Polemic on the Poll Results

“The fact that man knows right from wrong proves his intellectual superiority to the other creatures; but the fact that he can do wrong proves his moral inferiority to any creatures that cannot.”
― Mark TwainWhat Is Man?

We asked the question in a previous post whether a person who is disabled in relation to earning capacity and then succumbs to a persistence vegetative state should have his life further questioned by a police pension authority?

The question was asked without real context.  We deliberately didn’t explain what the Regulations allow and we purposely left some cross-over with the possible answers; we wanted people to answer with what they instinctively thought was right.

This human touch is sorely lacking in those who administer injury awards. All too often HR managers and SMPs entirely neglect to consider the effects of their actions on others. A few of them seem to be be completely devoid of any moral compass.

For example, Staffordshire thinks financial constraints are a legitimate reason to review and a questionnaire is the way to vet whether the expense of sending someone in front of a SMP is worth the £2000+ expense payable to the doctor for his arguably pre-determined work to reduce the person’s award.

The procedures laid down in the Regulations have to be applied with individual assessment in each case at each stage. This is being ignored in certain forces, and we need look no further for examples than at Knowles & Wirz of Northumbria and Andrew Colly & DCC Baker & Staffordshire.

Any action has to be justified; and it is not sufficient to ask oneself whether the underlying procedure is legal. In respect of the review of degree of disablement there is a ‘shall’ in the Regulations which ignorant or ill-intentioned managers interpret as giving them carte blanche to review whoever they wish, whenever they wish, as often as they wish. Their lack of moral compass allows them to forget that the so-called ‘duty to review’ is strictly limited and contains a wide power of discretion.

In our earlier blog we gave the example of a poor man placed in a coma. Interestingly, 89% of respondents to our survey think it best to leave the man alone.  Only 8% think that it is appropriate to review and reduce the man’s injury award.  No person voted to remove the injury award.

We think it is the sadly indoctrinated view of the majority involved with, and in receipt of, an injury award that reviews only exist to reduce people.  As a charity one of our aims is to dispel this myth. We don’t think it right that those with an injury award have to live their lives in the shadows, frightened of attracting the gaze of the PPA and always prepared for the manilla envelope to drop in their doormat announcing a review.

Such statistics as do exist – and it needs to be noted that they had to be obtained by lengthy Freedom Of Information requests from forces – show that over the last five years, when reviews have been held, then 83% result in a decision of no alteration in degree of disablement. Some 6.2% produced an increase in pension payment, whilst 10.29% saw the pensioners concerned reduced in banding.

The fear of reviews has much to do with the intrusiveness and uncertainty of the process itself, together with a well deserved and natural suspicion that in some forces the entire process is unlawfully constructed and is indeed intended to manipulate a reduction in payment.

We in IODPA think there are too many reviews, and too many of them are pointless and should never have been held. We are not against lawful reviews, but we are firmly against mass reviews and would want to see scheme managers realise they must exercise discretion in deciding whether a review is appropriate.

Turning again to our survey, why didn’t anyone vote for the award to be taken away in its entirety? Was it considered to be morally wrong or did all the participants have in mind that there are very particular and extremely rare circumstances where an injury pension can be ceased?  Regulation 43 tells us that ‘. . . a pension or allowance shall be payable for life’ yet we know that some forces have threatened pensioners with suspension or even cessation of their injury pension.

In some instances these threats have been carried through – at least only for so long as it takes our legal representatives to explain to the PPA concerned the error of their ways.

We have witnessed SMPs who concocted entirely unlawful rationale that an individual should never have been granted an injury award in the first place. We have seen HR managers issue wholesale threats to pensioners that there injury pension could be reduced or suspended if they fail to complete a questionnaire. We have gasped in disbelief when a PPA has issued similar threats to pensioners who had the temerity to refuse to allow unrestricted access to their sensitive medical records.

It is no small wonder then that IOD pensioners generally worry so much about the security of their injury pension income.

Of late, there has been a new addition to the inventive fancies of HR managers who would like to have the power to reduce or cease injury pensions in circumstances which are not allowed by the Regulations. Where in the Regulations does it say someone with a duty injury can have their pension reduced to the minimum when another injury overtakes the disablement?  The person is still unable to earn. We’ve made this point before; does the person become 200% disabled?

To find why we are even asking this question you need to look to NWEF’s and Northumbria’s legal advisor, Nicholas Wirz.  In his training guidance to SMPs he tells them this:

e.g. if an individual were to have developed advanced Parkinson’s disease since the last review, such that he was unable to work by reason of the symptoms of that disease alone, then the uninjured earning capacity should be nil

The “disease alone” could be replaced by anything according to Wirz: a persistent vegetative state, cancer, even aggravated natural degeneration.  Where does this stop?  For Wirz, he’d rather force an ill 70 year into spending his twilight years appealing the reprehensible Wirz-influenced medical decision to make him or her a band one.

We will talk about case law in a minute.  But ask yourself why the administration of police injury awards is so riddled with high court judgements.  It is because the PPAs, Wirz and NWEF keep trying to disadvantage retired police officers and serving officers who are in need, hardship or distress who are disabled as a consequence of being injured on duty.

By discussing whether an award should be reduced or removed because someone has become severely unwell on another matter is asking the wrong question.  A question that need not be asked and is only asked because Wirz is influencing the SMPs to enact it.  The truth of it is the person being targeted has been injured and had their career taken away – the righteous man or woman acting as a PPA would let them live their life without further hardship.

But there is case law on this matter.  There are three judicial reviews which we need to look at to see how the Regulations have been interpreted by the courts on this matter.  The trouble is they aren’t clear.

The 2003 case of South Wales v Anton (Crocker) is the first.  This case concerned an original decision for an award that SWP didn’t like.

Paragraphs 53, 54 and 55 are the pertinent ones.Mr Justice Ouseley says:

So the question to be answered under the Regulations is what degree of the loss of earning capacity is the result of the duty injury? This seemingly simple question can give rise to acute problems of causation, even though the question of whether or not there has been a disability which the duty injury has caused, or substantially contributed to, has already been answered. A separate issue of causation arises at the apportionment stage, because the entitlement stage can be passed on the basis of an injury which substantially contributes to, but is not the whole cause of, disablement

The judge is saying that another injury may have some effect on the person’s capacity to earn.  We all agree on this.  An injury award should not compensate for injuries not received on-duty. If there is a mix of on duty injury and other injury, then the amount of disablement caused by the on duty needs to be determined.

However, it becomes more complex where an on duty injury exacerbates or aggravates a pre-existing condition. This is commonly referred to as the straw which broke the camel’s back. An officer may be fit for duty despite the pre-existing condition, and it is only when injured on duty that they become disabled.

Mr Justice Ouseley touches on the duty injury aggravating an non-duty injury:

The position is more complex where the total loss is attributable to the effect of a duty injury on an underlying condition, which may or may not be an injury within the definition in the Regulations, and which by itself may or may not have contributed to a separate loss of earning capacity. An officer might suffer from a condition which would not affect him or his earning capacity until aggravated by a duty injury.

So for example a person with a dodgy cervical spine injury, that is mainly asymptomatic and intermittent and does not affect his capacity to earn and is still a fully operational police officer, receives a duty injury that aggravates it.

In this example Mr Justice Ouseley says apportionment for the aggravation and acceleration is not appropriate

  1. I do not consider that the question of apportionment should be answered by trying to attribute a share of the loss of earning capacity to any underlying condition which, on its own, had not, or did not, cause a loss of earning capacity. The loss should be attributed wholly to the duty injury which, albeit because of that underlying condition, has directly caused the loss of earning capacity.

Let us return to the poor individual in the persistent vegetative state.  We are only  talking about this because Wirz has taken the above judgement and twisted it to mean that if a person becomes further disabled through the trials and tribulations which life throws at a person then then the unfortunate soul should not be compensated for the injuries received on duty – even though the injury on duty still exists

The Ouseley judgement does not speak of this.  Wirz has picked up the baton and lobbed it into a field of nettles.  It is an invented concept of Wirz that he feels he wants to test upon disabled and vulnerable former officers.

The Walther judicial reviews (there were two of them) also touch on the matter of apportionment and acceleration.

In Walther v The Police Medical Appeal Board & Anor [2010]  Mr Justice Irwin declared that:

  1. A short acceleration of the onset of a permanent disability is unlikely to be held to be a “substantial” contribution to that disability. Acceleration to any degree is some contribution, but not likely to be regarded as substantial. The opposite applies, it seems to me. A significant acceleration – taking the extreme case, an acceleration of a decade or more – clearly would be a significant contribution to a permanent disability. Where the dividing line comes must be a matter of fact in each case. In my judgment such an approach is consistent with the language of the Regulation and with common sense.

Just because a non duty injury or condition has been accelerated, without it being substantial, it matters not and in any case common sense reigns.  The trouble we have is that Wirz has no common sense and the moralistic determinations of some SMPs are zero.  With a predetermined desire to reduce, they will go to whatever lengths to justify apportionment.  Understanding the whole picture by demanding (with threats of suspension of an award) full medical records from birth  is their favoured way of introducing apportionment.  In effect this is a alwyer’s trick to carry out the unlawful act of revisiting causation.

The second Walther judicial review Met v The Police Medical Appeal Board [2013] was instigated by the Met in 2013 who attempted to remove the award granted to David Walther by the PMAB tasked to revisit the question after the 2010 judgement won by Mr Walther.

The judge this time, Mr Justice Collins, said this:

Only if there will be no loss of earning capacity resulting from the injury when the officer is medically retired will it be likely to be the case that there was no substantial contribution.

In the end Justice Collin’s agreed with the PMAB and David Walther kept his injury award.

But, rather contradictory, instead of the decade stated in the first case by Mr Justice Irwin, even if a duty injury had caused only an acceleration of symptoms of 18 months to 2 years, if at the time the question was being considered by the SMP, the disablement was the result of the injury, then the officer would be entitled to an award.

But the interesting point is what Justice Collins said about Regulation 37. The basis for Collins J’s view was that he considered regulation 37, which provides for reassessment of injury pensions where there has been substantial alteration in the degree of disablement, enabled there to be a later assessment as to whether an underlying condition had overtaken any disablement resulting from the injury.

Specifically he is referring to David Walther’s problem of degenerative disc changes of the L4/5 and L5/S1 discs and prominent disc bulges at T12/4, L4/5 and L5/S1.  All these were explicitly listed when Mr Walther was retired.  It does not follow then that injuries not listed, or not known about, when the medical retirement was given can be reintroduced by a later review.  This would be contrary to the Laws and Pollard cases.

Of course, the existence of Regulation 37 helps everyone when the duty to review is used correctly. It is a provision which can be sparingly used, with plentiful discretion, to help ensure the correct level of injury pension is paid. It forbids all need for speculation about what might occur in the future. An injury pension is granted at a rate commensurate with what has occurred in the past and what disablement the individual exhibits in the here and now.

It says nothing whatever about the extra-regulatory wage comparison exercises practices by some PPAs which remain the aspect of reviews which create the most persistent and most aggressive forms of abuse of the Regulations.

Another area of particular difficulty arising from the second Walther decision may be the Judge’s interpretation of regulation 37, central to his reasoning overall, that it permits a reduction for David Walther’s injury award once a period of simple acceleration has passed. Collins J did not refer in his judgement to the decision of the Court of Appeal in Metropolitan Police Authority v Laws and the PMAB.  We will never know how a review would affect Mr Walther as the Met do not review unless a person asks to be reviewed.

And here lies the problem.  The two Walther cases do conflict somewhat even though David Walther won both. Nicholas Wirz, without regard to what is right or just or reasonable, is trying to populate the void that now exists by using the contradiction to reduce injury awards.

Even though both Walther cases involved the original decision and applied to someone with co-existing duty and non-duty injuries at the time of the award, Wirz seemingly wants SMPs to apportion everyone and to use Regulation 37 to do it.

IODPA is certain that a further judicial review will clarify the issue for once and for all but we again return to the example of the man in our question of PTSD and a coma after a car accident.

The question on the legality walks in parallel with what is morally right – the spirit of the law is phrase often quoted.  IODPA is a much-needed counter to people like Wirz and part of its role is to shout out quite clearly that legal questions with a moral content are usually easy to answer if the person invoking the questions does so with a just mind.

The law itself is no more than a codified expression of moral standards. It arises and lives as a demonstration of the combined moral core of the people. The law should not be a plaything for the likes of Wirz, Colley and Baker. IODPA has the will and the means to see that they, and others who try to bend the scope and intention of the Regulations into unrecognisable shapes will always be challenged, and will always be made to mend their ways.

Polemic on the Poll Results

10 thoughts on “Polemic on the Poll Results

  • 2017-07-18 at 4:28 pm

    Cheng, Wirz, Pitkannen, Ryan, and all these HR , SMP cronies involved with IODs and lying about cops injuries are all criminals. They have found a lucrative market place where they can play god with vulnerable peoples lives. The fat cat ACPOOS pay then handsomely to do there dirty work and sit back and watch. They truly make my stomach turn at the very thought of the criminal and immoral antics they are involved in. Knowing what I know now I would not disclose my full medical file to them,they only want it as part of a fishing expedition to deny you IHR or a IOD.

  • 2017-07-18 at 1:07 pm

    I agree with Ian that “paper reviews” do not comply with Reg 37. They were introduced many years ago to save money. I was reviewed each year, for five years after retirement, in face-to-face meetings with the SMP. My condition was very well known to that SMP and the yearly reviews focused on whether there had been any improvement or deterioration.

    In 2007 I was reviewed, on paper, by another SMP. There is blatant evidence, in note form, of collusion between the SMP and the Pensions Review Manager which came to light after my personnel file were released to me. On one day I was assessed by that SMP as being 55% disabled and then three days later, and after an exchange of notes, the hand of God must have reached down and I became cured at 0%. Strange that my condition had not altered.

  • 2017-07-17 at 8:46 pm

    These are only my opinions.

    I believe that Staffs may be entitled to carry out the review.

    shall, at such intervals as may be suitable………..

    This allows them to review a pensioners disability. (if they want to do a large batch would probably be up to them.)

    consider whether the degree of the pensioner’s disablement has altered ……………

    The only way that this can be considered would be by medical examination, conducted by a qualified medical practitioner who specialises in the type of disablement. ( it would be no good for a psychiatrist to examine for a physician) Then a reasonable consideration of the alterations can be made. I would suggest that the use of a standard G.P would only suffice on few occasions.

    Therefore each review can only be done this way and a so called paper review can not be a legal review in accordance with Reg 37.1

    That could cost a lot of money.

    There are many more points that I believe Staffs Police are contravening, and may even be some criminal ones.

    • 2017-07-18 at 11:51 am

      Reviews under the correct application of Regulation 37 has always been an important part of the regulations Ian. It removes the need and the temptation for a SMP to speculate. The motivation to review in a blank mass program with the predetermined agenda to reduce financial commitments is not the correct application of the regulations

      • 2017-07-18 at 5:36 pm

        I agree but can we prove that the motivation is to reduce financial commitments or after 5-10 years is it just a catch up. Personally I think it’s a means to reduce the pension budget. But they would say it’s a catch up.

      • 2017-07-18 at 7:58 pm

        Hi Ian. A “Catch up” is a concept with no place here – it isn’t a valid reason as it amounts to a fishing expedition. Back “in the day” retired officers had a catch-up with the force doctor with a cup of tea and piece of cake. Those days are long gone. Judicial reviews won by retired officers have reaffirmed what the Regulations allow and what they don’t.
        Every time a review doesn’t occur, there is an active use of a duty being exercised. Every year where there has been no review gives precedence. A decision not to review is a decision. Remember the chaos of not reviewing is a consequence of over a decade of maladministration. IODPA has no issues with reviews. A suitable interval may well be never and without this application of mind it becomes a travesty.

  • 2017-07-16 at 6:14 pm

    Mass reviews discriminate against the disabled person.
    They cannot blindly state they have a right to review without addressing the effects of said review on each pensioner individually.
    They can’t hide behind their interpretation of a regulation to avoid action against descrimination.
    The IODPA is moving from infancy and having a coming of age.
    Previously the likes of Wirz and NAMF where attacking officers who didn’t know any better and had a misguided faith in the integrity of the Police Service.
    As IODPA comes of age then a light is shone on the illegal actions and the likes of Wirz and Knowles and indeed anyone else come under ever increasing scrutiny.
    I was always taught as a Police officer that your actions are your responsibility and ignorance is not a defence to improper conduct or unlawful acts.
    As IODPA and anyone else raise issues with HR staff ,officers or chiefs as the PPA they can’t hide behind unlawful guidance or blindly following instruction as they have a duty to question their actions and confirm their legal right to do anything brought into question .
    If the actions of Knowles,Wirz or NWEF as a whole are questioned then merely asking Wirz for advice is not sufficient to address their duty. They have a duty to enter into a process of advice and investigation from persons not involving those whose conduct has been brought into question.
    That advice cannot be legitimately sought from anyone involved or following the guidance of idiots.
    The thing these people don’t realise is that , although they got away with it in the past, there is a coming of a new age and pushing hard enough will only end in their downfall.
    They forget we all upheld the law and bringing THEM to justice is now our only goal.

  • 2017-07-15 at 8:20 am

    Chief Constables should know this:

    The NWEF in its former incarnation as the National Attendance Management Forum has always been nothing more than a conduit for certain elements within the Home Office and for certain ill-intentioned individuals to scheme and plot against the intentions of Parliament.

    I refer of course to the police injury regulations. The injury award scheme is a vital part of the contract between police officers and the public. Officers face the likelihood of injury in their work so are rightly granted adequate financial compensation should those injuries result in them no longer being fit enough to continue as a police officer.

    The most outrageous plot against disabled former officers, designed to rob them of their injury pension rights, was the guidance issued by the Home Office in Annex C to its circular 46 of 2004.

    The guidance advised that at age 65 all IOD pensions could be reduced to band one. This regardless of whether or not there had been any alteration in the disabling effects of the duty injury or injuries.

    We all should never forget that guidance, which was eventually declared to be unlawful, was cobbled together during meetings of the NAMF. Meetings at which the Home Office was represented by the author of the guidance, civil servant John Alexander Gilbert.

    Gilbert later claimed that ‘a recent survey’ had shown that it was usual practice that some forces automatically reduced degree of disablement benefits to the lowest banding when IOD pensioners reached what would have been the compulsory age for retirement from their former force.

    That was a double lie. There was no survey. In fact Gilbert had been telling the NAMF his views on injury pensions and some other delegates had no doubt made comments. That was the ‘survey’ – a thing of no value or truth, for the second part of the lie was exposed by reason of the inconvenient fact that not a single force had ever reduced an injury pension at normal force retirement age, automatically or otherwise.

    So what we can see is this – Gilbert told the meeting what he wished to do, then twisted that into a claim that he had been told by the forum members that they had already been doing it.

    We need now to go back a couple of years, or more.

    One notable minute of a meeting of the NMAF held on the 9th of October 2002 records that the Home Office had circulated a letter to all forces, dated 8th July 2002, concerning payment of injury awards to officers over normal force retirement age. I quote:

    ‘This [letter] affectively advises that forces can use the lowest banding for awards from age 60. A discussion followed on how to handle existing cases in the system and the potential for public relations problems if the issue is handled badly and/or forces take different approaches/ policies. It might be better to look at all new cases and give claimants notice from the outset on the likely position at age 60.’

    The letter was from Michael Ruff of The Police Pensions and Retirement Policy Section of the Home Office, it stated:

    ‘As it appears that the Regulations do not currently permit an injury award to be cancelled merely because of the age of the pensioner, we have in the past advised that police authorities may wish to consider using the lowest banding for injury awards from age 60 because of the expectation of lower earnings from this age.’

    So, even before Gilbert stuck his oar in, elements within the Home Office were plotting to subvert the Regulations.

    Was the NAMF then an evil entity? It seems that the finger of blame needs not to be pointed at all who attended, for there was no great rush to enthusiastically embrace the ‘advice’ or the ‘guidance’ emmanating from the Home Office.

    Even at the worst time, when the Annex C guidance was working its evil, most forces did not take it up. Only some 17 forces actually set about implementing its suggestions, and not all of them with the full vigour which Gilbert was hoping for.

    The NAMF may not have been the seat of all evil then, back in 2004, but I despair of the delegates of the NEWF now. They are a bunch of cowards who fail to stand up to the distorted interpretations of the Regulations and case law which Nicholas Wirz pours into their ears. They still listen to the representatives the Home Office sends along to the meetings.

    They have swallowed the big lie that Gilbert and Ruff started, which is that the Regulations are nothing more than a flexible and inconsequential scribble which can be ignored.

    Despite all the High Court cases, and the Pension Ombudsman determinations which have helped illuminate how the Regulations should be applied, these spineless delegates continue to allow themselves to be conned by a few individuals.

    Chief Constables – wake up. Do what you are paid to do, and stop this madness. Take strong measures to bring the administration of police injury pensions – and the management of ill health retirement – back within the law, firmly underpinned by procedures which are humane and repectful of the individuals who have given their health for the job.

  • 2017-07-14 at 3:03 pm

    I think that if every serving police officer was aware of what could/would happen if they were seriously injured on duty in attempts to save the police force money on an IOD pension then there would be a mass resignation!

    I think that if every Chief Constable of every Force was actually aware of the abuse and bullying that goes on with IOD Pensioners they would be shocked! They are supposed to be in charge and responsible for the carrying out of Injury On Duty awards and pensions but it seems very few of them actually KNOW what goes on. If they are aware and going along with it then they are not fit to be in that role to start with.

    Every injured on duty officer applying for an IOD pension is examined and thoroughly tested before that award is given. Those circumstances should never be re-examined or revisited. I firmly believe that the reason for any review should ONLY be if there is a substantial alteration in the IOD pensioners condition. Only the IOD pensioner and his GP and possible Consultants would know. I would imagine that in 99.99% of cases it would be a substantial DETERIORATION and would/should lead to a review requested by that IOD pensioner, if he/she had ever been made aware, at any time in their service, that they had the right to ask for a review in those circumstances. I believe THAT is the only ‘duty’ of a police force as far as the rules and regulations go to reviews.

    Having said that, why is there any necessity in for SMP’s after an IOD award has been issued in the first place? Reports from the GP’s and any Consultants involved with any IOD pensioner requesting to be reviewed should be sufficient as evidence of substantial deterioration anyway.

    I think the bottom line with Wirz and his cronies is that he would like to end up rich and famous! He is already famous, especially amongst IODPA members!!! I have a strong feeling he will end up being disbarred for his antics!

    As for Medical Records I don’t believe that they have any right to any information outside of the injury on duty they are (unlawfully) examining!

  • 2017-07-14 at 9:07 am

    I do not believe that the regulations cater for ” Mass Reviews ” in any shape or form. To start with the PPA, should be in possession of such information as to make him or her believe there has been a substantial alteration, and upon that information there becomes a duty to review.

    Staffordshire, now believe that the way to proceed is to send out questionnaires which are mindful of the restraints placed upon them, by the access to medical records act ( AMRA), but they are still after medical records back to birth, and the ONLY reason they insist on this is to attempt to find some, anything, that they can at least try and apportion.

    “Understanding the whole picture by demanding (with threats of suspension of an award) full medical records from birth is their favoured way of introducing apportionment”

    This I believe is a fundamental flaw, and contra to the carte blanche assumption that a person is believed to be innocent until proven guilty.
    You never see a persons criminal history of previous convictions being wheeled out in court, prior to judgement, so that the Judge and Jury can come to the ” right conclusion “, so why on earth is it seemingly permissable to parade the full medical history of an IOD, before an SMP, when he has but a simple decision to make.

    Furthermore, with regard to Walther and the premise that “It does not follow then that injuries not listed, or not known about, when the medical retirement was given can be reintroduced by a later review. This would be contrary to the Laws and Pollard cases” I find it hard to understand why further injuries that are related to the original H1 injury cannot be introduced by later review.

    The most obvious injury that can be responsible for any number of further injuries, are injuries to the thorassic, cervical or lumbar spine, where nerve damage exists, or where the nature and cause of the injury in the first place, were not fully understood, and ultimately related to further nerve or blood flow conditions, resulting in further injury.

    All of this of course depends on moral compass, and it is without doubt that Nicholas Wirtz with the blessing of NWEF, is seeking answers through ” Trials or legal Tests ”
    paying no attention or thought to the individuals concerned.

    Avon ans Somerset may have withdrawn from their review programme for now, but, they will still be present at all meetings, will regroup, along with all of them to come back stronger.

    Wouldn’t it be nice if they JUST complied with the existing regulations, instead of trying every which way they can to circumvent them.

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