PRINCE OF WALES HOSPITAL v VYMENETS [1998] NSWCA 173

PRINCE OF WALES HOSPITAL v VYMENETS

SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

MASON P, MEAGHER JA and FITZGERALD AJA 17 September 1998, 17 September 1998 [1998] NSWCA 173

WORKERS COMPENSATION ACT s40(2) calculation of compensation — permanent partial incapacity arising from two separate injuries.

Fitzgerald AJA The respondent was employed by the appellant from November to 27 September 1995. Initially she was employed as a cook. She injured her groin and right leg on 28 June 1991. At least by August 1993 she was unable to continue cooking duties as a result of that injury and she was assigned to washing up and the role of a general assistant. She developed dermatitis from the washing up work and was certified unfit for further employment at the hospital on 27 September 1995.

The single question of law raised by this appeal concerns the amount of the respondent's entitlement under subs40(2) of the Workers Compensation Act 1987 in respect of her permanent partial incapacity since 27 September 1995. That incapacity is related to the respondent's two injuries, the injury to her groin and right leg and her dermatitis condition.

It is common ground that, but for her injuries, that is but for either the groin and right leg injuries and the dermatitis condition, the respondent's probable earnings would have been $455 per week.

There is no finding or suggestion that the respondent is unable to earn $250 per week with her combined groin and right leg injury and dermatitis condition.

In a judgment delivered on 23 September 1997, the Compensation Court of New South Wales held that, although the respondent would be able to earn $455 per week uninjured and is still able to earn $250 per week with both the injury to her groin and right leg and her dermatitis condition, a difference of $205 per week, she is entitled to $360 per week for her permanent partial incapacity.