Walther v The Police Medical Appeal Board & Anor

This case is a challenge by way of judicial review, firstly to the decision of a Selected Medical Practitioner (“the SMP”) appointed on behalf of the Second Defendant Metropolitan Police Authority (“the Police Authority”) to refuse the award of an injury pension and secondly, to the decision of the First Defendant, the Police Medical Appeal Board (“the Board”) to dismiss the Claimant’s appeal against the decision of the SMP.

The Claimant was born in November 1966 and is presently aged 43. He joined the Metropolitan Police Force aged 17 and continued to serve until he was medically retired in March 2008, following an interview with Dr Baxendine, the SMP, on 19 December 2007. The reason for his medical discharge was stated to be “left shoulder impingement syndrome, lumbar disc degeneration and depression”. The depression was considered by the SMP to be transient, and whilst both the other injuries were permanent, the shoulder injury was not of continuing significance. It follows that it was the back condition which was in point for his medical retirement.

The history of Mr Walther’s back problems is not really in dispute. In 1995, he was injured whilst attempting to restrain a prisoner. When he returned to work in August 1995 he was involved in a significant road traffic accident whilst on duty, and was off work with low back pain for several months, returning to full duties in July 1996.

In September 2001, the Claimant reported renewed back pain and was treated by a physiotherapist. An MRI scan in November 2001showed degenerative disc disease in the lumbar region, as well as mild facet joint disease. In March 2003 he had an injury to his back during a training session but the injury resolved itself. A further MRI scan of early July 2004 reported “degenerative disc changes of the L4/5 and L5/S1 discs” and prominent disc bulges at T12/L1, L4/5 and L5/S1. However at this point the Claimant was able to return to full operational duties.

The Claimant continued on full operational duties until April 2006. On 27 April the Claimant sustained an injury when a 15 stone officer jumped on him during officer safety training, causing him both immediate and continuing back pain. This resulted in substantial pain from his underlying condition occurring at an earlier date than it would have occurred if the duty injury had not taken place. Subsequently, the SMP Dr Baxendine agreed with the Claimant’s expert Dr Reynolds that “the injury of April 2006 was the major contributor to the ongoing pain and disability”.

Following surgical advice, the Claimant had a discectomy operation on 21 February 2007 which improved his sciatic pain but not his lower back pain. However the improvement did not allow him to return to full operational duties. Dr Reynolds reaffirmed that the April 2006 incident:

“Certainly caused the acute exacerbation of his back pain…the specific new injury in April 2006 was the major contributor to his ongoing pain and disability. Based on his previous MRI in 2004 and his subsequent recovery to operational duties I [would] not expect him to be in this degree of pain and disability purely on the basis of some relatively mild degenerative changes that existed prior to April 2004.”

In his definitive report and decision of 8 October 2008, the SMP concluded:

“My opinion is that his problems are long standing resulting from progressive degeneration and that his condition was merely accelerated by the event of 2006. It could not therefore be considered as an injury on duty, the principle of which is laid down in Russell Jennings –v- Humberside Police (2002) ….The only issue for the Board, I believe, is the question of causation. It is my opinion that his disability does not result from an injury received in the execution of duty …..”

Dr Baxendine was in no doubt as to the Claimant’s level of disability and as to his being permanently disabled from carrying out the ordinary duties of a member of the police force. The issue was causation.

The matter came before the First Defendants, the Police Medical Appeal Board, on 22 July 2009. The Board included a specialist member, Mr Mike Smith, a Consultant Orthopaedic Surgeon. Mr Smith concluded:

“The index injury [i.e. that of 2006] has resulted in an acceleration such that he has now developed chronic and persistent symptoms of fluctuating severity.”

The Board concluded that the effect of the index injury was to bring about a “permanent worsening of a prior condition.”

The Board considered that it was more likely than not that, without the index event, the Claimant’s current degree of disablement would have occurred at some point in the future. They concluded that the index event had brought about an acceleration of the underlying condition, to the point where it prevented the Claimant from carrying out the normal duties of a police officer. It is fair to use shorthand and describe the case as “an acceleration case”.

The Board decided, on that basis, that the event of 27 April 2006 had not caused or contributed to the Claimant’s permanent disablement: they did so precisely because this was an acceleration case, rather than a case where the relevant injury aggravated an underlying condition which would otherwise have remained dormant. Hence, they concluded the Claimant was not entitled to an injury award.

The application for judicial review was lodged on 4 November 2009. The Claimant seeks to challenge both the Authority’s decision to refuse an injury award on the basis of the SMP’s assessment, and secondly the Board’s decision to uphold that refusal on appeal. Permission was granted for judicial review on 17 February 2010. As is the usual position, the First Defendant did not appear, but the Second Defendants have contested the judicial review proceedings, seeking to uphold both prior decisions.

Entitlement to a police officer’s injury award is now founded in the Police (Injury Benefit) Regulations 2006. (“The 2006 Regulations”) It is agreed that for all present purposes, the wording and meaning of these regulations are identical to the precursor Police Pensions Regulations 1987.

The principal criteria for an award under the 2006 Regulations are set out in Regulation 11:

“11 – (i) This regulation applies to a person who ceases or has ceased to be a member of a police force and is permanently disabled as a result of an injury received without his own default in the execution of his duty (in Schedule 3 referred to as “the relevant injury”).

(ii)

A person to whom this Regulation applies shall be entitled to a gratuity and, in addition, to an injury pension, in both cases calculated in accordance with Schedule 3…..”

The interpretation of Regulation 11(i) is dependent on Regulation 8:

“8.For the purposes of these Regulations disablement ……shall be deemed to be result of an injury if the injury, has caused or substantially contributed to the disablement …”

The Regulations provide for a definition of disablement. The relevant passages from Regulation 7 read as follows:

“7 – (1) subject to paragraph (2) a reference in these Regulations to a person being permanently disabled is to be taken as a reference to that person being disabled at the time when the question arises for decision and to that disablement being at that time likely to be permanent.

……

(4)

subject to paragraph (5) disablement means inability, occasioned by infirmity of mind or body, to perform the ordinary duties of a member of the force……..

(5)

where it is necessary to determine the degree of a person’s disablement it shall be determined by reference to the degree to which his earning capacity has been affected as a result of an injury received without his own default in the execution of his duty as a member of police force……”

Part 4 of the Regulations is entitled “Appeals and Medical Questions”. Regulation 30 reads as follows:

“30-(1) subject to the provisions of this part the question whether a person is entitled to any, and if so what, awards under these Regulations shall be determined in the first instance by the police authority.

(2)

subject to paragraph (3) where the police authority are considering whether a person is permanently disabled, they shall refer for decision to a duly qualified medical practitioner selected by them the following questions –

(a)

whether the person concerned is disabled;

(b)

whether the disablement is likely to be permanent

…..and, if they are further considering whether to grant an injury pension, shall … refer the following questions –

(c)

whether the disablement is the result of any injury received in the execution of duty, and

(d)

the degree of the person’s disablement.”

The rationale for the structured approach set out in Regulation 30 was identified by HHJ Pelling QC in his judgment in Doubtfire and Another v West Mercia Police Authority[2010] EWHC Admin 980. At paragraph 5, the judge points out that officers may be retained in service even though permanently disabled, that an officer may be initially retained even though suffering from a disability likely to be permanent, but is subsequently retired as a consequence of that disability, and that officers may be required to retire immediately following the onset of a permanent disability. In paragraph 6 the judge observes that it follows that

“..there can be cases where a decision that an officer is permanently disabled is taken…many months and perhaps years before a decision is taken whether such permanent disability is the result…of an injury received without his own default in the execution of his duty.”

Regulations 34 and 35 provide for an appeal to a Crown Court for certain purposes. Challenged to a decision by a Crown Court on an appeal, or alternatively a challenge to matters which matters which shall not lie under an appeal to the Crown Court are by judicial review.

In the course of the case I sought with the assistance of counsel to clarify the issue. A number of points are not in issue. This Claimant has ceased to be a police officer. He received an injury in the execution of his duty. That injury was without his own “default”. He is permanently disabled within the meaning and for the purposes of the regulations. In short form, the issue is whether the Second Defendants took the appropriate approach to the issue of causation within the Regulations.

Adopting the language of the Regulation, a more precise statement of the legal issue is as follows. Where a person who ceases or has ceased to be a police officer, has received an injury without his own default in the execution of his duty and is permanently disabled, has the injury caused or substantially contributed to the disablement, so that a pension and gratuity should be pursuant to Regulation 11 of the 2006 Regulation, if the disablement would have arisen in any event at a later date, had the relevant injury not been sustained?

The Claimant’s position focuses on the structure and language of Regulation 30 (2) He says the approach to such questions is sequential. The question of disablement is a separate one from injury in the course of duty. The Claimant says that the question of disablement does not arise until the pre-condition of a relevant injury in the execution of duty without the Claimant’s own default is already established. It is at that point, says the Claimant, that the police authority turns to Regulation 30(2) and should approach the questions there set out sequentially. Is the person concerned disabled? If yes, is the disablement likely to be permanent? If yes, is the disablement the result of the relevant injury? And if yes, what is the degree of the person’s disablement? Approached in that sequence there is no requirement to consider whether the permanent quality of the disablement is the result of the injury received in the execution of duty.

The Claimant says, by reason of Regulation 7(1) set out above, the test as to whether someone such as the Claimant is permanently disabled is to be focused at a particular point in time, namely at the date when the assessment is undertaken. It is immaterial to the qualifying provisions under the Regulation that there would in any event have been a similar permanent disablement 10 years, five years or for that matter 3 months later.

The Defendant’s position is directly to the contrary. Relying in part on construction of the language of the Regulations, and on the approach taken in Jennings –v- Humberside Police (supra), the Defendant says that Regulation 11(1) is the “master provision” within the Regulations and requires the person seeking a pension to show that he is “permanently disabled as a result of an injury received:” in other words that the permanent quality of the disability is part and parcel of the relevant disability, and is causally linked to the injury on duty. The permanent quality of the disability, as a consequence of the relevant injury, is a necessary ingredient which is not dispensed with by the provisions of Regulation 7 (1). Mr Pitt-Payne QC for the Defendants accepted that this interpretation requires him to read words into Regulation 30 (2)(c) as follows:

“(c)

whether the disablement [and its permanence] is the result of an injury received in the execution of duty.”

Mr Pitt-Payne argues that the disablement referred to in Regulation 30 must be fully consistent with the phrase “permanently disabled” in Regulation 11(1), what he describes as the “master provision”.

It is conceded by Mr Pitt-Payne (as it has to be) that the term “disablement” cannot have an entirely consistent meaning throughout the whole of the Regulations. The definition of disablement for the grant of an award is that set out in Regulation 7(4), that is to say whether he is able to perform the ordinary duties of member of the police force. The test for determining the degree of disablement for the purpose of calculating the quantum of the award or, pursuant to Regulation 37(1), for calculating any re-assessment of the injury pension, is “determined by reference to the degree to which his earning capacity has been affected”. It is obvious these two tests are discrete. Many disablements will prevent someone seeking an injury award from performing the duties of a police officer, but will not diminish much, or at all, the individual’s earning capacity outside the force. The senior officer who has acquired a law degree and qualifies as a solicitor may very likely find that his ankle arthrodesis does not affect his earnings as a lawyer one whit. Therefore when considering, for example, adjustments to the level of award, the measure of disability is approached in a different way, because a different exercise is in question. Mr Pitt-Payne says this does not mean there are two different meanings of ‘disablement’: - in the one case with the quality of permanence and in the other case without the necessity for permanence – when considering the qualifying conditions for an award.

The reference in Regulation 30(2) (c) is directed to the question of whether a given individual’s “disablement” is sufficient for an award at all. In commonsense terms, it makes sense that such disablement must be a permanent disablement preventing continued operation as a police officer, or it would not be logical to grant a pension. The permanent quality of the disablement is already a requirement under Regulation 30(2) (b). Thus Mr Pitt-Payne argues that the question in Regulation 30(2)(c) must mean that the selected medical practitioner, and then the Board, have to consider whether the permanent quality of the disablement, as well as its current state, has been caused (or substantially contributed to) by the injury received in the execution of duty.

In addition to his approach to construction, Mr Pitt-Payne relies on the case of Jennings –v- Humberside Police [2002] EWHC 3064 (Admin), a decision of HHJ Wyn Williams QC, as he then was, which decision was instrumental in the thinking of the SMP and the decision of the Second Defendants. In that case, His Honour Judge Wynn Williams QC, as he then was, sitting as a deputy High Court Judge in the Administrative Court, construed the 1987 regulations. In brief, Mr Jennings had degenerative disease of the spine which was disabling from duty, and had been accelerated by a relevant injury by about 18 to 24 months. On 13 November 2000 he was found to be disabled from performing his ordinary duties. It was common ground that although as at that date the Appellant would not have been suffering the disabling symptoms had the relevant injury not occurred, he would have suffered from such permanently disabling symptoms very shortly thereafter – a matter of a few months.

The case for Mr Jennings was argued before the court in very similar terms to those advanced to me in respect of Mr Walther. The heart of the judge’s reasoning in rejecting the Claimant’s analysis is to be found in paragraph 29 of the judgment:

“In my judgment the issue of whether an officer is within or without Regulation B4-(1) cannot depend upon the chance of when the various constituents elements of B4-(1) are decided. Put another way, assuming that the evidence as to whether or not an officer is disabled, whether or not the disability is permanent and whether or not it results from an injury remains constant, the answer to the question of whether an officer is entitled under B4 should be the same whether consideration is given to all of the elements of B4-(1) at the same time or on separate occasions. If that is the true analysis, then one has to look at the words of B4-(1) in light of A12-(1) and (2) and A13. When one does that, in my judgment, one is forced to conclude that the disability can only be said to be “the result of any injury if the injury has caused or substantially contributed to the disablement”. Upon that test, this Appellant’s disability was neither caused nor substantially contributed to by the relevant injury.”

In other words, on the facts of Jennings the Judge found that because the disability had only been accelerated to a very limited extent, not created, by the relevant injury, the Claimant fell outside the Regulations.

As a consequence of the Jennings decision, guidance was given by the Home Office. The effect of such guidance can be seen very clearly in the way the SMP approached the application of the law in the instant case. In the course of the record of the decision a crucial passage appears as follows:

“The SMP draws us to the principle laid down in Russell Jennings –v- Humberside Police of 2002 in which the index event merely accelerated long standing progressive degeneration. The SMP concludes that this [meaning Mr Walther’s case] is not aggravation like in the case of Fiske but acceleration like in the case of Jennings.”

The approach thus taken by Dr Baxendine, supported by the Board, was that if it was “an acceleration case”, then without more it fell outside the ambit of an award under the Regulation.

As Mr Lock has pointed out for the Claimant, this rather simplistic reading of Jennings has been effectively disapproved in comment by the Court of Appeal in R (London Fire and Emergency Planning Authority) –v- Board of Medical Referees and Another [2008] EWCA Civ 1515 [the “Fire Authority” case]. In the Fire Authority case the court was concerned with the construction of very similar worded regulations, the Firemen’s Pension Scheme Order 1992 [the “Firemen’s Order”].

The wording of Regulation 7(1) of the Police Regulation, and Regulation A10(1) of the Firemen’s Order are identical. Regulation A10(1) of the Firemen’s Order requires that “References in this Scheme to a person’s being permanently disabled are references to his being disabled at the time when the question arises for decision and to his disablement being at that time likely to be permanent: that is the equivalent provision of Regulation 7(1) of the Police Regulation. Regulation A10(2) of the Firemen’s Order stipulates that “…disablement means incapacity, occasioned by infirmity of mind or body, for the performance of duty”, the equivalent of Regulation 7(4) of the Police Regulation The equivalent of Regulation 11(1) of the Police Regulation set out above, is Regulation B4(1) of the Firemen’s Order, which reads “This rule applies to a regular firefighter who has retired and is permanently disabled if the infirmity was occasioned by a qualifying injury”

Under the Firemen’s Order, the Fire fighter needs to show that the relevant injury had “caused or substantially contributed to an infirmity.” Of course a qualifying disablement under the Firemen’s Order, just as under the Police Regulation, has to be “permanent” (Regulation A10(1) and “occasioned by infirmity of mind or body” (Regulation A10(2)).

During the hearing, neither counsel sought to make any distinction between the two regulations for any present purpose. Both assumed no relevant distinction arose. Both sides therefore treated the remarks of the Court of Appeal as having application to this case. However, I requested both sides to consider the wording of the two regulations and ensure there was indeed no material distinction to be made between them. In written submissions made after the hearing, Mr Lock for the Claimant maintained that position, however Mr Pitt-Payne did not.

The Defendant now submits that B4(1) of the Firemen’s Order, reading in its material words “This rule applies to a regular fire fighter who has retired and is permanently disabled if the infirmity was occasioned by a qualifying injury” has a different meaning from the Police Regulation 11(1). I reject this. The words of the Firemen’s Order quoted above make it perfectly clear in my judgment that in order to qualify under the Order, the successful claimant must have sustained a permanent disablement, derived from an infirmity brought about by a qualifying injury. There is no distinction of meaning in the language. In each case, the successful claimant under the scheme must be permanently disabled from duty because of a qualifying injury on duty. In my judgment therefore the remarks made in the Fire Authority case are apt to be taken into account in relation to the Police Regulation.

In his judgment at first instance, Michael Supperstone QC considered the Jennings case and concluded that:

“In my view [Jennings] did not lay down any general principle that police authorities or medical referees were obliged to find that an injury that accelerates the onset of symptoms in an already degenerate part of the body cannot substantially contribute to the disablement …….the causation question is essentially a medical question to be determined by doctors. Jennings has not affected the role of the decision-maker under the scheme to determine, in the light of the medical evidence in a particular case, where the qualifying injury has made a substantial contribution to the infirmities.”

In his leading judgment in the Court of Appeal, Tuckey LJ agreed with the way the judge in the Fire Authority case had dealt with the Jennings case at first instance. He said:

“There is …..no one answer to the questions which I have posed. Each case must depend upon its own facts and be left to the assessment of the medical jury. If the injury is trivial it will be open to a Board to conclude – as the Judge did in the Jennings case – that the necessary causal link between the injury and the infirmity has not been made out. Likewise, if, for example, the affected joint had begun to show signs of arthritis before the qualifying injury occurred. On the other hand, it does not follow that, because the injury has merely accelerated the onset of symptoms a causal link cannot be made out. It is common ground that it will be made out in a case where the condition has been aggravated by the injury, but there is not, in my judgment, any bright line between cases of acceleration and cases of aggravation.”

As I have said, Mr Pitt-Payne accepted during the hearing that I must consider the Jennings authority with the remarks of the Court of Appeal in the London Fire Authority case in mind. For the reasons I have just given, it seems to me that concession was correct. He went on to concede as a consequence that under the Police Regulation there may be cases of acceleration, where a medical board can properly conclude that the relevant injury had made a substantial contribution to a permanent disability. However, he declined to offer any formulation of the approach which the SMP or Board should adopt to the point. He argued that it was a matter of fact for an expert “jury” and that simple deference required the courts to let the experts approach the question as they wished.

I make two observations on that argument. Firstly, it leaves the position for the Board quite unclear: what is the approach they should take to an acceleration case? Secondly, once it is conceded that an acceleration case may fall within the Regulation, it seems to me that the decision taken in the instant case can no longer be defended. Dr Baxendine’s advice was to the effect that acceleration cases fell outside the Regulation, and that advice was followed.

Turning to the arguments for the Claimant, Mr Lock relies upon the observations in the Court of Appeal in the London Fire Authority case to suggest that the Jennings approach was wrong, but does not himself approach the case in a way consistent with the remarks of Lord Justice Tuckey. The thrust of Mr Lock’s argument is that one takes a snapshot of the level of the disability at the relevant time in the process set out in paragraph 30(2), and that the question of acceleration is irrelevant. If the disability is of sufficient degree at the moment of the snapshot, the fact that it would have arisen anyway within a very short time is to be ignored. That too does not strike me as either sensible practice or good law.

In my judgment, the proper approach here is relatively simple to state. The level of disability required is clear from the Regulation. It is in fact an incapacity test: the officer is unable to perform his or her normal duties. The incapacity must be permanent. Thus the relevant condition is “a permanent disability”: permanence must be a quality of the disability.

Permanence is given two definitions in the Oxford English Dictionary:

A short acceleration of the onset of a permanent disability is unlikely to be held to be a “substantial” contribution to that disability. Acceleration to any degree is some contribution, but not likely to be regarded as substantial. The opposite applies, it seems to me. A significant acceleration - taking the extreme case, an acceleration of a decade or more - clearly would be a significant contribution to a permanent disability. Where the dividing line comes must be a matter of fact in each case. In my judgment such an approach is consistent with the language of the Regulation and with common sense.

For those reasons, I find for the Claimant, and quash the decisions of the SMP and the Board. The Claimant’s application for a pension is remitted to the SMP for re-consideration.