Stanyer and Comcare

[2006] AATA 450

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2006] AATA 450

ADMINISTRATIVE APPEALS TRIBUNAL          № V2004/622

GENERAL ADMINISTRATIVE  DIVISION

Re:            EDWARD ALFRED STANYER

Applicant

And:         COMCARE

Respondent

DECISION

Tribunal:       Mr Egon Fice, Member

Dr P.D. Fricker, Member

Date:24 May 2006

Place:Melbourne

Decision:The Tribunal affirms the decision under review.

(sgd) Egon Fice

Member

COMPENSATION – permanent impairment – applicant entitled to compensation for permanent impairment - injury occurred and became permanent before the commencement of the Safety, Rehabilitation and Compensation Act 1988 (SRC Act) - entitled to receive compensation of a lump sum in respect of impairment under the Commonwealth (Compensation Government Employees) Act 1971 - claim for lump sum pursuant to s 24 and s 25 of the SRC Act defeated by s124(3)of the SRC Act

Commonwealth (Compensation Government Employees) Act 1971   ss 39, 79

Safety, Rehabilitation and Compensation Act 1988 ss 24, 25, 124(3)(b)(iii)

Blackman v Australian Telecommunications Corporation (1990) 12 AAR 11

Comcare v Maida (2002) 36 AAR 69

Comcare Australia v Mathieson (2004) 79 ALD 518

Department of Defence v West (1998) 85 FCR 491

Hoyle v Telstra Corporation Limited (1997) 75 FCR 390

REASONS FOR DECISION

24 May 2006  Mr Egon Fice, Member

Dr P.D. Fricker, Member

1.      On 23 March 1981 Mr Edward Alfred Stanyer's claim for anxiety and depression was accepted by the Commonwealth under the Commonwealth (Compensation Government Employees) Act 1971 (the 1971 Act).  On 3 December 2002 Mr Stanyer lodged a claim for permanent impairment due to anxiety and depression.  This claim was denied by Comcare in a determination made on 4 June 2003.  On 26 March 2004 an authorised review officer of Comcare affirmed the decision of 4 June 2003.  That reviewable decision brings Mr Stanyer to this Tribunal. 

BACKGROUND

2.      Mr Stanyer joined the Australian Federal Police on 29 December 1960 where he served until his retirement on 25 February 1982.

3.      In the course of his employment as a Federal Police officer, Mr Stanyer worked for a period of time in Moscow where he said he suffered from depression, anxiety and severe migraine headaches.  He went to London in 1977.  While there he suffered from dizziness and consulted a doctor.  He was diagnosed with dangerously high blood pressure and was given a medical certificate.  Upon returning to Moscow, he submitted the medical certificate to his superiors.  Contributing to his depression was the death of his parents, a year apart. 

4.      On his return to Melbourne Mr Stanyer was assigned to the VIP Protection Squad which protected high profile people such as the Prime Minister and Governor‑General.  This involved working long hours under great pressure and Mr Stanyer said that after six months he felt that he needed to take leave.  He was seen by Dr B. Cohen who reported on 19 March 1981 that he had first seen Mr Stanyer in August 1980.  Dr Cohen noted that Mr Stanyer complained of insomnia, night sweats, migraine headaches and feelings of tiredness.  Dr Cohen also reported that Mr Stanyer was tense and depressed and unable to cope at work.  In a medical report dated 18 November 1980, Dr S. Beasley noted that Mr Stanyer was suffering from anxiety and depression.

5.      In a further report dated 19 June 1981, Dr Cohen said: …I feel that his previous experiences as an escort to high Government Officials and his personality, provide a background to which the episode he described was the “last straw" which precipitated his depressive state.  Dr Cohen also noted that he could not give a prognosis for further recovery and that Mr Stanyer was not fit to resume work at that time.  He thought that given time and patience, Mr Stanyer would probably be able to resume his duties at some future time.

6.      Mr Stanyer's sick leave credits expired on 10 June 1981 and he was examined again by the Commonwealth Medical Officer on 15 June 1981 in order to determine his fitness for continued duty.  The medical officer recommended further sick leave pending a report from a specialist.  The report also indicated that Mr Stanyer's symptoms had improved slightly and that he was considerably better than he had been 12 months earlier. 

7.      Mr Stanyer was then referred to a psychiatrist, Dr I. Jones, who saw him on 18 February 1982.  Dr Jones provided a report dated 5 March 1982.  According to the history taken by Dr Jones, Mr Stanyer said that he started to develop psychiatric symptoms for the first time while in Moscow, when he became depressed.  Mr Stanyer found the irregular hours tedious, he developed headaches and started to drink heavily.  Dr Jones noted that Mr Stanyer was not drinking at the time that he saw him.  Dr Jones also reported that Mr Stanyer was intolerant of the city and much happier when in the country.  He apparently told Dr Jones that he developed acute symptoms of anxiety when he visited Melbourne.  Dr Jones was of the view that Mr Stanyer was sufficiently depressed to warrant admission to hospital and, although he arranged for Mr Stanyer’s admission, Mr Stanyer did not attend the hospital.  Apparently, Mr Stanyer said that he was not covered by health insurance and that he was unable to obtain exemption from payment because his income was slightly too high.  He indicated to Dr Jones that he might come in at a later date.  Dr Jones concluded in his report that Mr Stanyer's psychiatric symptoms were such as to preclude him working efficiently in the Australian Federal Police and suggested that he be superannuated.  He also said that it was likely that Mr Stanyer's depression would improve but it was unlikely that he would become sufficiently well to return to police duties.  In a report dated 11 June 1982, Dr Jones recorded that Mr Stanyer was likely to be subject to recurrent episodes of depression, and that a decision to recommend invalidity retirement was a reasonable one.

8.      By a determination made on 20 August 1982, a delegate of the Commissioner for Employees' Compensation determined that Mr Stanyer had contracted a disease, namely anxiety and depression; and his employment was a contributing factor to the contraction of the disease.  The determination also concluded that the Department of Administrative Services was liable to pay compensation in respect of Mr Stanyer's condition. 

9.      On 1 May 2002 and again on 26 June 2002 Comcare wrote to Mr Stanyer advising him that there would be a change in his fortnightly incapacity payments which would take effect when he turned 65 years of age on 20 December 2002.  The letters advised that if Mr Stanyer's gross compensation entitlement was reduced to the prescribed figure, which was then $77.04 per week or less, he may be entitled to redeem his compensation payments through a lump sum.  Mr Stanyer responded to the letter of 26 June 2002 seeking further information regarding a lump sum payment.  However, by letter dated 2 December 2002, Comcare informed Mr Stanyer that when he reached the age of 65 years on 20 December 2002, his weekly entitlement would be reduced from $413.91 to $103.47 and that it would remain fixed at that rate.  Therefore, presumably, Mr Stanyer was not entitled to redeem his compensation payments by way of a lump sum. 

10.     Confronted with a substantial reduction in his incapacity payments, Mr Stanyer sought legal advice and on 7 April 2003 he lodged a compensation claim for permanent injury.  Dr P. Carter, who was Mr Stanyer's treating general practitioner, completed Part C of the application and noted that the diagnosis of his current condition was anxiety and hypertension. 

11. In a letter dated 4 June 2003, Comcare informed Mr Stanyer that its view was that his condition had been permanent before 1 December 1988. Because of that, a claim for permanent impairment had to be considered under the provisions of the 1971 Act. Comcare said that the section relating to certain losses under the 1971 Act was s 79, which dealt with psychiatric injuries; and that a condition such as his was not included in the injuries which attracted compensation for lump sum loss assessment. Therefore, in accordance with s 124(3)(b)(iii) of the Safety, Rehabilitation and Compensation Act 1988 (the 1988 Act), Mr Stanyer had no entitlement to receive compensation for permanent impairment. 

CONSIDERATIONS

12. The 1971 Act was repealed on the effective date of commencement of the 1988 Act which was 1 December 1988. The 1988 Act contains transitional provisions, the relevant section for the purposes of Mr Stanyer 's application being s 124(3), which provides:

124(3)     A person is not entitled to compensation under section 24 or 25 in respect of a permanent impairment, or under section 17 in respect of the death of an employee, being an impairment or death that occurred before the commencing date, if:

(a)the person received compensation of a lump sum in respect of that impairment or death under the 1912 Act, the 1930 Act or the 1971 Act; or

(b)the person was not entitled to receive compensation of a lump sum in respect of that impairment or death:

(i)where the impairment or death occurred before the commencement of the 1930 Act—under the 1912 Act;

(ii)where the impairment or death occurred after the commencement of the 1930 Act but before the commencement of the 1971 Act—under the 1930 Act as in force when the impairment or death occurred; or

(iii)in any other case—under the 1971 Act as in force when the impairment or death occurred.

13. As Mr Stanyer's impairment occurred on 27 August 1980, he is not entitled to compensation under s 24 or s 25 of the 1988 Act in respect of permanent impairment if he was not entitled to receive compensation by way of a lump sum in respect of that impairment under the 1971 Act as it was in force when the impairment occurred.

14.     Section 39 of the 1971 Act provided for lump sum payments of compensation for the loss of particular functions or limbs, or part of functions or limbs.  No lump sum payment of compensation was available for psychological impairment.  There is no dispute about that point. 

15. However, according to Mr Stanyer, he now suffers from post traumatic stress disorder (PTSD) and also from impotence. As far as the impotence is concerned, Mr Stanyer submitted that this dysfunction was compensable under the 1971 Act; and therefore the restrictions set out in s 124(3) of the 1988 Act do not apply. Further, Mr Stanyer submitted that because he has now been diagnosed as suffering from PTSD, there has been a change in the underlying patho‑physiological conditions resulting in a change to the impairment he now suffers.

16.     There can be no doubt about the fact that whatever label was attached by medical practitioners to Mr Stanyer's accepted psychological injury suffered on 27 August 1980, that injury has continued from that date to the date of this hearing.  The word permanent is defined under the Act to mean likely to continue indefinitely.  There was no dispute about the fact that Mr Stanyer's psychological injury is permanent.  Dr Dush Shan, a psychiatrist, who examined Mr Stanyer on 4 October 2004, confirmed that Mr Stanyer's impairment was permanent.  Furthermore, Mr G. Foenander, a clinical psychologist, examined Mr Stanyer on four occasions between 18 May 2005 and 19 July 2005.  According to Mr Foenander, the acute stress disorder suffered by Mr Stanyer in 1980 was a precursor of PTSD and that the diagnosis of PTSD should have been made after his symptoms persisted for more than three months.  Given that in his opinion, Mr Stanyer continues to suffer from PTSD, it was not surprising that Mr Foenander confirmed, in cross‑examination, that Mr Stanyer's condition, and accordingly his impairment, became permanent in 1980.  It is also significant that in the written determination delivered by the delegate of the Commissioner for Employees' Compensation on 20 August 1982, in respect of the anxiety and depression claimed by Mr Stanyer, the delegate determined that Total incapacity for work resulted from the disease on 27 August 1980.

17.     It is clear that because Mr Stanyer was wholly incapacitated for work prior to the commencement of the 1988 Act, there was an entitlement to compensation under s 39(3) of the 1971 Act; and in fact he has been receiving that compensation since the determination was made on 20 August 1982.  If, as the Full Court of the Federal Court pointed out in Hoyle v Telstra Corporation Limited (1997) 75 FCR 390 at 391, Mr Stanyer ceased to be totally incapacitated at some time after the commencement day of the 1988 Act, section 124(3) might not preclude entitlement to compensation under s 24 of the 1988 Act. That follows from the following statement made by the Court at 394:

Upon analysis of the whole of s 124, we consider that it is clear that the Parliament proceeded on the basis that, where the entitlement to compensation under the Compensation Act has a relevant nexus with a period before the Commencing Day, the appropriate general principle should be that an employee is not to be deprived of any compensation that would have been payable under the 1971 Act but for its repeal, but is not to be entitled to any greater compensation than would have been payable under that Act.

18.     The problem that seems to have troubled the Federal Court following the case of Blackman v Australian Telecommunications Corporation (1990) 12 AAR 11 is whether, where impairment worsens significantly, there is a new impairment within the meaning of the Act. The Full Court in that case rejected that proposition. It said (at 14):

The scheme of the Act, in particular of ss 24 and 25, is not that as a disease progresses, the aggravation of its consequences constitutes a series of new impairments, each giving rise to a separate liability to pay compensation.  If that were so, then small increments of aggravation of the impairment would not be compensable at all; for under s 24(7) there is no right to compensation if the degree of permanent impairment is determined to be less than 10 per cent.  As an impairment worsens, further rights to compensation may accrue under s 25, but not because there is another distinct impairment.

19.     The authorities referred to above were considered by the Full Court of the Federal Court in Department of Defence Comcare v West (1998) 85 FCR 491. In that case, Merkel J concluded, at 512:

A loss of the entitlement conferred under ss 24 and 25 by reason of s 124(3) only occurs when the permanent impairment the subject of the claim is the permanent impairment that the employee suffered as at 1 December 1988.  On my reasoning, and that of Burchett J in Brennan, where a change in a permanent impairment occurring after the commencement date is such that, quantitatively and qualitatively, it is properly to be characterised as a further or new impairment occurring after the commencing date it is compensable by a lump sum payment under ss 24 and 25. That conclusion is consistent with the language used and with the statutory policy to be discerned from ss 24, 25 and 124 of providing benefits to workers in respect of a further permanent impairment that occurs after the commencing day irrespective of whether the injury that resulted in the impairment occurred before or after the commencing day.  It also avoids capricious and arbitrary outcomes under workers' compensation legislation, which is of a remedial nature and should be construed liberally: see Brennan at 559 and the cases there referred to.

20.     Mansfield J in Comcare v Maida (2002) 36 AAR 69 pointed out that the decision in West was the decision which the Tribunal ought to follow. Mansfield J also added, at para 25:

However, the nature and extent of the loss of use or malfunction is critical to determining whether an impairment has changed to such an extent that it is a further or new impairment.  Merkel J accepted that gradual worsening does not result in a series of separate or further impairments.  Questions of fact and degree will be involved in making a qualitative assessment as to whether, in a particular case, the permanent impairment existing as at 1 December 1988 has deteriorated to an extent that it is properly to be characterised as a further or different impairment from that which existed at the commencement date.

Mansfield J also pointed out that Heerey J, who dissented in West, nevertheless made an exception of the case where an employee's condition becomes, after 1988, so different in its pathology or in its effect on the employee, that an affirmative answer can be given to the question that there was a new impairment which occurred after 1988. 

21.     The decision in West was also applied more recently by Weinberg J in Comcare Australia v Mathieson (2004) 79 ALD 518. Although his Honour expressed some reservations about the expression patho-physiological condition used by Merkel J in West, he accepted that Merkel J must have chosen that expression after careful consideration (at 529).

22.     Mr Stanyer's principal contention, put by Mr De Marchi his solicitor, was that there has been an increase in Mr Stanyer's disability; a quantitative and qualitative increase that can be measured and was measured by Mr Foenander, and that Mr Stanyer now suffers from PTSD. 

23.     According to Mr Stanyer, in about July 1980 he took six weeks' recreation leave.  He said that his nerves were very bad at the time.  He hoped he would feel much better after a rest.  However, after only two days back at work, he became very depressed and he consulted Dr Cohen at the Kyneton Hospital.  He was diagnosed with depression and anxiety. 

24.     According to a report prepared by Dr Cohen dated 19 March 1981, he first saw Mr Stanyer in August 1980.  He said that Mr Stanyer was complaining of insomnia, night sweats, migraine headaches and feelings of tiredness.  He told Dr Cohen that he was tense and depressed and unable to cope at work.  In a further report dated 19 June 1981, Dr Cohen reported that, although Mr Stanyer had been treated with Sinequan and Fiorinal for headaches, and although he improved at first, his state seemed to have remained unchanged for some months.  Mr Stanyer told Dr Cohen that he was unable to face up to work, and that he felt insecure and inadequate to face up to the pressures he had experienced in the past.  In a report provided by Dr S. Beasley, which appears to have been made on 18 November 1980, Dr Beasley said that Mr Stanyer was experiencing anxiety symptoms and feelings of loss of control, sweating, headaches and uncomfortableness whenever away from his home.  Upon examination, Mr Stanyer displayed evidence of a significant anxiety state.

25.     Mr Stanyer was examined by Dr Jones on 18 February 1982.  In a report dated 5 March 1982, Dr Jones reported that Mr Stanyer showed symptoms of depression, although the extent of that depression was unclear.  He also reported that Mr Stanyer suffered from prominent symptoms of anxiety, appeared to be intolerant of city conditions and felt that, while he enjoyed working in the police force for many years, he had lost interest in that occupation.  In his opinion, Mr Stanyer's psychiatric symptoms were such as to preclude him from working efficiently in the Australian Federal Police and he suggested that he be superannuated.  Dr Jones recommended that Mr Stanyer be hospitalised and he had arranged for his admission; but Mr Stanyer did not attend the hospital, nor did he contact Dr Jones again.  In a further report dated 11 June 1982, Dr Jones considered that Mr Stanyer's condition was being contributed to in a substantial degree by heavy drinking at that time.  Dr Jones also noted that it was probable that a person of different personality would have been affected only temporarily by the adverse experiences described by Mr Stanyer.  In his opinion, Mr Stanyer was likely to be subject to recurrent episodes of depression and in his view the decision at that time to recommend invalidity retirement was a reasonable one. 

26.     In cross‑examination Mr Stanyer agreed that the symptoms described by Dr Cohen, Dr Jones and Dr Beasley were symptoms which he still has at the present time.  He agreed that he was not as bad as he was, possibly 20 years ago; but he described himself as still being bad.  Mr Stanyer was also asked to confirm that, other than having medication initially, he had no other treatment for his psychiatric condition.  He said that was correct.  That is also supported by Dr Carter's report of 3 January 2004 where he said that Mr Stanyer had been reviewed by him regularly over the past 5 years and that during this time Mr Stanyer had not taken any medication apart from occasional light social alcohol which he found useful for controlling his anxiety symptoms.  In that report, Dr Carter also set out the following symptoms continued to be experienced by Mr Stanyer:

1.Headaches on a weekly basis, lasting for a day and responding to Disprin.

2.Sweats/stomach upsets/anxiety attacks one or two times a month.

3.Poor sleeping.

4.Poor memory/concentration.

5.Short temper/anger which he minimises with avoidance behaviour and procrastinations.

Dr Carter also said that those symptoms have now remained constant for some years and it was reasonable to say that his condition had stabilised.  He also said that it was reasonable to speculate that Mr Stanyer will continue to experience those symptoms into the foreseeable future.

27.     In the course of his cross‑examination, Mr Stanyer was taken through, in some detail, how he spends his time given that he is not working.  Mr Stanyer said he has done a farming course on weeds at the Fairfield Institute.  He has also completed a course on feed for animals.  He indicated that he has done 3 or 4 courses in total.  Although they did not require daily attendance, they were courses which only lasted for a number of days, and they involved one day per week or per fortnight.  He is also a member of The Returned and Services League (RSL).  Mr Stanyer said that he attended the RSL Club once every month or perhaps 6 weeks.  He said that he would go there every week at one stage, but not so much now.  His involvement was purely social.  He also said that he was a member of a car club and that he owned two old vehicles, one of which was being restored.  He lives on a farm which, as we understood it, was not owned by him but which he appears to manage on a day‑to‑day basis.  He does get assistance from a friend to maintain the account books, particularly with those matters dealing with taxation.  He lives on his own at the farm.  He does have a housekeeper who cleans the house once a week.  The housekeeper also does the laundry, dishes, floors and ironing.  He does his own shopping and he cooks for himself.  He said that he does attend meetings and social engagements.  He also confirmed that he is a member of the Masonic Lodge and that he held an office with that organisation.  He holds a gun licence and he also has a driver's licence and drives a motor vehicle.  He did say that he had started to lose interest in the clubs and social events in which he use to participate previously.  This has been happening over the last 4 or 5 years.  Mr Stanyer also admitted that he was about to attend a Christmas function with a group of 10 or 12 people who are his friends.

28.     At the conclusion of Mr Stanyer's evidence, Ms McMahon of counsel, who appeared for Comcare, submitted that there was no evidence from Mr Stanyer to demonstrate either a quantitative or qualitative change in his condition before or after 1 December 1988.  In fact that seemed to be the opinion expressed by Dr Shan in his report dated 4 October 2004.  Dr Shan said:

While the patient reports ongoing symptoms at a subjective level, at an objective level, there is very little evidence of impediment to functioning.  In fact, there is little to distinguish the patient from the average retired gentleman farmer.  He attends the RSL Club, is a member of Freemasons and an Officer, and also belongs to a Vintage Car Club.

Dr Shan also reported that Mr Stanyer was capable of contributing to the maintenance of his cattle property at Lancefield; that he operated a motor vehicle; and that while he reported that his alcohol consumption had been excessive for some years, there was no history of a drink/driving offence and no history of medical detriment due to alcohol consumption.  On examination, Dr Shan said that Mr Stanyer did not appear exceptionally anxious or irritable during the interview.  There were no external manifestations of anxiety such as a tremulous voice or shaking hands.  Mr Stanyer also reported to Dr Shan that he was now better than he was 20 years ago even though he gets episodes of sweating, headaches and that he has concentration problems.  Dr Shan also noted that Mr Stanyer told him that he was not afraid to live by himself on the property and he was not concerned that there was no one nearby if something happened to him.  In his opinion, Mr Stanyer has a longstanding tense and isolative personality.  Other than that, Mr Stanyer could be considered to be showing evidence of a mild chronic mood disorder.  Using the diagnostic convention set out in the American Psychiatric Association’s Diagnostic and Statistical Manual of Mental Disorders 4^TH Edition (DSM‑IV), according to Dr Shan, the appropriate label which should be attached to Mr Stanyer's psychiatric problem is dysthymic disorder. 

29.     Dr Carter, who has been treating Mr Stanyer for some 17 years as his family doctor, confirmed in cross‑examination that there had been little change in Mr Stanyer's symptoms since he first saw him.  If anything, there has been a mild diminution in the severity of his problems.  Furthermore, Dr Carter described Mr Stanyer as a light social drinker, according to what Mr Stanyer had reported to him.  He was not aware of any reports of Mr Stanyer having his driver's licence suspended as a consequence of drinking.  Dr Carter confirmed that Mr Stanyer was not presently using any medication for his psychiatric condition.  He also confirmed there was no exacerbation of his psychiatric condition.  Dr Carter confirmed that Mr Stanyer's condition was permanent and that there had been very little change from the outset.  In fact, there may have been a slight improvement in his condition. 

30.     Mr Foenander, who provided a report dated 24 July 2005, concluded, after extensive psychological testing, that Mr Stanyer met the criteria for PTSD, alcohol dependence and mild neuro‑cognitive disorder not otherwise specified.  However, according to Mr Foenander those conditions have been present at least since 1988 and they seem to have gradually increased since then. 

31.     While we have no reason to doubt that the Mr Stanyer’s answers to questions raised in the tests conducted by Mr Foenander are true, from an objective viewpoint, the weight of the evidence is against there being significant change in Mr Stanyer's condition since his condition first occurred.

32.     According to Mr Foenander, the diagnosis of PTSD should have been made after Mr Stanyer's symptoms had persisted for more than three months.  He said this was not recognised at the time and instead he was diagnosed with manifest symptoms of anxiety and depression.  Therefore, the primary diagnosis was not made and he was treated for secondary or co‑morbid symptoms of anxiety and depression.  However, even if Mr Foenander is correct about this, and we have some doubts about that, there was nothing in Mr Foenander's evidence pointing to a qualitative and quantitative change in the impairment suffered by Mr Stanyer as a consequence of his illness.  Mr Foenander concluded that on the basis of his tests and clinical assessment, there has been a worsening of his condition since 1988.  However, as we have already pointed out, the objective evidence is against this finding.  In any event, Mr Foenander did not suggest there had been a substantial variation or a significant deterioration in Mr Stanyer's permanent impairment; and therefore it is simply not possible to conclude that Mr Stanyer now suffers from a permanent impairment which is different to that which existed prior to the variation or deterioration. 

33.     As far as Mr Foenander’s claim that Mr Stanyer now suffers from alcohol dependence is concerned, the objective evidence is against such a finding.  Dr Carter, in cross‑examination, confirmed that there was no physical manifestation that Mr Stanyer suffered from the effect of alcohol misuse or dependence.  Because Dr Carter has treated Mr Stanyer for 17 years, we are confident that if Mr Stanyer suffered from alcohol dependence, Dr Carter would have offered that opinion.

34.     Mr Foenander also said in evidence that his tests disclosed a mild neuro‑cognitive disorder.  The essential features of this affliction include impairment to memory, attention, language and executive functioning.  According to Mr Foenander, the disorder is due to alcohol abuse.  However, the objective evidence was that there was no alcohol abuse.  It was pointed out to Mr Foenander that he did not conduct a mental state examination of Mr Stanyer prior to 1988 and that therefore he could not determine Mr Stanyer's mental status or his psychological condition in 1988.  He agreed with that.  Nevertheless, Mr Foenander maintained that there had been a change and said that he had compared Mr Stanyer's pre‑morbid level of functioning, which he had measured, to his current level of functioning and that there was a change that was clinically significant.  He agreed that he had based this finding on the fact that he had estimated Mr Stanyer's pre‑morbid level of functioning.  When pressed on how he could say there had been a worsening of Mr Stanyer's condition since 1988 when he did not know what his condition was prior to that time, Mr Foenander replied:

Well, one would presume that there has been a worsening because of his continued use of substance – of alcohol and his current mental function now.

35.     Dr Shan, after examining Mr Foenander's report of 21 July 2005, in a report dated 5 December 2005 said that he disagreed with Mr Foenander regarding Mr Stanyer's cognitive functioning.  He said that he found it difficult to reconcile Mr Foenander's findings with the description of Mr Stanyer's actual level of present activity and functioning, which was the same as that indicated by Mr Stanyer when he was seen by him.  In his opinion, the objective evidence was not consistent with Mr Foenander's finding.  We agree with that conclusion. 

36.     Finally, Mr Stanyer submitted that he was entitled to compensation because he now suffers from impotence.  Section 64 of the 1988 Act provides that a claimant may apply to the Tribunal for review of a “reviewable decision”.  The term “reviewable decision” is defined in s 60 of the 1988 Act and it means a decision made under s 38(4) or s 62.  There has been no decision under these sections of the 1988 Act in respect of Mr Stanyer’s claimed impotence and therefore the Tribunal has no jurisdiction to deal with this claim.  Even if we are wrong about that, Dr Carter, in his report of 3 January 2004 recorded that Mr Stanyer first presented in 1979 with a sexual dysfunction.  There is no indication in that report, or in his further report dated 8 January 2006, that Mr Stanyer continues to suffer from sexual dysfunction.  We did not have before us any other medical report where this problem has been recorded.  Given that Dr Carter has been Mr Stanyer’s family doctor for the past 17 years, if this were an ongoing problem; we would have expected Dr Carter to have said so.  For that reason, we cannot be satisfied, that Mr Stanyer suffers from impotence.

CONCLUSION

37. The evidence does not disclose a change in the underlying patho‑physiological condition that Mr Stanyer suffered from in 1980. Nor is there any evidence of a worsening of his original impairment. It follows that there has been no quantitative or qualitative change in Mr Stanyer's condition. Furthermore, the evidence strongly points to the fact that Mr Stanyer's condition became permanent prior to December 1988. Therefore, in our opinion, Mr Stanyer is not entitled to compensation under s 24 or s 25 of the 1988 Act in respect of his permanent impairment because that impairment occurred before the commencement date of the 1988 Act and, at that time, Mr Stanyer was not entitled to receive compensation by way of a lump sum in respect of that permanent impairment under the 1971 Act.

38.     Accordingly, the decision made by the review officer on 26 March 2004 should be affirmed.

I certify that the thirty‑eight [38] preceding paragraphs are a true copy of the reasons for the decision of:

Mr Egon Fice, Member

(sgd)       Catherine Thomas

Clerk

Dates of hearing:  6 December 2005

6 April 2006

Date of decision:  23 May 2006
Solicitors for the applicant:          Mr D. De Marchi, De Marchi & Associates
Counsel for the respondent:        Ms A. McMahon
Solicitors for the respondent:       Phillips Fox