M. Eburn

NSW workers compensation and when is a volunteer a paramedic?

In Ambulance, Volunteer compensation on July 31, 2015 at 9:49 am

This question came as an email comment on my earlier post ‘NSW workers compensation and when is an employee a firefighter? or a paramedic?‘ (July 30, 2015).  Even though it was sent as a comment I thought it warranted its own post:

It has come to my attention that there may be an interesting gap in workers compensation coverage which was not anticipated in drafting the current NSW arrangements which you have recently discussed.

My question relates to NSW Ambulance volunteers who are neither paid employees of the service, nor are they strictly paramedics.

These officers include Community First Responders and Volunteer Ambulance Officers (previously described as “Honorary” officers), they perform many of the same functions as paid Ambulance Paramedics including responding in normal ambulance operational uniform, driving ambulance vehicles under ‘urgent duty or R1’ conditions, assessing treating and in some instances transporting patients according to the relevant protocols and pharmacologies.

From my reading of both the Workers Compensation (Bush Fire, Emergency and Rescue Services) Act 1987 (NSW) and also the Work Health and Safety Act 2011 (NSW) whilst being considered volunteers and therefore workers for the purposes of the more recent legislation’s scope, the earlier legislation is silent in relation to the broader position of these officers – perhaps it was reasonably assumed at the time that they would be considered ‘Ambulance Officers” for the purposes of workers compensation arrangements.

My question is – are these officers afforded the more generous protections of the earlier workers compensation arrangements as are their paid paramedic and Firefighter CFR colleagues.

There is a difference between Community First Responders and Volunteer Ambulance Officers.  This is what NSW Ambulance says about Community First Responders:

Community First Responders are accredited and operate under NSW Ambulance governance and training. The majority of volunteers respond under a formal Memorandum of Understanding with the State Emergency Service, the Rural Fire Service, or the NSW Fire Brigades. Community first responders do not operate from a NSW Ambulance or health facility, do not have a ambulance vehicle and do not transport patients.

Community First Responders who are volunteering or responding in their capacity as an SES or RFS volunteer or FRNSW retained firefighter will be entitled to compensation under the scheme that applies to their agency.  RFS and FRNSW firefighters are, by definition, firefighters so the 2012 amendments won’t apply to them.  SES volunteers are not fire fighters but in line with the decision in both In Ware v NSW Rural Fire Service [2014] NSWWCCPD 33 and New South Wales v Stockwell [2015] NSWWCCPD 9 they could argue that if they are injured whilst providing ‘specialist primary care to the injured or sick’ they were at that time a ‘paramedic’ (in the same way that Mr Ware would have been considered a firefighter when working at the fire ground) and so the amendments do not apply to them.

Volunteer Ambulance Officers (or as they were called ‘in my day’, Honorary Ambulance Officers – I served as an Honorary at Coonamble Station in 1989 and 1990) directly volunteer to the Ambulance Service.   According to the Ambulance Service:

Volunteers [sic] Ambulance Officers are accredited, trained and administered under the direct jurisdiction of NSW Ambulance. Volunteers may be attached to a station, a hospital or operate through an established volunteer station with assistance from neighbouring stations. Volunteers ambulance officers respond in an ambulance vehicles and can transport patients.

Their compensation rights are not determined by the Workers Compensation (Bush Fire, Emergency and Rescue Services) Act 1987 (NSW) but by the Workplace Injury Management and Workers Compensation Act 1998 (NSW).  Schedule 1 to that Act ‘deems’ certain people to be employees and one class of deemed employees is ‘Voluntary ambulance workers’ (cl 16).   The definition of a voluntary ambulance worker is ‘A person who (without remuneration or reward) voluntarily and without obligation engages in any ambulance work with the consent of or under the authority and supervision of or in co-operation with the Health Administration Corporation …’  That could include community first responders so an SES volunteer may want to argue that this provision, rather than the  Workers Compensation (Bush Fire, Emergency and Rescue Services) Act 1987 (NSW) applies as it may be more generous.

For Voluntary Ambulance Officers this is clearly the governing provision.  They are deemed employees and so the question would become ‘are they deemed paramedics?’  The answer, in my view, would be ‘yes’.   They are volunteering to provide ‘specialist primary care to the injured or sick’ (and the care they are providing is ‘specialist’ even if it is not at the level of an intensive care paramedic).  They are not volunteering to provide mechanical repairs or work in the office but to respond to emergency calls and if necessary transport patients.  It would be my view that they should, and would, be regarded as ‘paramedics’ and the 2012 rules would not apply.   You can see from Stockwell’s case however, that the insurer may not always agree with what seems obvious and dare I say it, right, so they may well want to argue that the exemption for paramedics does not apply to volunteers.  If that were the case a volunteer may end up arguing the point before the Commission.  In my view, and consistent with these earlier cases, the exemption from the 2012 amendments would extend to volunteer ambulance officers.

Bills for Presumptive legislation for firefighters introduced to the Queensland Parliament.

In Fire, Volunteer compensation on July 30, 2015 at 4:06 pm

In December 2014 the then Queensland Premier, the Minister for Police, Fire and Emergency Services and the Rural Fire Brigades Association of Queensland (the RFBAQ) announced that the Queensland Parliament would consider ‘legislation to ensure that volunteer firefighters who contract certain cancers will be entitled to compensation without having to prove a direct link between their firefighting and the illness’ (see ‘Landmark legislation to protect [Queensland] firefighters’ (December 11, 2014))

Today there are two Bills before the Queensland Parliament.  The Workers’ Compensation and Rehabilitation (Protecting Firefighters) Amendment Bill 2015 is a Private Members Bill introduced by the Member for Kawana on 3 June 2015.  The Workers’ Compensation and Rehabilitation and Other Legislation Amendment Bill 2015 was introduced by the Treasurer, Minister for Employment and Industrial Relations and Minister for Aboriginal and Torres Strait Islander Partnerships on 15 July 2015.

A correspondent has written to me asking if I ‘might be able to offer an opinion that summarises these bills and the respective impacts to legislative outcomes in simple English? The volunteer association is heavily petitioning volunteers, media and political members in Queensland in favour of Bill 2 which only deals specifically with the presumption for specified cancers, whereas the other bill  (Bill 1) provides this and other unrelated amendments to the act in question and others’.

My correspondent’s email is long so I will give my interpretation of the Bills and deal with the issues raised without reproducing the email and questions in full.

Workers’ Compensation and Rehabilitation (Protecting Firefighters) Amendment Bill 2015

This is a short Bill that would, if passed, amend the Workers’ Compensation and Rehabilitation Act 2003 (Qld) by providing that if a person develops a disease listed in column 1 of the table and the person is, or has been, employed as a firefighter for the relevant number of years listed in column 2, then the disease is presumed to have been caused by the employment.

The table from the Bill is reproduced below:

Column 1 Column 2
Disease Minimum number of years as firefighter
primary site brain cancer 5 years
primary site bladder cancer 15 years
primary site kidney cancer 15 years
primary non-Hodgkin lymphoma 15 years
primary leukemia 5 years
primary site breast cancer 10 years
primary site testicular cancer 10 years
multiple myeloma 15 years
primary site prostate cancer 15 years
primary site ureter cancer 15 years
primary site colorectal cancer 15 years
primary site oesophageal cancer 25 years

The Bill refers to ‘employment as a volunteer’ (s 32A(3)(b) and 32A(4)).  Employment is said to include ‘engagement’ (s 32A(7)).

The first problem is that volunteers are not employed.  There is no deeming provision in the Bill.  The Workers’ Compensation and Rehabilitation Act 2003 provides for compensation for volunteers including volunteer firefighters.  It says (at ss 14 and 15) that WorkCover may enter into contracts of insurance to cover volunteer firefighters but a person is only entitled to compensation ‘while performing duties, including being trained, as a member of the rural fire brigade’ or as a volunteer fire fighter or volunteer fire warden.  Under that contract ‘the activity covered by the contract is taken to be the person’s employment; and (b) the party with whom WorkCover enters the contract is taken to be the person’s employer’ (s 12(3)).  One can infer that a court asked to apply the Bill (should it become an Act) would infer an intention to deem volunteer firefighters as employees.

Who is to be counted as a fire fighter is not clear.  A person can join a fire brigade and undertake an ancillary role, such as communications or catering or office manager – are they are a firefighter?  My correspondent does ask:

In your opinion, does Bill 2 prevent persons from joining a brigade to obtain cancer compensation without active participation?

The answer is ‘not clearly’.  One could join a brigade and serve for 15 years and claim to be eligible for compensation if they develop prostate cancer even if they have never been to a fire.  One can imagine that if one’s volunteer duties had been limited to working in the office, the insurer would argue that the volunteer was not a volunteer firefighter but that would be difficult if they have done the basic training and received a uniform.  This would raise the sort of issues that NSW has faced ((See see ‘Who is a firefighter in NSW? (November 30, 2012) and NSW workers compensation and when is an employee a firefighter? or a paramedic? (July 30, 2015)) so it would be up to a court to determine who is a firefighter.  If the volunteer is found to be a volunteer firefighter they would be eligible regardless of the number of fires they attended over the course of their volunteering.

Workers’ Compensation and Rehabilitation and Other Legislation Amendment Bill 2015

The second Bill is much more comprehensive which no doubt reflects its standing as a government Bill drafted, no doubt, by experienced Parliamentary Counsel.  Relevantly this Bill would, if passed, introduce a new Subdivision 3B dealing with injuries sustained by firefighters.   ‘Firefighter’ will be defined to include members of a rural fire brigade and ‘a volunteer fire fighter or volunteer fire warden engaged by the authority responsible for the management of the State’s fire services’ (s 36B).    It will be clear who is a volunteer fire warden, defining who is a volunteer fire fighter will again raise issues of what their key role is.   A person may, presumably, be a member of a fire brigade without ever intending to actually fight a fire as they may take on ancillary roles within the brigade.

The Bill will amend the various provisions dealing with volunteers to provide that volunteers are unable to get damages.  Damages are defined as ‘damages for injury sustained by a worker in circumstances creating, independently of this Act, a legal liability in the worker’s employer’ (Workers’ Compensation and Rehabilitation Act 2003 (Qld) s 10).  That is an injured worker is entitled to compensation under the Act, if they can show that for some other legal reason their employer would be liable to pay damages (what we really mean here is if they can establish the employer was negligent) they can also recover damages.  The Bill, if passed, would mean a volunteer can recover workers compensation but cannot sue the organisation for which they volunteer for damages (see Workers’ Compensation and Rehabilitation and Other Legislation Amendment Bill 2015 cl 14) but this would not extend to volunteer firefighters who could sue for damages if they develop one of the diseases listed in the table.  The table in this Bill is the same as the table in the Workers’ Compensation and Rehabilitation (Protecting Firefighters) Amendment Bill 2015 and reproduced above.

Apart from being a firefighter or member, there will be other qualifying conditions.  For employed firefighters they must have been employed for the number of years shown in column 2, above.  A volunteer firefighter must have attended at least 150 exposure incidents that is a fire where the firefighter ‘participates in extinguishing, controlling or preventing the spread of the fire’.  The Bill provides that in calculating the years of employment, only ‘periods during which the person is required, as part of the person’s employment as a firefighter, to attend exposure incidents’ are to be counted.  Employment as a firefighter but away from firefighting duties eg in community education or senior management, do not count if the employee is not require to attend fires.

The Bill contains relevant deeming provisions to ensure that the protection is extended to volunteers even if they are not employed.

Interestingly the presumption that the disease is caused by work as a firefighter is rebuttable in the second Bill.  That is if the first Bill were to become law and a firefighter met the qualifying conditions then the disease was caused by their firefighting career.  If the second Bill were to become law the disease is presumed to have been caused by their firefighting exposure unless it is shown that it was not so caused (s 36D(3)).

The Bill will not be retrospective that is it will not apply to firefighters diagnosed with a relevant disease before the Act commences operation (s 712).

My correspondent does say;

A key concern for me is that most of the propaganda at present includes references that Bill 1 contains a 10 year limitation to make claims for volunteers which I cannot derive from reading this instrument.

I too can’t see a 10 year limitation in the Bill but that may be a detail hidden in the Workers’ Compensation and Rehabilitation Act 2003 (Qld) or some statute of limitations hidden somewhere.  if there is such a limit it does not appear in this Bill.

Summary

The Government Bill is much more comprehensive and makes appropriate provision to ensure that volunteer firefighters are covered in the scheme.  Whilst it is clear they are meant to be dealt with in the Private Members Bill the reference to employment is ambiguous.  On the other hand, the Government Bill creates a rebuttable presumption that the listed disease is caused by a person’s exposure as a firefighter whilst the Private Members Bill determines the issue conclusively.    The Government Bill is much clearer in imposing requirements that a person is actually exposed to fire and not merely a member of a brigade in roles that may not include actual firefighting.    Limitations could be implied into the Private Members Bill by reference to the word ‘firefighter’ rather than ‘a member of a brigade’ but those limitations would have to be implied and would not doubt require a test case, such as those seen in NSW.

The reality is that a private members Bill is unlikely to see the light of day, so one would assume that is the government Bill, if either of them, that will become law.

NSW workers compensation and when is an employee a firefighter? or a paramedic?

In Ambulance, Fire, OHS, Volunteer compensation on July 30, 2015 at 2:21 pm

This question is important because back in June 2012 the NSW Workers Compensation laws were changed to make it harder to qualify for compensation.  Police officers, firefighters and paramedics were exempt from the changed rules (see ‘Fire fighters and paramedics exempted from workers compensation changes (June 22, 2012).   It is important, therefore, for all parties to know whether an employee is a firefighter or paramedic as that makes a significant difference to their compensation rights. On 29 November 2012 the NSW Industrial Relations Commission gave a ruling in the context of an industrial dispute (see ‘Who is a firefighter in NSW? (November 30, 2012)).

The issue has now arisen in two compensation claims, both heard by Deputy President Roche of the Workers compensation Commission.  In Ware v NSW Rural Fire Service [2014] NSWWCCPD 33 (3 June 2014) he had to determine whether an employee of the RFS was a ‘firefighter’ and in State of New South Wales v Stockwell [2015] NSWWCCPD 9 (10 February 2015) he had to determine whether or not the employee was a paramedic.

Firefighter – Ware v NSW Rural Fire Service [2014] NSWWCCPD 33

Mr Ware was employed by the RFS as a mechanic.  Mostly he worked in the RFS workshops but on occasion he would have to be at the fire front to maintain the firefighting appliances: ‘When he attended the fire front, he was often as close to the fires as “the people holding the fire hoses”. Since 2001, he attended the fire front, to carry out emergency repairs on fire-fighting equipment, on about 31 occasions” [7].   As a result of his work he suffered industrial deafness.  With the 2012 amendments he would no longer be eligible for compensation as he did not meet a statutory threshold of a whole of person impairment of 10%. If he was a firefighter, that threshold did not apply.

The Deputy President found that Mr Ware was not a firefighter.  He said (at [42]-[46], [58]):

I have concluded that the legal meaning of firefighter corresponds with its normal grammatical (dictionary) meaning and there is nothing in the context, purpose or policy … that leads to a different conclusion. It follows that firefighter means “someone whose activity or employment is to extinguish fires, especially bushfires”.  As Mr Ware was employed as a mechanic, not a firefighter, he is only a firefighter … when he is engaged in providing support at the fire front during a fire.

The interpretation urged by Mr McManamey extends the meaning of firefighter from “someone whose activity or employment is to extinguish fires” to include someone “involved in the task of extinguishing fires”, however remote and indirect that involvement may be. Such an interpretation would result in the respondent’s receptionist being a firefighter. That is an artificial extension of the meaning of firefighter that is not justified by the words used, or by the context in which they appear [in cl 25 of Pt 19H of Sch 6 to the Workers Compensation Act 1987].

The argument that cl 25 directs attention to the type of employment, not the individual duties being carried out at the time of injury, does not assist Mr Ware. Mr Ware’s “type of employment” was that of a mechanic: he maintained and repaired equipment for use in fighting fires. Though it may be accepted that the maintenance of that equipment is necessary for the efficient operation of the respondent’s activities, that does not change the essential character or “type” of Mr Ware’s employment. He was and is a mechanic and, plainly, not a firefighter.

The argument that police officers are exempt, regardless of the activity in which they are engaged, does not advance Mr Ware’s position. The term police officer is defined in s 3 of the Police Act 1990 to mean “a member of the NSW Police Force holding a position which is designated under this Act as a position to be held by a police officer”. It follows that a person who meets that definition is exempt from the amendments, regardless of the activity in which he or she is engaged at the time of injury… There is no similar definition of a firefighter… there is no support for the argument that a person employed as a mechanic should, while working as a mechanic in a workshop, be considered a firefighter.

The Deputy President did agree that Mr Ware would be considered a firefighter ‘when he was repairing equipment at the fire front, which was an integral part of the job of extinguishing fires. If, at those times, workers such as Mr Ware were injured they would be exempt from the amendments and entitled to compensation according to the terms of the applicable legislation’ [64].  With industrial deafness however, it was not a specific injury that could be attributed to the work on the fire ground nor did the Act allow for there to be a finding as to what part was caused when firefighting ad what part was caused in the workshops.

Conclusion

Even though employed as a mechanic, when working on the fire ground ‘an integral part of the job of extinguishing fires’ Mr Ware would be considered a firefighter.   That would affect his compensation rights if injured on that fire ground but did not assist in this case because of the nature of industrial deafness.  The fact that he was employed by a fire service and would, on occasions, undertake firefighting duties did not change the substantive nature of his employment from ‘mechanic’ to ‘firefighter’.

Paramedic – State of New South Wales v Stockwell [2015] NSWWCCPD 9

Mr Stockwell was employed as a paramedic when he joined NSW Ambulance in 1996.   In 2000 he received a ‘Diploma Paramedic Science (Pre-hospital Care)’ [sic].  By the start of 2001 Mr Stockwell’s employment changed and he moved into the Northern New South Wales Operations Centre at Newcastle.  Deputy President Roche summed up relevant facts at [7]-[8]:

Mr Stockwell’s primary role as an operations centre officer was to co-ordinate emergency and routine response for ambulance officers and patient transport officers in a given geographic area. He gave evidence that, relying on his skills and knowledge as a paramedic, he gave medical advice to emergency service workers and members of the public.

As a result of his work as an operations centre officer, Mr Stockwell suffered a psychological injury, with a deemed date of injury of 31 January 2007, which was (presumably) the date of his incapacity and the date on which he stopped working. Mr Stockwell ceased employment with the appellant on 10 August 2007.

On 14 November 2012 the workers compensation insurer (and note that it was the insurer, not the Ambulance Service) advised Mr Stockwell that as he was not a paramedic at the time of his injuries, his future entitlement to compensation would be determined by the ‘new’ (2012) rule.  So the question for the Commission was ‘At the time of his injury, 2007, was Mr Stockwell still a ‘paramedic’?’    The insurer argued that ‘As Mr Stockwell was not “rostered on-road and not performing ‘in the field’ emergency/casualty response duties”, he was not “an operational paramedic”.’ [25]

The matter was originally heard by an arbitrator who determined that ‘Mr Stockwell was a paramedic employed by the appellant and that he was doing the work of a paramedic, which included giving advice in emergency situations to injured members of the public, emergency services personnel and others. [The arbitrator] did not consider it necessary that, to be a paramedic, Mr Stockwell be at the scene of an emergency’ [29].  The insurer appealed.

The arbitrator had found that ‘[Mr Stockwell’s] employment required him to be a qualified paramedic”’ [87].   Deputy President Roche held that this was not what the evidence showed.   The Award only required that a person in this position ‘holds a first aid certificate, with re-certification every three years for non-uniformed employees’.  Mr Stockwell did maintain his paramedic qualifications but it was not necessary for him to do so as part of his work.   As the Deputy President said (at [88]):

Mr Stockwell’s evidence does not establish that the terms of his employment required him to be a qualified paramedic, at least while he worked in the operations centre. His evidence was merely to the effect that, to renew his “paramedical qualifications”, he was required to do a re-certification “as a paramedic every two to three years”. This evidence was merely that Mr Stockwell did in fact maintain his qualifications. It did not justify a conclusion that it was a term of Mr Stockwell’s employment, at the operations centre, that he be a qualified paramedic. This conclusion is reached independently of the evidence in the Position Description, but is consistent with it.

Mr Stockwell argued that he ‘was classified as an “ambulance officer operations centre grade 2 (with intensive care paramedic qualifications)”, and was therefore a paramedic’.  He relied on his payslips to support that claim.   Mr Stockwell had been employed as an Ambulance Officer Grade 2 and had that been his classification at the time of his injury ‘there seems little doubt that he would have been entitled to be described as a paramedic and would be exempt from the consequences of the amendments introduced by the 2012 amending Act. This would follow regardless of the duties he actually performed’ [93].  The problem was that job classifications had changed.  There were two classifications “Ambulance Operations Centre – Non Paramedic” and “Ambulance Operations Centre Paramedic”.   The evidence provided did not describe Mr Stockwelll in either of those terms. The arbitrator had said that Mr Stockwell was ‘clearly a paramedic employed by the [appellant], that being the description on his pay slips’.  The Deputy President found that this was an error.  The error was not finding that he was employed as a paramedic, but it was an error to say that this was the description on his payslip.

The arbitrator found that Mr Stockwell’s duties of giving ‘… advice, in emergency situations, to members of the public, emergency services personnel and others’. He said (at [32]) that the fact that Mr Stockwell was not physically present at the scene was immaterial and it was:

“readily apparent that [the] procedure would have been that [Mr Stockwell] would have been advised of the victim’s condition, injuries and vital signs, and that he would have given advice as to the appropriate treatment, directed [the] person to whom he was talking as to how to actually administer the treatment and how to evaluate its effectiveness. All of this was done in real time. It involved coordinating the appropriate diagnosis and treatment of critically injured people, and [Mr Stockwell] was an integral and most important part of this process.”

The Arbitrator added (at [33]) that Mr Stockwell’s “employment as a paramedic is congruent with the context and wording of clause 25 and [Mr Stockwell’s] substantive position was that of a paramedic”. ([99]-[100]).

It should be noted that the issue was not whether Mr Stockwell was performing paramedic type duties, but whether he was employed as a paramedic.   The Deputy President looked at the relevant award that did contain a definition of ‘paramedic’ and said (at 125):

It follows that a paramedic who meets the definition of a paramedic in the Ambulance Officers’ Award, and who works in the operations centre, is a paramedic … regardless of the nature of the duties he or she performs. The question of whether Mr Stockwell gave clinical advice, as a paramedic, or merely directed ambulances to specific places does not arise. The issue is whether Mr Stockwell was, at the time of his injury, employed as a paramedic.

If the definition of paramedic in the award was not the relevant definition, then according to Deputy President Roche, the normal meaning of the word applied.  He said (at [132]-[134]):

The Macquarie Dictionary defines a paramedic as “a person who provides specialist primary care to the injured or sick” and “a person who performs paramedical services”. Paramedical is defined to mean “of or relating to healthcare workers other than doctors, dentists, nurses, etc., who have special training in the performance of supportive health treatments”.

A worker can provide specialist primary care to the injured or sick without having to be “in the field” or directly “hands on”. Provided they are qualified to give such advice, a person who provides the advice over the phone is just as much a paramedic as the person at the scene of the particular incident where the care is being provided.

Therefore, if Mr Stockwell gave the kind of advice that he gave evidence of at the arbitration, and if it is found that, at the time of his injury, he was qualified to give that advice, that is, if he had a “clinical certificate to practice” as a paramedic, he is a paramedic..

The problem in the Operations Centre was that the award anticipates that there are both paramedics and non-paramedics working together.  The insurer had argued that it didn’t matter if a person was qualified as a paramedic before they commenced in the operations centre, once there it was not a paramedic job because, if it was ‘… it would be unnatural and unrealistic for two workers working side-by-side in the same role, to have different entitlements depending on their qualifications “prior” to their employment’ [126].

According to the Deputy President this argument ‘… ignored the Ambulance Officers’ Award, which defines “paramedic” and makes express provision for a paramedic to work in the operations centre and to be paid an additional allowance while doing so’ [126].  Thus, the Ambulance Officers’ Award expressly acknowledges that two workers, with different qualifications, working side-by-side in the same role, will receive different remuneration. It is consistent and appropriate that such workers also come under different workers’ compensation regimes.

Outcome

The appeal was successful because the arbitrator had made errors.  The arbitrator had determined that Paramedic qualifications were an essential requirement of Mr Stockwell’s employment in the coordination centre and that his payslips showed he had been employed as a ‘paramedic’.  The Deputy President said those findings were not supported by the evidence so the matter had to be re-determined.

The Deputy President did not say that Mr Stockwell was not a paramedic, only that the arbitrator had misunderstood the evidence. The essential question for the Deputy President was ‘Was Mr Stockwell employed as a paramedic?” If the answer to that question was ‘yes’ then it did not matter whether his injuries were sustained when performing traditional paramedic duties of providing health care to the sick and injured.   If he was employed as a paramedic, as defined in the award or just in the dictionary, then the 2012 amendments do not apply to his claim.

Is this inconsistent with Ware?

This decision is not inconsistent with Ware, discussed above.  If Mr Ware had been employed as a firefighter the 2012 amendments would not have applied to him, regardless of the duties he was performing at the time of his injury. As Deputy President Roche said [in Ware at [53]) ‘a member of the NSW Fire Brigade is a firefighter. Such a person would be a firefighter whether injured fighting a fire or in some other work situation away from a fire. However, Mr Ware is not such a person. Looking at his substantive position … he is plainly not a firefighter’.

In Mr Ware’s case he was not employed as a firefighter so the exemption from the 2012 amendments would only apply if he was actually engaged in firefighting that is maintaining the equipment on the fire ground as an essential contribution to the firefighting effort.   If Mr Stockwell was employed as a paramedic then he was a paramedic and it would not matter whether he was injured when providing emergency medical care or some other duty.  The critical issue in both cases was the substantive nature of the persons employment rather than the actual duties performed.

Would registration have helped?

The answer here is ‘no’.  Mr Stockwell could have been a registered paramedic (if such a position existed) but that would not have answered the question of his current employment.  A registered paramedic could be employed as a cleaner but their registration won’t change their compensation entitlements.  If there was paramedic registration the issue would be resolved if being a registered paramedic was an essential requirement for the particular job.

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