Update: Fisher Revisited
Oh dear. Nicholas Wirz, Northumbria’s solicitor, isn’t getting any love from his fellow legal practitioners. Indeed they seem to totally contradict Wirz’s own interpretation of the Fisher judicial review, the one that he lost, and at the same time these real legal eagles agree with our own explanation.
Let us remind you what we said:
Monsters are real, and ghosts are real too. They live inside us, and sometimes, they win."~ Stephen King In the Autumn…iodpa.org
And here is what the unprofessional lawyer Wirz told NWEF delegates in March 2017:
Ground 1 of the Fisher judgement related to comparator and the use of Police Salary, the high court judge quashed the PMAB determination for the reasons that the comparison between injured and uninjured earnings was not analysed sufficiently and there was no rationale as to why police officer salary was not used.
Clarification is provided by this judgement that police officer salary would be the correct comparator where the former officer has only one qualifying injury and is otherwise healthy
Sarah Simcock writes in UK Police Law Blog, a blog of the Serjeant’s Inn barrister Chambers, that it isn’t about being otherwise healthy as Wirz told the NWEF conference, and it clearly isn’t about always using the police salary as the uninjured comparator — like we say, someone could have been underemployed as a police officer and their uninjured earning capacity can be a lot higher. We used an example of a maxillofacial surgeon.
And if you read all of what Sarah and her fellow professionals of barristers and lawyers actual think … it’s fair to say you will decide that our explanation is closer to the truth.
The Fisher decision does not obligate an SMP or PMAB to use the officer’s police earnings prior to injury in all cases, it merely stresses that they must form part of the consideration or act as a starting point. If there are good reasons in a particular case for a departure from that level of earnings it is permissible, but it must be objectively justified on the facts of the particular case and on the evidence available.
What is crucial is that there must be sufficient reasons provided to justify a decision in relation to the level of a particular officer’s uninjured earning capacity.
The recent decision of the High Court upon an application for judicial review of a Police Medical Appeals Board (‘PMAB’) decision in the case of R (Fisher) v (1) Chief Constable of Northumbria (2) PMAB  EWHC 455 (Admin) highlights the pitfalls in the assessment of a former officer’s uninjured earning capacity when reviewing the level of an injury pension under regulation 37 of the Police (Injury Benefit) Regulations 2006.
We think people should stop listening to Nicholas Wirz. Northumbria could save millions by paying him to stay at home in a locked broom cupboard.