In its Decision of 18 August 2016, Senior Members Toohey and Poljak of the Administrative Appeals Tribunal decided that Comcare’s decision not to compensate Mr John Chambers for a psychological condition and epilepsy should be set aside and that Comcare should compensate him for those conditions.
Compensation for psychological condition
Mr Chambers was employed for 15 years by the Australia Securities and Investment Commission (ASIC). He lodged a claim for compensation under the Safety, Rehabilitation and Compensation Act 1988 for epileptic and non-epileptic seizures, anxiety and depression and fatigue attributed to sustained tension in his workplace. He described unjustifiable and inappropriate pressure from senior managers regarding his team members’ performance, his own performance rating and then his transfer to a position with no staff management responsibilities.
The Tribunal found that they were not satisfied on the evidence that Mr Chambers’ mid-year performance assessment was either reasonable administrative action, or that it was taken in a reasonable manner. The Tribunal also found that the decision to transfer Mr Chambers, even assuming it could properly be characterised as administrative action, was not in their view reasonable administrative action or an action that was taken in a reasonable manner.
Evidence was given at the hearing about the complex interaction between the psychological condition and the onset of epilepsy. Reference was made to extensive literature that suggested a complex and possibly “bidirectional relationship” between epilepsy and anxiety and depression.
While it was accepted that stress does not cause or accelerate an underlying pathological process causing a neurocognitive impairment or epilepsy, there was evidence that seizures are more likely to occur, and neurocognitive function is likely to be less effective, in the setting of stress, especially when associated with impaired sleep.
The Tribunal was satisfied that it was more probable than not that the stress associated with Mr Chambers’ employment aggravated or made symptomatic an underlying condition or vulnerability.
It was accepted that the Tribunal could reasonably infer in the circumstances that his employment contributed to a significant degree to rendering his predisposition, or previously asymptomatic condition, symptomatic.
This decision is important not only in determining that Comcare is liable to compensate Mr Chambers for his conditions, but also for the discussion about the relationship between stress and the aggravation it may cause to an underlying neurological condition.