Buykx and Comcare (Compensation)
[2022] AATA 810
•22 April 2022
Buykx and Comcare (Compensation) [2022] AATA 810 (22 April 2022)
Division:GENERAL DIVISION
File Number(s): 2020/5989
Re:Anthony Buykx
APPLICANT
ComcareAnd
RESPONDENT
DECISION
Tribunal:Mr S. Webb, Member
Dr P. Fricker OAM, Member
Date:22 April 2022
Place:Canberra
The decision under review is affirmed.
Catchwords
WORKERS COMPENSATION – claim for compensation – neck and right shoulder ailment – frank injury or disease – onset of symptoms consequent to physiological change – divergent expert medical evidence – no acute injury in the course of employment – employment contribution not established to a significant degree – progress of degenerative condition – aggravation – not established condition made worse by employment – decision affirmed
Legislation
Safety, Rehabilitation and Compensation Act 1988 ss 5A, 5B, 14
Cases
Briginshaw v Briginshaw [1938] HCA 34
Comcare v Power [2015] FCA 1502
Dunstan v Comcare [2011] FCAFC 108
Jones v Dunkel [1959] HCA 8
McDonald v Secretary, Department of Social Security [1984] FCA 57
Minister for Immigration and Ethnic Affairs v Pochi [1980] FCA 85
Re Day [2017] HCA 2
Repatriation Commission v Smith [1987] FCA 260
Sullivan v Civil Aviation Safety Authority [2014] FCAFC 93
REASONS FOR DECISION
Mr S. Webb, Member Presiding
Dr P. Fricker OAM, Member22 April 2022
Anthony Buykx undertook heavy manual work building stone walls and public gardens in his employment. One Monday morning after a quiet weekend, he awoke with pain and other symptoms affecting his neck, right shoulder and right upper limb. He claimed compensation. Comcare decided to refuse his claim by primary determination and on reconsideration. Mr Buykx is not happy with this result and he applied for review by the Tribunal.
Facts
Mr Buykx is a 50 year old man who engaged in competitive and endurance sporting activities, including kayaking, surfing, swimming, mountain bike riding and triathlons, over many years.
From in or about 2000, he was engaged in heavy manual labouring work for approximately 60 percent of the time.
In 2009, he obtained non-ongoing employment with the Department of Agriculture, Water and Environment (DAWE) at the National Botanic Gardens (Gardens). In 2010 he transferred into ongoing full-time employment. This work involved some labouring and horticultural duties, including tree surgery and the operation of machinery.
Amanda Galbraith, Mr Buykx’s wife, is a pharmacist who also enjoyed outdoor activities. She operates a hot air balloon business in which Mr Buykx assists as a member of the support team. They have two children. There were problems with the house Mr Buykx and Ms Galbraith commissioned in or about 2010, which resulted in legal disputation over several years. This caused financial and emotional stress.
In or about June 2018, Mr Buykx commenced work as leading hand on the Banksia Gardens construction project (Project) at the Gardens. This work involved heavy and repetitive manual labour, constructing sandstone walls, footpaths and gardens. In the course of these duties Mr Buykx was required to operate trucks, excavators, bobcats and mechanical compactors. He was also required to construct mortared and dry sandstone walls up to 600 mm in height. This involved repeatedly selecting, cutting, lifting, manipulating and placing rocks up to 50 kilograms in weight into the walls, as well as mixing mortar as required. Mr Buykx was involved in the construction of drains and footpaths in the Project. These tasks included laying 100 metres of paving. Mr Buykx was required to compact sub-base material using a mechanical compactor and to shovel and rake material. He undertook these tasks with 2 other workers, who would assist with the heavier stones. His evidence is that this work required extensive lifting, bending and twisting, repetitively, all day, every day without any task rotation throughout the period he worked on the Project (which remains unfinished).[1]
[1] Exhibit 1, at [32].
Mr Buykx was under pressure to complete tasks within tight deadlines. He supervised 2 workers, neither of whom was called to give evidence. Problems arose in the Project, which Mr Buykx raised with his manager. The manager was not called to give evidence.
Mr Buykx experienced psychological symptoms for which he obtained treatment. He makes no claim in these proceedings in respect of a psychological ailment.
Mr Buykx gave evidence that the heavy repetitive tasks he undertook in his employment caused him to experience aches and pain of a muscular kind from time to time, especially after a full week at work.
In March 2019, Mr Buykx took a surfing holiday with a friend. He did not experience any incidents or radicular symptoms on this holiday. He returned to work.
Mr Buykx’s evidence is that, on Friday 20 December 2019, Mr Buykx attended work and undertook his usual duties on the Project. He finished work at or about 3.00pm. That evening he and Ms Galbraith attended a birthday party with their children. On Saturday they spent relaxing. On Sunday the family attended a Christmas party with friends. Nothing untoward happened. Mr Buykx did not experience any symptoms in his neck, right shoulder or right upper limb.
On Mr Buykx’s evidence, at or about 5.00am on Monday 23 December 2019, he awoke with severe pain affecting his neck, right shoulder and right upper limb. He experienced pain, numbness and tingling reaching into the thumb, index and middle fingers on his right hand. These symptoms were associated with weakness in his right upper limb.
His employment attendance records show he attended work at 7.00am that morning. Ms Galbraith gave evidence that this is not correct. Mr Buykx agreed he did attend work on Monday 23 December 2019 and following days. By his account, he undertook lighter duties.[2]
[2] Exhibits 7 & 8.
On 31 December 2019, Mr Buykx attended his treating osteopath in respect of his neck and right shoulder symptoms. The clinical notes reveal that he was complaining of symptoms affecting his right shoulder and scapula region.[3] There is no reference to radicular symptoms affect Mr Buykx’s right upper limb.
[3] Exhibit 1, pages 41-42.
On 6 January 2020, Mr Buykx consulted Dr Tina Blight, his treating general practitioner. The doctor’s clinical notes record that the consultation was in respect of depression. She noted that Mr Buykx was complaining of shoulder/chest pain.[4]
[4] T39, folio 111.
On 9 January 2020, Mr Buykx again consulted Dr Blight. The doctor issued a medical certificate placing Mr Buykx on restricted duties as result of an injury/disease on 23 December 2019 as a result of Repetitive loading of shoulder in the course of moving rocks for the purpose of landscaping.[5] The doctor did not record any complaint or finding of radicular symptoms on examination. Her clinical notes record:
[5] T39 Folio 112.
neck/chest pain
started around Christmas
started with pain in the right shoulder and couldn’t sleep
had been moving large rocks in the leadup to this
using machinery and physical power to move them
Has been building rock walls as part of the landscaping
Saw osteopath on 31st December who diagnosed mmsk injury
Osteopath review on monday advised continue treatment
reports significant improvement in last 2 weeks
Offical title Landscaper
Reason for visit:
Right Shoulder pain
Examination:
tender over subscapula region, lat dorsi and biceps insertion
full ROM
negative painful arc sign
pain reprosuces with external rotation and pushing movement
weakess with pushing and 1-3 ginfer thumb grip
normal sensation
Assessment:
?subscap/biceps tendinitis
Plan:
light dutuies
continue with massage and osteopath
review with Dr Cunningham in 3 weeks
consider imaging if not improving
On 30 January 2020, Mr Buykx consulted Dr Cunningham (another general practitioner in practice with Dr Blight). The doctor’s clinical notes refer to numbness in the median nerve distribution. This is the first objective record of Mr Buykx experiencing radicular symptoms after the alleged onset of symptoms on 23 December 2019. The doctor referred him for an MRI of his neck and right shoulder, and noted:
Review of right shoulder
It’s easing
Had a relaxing holiday last week
Pain didn’t abate completely
And still sore
Had no strength a couple of weeks ago
Now better from that point of view
Numbness in fingers
Worse with sleeping on the side
Examination:
Tender trap
Tender biceps insertion
Reason for visit:
Worker: compensation
Actions:
Imaging request printed: MRI right shoulder and brachial plexus~ pain and tenderness right shoulder
with tenderness at biceps insertion
but also numbness median nerve distribution in hand compression
Letter written re~ Workcover.
Letter printed~
Plan
1. MRI needed
Could this be brachial plexus compression
Or coming from neck
But shoulder seems to be primary, which would fit more with brachial plexus?
- I will need to clarify imaging with radiologist - I can’t do that currently given time
I will contact Anthony tomorrow
2. Continue light duties
On 4 February 2020, Mr Buykx completed an Incident Report form[6] and a compensation claim form[7]. In the Incident Report Mr Buykx recorded that he sustained a Repetitive strain to right shoulder, due to moving rocks for landscaping purposes at 11.00am on 23 December 2019.[8]
[6] T4.
[7] T5.
[8] T4, folio 12.
In the compensation claim form, Mr Buykx set out the following information:[9]
[9] T5, folio 16.
What is the condition that you are claiming for?
Subscapularis and biceps
tendinopathy, possible cervical
disc prolapse
Are you claiming for a psychological injury?
No - I am not claiming for a
psychological injury
If claiming for a physical injury or disease, which parts of your body are affected?
Right Shoulder, neck and scapula
What tasks were you doing when you were injured?
building stone walls
What happened and how were you injured?
Repetitive loading of shoulder in
the course of moving rocks for
the purpose of landscaping2
When did you first notice your symptoms/injury?
23/12/2019 11:00 AM
In his oral evidence, Mr Buykx explained that he recorded the time as 11.00am because that was the time he completed the Incident Report form and the claim form.
On 14 February 2020, an MRI scan was reported to reveal:
On the right side, there is severe narrowing of the neural foramen at C2/C3. C3/C4, C4/C5 and C5/C6, potentially impinging the C3, C4, C5 and C6 nerve roots.
On the left side, there is severe neural foramen narrowing at C5/C6and C6/C7 as a result of uncovertebral and facet arthropathy potentially causing compression of the C6 and C7 nerve root.
There is moderate canal narrowing from C5 - C7. There is intervertebral disc space narrowing at 65/06 with a midline annular fissure. Posterior bulge is seen at 05/06 and 06/C7. There is no facet joint oedema or effusion.
Intramedullary cord signal is preserved. Cerebellum, medulla and pens appear normal.[10]
[10] T7, folio 24.
On 25 February 2020, Dr Blight provided a report to Comcare in which she set out the following working diagnoses:
1. Right Supraspinatus Tendinosis with bursal thickening: symptoms are general shoulder ache and nocturnal ache good range of movement of shoulder.
2. Cervical Disc Disease with radiculopathy: Intermittent paraesthesiae radiating to right hand; weakness in extension (Triceps); fasciculation of Triceps (right) at rest and with activity; decreased grip strength right hand.[11]
[11] T11, folio 33.
On 17 March 2020, Dr Anthony Smith (a consultant orthopaedic surgeon) produced a report for Comcare in which he stated:
The diagnosis is symptomatic cervical degenerative disease…
… It became symptomatic for the first time in December 2019, without any precipitating
accident or injury that he could recall, which is a very common presentation. The condition is entirely due to the ageing process…[12]
[12] T13, folio 40.
On 20 March 2020, Dr Ow Yang (an orthopaedic surgeon) reported to Dr Blight and stated:
The working diagnosis is one of right C7 radiculopathy with evidence of motor weakness and muscle wasting in the right triceps as well as evidence of sensory deficit with a loss of the right triceps jerk. There may be a component of right C6 radicular pain. The acute pathology that is likely to have been related to the work injury is one of a right C6/7 disc protrusion. There is a background of multilevel cervical foraminal stenosis with evidence of multilevel cervical nerve compression.
…
There is reasonable indication to consider definitive surgery to try to salvage nerve function and improve the weakness and wasting. I would offer an anterior C5/6 and C6/7 discectomy plus rhizolysis plus cervical disc arthroplasty.[13]
[13] T14, folios 44 and 45.
On 27 March 2020, Dr Ow Yang’s practice requested Comcare approval for a C5/6 and C6/7 decompression and C5/6 and C6/7 disc replacement procedure.[14]
[14] T18.
On 27 March 2020, Comcare decided to reject Mr Buykx’s claim for compensation.[15]
[15] T17.
On 23 April 2020, Associate Professor Fuller (a neurosurgeon) provided a report to Dr Blight in which he stated:
I believe his symptoms are related to a C7 radiculopathy as a result of the abnormalities at the C6/7 level. I have discussed the natural history of disc protrusion and radiculopathy and the indications for surgical treatment… I have discussed an anterior cervical decompression and fusion. I have discussed the rationale for disc replacement versus fusion but in this situation given the foraminal stenosis at the C5/6 level a two level procedure would need to be performed and the minor spondylolisthesis is a contra-indication.[16]
[16] T20, folio 58.
On 4 May 2020, a further MRI of Mr Buykx’s cervical spine was taken. This was reported to show:
Cervical spondylosis with no appreciable canal stenosis though there is multilevel, bilateral neuroforaminal exit narrowing due to uncovertebral and facet joint arthropathy as described above particularly at the bilateral C6/7 neuroforamina which appears to correlate with patient’s symptomatology.[17]
[17] T23.
On 7 May 2020, Associate Professor Fuller reported:
A repeat MRI scan confirms the C5/6 anterolisthesis however there is disc osteophyte complex at the C6/7 level which narrows the right C7 neural foramen.[18]
[18] T24.
On 12 May 2020 Dr Pik (an orthopaedic surgeon) provided a second opinion to Dr Ow-Yang[19] and reported:
It is my impression that [Mr] Buykx has clinical features of right sided cervical radiculopathy most likely due to the right C7 nerve root compromise. However, I cannot exclude the possibility of [Mr Buykx] also having right C5 radiculopathy given his symptoms in the deltoid and pectoral areas and the MRI showing significant right C4/5 foraminal stenosis.[20]
[19] Exhibit 1, 12 May 2020 report by Dr Pik.
[20] Ibid, page 1.
On 20 May 2020, a CT scan was taken of Mr Buykx’s cervical spine.
On 4 June 2020, Associate Professor Fuller reported Mr Buykx’s pectoral pain may very well be related to the C7 radiculopathy which is the source of his upper limb symptoms rather than it being related necessarily to the C5 nerve root.
On 24 June 2020, Mr Buykx underwent a C5/6 and C6/7 anterior cervical decompression and fusion procedure with Associate Professor Fuller. On 10 August 2020, the doctor reported resolution of Mr Buykx’s right upper limb symptoms and referred Mr Buykx to Dr Speldewinde for a physical therapy program to increase the strength and flexibility of his cervical musculature. Post-operatively, there was marked improvement.[21]
[21] See Exhibit 5, report dated 3 March 2021 by Dr Brooder, page 5.
On 10 July 2020, Dr Smith produced a supplementary report for Comcare, in which he stated:
[Mr Buykx] developed cervical degenerative disease without any particular accident or injury, on a graduated basis. He said the symptoms began and then became gradually worse. The pattern of symptomatology would suggest to me that his neck was the source of the symptoms.
In the event he had an aggravation to his cervical degenerative disease at work, one would expect there to be a particular incident at work that he described, leading to the development of symptoms on that particular instant.[22]
[22] T35, folio 99.
On 7 August 2020, Comcare issued a reconsideration decision in which it affirmed the determination reject Mr Buykx’s compensation claim.[23]
[23] T37.
On 29 October 2020, Mr Buykx applied to the Tribunal for review of this decision.[24]
[24] T1.
On 3 March 2021, 21 July 2021 and 9 February 2022, Dr Brooder (a consultant neurologist) produced reports in response to briefing materials provided by Mr Buykx’s solicitor.[25] Dr Brooder stated:
On 23 December 2019 Mr Buykx had awoken with a sharp pain in his right shoulder that had extended into the posterior aspect of his right upper arm, along the dorso-lateral aspect of his right forearm and into his right hand to involve his thumb, index and middle fingers. The pain had been associated with a numbness and tingling paraesthesia involving his right forearm extending into his right forearm to also involve his right thumb, index and middle fingers. The pain and sensory disturbance had been associated with weakness involving his right arm and hand.
…
The diagnosis of Mr Buykx’s injuries is consistent with work-related aggravation to multilevel degenerative changes involving his cervical spine, particularly at the C4-5, C5-6 and C6-7 levels associated with the development of a painful right-sided C7 radiculopathy (nerve root entrapment syndrome)…
…
I would consider that as a result of the nature of Mr Buykx’s employment undertaken with DAWE prior to the onset of his symptoms on 23 December 2019 his workplace injury had aggravated and accelerated the pre-existing degenerative changes to the extent that the degenerative changes had been rendered symptomatic.[26]
I would consider that Mr Buykx’s cervical spine condition (specifically, the work-related aggravation to the multilevel degenerative changes involving his cervical spine and the development of a painful right-sided C7 radiculopathy) that resulted in his cervical surgery (C5-6 and C6-7anterior cervical decompression and fusion procedure) and his ongoing disability had been contributed to, to a significant degree, by his employment with the Commonwealth.[27]
[25] Exhibit 5.
[26] Ibid, report dated 3 March 2021 by Dr Brooder, pages 2-3, 8, 9 and 10.
[27] Ibid, report dated 9 February 2022 by Dr Brooder, page 1.
On 4 May 2021, Dr Khurana (a consultant neurosurgeon) produced a report for Comcare.[28] Dr Khurana reported Mr Buykx gave a history of awakening on 23 December 2019 with acute, severe and seminal right cervicobrachial symptoms.[29] The doctor reported:
My diagnosis is symptomatic cervical spondylosis. I do not believe there is a structural work relationship in this particular matter… The work could be expected to temporarily exacerbate symptoms of the underlying disease process (cervical spondylosis) that was long-standing and severe as well as multifocal throughout the cervical spine of this man.[30]
[28] Exhibit 4.
[29] Ibid, page 14.
[30] Ibid, page 16.
On 16 February 2022, Dr Smith produced a further supplementary report for Comcare in which he disagreed with Dr Brooder’s opinions and stated:
[Mr Buykx] was unable to nominate any activity on his part that could be construed to represent an exacerbation or an aggravation to his cervical degenerative disease during the course of his employment, prior to December 2019.
There is also no shortage of patients who have significantly severe symptoms develop for no apparent reason.
In the event that one were to construe that his symptoms from his neck arthritis was a consequence of his employment, I would expect them to have a particular incident or accident at work that initiated the symptoms.[31]
[31] Exhibit 6, page 2.
We were referred to a number of medical research papers. Dr Brooder, Dr Khurana and Dr Smith expressed views about the present state of medical scientific knowledge in respect of degenerative cervical spine disease and the contribution of environmental and employment factors, if any at all. The doctors did not achieve any consensus. It is Dr Khurana’s opinion no environmental or employment factors bear upon the development of progress of cervical spine degenerative disease. Dr Brooder and Dr Smith are of the opinion that employment factors involving load, bending or twisting and repetition may affect the progress of symptoms of degenerative cervical spine disease, especially where vibration is involved.
In the circumstances of this case, it is not necessary to address the medico-scientific literature in respect of causal factors of degenerative cervical spine disease and the present state of prevailing medico-scientific opinion other than to observe that the matter is not settled. It is sufficient to note the divergence of expert opinion and to observe that, even though we do not need to resolve this difference of opinions, we are not persuaded the matter is as clear cut as Dr Khurana apparently believes it to be. For this reason, we do not accept Mr Buykx’s compensation claim fails because his cervical spine degenerative disease could not have been contributed to any degree by his employment duties. As will appear, we are satisfied his claim is not made out for other reasons.
Issues
The issue for determination in this review is whether Mr Buykx sustained an ‘injury’ within the terms of s 5A of the Safety Rehabilitation Act 1988 (SRC Act) for which Comcare is liable to pay compensation under s 14 of that Act. More specifically, this requires the following issues to be decided:
(a)does Mr Buykx suffer from a disease, being an ailment, or the aggravation of an ailment, to which his employment contributed to a significant degree? And if not
(b)does Mr Buykx suffer from an injury (other than a disease), or the aggravation of an injury other than a disease, arising out of or in the course of his employment?
(c)And if either of these questions is answered affirmatively, does the ‘injury’ result in impairment or incapacity for work, or require medical treatment, for which Comcare is liable to pay compensation?
Disease
Mr Buykx stated that he experienced severe symptoms of pain and paraesthesiae when he awoke in the morning of 23 December 2019. We note the contents of his written statements in evidence. His evidence is that, while he had experienced aches and pains in his upper body, shoulders and neck after undertaking heavy manual duties in his employment, he had not previously experienced symptoms of the kind he suffered that morning. The symptoms included severe pain on the right side of his neck, in his right shoulder and scapula region, pain reaching down his right upper limb and tingling or numbness in his thumb, index and middle fingers. Mr Buykx’s evidence on these points is not contested even though there is no medical evidence of him complaining of radicular symptoms until 31 January 2020.
It is Mr Buykx’s submission that the symptoms he experienced on and after 23 December 2019 were caused by heavy manual duties in his employment the previous week (he finished work at 3.00pm on Friday 20 December 2019) and over a period of 18 months since he commenced work on the Banksia Garden project (Project).[32] Mr Buykx contends he sustained an injury to his cervical spine to which his duties in employment contributed to a significant degree. He asserts that the heavy manual work he undertook in the Project causally contributed to pathophysiological changes in his cervical spine and rendered them symptomatic on 23 December 2019.
[32] Exhibit 1, at [24].
In support of this contention, he relies on the evidence of Dr Brooder, Dr Pik, Dr Ow Yang, Dr Fuller and Dr Blight. In order to establish the causal nexus between his employment, the precise physiological changes that occurred in his cervical spine and the onset of symptoms for which he has claimed compensation, Mr Buykx asserts the expert evidence of Dr Brooder should be preferred to that of Dr Khurana and Dr Smith.
In particular, Mr Buykx argues that his work duties accelerated degenerative disease processes in his cervical spine, causing his C6/7 disc to bulge and to protrude further to the right, irritating his exiting C7 nerve root. The C7 nerve root irritation caused inflammation and oedema, so the argument goes, resulting in swelling of the C7 nerve or related tissues and, ultimately, impingement of the nerve, whereupon he experienced the onset of right-sided radicular symptoms on awakening on 23 December 2019.
Mr Buykx contends that the temporal gap between him completing work duties on Friday 20 December 2019 and the onset of symptoms when he awoke on the morning of 23 December 2019 does not exclude the existence of a causal connection for the purposes of s 5B of the SRC Act. The temporal gap is explained, he asserts, by the progressive inflammatory process Dr Brooder identified. He urges us to draw an inference that something occurred in the course of his employment, whether suddenly or gradually and without causing radicular symptoms at the time, which aggravated the hitherto asymptomatic effects of degenerative disease and caused the onset of C7 radicular symptoms on 23 December 2019. Even though the onset of symptoms may have been triggered spontaneously or by a trivial movement over the course of the weekend after he completed work on Friday 20 December 2019, even during sleep prior to awakening on Monday 23 December 2019, Mr Buykx submits that it is more likely than not the underlying cause of the radicular symptoms involved pathophysiological changes to his C6/7 disc to which his heavy manual work duties contributed to a significant degree.
Comcare does not agree. In Comcare’s submission, the available evidence is not sufficient to positively establish a causal connection between Mr Buykx’s employment and the symptoms he experienced on the morning of 23 December 2019. Comcare relies on expert evidence provided by Dr Khurana and Dr Smith that Mr Buykx’s radicular symptoms are the result of degenerative disease processes in his cervical spine, unrelated to his employment.
Comcare asserts that the proposition Mr Buykx’s employment significantly contributed to cause the onset of the radicular symptoms for which he claimed compensation is not established by probative evidence. Speculation about such matters, Comcare argues, is not sufficient. The mechanism of employment contribution posited by Dr Brooder, for which Mr Buykx contends, is no more than a theory or a possibility which, so the argument goes, is not supported by objective evidence. Comcare urges us to prefer the evidence of Dr Khurana in respect of the likely pathophysiological causes of Mr Buykx’s radicular symptoms.
The matter is to be decided under s 5A(1)(a) and s 5B of the SRC Act:
5B Definition of disease
(1) In this Act:
disease means:
(a) an ailment suffered by an employee; or
(b) an aggravation of such an ailment;
that was contributed to, to a significant degree, by the employee’s employment by the Commonwealth or a licensee.
(2) In determining whether an ailment or aggravation was contributed to, to a significant degree, by an employee’s employment by the Commonwealth or a licensee, the following matters may be taken into account:
(a) the duration of the employment;
(b) the nature of, and particular tasks involved in, the employment;
(c) any predisposition of the employee to the ailment or aggravation;
(d) any activities of the employee not related to the employment;
(e) any other matters affecting the employee’s health.
This subsection does not limit the matters that may be taken into account.
(3) In this Act:
significant degree means a degree that is substantially more than material.
As can be seen, the first step is to determine if Mr Buykx suffered from an ailment as defined in s 4(1):
ailment means any physical or mental ailment, disorder, defect or morbid condition (whether of sudden onset or gradual development).
On this point, there is substantial agreement between the doctors who have treated or given evidence in these proceedings. Dr Pik, Dr Ow Yang, Dr Fuller, Dr Smith, Dr Khurana and Dr Brooder all agree that Mr Buykx has a degenerative disease in his cervical spine which resulted in multi-level (C3 to C7) pathological changes. Those changes are evident in MRI scans taken on 14 February 2020 and 4 May 2020, and in a CT scan taken on 19 May 2020. These doctors agree, furthermore, that the symptoms Mr Buykx experienced are attributable, at least in part, to right-sided radiculopathy involving impingement of the C7 nerve root.
This amounts to an ailment for the purposes of s 5B(1) of the SRC Act.
Beyond this, at a level of detail, there is a divergence of medical opinion.
Dr Khurana gave evidence that the C7 radicular symptoms were likely caused by facet joint arthropathy, foraminal narrowing and an osteophyte complex impinging upon the C7 nerve root. In his evidence, this is a largely mechanical process mediated by underlying and progressive degenerative disease to which Mr Buykx was genetically predisposed. Dr Khurana’s evidence is that the onset of symptoms was likely triggered by an innocuous event, such as rolling over in bed. The doctor explained that symptoms would usually commence immediately or very shortly after such a precipitating event and he considered that is what Mr Buykx experienced when he awoke on 23 December 2019. It is for this reason, at least, that Dr Khurana did not consider there was any employment contribution to the onset of symptoms on 23 December 2019.
Furthermore, the doctor did not consider the degenerative disease in Mr Buykx’s cervical spine was aggravated or contributed to any significant degree by his heavy work duties over time. Dr Khurana relied heavily on medico-scientific papers that pointed to genetic predisposition as the predominant cause of the degenerative disease process, in which environmental factors, or wear and tear and heavy repetitive manual labour, including vibration from use of machinery, played but a minor role, if at all. In Dr Khurana’s opinion the natural course of Mr Buykx’s cervical degenerative disease was not accelerated or otherwise aggravated by his employment duties.
We note that Dr Khurana examined the MRI and CT scan images that were taken on 14 February 2020, 4 May 2020, 19 May 2020 and 30 October 2020, whereas Dr Brooder was only provided with copies of the radiologists reports of these scans. Dr Smith also did not have access to the scan images.
Dr Brooder gave evidence that Mr Buykx’s C6/7 disc is causally implicated in the onset of the radicular symptoms that began on 23 December 2019. In Dr Brooder’s opinion, the heavy work Mr Buykx was undertaking up to 20 December 2019 caused his C6/7 disc to protrude further to the right side. The doctor’s evidence is that this might arise in two ways. He explained that regular heavy repetitive manual labouring duties, such as Mr Buykx undertook for 18 months prior to the onset of radicular symptoms, may accelerate degenerative disease processes in his cervical spine and result in greater narrowing or compression of cervical discs, causing greater disc bulging or protrusion, including in his C6/7 disc, and other degenerative changes. The second mechanism involves the soft tissues, including muscles, in Mr Buykx’s neck, whereby the strain of the heavy manual work he was doing caused these soft tissues or muscles to become stressed or strained, as suggested by the aches and muscular pains Mr Buykx described experiencing after work. Dr Brooder explained that the stressed or strained tissues may have added additional physical pressure to cervical spine structures including the C6/7 disc, causing further narrowing and bulging or protrusion of the disc on the right side. He posed an alternative inflammatory process, albeit not one he favoured in the circumstances of Mr Buykx’s case, in which the stressed or strained muscles may have released metabolites, such as lactic acid, which have an irritating or inflammatory effect.
In Dr Brooder’s assessment, in all likelihood, it was further protrusion of the C6/7 disc to the right side that interacted with the C7 nerve root, causing irritation, inflammation and oedema of the nerve or the nerve sheath or associated tissues. This process, he explained, is somewhat cyclic and self-reinforcing: the irritation leads to inflammation which leads to further irritation, and so on. In the doctor’s opinion, the result of this process of irritation and inflammation is swelling and, ultimately, impingement of the C7 nerve root in the confined space of the already narrowed foramina and over-grown facet joints. Once the C7 nerve is impinged, radicular symptoms follow, classically in the distribution Mr Buykx described. Dr Brooder’s evidence is that the inflammatory process may persist for hours or days before the onset of symptoms.
Dr Smith did not think there was an employment contribution to the symptoms Mr Buykx experienced on 23 December 2019. This notwithstanding, the doctor agreed with the explanation Dr Brooder provided in respect of the inflammatory process leading to nerve impingement and consequent symptoms. It was Dr Smith’s evidence that this process might persist for 24 to 48 hours or more before the onset of symptoms, although in the usual course symptoms would arise within hours, not days.
Dr Smith’s explanation of the symptoms proceeded on what he described as a nerve entrapment syndrome, in which the C7 nerve was impinged by degenerative elements in Mr Buykx’s cervical spine. It appears to us, doing the best we can with the doctor’s rather confusing oral evidence and noting he was somewhat equivocal about the precise cause of Mr Buykx’s radicular symptoms, he appeared to accept there was some involvement of the bulging C6/7 disc in the impingement or entrapment of the exiting C7 nerve root. As we understand the doctor’s evidence, he also accepted that a process of irritation and inflammation affecting the C7 nerve root might persist for hours to days before the onset of radicular symptoms. Dr Smith agreed with the treatment recommended by Dr Pik, Dr Ow Yang and Dr Fuller, which involved a choice between anterior cervical decompression and fusion and disc replacement.[33]
[33] T20, folio 58.
Dr Pik, Dr Ow Yang and Dr Fuller were not required for oral evidence. Nevertheless, the evidence reveals that on 2 April 2020, Dr Ow Yang suggested [d]efinitive surgery to decompress the right C7 nerve will involve an anterior C5/6 and C6/7 discectomy plus rhizolysis for cervical disc arthroplasty.[34] On 12 May 2020, Dr Pik diagnosed right sided cervical radiculopathy most likely due to the right C7 nerve root compromise and suggested C3/4, C4/5, C5/6 and C6/7 anterior decompression and fusion to improve his current symptoms.[35] On 24 June 2020, Mr Buykx underwent a C5/6 and C6/7 anterior cervical decompression and fusion for right cervical radiculopathy with Dr Fuller.[36] The surgical procedure produced substantial improvement in Mr Buykx’s right upper limb symptoms.
[34] Exhibit 1, Attachment AB5, page 1; T14, folio 45 refers.
[35] Exhibit 1, Attachment AB6, page 1.
[36] Ibid, Attachment AB9; T20 and T24 refer.
This evidence and the result of the surgical procedure strongly suggest involvement of the C6/7 disc and the C7 nerve root on the right. We accept this is correct.
Nonetheless, in our assessment of the evidence, including the expert evidence, for reasons that will appear, Mr Buykx’s case is not made out.
Even though Dr Brooder is not a neurosurgeon or an orthopaedic surgeon, we are satisfied he is well qualified to provide expert evidence on questions relating to the diagnosis of Mr Buykx’s cervical spine ailment. As one would expect of an expert witness, his evidence was given in a professional and dispassionate manner and he engaged objectively with the available medical evidence, including radiological materials and other expert opinions, without apparent advocacy for his own opinions. We found his medical rationale to be consistent with medico-scientific understanding of relevant pathophysiological processes and informed by long experience in practice. Dr Brooder’s explanation of possible causal factors and pathophysiological mechanisms for the symptoms Mr Buykx complained of was cogent and persuasive. His reasoning is largely consistent with and supported by the evidence of Dr Pik, Dr Ow Yang and Dr Fuller, and in part by Dr Smith.
We accept that Dr Khurana, too, gave impressive evidence that was informed by detailed and cogent reasoning informed by a deep understanding of medico-scientific knowledge and relevant research. Notwithstanding Dr Khurana’s relevant expertise, we are not persuaded that Dr Khurana is more or better qualified to give expert opinion evidence on diagnosis of Mr Buykx’s cervical spine ailment or the causes of his radicular symptoms than Dr Brooder or Dr Smith. We respect Dr Khurana’s understanding of the medico-scientific literature, but we are not persuaded that a genetic predisposition to degenerative disease in the cervical spine excludes or negates an environmental or work contribution to the progress of degenerative changes or the onset of symptoms in the particular circumstances of Mr Buykx’s case.
Without being in any way critical of Dr Khurana, his reasoning that [c]orrespondence from doctors Pik, Fuller and Ow Yang variably points to localisation of symptomatic pathology to nerve roots right C5, C6 and/or C7 as opposed to simply C7 and this pattern of difference speaks to a constitutional and diffuse problem as opposed to a specific work injury/trauma[37] (original emphasis) is not dispositive of an injury involving impingement of the C7 nerve root on the right. The question is whether an injury of that kind arose out of or in the course of Mr Buykx’s employment. Dr Khurana accepted My Buykx’s radicular symptoms on 23 December 2019 were probably indicative of C7 nerve root involvement on the right, although he did not consider there was any work contribution. Furthermore, Dr Pik, Dr Ow Yang and Dr Fuller placed rather more emphasis on C7 nerve root involvement than Dr Khurana’s analysis suggests:
(a)Dr Pik expressly refers to C7 nerve root compromise as the most likely cause of Mr Buykx’s right side radicular symptoms, although he could not exclude the possibility of [Mr Buykx] also having right C5 radiculopathy.[38]
(b)Dr Fuller expressly states I believe his symptoms are related to a C7 radiculopathy as a result of the abnormalities at the C6/7 level.[39]
(c)Dr Ow Yang reported a diagnosis of right C7 radiculopathy,[40] noting the 14 February 2020 MRI scan[41] shows severe left C5/6 foraminal stenosis with left C6 nerve compression and severe right C6/7 foraminal stenosis from a foraminal disc protrusion causing severe right C7 nerve compression.[42] Dr Ow Yang reported, furthermore, that Mr Buykx’s weakness and wasting in the right triceps correlates with the right C7 radiculopathy.[43]
[37] Exhibit 4, page 12.
[38] Exhibit 1, Attachment AB6, page 1.
[39] T20, folio 58.
[40] T14, folio 44.
[41] T8, folio 25.
[42] Exhibit 1, Attachment AB5, page 1.
[43] Ibid.
Even though Dr Pik, Dr Fuller and Dr Ow Yang gave no oral evidence, and their evidence has not been thoroughly tested under cross-examination, we consider their reports to be objective and consistent with the preponderant weight of radiological and expert evidence. That said, the documentary evidence of Dr Pik, Dr Ow Yang and Dr Fuller addresses the question of causation only tangentially and, in Dr Ow Yang’s case, on the basis that Mr Buykx first experienced symptoms at work, which is not correct.
We do not need to say much more about the expert evidence of Dr Smith than we have said already, but to observe that the doctor reported Mr Buykx’s symptoms developed over a period of time and [o]n 23 December 2019, the symptoms reached a level of severity that he had to report the condition.[44] This is not consistent with the evidence before us of the sudden onset of symptoms when Mr Buykx awoke on 23 December 2019. We note, furthermore, that Dr Smith reported his clinical examination to reveal no neurological deficit in either upper limb.[45] This finding was made on 10 March 2020, 10 days prior to Dr Ow Yang’s clinical examination of Mr Buykx which he reported as follows:
On clinical examination, there is marked wasting in the right triceps. The right arm measures 29 cm around 12 cm above the elbow and the left arm measures 31.5 cm at the same position. The right triceps jerk is absent. All other upper limb reflexes were present. There is moderate weakness in the right elbow extension. Distal power was normal.[46]
[44] T13, folio 38.
[45] Ibid, folio 40.
[46] T14, folio 44.
We find the clinical examination Dr Ow Yang reported on 20 March 2020 to be thorough, objective and reliable evidence of Mr Buykx’s condition at that time. The history Dr Smith reported and the findings he made on clinical examination of Mr Buykx only 10 days earlier raise questions about the basis of his expert opinion. Nevertheless, without being critical of the doctor, he expanded upon his written reports in oral evidence and helpfully drew on his long experience of cervical spine surgery when explaining the inflammatory processes to which Dr Brooder referred. This notwithstanding, Dr Smith adhered to his opinion that Mr Buykx did not suffer a work-injury.
We are reasonably satisfied that Dr Brooder’s evidence is consistent with the reports of Dr Pik, Dr Ow Yang and Dr Fuller, each of whom attribute Mr Buykx’s radicular symptoms in his right upper limb to a right-sided disc protrusion in the C6/7 disc impinging the exiting right C7 nerve root. The radiological evidence supports these assessments. So does Dr Smith’s evidence, in part at least. Dr Khurana did not think Mr Buykx’s radicular symptoms were attributable to a protrusion of his C6/7 disc. We cannot determine if Dr Khurana’s explanation is correct, but it is not consistent with the weight of the medical evidence. For these reasons, considering the whole of the medical evidence, we prefer Dr Brooder’s evidence to the evidence of Dr Khurana on this point.
As will appear, it does not follow that Mr Buykx has a ‘disease’. For that to be made out, necessarily, it must be established that his employment contributed to the C7 radiculopathy to a significant degree, being a degree that is substantially more than material.
At this point, it is important to note that the evaluative threshold for a material contribution (being the threshold that applied prior to amendment of the SRC Act in 2007) required the contribution to be more than a mere contributing factor.[47] The significant degree threshold is a more stringent causal test which requires an evaluative assessment of factors in s 5B(2) when assessing if the employment contribution is substantially greater than a material contribution.[48]
[47] Dunstan v Comcare [2011] FCAFC 108 per Gray and Cowdroy JJ at [34]-[39].
[48] Comcare v Power [2015] FCA 1502 at [93]-[94].
And it is on this point that a gap appears in the evidence. Mr Buykx finished work at around 3.00pm of Friday 20 December 2019 and he experienced the onset of symptoms early in the morning of Monday 23 December 2019, on awakening. The records of his attendance (the accuracy of which is in question, despite Mr Buykx signing them on 2 January 2020) suggest he attended work at 7.00 am on 23 December 2019.[49] If it is accepted that he awoke with symptoms at 5.00 am that morning, this was 62 hours after he left work the previous Friday.
[49] Exhibit 8.
Mr Buykx’s evidence of not suffering any symptoms affecting his neck, right shoulder of right upper limb over that weekend is supported by Ms Galbraith. On their evidence after Mr Buykx finished work at around 3.00 pm on Friday 20 December 2019, they attended a birthday party for one of their son’s friends. They spent Saturday relaxing and attended a Christmas Party on Sunday. Nothing untoward occurred and Mr Buykx was symptom-free.
The medical experts agree that the radicular symptoms Mr Buykx experienced on the morning of 23 December 2019 could have arisen spontaneously or following a trivial or innocuous event, such as rolling over in bed. Dr Khurana, Dr Brooder and Dr Smith explained that such a trivial event would likely be the final straw that caused Mr Buykx’s degenerative cervical spine to become symptomatic.
It is Dr Khurana’s evidence that the precise mechanism causing the onset of symptoms involved the sandwiching or pinching of Mr Buykx’s exiting right C7 nerve root between over-grown facet joints and an osteophyte complex in the context of significant foraminal narrowing, probably when moving his neck or rolling over in bed on the night of 22 December 2019. Dr Khurana’s evidence is that symptoms would be expected to immediately follow the impingement or commence very soon thereafter. Dr Khurana did not agree with the proposition that symptoms might emerge after many hours or days and explained that a more immediate, proximate relationship would be expected once the nerve was impinged.
Dr Brooder explained that the precise causal mechanism involved a right-sided protrusion of the C6/7 disc that impinged upon the right C7 nerve root. It is Dr Brooder’s evidence that the onset of symptoms would probably have followed a period in which the nerve root was irritated, and the irritation was exacerbated by inflammation and oedema leading to a point at which the impingement became symptomatic. It was Dr Brooder’s evidence that this period might extend for some hours, possibly up to a day or two, although usually symptoms would arise within one day. In Dr Brooder’s opinion the lapse in time between Mr Buykx undertaking his employment duties up to 3.00 pm on Friday 20 December 2019 and the onset of symptoms early in the morning of 23 December 2019 is not inconsistent with the pattern of asymptomatic irritation followed by inflammation and ultimately the onset of radicular symptoms, albeit that usually one would expect symptoms within 24 hours.
Dr Brooder concluded that Mr Buykx’s heavy and repetitive manual duties in his employment significantly contributed to this process by causing the C6/7 disc protrusion to extend further to right, irritating the exiting right C7 nerve root. He explained that Mr Buykx’s work duties involved repetitive compressive loading and rotational movements of his neck and upper body that were sufficient to cause the already degenerative C6/7 disc to protrude further to the right.
Dr Smith’s evidence lends support to Dr Brooder’s explanation of the time delay between the occurrence of disc-related irritation of the exiting right C7 nerve root and the onset of symptoms. In Dr Smith’s opinion, this could extend for 48 hours or so in some cases, although, in his experience, usually symptoms would commence within hours not days. This notwithstanding, Dr Smith did not consider Mr Buykx’s employment duties contributed to his claimed injury.
The explanations given by Dr Brooder and Dr Smith in respect of the delay between the occurrence of the index protrusion and the onset of symptoms suggest that, in some cases, the process of nerve root irritation and inflammation may persist for 48 hours or so before the onset of symptoms. If that is correct in Mr Buykx’s case, the index incident that was instrumental in irritating his right C7 nerve root would have occurred on or after the early hours of Saturday 21 December 2019. We accept that Dr Brooder and Dr Smith referred to 48 hours indicatively and not definitively. Certainly, Dr Smith considered that a slightly longer period of days might occur in some unusual cases.
Proceeding on that basis, it is possible Mr Buykx’s duties in his employment on Friday 20 December 2019 caused his C6/7 disc to protrude further to the right, irritating his right exiting C7 nerve root and resulting in an inflammatory process which led to the onset of symptoms.
Possibility, however, is not sufficient, even if the possibility is real rather than fanciful or remote.
It is also possible that something innocuous occurred when Mr Buykx was sleeping in the early morning on 23 December 2019, or that the symptoms about which he has given evidence occurred spontaneously.
The threshold of causation set out in s 5B of the SRC Act requires a positive finding that the employment contributed to a significant degree to Mr Buykx’s cervical spine ailment. For a positive finding to be made, the Tribunal must be reasonably satisfied the factual basis of the employment contribution Mr Buykx alleges is established by evidence. Adopting the language use by Jenkinson J in McDonald v Secretary, Department of Social Security,[50] it is the existence of this circumstance that is determinative of the question we must decide.
[50] [1984] FCA 57; (1984) 1 FCR 354 per Jenkinson J at 369.
Commonly in Tribunal proceedings it is said that findings must be made on the balance of possibilities.[51] The use of this term, however, is of little assistance in a case of this nature. It is drawn from civil litigation under common law principles that are not directly analogous to Tribunal proceedings.[52] Proceedings in the Tribunal have a different character insofar as they involve administrative decision making, which requires reasonable satisfaction in a legal context.[53] While there is a variety of decision making approaches and decision-making tools that may be employed by the Tribunal in the circumstances of any case, including the principle drawn from Briginshaw v Briginshaw,[54] in a case like this under the SRC Act, there is no authority for the Tribunal, or for a decision maker under the SRC Act, to simply choose between possibilities.
[51] Minister for Immigration and Ethnic Affairs v Pochi [1980] FCA 85; (1980) 4 ALD 139 at 155-156.
[52] Sullivan v Civil Aviation Safety Authority [2014] FCAFC 93, per Flick and Perry JJ at [61].
[53] Re Day [2017] HCA 2 at [15].
[54] [1938] HCA 34.
Reasonable satisfaction in a legal context is not achieved by speculation, and it requires more than conjecture. It cannot be arrived at by simply choosing between equally real possibilities or plausible theories on the ground that one seems more likely than another.[55] A steady eye must be kept on the “distinction of substance to be drawn between probabilities on the one hand and mere possibilities, even if they are real as distinct from fanciful, on the other”.[56] That said, the strength of probative material necessary to logically support factual findings is guided by the nature and the facts of the particular case and the seriousness of any consequences.[57] If the threshold for reasonable satisfaction is not reached, no positive finding can be made. Furthermore, the absence of positive proof is not answered by dispositive assertions without proof.
[55] Jones v Dunkel [1959] HCA 8; (1959) 101 CLR 298 at 305.
[56] Repatriation Commission v Smith [1987] FCA 260 per Beaumont J with whom Northrop and Spender JJ agreed at [25].
[57] Sullivan v Civil Aviation Safety Authority [2014] FCAFC 93, per Flick and Perry JJ at [106]-[108] and [111]-[120].
There is no direct or contemporaneous evidence that a pathophysiological change occurred in Mr Buykx’s cervical spine during the course of his employment duties on Friday 20 December 2019 or on any other day in the weeks preceding the onset of symptoms on 23 December 2019.
Dr Ow Yang reported a history in which Mr Buykx experienced the onset of radicular symptoms at work, in the course of his employment duties. This is not consistent with the facts.
The evidence of Dr Brooder and Dr Smith raises no more than the possibility that something occurred in Mr Buykx’s cervical spine prior to him completing work duties on 20 December 2019, albeit that he was free of symptoms at the time. In our assessment, we cannot make a positive factual finding on such an insubstantial basis.
There remains a question whether Mr Buykx’s heavy work duties over the preceding 18 months significantly contributed to pathophysiological changes in his cervical spine and the onset of symptoms on 23 December 2019.
The research materials to which reference was made during the hearing, which suggest differing conclusions about the involvement of heavy or repetitive manual labour in the onset or progress of cervical spine degenerative disease are of little assistance, and they are not a firm basis for drawing any inference in the particular facts and circumstances of this case.
As we have said, we do not accept Dr Khurana’s opinion that environmental factors, including wear and tear, play no part in the progress of degenerative disease in the cervical spine or in the onset of symptoms.
Dr Brooder’s opinion is that Mr Buykx’s heavy and repetitive manual duties in the 18 month period prior to the onset of radicular symptoms on 23 December 2019 contributed to a significant degree to the pathophysiological changes in his cervical spine, and the C6/7 disc protrusion to the right Dr Pik, Dr Ow Yang, Dr Fuller and Dr Smith identified.
Dr Khurana and Dr Smith do not agree. It is not necessary to say much about Dr Khurana’s evidence on this point as the doctor did not accept Mr Buykx’s C6/7 disc was implicated in the onset of his radicular symptoms on 23 December 2019. Dr Smith’s evidence on this point aligned in part with Dr Brooder’s assessment but the doctor’s reasoning was less clear about any causal nexus with employment. Dr Smith accepted the involvement of Mr Buykx’s C6/7 disc in the irritation and likely inflammation of his right exiting C7 nerve root, and he accepted that heavy repetitive manual work of the kinds Mr Buykx undertook for 18 months prior to the onset of symptoms could affect an already degenerative cervical spine. But Dr Smith adhered to his report that Mr Buykx’s employment was not causally related to his claimed injury.
This notwithstanding, we comprehend Dr Smith’s opinion to admit the possibility that Mr Buykx’s work duties may have contributed to some extent, but his conclusion proceeds on the basis of unfortunate coincidence: the symptoms came on spontaneously or something innocuous happened to trigger the onset of symptoms over the course of the preceding weekend.
The contribution Mr Buykx’s employment made to his cervical spine ailment must be assessed in consideration of other relevant matters, including those set out in s 5B(2) of the SRC Act.
We are reasonably satisfied that Mr Buykx was genetically predisposed to degenerative disease in his cervical spine. The medical evidence establishes that the changes in Mr Buykx’s cervical spine were multi-level and more severe than one would expect in a man of his age. We accept Dr Khurana’s evidence in respect of the significance of genetic or constitutional factors in the occurrence and progress of Mr Buykx’s degenerative cervical spine disease. We are also reasonably satisfied the extent and severity of degenerative changes in Mr Buykx’s cervical spine suggest it was likely those changes would have become symptomatic at some point in time.
Mr Buykx has a work history of heavy manual labour, including for 60 percent of the ten years prior to commencement of his employment by DAWE. He also has a history of strenuous physical activities including long-distance kayaking, endurance sporting activities, including triathlons, mountain-biking and surfing. With the exception of one surfing trip in February 2019, we are satisfied that Mr Buykx did not engage in such activities to a competitive level in the 18 months prior to the onset of radicular symptoms. This notwithstanding, it is probable his history of undertaking strenuous physical activities may have contributed to progressive degenerative changes in his cervical spine.
As of 23 December 2019, Mr Buykx had worked for DAWE for over 9 years and only engaged in the heavy repetitive manual duties the Project required for the last 18 months of that period, prior to the onset of radicular symptoms. While there is no probative evidence of any accident or precipitous event causing the onset of those symptoms, common sense might suggest the heavy repetitive duties Mr Buykx undertook increased pressure on his C6/7 disc and accelerated the progress of degenerative changes in his cervical spine as Dr Brooder’s evidence suggests. As attractive or tantalising as common sense may be, it is not a proper basis on which to make factual findings. Nevertheless, we accept that Mr Buykx’s heavy work duties may have contributed to some degree to his cervical spine condition.
Considering these matters, the competing propositions of the parties can clearly be seen. On the one hand, Comcare says his symptoms are simply the product of progressive degenerative disease in which his employment played no significant part. On the other hand, Mr Buykx says his heavy, repetitive manual duties for 18 months accelerated or aggravated his already degenerative cervical spine, causing his C6/7 disc to protrude in a manner that was significant in the onset of the radicular symptoms he experienced on 23 December 2019.
The issue turns on proof of facts necessary to establish the requisite causal nexus with Mr Buykx’s employment.
In our assessment of the evidence, on balance, the facts are not sufficiently established to enable a positive finding to be made.
Considering the whole of the medical evidence, including the evidence of Dr Brooder, Dr Smith and Dr Ow Yang in particular, we are reasonably satisfied Mr Buykx’s employment may have contributed to some degree to the ailment for which he has claimed compensation: the heavy and repetitive duties Mr Buykx undertook in his employment for 18 months was one of several factors that played some causal role in the progression of the degenerative disease that was present in Mr Buykx’s cervical spine and the onset of symptoms on 23 December 2019. We are not persuaded, however, that those duties and his employment contributed to a significant degree to the onset of symptoms on 23 December 2019 or to the ailment we have found he suffered at that time. On this point, Dr Brooder’s evidence is somewhat speculative and Dr Ow Yang’s assessment is based on incorrect factual assumptions.
When all of the evidence is considered and the contribution of Mr Buykx’s employment is assessed in the context of other relevant factors, including a likely genetic element or predisposition and his history of heavy work and extreme physical activities, and noting the severe degenerative multi-level pathophysiological changes in Mr Buykx’s cervical spine, we are not reasonably satisfied the contribution made by Mr Buykx’s employment to his cervical spine ailment was substantially greater than material. The proposition Mr Buykx’s employment significantly contributed to cause, aggravate, accelerate or worsen the ailment he suffered at that time is not made out.
That being so, we are unable to positively find Mr Buykx’s employment contributed to a significant degree to the pathophysiological changes in his cervical spine or to the symptoms with which he awoke on 23 December 2019. It follows Mr Buykx’s cervical spine ailment does not meet the threshold for a disease or the aggravation of a disease for the purposes of s 5A(1)(a) and s 5B of the SRC Act.
Injury (other than a disease)
In view of the matters we have discussed and the findings we have made, or have not been able to make, it is not necessary to say much about the alternative basis of liability in respect of an injury (other than a disease) for the purposes of s 5A(1)(b) of the SRC Act.
There is simply no probative material capable of establishing that a dramatic, identifiable pathophysiological change, whether sudden or not, occurred in Mr Buykx’s cervical spine arising out of or in the course of his employment prior to 23 December 2019.
That being so, in the circumstances of this case, the threshold in respect of an injury (other than a disease) or an aggravation of an injury (other than a disease) is not met.
From this it follows Mr Buykx does not have an injury for the purposes of s 5A of the SRC Act. Absent that, Comcare is not liable to pay him compensation under s 14 of the SRC Act.
Mr Buykx’s compensation claim is not made out and the decision under review must be affirmed.
Decision
The decision under review is affirmed.
I Certify that the preceding 113 (one hundred and thirteen) paragraphs are a true copy of the reasons for the decision herein of Member Webb and Member Fricker
………………………[sgd]……………………..
Associate
Dated: 22 April 2022
Date(s) of hearing: 22-24 February 2022
Counsel for the Applicant: Mr Leo Grey
Solicitors for the Applicant: Nikolovski Lawyers
Counsel for the Respondent: Mr Brenden Kelly
Solicitors for the Respondent: Moray & Angew Lawyers
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