Nakita Xardia and Comcare - [2014] AATA 487

[2014] AATA 487

Division GENERAL ADMINISTRATIVE DIVISION

File Number(s)

2013/5524

Re

Nakita Xardia

APPLICANT

And

Comcare

RESPONDENT

DECISION

Tribunal
Mr Dean Letcher, QC, Senior Member

Date 17 July 2014

Place Sydney
The decision under review is affirmed.

.........[sgd]...............................................................
Mr Dean Letcher, QC, Senior Member
WORKER’S COMPENSATION – psychological injury –claimed acute reaction to stress – constitutional schizophrenia – no evidence directly relevant to facts of claim - employment did not make a material contribution to claimed injury – decision affirmed
Legislation
Safety, Rehabilitation and Compensation Act 1988: s 14
Cases
Xardia v Military Rehabilitation and Compensation Commission [2010] AATA 62
Secondary Materials
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REASONS FOR DECISION
Mr Dean Letcher, QC, Senior Member
17 July 2014

The Applicant seeks review of a decision of Comcare declining liability to pay compensation under s 14 of the Safety Rehabilitation and Compensation Act 1988 (‘the SRC Act’) for ‘acute reaction to stress’ resulting in paranoid schizophrenia.
The Applicant was employed by the Australian Tax Office (‘ATO’) between 1990-1994 but did not lodge the claim until 2013.
APPLICATION
In a claim for worker’s compensation made on 13 February 2013 the Applicant stated, in response to what she was doing at the time of injury:
‘Identifying 3 rings of Gordon Mills murder victim who [sic] was presented to me by 2 Detectives in TFN Section Hunter St Sydney around 26-27/4/1994. I wrote a statement identifying the evidence. I was disciplined shortly after put on fixed hours and made to terminate my employment by my supervisor in around May-June 1994 and forced into debt and bankruptcy and told never come back again.’
In another section of the claim form, the Applicant was asked if she had ever had a similar symptom, injury or illness and responded:
“Summer 1992 on workplace barbeque in working hours on a Thursday Team Building Exercise Kangaroo Pt in Brisbane Qld stress leave for identifying dead female body on a beach nr Storey Bridge Jack Knight witnessed, Supervisor, File Control. When I saw the dead female lying head down in the sand and Customs Qld water police yelled at me to check whether it was alive or dead I did this in shock. I had nightmares that nite and occasionally ended up in debt after this and bankruptcy and life disin[te]grated and career prospects destroyed and life goals”.
The Applicant claimed in respect of alleged harassment in the Brisbane ATO office in 19991 but the claim was refused.
FACTUAL ELEMENTS
At the hearing of this matter, Counsel for the Respondent submitted that the issue of the Applicant not giving notice of the injury, as required under s 53 of the SRC Act, was no longer pressed.
With respect to the date of injury, as per s 7(4) of the SRC Act, 30 January 2013 was determined to be the deemed date. This was the date on which the Applicant, as noted in the clinical notes of Dr Springer, alleged that workplace matters and her schizophrenia were related.
As stated earlier, the Applicant had…

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.

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Details

Case: [2014] AATA 487
Decision Date

CaseChat Overview and Summary

Nakita Xardia, the Applicant, brought a claim against Comcare, the Respondent, in a tribunal. The Applicant, who underwent gender reassignment surgery and adopted a female name, sought compensation for injuries and health conditions allegedly caused or aggravated by their employment with the Australian Taxation Office (ATO). The Applicant's extensive history included military service, numerous unsuccessful compensation claims, and chronic psychiatric conditions, notably schizophrenia. The Tribunal was tasked with determining whether the Applicant's employment with the ATO contributed to the causation or aggravation of any health conditions, particularly focusing on the psychiatric condition.

The legal issues before the court involved establishing whether there was a causal link between the Applicant's employment and the health conditions claimed. This required a detailed examination of the evidence provided by the Applicant, including their lengthy history of psychiatric issues, and expert medical testimony. The court needed to ascertain if any workplace events could be identified as significant contributors to the Applicant's health conditions, specifically whether there was any connection between the employment and the onset or worsening of the psychiatric condition.

In its reasoning, the Tribunal noted that the Applicant's evidence was fragmented and lacked a clear narrative that could be directly tied to the employment. The Applicant made numerous accusations of conspiracy and malice but failed to provide concrete evidence linking their employment to the claimed health issues. Dr. Jeffrey Bertucen, a psychiatrist who examined the Applicant, concluded that there was no direct connection between the employment and the psychiatric condition, which he attributed to an underlying constitutional issue. The Tribunal accepted Dr. Bertucen's opinion and found no evidence to support a causal link between the employment and the health conditions claimed. Consequently, the decision under review was affirmed, dismissing the Applicant's claim for compensation.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

The Applicant underwent gender reassignment surgery and has adopted a female name. EVIDENCE IN THE TRIBUNAL The Respondent tendered a large volume of documents from the Applicant’s discharge from the Navy, “Military Retention not in Service interest”, after relationship difficulties and unfavourable psychological assessment in 1982 onwards. The Applicant made numerous unsuccessful claims for compensation from Comcare, the Department of Veterans Affairs and, in one instance, pursued the matter through this Tribunal (Xardia v Military Rehabilitation and Compensation Commission [2010] AATA 62). Other claims arising from childhood incidents were made to the Victims Compensation Board. Claims included “genitalia petrification” while he was a cadet in 1980, PTSD and gender identity disorder. The Applicant has undergone gender reassignment surgery and has adopted a female name. From 1998 onwards, the Applicant was hospitalised for psychiatric treatment on many occasions. In 2005 he was granted a Disability Support Pension for schizophrenia. The Applicant gave evidence to the Tribunal. She was invited and requested to deal with the circumstances of the ATO employment and incidents leading to the claim. There was no clear narrative of events able to be obtained from the Applicant, and hence no directly relevant material upon which a finding of significant contribution by work-place events could be made. Throughout the course of her oral evidence, the Applicant made numerous accusations of conspiracy and malice against unidentified groups and persons. She said that after she made her “murder statement’ (an innocuous identification of a ring belonging to Mr Mills), the ATO did not wish to protect her and this led on to bankruptcy and mental health issues so she could not be represented in court. In spite of requests and suggestions, the Applicant was unable or unwilling to address the issues in the case. Her evidence, documentary and oral, provided no factual basis upon which findings of injury, causation, contribution or aggravation could be made in relation to employment by the ATO. The only other oral witness was Dr Jeffrey Bertucen, psychiatrist, who examined the Applicant on behalf of the Respondent. His opinion was that he was unable to draw any direct connection between the Applicant’s history of chronic schizophrenia and any factors relating to her employment by the ATO. He considered that her schizophrenia was “an underlying constitutional condition which emerged in the mid 1990’s”. The doctor did not believe that any factors associated with her ATO employment had caused or aggravated the psychotic condition. The Applicant endeavoured to cross-examine the doctor, but mainly made accusations that the doctor had somehow influenced others to persecute the Applicant in the past. I accept the doctor’s opinions expressed in the report and his oral evidence.CONCLUSIONS There is no evidence before the Tribunal that the Applicant’s employment by the ATO contributed in any way to the causation or aggravation of any health condition of the Applicant. In particular, there is no evidence that the employment was related to his psychiatric condition or any “acute reaction to stress” – of which there is no evidence in any event.DECISION

Decision

Reasons for decision

There is no evidence before the Tribunal that the Applicant’s employment by the ATO contributed in any way to the causation or aggravation of any health condition of the Applicant. In particular, there is no evidence that the employment was related to his psychiatric condition or any “acute reaction to stress” – of which there is no evidence in any event.DECISION The decision under review is affirmed.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Division	GENERAL ADMINISTRATIVE DIVISION
File Number(s)	2013/5524
Re	Nakita Xardia
APPLICANT
And	Comcare
RESPONDENT

Tribunal	Mr Dean Letcher, QC, Senior Member
Date	17 July 2014
Place	Sydney