Dr Charlie Vivian

What Is An Injury On Duty?

What Is An Injury On Duty?

The question is, “What is an injury on duty?“.

It’s a simple question and you’d think there would be a simple answer. Well, actually there is, if you look at regulation 6 of The Police (Injury Benefit) Regulations 2006, in which paragraph 2(a) states –

2(a) the member concerned received the injury while on duty

So there you have it, apart from a couple of caveats that we’ll cover shortly, it is very simple. If you are ‘on duty‘ i.e booked on and working a recognised shift and you become injured, then it is an injury on duty. At IODPA, this is the advice that we have always given our members.

Who could not understand this simple concept?

Well, Selected Medical Practitioner (‘SMP’) Dr Charlie Vivian it seems.

In our last blog (which also happened to feature Dr Vivian), we referred to a document called the SMP paper, which is 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 force solicitor from Northumbria Police.

We stated in our last blog, that we do not agree with much of the content of this paper, and that position hasn’t changed.

We will again be quoting from this paper as it ties in with this blog, so without further ado, this is what it says –

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. The SMP should consider the facts of each case, but not automatically assume that such events qualify.

The paper alludes to the fact that a collapsing chair or slipping ice on would not be an injury on duty which is worrying because “unless the injury is wholly or mainly due to his own serious and culpable negligence or misconduct” these examples would satisfy the regulations with regards to being an injury on duty.

Unfortunately, we are aware that Dr Vivian has on a number of occasions refused to accept that an injury was an injury on duty because it was not in the execution of duty. Dr Vivian has performed over 400 assessments, and so the exact number of cases where he has applied the wrong test is unknown. That said, any decisions where the wrong test is applied is worrying.

Let’s now look at a recent judicial review, handed down on the 23rd February 2022, which confirms that this, and previous decisions of Dr Vivian were wrong. It involves an officer from Hampshire Police who was injured in 2007.

The full transcript can be read here – https://www.bailii.org/ew/cases/EWHC/Admin/2022/385.html

 

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It’s fair to say that the injury was a result of tomfoolery in the canteen between the officer and a colleague. Rather then paraphrase the incident, we’ll refer you to the summary from paragraph 14 –

“14. In 2007, on the 18th of November, the Claimant was on duty at Fratton Park police station in Portsmouth in the early hours of the morning working in the parade room with other constables who were writing up incident reports. The normal banter was taking place between the constables and as part of that the Claimant threw a Sellotape roll at PC Fruin in jest. It hit him with a glancing blow to the head, causing amusement and no injury. He looked round and got out of his chair and said he was going to tip her onto her backside or words to that effect. He was not angry. The Claimant was not frightened, but she decided to run away and as she was going towards the door he caught her, held her by her shoulders, swept her legs away with a judo style move.  They both fell into a heap on the floor with PC Fruin on top. During that fall the Claimant’s right knee and leg were twisted and she suffered an injury to the medial compartment of her right knee.”

To help us better analyse the case, the judge listed some mnemonics explaining the various ways in which an injury would be an injury on duty under the regulations, which we’ll summarise here (please read the judgment for a more detailed explanation) –

EODExecution of Duty. This would cover an off duty officer that put themselves back on duty whilst reacting to an unfolding incident before them.

WODWhile on Duty. This is, as the judge stated “The constable was either on duty or not on duty.” The vast majority of cases will be covered by this, and the subject of our blog.

WOJWhilst on a Journey. Journeys too and from work are covered, even if there is slight deviation in route.

NODNot on Duty. This would cover for example where an officer is assaulted by a malevolent person purely because the officer has been recognised as being a police officer.

Dr Vivian, as the SMP, was appointed on the 19th November 2019 to consider whether this was an injury on duty. Following on from our introduction, it won’t surprise you to learn that on 12th February 2020 he stated it was not an injury on duty.

The judge made the following observations –

“[Dr Vivian] directed himself that he needed to distinguish between injuries suffered in the execution of duty and injuries based on mere “status as a police officer”.

 

“He [Dr Vivian] considered that the law required him to separate out these two types of category, the former attracting compensation and the latter failing to attract compensation. For the reasons set out below I rule that the SMP misunderstood the law and so misapplied the law when making that distinction.”

 

“In his conclusion the SMP stated that the right knee injury was  not an “injury on duty”.  Those were his words. I find that as a matter of fact and law he was wrong about that conclusion.”

 

“But he [Dr Vivian] appears to have ignored the WOD category completely or to have misinterpreted it.”

An appeal was made by the officer to the Police Medical Appeals Board (‘PMAB’). Hampshire Police submitted that the injury wasn’t “on duty” citing the case of Stunt. The judge stated, “For the reasons set out below in my judgment that submission was wrong in law.

The PMAB concluded that whilst the injury was suffered “on duty“, it was not “in the execution of duty“. The board also cited the cases of Stunt and also Gidlow, but the judge was of the opinion that they had conflated the mutually exclusive elements of WOD (While on Duty) and EOD (Execution of Duty).

The judge ruled that Dr Vivian, Hampshire Police and the PMAB incorrectly applied and interpreted the regulations, and that in this particular case it was an injury on duty. He also made reference to Home Office guidance which he deemed was “misleading and wrong” and should be withdrawn.

He helpfully provided a route map through the regulations that the SMP should consider in sequence.

  1. Negligence or Misconduct (Reg. 6(4) disqualification);
  2. Idiopathic disease or condition (“injury received” test) without any causative link to duty;
  3. WOD application (Reg. 6(2)(a));
  4. WOJ application (Reg. 6(2)(a));
  5. NOD application (Reg. 6(2)(b));
  6. EOD application (Reg. 6(1)).

The first consideration (or caveat as we alluded to earlier) is whether (à la regulation 6(4)) “the injury is wholly or mainly due to his own serious and culpable negligence or misconduct”

The second consideration, is whether there is a causal link to duty. For example adverse reactions to valid operation requirements or disciplinary matters have previously been excluded as being an injury on duty.

Once these two questions are disregarded, the SMP should then go on to answer questions (c) to (f). It should be noted that (c) to (f) are mutually exclusive and do not override or cancel each other out. If one of the conditions is met in (c) to (f) then it is an injury on duty.

The question that needs asking, is “how many other cases has Dr Vivian refused or apportioned an IOD award because of his incorrect interpretation of what constitutes an injury on duty?” We’d be happy to hear what Dr Vivian has to say about this judicial review and more importantly, what plans he may have to revisit his earlier assessments.

In our view, the regulations have always been very clear, ‘while on duty’ means just that ‘on duty‘ and needs no further interpretation.

We cannot find a more apt comment than one reported in a Pensions Ombudsman (‘PO’) decision (Cornish v Essex Police) where Lord Denning was quoted as saying “No person should put their own interpretation onto any regulation or law but should follow them to the letter. It is the prerogative of the Court and only the Court to interpret legislation.”

This is just one example of many, that we are aware of, where SMPs are interpreting the regulations and case law incorrectly, and usually to the detriment of injured officers.

If you believe that your injury on duty award was refused on similar grounds, please email us at admin@iodpa.org

 

When Is Receiving A Back Injury On Duty, Not An Injury On Duty?

When Is Receiving A Back Injury On Duty, Not An Injury On Duty?

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]


I
t 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.” – 

https://journals.lww.com/spinejournal/Abstract/2005/12150/Incidence_and_Course_of_Low_Back_Pain_Episodes_in.21.aspx

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.

Judge, Jury And Jackass

Judge, Jury And Jackass

“One’s dignity may be assaulted, vandalized and cruelly mocked, but it can never be taken away unless it is surrendered.”
― Michael J. Fox

There is a selected medical practitioner.  Let us be irreverent and childish and call him Dr Brush.  Dr Brush works for a particular force but sometimes he extends his range.  On one such occasion he came South, the midlands in fact, to perform a Regulation 37 review as the incumbent SMP of that parish had breathed his last breath.

On a midwinter’s morning there were two doctors sat behind a desk.  One was Dr Brush, the other was a specialist in his particular arena.  Across the desk from our two medical practitioners sat three members of the public.  Perfect in their own way, there was nothing special, remarkable or wondrous about these three other people other than one was entitled to an injury award – and accordingly Dr Brush thought this individual had no rights – and the remaining two were there to give much needed succour.  Indeed even in the surreal world of injury awards, Dr Brush must have surely been of the opinion that two doctors to one vulnerable person without any companionship would be … Oppressive? Intolerable?  Overwhelming? Abusive? You choose the appropriate adjective.

So there were five people in this room.  The medical examination under Regulation 37 “took place”.

For 200 minutes the “interview” raged.  Voices were raised.  Tempers flared.  Dr Brush thought he had evidence of substantial change but would not tell the three sat opposite him what that change was supposed to be. And then it was over, in a manner not unlike an EU/UK Brexit negotiation, without a standout conclusion.

Dr Brush had burnt himself out red faced and confrontational; the specialist was no doubt thinking along the lines “what is this corruption of an assessment“; the person with an injury award was in tears and inconsolable and suffering the manifesting agonising symptoms of the PTSD they suffered from; and the accompanying friends were thinking what corner of hell were they just privy to.

Within days the  specialist disqualified himself from the debacle – he said he can’t be party to such an intimidating process.  Mr Brush did the same but for different reasons – now without an ally he was open to be discredited and he begrudgingly walked away only after igniting a bomb – he dropped the microphone with menacingly aplomb.  Brush wrote to the midland based police force and told them the person with an injury award failed to attend a medical examination by failing to answer his questions.  The Kafkaesque interpretation is that Dr Brush did not get the answers he wanted.

Within days, thinking their ships had all come in at once with the green light from Dr Brush, the police force removed, totally and entirely, the injury award.  Suddenly the cogs of justice clunked together and a solicitor put a stop to this madness.  The injury award was restored but missed the following payroll.  Six weeks elapsed before the victim received the money they had always been due.

Roll on to the present to Staffordshire and a Dr Charlie Vivian.  Andrew Colley, the HR operative in Staffordshire has given several dates for people to see Dr Vivian.  You see, the paper-sift potential of only sending certain select individuals seemingly ripe (to Colley) for reduction through questionnaire answers has been denied to Mr Colley.  Arguably the mass review program should end here but Colley thought he had no other option but to give dates to see the SMP.

These dates were booked for late August but Staffordshire changed its mind (or Dr Vivian was otherwise engaged) and rearranged them for mid-September.  Some people were to see Dr Vivian locally in Staffordshire, some will have to travel a 180 mile round trip – it being 90 miles to Dr Vivian’s office in Cheltenham.  The arbitrary criteria to travel (or not) seemed to be based on gender.  Males got Cheltenham, females Staffordshire.

All these appointments were made with full knowledge of what the person with the injury award had or had not disclosed.  The dates were rescheduled with the same insight.

Just a matter of days before the attendance, Dr Vivian has cancelled indefinitely all the appointments on the basis that he now demands to have full medical records – the only permissible redaction he allows is where the medical records show third party identifiers of family members.

You see, Vivian – like Brush – think they are judges and that they can subpoena people to conditionally attend only if they provide full medicals from birth and that this conditional attendance isn’t under duress – no, it’s of your own volition apparently.  You “shall” do this and you “shall” do that but you shall do this willingly “or else“.

Incidentally Vivian is using the same terms inventing his quasi-judicial power than Brush used.  Coincidence?  We think not.

Staffordshire thought that by doling out dates they could pass their problem of fishing for change to justify a review to the SMP. Vivian doesn’t seem to want to play ball so he has bounced the conditional threats back to the vulnerable and disabled former officer.  DCC Baker recently told Police Oracle that no awards will be suspended.  Will they use Dr Vivian’s teddy and pram Olympic throwing event as a gold opportunity to renege on this?  If they believe Vivian’s whining remonstration then it seems judicial reviews on this matter are inevitable.

Now there is the self-made ignominious fiasco of a police pension authority (Staffordshire) trying to use the SMP to leverage compliance.  Just like Dr Brush used his position to bully and intimidate a former police officer with a psychological illness.

We remember how Dr Philip Johnson dug himself into holes by blustering and flustering when dealing with the now cancelled mass review program in Avon & Somerset.  History seems to be repeating itself.  No one working for the police seems to learn.

We thought you should know…