Mariniello v Workcover/Allianz Australia Workers Compensation

4 The worker disputed the Corporation's determination in respect of disfigurement, asserting that the assessment should be higher because of, inter alia, "the affect (sic) on the worker's posture changes since the operation to his back".

5 The Corporation, for its part, contended that the assessment of 4 per cent should be reduced.

6 In his reasons for judgment published on 15 June 2000, the learned Member said that in his view there was nothing obviously incorrect with an assessment of the worker's scar at 4 per cent. It appears to have been assumed that the Corporation's assessment in respect of disfigurement took into account only the scar. Taking into account the additional disfigurement by reason of the worker's slouch and limp, the learned Member increased the assessment from 4 per cent to 7.5 per cent. It is the additional component of 3.5 per cent that this appeal is concerned with.

7 Mr Hanus, for the Corporation, submitted that the learned Member erred in law in that he adopted the wrong approach in assessing lump sum compensation for disfigurement. Firstly, he submitted, the learned Member's approach allows an element of double compensation. The worker's limp and/or slouch were transient reactions to the pain he experienced in his lower back and leg and thus were simply manifestations of the loss of function flowing from his back injury. The worker's pain and consequential limp and slouch, Mr Hanus submitted, either were or should have been taken into account in the assessment of his loss of function of the lower back and/or leg.

8 This submission, however, ignores the fact that a single injury can produce a number of disabilities that under the Third Sch will give rise to separate entitlements of lump sum compensation. Thus a lower back injury may, as it did here, give rise to lump sum assessments not only for loss of lower back function, but also loss of leg function. That the loss of function flows from or is a consequence of the back injury makes it no less a legitimate head of disability in the Third Sch giving rise to a separate entitlement to lump sum compensation. If the same low back injury gives rise to any other head of disability appearing in the Third Sch, eg disfigurement, there is equally entitlement to lump sum compensation in respect of that head of disability.

9 Mr Hanus next submitted that it was wrong for the learned member to compensate for a transient alteration of bodily appearance where the disfigurement is dependent on a subjective pain experience. To do so would allow different assessments for workers with the same disability but different pain thresholds and this, he submitted, was contrary to the principles espoused by the Full Supreme Court in Cameron v WorkCover Corporation (1993) 172 LSJS 260.

10 With respect, we do not read the judgments in Cameron's Case as excluding individual pain experience as a totally irrelevant factor. In many, if not most, cases pain will be a factor influencing the functioning of an injured limb or body part. The extent to which pain may inhibit the functioning of a limb or body part will likely vary from one individual to another. The "subjective element" that Cameron's Case says is irrelevant to Third Sch table assessments refers not to the restricting pain experienced by injured workers, but to the "subjective effect of a particular loss on a worker". Thus, a 50 per cent loss of use of a finger is the same, and attracts the same lump sum entitlement, whether the worker be an office clerk or a concert pianist, notwithstanding that the impact of the loss may be greater for the concert pianist. Such subjective considerations are of no consequence to the assessment process for Third Sch disabilities.

11 Mr Hanus next submitted that a person who limps because of pain after walking for a long time cannot, as a matter of plain language, be regarded as disfigured. He purported to distinguish between a question of fact: whether the worker's appearance was displeasing to a rational observer, and a question of law: whether something displeasing to the eye of a rational observer can amount to disfigurement for the purposes of the Third Sch. Here, he submitted, the worker's transient limp, not being something fixed or constant, might constitute a displeasing alteration to his appearance, but it could not as a matter of law constitute a disfigurement for the purposes of the Third Sch.

12 Deputy President (as he then was) Gilchrist in Holmes V BHP Company Limited A134/1995 defined disfigurement as "...an alteration in the appearance of a worker in a way which is negative or displeasing to an observer". This definition has been adopted in many decisions since, including that of the learned Member below. We are content with the definition.

13 At the end of the day, however, whether the alteration of a worker's appearance is disfiguring or not is a question of fact. The learned Member did not regard it as essential that the alteration of the worker's appearance be fixed or constant. Nor do we see any need to impose these features as essential elements of disfigurement. The skin conditions of dermatitis and psoriasis tend to wax and wane and may not always be obvious to an observer, but that does not mean that they cannot be permanent disabilities entitling a worker to lump sum compensation for disfigurement under the Third Sch. The Corporation acknowledges that the worker's features of stooping and limping are permanent in the sense that their transient nature will last indefinitely or for all time.

14 Whether an alteration of appearance is displeasing or disfiguring must always be a question of fact for the trier of fact. The word "disfigurement" is not a word of special meaning or usage.

15 In our view, the learned Member's approach in this matter was correct and in keeping with past authority. The conclusion he reached, that the worker's limp and stoop were disfiguring, was reasonably open to him on the evidence. He was in the best position to make the judgment. No question of law is involved.