AGFA GAVAERT LTD v LEE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CLARKE, SHELLER and CRIPPS JJA 1 May 1992, 1 May 1992 [1992] NSWCA 4 This was an appeal from a decision of Judge Bourke in the Workers' Compensation Court, claiming his Honour erred in law in intervening with the earlier decision of a Commissioner and substituting his own findings. The review was heard by Judge Bourke pursuant to s36 Workers Compensation Court Act 1984. The evidence clearly showed that the Commissioner accepted two inconsistent medical reports. This was sufficient to require Judge Bourke to intervene and review the Commissioner's decision. No error in law being found, the appeal is dismissed with costs. The Court declined to comment on the ambit of Workers' Compensation Court, Judges' powers when reviewing the decision of a Commissioner. Workers Compensation Court Act 1984 Watson v Hanimex Colour Services Pty Ltd (New South Wales Court of Appeal, 28 November 1991) Mancini v Director General of Education (Australian Workers' Compensation File No 74112) Cripps JA This is an appeal from a decision of Judge Bourke of the Workers' Compensation Court in November 1990 on an application made by the worker for compensation in 1989. The worker alleged that he had had two injuries at work in August and October or November 1988 and that, by reason of those injuries, he was incapacitated for work for a period thereafter. He was paid compensation. His application to the Workers' Compensation Court for determination of the dispute was assigned to a Commissioner of the Court. The Commissioner heard evidence over a period on two occasions. He also received medical reports. No doctors were called and, or course, no doctors were cross examined. There was some dispute early in the proceedings before the Commissioner as to whether or not the worker had been offered suitable alternative employment. That issue was found against the worker. Ultimately the Commissioner denied the worker compensation for reasons which he expressed and which are included in the appeal book. The worker sought a review pursuant to s36 of the Workers ComPensation Court Act 1984, and on review Judge Bourke awarded him compensation and made an award as set out in the appeal book. The issue before this Court is whether Judge Bourke erred in law. I do not think it is necessary for me to go through the evidence. It is sufficient, I think, for me to state that there is, clearly enough, to show an inconsistency in the Commissioner's findings which did not depend on credit. On the one hand, he accepted an impairment - as assessed by a medical panel. On the other, he accepted a view of a medical practitioner that there was no impairment. I think Mr Hoeben, on behalf of the appellant, recognises the problem that he faces in this regard. What he says, however, is that although it was open to the Judge to detect and correct an error within the meaning of Watson v Hanimex Colour Services Pty Ltd (NSW Court of Appeal, 28 November 1991 unreported), 2 UNREPORTED JUDGMENTS he did not do that. He adopted a view of his function which was wider than that which he was entitled to adopt and, therefore, he erred. The problem, I think, with Mr Hoeben's submission, in my opinion, is that there was the inconsistency referred to. It was obvious on a reading of the Commissioner's decision. I do not think that it can be assumed that inconsistency was not apparent to the Judge. Later cases may explain the ambit of a Workers Compensation Judge's powers under s36(2) of the Act, but I do not think this is the case to do it. On the most limited view of those powers, Judge Bourke was entitled to intervene and substitute his own view for that of the Commissioner because, on the submission put by Mr Hoeben, the prerequisite for intervention or review had been established. The circumstance that he did not say it and merely because it is possible that he had a wider view of his powers than he was entitled to have, does not mean he erred in his determination. Whether or not his view as expressed in an earlier decision by him in Mancini v Director General of Education (Australian Workers' Compensation File No 74112) is correct is not a matter we should decide today. I can see no error of law has been demonstrated in the way Judge Bourke dealt with this matter and I would dismiss this appeal with costs. Clarke JA I agree with the judgment of Mr Justice Cripps. There were, in my opinion, at least two patent errors in the Commissioner's decision. He categorically accepted the findings of a medical panel that the applicant, that is the respondent in this Court, had a permanent impairment of the back which the panel assessed at five per cent. Later in his judgment, he said that he accepted Dr Scarf's report in which the Doctor concluded that any strain which occurred months ago, that is, months before December 1988, had settled down and that the respondent's problem was one of general unfitness. The opinion of Dr Scarf cannot, however, stand with the medical panel decision. They are, in a word, inconsistent. The acceptance by the Commissioner of both was logically inconsistent. In addition, the Commissioner clearly accepted the proposition that the respondent's physical fitness and posture basically rendered him unfit to do the storeman type of work that he was doing when he was injured. In that situation, and bearing in mind that the respondent had worked for months, if not years, in the heavy type of work he was doing when he was injured, it is not difficult to conclude that an impairment of the back superimposed upon basic inability to do the work not only reduced his capacity but made him unable in the future to do that work. It seems to me, there is great difficulty in concluding that even though he had a basic unfitness which was exacerbated by injury, he demonstrated no physical incapacity which reduced his earning capacity after the injury. These were two of the errors which, in my opinion, required Judge Bourke to intervene on the review. Counsel for the appellant recognised the problem concerning the internal inconsistencies in the judgment of the Commissioner but said that Judge Bourke's judgment was also flawed by legal error. That is because, according to counsel, Judge Bourke followed a process which he had earlier described in Mancini v The Director General of Education (Australian Workers Compensation File 74112), in completely retrying the issues before the Court and paying little or no attention to findings which had been made by the Commissioner. URJ AGFA GAVAERT LTD v LEE (Sheller JA) 3 In this respect, Mr Hoeben, who appeared for the appellant and put all that could have been put on its behalf, submitted that it was important to understand that upon a review the Judge of the Compensation Court was not entitled simply to treat the matter as a hearing de novo. For my part, I do not believe that it is necessary to examine the rather vexed question of the ambit of power under a review. That question was examined by this Court in Watson v Hanimex Colour Services Pty Ltd (28 November 1991 unreported) and some guidance on the question was provided by the Court. In this case it would not, I think, be appropriate to seek to say any more about the ambit of the review powers because, in my opinion, it is relatively clear that Judge Bourke was alive to the error which appeared in the Commissioner's judgment and which would have required him in any circumstances to undertake the task which he did undertake. In his judgment, he noted that the weight of evidence would certainly lead to a conclusion that the applicant still suffered symptoms and they resulted from the injuries relied upon. He added the observation: "That stands much more consonantly with the Commissioner's finding that the applicant also as a result of injury suffered a five per cent impairment of the back." His Honour was quite accurate and he was undoubtedly pointing to one of the errors in the judgment of the Commissioner which I have identified. In all these circumstances, I agree with Mr Justice Cripps that no legal error has been demonstrated, and I agree with the orders proposed by his Honour. Sheller JA I agree for the reasons that have been given that the appeal shouldbe dismissed, with costs. CLARKE JA: The order of the Court will be that the appeal is dismissed, with costs. Counsel for Appellant: C Hoeben Instructed by: Connery and Partners Counsel for Respondent: M Joseph Instructed by: Turner Freeman