Commissioner of Police of the Metropolis v The Police Medical Appeal Board

For an injury award under the Police (Injury Benefit) Regulations 2006, the relevant question is whether, when the medical question is referred for decision, the duty injury has caused or substantially contributed to permanent disablement. A pre-existing degenerative condition does not prevent an award merely because the injury accelerated symptoms which would otherwise have appeared later. The extent of the acceleration is not determinative. The assessment is fact-sensitive and will usually depend on the seriousness and effects of the injury. An award may subsequently be reassessed under regulation 37 if the underlying condition overtakes the effects of the qualifying injury.

The Commissioner challenged the Police Medical Appeal Board’s decision allowing David Walther’s appeal against refusal of a police injury pension. Mr Walther had a pre-existing degenerative back condition but was performing full duties until a fellow officer jumped on his back during training in April 2006. He subsequently developed severe symptoms, underwent surgery and was medically retired.

The Board concluded that the injury had substantially contributed to his permanent disablement. The central issue was whether an injury pension was available where the duty injury accelerated disablement arising from an underlying degenerative condition, and whether the extent of that acceleration determined entitlement.

1. Claim dismissed. The Board had lawfully allowed the Interested Party’s appeal, and its decision was not amenable to judicial review.
2. Under regulations 7(1) and 8 of the Police (Injury Benefit) Regulations 2006, the relevant time is when the police authority refers the medical questions to the selected medical practitioner. If the officer is then permanently disabled and the duty injury has caused or substantially contributed to that disablement, entitlement to an injury award arises.
3. The concepts of acceleration and aggravation should not determine entitlement. The true question is whether, at the relevant time, the injury substantially contributed to permanent disablement. That is a question of fact, ordinarily assessed medically, having regard particularly to the seriousness of the injury and its effects.
4. The fact that disablement would eventually have occurred because of an underlying condition does not, by itself, defeat entitlement. The extent of the acceleration is not determinative. An injury likely to produce a period of lost earning capacity may constitute a substantial contribution even if the underlying condition would later have caused disablement.
5. Regulation 37 permits reassessment of the injury pension. If the underlying condition later subsumes the effect of the duty injury, the pension may be reduced or otherwise revised. The regulations therefore do not require entitlement to be denied at the outset merely because the injury’s effect may be temporary.
6. There was ample evidence that the injury caused new symptoms, increased incapacity and inability to return to work. The Board was entitled, and in the circumstances bound, to conclude that the injury substantially contributed to the disablement. Even on the alternative acceleration approach, the result would have been the same.

The judgment records earlier judicial review proceedings concerning the same injury award, including a decision by Irwin J which quashed an earlier refusal. Those proceedings formed part of the background to this separate challenge to the Board’s decision of 21 December 2011.