Acceleration

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?