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.
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. –
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 –
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.