then problems, had described same as creating an inability to engage in the former employment - the locking and dislocations being particularly mentioned. 
Dr Wigley in his report of 23 August 2008 had rehearsed the problem of recurrent dislocation and indeed, he argued, effectively conveyed that the covered injuries had deteriorated rather than being the subject of improvement. 
(I took the argument here to encompass the proposition that, viewed in the overall, the evidence showed that nothing significant, let alone positive, in terms of work capacity had happened for Ms Chalmers between early 2005 and May 2008.) 
[59]
Mr Dixon-McIver then argued that until Ms Chalmers had undergone the then awaited surgery she would lack the stability to be cleared to return to her pre-injury occupation. 
[60]
But of course the surgeon concerned, Mr Kiddle, had promised nothing on that particular account - he offered no more than the possibility that addressing the tear of the lateral miniscus might improve her symptoms. He had said when writing to her general practitioner back in 2004: 
“I have warned her that it will not make any difference at all to the instability in the knee. Unfortunately it is going to be something that she will have to live with as there is no surgery that I would perform to try and give her back stability to the patellotendon considering the problems she has had in the past.9
| X |Footnote: 9
This appearing to be a reference to the problems of surgery with a patient who had previously exhibited DVT consequences. 
 ”
[61]
Mr Dixon-McIver also argued that it could be taken as the case that when, relatively shortly after the accident, Ms Chalmers went back to work part time that had been with the particular co-operation and support of her then employer. 
[62]
So when, in November 2004, Ms Chalmers underwent a job task analysis (one which was said had been much relied upon by Dr Turner four years later) such was unreal and, it was further argued, there was in the end a misconstruction by Dr Turner of the purpose of the Nordhoff report. 
[63]
More important was the Hartshorn report which, said Ms Chalmers' advocate, Dr Turner appeared studiously (as regards its primary thrust) to ignore. Here he drew attention to Dr Hartshorn's observation that: 
“Following further specific interventions in the form of arthroscopy and lateral meniscular debridement with the attendant reduction of episodes of locking and hopeful reduction of episodes I believe that Mrs Chalmers is likely to gain a capacity to engage in pre-employment engagement at a call centre. ”
(Of course, and once again, this speaks much more optimistically of likely outcomes than ever has Mr Kiddle). 
[64]
Mr Dixon-McIver then turned to other elements of the medical evidence including to what Dr Turner had said about work being rehabilitative in itself for Ms Chalmers, submitting that he did not explain why that would be so. 
[65]
In essence and as I understood his argument, Mr Dixon-McIver was contending that Dr Turner had failed to appreciate the significance of Ms Chalmers' pain issues, or to explain how a return to her previous occupation would be a good thing for her own health and self management rather than put her at risk of exacerbation of the symptoms of which she continued to complain. There had not been due attention to her pain problems, including the aspect of her management of them psychologically10
| X |Footnote: 10
But cf [43] above and [70] below. 
[66]
On the other hand, so her advocate contended, the opinion of Dr Wigley was essentially consistent with the history and gained particular support from the earlier report of Dr Hartshorn in a situation where, in the meantime, nothing of significance had really changed. 
Activity based programme 11 January 2008 report 
[67]
I have left until now the report of Joanne Williams, occupational health physiotherapist, who had been working with Ms Chalmers on cardiovascular and corrective exercise programmes. 
[68]
On 11 January 2008 she reported that Ms Chalmers had missed the last three sessions of her programmes cancelling two on account of a report of increased knee pain and not appearing for the last, but giving no reason. 
[69]
Before continuing, I do record in that last respect the very fair observation of Ms Williams that Ms Chalmers had had difficulty previously attending appointments when she had commitments with her children and it had been the start of the school holidays. 
[70]
Against that background I set out what Ms Williams had to say which was that: 
“Initially Justine demonstrated a much improved attitude to her ABP and was coping with her programme. There were no significant changes made to her programme as her strength has been slow to improve and then she began to complain of increased pain again. She believed that she should stop activity when she has pain and although she acknowledges the link between emotional issues and pain as well as overeating due to emotional issues which compounds her problems she has been unwilling to make changes to her behaviours and beliefs. There is impairment of her knee due to the injury however her ongoing disability is due to chronic pain and her body's response to this that has led to low levels of strength and stability and low activity tolerance. Her body weight is an issue that further compounds her problems. 
Despite her pain levels Justine doesn't miss any of her children's school activities and went with them on a school trip walking over uneven ground and hilly ground one afternoon. She drives11
| X |Footnote: 11
Cf Dr Turner at [43] above. 
without difficulty and helps her partner with the administrative side of his business as well as occasionally helping him with the cleaning
Justine had put her ABP on hold due to non attendance, and a case conference was held between all the parties to establish goals and reiterate Justine's need to participate in her rehabilitation. It was decided to wait until after her holiday in Australia to restart the programme. She then cancelled appointments and missed the final three sessions of her programme. 
Justine demonstrates a limited desire to actively participate in her rehabilitation. Rehabilitation needs to have collaborative input and in my opinion unless motivation significantly changes then further input will not be of benefit. 
Due to her family commitments and participation. Justine clearly has some degree of function that would allow her to return to the work force in some capacity and this may be a direction she would be more motivated to pursue. ”
(Emphasis added) 
Discussion 
[71]
As will be obvious, and in a case where the accident focused upon what happened over 11 years ago now, there was a plethora of medical and other specialist evidence concerning Ms Chalmers by 2008 and I have considered it all. 
[72]
Following upon that consideration, at this point, however, my first focus is on the report of Joanne Williams (see [70]) for when I review that alongside what Dr Turner separately reported (see [43] above) I recognise a distinct dissonance with Dr Wigley's dismal view of Ms Chalmers' capacities. 
[73]
In terms of an overall impression, I see this as a case where Ms Chalmers, for so long now away from the work front, was either unduly beset with self-doubts about her actual capacity or had become too comfortable with the confinement of her life activities to the home front. 
[74]
Her ability (as appears from the majority of the available accounts) to function on the home front - including (as when driving) sitting for quite extensive periods - surely gave a more reliable picture of what she could manage than was persuaded Dr Wigley. 
[75]
I accept that the suggestion of returning to work as a form of rehabilitation might be taken to belie a present (at the relevant time) capacity. But I also recognise that there is a virtually inevitably to be found chicken and egg element in this sort of case - one of a long time absence from the work front. 
[76]
The necessary focus is on how Ms Chalmers' case stood in May 2008 when the Corporation made its decision and in my view there was ample justification for the decision taken, especially so in light of the most recent at that point Turner report and the advice of Joanne Williams. 
[77]
In revisiting that of Dr Wigley I will not rehearse what I have already said but rather go back to the just mentioned Joanne Williams: for she, relatively speaking, had a wealth of opportunity (distinctly more so than Dr Wigley) to assess with a duly qualified (in the field of physical capacity) eye for what Ms Chalmers could truly manage if she put her mind to it. 
[78]
Thus I have concluded that, as at May 2008, Ms Chalmers was not unable - to the contrary she was able - to return to the kind of role in which she was engaged when she suffered her 2001 injury. To express matters in the words of the statute, she was able “to engage in employment in which … she was employed when … she suffered the personal injury”
Result 
[79]
In light of that conclusion her appeal must fail and it is indeed dismissed. 


A view not shared by the orthopaedic surgeon Mr Kiddle - see [16] above. 

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