Buykx and Comcare (Compensation) - [2022] AATA 810

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, Member
22 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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Buykx and Comcare (Compensation)

Details

AGLC: Buykx and Comcare (Compensation) [2022] AATA 810
Case: [2022] AATA 810
Decision Date: 22 April 2022

CaseChat Overview and Summary

This matter concerned an application for review by Anthony Buykx against a decision by Comcare to refuse his claim for compensation. Mr Buykx, who engaged in heavy manual labouring work, experienced pain and other symptoms in his neck, right shoulder, and right upper limb after a weekend. He alleged these symptoms were a consequence of his employment. Comcare had initially refused his claim and subsequently affirmed that decision upon reconsideration, leading to Mr Buykx's application for review by the Tribunal.

The central legal issues before the Tribunal were whether Mr Buykx suffered an "injury" or "disease" within the meaning of the relevant legislation, and if so, whether his employment contributed to the onset or aggravation of that condition to a significant degree. The Tribunal was required to consider divergent expert medical evidence and determine if the symptoms arose from an acute injury sustained during employment or from the progression of a pre-existing degenerative condition, and whether that condition was made worse by his work.

The Tribunal found that there was no evidence of an acute injury sustained in the course of Mr Buykx's employment. The onset of his symptoms followed a period of rest, and the medical evidence did not establish that his employment had contributed to the condition to a significant degree. While acknowledging the demanding nature of his work, the Tribunal concluded that the evidence did not demonstrate that his employment had aggravated a pre-existing degenerative condition. Consequently, the Tribunal affirmed Comcare's decision.

Orders

Orders of the court

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Background

Background to the litigation

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.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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 2022Date(s) of hearing: 22-24 February 2022Counsel 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

Ratio Decidendi

Legal Principle Established

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