Workers Compensation for Paramedics:  Who is a Paramedic?

The Workers Compensation Legislation Amendment Act 2012(“the Amendments”)

severely curtailed the right of injured workers to compensation, for example:

  1. Compensation for pain and suffering was abolished;
  2. The entitlement to life long medical treatment was confined to limited cases;
  3. The right of an injured worker to appeal from a decision by an insurer to reduce or cease weekly payments to the Workers Compensation Commission was removed, in most cases.

Paramedics, Police Officers and Fire fighters are saved from the effects of the Amendments.  Litigation in the Workers Compensation Commission has recently culminated in two decisions of the Supreme Court of NSW Court of Appeal namely, State of New South Wales –v- Chapman-Davis [2016] NSWCA 237 (2 September 2016) (“Chapman-Davis“) and State of New South Wales –v- Stockwell [2017] NSWCA 30 (1 March 2017) (“Stockwell“).  Those cases concern precisely who is a paramedic and therefore saved from the Amendments.

Both Chapman-Davis and Stockwell concerned the Workers Compensation Legislation Amendment Act ,Schedule 12, Part 19H, Clause 25 which is extracted in full as follows:

25   Police officers, paramedics and firefighters

The amendments made by the 2012 amending Act do not apply to or in respect of an injury received by a police officer, paramedic or firefighter (before or after the commencement of this clause), and the Workers Compensation Acts (and the regulations under those Acts) apply to and in respect of such an injury as if those amendments had not been enacted.

In Chapman-Davis the injured worker had worked for some time as a paramedic (formerly as an Ambulance Officer) and eight days prior to her injury which was the subject of her litigation, had commenced a 12 month secondment as a Health Advisor at the Health Access Co-Ordination Unit within the Ambulance Service.  Whilst she remained employed by the Ambulance Service, her duties were different to those of a paramedic.

The arguments advanced by the insurer as to why the injured worker was not a paramedic are lengthy and complex.  In summary, it argued that the reference to ‘paramedic’ in clause 25 was a reference to that class of person or persons while they were undertaking front line duties and that, for policy reasons, a person of that class who is injured while not undertaking front line duties ought not be able to access the benefit of the saving provision.

The Court held, applying principles of statutory interpretation, that ‘paramedic,’ for the purposes of clause 25, was a reference only to the classification or class of the worker concerned and did not turn on the duties they were performing at the time of their injury.  Although Ms Chapman-Davis was not undertaking front line duties at the time of her injury, because she was still qualified as a paramedic, she was entitled to the benefit of the saving provision and therefore not subject to the more onerous and conservative provisions of the workers compensation regime following the Amendments.

In the case of Stockwell, the injured worker had sustained a lower back injury while working as an Ambulance officer and had transferred to work in the operations centre performing administrative based tasks though remained employed by the Ambulance Service.  During the course of his duties, he developed a psychological injury which eventually caused him to be unable to work.  Mr Stockwell argued that he should have the benefit of clause 25 and that although he was not performing front line duties, he was still a paramedic within the relevant industrial classification.

The Court’s decision turned in part on Chapman-Davis, the decision which was handed down after the appeal in Stockwell was made, and the Court’s attention was largely directed to principles of statutory interpretation and the relevant industrial instruments governing the employment of paramedics.  The substance of the insurer’s argument was that because at the time of his injury Mr Stockwell had not completed certain refresher training as required by his industrial award, he was not entitled to the title of paramedic and therefore the benefit of clause 25.  The court held that the failure to comply with the provisions of the industrial award did not automatically disentitle Mr Stockwell from the classification of paramedic but merely exposed him to performance review and / or disciplinary action under the terms of the instrument.  In other words, he was still a paramedic notwithstanding minor deficiencies in his refresher training.

The cumulative effect of the decisions in Chapman-Davis and Stockwell is that paramedics are saved from the onerous effects of the 2012 Amendments. The question of whether an injured worker is a paramedic turns on their qualifications and not the duties they were performing at the time of their injury.  Non-compliance with the terms of an industrial instrument governing the terms of paramedics employment does not mean they are no longer a paramedic for the purposes of clause 25.