It is no understatement to say that without Stephen Turner (versus PMAB 2009) and Belinda Laws (versus PMAB 2009 & Appeal Court 2010), police injury on duty pensioners would be in an extremely precarious position with police pension authorities riding roughshod over the regulations without impedance. There was a wave of successful judicial reviews after them (regarding automatic reduction to band 1 at aged 65) but Turner and & Laws reaffirmed the regulations and arguably gave others the strength to challenge unlawful guidance. They are truly the 0.001% who stood up and were counted and their efforts are held high in esteem. The case-law can be found here
But what does Turner and Laws mean?
Turner V PMAB concerned substantial change and apportionment (the level of the index injury causing the degree of disablement when other non-IOD injuries are present). It can be summarised into these points:
- Causation can not be revisited at review.
- A review of the degree of disablement can only occur if there is medical evidence of an alteration to the condition.
- Apportionment can only be a factor if there was apportionment at the original decision.
- No other illness can be considered at review other than that on the original certificate of disablement.
- New skills or functional capacity can be considered if substantial alteration has been evidenced.
Laws reaffirmed Turner and, as it was challenged by the police authority and went to the appeal court, it is now the primary case-law that defines the application of the regulations at review.
- A review does not allow the SMP or the Board to redetermine the merits of any earlier decision. They are only to decide whether there has been an alteration since the last decision.
- The earlier decision as to the degree of disablement is a given; and the duty – the only duty – is to decide whether, since then, there has been a change: “substantially altered”.
- Acquisition of new skills can be a factor that determines how a disability of a duty injury affects the capability of work. But the effect on earning capacity must be proven and more than speculative.
- The clear legislative purpose of the regulations is to achieve a degree of certainty from one review to the next such that the pension awarded does not fall to be reduced or increased by a change of mind as to an earlier clinical finding where the finding was a driver of the pension then awarded.