Apportionment & Revisiting Causation

“Can we say, in this case, that the cause of a cause is the relevant cause?” ― Johnny Rich, The Human Script

Let’s talk some more about reviews of injury pensions, and the deliberate mischief that SMPs and HR get up to. We believe that injured on duty pensioners are often subjected to an unlawful fresh assessment of their degree of disablement.  It is clear the inexperience of HR departments and SMPs leads some of them into thinking that on review, they can calculate degree of disablement from scratch.  They can’t.  And this is why.

At review, the only task of the SMP is to determine whether there has been any alteration in degree of disablement since the question was last decided. It’s like looking at a clock – it tells you the time now is so many hours, minutes or seconds different from the last time you looked. You don’t tell the current time by calculating from the big bang when the universe was created. The SMP is required to take the previous decision on degree of disablement as a given – as the starting point. He can’t second-guess the why or the how of the duty injury. He can’t try to find fault in the decisions made by the earlier decision-maker. Those decisions are, in law, final and not subject to question.

Some SMP think they can revisit these decisions and believe they are entitled to look again at the cause of the disablement – the ‘causation’ as it is known. Some SMPs forget they are not there to conduct a diagnosis, and are thus forbidden from speculating whether the disabling injury occurred as a result of the execution of the officer’s duty or from some other cause. The High Court has made it clear that causation can not be revisited, but some SMPs think they can ignore the law.

The consequence of such a root and branch departure from the strictures of the Regulations is so dramatic the consequences cannot be emphasised enough.  Once a SMP makes a mistake it condemns the former officer to a long drawn out legal battle to undo something that should never have occurred.  True to form, once a bad decision is made a Police Pension Authority will always blindly defend it to the end – even if they know they are wrong they seem incapable of a climbdown. It can take years to sort out.

So what prevents a SMP who has a casual disdain for the Regulations and case law from going back to medical records from birth and stating an injury was caused, in part, by you falling off your bicycle when you were 7 years old?

I’m not exaggerating.

In a recent case a SMP tried to make out that a former officer who had a mild episode of anxiety when he was just 7 had a ‘pre-existing condition’ and thus his PTSD some thirty years later was not solely cased by on duty incidents. This sneaky little ploy is called ‘apportionment’. It can be used to cut a band four pension down to a band one.

SMPs need to be told in no uncertain terms that they must comply with the law, which includes binding decisions made in the High Court.

In the Court of Appeal in the case of the Metropolitan Police Authority v Laws and the PMAB [2010] EWCA Civ 1099,  it was held that the SMP was not entitled when conducting a review under regulation 37 to re-open clinical judgements as to causation or apportionment made in earlier decisions under the 2006 Regulations.

To put this simply, the question of causation or apportionment can only be considered at the time of the original decisions, when the injury award was granted, or on appeal against the original decisions to a PMAB, or if a reconsideration is made under regulation 32. A SMP cannot, years later, trawl through medical and other records in an attempt to re-think and amend those final decisions.

Once decided, the cause of the injury or any application of apportionment is final and at review the SMP is not able to even remotely go anywhere near those matters.  Even when the SMP would like to have full medical records because they want the ‘full picture’  – whatever that means – they can’t.  It is the equivalent of open prejudice in the sight of the jury or bench. It may be due to the training doctors get – treat the whole person, look for all the causes, check out all the possibilities – but SMPs must put that training to one side when conducting a review. Once a SMP has seen medical records he shouldn’t have seen he can’t conveniently forget them – doctors are not trained to forget medical history however much they claim it won’t influence them.  By accessing records they are not lawfully entitled to it instantly corrupts and prejudices the decision he/she is supposed to exclusively focus on, which is whether there has been any alteration in degree of disablement.

In  the case of R (on the application of Pollard) v The Police Medical Appeal Board and West Yorkshire Police Authority [2009] EWHC 403, Silber J found that Regulation 37 does not enable the police authority to reach a different conclusion on the issues specified in Regulation 30(2)(a), (b) or (c).

But what happens when an SMP does what they aren’t allowed to do?  Inevitably complaints are made to the Pension Ombudsman. Happily, in the vast majority of instances the pensioner wins the case.

Here is a short, but typical, sample of three PO determinations:

1.

PO-828 [SMP] Dr Zubier found that Mr Diamond was “based on his level of functioning as a result of his fibromyalgia, … unfit for all work”. However, because he took the view that Mr Diamond’s Fibromyalgia was not caused by an injury on duty, Dr Zubier apportioned the injury award. This was not the correct approach to take under the Regulations

2.

87657/1 Despite having noted that they should not revisit causation, the PMAB’s ‘Detailed Case Discussion’ included a lengthy discussion on the likely causes for Mr Marsden’s symptoms. The PMAB stated that they found it bizarre that they were not allowed to revisit causation, but said that they accepted that this was required by law. Having discussed likely causation at some length (and made it obvious that they disagreed with the previous decision), the PMAB then failed to ask the question they were required to; namely, whether there had been any substantial alteration in Mr Marsden’s condition since 2006. The PMAB instead moved on to consider whether and what type of roles Mr Marsden might be able to undertake. They had asked NPA to supply details of alternative roles Mr Marsden might be expected to undertake. However, the record of their discussion does not suggest that they asked whether those roles had become accessible to Mr Marsden since the 2006 review, either by changes in his medical condition or changes in the roles themselves. I find, therefore, that the PMAB’s consideration of Mr Marsden’s case was flawed and that this should have been apparent to NPA.

3.

84102/2 It is clear that the SMP based her report on medical evidence which predated the date of the last review, that both the SMP and the PMAB were questioning the validity of the original decision taken by MPA to award Ms Beale an injury benefit. In addition, although the PMAB noted “Ms Beale could work 50% of the time (less than 20 hours per week) in an appropriate environment with necessary adaptations for wheelchair access”, it then failed to ask the question it was required to; namely, whether and what type of roles Ms Beale might be able to undertake and whether those roles had become accessible to Ms Beale since the 2001 review, either by changes in her medical condition or changes in the roles themselves. I find, therefore, that the PMAB’s consideration of Ms Beale’ case was flawed and that this should have been apparent to MPA. I find that it was maladministration for the MPA to reduce Ms Beale’s benefit on the basis of a flawed review.

I hope the reader sees why IODPA needs to exists?  Because of the bungling machinations of HR drones and SMPs, disabled former officers face the lifetime prospect of entanglement with Police Medical Appeal Boards, complaints to the Pension Ombudsman, and even judicial reviews in the High Court. It can be a full time career to have the misfortune of being awarded an IOD.

Perhaps all who join the police should be told, ‘Welcome, and if you are ever injured on duty you’ll get what’s due to you. It won’t be sympathy, assistance, care or concern. You’ll be put on light duties, half pay, messed about, kept in the dark about your rights and then booted out. You will have to fight tooth and nail to get an injury award and then you will be hounded forever with endless unlawful reviews. Expect to spend the rest of your life dealing with the fallout created by incompetent, poorly trained, often downright nasty HR types, and SMPs’.

Do you think that, knowing this is a very real prospect, a fresh recruit would think twice about following a suspect in a foot chase down a dark alley, or confront the violent drunk who is brandishing a fence post, or try to stop a careering stolen vehicle?

Perhaps if they knew the truth they might think its better to stay safe than risk being injured and cast out with an IOD.