MANNING VALLEY SENIOR CITIZENS HOMES LTD v CLEVELAND [1995] NSWCA 271

MANNING VALLEY SENIOR CITIZENS HOMES LTD y CLEVELAND SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

MAHONEY, CLARKE and MEAGHER JJA 13 June 1995, 29 August 1995

[1995] NSWCA 271

WORKERS COMPENSATION ACT 1987, s66 and s67, CALCULATION PERCENTAGE IMPAIRMENT OF MAXIMUM AMOUNT PAYABLE, EVIDENCE TO SUPPORT PERCENTAGE CALCULATION.

FACTS: A worker was involved in an accident which took place on 19 September 1990, when she experienced the onset of back pain whilst dragging a tub of laundry. She had to stop work because of the aggravation of the pain in her back and leg. Weekly compensation was paid until 29 August 1991.

The trial judge entered an award pursuant to s66 of the Workers Compensation Act in the sum of $25,000 for permanent impairment of the back (approximately 45 per cent of the maximum payable), and in the sum of $20,000 pursuant to s67 of the Act (approximately 43 per cent of the maximum payable). Counsel for the employer appellant argued that both amounts were selected by the trial judge without evidence to support them; that the figures chosen were purely arbitrary.

HELD:

(By Meagher JA, Mahoney and Clarke JJA agreeing) It does not matter that no medical witness gave a figure equal to that chosen by the trial judge. It was the trial judge's task to arrive at a determination of the loss by reference to all the evidence. Once he accepted the respondent's evidence at its highest, it was impossible to argue that the amounts he selected were beyond a sound discretionary judgment.

ORDERS:

(1) Appeal dismissed with costs.

Mahoney JA : I agree with the judgment of Meagher JA. Clarke JA : I agree with Meagher JA.

Meagher JA : This is an appeal by an employer against an award made in favour of the respondent worker by Burke CCJ. The award relates to an accident at work which took place on 19 September 1990, when she experienced the onset of back pain whilst dragging a tub of laundry. She worked on for a period of about two weeks before seeking medical attention. She then had a short period of hospitalisation, after which she returned to work, but doing lighter duties. She started off at 2 hours per day and gradually built up to about 6 hours. She then had to stop work because of the aggravation of the pain in her back and leg. She was not offered any rehabilitation and she was dismissed on 2 April 1991. She has not been employed since. Weekly compensation was paid until 29 August 1991. His Honour Burke CCJ found that as a result of injury received in the course of her employment with the appellant employer, the respondent worker has remained partially incapacitated for work and he entered an award for weekly payments of compensation pursuant to s40 from 30 August 1991 to date and continuing. That part of his Honour's award is not under attack. But his Honour also entered an award pursuant to s66 of the Act in the sum of $25,000 for permanent impairment of the back, and in the sum of $20,000 pursuant to s67 of the Act. These parts of his Honour's award are contested.