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 been employed by the ATO in Brisbane 1990-1992 and in Sydney 1992-1994, although there were no records of the alleged incidents, as identified in her claim, that were able to be located by the ATO.
The Respondent accepted that the Applicant had worked in the ATO Sydney next to Mr Mills, who was killed at his home in March 1994. In late April 1994, detectives showed the Applicant a number of rings and asked if he (as she then was) could identify them as being worn by the victim. The Applicant signed a formal police statement to that effect - a document the Applicant would later refer to as being the ‘murder statement’.
In August 1994 the Applicant claimed stress reaction and resigned voluntarily. (A man was later convicted of the manslaughter of Mr Mills apparently after having been told that Mills had tried to sexually abuse him when he was unconscious after heavy drinking. No knowledge or connection with the Applicant was ever suggested).
After resignation, the Applicant was engaged in security activities and later was made bankrupt in 2002, although the details are unknown.
The claim for compensation made in February 2013 was refused by Comcare on 30 April 2013 and reviewed unsuccessfully on 25 September 2013. It is this decision that the Applicant seeks review of by the Tribunal.
OTHER ISSUES
To date, the Applicant has 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). Further claims were made to the Victims Compensation Board, and other claims have been made with respect to time as a cadet, PTSD and gender identity disorder.
From 1998 onwards, the Applicant was hospitalised for psychiatric treatment on many occasions. In 2005 he (as she then was) was granted a Disability Support Pension for schizophrenia.
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
The decision under review is affirmed.
I certify that the preceding 25 (twenty -five) paragraphs are a true copy of the reasons for the decision herein of Mr Dean Letcher, QC, Senior Member .........[sgd]...............................................................
Associate
Dated 17 July 2014
Date of hearing 5 June 2014 Applicant In person Solicitors for the Respondent Ms B Audsley, Australian Government Solicitor
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