It’s been almost 12 months since we printed our articles on the dubious methods used by one of our regular Selected Medical Practitioners (‘SMP’) – Dr Charlie Vivian. If you haven’t already, we suggest that you read the previous articles which can be found here –
https://iodpa.org/2022/02/26/when-is-receiving-a-back-injury-on-duty-not-an-injury -on-duty/
https://iodpa.org/2022/04/11/what-is-an-injury-on-duty/
In the first of those articles we touched on the thorny subject of acceleration, and said that we’d return to it. We also referred to a paper entitled “The Police (Injury Benefit) Regulations 2006 – A guide for conducting the Injury Assessment”, and promised to print it. 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. In that article we called it the ‘SMP paper’, which we will continue to do here.
For the curious, here is the paper itself –
So here it is, 16 pages of advice and guidance that has no legal standing and dubious citations which Dr Vivian is using to assess you, a police officer that’s been injured on duty through no fault of your own!
What we wanted to look at in more detail is Dr Vivian’s apparent OBSESSION with acceleration (section 5). Probably 80% of all determinations by Dr Vivian that we read now have the concept of acceleration embedded in them.
Acceleration is often considered hand in hand with aggravation. Aggravation is the concept of an an existing but dormant condition and one which left alone would not develop further. An injury on duty would trigger or aggravate this dormant condition. Whereas acceleration is the concept of an existing condition which left to its own devices would have naturally worsened over a period of time, but was advanced early due an injury on duty.
These concepts are discussed in two stated cases involving Peter Walther, one of which was in the case of the Commissioner of Police of the Metropolis (Claimant) v The Police Medical Appeal Board (Defendant) and David Walther (Interested party) [2013] EWHC 1203 (Admin) (17 May 2013), which we’ll summarise here –
Mr Walther was medically retired in 2008 with a number of medical conditions, but the only relevant injury for the purposes of Mr Walther’s claim was a lumbar disc degeneration. Mr Walther had a well documented history of back problems including previous incidents at work, and also degenerative disc disease. For Mr Walther, the straw that broke the camel’s back was when a 15 stone officer jumped on him during officer safety training, causing him both immediate and continuing back pain.
It should be noted that following the case of Jennings v Humberside Police [2002] EWHC 3064 (Admin) the Home Office issued (yet more flawed) advice that injuries causing acceleration could not qualify for injury pensions.
Using this advice, the SMP, a Dr Baxendine, refused an injury award on the basis that Mr Walther had an existing condition that was merely accelerated by the work incident.
Mr Walther appealed to the Police Medical Appeal Board (‘PMAB’). They agreed that the index event had brought about an “acceleration of the underlying condition”. They too refused his injury award as “this was an acceleration case, rather than a case where the relevant injury aggravated an underlying condition”.
Mr Walther appealed both decisions in a Judicial Review. The Hon Mr Justice Irwin took the view that both the SMP and the PMAB were wrong when they took a blanket approach that because acceleration was involved it could not be be a significant contribution to a permanent disability, and therefore an injury on duty. He stated that a short acceleration may not contribute to a permanent disability, but a longer period may. “Where the dividing line comes must be a matter of fact in each case”. As a result, he referred it back to the SMP to reconsider the case.
The SMP reconsidered Mr Walther’s case, but again maintained his conclusion that he was not entitled to an injury award. Mr Walther appealed to the PMAB for a second time, where he was now granted an injury award. This time, the Metropolitan Police appealed the decision of the PMAB at a Judicial Review.
Mr Justice Collins opined that the PMAB were correct in their reasoning and that Mr Walther was entitled to an injury pension. He said that the length of the acceleration is not relevant as long as at the time of the assessment the injury had substantially contributed to the disablement. He stated
It will be apparent that it is my view that the approach based on aggravation or acceleration and the extent of any acceleration is not appropriate”. He further stated “If however the injury was such that it did substantially contribute to the permanent disability (since the question of causation or contribution will only arise if the disablement is found to be permanent), the right to an award arises and the extent of any acceleration is not determinative of that right.
What we’re finding with Dr Vivian is that a very high percentage of awards (probably over 80%) granted by Dr Vivian have this concept of acceleration attached to them, even where on the surface there appears to be no obvious previous history of an underlying condition or any evidence that over a period of time it would have worsened.
To put this in perspective, Dr Vivian is saying that in 4 out of 5 cases the violent arrest, the high speed pursuit resulting in a collision, or the constant exposure to distressing situations only brought forward a physical or mental condition that would have happened anyway. It’s amazing just how many of these fit and healthy police officers have (often the same) vulnerabilities triggered by a duty event, but apparently, according to Dr Vivian would have happened anyway!
One such case, involving Dr Vivian, was recently heard by his Honor J Scoffield in the High Court of Justice of Northern Ireland IN THE MATTER OF AN APPLICATION BY JUSTIN CHADWICK AND ANDREW HARVISON FOR JUDICIAL REVIEW AND IN THE MATTER OF DECISIONS OF THE NORTHERN IRELAND POLICING BOARD –
Ironically, the matter under review was nothing to do with the subject matter of this blog. It was a case brought by two PSNI pensioners who were reassessed by Dr Vivian and awarded band 4, but the Northern Ireland Policing Board (‘NIPB’) disagreed with the methodology used by Dr Vivian in his assessment and decided to withhold the increase in banding. The two pensioners challenged the decision of the NIPB and their claim was upheld.
What ties our blog to this judgment was the criticism leveled at Dr Vivian by the NIPB and Justice Scoffield and his use of acceleration.
The NIPB was concerned that the Independent Medical Referee (‘IMR’) [Dr Vivian] had
deferred to his own guidance document… which contains a methodology not contained within the… official guidance documents for medical assessments within this jurisdiction.
The NIPB are clearly referring to the ‘SMP paper’ (ante).
In the first case, Dr Vivian considered that the PTSD symptoms were substantially caused by events during the applicant’s police career, which had accelerated symptoms by 10 years. His hip problems had been accelerated by 3 to 5 years.
In the second case, in respect of one of the conditions Dr Vivian considered that duty activities accelerated the back pain symptoms by 5 to 10 years and he took a mid-point of 7½ years.
The NIPB submitted,
During subsequent investigations it has come to light that the IMR has deferred to own guidance document (attached) which contains a methodology not contained within the attached official guidance document for medical assessments within this jurisdiction to include a methodology of his own devising referred to as “assigning acceleration.”
Ironically, the board further complained that Dr Vivian failed to have regard to guidance issued to SMPs by the board, which ironically has no more legal standing than the guidance devised by Dr Vivian, but we’ll park this argument for another day.
The NIPB stated,
The Board’s concerns with the IMR’s methodology included that he had relied upon a guidance document that he had prepared himself which had not been shared with the Board or the Department; that this guidance document contained errors (in the Board’s view), in particular by introducing a concept of “acceleration” when assessing the impact of a duty injury which was said to be “at best, speculative” and which the reviewing doctors considered to be so subjective that they could not explain how it had been applied, as well as involving judgments which were required to be made by a different medical specialist rather than an occupational health specialist
His Honor J Scoffield said,
The guidance document co-authored by Dr Vivian, who appears to have considerable experience in the field of police injury awards in England and Wales and in Scotland, was produced in conjunction with a working party involving two other SMPs and solicitors with experience in police pensions work. Dr Vivian has indicated that it has been shared across constabularies in Great Britain and has been favourably received, as well as having been the subject of training conducted by him for the Police Federation of England and Wales.
Whilst the judge was not asked to provide an opinion on the methodology used by Dr Vivian, and more importantly the legality of his approach the final paragraph of the judgment contained the following,
I would add that my provisional view is that it would not be appropriate for me to hear and determine any judicial review of that character since much of the issue appears to resolve to a difference in view as to the methodology which should be applied to assessing the degree of an officer’s disablement, with the competing models being that devised by Dr Vivian and his working group on the one hand and that devised by the Department and the Board and set out in their joint guidance on the other hand. The latter approach, however, appears to flow directly from recommendations made in the course of the review which I conducted for the Board which is discussed above
We have already previously shown that the document that Dr Vivian clings so fiercely to is at best flawed, and at worst unlawful, so when is he going to put it where it belongs?
In order for Forces to make financial savings some have hired from this particular group of SMP’s because they employ various methods to circumvent the regulations that are there compensate officers who become injured as a result of protecting the public by dreaming up inventions that they can then apply to reduce or even refuse a claim.
No one has a crystal ball and an asymptomatic condition may never become symptomatic if it were not for the injury sustained by the officer performing his duties. These particular SMP’s are just making stuff up to satisfy the financial needs of their paymasters because it they don’t then they don’t get hired.
prostitute
prŏs′tĭ-too͞t″, -tyoo͞t″
A person considered as having compromised principles for personal gain.
It appears none of these SMP’s are actually specialists in the Fields of any medical qualifications other than a general GP level ( unless I am mistaken) and as you have shown with this article,they just make this sh#t up to suit themselves.
so who are they actually to undermine specialist reports from consultants and higher qualified medical professionals when determining outcomes. They should be there to scrutinize that the reports provided are correct and above board only and correlate. As that is all they are qualified to do. They are not qualified to give a higher opinion than the specialists that have examined and treated the individuals,often over a lengthy period of time. ( Not just a 1hr interview!) The system is inherently bent and corrupt, unfair and against officers at every aspect for the sake of trying to save a quick buck or two. Whilst I get that they think they’ll weed out those trying it on, so to speak.. do they really think that the medical evidence will be undermined in the end by the low level medical opinion versus specialist reports. All they actually do is delay the inevitable for the 99.9% of officers who actually need closure and get on with their lives. They’d probably save a lot more money by letting them get on with it , instead of delay,delay delay.
Dr Vivian – I really hope that you read the above comments by those who have been assessed by you. Especially where you have gone against higher qualified consultants than yourself. Failure to act fairly for the pensioner and the force will likely result in more appeals, judicial reviews and embarrassment for you – as your name continues to be shamed. You have a chance moving forward to do right by your applicants seeking IHR. Lets see if a Leopard can change their spots. As a professional reading such damaging comments I would not be employing you to conduct any assessments as an SMP in my force. You have a second chance to work with Forces, Applicants and the board to make your assessments fairly and accurately under Law and guidance rather than your personal opinion.
I have recently entered the ill-health retirement process and received my report from the SMP.
Whilst no final decision has been made from my force, reading these articles i am fearful of the potential outcome and my future financial stability.
In spite of having medical reports from various specialists confirming my injuries and their origin, receiving IIDB and awaiting further surgery, my SMP simply states that it is impossible for him to determine that i will be permanently disabled.
As time has gone on I was told I had developed forms of arthritis through my pelvis (point of injury ) and referred to the NHS early arthritis pathway and prescribed various immunosuppressant medications.
I have not completed an operational shift since 2016. Up until 2022 i had been performing project work on a flexible working basis to enable me to manage my pain and medication. Ive now been off sick for almost a year. i had been told i couldn’t complete officer safety training until i pass a fitness test (i cannot walk properly, never mind running. In spite of being diagnosed with chronic pain and received numerous interventions since my injury how can an SMP apparently write off my claim so easily.
My case is a little more complex than this, as they often are.
The methodology’s applied and decisions made by some of these so called specialists are shameful.
get a little confused with all of this – I understand why the police forces request certain SMPs to carry out our IOD reviews, but is there some sort of list somewhere?
Do they have a booklet or a guide that shows results, like:
Disabled, Injured on Duty Police Officers: – NIL
SMPs:
No. 1 Mr/Mrs. Whoever – 405 declined injury awards.
No. 2 Mrs?/Mr. Whatever – 20 declined injury awards.
Why haven’t we ever taken an SMP to court for their behaviour/accusations etc.
Or even gone to the Home Office/Newspapers etc., or whoever will listen to us – with a protest?
We have the facts or the truth, don’t we? So why can’t we use it in a ‘group’ way, rather than each of us fighting vast, powerful people as ‘individuals’ in our reviews?
We have a strong group in IODPA, can we not use it to widen our voice and also widen the public’s knowledge of our mistreatment?
Some years back the Home Office pushed through guidance to all forces that SMPs should hold qualifications in occupational medicine. At a stroke this reduced the available vast ocean of doctors who could be engaged to do SMP work down to a relatively small duck pond of individuals.
The pond was further reduced by a peculiar little cohort of rascals who called themselves the National Attendance Management Forum. This group was composed of HR types, and assorted others, including representatives of the Home Office. The notorious Mr Gilbert was a regular attendee (see elsewhere on this site for more about him.) The NAMF produced a list purporting to be the names of doctors who had, ‘shown an interest in doing SMP work’. It is suspected that in reality it was a list of doctors who could be expected to toe the party line and act in ways intended to be more favourable to the interests of their paymasters than in the interests of ill or injured serving and former officers.
In short, the benevolent intentions of the various police pension regulations have been twisted and abused for far too long by the current gang of SMPs (with the odd rare exception). The system has been corrupted. Only when some of the principal actors in this disgraceful state of affairs are made to explain themselves in a court of law will we see justice served.
IODPA thanks for shining a bright light into the murky world of ill health pensions and injury awards.
The reality is there is big money involved and. money can be a fine corruptor. Forces are desperate to reduce the pensions bill. The most notable examples have been the bankrupt baker from Avon and Somerset moaning to the Policing Minister. She was give n short sharp shrift in writing and reminded of the regulations.
Then we have the illustrious Dr Broome, cited in the Crudace, Howarth, Simpson and Fisher High Court cases as well as the Curry decision. Given the significant failings by this SMP why has Northumbria continued to employ hi.m ? Well a cursory look at these cases shows that he reduced over 70’ pensioners in one sitting . The ability to review a file in an afternoon is good going but over 70 ? He acted on a direction from Northumbria Police. Dr Broome has been found wanting and it is obvious to any reasonable,, impartial objective observer that he is biased and will reduce injury awards at any given opportunity as opposed to his duties impartially.
Please research the above cases. IODPA Thankyou for bringing the murky realities of the Police Pensioners lot to the fore.
He is playing with peoples lives. We offer ourselves up to take the heat every day to protect the public. When our job is the cause of life changing injury we are subjected to an examination that is at best amateur and at its worst criminal and incompetent. It’s a not fit for purpose process. Yet it appears not to be subject to accountability or external review. How can a non specialist doctor make decisions about various specialised areas of medicine? A joke and a farce. Thank you IODPA for bringing us together. The people in charge should be ashamed. These injured officers have life long injuries and many are in vulnerable and fragile situations. In the worst cases lives can and will be lost due to the stress and constant worry of being subjected to this process time and again. Shameful.
First of all, I would like to recognise that Dr Vivian may have done the right thing initially by the N.I officers. But let’s look at it in a little bit more detail.
If he gave the officers a good banding initially, he was certainly leading them to be reduced in years to come. This certainly isn’t in their best interests.
These officers trust in SMPs as doctors and by the very nature of their profession, should ensure that no harm must be done. Vulnerable, poorly officers who will only be relieved that they have been awarded an IOD award and they can close the door on a hateful, distressing process. Charlie is a clever man. He would know how these officers were feeling and imho, took advantage of this fact.
Injured officers will not understand what ‘acceleration’ is and how Charlie has set them up for a fall in years to come. It is only when they speak to others such as IODPA that they will finally understand what Charlie has done to them.
And by then, the damage has been done. Set up for a review with acceleration behind them, leading to the next SMP to reduce their banding based on Charlie’s devious report and assessment.
Make no bones about it, Charlie is no friend of injured police officers. He may have done ‘right’ in N.I but did he really? Setting them up with acceleration is not doing the right thing by anyone.
Hi Charlie, I know you read these blogs and are particularly drawn to the ones that mention you.
I was just wondering that seeing as you seem to see yourself as an expert in foresight, forecasting and predicting the future if you could just share some jackpot winning lottery numbers.
When are you being put out to pasture?
Going by the doctor’s logic then my arm would have broken all on its own and my nerves damaged themselves sooner or later without me being assaulted. Who’d have thunk it?
From Dr Vivian’s paper –
“However, the injury must be sustained in the execution of duties. This is different from being only work related”
and
“Furthermore, even if the officer has successfully claimed that the constabulary was negligent, and this resulted in injury, this would not automatically qualify as an injury on duty. Examples include if a chair broke, or the officer slipped on ice.”
These are both wrong and unlawful.
Is Dr Vivian going to publicly denounce his own paper?
Having read a number of articles on here about Dr Vivian, it seems to me as though he believes that he is some sort of expert in the field of injury awards? Whilst he may have made a large number of determinations in this field, but if his thinking is flawed, then so are the results and that makes him no expert. To the contrary, that makes him dangerous! It appears as though Dr Vivian likes reading case law and will then use elements of this to support his twisted reasoning, but he cherry picks certain cases (out of about 70 that there in this area) and tends to use them to refuse or reduce an award, rather than award one.
Someone I know runs a Jigsaw company where they use the same cutting template, but just change the picture. Theoretically, you could take an individual piece from each of their jigsaws and produce a picture made up from all of them.
To me it seems that Dr. Vivien has had the same idea! The quack ‘Vivien Theory’, as it must now be known, is made up according to the references at the end, from perfectly selected thoughts and conclusions of a number of authors. To him this kaleidoscope result is then proof that his theory is correct, but is it?
I agree with a previous poster who asked where is the scientific evidence to back this up? Who has carried out the observations on the general public, or specifically on Police Officers? Where are the statistics to back this up? Where are the peer reviews?
Modern day police officers carry a host of equipment on their bodies, some of it quite heavy. Will that lead to ‘Acceleration’? Will there come a point in the future where these officers suffer from this loading and then quote ‘Vivien Theory’ in health and safety cases where their employers should have heeded it and not equipped the officers in this way? Time will tell.
I’ll finish with another quote, this time from Richard Dawkins, which is quite apt.
“The universe is a strange and wondrous place. The truth is quite odd enough to need no help from pseudoscientific charlatans”.
Now where did I put that unfinished Jigsaw?
Really interesting read. Thanks for highlighting it. It fills me with dread thinking I might have go through some sort of review process that involves such characters.
Dr Vivian disagreed with 3 Pyschologists reports I had diagnosing my PTSD as fully being because of work I had to undertake. Quote “I once read a book that said mental Health illnesses can start in younger life so only 80% can be accredited to the work you did”. He also made me relive the work I did which re traumatised me and I had another breakdown. The thought of being reviewed and seen again by a police surgeon caused me to have to return to therapy in Nov 2021.
It was Dr vivien who stated I had Munchausen because I had been diagnosed with several medical issues when being assessed for medical retirement … Again he didn’t accept that the police rtx X 2 on duty as passenger contributed to my illnhealth he claimed in had underlying issues …. I need to challenge why I didn’t get my injury award as he did medically rwtire me on mental health which was impacted by being a police officer ! It is worth noting only a psychiatrist can diagnose Munchausen and I saw an independant one that confirmed I did not have Munchausen but a complex medical history ::.
I think it’s about time such actions are viewed with a police head on instead of pussy footing around with civil matters.
The document presents a conspiracy to defraud persons of their pensions by making decisions not founded in fact.
It’s also about time these occupational doctors where put in their place when making decisions outside their real of expertise or indeed contradicting a report of a specialist in a given field.
Arresting a doctor for an offence would sharply open their eyes.
Whether it was Benjamin Disraeli or not has been much debated, but Mark Twain attributed the phrase to him.
Dr Vivian appears to have made so much up, during his far too long and not very illustrious career, that that his words are far more relatable as Nursery Rhymes than rigorous medical theory. Perhaps we should try putting his theories to music, at least they could be hummed under one’s breath during an appointment. After all, everything else you have to say will be ignored by him because of the strength of his convictions or fairytales. “Do no harm”, those words obviously don’t apply to him.
Quackery at its best! It seems VIVIAN and his side kicks are not happy with existing guidance so off their own backs they “invent” a guidance that suits their needs to reduce pensions where upon he becomes Judge, Jury and Executioner according to his non ratified guidance. It was lucky this JR landed in the lap of an informed Judge. The use of the VIVIAN guidance is blatantly unlawful and has one aim. It appears that the NIPB who undertake quality controls over SMP’s reports have identified inconsistences relating to a further 8 cases, why was nothing done by the NIPB before this JR? It appears that VIVIAN has has crawled back down his hole and has stepped back from his work with the NIPB. This is a case of a biased SMP resulting in a wrongful denial, reduction of pension benefits-FRAUD. On a further note are the quality assurances undertaken in the UK, it seems unlikely even if they are said results are not taken seriously as the likes of CHENG would have come to light after released FOI data due to the number of appeals he is responsible for.
A little more on VIVIAN. He has an OHS business called ICARUS at which he is the sole OHP. Take a look at it and note that he displays his self righteousness and holier-than-thou attitude in more ways than one. According to his web site he states, “If it ain’t broke don’t fix it, i am just going to carry on delivering what i do”. Then to add insult to injury again on his web site he touts his “guidance with a link to the full document” of 28 July 2021clearly at PPA’s, said guidance is on the web site he even states, “I was involved in a group that sought to develop an approach to these assessments that is compliant with the Regulations and case law”. So much for being compliant, i think complicit in deceit would be more apt. He needs to step down in his display of smug moral superiority in his beliefs and remove this tosh from his web site or have the guts to mention his guidance is unlawful and stop trying to unduly influence people, he failed to do so at the recent Judicial Review!
It was actually the NIPB who were taken to JR by several officers who Dr Vivian had awarded IOD’s at a banding that the NIPB thought was too high. The NIPB then refused to pay the awards Stated that DR Vivian had used his own guidance and not that of the NIPB. Guidance is only guidance and is not legislation which always trump’s guidance. The NIPB were trying to say that they were the final decision makers and not the SMP’s . The JR has cleared this up. I am aware that DR Vivian is not well thought of by a large portion of the IODPA but on THIS OCCASION he did a good job and helped put the NIPB back in place. I am not vouching for Dr Vivian in anyway as I know he has cause immense pain and suffering with members on the mainland. Let’s keep up the good fight.
Charlie says 70% of us are walking round with slipped discs at any one time, but that we just don’t know it. Hence we could be accelerated by anything anytime. Also his opinions on earning capacity are equally baffling. It seems to be either 100% or 0% having listened to him.
The Oxford Dictionary describes a ‘Charlatan’ as:
“A person who falsely claims to have a special knowledge or skill.”
Meanwhile, the ‘Vocabulary’ states that:
“A charlatan is a quack, a person who is trying to deceive you with false claims.”
The Merriam-Webster Dictionary goes further describing a ‘Charlatan’ as:
“Charlatans – harming their patients with dubious procedures, or one making usually showy pretences to knowledge or ability.”
Across the ‘pond,’ they are often called ‘Snake Oil Salesmen,’ the description of which is:
“A common expression used to describe someone who sells, promotes, or is a general proponent of some valueless or fraudulent cure, remedy, or solution.
In other words, a Charlatan, (or Snake Oil Salesman, if you prefer), is someone who pretends to possess knowledge he or she lacks.
Now, I’m not suggesting for one minute that SMP Vivien is such a character, but as one of his ‘victims’ of his ‘Mickey Mouse’ theory regarding ‘Acceleration,’ I am entitled to form my own opinion, regarding him, especially as he has caused me financial loss.
To me, he came across as pompous, as someone who sees himself ‘higher up the slippery pole’ than he actually is! He seemed to think of himself, not as an SMP, but as a ‘Quasi-Coroner,’ making medico-legal decisions that are obviously based on this unproven theory. He used to like quoting Latin to attendees and referred often to a Scottish judgement as the basis for some of his decisions, even though it doesn’t apply to England and Wales.
So, I can quite understand, based on that opinion, why he has developed this quack theory regarding ‘Acceleration’. However, if all Doctors were to follow SMP Vivien’s example, then we would be completely in the realm of Quackery!
I imagine that type of world, where a cure might be nothing but garden peas to eat, or where a US President, could actually suggest that by drinking disinfectant, it might cure a virus infection!
In my humble opinion, if SMP Vivien wants to be taken seriously regarding this approach, then I suggest that he puts up his theory of ‘Acceleration’ to academia to research and conclude if there is any real value in it, as currently, it’s not worth being written on paper that has ‘IZAL’ on it!