MOIR v PENRITH CITY COUNCIL [1998] NSWCA 147

MOIR v PENRITH CITY COUNCIL SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

Mason P, COLE JA 4 May 1998, 4 May 1998

[1998] NSWCA 147

Mason P On 27 February 1996 Egan ACCJ made an award of compensation under s66 of the Act in relation to injuries to the back and legs suffered by the appellant in the course of her employment. She had been involved in child care assistance and there were three specific incidents that occurred when she was either lifting a heavy object or carrying a squirming child. The assessment was of ten per cent in relation to back loss and five per cent in relation to efficient use of the right leg.

The question of weekly payments during partial incapacity arising under s40 of the Act came for hearing on 28 May 1997. That claim was for the period from April 1996 and thereafter.

The facts as found by his Honour were that the applicant had worked, apart from a short period, in a part time basis from April 1996 to the date of hearing. Her present situation which was found to be permanent was that she was working normally twenty-one hours per week, sometimes a bit more sometimes less. However, her evidence was that if she worked extra hours she, to use her own phrase, paid for it later on with increased pain and difficulty.

His Honour had some doubts about the appellants case based upon discrepancies between the cases presented at the hearing and the material presented by her to her treating doctor. He also had regard to medical reports that were placed before him in which different views were expressed about the extent of continuing incapacity.

The appellant's general practitioner was of the view that she could work twenty-five hours or so per week. Dr Deveridge described as well known to be a sympathetic practitioner, presumably sympathetic to applicants, felt that with due diligence the appellant could work up to about thirty hours per week. There was an opinion by the doctor called for the respondent, Dr Terenty, that the appellant was capable of working in a full time capacity as long as she avoided prolonged bending and heavy lifting.