Q: When is receiving a back injury on duty, not an injury on duty?
A: When you are assessed by Dr Vivian.
Here at IODPA, we informally advise a large number of members over their injury awards. We have become aware of a large number of cases where the pensioner has suffered a back injury that has not been assessed on its own merits. Instead statistics are used to suggest that it is not a duty injury, but an age related disability instead.
The SMP who uses this rationale is Selected Medical Practitioner (SMP) Dr Charlie Vivian. We have previously written about Dr Vivian and return to this experienced SMP to examine some of his current practices.
To assist us in our deliberations, some time ago we were passed a paper entitled “The Police (Injury Benefit) Regulations 2006 – A guide for conducting the Injury Assessment”. This is a document that was written and agreed upon by three SMPs including Dr Vivian and the Northumbria Police’s force solicitor, Nicholas Wirz, another name that you will, no doubt, recognise from previous blogs of ours.
We have become aware that this document is now in the public domain, and if you search for it, it will be found. As we will be referring to it in this article, we will call it the ‘SMP paper’.
We shall be returning to this paper at a later date to consider in more detail what this group has decided between them, but will point out that nothing contained within it is binding, or even necessarily lawful, and some of it is clearly unlawful in our opinion. But that is a conversation for another day.
To start with, we are going to look at parts of this SMP paper in conjunction with a number of our members who suffered a back injury whilst on duty and were then assessed by Dr Vivian. Discussions that IODPA have had seems to suggest that there is a common theme and citations used in this SMP paper are commonly quoted by Dr Vivian.
The theme goes along these lines; 80% of adults will experience back pain at some stage in their life, therefore you would have had your back problem anyway in [insert number] x number of years regardless of the index injury.
Dr Vivian will then go on to write that the officer is not deserving of an award, apportion it down to 0%, or suggest that at some point in the future the officer will no longer have a duty injury using acceleration. (The thorny subject of aggravation and acceleration is another blog in its own right that we are going to cover in another article).
Let’s have a look at the evidence that Dr Vivian uses to support his assertion.
This is what is written in section 2 of the SMP paper –
“In principle, causation is a straightforward concept, following the medicolegal construct of post hoc ergo propter hoc. (“This followed that, therefore that caused this”). However, there is compelling evidence that this construct is seriously flawed in most instances, including the onset of back pain and neck pain. It provides an unsatisfactory explanation in cases of psychological injury, and is even more uncertain for the subjective health complaints such as fibromyalgia. (See note 2)”
To support this position, there are footnotes listing various citations, with an introduction of –
“For back pain, The best evidence confirms:” [our emphasis]
It then says –
“Back pain is extremely common, affecting up to 80% of the adult population at some point. (Halligan & Aylward, 2006)”
At IODPA, we pride ourselves that we like to do our research before publishing any article. We conducted a quick Google of Halligan & Aylward, which the SMP paper refers to. Google gave us a book on Amazon entitled “The Power of Belief: Psychological Influence on Illness, Disability, and Medicine Paperback”. Pub 2006.
https://www.amazon.co.uk/Power-Belief-Psychological-Disability-Psychosocial/dp/0198530110
Page 162 contains the following line –
“Low back pain is common and not confined to any particular demographic group, with a lifetime prevalence of 60 to 80 per cent.”
It is probably worthy of note that this comment bears no citation, or evidence of this being a fact. So, the most commonly used quote by Dr Vivian in his SMP reports has no supportive evidence. Whilst Dr Vivian is not incorrect in saying up to 80%, the actual figure quoted was 60 to 80 per cent. So it seems that he is highlighting the worst possible figure to support his reports, rather than accurately reporting that the figures could be a good 20% less; no mean figure.
Rather interestingly, a review of this book on Amazon by a person called Donnie on 20th September 2012, (written before IODPA was even a twinkle in the creator’s eye), gives the book a one star review –
For those of you using a screen reader, we’ll replicate the text here –
“It should be obvious that placing sections of society under psychos-social management just because they are sick or disabled has important moral and political consequences. Quite unsurprisingly, the introduction of a biopsychosocial model of disability in the UK, where Aylwayd worked on designing the new welfare system, has led to the weakest members of society being mistreated, for the benefit of those with power and money. I’m uncertain whether Aylward’s association with private insurance companies like UNUM should be taken to indicate corruption, or if his work should just be dismissed as well-meaning foolishness: either way, this book is worth reading only for those interested in the politics of quackery.” [our emphasis]
It is the belief of the author of this note that the trusted Halligan & Aylward may have a hidden agenda in their writings and are probably partisan of employers rather than employees. Donnie states that it will be the weakest members of society who will be mistreated for the benefit of money and power. We associate this comment to the realities injured police officers are facing and see that this quote fits perfectly.
We know that when an officer goes in front of an SMP, any SMP, he or she will be at their most vulnerable. They are extremely unwell. We do not need to remind you that many officers feel that ill-health retirement and latterly, the injury on duty award, is about money and how a SMP has the ultimate power in deciding an individual’s future. It is the job of the SMP to be impartial and we fail to see how that can be achieved if they are quoting biased citations and statistics.
Halligan & Aylward then proceed to quote back pain in adolescence and this time they do cite a source as belonging to Federico Balagué who published a paper on this latter claim in 2003. Balagué was subsequently publicly criticised by other clinicians as to claims regarding lower back claim. –
https://www.thelancet.com/journals/lancet/article/PIIS0140-6736(12)60803-4/fulltext
It seems as though not everyone agrees with the writings of Halligan & Aylward!
Here, at IODPA, we’re not experts nor medical practitioners in back injuries, and so we do not know who is right and who is wrong. Suffice to say that whatever beliefs you may hold, there will always be others with an equally persuasive opinion to the contrary.
Returning to the SMP paper, it then goes on to quote –
“In fact, it is abnormal to go more than two years without activity-limiting pain. (Hadler 2007)”
Perhaps Dr Vivian himself suffers from back pain and can sympathise with this precept, but if you were to conduct a survey of your close friends and colleagues would you be able to find anyone that suffers activity-limiting pain every two years? No, nor us!
Another search of the internet reveals Hadler’s paper –
https://www.researchgate.net/publication/51390433_Back_Pain_in_the_Workplace
In paragraph 7 of the paper he quotes –
“It is unlikely that a healthy adult will escape a year without at least 1 important episode of low back pain”.
Footnote 12 attributes this fact to another paper published by Cassidy JD.
This is becoming like Chinese whispers where everyone is quoting and repeating everyone else. It’s also like social media, where it is often believed that if enough people repeat something then it must be true.
Google being our friend again quickly reveals the following paper entitled – “Incidence and course of low back pain episodes in the general population. Spine.” –
The article is only a summary, but it states that the study used the following method –
“An incidence cohort of 318 subjects free of LBP [lower back pain] and a course cohort of 792 prevalent cases was formed from respondents to a mailed survey. Incident, recurrent, persistent, aggravated, improved, and resolved episodes were defined by the Chronic Pain Questionnaire. The follow-up at 6 and 12 months was 74% and 62%, respectfully. Annual estimates were age and sex standardized.”
You will see that this was a mailed survey, of size unknown. Of course, when you send out a questionnaire regarding back pain, it is likely that those who respond are either suffering from or have suffered from back pain. People who don’t suffer from such a condition will have no interest in such a survey. A total of 1,110 respondents were used, 318 of whom suffered no lower back pain. So we question what weight or credence can be put on such a small study?
What is more worrying is the fact that a sample of 1,110 subjects can be extrapolated up to suggest that –
“It is unlikely that a healthy adult will escape a year without at least 1 important episode of low back pain.”
We could go on with these citations, but we don’t wish to embarrass Dr Vivian any more than necessary.
Actually, we will mention one more, because this is worrying. The SMP paper says when referring to whiplash –
“A study by Simontas and Shen in 2005 looked at demolition derby drivers. Those studied had had on average 2,000 accidents, 500 of which were high velocity (i.e., over 50mph). The average duration of neck pain was 21 days, and there was no chronic neck pain.”
Are they seriously suggesting that low speed front or rear end shunts by demolition derby drivers who are sitting in modified (reinforced) vehicles with bucket seats, back braces, and special helmets can be compared against those incurred by an operational officer driving a high-speed pursuit in an unmodified vehicle wearing bulky issue equipment? Seriously???
It appears as though the good Doctor has been cherry picking his statistics to support his case. Statistics are a dangerous tool if used incorrectly, here is an illustrative example.
20% of accidents are caused by people who have been drinking, which means that 80% of accidents are caused by people who are sober, so from this statistic, it is safer to drink and drive. We do not mean that, but do you see the point? Statistics can be written to suit the purpose and agenda of the author using them.
Let’s set aside the flawed data that Dr Vivian appears to be using, as it’s also important to look at how information like this is used. We hear that Dr Vivian has regularly quoted the same statistics, and we have to question the use of such data, even if it could be relied upon.
We know from experience that some of our members have suffered some pretty serious injuries from policing. Back injuries have occurred because officers have had extremely violent fights whilst trying to restrain prisoners, to being thrown down stairs and having vehicles written off in high speed pursuits.
An assessment is about the individual, not what may or may not go on in the wider population and certainly not based on questionable evidence that is now sixteen years old.
To conclude, we believe that this approach is not only flawed because of the reasons given above, but unlawful. An SMP is there to assess that person for their injuries, how they were caused and how it has affected their earning capacity. There is no place introducing any statistics as they are meaningless in this context.
Statistics should not play a part in any report. Reports should be based on the officer’s own individual circumstances and conditions.
What worries us most is that this paper has been sanctioned and signed off, not just by Dr Vivian, but two other prominent and well used SMPs as well as a force solicitor. This paper has no basis in law and that the only lawful documents that should be used in ill-health and injury awards are The Police (Injury Benefit) Regulations 2006 and relevant case law.
Any SMP who strays from an assessing whether an injury is an IOD by quoting unproven and fanciful statistics instead of the Police (Injury Benefit) Regs 2006 should be disqualified from acting as an SMP.
Some, but not all, are honest but there are a substantial number who are not. One SMP I know of gave an Officer an IOD merely because he was a good rugby player and the Dr had played in his youth. He once was recorded boasting that he was an “accomplished liar”.
My Force had an honest Force Doctor a long time ago – he didn’t last long!
‘Quackery’ was a word used used earlier. For the likes of SMP’s who are earning heaps of cash by deliberately lying. My friendly advice would be this. Read what the law says about ‘Obtaining a pecuniary advantage by deception’. Just my opinion!
Something needs to change.
Dr Vivian is currently reviewing my old force . It appears he has decided my fate before he even examines me, fancy that ! As a matter of fact he probably could have forecast my condition years before my IOD happened which is absolutely amazing as according to him, most of the population will be struck down with such back ailments. Who needs spinal surgeons, consultants / MRI scans when we have such an expert in the field.
I look forward to engaging with him over his ‘guidance’ in due course.
SMP’s continue rewrite and bend the facts to suit what they feel they have to report to their paymasters to save money, so they get paid. Hoping that the officers with just accept it as they’re the “ experts “ they don’t care about how this effects the injured officers, submitting reports which are not supported by actual facts. 😡
“Doctor” Charles Vivian is an utterly vile specimen with an over inflated ego and the personailty of the narcissistic bully.
Like all nasty little bullies he employs lies and connivance to cause maximumupset and harm to those he can abuse his power over.
From what I have seen he is also sexist as hell – I have seen examples where he has refused to acknowledge a woman as injured on duty whilst giving band 4’s to some men – especially men who did macho roles like public order !
A truly vile scurvy little bully doing who is making sure to milk a lucrative system. He should be struck off – that is of course if he really is a doctor, I have my doubts !
This SMP shows an remarkable selection of “facts” to suit his (and the Forces who knowingly use him) agenda = ie: do hard working injured officers down in a bid to remain on the books of these Forces. The one to turn to if you want to save a few bob for the Force, while greatly increasing his own wealth by repeatedly being taken to PMAB’s and appeals due to his shoddy calculations. How he has the neck to call himself a Doctor is beyond me and I am sure would be beyond the understanding of most law abiding members of the public. Disgraceful, however at least it means he can sponsor a “ball machine” at his local Tennis Club: what-ho chaps!
Well researched and written blog, there is only one agenda and that is to save money hence the SMPs are chosen purely to fit this agenda and please their paymaster. I would hasten to add that some are fair so as not to tar all with the same brush however the same old names appear time after time in these blogs and posts of terrible experiences some injured officers have suffered. I do not wish ill on ‘any’ individual however the belief that karma exists keeps me sane. I am sure many of you will have come across the phrase ‘Degenerative Change’….I was a physically fit and healthy person (as proven by the medical requirements including a chest X-ray on the first week of induction) who at 19 years old joined the Police. My service was cut short though serious IOD. I cannot stress enough the impact this has had in so many by ways not only physical but mentally and financially over the years on myself and family. Several of my family are either still in the job or now retired and it still stings at family gatherings when in conversations and reminiscing. That phrase ‘Degenerative Change’ has been used in the past to explain worsening of my injuries, however had I not been injured there would have been nothing to degenerate in the first place ?? I appreciate that this digresses slightly however it appears that ‘statistics’ are being used in a similar way. So wrong in so many ways.!
Quackery refers to unproven or fraudulent medical practices, often through the sale or application of “quack medicines”.
Quack medicines were especially prevalent in the British Empire for centuries, including in the American colonies.
Following the American Revolution and the War of 1812, American products began to dominate the domestic market. The American term for quack medicine was “snake oil”, a reference to sales pitches in which the sometimes-outrageous claims of medicinal successes were attributed to the exotic ingredients of their product.
Those who sold them were called “snake oil peddlers” or “snake oil salesmen”. These opportunists often used enthusiastic and deceptive sales techniques, including “fire and brimstone” sermons, theatrical productions, and confidence tricks. These salesmen often skipped town before the scam was fully discovered.
In American literature, Huck Finn encounters two such grifters during his rafting expedition into the South in Mark Twain’s The Adventures of Huckleberry Finn. In the end, they are tarred and feathered and run out of town.
You may recall one such salesman in the Outlaw Josey Wales who is asked by Mr Wales “how is it with stains” after he spits chewing tobacco over his nice new suit.
Nowadays, they are simply employed by Police Forces in the guise of being given a title of Selected Medical Practitioner (SMP) by legal bods employed by the same forces who invented a name for what SMP’s do. They are a “Quasi-judicial judges” similar to a Coroner claims Nicholas Wirz, a solicitor who should know better. Still, he has spouted this rubbish to anyone who will listen for years under the impression he is an expert. Perhaps Nicholas Wirz needs some help in the Psychiatry department himself with his deluded opinions?
The regulations are simple, it is the twisted minds of people who try and over complicate them, for their own ill-gotten gain that makes them complicated.
Why is it that they are constantly being brought before tribunals, and courts while they attempt to screw over the unsuspecting IOD, who for some inexplicable reason, thinks that they, the Police, will do him or her no harm?
Quacks are still doing the rounds, still doing harm, changing their descriptions from snake oil salesman to SMP to Quasi-Judicial Judges, to inquisitor, as they still try to peddle their wares which have transformed now into the form of opinions of deluded solicitors who walk along the tightrope of truth and publish this rubbish which the quacks lap up.
What else could you call a seemingly qualified doctor, who is able to dismiss the expert opinions of Consultants and specialist surgeons, professors in psychology with years of training, qualifications and experience behind them to be substituted by an opinion of an untrained surgeon, psychiatrist, Consultant person who pretends to be a fully qualified judge and a physician and dispenses medical advice, legal opinions, and suggests treatment that is so contrary to medical experts opinion, but a quack?
So, someone of a legal capacity, who relies on facts and law to do their job, actually uses cherry picked statistics and false narrative to do their job AND someone of a medical capacity, who relies on a persons medical diagnosis to make informed judgements about that person, actually uses cherry picked statistics and false narrative to do their job too?!? How can it be so difficult for these people to understand that their actions are neither right nor made with any integrity whatsoever?? Imagine if we, as officers, did our jobs with even the slightest lack of integrity? We’d be in front of a judge and jury and then potentially end up unemployed, in prison and with a criminal record to boot. I’m a firm believer in karma and I can sense it in my waters that they will all be behind bars before too long.
PS. I’ve gone 42 years without any back pain, does that make me a god?!?
As one of Vivian’s victims, I fully endorse this article and it’s contents.
This SMP is in my humble opinion, a pompous individual who believes that he is someone on a higher plane than the rest of us. Chaufer driven cars to appointments; a superior outlook that he is some kind of quasi Coroner in IOD matters; a man who quotes Latin & Scottish law at, (in his holier than thou viewpoint), the poor plebs who appear in front of him.
He doesn’t like to be challenged though, and if proved he is wrong, well lets just say ‘teddies will fly’!
He was my first experience of an SMP after retirement and the IOD process many years before.
I was warned what to expect, but to be on the end of such a biased view, where without any evidence he had already decided my fate via this quackery of poor statistics, was still a body blow to my then view of the medical profession.
There used to be an unwritten maxim that one doctor will take the view of another as fact, unless there is clear evidence of error. Not him, he ignores other doctors advice, or opinion, as only one is right…his!
If you want to change the system to ensure that it is impartial and fair, then you start with the SMP’s, especially Quasi Coroner Vivien!
I know only too well Dr vivien posting this crap as he did the same on my smp and refused to accept medical evidence and X-rays of arthritis in back instead claiming I. Was making it up …. Accused me of having munchausen because of my injuries at work and I’ll health .
Absolutely outrageous. I had never in my entire life suffered one iota of “activity-limiting pain” until the day I became a victim of GBH while on duty. It is that simple.
As expected the “WIRZ-VIVIAN guidance” is perverse and biased in its concept and only takes into account literature that appears to support their aims. It relies upon inaccurately presented statistics which are taken from a small sample. They have not compared directly normal, injury and degeneration conditions of spinal health nor even looked at the many individual causes of degeneration. It would be interesting to see what research these two clowns dismissed in order to immediately support the authors they have in their thesis. When an IOD is initially applied for if spinal trauma is only associated with a couple of discs and is not diffuse throughout the spine then it is more likely attributable to the injury he also fails to consider an individuals susceptibility to injury which is an unpredictable variable similar to the “egg shell skull” reasoning in law or indicate if this degeneration is the same in both male and females. There is a wealth of available evidence that links spinal injury to spinal degeneration which the IOD should research and present, you are as much an expert as VIVIAN he is only a OHS Doctor not a spinal expert so your evidence should carry equal weight. Spinal tissues can age biochemically without becoming degenerated or painful. However a combination of genetic inheritance, ageing and loading history can make some tissues more vulnerable to injury or repetitive loading so that they become disrupted. Degenerative changes follow as cells respond to an unfavourable mechanical and nutritional environment, and a vicious circle of tissue weakening and further injury can develop, particularly within the intervertebral discs.
I seems solicitor Wirz has something of a habit of being less than transparent when presenting his view of the law.
Some few years back, he presented his take on aspects of the duties of a SMP as part of a training course for SMPs and HR staff (and a few assorted others) held at the College of Policing.
Glaringly, and perhaps tellingly, he quoted selectively from a case heard by the Scottish Court of Session. The intention was clear – he was saying to the assembled audience, ‘This is the law, and it must be followed.’
However, he failed to clarify that Decisions made in Scottish courts are not compelling in England, Wales and Northern Ireland. In other words, whilst judgements in Scotland might be informative, and perhaps even indicative, they can be ignored with impunity in other parts of the United Kingdom.
In my experience, when someone is so anxious to put over a point of view that they conveniently leave something vital unsaid, or allow a mistaken inference to impress itself on the audience, then that person is little more than a snake oil salesman.
The article sums up not only Vivian but the whole injury on duty process!
The process was meant to be as straight forward as possible, unbiased and designed to give those serving officers the confidence to do their job, safe in the knowledge that they would be looked after should they be injured whilst carrying out their duty ( to protect life and property).
Perhaps unsurprisingly, the process has been highjacked by organisations and individuals who either want to save money or to make money, in some cases both!
As a result it has been complicated beyond belief.
I also ask myself why the Met and others do not do IOD reviews and why the Fire Brigade IOD are left alone?
Vivian appears to be one of those wanting to make money.
To make money, he needs to save money!!
If he does not save money for his employer, the PPA may simply appoint someone who will.
There appears to be plenty of anecdotal evidence out there to support the above.
I recognise that there are Forces, PPA and SMP out there who try to do their best, by no means do I mean to put everyone in the same basket.
Back to Vivian, he appears to be in bed with Wirtz, I would add another name to his cohort, that of Andrew Coley, previously with the home office and currently at Staffordshire Police. Is there any need to say anything further!!
A Police officer signed up to protect life and property, does it not follow that if applying for an IOD award, an officer has done his duty and as a result, he can no longer perform the duties he signed up for?
Vivian is a Dr. What did he sign up for?
Was it to do no harm?
It strikes me that he may be putting his own wealth, status, and ego above that of injured officers!
By doing so, how much harm is he doing to those officers he is asked to see?
Those who have to be’ judged’by this person may like to:
Print the IODPA article
Present it to him and ask for his comments before saying anything to him about your injury(s)
Record the ‘interview ‘ remembering the skills you developed as a police officer
Take a ‘friend’
Make it clear that you are aware of his obligations and the existence of the GMC.
Of course, it is for individuals to decide how to deal with this person, and it may well depend on your own individual circumstances and injury(s).
ALWAYS ask for advice from IODPA.
This ‘Dr’ will do you no favours!
One last thought: If Vivian needed police assistance, I have no doubt it would be given without fear or favour.
Why can he and others not do the same?
A well researched article by iodpa which really opens your eyes to the biased world of the SMP! If this doctor is really using statistics in the way described, I would suggest that at best his diagnosis could be considered to be unsafe and at worst unlawful. It seems so wrong that doctors like this act with impunity with no checks and balances. There needs to be an urgent enquiry into the methods used by this doctor and if his methods are discredited, then every person seen by him should should have a fresh review.
It would seem that Dr. Vivian has a conflict of interest.
Instead of conducting an unbiased examination of a patient, according to their symptoms, he has a fixed opinion based upon hypothetical and unproven guesswork.
No doubt this meets with the approval of the various forces which engage him.
The patient has no chance of a fair outcome with Dr. Vivian conducting the examination and in my opinion should not be an SMP.
I too like Google. I looked up the meaning of the word Charlie. One entry reads:
A fool.
Synonyms:
idiot, halfwit, nincompoop, blockhead, buffoon, dunce, dolt, ignoramus, cretin, imbecile, dullard, moron, simpleton, clod
Thankfully these SMP’s had no part in my SMP assessment, however I did experience consultants who used assumptions that my injury would have occurred anyway in so many years, In my early 30’s with no prior back problem being told it would have happened anyway in 1-5 years, maybe that’s true but what impact did my heavy body armour and kit and the endless physical nature of policing have on the accelerated process of degeneration of my lower spine? What study has been done for policing and back injuries to assess if there is an occupational causation link compared to other occupations. When it comes to physical injuries on duty, lower back injuries appear common. If I had my time again I would have an MRI on my back prior to joining being repeated every 5 years so the assumptions couldn’t be used.
When it comes down to it this is all about money and avoiding paying someone reasonable compensation for work related injuries, I loved being a cop but if I had my time again I probably wouldn’t join because the impact of my injury has been so detrimental.
Thank you for your continued analysis of the process and behaviours of unscrupulous SMP’s. This is fascinating and disturbing. The ability to distort unsupported information that is neither peer reviewed or recognised as being scientifically tested is mind blowing . Are these actually medical professionals or members of a police hate campaign group? They certainly come across as the latter. I suspect the fee structure for being an SMP is the driver for such nonsense being used to review sick officers.