apportionment

“Only a psychopath would ever think of doing these things, only a psychopath would dream of abusing other people in such a way, only a psychopath would treat people as less than human just for money. The shocking truth is, even though they now have most if not all of the money, they want still more, they want all of the money that you have left in your pockets, they want it all because they have no empathy with other people, with other creatures, they have no feeling for the world which they exploit, they have no love or sense of being or belonging for their souls are dead, dead to all things but greed and a desire to rule over others.”
― Arun D. Ellis, Corpalism

In a nutshell, alchemy was a bizarre niche of “chemistry” before the periodic table.  The best-known goals of the alchemists were the transmutation of common metals into iron, gold, booze, and even the elixir of life, by combining the four basic properties (earth, fire, air, and water) with straw and chicken dung in certain ratios.

The topic we are going to cover here is the unlawful way some selected medical practitioners (SMPs) go out of their way to pin other causes onto an on-duty injury just so they can use what is known as ‘apportionment’ to water-down the award.  This is reverse alchemy.  By starting with one single pure nugget of gold the SMP, who ignores the true purpose of apportionment, tries to separate the distinct ingredient into many test-tube silos of chicken dung.

Briefly, if the SMP gives an opinion that there was, deep in the medical history of an individual, some slight indication of an illness or injury that could now be said to have contributed to the disablement, then the degree of disablement will be reduce by some proportion. The fact that the individual was passed as fit to join the police, and served without any difficulty for years is dismissed in favour of a dubious medical opinion that some past event contributed to the on-duty injury.

We have to apologise in advance for the fact that this blog’s subject matter is so impenetrable. IOD pensioners and serving officers injured on duty are being deliberately bamboozled by some HR and SMPs who want to confuse and confound so that they can unlawfully reduce injury pensions or refuse grant of injury awards.

If you want to skip to the nitty-gritty, just read the last paragraph and  see how you can let some experts take on the worry and the fight for justice.

We are not talking about an on-duty shoulder injury and an off-duty ankle injury that both contribute to the degree of disablement.  Such apportionment is legitimate, relatively straight forward and was covered by the Crocker case back in 2003

SWP v Anton (Crocker) paragraph 52
…an injury award should not be paid other than for injury received and earning capacity lost in the execution of the officer’s duty. The assessment process should thus discount the effect of any other factors. It looks for the loss caused by the duty injury and nothing else.

This clearly talks about the on-duty injury received and none other injury defining the loss.  Fair enough. But this isn’t what we are talking about.

No, we are entering the shadows where dark forces reign and the dimly lit souls of SMPs wreak incredible havoc by attributing different causes to account for the on-duty injury and then apportioning the percentage degree of disablement accordingly.

PTSD? You only have it because you witnessed something horrendous when you were 8 years old so that accounts for half of the disablement.  On-duty Cervical spine trauma after a polac?  Now you have lumber disc symptoms that we think can’t have anything to do with the connecting column of 33 individual bones stacked one on top of the other that links the two ends together!

To tackle this subject, let us first look at the judicial review which talks about underlying conditions and causation.

David Walther had to fight for grant of an injury award.  He successfully quashed the refusal for an injury award in his first judicial review (Walther v The Police Medical Appeal Board & Anor [2010] EWHC 3009 (Admin) (23 November 2010)).  The judge sent Walther’s application for an injury award back to a selected medical practitioner for reconsideration.  Upon reconsideration the SMP again refused an award but this was overturned at the police medical appeals board.  The Met wasn’t happy with this and took the PMAB decision to appeal  (Commissioner of Police of the Metropolis v The Police Medical Appeal Board [2013] EWHC 1203 (Admin) (17 May 2013)).  The argument of the Met was that David Walther should not have an injury pension as he would had eventually become disabled anyway, notwithstanding that he was carrying out full operational duties at the time a 15 stone officer jumped on him during officer safety training .  Not surprisingly, for a second time a judge decided in favour of Walther.

The whole dispute centred on a medical opinion of the possibility of David Walther’s predisposition for lumbar disc degeneration. A person has five lumber vertebrae in their spine.  Of these five, David Walther suffered from“degenerative disc changes of the L4/5 and L5/S1 discs” and prominent disc bulges at T12/4, L4/5 and L5/S1.

In this case the court gave further guidance on the assessment of police injury awards where an underlying degenerative condition has been affected by an injury sustained whilst on duty.

It was decided that acceleration or aggravation is not appropriate if there is a disablement which is permanent, and if the injury sustained on duty caused or substantially contributed to the disablement.

This nicely takes us into the judgement of Doubtfire and Williams.  In this case it was found that the SMP asked the wrong question namely whether “workplace events” might have led to Social Phobia.

The correct question was whether the permanent disablement had been caused by an injury in the execution of duty.

Doubtfire & Anor 2009 Paragraph 34
The questions that have to be answered clearly distinguish between (1) whether the officer concerned is (a) disabled and (b) likely to be permanently disabled (which I refer to hereafter as “the disablement questions”) and (2) whether the disablement in question is the result of an injury received in the execution of duty (which I refer to hereafter as “the causation question”). None of them requires the SMP or Board concerned to diagnose the infirmity or injury concerned much less do the regulations make any such diagnosis final. It is only the decisions (1) whether the officer concerned is (a) disabled and (b) likely to be permanently disabled and (2) whether the disablement in question is the result of an injury received in the execution of duty that are final.

So the question in Walther’s case wasn’t whether the lumber disc T12/4  (or which of the five) was damaged in safety training – the correct question was whether the disablement in question is the result of an injury received in the execution of duty.  The disablement was a undisputed fact that his spine was damaged and the on-duty injury was the proverbial ‘final straw’ that led to the permanency.

Justice Collins, in Walther II, mentions in his summing-up that Regulation 37 provides for re-assessment of injury pensions and the judge continues by saying that there is the opportunity for a later assessment as to whether the underlying condition had overtaken any disablement resulting from the injury.  His stance was that it follows that an injury award should be granted to an officer who may become disabled anyway in the future as a review enables the rebalancing of what is primacy reason for the loss of earning capacity.

Walther II 2013 Paragraph 15.
As I have already said, in my view Regulation 37 does enable a review and a reduction in the pension awarded to the former officer if the progress of an underlying medical condition means that the duty injury is not still an operative cause of any reduction in the former officer’s earning capacity.

Neither of the Walther cases touched on the reviews in a way which is helpful.  Of course, if the disabling effects of the recorded duty injury or injuries have lessened, but the individual is still unable to work because of some underlying medical condition, then the SMP will have to make a very considered decision.

The important thing here is to relate it to the decision that is sovereign concerning Regulation 37 heard in the Court of Appeal, Metropolitan Police Authority v Laws & Anor [2010] EWCA Civ 1099 (13 October 2010).  This held that the SMP was not entitled when conducting a review under Regulation 37 to re-open clinical judgements as to causation or apportionment made in earlier decisions .

Even NAMF accepts this is verboten post Walther.  In their complexly titled document “Procedural Guidance Notes for Assessing and Re-assessing the Degree of Disablement as a Result of an Injury Received in the Execution of Police Duties” , section 4.5.3 states:

It should be noted that apportionment can only be considered at a reassessment if it had been applied at the initial assessment and any subsequent reassessments. The SMP cannot start from scratch by including apportionment, if not previously applied.

Therefore, in relation to Walther II, the underlying condition would have to exist and be identified at the initial granting of the award for it to be ever be decreed that it has overtaken the on-duty injury.  It also is reliant on the duty injury no longer being an operative cause of the disablement – on other words, the see-saw on the duty side has gone down (condition improved) and the opposing side gone up (condition deteriorated).

Now if someone has a degree of disability of 100% but some residue of underlying non-duty injuries, it is nonsense on steroids to ever claim that the duty injury has been overtaken when the duty injury is still just as symptomatic.  For this to happen the person would have to have a degree of disablement of 201% – 100% for the injury and 101% for the worsening underlying condition.  Even in this sinkhole example of financial wizardry the underlying condition has overtaken the on-duty condition by a single percent – this is nowhere near substantial.

Keeping with the theme of black magic, this sort of numerical alchemy is just as great a travesty of making things from nothing than the witches’ brew of derivatives, swaps and collateralised subprime junk that caused the 2008 financial crisis.

In the case of David Walther, the underlying condition did not mean he received a 20% degree of disablement for the duty injury of a single vertebrae and then apportionment of 20% to each of the remaining four discs.  In other words, he wasn’t denied 80% of his award.  This would be ridiculous.

But the real horror is the current trend of SMP necromancy.   Some of these so-called doctors are using the argument of underlying conditions to slide in the addition of one more incredibly seductive apportionments when they grant the award.  They know the Walther judgement stops them from denying the award flat, so to please their HR buddies they load the dice.

To misquote Warren Buffet these are “medical weapons of mass destruction.” Forensically examine all the medical history from birth to identify a vague and invented co-morbidity that previously had no symptoms whatsoever, spew this potion of apportionment all over the calculation of degree of disablement, and hey presto: a band one.   With the added bonus that the apportionment can be used to never allow an increase to a higher band if ever reviewed.

A traumatic childhood, cancer diagnosis, bereavement, sudden illness, an accident or an assault, or even a natural disaster can be emotionally devastating- these are all traumatic experiences which can upset and distress us. They arouse powerful and disturbing feelings in us which usually settle in time, without any professional help.

The word “trauma” is derived from a Greek word, which means “to wound” or “to pierce.” It is most often used to describe any sudden physical injury.  The intensity or violence of the wound is such that the consequences are long-lasting.  Just as the body can sustain a physical trauma that can devastate its defences, so too, can psychological trauma overwhelm one’s normal coping mechanisms indelibly into an illness that manifests as post traumatic stress disorder with eventual transition to an enduring personality change.  When that traumatic incident is on-duty and results in a police officer being permanently disabled from performing the full role of a police officer then they become entitled to an injury award.

It is now becoming more common for selected medical practitioners to ‘apportion’ PTSD.

Yes, you heard that right.

They are now claiming that being permanently disabled with severe PTSD – caused on duty  – is the same as the underlying lumber disc degeneration condition in Walther; blatantly ignoring the Doubtfire ruling that the disability has primacy over the diagnosis; ignoring the definition in Crocker that defines apportionment for another injury, and apportioning the same injury based on the fact the person would have become mentally unwell anyway – even though no previous mental illness existed.

Have you had any difficult personal personal trauma in the past two decades and gone to see your GP about it?  Well now, even though you retired this year with PTSD from a horrific incident 2 years ago and you are totally disabled from working ever again, the SMP will now say 49% of your condition is due to your police service and 51% because of ‘that other issue that you took 4 weeks off work for back in 2003‘.  You are a band two.  And you are too bewidlered and poorly to argue the contrary.

The planets will be forcibly aligned by HR and the SMP at any future review and you can bet that the ‘other condition’ will eat further into the apportionment and, even without any improvement or ability to earn, a reduction to band one will be on the cards.

Why are they doing this when the Regulations or case-law do not allow for such a thing?

We come full circle back to NAMF and their  February 2014 procedural guidance notes:

Section 4.5
More than one injury within the same condition causing loss of earnings capacity – Apportionment may also be appropriate where there is no other medical condition, as mentioned above, but where it is found that there has been more than one injury involved which causes loss of earning capacity and where not all the injuries were received in the execution of duty. In such a case the percentage of degree of disablement should be apportioned, applying the same proportion that the injury or injuries in the execution of duty have contributed to the loss of earning capacity as a result of the disablement.

The Plain English Campaign would have a field day with that load of gibberish. Notice the nonsensical weasel words of trying to invent a new concept of injuries with the same ‘condition’.  ‘Conditions’ within a ‘single injury’ is purely a synthetic position that is created artificially.  It is nothing but alchemy, simulating something out of nothing – just in the same manner that the derivatives of the last financial crash, like collateral debt obligations, were smoke and mirrors .

The relationship to the injury and the condition is in fact one to one.  They are one and the same – the condition is the injury; is the disability.  And the Doubtfire case confirms the question for the SMP is all about the disability, not the diagnosis. Further, the Walther case confirms underlying (separate) injuries can not be apportioned when the  injury sustained on duty caused or substantially contributed to the disablement  But SMPs trained by NAMF now use this financial instrument to corrupt the rightful award.

But who is there to help bring this abuse of the Regulations to a halt? It is an error to think NAMF, HR professionals and SMPs regulate themselves.  The field of social psychology provides a possible answer. In his classic 1972 book, “Groupthink, ” Irving L Janis, the Yale psychologist, explained how panels of so-called experts could make colossal mistakes. People on these panels, he said, are forever worrying about their personal relevance and effectiveness, and feel that if they deviate too far from the consensus, they will compromise their career and derail their gravy-train.

Throw into the mix malevolence, more greed, self-interest and a manic ‘zeal to reduce the financial pressure to the public purse’ (what better a thing for an ambitious HR manager to put on their LinkedIn CV in times of austerity) and you have a maelstrom swirling together in a toxic cauldron of incompetence.

Any IOD pensioner, or serving officer who sees the word ‘apportionment’ used by a SMP should get in touch with IODPA, who have excellent solicitors and a formidable Queens Counsel who can take up any cases of injury pension maladministration.