Compensation Court of New South Wales CITATION : Gow v Patrick Stevedores [2002] NSWCC 60 PARTIES : Russell Gow Patrick Stevedores No 2 Pty Limited MATTER NUMBER(S) : 58278 of 2001 JUDGMENT OF: Geraghty J at 1 Entitlements & Liability - Proceedings to Obtain Compensation :- severe facial disfigurement skin cancers CATCHWORDS: deemed date of injury disease results from LEGISLATION CITED: S 15, S 16, S 65, S 92(2), S 92(4A), r 6(2) Miller v Skinner 16 NSWCCR 222; CASES CITED: Brown v Barnard 17 NSWCCR 275; Blayney Shire Council v Lobley 12 NSWCCR 52 DATES OF HEARING: 27/11/02; 17/12/02 EX TEMPORE JUDGMENT DATE : 12/20/2002 FOR APPLICANT: MR B MCMANAMEY instructed by Turner Freeman LEGAL REPRESENTATIVES: FOR RESPONDENT: MR J PEARCE instructed by Hicksons Lawyers JUDGMENT: 1. Russell Gow seeks weekly benefits for a closed period from 20 October 1991 (when he ceased work as a waterside worker employed by the respondent) to 2 November 1992. He also seeks lump sum compensation for severe bodily and severe facial disfigurement, and payment of his medical expenses. 2. His claim is based on the provisions of s 15, or alternatively, s 16 of the Workers' Compensation Act 1987, alleging that his employment either caused or aggravated a disease by way of skin cancer during his period of employment as a waterside worker from 1964 to 1991. 3. Mr Pearce of counsel informed me that the matters in issue were: firstly, injury; secondly, incapacity; thirdly, the quantification of any bodily or facial disfigurement; the application of the provisions of s 68A or s 68B, or of the rule in Sch 6 Pt 6 r 6. Also in issue was the comparable wages; and finally, the implications of the applicant's failure to give notice in accordance with s 92 of the Workers Compensation Act, or s 65 of the Workplace Injury Management Act. Counsel for both parties submitted written submissions and spoke to those submissions over several hours. 4. On 27 November 2002, I viewed the worker's face and parts of his body, particularly his arms below the elbows and the neck area. I observed areas of skin pigmentation on his face and some evidence of what I took to be skin cancers, though I am no expert in identifying these. I concluded that his face did not show signs of severe disfigurement. He is an elderly man with obvious ageing spots. He has fair Celtic skin which has obviously weathered and become blotchy with time, as well as displaying some remnants of skin cancers. I do not regard these features as constituting severe facial disfigurement. 5. However, his arms below the elbows showed obvious signs of severe disfigurement. They were brown, scaly, covered with marks or areas where small cancers had been removed. He said that he had had as many as 40 or 50 cancers removed at one time, and at the same rate over the years. He had had hundreds removed, he said. I concluded from my viewing that his face was not severely disfigured, though the area of his arms were, and therefore was able to attract some entitlement if he overcame the difficulties posed by the respondent. 6. The respondent placed in issue the question of capacity. 7. The applicant retired as a waterside worker on 20 October 1991, when he was 65 years of age. He said in evidence that he could have continued to work, that is, that his employer did not necessarily demand retirement, that he felt able to continue but, he said in evidence, that he wanted to leave the work to younger ones to do the job, that he did not want to work any more. It appeared from this blunt forthright evidence that Mr Gow was not incapacitated as at the time he left work in October 1991. In that regard, I enter an award for the respondent in respect of weekly benefits. 8. Mr Gow was born on 9 November 1926. For some years he worked as a boilermaker, until he gained employment as a waterside worker in 1964. He said that he had worked full time for the respondent at Glebe Island and Darling Harbour between 1981 and October 1991 when he had been offered a redundancy package. He said he had worked in a gang on rotation duties, driving a fork lift, working on the deck of a ship, in the hold and on the gang plank. A good deal of the work was outdoors, and of course, during the day shifts, he had been exposed to the sun. He said he had worked on an on-call basis, being available seven days a week, 24 hours a day, sometimes working overtime, sometimes working double shifts. He said he had worked with his sleeves rolled up because of the sweat. He had worn pants and shirts, but because of the heat and the sweat, he had not kept his shirt buttoned around his wrists. 9. To begin with, he had not been provided with any head gear, but then he had begun to wear a felt hat. Because this was too hot, he had started wearing a floppy hat like a cricket hat and, from about the mid 1980s, he had applied sun-screen. He said that when he had first started work as a waterside worker in 1964, he had skin lesions on his hands and arms, and that he had had them burnt off by a nurse in about 1964 or 1965. He had also had them later on his ears, his forehead, his nose and the back of his neck, and from time to time, had been treated by Dr Downey who had referred him to Dr Finlay and to Dr Beer. Lesions had continued to develop and have done since 1991. 10. In cross-examination, Gow said that as a child he used to engage in swimming and soccer but he denied that as a child he had spent a lot of time in the sun. He has been engaged in lawn bowls for 30 years, but not on a regular basis. He said he would do this now about once a week, but that he avoids the sun as much as possible. Before 1987, Gow said he had hundreds of lesions removed, 30 or 40 at a time, and since 1987 and up until 1991, hundreds also removed. Lump Sum Payment for Severe Bodily Disfigurement. 11. It is obvious from observing the worker's forearms that he has been struck by a skin disease, a disease which has developed over a long period of time, since before 1964. This disease was not caused or initiated by his working conditions. It did not appear after he had started as a waterside worker. His is a disease of such a nature as to have been contracted by gradual process, but it is not a disease to which the worker's employment was of the nature to which the disease was due. The nature of his employment as a waterside worker was not even the probable cause of the applicant's skin cancers. Consequently, s 15 is not the appropriate section under which to award lump sum compensation. S 16, given all the other matters raised in this claim are in place, is the relevant provision. This is an injury by way of an acceleration or exacerbation of a disease. 12. According to s 16, compensation is payable by the employer, who last employed Gow in employment that was a contributing factor to the acceleration and the exacerbation. I note that s 16 contains the notion of substantial contributing factor. This notion was introduced in s 9 A and s 16 by Act 120 of 1996 which took effect on 12 January 1997. Whether this legislative restriction applies to this claim would depend on the date of injury. If the injury occurred before 12 January 1997, there would be no need to consider whether work made a substantial contribution to the disease. However, if on or after 12 January 1997, one would have to be satisfied that the working conditions of a waterside worker did contribute substantially to the development of the disease. In any event, there is no doubt on the evidence that the work the applicant undertook from 1964 to 1991 was a substantial contributing factor to his diseased condition. I do not consider that I need to address that issue further. When Did the Injury Occur? 13. Butterworths Practice at p 1902 contains a brief commentary on s 16 (1)(a)(ii). The author remarks that it is difficult to imagine a set of facts where there has been no incapacity or no death resulting from injury, and yet the worker can claim compensation, other than in matters of deafness (which is ruled by s 17). Difficult as it may appear to imagine such a set of facts, it seems to me that this claim is based on just such a set of facts. The applicant said that he was not incapacitated when he left work. Of course, there was no death. So the only possible provision which can be applied to the deeming provisions as to when an injury occurred, is to be found in s 16 (1)(a)(ii). 14. In its submissions, the respondent drew attention to the problem with the deeming provisions of s 16. Ten years had elapsed between the worker's retirement and the date of his claim. S 16(1)(a) deems the date of the work-related injury to have occurred ten years after Gow had retired. This provision and this particular set of facts invite a certain degree of legal imagination. One has to suppress the dictates of logic and to put one's sense of reality to rest. The respondent called such a result capricious - and I agree. Mr Pearce, counsel for the respondent, submitted that despite the legislative provisions, I should find the injury to have occurred in October 1991 when Gow retired, rather than in October 2001 when he first made his claim. 15. There is a certain logical attractiveness about this submission. There is also an attraction to the respondent because then it can rely on a more favourable, less beneficial state of the law, as was explored by Neilson J. in Miller v Skinner 16 NSWCCR 222. But if I were to accept the respondent's submission, I would be ignoring the obvious, unambiguous meaning of s 16 (1)(a). No matter how 'crazy' it may appear, I am bound to follow the clear deeming provisions of the Act. Gow made his claim in October 2001. He did not cease work because of incapacity and there was no question of death. In these circumstances, it is clear that his injury is deemed to have occurred in October 2001. The Question of Delay and of Prejudice. 16. S 65 of the Workplace Injury Management Act deals with making a claim for compensation, and with the effect of failing to make a claim within certain periods. These provisions came into force on 12 January 1997. The provisions in force before that date were to be found in the Workers Compensation Act, in s 92, and they were the provisions in force relating to claims made in respect of injuries before January 1997. 17. The applicant's first submission was that I do not need to consider the provisions about delay, about the reasons for delay and about questions of justice and prejudice. The applicant submitted that in respect to a disease, there is no possibility of a delay. The injury is deemed to have occurred when the claim is made, so the legislation which provides that a claim must be made within six months of the injury, just does not apply. The delay provisions do not apply and cannot apply to disease cases, Mr McManamey submitted. The worker is obliged to claim within six months of the injury, but the injury is deemed to have occurred when the claim was made, since in this case, there is no question of incapacity or death. 18. This appears on first blush, to be a wonderfully mad submission. However, I think it is probably correct. It only demonstrates, if one needs further examples, that like mathematics, like logic, the law sometimes does not synchromesh with the real world. It is clear from the Act that the legislator thought to require the worker to give notice within a reasonable time, and also to require, in certain circumstances, the respondent to pay award entitlements. The legislator recognised that the respondent needed to have notice of the entitlement within a reasonable time. This seems to be the general pattern of the legislation. However, when it comes to disease, it seems that because of the deeming provisions, no notice need be given, that a worker can leave work, as this worker has, be away for ten years, make a claim and find that he does not need to give the respondent notice. In the usual case, the law-maker wants employers to be notified within a reasonable time after an injury and, if not notified, for some explanation of the delay to be provided - for example, ignorance or mistake. Yet, if Mr McManamey is correct, in this particular disease situation, no notification of injury is necessary. As I say, I think he is probably correct. 19. However, if I am not correct in my interpretation of how s 16 and s 65 interact, I need to determine what provisions in respect of notice apply to an injury deemed to have occurred in October 2001 when the worker retired from work in October 1991. 20. Sch 6 Pt 9 r 5 provides: S 92(4A)(inserted by the WorkCover Legislation Amendment Act 1995) applies in respect of an injury, death resulting from an injury, received before the substitution of that sub-section (but not before 4 pm on 30 June 1987), as if par(a) of that section reads as follows: (a) The claim is made within 3 years after the commencement of this sub-section (as inserted by the WorkCover Legislation Act 1995); or 21. Consequently, s 92(4A) is retrospective. It applies to all injuries after June 1987. Therefore, according to this section and the schedule, a claim has to be made within 3 years from the 1 January 1996. If I am correct in this interpretation, the Court needs in this case to consider the question of the reasons for the delay and the question of prejudice or the interests of justice. 22. S 92(2) provides: Compensation may not be recovered under this Act unless a claim for the compensation has been made within 6 months after the injury or accident happened or, in a case of death, within 6 months of the date of death. 23. S 92(4A) provides: The failure to make a claim within the period required by sub(2) is not a bar to the recovery of compensation if it is found that the failure was occasioned by ignorance, mistake, absence from the State or other reasonable cause, and either; a) the claim is made within 3 years after the injury or accident happened or, in the case of death, within 3 years after the date of death, or b) the claim is not made within that 3 years but it is found that it is in the interests of justice that the claim not be barred. 24. S 92(4A)(a) relates to Sch 6 Pt 6 r 5 and therefore demands that a claim should be made within 3 years of 1 January 1996. This claim was not so made, unless one considers again that the injury is deemed to have occurred on the day of the claim and so was made well within the three years. If, on the other hand, S 92(4A)(b) must be followed, namely since the claim was not made within the 3 years, I should consider whether, in the interests of justice, the claim should not be barred. In these circumstances, I need to consider two matters. Firstly, the question of ignorance, mistake or other reasonable cause, and secondly, the question of the interests of justice. As to the first, Gow said that he did not know he could make a claim, that he was informed only recently, that is, some time near November this year, by a union representative. It seems to me that he has established, since his evidence was not challenged, that he was ignorant of the possibility of making a claim and therefore he has satisfied that branch of the provision in s 92 (4A). 25. I turn to the question of the interests of justice. Despite the welter of submissions in other regards by the respondent particularly, this question as to the interests of justice seems to be the most relevant, and the most difficult of all. The respondent submitted that because of the provisions of s 16(2), there could result a real prejudice to a respondent. If there was a delay in a claim, and if there was another employer apart from the respondent, then, in the circumstances such as exist here, there would be no chance of claiming a contribution from the other employer. Mr Pearce therefore submitted that there is a possibility of real prejudice to employers if the deeming provisions are interpreted in the way I have proposed. However, in this case, there is no prejudice of such a kind since there was no other employer within the 12 month period. This is only an academic question. 26. Mr Pearce further submitted that if the worker had claimed when he should have claimed, within six months of leaving work, or even later, the respondent could have had the advantage of an earlier incarnation of s 68 B, or of the provisions of s 68 A for the period before the enactment of s 68 B. He submitted that if the worker had claimed earlier, the respondent might have been required to pay less by way of an award. 27. However, as against this submission: firstly, it is also possible had he claimed earlier, the respondent would have had to pay more because of the interest provisions, and a substantial amount of interest might have accrued; secondly, the respondent in any event has had the benefit of the use of the money for the ten year period; and thirdly, there was no submission and no question that the delay resulted in the unavailability of witnesses or of any evidence to put the injury in issue. So there does not seem to be any evidentiary prejudice, and furthermore the worker in fact had a work-related injury and in principle is entitled to an award. It seems to me that in the interests of justice, the failure to claim within the statutory three year period should not be a bar to the recovery of compensation. The Question of Assessment and Deductions. 28. The respondent provided lengthy written and oral submissions as to how the disfigurement should be assessed, how it was in fact impossible to assess, as to what version of various statutory provisions apply to this claim, and how Neilson J's decisions in Miller v Skinner and Brown v Barnard 17 NSWCCR 275 undermine the applicant's claim. With all the skill of a Shane Warne, the respondent bowled in the rough, over and around the wicket, spinning right and left, feigning, varying its speed, hiding its flipper, trying to rob the worker of an award. With all the poise of Tony Mundine, it seems to me the respondent somersaulted, side-stepped, threw little dummies, ran at obtuse angles to confuse the opposition, to mesmerise and exhaust him, and to softly, gently massage the legislation. 29. On the other side of this performance, Gow had been a waterside worker for many years. He had worked regularly, constantly in the sun. He now suffers from skin cancers, especially on his forearms. He has made a modest claim on the basis of legislation which was meant to benefit injured workers. The legislature has expressed its wish to compensate people like Gow, though only to the extent of the damage, and even then, very modestly. Despite these simple facts, the respondent asserted that the law is against the worker and his claim, and even if he is successful after a long contest, Gow can be awarded only two-fifths of practically nothing or, more precisely, as Mr Pearce says, four twenty-sevenths of five per cent. 30. In his written submissions, Mr Pearce submitted in par 6 that the applicant had worked for the respondent from 1981 to October 1991 when he retired, and that he had had lesions on his arms from 1964. The applicant stated in evidence that he had had a large number of lesions removed prior to 1987, so Mr Pearce submitted: There is no evidence as to precisely what lesions he had and what lesions had been removed prior to 30 June 1987. Because there were lesions prior to the relevant employment, if the applicant is to succeed it must be under s 16 of the Act. In the respondent's submissions each lesion is a separate injury and cannot be amalgamated with other lesions to give an accumulative assessment pursuant to s 66. 31. Mr Pearce submitted that this Court cannot compensate Gow because each little cancer is separate and cannot be conglomerated, and because no-one can determine whether a particular, discrete lesion occurred before or after July 1987, or whether a particular one is work-related or not. The applicant has been receiving treatment since 1964 (that is the year when he first became a wharfie) and the little cancers have all taken time to develop. Mr Pearce submitted that each one of these tiny cancers has to be dealt with separately, each one identified, each one separated in time, each one treated in isolation. He therefore submitted that the claim is impossible to determine and that the applicant has not satisfied the onus. However, one has to consider that Gow was employed and exposed to the sun at work since 1964, that he had developed cancers over the years, that he has received regular treatment for hundreds of little cancerous spots. I consider that Mr Pearce's submissions in this regard is devoid of common sense. This is the reason why the disease provisions have been included in the Act - to avoid the scenario detailed by Mr Pearce. There is no need to identify each individual minor trauma. The very purpose of the Act is to consider this as a disease which gradually develops. 32. In par 7 of his submissions, Mr Pearce submitted: In the respondent's submissions the first step to determining whether or not an applicant is entitled to compensation pursuant to s 66, is that the Court must be satisfied that the disfigurement is severe. This can only be determined on a "results from" test. In determining whether or not disfigurement is severe, the Court must only consider those lesions that were caused by the injury. In this case the applicant's condition is a mixture of pigment changes to the skin as a result of procedures to remove sun spots and skin cancers and changes to pigmentation of the skin caused by the ageing process. There is nothing before the Court to enable the Court to determine which pigmentation changes are due to the ageing process and which are due to removal procedures. 33. This submission, in my estimation, seeks to defeat the purpose of the legislation as expressed in s 15 and s 16, and also offends the dictates of common sense. The process in my mind is simpler and more straightforward than Mr Pearce would have it. The doctors and myself, separately, examine the evidence and the bodily condition of the worker to determine whether he is suffering from a disease, in this case a skin disease. With the aid of expert evidence, the Court then seeks to determine whether this condition was caused by exposure of the body to sun or, more correctly, whether this disease could have been caused, or probably was caused (since causation is not required to be proved) by exposure. There is no result from test in the disease provisions, only a probability of causation test. (Blayney Shire Council v Lobley & Anor. 1995, 12 NSWCCR 52) 34. Some people, of course, are especially vulnerable to skin cancers and I think this man was since he has fair Celtic skin. The question the Court must decide is whether this disease is the kind of condition which can be caused by employment of a certain type. As far as disease is concerned, there is no need to determine results from or causation, only the possibility of causation. The test to be applied is whether the tendencies, incidents and characteristics of this employment were of a type which could give rise to an injury by way of disease. 35. There is no doubt that the tendencies, incidents and characteristics of a waterside worker's employment, outdoors, were of a type which could give rise to sun cancer. Once these matters are determined, the Court, with the aid of medical evidence, assesses the condition as observed. The Court puts a percentage on the disfigurement (given that it is severe), it then assesses the percentage according to a table, and makes any deductions in accordance with provisions in force at the relevant time and as applicable to this particular injury. What Deduction Provisions Should Be Applied? 36. The respondent submitted, firstly, that any entitlement should be assessed as at the date of ceasing work, not as at the date of notice, and since the injury occurred in reality in October 1991, though deemed to have occurred in October 2001, there was no s 68 B in force in 1991. Therefore the provisions of s 68 A should apply, that is, deductions should be made for any part of the injury before 30 June 1987. 37. The respondent further submitted, in the alternative, that if Neilson J is correct in Miller v Skinner (though he failed to mention that s 68B was not referred to in r 19 of Sch 6 Pt 6, where mention is only made of s 68 A and which, in his opinion, is considered to be retrospective) then the 1996 version of s 68B, that is the original version, was retrospective and therefore applied to injuries from 30 June 1987 to 12 January 1997. This, of course, is dependent on whether Neilson J was correct. The submission also asserts that the new 2000 version of s 68B (the second version) applied only to injuries from 12 January 1997 to the date of operation of the third version in Act No 61 of 2001, namely to 1 January 2002. Neilson J found that s 68 A was retrospective to June 1987, and consequently that s 68B was retrospective, even though it was not mentioned in r 19. 38. Par 14 of the respondent's submissions would have me accept that, since the applicant last worked in 1991, the original version of s 68 B applies and that the second version does not apply. The fallacy however is that the injury is deemed to have happened in October 2001, when the second version was in operation. 39. The respondent further asserted, as a third submission in this regard, that Sch 6 Pt 6 r 6 was still operative and that it operated to read down the second version of s 68 B(3)(b). 40. R 6 (2) provides that: No compensation is payable in accordance with this part and this schedule for the part of the loss resulting from the injury received before "that commencement" (namely 30 June 1987) whether or not compensation has been paid or is payable under s 16 of the former Act for that part of the loss. 41. There is some immediate attraction to the submission that this rule is still operative, that therefore there has to be a deduction for the part of the injury before June 1987 and that this r 6 reads down the second version of s 68 B. However, again, in this case there is no injury before 30 June 1987. The injury is deemed to have occurred in October 2001 so that Sch 6 Pt 6 r 6 has no application. 42. Consequently, the second version of s 68 B applies to this claim and, according to that version, s 68 A applies, but with provisos - namely those provisos set out in sub s (3). 43. S 68 B provides that there should be deductions, but not all the ones which would flow from s 68 A. There is to be no deductions for loss due to employment in previous relevant employment as defined, except for losses payable, or paid already, or losses under s 16 of the former Act. Of course, in this case, these exceptions are not applicable because there was no entitlement in the former Act for this particular loss. 44. Sub sub-section (b) defines previous relevant employment which, in this case, would relate to employment from 1964 to 2001. Sub-section (3) deals with back, neck and pelvis awards only, and in those particular cases deductions are made for part of the injury before June 1987, but of course the provision does not apply to this case since we are dealing here with skin cancers. 45. In the final analysis, some deductions have to be made pursuant to s 68 A, deductions for exposure to the sun before 1964. I note as to this period that the applicant was quite careful and restrained, he said. Deductions should also be made for the sun exposure after that date, but away from work. A deduction should also be made for any age-related pigmentation. 46. I do not have any expert medical assistance as to how these deductions are to be calculated. I simply record that Gow worked for a long time as a waterside worker, on a seven days-a-week basis of availability, that he worked consistently and often in the sun. There was not much evidence of consistent sun exposure apart from work. I therefore propose to make the statutory deduction of 10 per cent. The Medical Evidence 47. Exhibit A is a report of Dr Beer, who reports that he saw Gow once, that he had a few keratoses all over his face and arms which the doctor treated by cryotherapy. He said that he tended to believe that these keratoses and his skin cancer were contributed to by the many years working on the waterfront. 48. Exhibit B is a report of Dr Meintjes who examined the worker in January 2002. He recorded a history of treatment for dozens of skin cancers since 1964, treatment initially by Dr Dowling, then by Dr Finlay in Macquarie Street. Dr Meintjes examined Gow and saw a man who had solar damage to his face and upper body. He described the facial disfigurement as minimal. He looked at his chest and back, and again decided that he did not have severe disfigurement in those areas. Examination of the arms revealed solar damage and scars on both forearms. I too have seen these areas, and though the doctor did not say the damage was minimal, he did not express an opinion about it. 49. In his diagnosis, Dr Meintjes stated that Gow had significant disfigurement which had been caused by skin cancer. According to the doctor's opinion, the work conditions had been a substantial factor contributing to the condition which had been of gradual on-set over years on the waterfront. He assessed a 5 per cent severe facial disfigurement (though he did say that he did not think it was severe), and a 5 per cent severe bodily disfigurement (which I propose to accept). 50. Then Gow was examined in March 2002 by Dr Shumack and Dr Gibson. Their reports are Exhibit 2 and Exhibit 1. 51. Dr Shumack recorded a history that Gow had commenced developing sun spots and skin cancers in the 1970s. On examination, he found he had quite a significant number of solar keratoses (or sun spots) over his face, arms and hands. He also had a significant amount of sun damage visible, with thinning of the skin and blotchiness, particularly over his forearms and hands. This is what I observed too. He said there was some scarring present over the exposed areas, consistent with previously treated skin cancers. Dr Shumack diagnosed solar skin damage related to sun exposure as well as solar keratoses or sun spots, and skin cancers. In his opinion, work carried out for the respondent contributed only approximately 5 per cent of the current development of skin cancer and solar keratosis, and he felt that his employment was not a substantial contributing factor. I have already addressed this issue. 52. Dr Gibson observed that Gow had generally a fair complexion. He observed scattered pigmented patches and white patches on the face, commenting that some of the white patches, presumably, would be the result of cryotherapy. When he examined the arms, he noticed pigmented patches and scattered right patches on the dorsal surface of both arms and hands. He also examined the applicant's left leg, and observed 2 cm below scar number 1 that there was a white patch about 1.5 cm in diameter, presumably the result of cryotherapy. He also noted some pigmentation on the right leg. In his opinion, Dr Gibson said that exposure to the sun as a waterside worker would have been a factor in the development of skin lesions, a few of which appeared to have been malignant, though he thought that Gow could not be regarded as having severe facial disfigurement or severe permanent bodily disfigurement. I agree with one, but not the other. 53. I make the following findings and award: 54. (1.) That the applicant has sustained an injury by way of an aggravation, acceleration and exacerbation of skin disease in the course of his employment. 55. (2.) That the deemed date of injury is October 2001. 56. (3.) That the applicant was last employed by the respondent in employment which was a contributing factor to the aggravation, acceleration, exacerbation of the disease. 57. (4.) That the applicant has no severe facial disfigurement, though he does have some disfigurement on his face. 58. (5.) That he has severe bodily disfigurement, which I assess at 5 per cent. 59. (6.) I propose to make a deduction pursuant to s 68 A of the statutory 10 per cent. 60. I enter an award in favour of the applicant, pursuant to s 66, in the sum of $2250. 61. I order the respondent to pay the applicant's medical expenses, and his legal costs. Mr B McManamey instructed by Turner Freeman appeared for the applicant. Mr J Pearce instructed by Hicksons Lawyers appeared for the respondent. 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