Xardia and Military Rehabilitation and Compensation Commission
[2010] AATA 621
•20 August 2010
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2010] AATA 621
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2009/3009
GENERAL ADMINISTRATIVE DIVISION ) Re Nakita Xardia Applicant
And
Military Rehabilitation and Compensation Commission
Respondent
DECISION
Tribunal Senior Member A K Britton
Dr J D Campbell, MemberDate20 August 2010
PlaceSydney
Decision
The reviewable decision made on 13 May 2009 is affirmed.
....................[SGD]...................
Senior Member
CATCHWORDS
WORKERS COMPENSATION – military rehabilitation – alleged psychological and physical injuries – formal requirements for making claim – conditions not contributed to in a material degree by military service.
Safety, Rehabilitation and Compensation Act 1988 (Cth) — ss 4, 14
Safety, Rehabilitation and Compensation and Other Legislation Amendment Act 2007 (No 54, 2007) (Cth) — Item 41, Schedule 1
Births, Deaths and Marriages Registration Act 1995 (NSW) — Part 5A
Victims Support and Rehabilitation Act 1996 (NSW)Comcare v Sahu-Khan (2007) 156 FCR 536
REASONS FOR DECISION
20 August 2010 Senior Member A K Britton
Dr J D Campbell, Member1. Ms Nakita Xardia signed on to serve in the Royal Australian Navy for five years in 1981. She was discharged 16 months later on the stated ground that she was “unsuitable for service”.
2. In April 2007, Ms Xardia lodged a claim for compensation in respect of “schizophrenia, transsexualism, right knee, left shoulder” against her former employer, the Military Rehabilitation and Compensation Commission (the respondent in these proceedings). In the course of investigating her claim, the Commission identified additional claimed conditions — namely, sexual dysfunction and post traumatic stress disorder (PTSD). The Commission accepted that Ms Xardia suffered from schizophrenia and gender identity disorder, but not sexual dysfunction or PTSD. The Commission determined that it was not liable for the conditions of schizophrenia and gender identity disorder because in its view, Ms Xardia’s employment with the Navy had not contributed to them to the requisite degree. Ms Xardia has now applied to the Administrative Appeals Tribunal for review of that decision.
3. By virtue of s 14 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) (“the Act”), the Commission will be liable to pay compensation in accordance with that Act in respect of any “injury” suffered by Ms Xardia if it results in impairment or incapacity for work. For reasons discussed below, the version of the Act relevant to Ms Xardia’s particular claims is that in force before amendments made in 2007 by the Safety, Rehabilitation and Compensation and Other Legislation Amendment Act 2007 (No. 54, 2007) (the Amendment Act). Section 4 of the Act as it then was defined “injury” to include a “disease”. Disease was defined to mean an ailment suffered by an employee, or an aggravation of such an ailment, that was contributed to, to a material degree, by the employee’s employment by the Commonwealth: s 4 of the Act.
Background
4. Ms Xardia was born a man and served in the Navy under the name Neville Patching. She transitioned to live as a woman in about 2003, and later underwent gender reassignment surgery. The record of her birth has been altered to record her change of sex under Part 5A of the Births, Deaths and Marriages Registration Act 1995 (NSW).
5. Ms Xardia entered the Australian Navy aged 17 years, after completing five years at secondary school.
6. About four months before being discharged Ms Xardia, who then presented as a man, formed a relationship with a transsexual person, Ms De Ville. Naval records indicate that Ms Xardia was bullied and teased about that relationship.
7. The decision to discharge Ms Xardia from the Navy followed a recommendation made by Navy psychologist, Mr J Tennent who in a report dated 9 August 1982 wrote:
He is quite confused about his sexuality, and does not really appreciate the problems which he is taking on with his new way of life. From discussion it would appear that the young “woman” [Ms De Ville] has had emotional problems of a fairly serious nature previously, and her mode of earning a living is undesirable. SMN Patching has not yet told his parents about the nature of his relationship. He is not, at present, prepared to sever the relationship.
Recommendation
He is under a great deal of emotional pressure from his “de facto”, his shipmates, and his feelings about his lifestyle. In view of his wish to leave the Navy, and the continued pressure to which he would be subjected by his shipmates if he remained in the Service, regardless of whether the relationship terminated or not, prompt discharge is desirable.
8. After being discharged Ms Xardia attempted to re-join the Navy on a number of occasions. Her applications were refused. After leaving the Navy she held a number of intermittent positions, working as a prison officer for a couple years and subsequently at the Australian Tax Office (ATO) until 1991. In about 1998, she was diagnosed as suffering from schizophrenia and gender identity disorder.
9. In 2007, Ms Xardia made five claims for compensation under the Victims Support and Rehabilitation Act 1996 (NSW) in respect of alleged physical and sexual assaults that occurred throughout her childhood and up until 1988. None of the alleged assaults related to her employment with Navy. Most related to assaults perpetrated by family members and neighbours during her childhood. The NSW Victims Compensation Tribunal awarded Ms Xardia compensation for all but one claim.
10. It is not in issue that Ms Xardia is seriously disabled on account of multiple psychiatric conditions.
Issues
11. Whether the Commission will be liable to pay compensation to Ms Xardia under the Act, turns on answers to the following:
1. Does the Tribunal have the power to decide the claim made in respect of the right knee and/or left shoulder?
2. Does or did, Ms Xardia suffer from PTSD, schizophrenia, gender identity disorder and/or sexual dysfunction, and (if open for consideration) injury to the right knee/left shoulder?
3. If so, what was the date of injury?
4. Were any of those conditions, or their aggravation, contributed to in a material degree by Ms Xardia’s employment with the Navy?
Can the Tribunal determine the claim in respect of the right knee and left shoulder?
12. In her initiating claim, lodged on 5 April 2007, Ms Xardia sought compensation for, among other things, injury to “right knee, left shoulder”. She claimed that she injured both body parts when the bunk on which she had been sleeping onboard the HMAS Vampire collapsed during a cyclone on 15 May 1982.
13. Neither the original decision made by the Commission declining liability, nor the decision on review which affirmed that decision, mentioned the claim in respect of the “right knee, left shoulder”. We must therefore decide whether we have power to determine that claim.
14. Compensation is not payable to a person under the Act unless a claim for compensation is made by the person under s 54 of that Act: s 54(1). Section 54 prescribes a number of requirements for the making of a claim. These include that the claim be accompanied by a certificate by a legally qualified medical practitioner in accordance with the form approved by Comcare: s 54(2)(b). Where the claim is not accompanied by such certificate, it is taken not to have been made until such a certificate is given to the Commission.
15. The claim made by Ms Xardia was not accompanied by a certificate from a medical practitioner certifying that she had injured her right knee or left shoulder. Nor did she subsequently provide a certificate to the Commission. It follows that by the operation of s 54(3) of the Act the claim is to be treated as not having been made in respect of those body parts.
16. The Commission correctly decided it could not determine the purported claim in respect of the right knee and left shoulder. Nor can we determine that claim.
Does or did Ms Xardia suffer from “sexual dysfunction”?
17. Ms Xardia did not mention “sexual dysfunction” in her initiating claim lodged with the Commission on 5 April 2007. It appears that the condition was subsequently raised with the Commission’s delegate in the course of investigating the claim.
18. Ms Xardia testified that a few weeks after the fall from the bunk she experienced no “erectile feeling” and concluded that it had been caused by the fall. She testified that she did not seek treatment until about 1995 as she was “too embarrassed”.
19. In these proceedings, Ms Xardia tendered an undated letter said to have been prepared by her former partner, Ms De Ville. The writer states that the failure of their relationship was mainly attributable to Ms Xardia’s sexual incapacity which she described as “no feeling in the genital region…and a general fear around sexual arousal issues”.
20. There is no record in any of the documents before us of Ms Xardia describing symptoms of erectile dysfunction. None of the practitioners who have assessed Ms Xardia were of the opinion that she suffers from, or has suffered from, sexual dysfunction or any like condition. From what is before us, it is not possible to determine whether the claimed condition is psychiatric or physiological in nature. While possible, on the material before us, we could not be satisfied that Ms Xardia suffers from, or has suffered from, sexual dysfunction or a like condition.
Does or did Ms Xardia suffer from PTSD?
21. According to DSM-IV (the American Psychiatric Association, “Diagnostic and Statistical Manual of Mental Disorders, (4th ed)) — a manual accepted in Australia as an authoritative psychiatric text — an essential feature of PTSD is:
[T]he development of characteristic symptoms following exposure to an extreme traumatic stressor involving direct personal experience of an event that involves actual or threatened death or serious injury, or other threat to one’s personal integrity; or witnessing an event that involves death, injury, or a threat to the physical integrity of another person; or learning about unexpected or violent death, serious harm, or threat of death or injury experienced by a family member or other close associate. (Criterion A1). The person’s response to the event must involve intense fear, helplessness or horror (or in children, the response must involve disorganised or agitated behaviour) (Criterion A2). The characteristic symptoms resulting from the exposure to the extreme trauma include persistent re-experiencing of the traumatic event (Criterion B), persistent avoidance of stimuli associated with the trauma and numbing of general responsiveness (Criterion C), and persistent symptoms of increased arousal (Criterion D). The full symptom picture must be present for more than 1 month (Criterion E), and the disturbance must cause clinically significant distress or impairment in social, occupational or other important areas of functioning.
22. Under DSM-IV one of the diagnostic criterion of PTSD is that the traumatic event is persistently re-experienced in one (or more) of the following ways:
1.Recurrent and intrusive distressive recollections of the event, including images, thoughts and perceptions.
2.Recurrent distressing dreams of the event.
3.Acting or feeling as if the traumatic event were recurring;
4.Intense psychological distress at exposure to internal or external cues that symbolize or resemble an aspect of the traumatic event.
5.Physiological reactivity on exposure to internal or external cues that symbolize or resemble as aspect of the traumatic event.
23. Ms Xardia identified the fall from the bunk while sleeping aboard HMAS Vampire as the “traumatic event” that triggered her condition of PTSD. The account she gave in these proceedings is broadly consistent with contemporary naval records. They reveal that Ms Xardia injured her right knee, left shoulder and left eye in the fall; received first aid the following morning; collapsed while on duty later that day; and was subsequently given 24 hours sick leave.
24. In evidence given in these proceedings, Ms Xardia claimed that after the accident she developed a fear of enclosed spaces and rough weather at sea. In answer to a question from the Tribunal, she denied experiencing recurrent memories of troubling events or environments.
25. Psychiatrist, Dr Masood Khan, and psychologist, Ms Greta Goldberg, are of the opinion that Ms Xardia suffers from PTSD. Psychiatrist Dr Phillip Brown, who assessed Ms Xardia at the request of the Commission, does not agree.
26. Dr Khan assessed Ms Xardia at the request of her GP. In a short report dated 24 September 2009, Dr Khan provided a diagnosis of PTSD and schizophrenia in remission. He wrote:
Following the accident in the Navy developed symptoms of PTSD such as fear of the sea and fear of beds that look similar to the bunks in the navy. She has difficulty sleeping in similar beds and avoids looking at the sea.
27. Ms Xardia was assessed by Ms Goldberg at the request of the NSW Victims Compensation Tribunal. In a detailed report dated 21 June 2007, Ms Goldberg recorded that Ms Xardia had been exposed to “extreme domestic violence and to sexual harassment and abuse” throughout childhood and later on. In her opinion, Ms Xardia’s clinical presentation and psychometric profile was consistent with multiple co-morbid diagnoses including chronic PTSD with anxiety/depression and hypervigilance/paranoid distrust. She thought that the history given indicated that dysmorphia and gender identity problems were evident in Ms Xardia’s childhood and had been exacerbated by extreme domestic violence and sexual assaults in adult life. Ms Goldberg did not attribute Ms Xardia’s condition to her time in the Navy, and makes only passing reference to that period in her report.
28. A report prepared by Dr Brown dated 25 September 2007 was tendered in these proceedings. Dr Brown also gave oral evidence. Dr Brown is of the opinion that Ms Xardia suffers from chronic schizophrenia and a gender identity disorder, but not PTSD. In his opinion Ms Xardia does not have — and never has had — symptoms of PTSD. He wrote that the only possible “symptom” consistent with PTSD that he could ascertain after “repetitive questioning” was Ms Xardia’s claim that after the fall from the bunk incident she was unable to sleep in high bunks. In his view neither the alleged stressor — the fall from the bunk — nor Ms Xardia’s reaction to it was sufficiently severe to warrant a diagnosis of PTSD.
29. Our findings: In determining whether Ms Xardia suffers from PTSD, we have not confined ourselves to her oral evidence. Given the severity of her multiple psychiatric conditions, evidence of thought disorder and unreliable memory, it would in our view be an injustice to do so. We have therefore taken into account the histories given by Ms Xardia to the many practitioners whose reports are before us, as well as handwritten commentaries made by her on many of the documents filed in these proceedings.
30. There is evidence of a number of stressful incidents that occurred during the course of her naval service in the documents provided by Ms Xardia. These include the teasing by her colleagues about the relationship with Ms de Ville. The naval psychologist who assessed Ms Xardia shortly before discharge recorded: “He’s [Ms Xardia] being rubbished by other sailors over the matter [the relationship with Ms de Ville] and wants out of the navy — feels he can’t take much more of the ribbing”.
31. Even if assumed that the fall from the bunk or Ms Xardia’s treatment by her colleagues could be characterised as an “extreme traumatic stressor”, the evidence of her reaction to these incidents does not, in our view, support a diagnosis of PTSD. None of the medical histories recorded by the practitioners whose reports are before us suggest that Ms Xardia has reported “intense” psychological distress or reaction when exposed to external cues such as the sea or bunk beds which DSM-IV characterises as a “re-experiencing”.
32. Dr Khan’s opinion that Ms Xardia suffers from PTSD is in our view unpersuasive. He did not set out the factual assumptions or detail those symptoms which led him to conclude that Ms Xardia suffers from PTSD. He merely stated “she has difficulty sleeping in similar bed and avoids looking at the sea”. While Ms Goldberg’s report contains a detailed history — focusing primarily on alleged events that occurred throughout Ms Xardia’s childhood — she did not refer to the symptoms that led her to conclude that a diagnosis of PTSD was warranted. In contrast, Dr Brown has set out the assumptions on which his opinion that Ms Xardia does not suffer from PTSD is based, and has provided cogent reasons for that opinion. We therefore prefer this opinion over that provided by Dr Khan and Ms Goldberg.
33. For these reasons we cannot be satisfied that Ms Xardia suffers from, or has suffered from, PTSD.
Does — or did — Ms Xardia suffer from Schizophrenia and gender identity Disorder?
34. Consistent with the concession made by the Commission and the uncontested medical evidence, we are satisfied that Ms Xardia suffers from both schizophrenia and gender identity disorder.
Date of injury
35. Before determining whether Ms Xardia’s employment contributed to her conditions to the requisite degree, it is necessary to determine the “date of injury”. This is because the date of injury determines the applicable legislation.
36. Under the current legislation, a “disease injury” is taken to have been sustained on the day when the employee first sought medical treatment for the disease, or aggravation; or the disease or aggravation, resulted in incapacity for work, or impairment: s 7(4) of the Act.
37. It is therefore necessary to identify when Ms Xardia first sought medical treatment for schizophrenia and gender identity disorder, or their aggravation and, when they resulted in any incapacity for work, or impairment.
38. First sought medical treatment: There is no evidence — and nor is it suggested — that Ms Xardia sought treatment for either schizophrenia or gender identity disorder before the commencement of the Act on 1 December 1988. It would appear that Ms Xardia first received treatment for schizophrenia in or around 1998 when admitted to Townsville Hospital (see report of Dr R Farago, 10 November 2005). She came under the care of the St Vincent’s mental health service in Sydney at around the same time.
39. We find that Ms Xardia first received medical treatment in or about 1998.
40. First resulted in impairment: The Act defines “impairment” to mean “the loss, the loss of the use, or the damage or malfunction, of any part of the body or of any bodily system or function or part of such system or function”. It seems to us that Ms Xardia’s conditions had resulted in impairment at least by the time she first sought medical treatment.
41. First resulted in incapacity: Under the Act, “incapacity for work” includes incapacity to engage in work at the same level at which the employee was engaged …before the injury happened”: s 4(9).
42. There is scant evidence about Ms Xardia’s employment history. That available reveals that after leaving the Navy she held a number of positions, mostly casual in nature and in the security industry. She has not worked for over a decade and has been receiving the Disability Support Pension since about 1998.
43. Ms Xardia’s most substantial employment after leaving the Navy was as a correctional officer with the NSW Department of Corrective Services. That employment commenced in November 1985 and appears to have continued for about two years. She then worked as a clerical officer at the Australian Taxation Office (ATO), leaving after an incident in 1991. It appears that her conditions impeded her ability to continue working after this point. Based on this evidence, it would appear that Ms Xardia became incapacitated for work — in the sense of her pre-injury capacity — at around 1991.
44. Date of injury Ms Xardia became incapacitated before seeking treatment for her psychiatric condition. The date of injury is therefore 1991, the date of first incapacity. Accordingly, Ms Xardia’s claim must be determined under the Act, which commenced operation on 1 December 1988. As she first suffered the ailment prior to 13 April 2007, the applicable definition of “disease” is that found in s 4(1) of the Act as it stood prior to amendment and at the time the disease injury was sustained: Item 42, Schedule 1 of the Amendment Act.
Did Ms Xardia’s employment with the Navy contribute to her Schizophrenia and gender identity Disorder in a material degree?
45. The Commission will be liable under the Act as it stood at the relevant time if established that her employment contributed to her conditions of schizophrenia or gender identity disorder, or the aggravation of either, in a “material degree”: s 4(1). In Comcare v Sahu-Khan (2007) 156 FCR 536, Finn J said at 542 that this requires a “threshold evaluation” — namely, an evaluation of all relevant contributing factors to the condition for the purpose of asking whether the employee’s employment did or did not contribute materially to the subject disease.
46. Gender identity disorder According to Dr Brown, Ms Xardia’s gender identity disorder has been evident since childhood and is entirely unrelated to her employment with the Navy. Dr Farago, who prepared a report in support of Ms Xardia’s application for gender reassignment surgery, believed that Ms Xardia’s history of gender dysmorphia was “life long” but did not suggest that there was any connection between the condition and service in the Navy. Dr Tran, Ms Xardia’s treating psychiatrist between 2003 and 2005, in a report dated 12 July 2004, provided a diagnosis of gender identity disorder. While he did not offer an opinion on causation he took a history of Ms Xardia “feeling like a girl” since around the age of five. Ms Goldberg was also of the opinion that gender identity issues were evident since childhood and were “severely exacerbated” by extreme domestic violence in her childhood and recurring sexual assault in her adult life. There is nothing in her report to suggest that Ms Xardia’s employment with the Navy was a contributing factor to the condition or an aggravation of the condition.
47. Schizophrenia Dr Brown described schizophrenia as a “constitutional condition” with an “inherited basis and biochemical mechanism”. According to Dr Brown, schizophrenia and/or its exacerbation normally occurs without any significant precipitation, but the timing of the first manifestation and subsequent exacerbations can be triggered by stress.
48. Dr Brown thought that signs of the development of the condition were “possibly evident” by the mid 1980’s, and that onset had definitely occurred by about 1997. In his opinion neither the fall from the bunk or any other event or feature of Ms Xardia’s employment with the Navy contributed to the condition.
49. There is no medical opinion before us that the condition, or any exacerbation, was contributed to by Ms Xardia’s employment with the Navy.
50. Conclusion The medical evidence does not support a finding that Ms Xardia’s employment contributed to her conditions of schizophrenia or gender identity disorder. It follows that the Commission is not liable for Ms Xardia’s conditions of schizophrenia or gender identity disorder. We must therefore affirm the Commission’s decision.
I certify that the 50 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member A K Britton and Dr J D Campbell, Member
Signed: ...............................[SGD].......................................
Associate to Senior Member BrittonDates of Hearing: 21 January and 19 July 2010
Date of Decision: 20 August 2010
The Applicant was self-represented:
Counsel for the Respondent: Mr M Snell
(instructed by Dibbs Barker)
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