April 2016

Workers Compensation Commission determines meaning of "paramedic"

Clause 25 of Part 19H of Schedule 6 of the Workers Compensation Act 1987 (“the 1987 Act”), provides the amendments made by the 2012 amending Act do not apply to an injury received by a police officer, paramedic or firefighter.

In a recent decision of State of New South Wales v Stockwell (No 2) [2016] NSWWCCPD 19, President Judge Keating confirmed the determination of Senior Arbitrator Michael Snell that the worker, was employed as a “paramedic”.

Facts & proceedings before the Arbitrators and the Deputy President

The worker injured his back whilst employed as an operational ambulance officer.  In 2008 the relevant industrial award category for ”Ambulance Officer Grade 2” , changed to “paramedic”. 

As a consequence of his back injury, the worker applied for and was successful in being assigned to the position of operations centre officer (000 call taker) in late 2000 or early 2001, responding to emergency calls.  Whilst so employed, the worker suffered a psychological injury (deemed to have occurred on 31 January 2007), for which he sought compensation.

The worker’s primary role as an operations centre officer was to co-ordinate emergency and routine response for ambulance officers and patient transport officers out of the employer’s Northern New South Wales Operations Centre at Newcastle.  The worker gave evidence that, in the course of his duties as an operations centre operator, he also gave medical advice to emergency service workers and members of the public.  This evidence was challenged by the employer.

Following the arbitration on 29 July 2014, Arbitrator Robert Foggo ultimately determined the worker was a “paramedic” within the meaning of clause 25 of Part 19H of Schedule 6 of the 1987 Act and consequently, the 2012 amendments did not apply.  Arbitrator Foggo thought the fact the worker was not physically present at the scene of an accident, was immaterial.

The employer successfully appealed the Arbitrator’s decision.  In his determination, Deputy President Roche found the Arbitrator erred in a number of material respects, which were primarily of a factual nature.  The Deputy President thought the Arbitrator’s finding that it was up to the employer to establish the worker was not a paramedic was wrong and the onus of proof was on the worker to prove he was a paramedic. 

The Deputy President found the issue to be determined was whether the worker was, at the time of his injury, employed as a paramedic (which was not a specific finding made by Arbitrator Foggo).  He expressed the opinion, an employee who met the definition of paramedic in the Operational Ambulance Officers (State) Award, and who worked at the operations centre, was a paramedic under clause 25, regardless of the nature of the duties he or she performed.  He ordered the Arbitrator’s determination be revoked and remitted the matter to another Arbitrator for re-determination.

Senior Arbitrator Michael Snell found at the time of his injury on 31 January 2007, the worker was classified as an Ambulance Office Grade 2 (that is a paramedic) and was remunerated on that basis.  Senior Arbitrator Snell found this was consistent with him being a paramedic and it did not matter that he was not performing front line operational duties of a paramedic when he suffered his psychological injury.

Appeal to the President

The employer challenged the finding that the worker was a “paramedic”.  The primary argument was that clause 25 exempts ambulance officers or paramedics who are engaged in front line operations responding to emergency situations or in positions of high peril. 

The employer disputed a paramedic in clause 25 was as described in the relevant Operational Ambulance Officers (State) Award.   The employer submitted the definition of paramedic turned on the worker’s employment activity as set out in the decision of Boland J in Australian Workers Union, NSW v Office of Environment and Heritage [2012] NSWIRCom [133] (AWU) and not his employment category, as set out in the decision of Walton J in Chapman-Davis v State of New South Wales [2015] NSWIRCom [10] (Chapman-Davis).

The President formed the view once the Senior Arbitrator accepted the worker satisfied the Award classification of “Ambulance Officer Grade 2” it was open to him to find the worker was a “paramedic” for the purpose of the application of clause 25.  The President found it was not relevant whether the worker gave clinical advice as a paramedic or simply directed ambulances to specific locations, once the Senior Arbitrator made this finding.  In other words, he accepted it did not matter what duties he was carrying out when injured – he either came within the definition or he did not.

The President upheld the Senior Arbitrator’s finding that the worker continued to be classified and paid as an Ambulance Officer (paramedic) by reason of the application of the relevant Award provisions.  The President did not believe there was any inconsistency in the worker being unable to work in the field as a paramedic, because of his back injury, and his continuing to be employed as a paramedic.

The President accepted the Senior Arbitrator correctly found the worker, by reason of his training and experience, satisfied the criteria for the classification of “Ambulance Officer Grade 2” in accordance with the 2006 Award.

The President rejected the employer’s submissions that Boland J’s views in AWU that the amendments proposed by Parliament were intended to apply only to those persons who are working at the “front line”.  The President accepted the conclusions made by Walton J in Chapman-Davis that, upon the proper construction of clause 25 of Part 19H of schedule 6, the meaning of the term “paramedic” denoted an employee who was classified as a paramedic by virtue of the operation of the Award.

The President considered this construction was consistent with the general intent of the workers’ compensation scheme, as revealed by the definition of “injury” in the 1987 Act, which he thought was not governed by whether a worker was performing particular duties at the time of injury, but rather, whether the injury arose out of or in the course of employment. 

The President agreed with Walton J in Chapman-Davis that the narrow construction proposed by the respondent was inconsistent with the beneficial nature of schedule 6 in the 1987 Act.  The President thought the construction of schedule 6 should be given a liberal rather than a “literal or technical” meaning.  The President considered although Chapman-Davis was not strictly binding on the Commission, the Commission should follow a considered and reasoned decision of the Industrial Relations Commission of NSW (being a superior court of record when sitting as the Industrial Court of NSW as it was in Chapman-Davis).

The President held Senior Arbitrator Snell did not err in concluding that, by reason of his satisfying the relevant Award classification, the worker was employed as a “paramedic” whilst employed at the Northern NSW Operations Centre and was therefore exempt from the operation of the 2012 amending Act.  The President agreed with Senior Arbitrator Snell the actual duties performed by the worker at the Operations Centre, whether they involved giving paramedic advice and instruction or merely directing ambulances, was immaterial to the Senior Arbitrator’s finding that he came within the definition contained in the applicable Award. 

(A similar finding was made by Senior Arbitrator Snell in D’Angelo v NSW Police Force [2016] NSWWCC 544 where a special constable was found not to be a ‘police officer’ within the meaning of Schedule 6, Part 19H, clause 25 of the 1987 Act as he did not fall within the definition contained in the Police Act 1990 and the Police Regulation 2000).

As such, President Judge Keating confirmed the determination of Senior Arbitrator Snell of 15 December 2015.

Implications

What we learn from this decision is that you need to go beyond what duties a worker is performing at the time of his or her injury or what their current role is, but how they are classified in order to come within clause 25.

The decision opens the doors for arbitrators to find employees of either Ambulance Service of NSW, NSW Police Force or Fire and Rescue NSW are paramedics, police officers or firefighters if they come within the definition contained in the applicable award, regardless of whether they are performing emergency or rescue work at the “front line”, and they are paid an allowance because of their qualifications. 

Author:  Judith Edwards

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