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

WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:	State of New South Wales v Stockwell [2015] NSWWCCPD 9
APPELLANT:	State of New South Wales
RESPONDENT:	Mark Stockwell
INSURER:	QBE Insurance (Australia) Ltd
FILE NUMBER:	A1-9478/13
ARBITRATOR:	Mr R Foggo
DATE OF ARBITRATOR’S DECISION:	2 September 2014
DATE OF APPEAL HARING:	28 January 2015
DATE OF APPEAL DECISION:	10 February 2015
SUBJECT MATTER OF DECISION:	Meaning of “paramedic” in cl 25 of Pt 19H of Sch 6 to the Workers Compensation Act 1987; whether the Arbitrator erred in interpretation of pay slips; whether the Arbitrator erred in finding the worker was required to hold paramedic qualifications; whether the Arbitrator reversed the onus of proof; definition of paramedic in the Operational Ambulance Officers (State) Award; entitlement to recover prescription pharmaceutical expenses incurred overseas; ss 59 and 60 of the Workers Compensation Act 1987; additional evidence on appeal; whether, with reasonable diligence, such evidence could have been obtained at the arbitration; substantial injustice; s 352(6) of the Workplace Injury Management and Workers Compensation Act 1998
PRESIDENTIAL MEMBER:	Deputy President Bill Roche
HEARING:	Oral
REPRESENTATION:	Appellant:	Ms E Wood, instructed by Bartier Perry
Respondent:	Mr B McManamey, instructed by Whitelaw McDonald
ORDERS MADE ON APPEAL:	1. The appellant’s name is amended to be State of New South Wales. 2. Paragraphs 1, 2, 3 and 4 of the Arbitrator’s Certificate of Determination of 2 September 2014 are revoked and the matter remitted to a different Arbitrator for re-determination in accordance with the reasons in this decision. 3. Costs of the first arbitration, part of the costs of the appeal, and the costs of the second arbitration, are to follow the outcome of the second arbitration.

INTRODUCTION

In June 2012, the Workers Compensation Legislation Amendment Act 2012 (the 2012 amending Act) made significant changes to workers’ entitlements under the Workers Compensation Act 1987 (the 1987 Act).
However, those amendments “do not apply to or in respect of an injury received by a police officer, paramedic or firefighter” 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” (cl 25 of Pt 19H of Sch 6 to the 1987 Act).
The appeal raises two main issues. First, the meaning of “paramedic” in cl 25 of Pt 19H and whether, at the time of injury, the worker was a paramedic. Second, the entitlement to recover the cost of pharmaceutical expenses incurred overseas.

BACKGROUND

The respondent worker, Mark Stockwell, started work as an ambulance officer with the Ambulance Service of NSW (the Ambulance Service/appellant) in 1996. The Ambulance Service “comprises those staff of the NSW Health Service who are employed primarily in connection with the provision of ambulance services under [Chapter 5A]” (s 67A of the Health Services Act 1997) and the government of New South Wales employs staff “to enable the Health Secretary to exercise his or her functions under Chapter 5A in relation to ambulance services” (s 116(1)(c) of the Health Services Act). As a result, the appellant’s correct legal identity is State of New South Wales (State of New South Wales v Bishop [2014] NSWCA 354 at [26]–[28]), as conceded by the appellant’s solicitors. The pleadings, and the Commission’s file, have been amended accordingly.
Both parties accept that ambulance officers who work “in the field” with the Ambulance Service, and are qualified as paramedics, are paramedics under cl 25. While working as an ambulance officer, Mr Stockwell injured his back in 1996, 1998 and 2000. On 18 February 2000, having met the requirements prescribed by the Ambulance Service, Mr Stockwell was awarded a Diploma Paramedic Science (Pre-hospital Care). At that time, Mr Stockwell was working “in the field” as an ambulance officer/paramedic.
Due to the injuries to his back, and the restrictions caused by those injuries, Mr Stockwell became an operations centre officer at the appellant’s Northern New South Wales Operations Centre at Newcastle in late 2000 or early 2001. The centre co-ordinates all emergency and medical response calls for ambulances for Northern NSW. (By way of background, from about 2010, operations centres became known as control centres. The references in this decision to operations centres and control centres are to centres that all perform the same functions.)
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.
By order of the Commission made on 20 May 2008 in matter No 598/08, Mr Stockwell recovered weekly compensation from 31 January 2007 to date and continuing under ss 36 and 37 of the 1987 Act for total incapacity. In addition, the appellant was ordered to pay his hospital and medical expenses under s 60. His claim for lump sum compensation was remitted to the Registrar for referral to an Approved Medical Specialist (AMS) for assessment of his whole person impairment as a result of his injury.
On 5 August 2008, an AMS assessed Mr Stockwell to have a permanent whole person impairment, as a result of his psychological injury, of 17 per cent.
On 5 September 2008, the Commission issued a Certificate of Determination making orders for the payment of lump sum compensation consistent with the AMS’s assessment of permanent impairment and allowing $16,500 for pain and suffering.
In October 2009, Mr Stockwell moved, with his family, to live permanently in the United States of America.
On 14 December 2009, the appellant’s insurer issued a notice denying ongoing liability for compensation on the ground that Mr Stockwell had ceased to reside in Australia (s 53 of the 1987 Act).
On 6 December 2010, the Commission determined that Mr Stockwell’s incapacity for work as a result of his psychological injury was “likely to be of a permanent nature” (s 53(1)). As a result, his weekly and other compensation payments resumed.
On 23 March 2012, the insurer advised Mr Stockwell by letter that the Workers’ Compensation Legislation makes no provision for the payment of s 60 expenses that were not prescribed and administered in Australia.
By email dated 14 November 2012, Dylan Stolzenhein, case manager with QBE Insurance (Australia) Ltd (QBE) advised Mr Stockwell that as he was not an “on-road paramedic at the time of injury”, he would be subject to the changes introduced by the 2012 amending Act.
In response to this email, Mr Stockwell’s wife wrote the following (presumably by email) to Mr Stolzenhein:
“[Mr Stockwell] was a paramedic. The nsw [sic] ambulance service doesn’t differ on employment if he had been road going or not as he was employed as a Paramedic. Not as operations staff. [H]is speciality as a paramedic was an operations officer. The preeminent point being he was always a paramedic first. At no stage during his career was he removed of his paramedic qualifications as he was up to date on all re certification for his ambulance practices. I would like to see where you can back up in the act [sic] your stance. As it doesn’t differentiate from what you’ve showed between paramedic on or off road. Not all staff employed by the nsw [sic] ambulance service are paramedics we agree. But he was. So does what you have to say still apply?”
By email dated 15 November 2012, Mr Stolzenhein advised Mrs Stockwell that:
“For the purposes of the new legislation, the definition of paramedic is as follows:
-     Possess [a] Diploma of Paramedical Science (or its equivalent)
-     [Is] [e]mployed under the Operational Ambulance Officers (State) Award
-     [Is] [i]ncluded in on-road rostering arrangements, performing ‘in the field’ paramedic duties
All of these criteria must be met in order to satisfy the definition of a paramedic under the Act.”
The reference to the Operational Ambulance Officers (State) Award (the Ambulance Officers’ Award) in this email was a reference to the award issued by the Industrial Relations Commission of New South Wales on 24 December 2010, which the parties agree applies to Mr Stockwell.
It should be noted that “paramedic” is not defined in the legislation and it was quite improper and misleading for Mr Stolzenhein to suggest that the above “definition” applied “for the purposes of the new legislation”.
In correspondence dated 18 February and 8 March 2013, Mr Stockwell’s solicitors, Whitelaw McDonald, wrote to the insurer asserting that as Mr Stockwell was a paramedic, he was not caught by the amendments introduced by the 2012 amending Act and that he was entitled to weekly payments of compensation and his medical and related expenses.
The basis for this assertion was that Mr Stockwell was a qualified paramedic and was performing that role at the Northern New South Wales Operations Centre at the time he suffered his psychological injury. Mr Stockwell gave evidence, in a statement attached to the Application to Resolve a Dispute, dated 18 December 2013 (the Application), that that role “consisted of Ambulance Paramedic type functions including giving treatment advice, decision making regarding use of helicopter resources, managing major incidents and disasters and liaison with hospitals”.
On 21 March 2013, QBE advised Mr Stockwell by letter that it had conducted a work capacity assessment under s 43 of the 1987 Act (as amended by the 2012 amending Act) and determined that he had “no capacity for work”. The letter advised that Mr Stockwell’s weekly payments had been “transitioned into [the] post 260 week period which is for workers that have been in receipt of weekly payments in excess of 260 weeks” and, as weekly payments were only payable after 260 weeks if the worker had no capacity for work and had a permanent impairment of more than 20 per cent whole person impairment, Mr Stockwell had no entitlement to weekly payments. The decision was to come into effect on 21 June 2013. (By the time of the appeal hearing, this decision (which was clearly wrong) had been reversed and the insurer had recommenced weekly payments of compensation.)
On 9 May 2013, Whitelaw McDonald wrote to the insurer claiming weekly compensation and outstanding medical expenses, the latter being itemised in a separate schedule.
On 22 May 2013, QBE wrote to Whitelaw McDonald essentially repeating the “definition” of paramedic in Mr Stolzenhein’s email of 15 November 2012 and asserting that, at the time of the injury, Mr Stockwell “was employed as an Operations Centre Officer and his duties were within the Control Centre”. As Mr Stockwell was not “rostered on-road and not performing ‘in the field’ emergency/casualty response duties”, he was not “an operational paramedic”.
In the Application filed on 18 December 2013, Mr Stockwell sought weekly compensation from 18 July 2013 to date and continuing in respect of himself and his dependent wife and six dependent children, and medical expenses of US$5,961.34 and A$8,346.26.
The claim for s 60 expenses included various items, not all of which were pressed at the arbitration. The issue in dispute on appeal is Mr Stockwell’s entitlement to recover the cost of pharmaceutical expenses incurred in the United States.
In a Reply filed on 3 February 2014, the insurer disputed liability on three main grounds:
(a) the Commission had no jurisdiction to consider Mr Stockwell’s claim for reinstatement of weekly payments under s 43(3) because the insurer made a work capacity decision regarding his entitlement to weekly compensation (as weekly compensation payments have recommenced, this issue is no longer relevant);
(b) Mr Stockwell was not a paramedic, and therefore not exempt from the changes introduced by the 2012 amending Act, and
(c) that Mr Stockwell had no entitlement to the claimed s 60 expenses because he resided overseas and certain expenses were not “reasonably necessary” under s 60.
After an arbitration on 29 July 2014, during which Mr Stockwell gave brief oral evidence about the nature of his duties as an operations centre officer, which evidence was in response to late evidence from the appellant, the Arbitrator delivered a reserved decision on 2 September 2014. The Arbitrator found (at [31]) 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. He did not consider it necessary that, to be a paramedic, Mr Stockwell be at the scene of an emergency.
Dealing with the claim for pharmaceutical expenses, the Arbitrator said (at [39]) that s 59(e), which includes, among other things, “medicines, medical or surgical supplies … supplied or provided for the worker otherwise than as hospital treatment”, has no extraterritorial restriction and does not refer to any definition that constrains medical or related treatment to that provided in the Commonwealth of Australia. Therefore, Mr Stockwell was entitled to reimbursement under s 60 of all the pharmaceutical expenses claimed.
As the Arbitrator determined that Mr Stockwell was a paramedic, and that the amendments introduced by the 2012 amending Act did not apply to him, it was not necessary to determine the jurisdiction issue. As explained above, this issue is no longer relevant on appeal.
The Commission issued a Certificate of Determination on 2 September 2014 in the following terms:
“The Commission determines:
1. The applicant is a paramedic for the purposes of clause 25 of Schedule 6 of the Workers Compensation Act 1987.
2. The respondent is to pay the applicant weekly payments of compensation pursuant to section 37 of the Workers Compensation Act 1987 as it appeared prior to the amendments made by the Workers Compensation Amendment Act 2012 at the following rates:
(a) from 18 July 2013 to 30 September 2013 at the rate of $1259 per week;
(b)from 1 October 2013 to 31 March 2014 at the rate of $1272.60 per week, and
(c)from 1 April 2014 to date and continuing at $1288.80 per week, to be adjusted in accordance with the WorkCover Benefits Guide.
3. The respondent is to pay the applicant’s section 60 expenses of the Workers Compensation Act 1987 as claimed in Part 5.3 of the Application to Resolve a Dispute, except for the amounts claimed in respect of Via Radiology and Summit Cardiology.
4. The respondent is to pay the applicant’s costs as agreed or assessed, and I certify an uplift of 30 per cent for complexity for both parties.
A brief statement is attached to this determination setting out the Workers Compensation Commission’s reasons for the determination.”
In an appeal filed with the Commission within time on 30 September 2014, the appellant has challenged the Arbitrator’s determination.

ISSUES IN DISPUTE

As originally filed, the issues in dispute on appeal were:
(a) whether the appellant is entitled to tender fresh evidence or evidence in addition to the evidence received at the arbitration;
(b) whether the Arbitrator erred in determining that Mr Stockwell was a paramedic for the purposes of cl 25 of Pt 19H of Sch 6 to the 1987 Act, and
(c) whether the Arbitrator erred in determining that pharmaceutical expenses incurred outside Australia are payable by the appellant.
The second point merely asserted dissatisfaction with the result and did not comply with Practice Direction No 6, which requires that the appeal application briefly, but specifically, state the grounds relied on in support of the appeal. The continuing non-compliance with Practice Direction No 6 is unacceptable and results in unnecessary delays in the resolution of appeals and additional unnecessary costs, as it has in this case.
In response to a direction issued by me on 6 January 2015, directing that an amended appeal application be filed stating the grounds relied on in support of the appeal, Ms Elizabeth Wood, counsel for the appellant, filed further documents in which she alleged that the Arbitrator erred in:
(a)     determining that the appellant required Mr Stockwell to hold paramedic qualifications in order to perform the role in which he was employed (requirement to hold paramedic qualifications);
(b)     determining that the duties performed (by Mr Stockwell) in the role were that of a paramedic (Mr Stockwell’s duties);
(c)     determining that the onus of proof is on the appellant to establish that Mr Stockwell was not a paramedic (onus of proof);
(d)     his consideration of the decision of Ware v NSW Rural Fire Service [2014] NSWWCCPD 33 (Ware) (is Ware distinguishable?);
(e) determining that Mr Stockwell was a paramedic for the purposes of cl 25 of Pt 19H of Sch 6 to the 1987 Act (determining that Mr Stockwell was a paramedic), and
(f)      determining that pharmaceutical expenses incurred outside Australia were payable by the appellant (pharmaceutical expenses).
It is convenient to consider first the application to rely on fresh evidence or additional evidence on appeal.

FRESH EVIDENCE OR ADDITIONAL EVIDENCE

Background

To properly understand the application to tender fresh or additional evidence on appeal, it is appropriate to review the history of the matter at the arbitration.
At the arbitration, counsel for Mr Stockwell, Mr Lowe, sought leave to call oral evidence from Mr Stockwell, he having returned from the United States expressly for the arbitration. Ms Wood submitted that Mr Stockwell had put on a number of statements and that she did not know upon what basis Mr Lowe sought to adduce further evidence from him.
Mr Lowe advised that he intended to adduce “some evidence about the actual work that [Mr Stockwell] performed” (T4.5) in his last position, noting that one of the late documents filed by the appellant was a duty statement that, on his instructions, did not “properly address the work that [Mr Stockwell was] required to perform and in fact did perform” (T4.9). Mr Lowe’s reference to a duty statement was a reference to a document headed “Position Description” “Operations Centre Officer”, which the appellant had filed in an Application to Admit Late Documents dated 29 July 2014, that is, on the day of the arbitration.
The Position Description, which has a “date of analysis” of June 2008, described the purpose of the position of operations centre officer to be to “promptly and effectively deploy ambulance resources in response to emergency calls and non-emergency transports within a defined geographic area through the computer aided dispatch system”. The officer was to receive, accurately record and progress teleconference calls relating to the business of the Ambulance Service and requests for the provision of ambulance services.
Without formally ruling on the application to call oral evidence, the Arbitrator allowed Mr Stockwell to give that evidence (T5.13). His evidence was that he was required to renew his paramedic qualifications by obtaining recertification as a paramedic every two to three years and that, in the process, he would be tested on his “pharmacologies [sic] and protocols and procedures” (T7.3) and that he had to pass “that proficiency” (T7.4) and a practical and written exam. He said that his qualifications were current at the time he ceased employment (T7.20) (presumably in January 2007).

He also confirmed evidence, given in a statement dated 16 July 2014, that, at the time he stopped work for the appellant (in 2007), he was an ambulance officer – operations centre grade 2 (with intensive care qualifications) (T8.32).
In respect of his work as an operations centre officer, Mr Stockwell said that, as a paramedic, he gave advice for patients, or the people at the scene of an emergency, multiple times every shift (T9.6). In addition, Mr Stockwell would give advice to junior paramedics who would call in. He said that that was something that “only the paramedics did in the operations centre” (T10.12), which was a “key part of the role” (T10.13) and was “a preferential skill set, when they advertised”. He said that he also gave advice to police officers and the fire brigade (T10.22).
Significantly, at the conclusion of Mr Stockwell’s evidence, Ms Wood asked no questions, did not seek an adjournment, and did not submit that Mr Stockwell’s evidence should be excluded or that it caused her any prejudice. The arbitration proceeded with submissions from counsel. The Arbitrator made no ruling about the application to call oral evidence from Mr Stockwell, but it is clear that he accepted that evidence and acted on it.

The additional evidence sought to be tendered

On appeal, the appellant has sought to tender statements from the following, all dated 30 September 2014, that is, well after the arbitration concluded on 29 July 2014 and the Arbitrator’s decision on 2 September 2014:
(a)     David Drysdale, superintendent of ambulance, deputy director of control centres;
(b)     Melissa Willis, project officer with the appellant, and
(c)     James Vernon, assistant commissioner and director of operations for the control division of NSW Ambulance.
Mr Drysdale said that he was the senior control centre officer located at the Northern Control Centre in Charlestown NSW, a position he has held since Mr Stockwell worked at the Centre until now. He knew Mr Stockwell and that he was “paramedic trained” though he did not recall him being an intensive care paramedic. He said that Mr Stockwell was a “dispatcher” at the Centre and that he reported to the duty control centre officer who in turn reported to Mr Drysdale.
Mr Drysdale said that a call taker at the Centre who required medical advice for a caller would refer the call to a supervisor, not a dispatcher, and that it was the supervisor’s role to assist other ambulance employees with enquiries concerning individual transport cases and other operational ambulance matters. He disagreed that a call taker would direct a call from a member of the public, or another emergency services worker, to a dispatcher for clinical advice. When required, medical advice was provided by supervisors and they were, on the whole, far superior in clinical level to Mr Stockwell. It would not ever occur that a dispatcher would “direct the treatment of a patient”. A dispatcher would not ever give clinical advice to a police officer, a firefighter or a paramedic on the road.
Ms Willis started work for the appellant in 1999 as a “casual Operational Centre Assistant (a call taker) at the Northern Operations Centre”. She became permanent as a call taker in May 1999 at the Sydney Operations Centre and became a “non clinical” operations centre officer (a dispatcher) at the Northern Control Centre in about August 1999. She said she undertook the same role as Mr Stockwell, often side-by-side with him, until he finished in January 2007. She is currently responsible for the drafting and administration of Control Centre policy, which includes policy and procedures.
Ms Willis said that when she started with the appellant, there was still a preference given to paramedics to be employed as dispatchers, but she was appointed without such qualifications. Shortly after she started, “the preference of [sic] holding the paramedic qualification was formally retired”. At the time of her statement, there was a “mix of paramedic and non-paramedic qualified employees in Control Centres”.
Ms Willis said that it was very rare that a call taker would ask the dispatcher for advice. Call takers were trained to go to the supervisor, a certified paramedic, for advice. Every dispatcher, whether a paramedic or not, was responsible for making “call backs” if the response to the scene was delayed. If a member of the public rang from a scene to ask for advice, the supervisor would give the advice.
Ms Willis had never heard of anyone in the Control Centre giving advice to police or firefighters. If such a person called, it would go to the supervisor. She said it was “almost unheard of for a paramedic to ring the [C]ontrol [C]entre to ask for advice on treatment”. The road crew would call for a higher clinical level paramedic or road supervisor to attend the scene. She did not recall Mr Stockwell ever being a supervisor or acting in that position.
Mr Vernon is currently the assistant commissioner and the director of operations for the Control Division of Ambulance NSW. He was the Control Centre manager for the Northern Control Centre between 1998 and 2011. He recalled Mr Stockwell joining the Northern Control Centre, as an operations centre officer, which is known as a dispatcher, in about 2000. Dispatchers controlled the movement of ambulance vehicles in NSW.
Mr Vernon did not recall Mr Stockwell working in any role other than as a dispatcher though, from time to time, dispatchers would be called a “paramedic dispatcher”, if they held a paramedic qualification, or an “non-paramedic dispatcher”, if they did not. Despite this, there was no difference in the job role or requirements for those with paramedic qualifications compared to those without those qualifications. However, for historical reasons, and in recognition of their qualification, paramedic dispatchers are generally paid on a higher scale than non-paramedic dispatchers.
Mr Vernon said that Mr Stockwell was never an intensive care paramedic and never completed any intensive care paramedic training. Mr Vernon acknowledged that Mr Stockwell had been injured as a paramedic, prior to staring at the Northern Control Centre, but he did not upgrade to be an intensive care paramedic. (The reference to Mr Stockwell’s injury was clearly a reference to his back injury and not to his later psychological injury.)
Mr Vernon said that the Position Description of June 2008 was correct and that there was “no requirement” (in that description) for a dispatcher to perform any paramedic duties of any kind. He said it was “never the intention of [the appellant] to have Control Centre Dispatchers give clinical advice, and never a requirement”. That was not part of their role. He did not agree that call takers referred clinical questions to a dispatcher, such as Mr Stockwell, if they held a paramedic qualification. Call takers are primarily led by software that makes clinical decisions based on pre-determined criteria. On the rare occasions that they would need extra assistance, it would be provided by a supervisor, not a dispatcher. Mr Stockwell’s evidence that he gave “treatment advice” many times during a shift was “totally false”.
Mr Vernon added that it is not mandatory for a Control Centre dispatcher to hold a paramedic qualification and that requirement was removed in 1999. Dealing with Mr Stockwell’s evidence that the Ambulance Officers’ Award requires that employees undertake and successfully complete further instruction/in-service courses necessary for the maintenance of their clinical certificate to practice and the reissue of their clinical certificate to practice every three years, Mr Vernon said that this was “not the correct reference for Mr Stockwell’s position in the Northern Control Centre”.
Mr Vernon asserted that the “correct reference point” in the Ambulance Officers’ Award was at page six of the document, which states:
“Ambulance Operations Centre Officer means an employee who has successfully completed the requirements as set out for Trainee Ambulance Operations Centre Officer and who is appointed to an Ambulance Operations Centre Officer position identified as such by the Service.
This category of employee will be involved in the dispatch and movement of emergency and non-emergency ambulances utilising the Service’s Computer Aided Dispatch and Telecommunications systems.
Provided that such an officer shall be required to undertake and successfully complete further instruction/in service courses and certification examinations as required by the Service every three years. The parties agree that this certification will remain a source of alternative duties for injured officers required short term rehabilitation as a result of a workplace injury in which case they will need to be provided with training and successfully complete the requirements set out for a Trainee Ambulance Operations Centre Officer.”
After quoting these passages in his statement, Mr Vernon said that there was “no requirement for the maintenance of a clinical certificate in this section” of the Ambulance Officers’ Award. However, he added that most former paramedics in the Control Centres maintain their clinical certificate to practice, despite it not being a mandatory requirement, and that the appellant meets the cost of the course to re-certify.
Mr Vernon said that Mr Stockwell’s certificate to practice was not current at all times when working in the Northern Control Centre, and was not current when he stopped working in 2007. Mr Vernon had been provided with a statement of Mr Stockwell’s continuing professional development activities from the Ambulance NSW Education Centre, which he attached to his statement, which, he asserted, showed that Mr Stockwell last attended a certificate to practice course on 22 June 2004 and that his certificate to practice expired in June 2006. This meant that he was not a certified paramedic after June 2006 and therefore not entitled to work as a paramedic.

Submissions

In support of the application to tender fresh evidence on appeal, Ms Wood acknowledged that the evidence is more accurately described as additional evidence rather than fresh evidence (T3.23 – 28 January 2015). She submitted that the additional evidence is critical to the issue before the Commission because the Arbitrator’s decision turned on Mr Stockwell’s evidence at the arbitration, which the appellant was not in a position to refute. The additional evidence clearly and concisely put in issue the facts upon which the determination in favour of Mr Stockwell was founded.
Ms Wood said that the additional evidence is “in reply” to the oral evidence given by Mr Stockwell at the arbitration, no notice having been given by Mr Stockwell to the appellant that such evidence was to be adduced. As a result, on the day of the arbitration, the appellant had no evidence contrary to the assertions made by Mr Stockwell and no reason to challenge his credit. Since the arbitration, the appellant sought details of the evidence given, which was transcribed and forwarded to the employer.
Ms Wood contended that the additional evidence should be admitted because:
(a)     it could not have been obtained with reasonable diligence for use at the arbitration;
(b)     it is such that there is a high degree of probability that there would be a different result;
(c)     it is credible;
(d)     it is just to admit the additional evidence;
(e)     it raises significant issues as to the credibility of Mr Stockwell’s evidence before the Arbitrator, and
(f)      the failure to admit the additional evidence would cause substantial prejudice to the appellant and injustice in the case.
Mr Stockwell’s counsel, Mr McManamey, has opposed the introduction of the proposed additional evidence. He submitted that:
(a)     the additional evidence, being evidence from the appellant’s own employees, was always available to the appellant;
(b)     before the Arbitrator, the appellant adduced evidence concerning Mr Stockwell’s duties as an operations centre officer. That evidence was filed in an Application to Admit Late Documents dated 29 July 2014, the day of the arbitration;
(c)     the statements sought to be tendered are merely more evidence about Mr Stockwell’s duties;
(d)     the assertion that the additional evidence is in reply to Mr Stockwell’s oral evidence at the arbitration, which was the first time notice was given that such evidence would be adduced, was not accurate because Mr Stockwell asserted in his statement attached to the Application (filed on 18 December 2013) that he was required to give first aid advice to persons ringing for ambulance services during an emergency and that his functions, as an operations centre officer, included giving treatment advice, decision making regarding use of helicopter resources, managing major incidents and disasters and liaising with hospitals. In a letter dated 8 March 2013, Whitelaw McDonald asserted that Mr Stockwell was a qualified paramedic and was performing that role at the time he suffered his (psychological) injury. By letter dated 22 May 2013, the appellant’s insurer acknowledged Mr Stockwell’s claim and asserted that he was an operations centre officer and that he was not rostered on-road and not performing “in the field” paramedic duties. Therefore, there is no doubt that the appellant was aware that the precise nature of Mr Stockwell’s duties was a central issue in the claim;
(e)     in an Application to Admit Late Documents dated 29 July 2014, the date of the arbitration, the appellant filed a position description of an operations centre officer. When the matter came on for hearing, Mr Lowe applied to call oral evidence from Mr Stockwell to respond to the appellant’s late evidence in the duties statement. He gave evidence about his work activities. Ms Wood declined the opportunity to cross-examine and made no application for an adjournment or otherwise made any submission that she had been prejudiced by the oral evidence;
(f)      the appellant was aware, from the commencement of the proceedings, of the assertion that Mr Stockwell made about his work duties. It was the appellant who made an issue about those duties and who filed (late) evidence that made the oral evidence appropriate and necessary. As the appellant was not taken by surprise by the oral evidence, the additional evidence could have been obtained at any time if the appellant had applied reasonable diligence with respect to the issues in the proceedings;
(g)     the application to admit the statements is merely an attempt to produce additional evidence which could have been placed before the Arbitrator. It should not be admitted, and
(h)     if it is admitted, Mr Stockwell seeks an opportunity to obtain and file statements from other ambulance officers who support his evidence about his duties.

Discussion and findings

The admission of fresh evidence or additional evidence on appeal is governed by s 352(6) of the Workplace Injury Management and Workers Compensation Act 1998 which provides:
“(6)Evidence that is fresh evidence or evidence in addition to or in substitution for the evidence received in relation to the decision appealed against may not be given on an appeal to the Commission except with the leave of the Commission. The Commission is not to grant leave unless satisfied that the evidence concerned was not available to the party, and could not reasonably have been obtained by the party, before the proceedings concerned or that failure to grant leave would cause substantial injustice in the case.”
As explained by Barrett JA (Macfarlan JA agreeing) in Chep Australia Ltd v Strickland [2013] NSWCA 351, s 352(6) involves two threshold questions that are alternatives. The first goes to the issue of availability of the evidence in advance of the proceedings. The second involves an assessment of whether continued unavailability of the evidence “would cause substantial injustice in the case”. The power to admit the evidence is discretionary but the discretion only becomes available if the Commission is satisfied as to one of the threshold matters.
Barrett JA added (at [31]) that, if the first test is not satisfied, that is, if the evidence could, with reasonable diligence, have been obtained and tendered at the arbitration, the second test requires a decision as to the result that “would” emerge if the evidence were taken into account and the result that “would” emerge if it were not. If the result would be the same on each hypothesis, the ends of justice cannot be said to have been defeated by exclusion of the evidence.
The power to admit fresh or additional evidence is therefore concerned with evidence which, if accepted, would have been likely to demonstrate that the decision appealed against was erroneous (Northern NSW Local Health Network v Heggie [2013] NSWCA 255 per Sackville AJA (Ward JA agreeing) at [66]).
The submission that the additional evidence could not have been obtained before the arbitration is untenable and is rejected. All of the witnesses who have provided the additional evidence work for the appellant. There is no suggestion that any of them were unavailable to provide a statement at the time of the arbitration. The only reasonable inference is that they were available and that, with the most basic preparation, statements could have been obtained from them. I am comfortably satisfied that, with reasonable diligence, the additional evidence now sought to be tendered could have been obtained at the arbitration.
Ms Wood’s submission that the additional evidence is evidence in “reply” to Mr Stockwell’s oral evidence demonstrates a fundamental misunderstanding of the fresh evidence provisions. Fresh evidence is not evidence in “reply”. It is evidence that, with reasonable diligence, could not have been called at the arbitration. The appellant was well aware of the issues in this case, as is demonstrated by QBE’s letter of 22 May 2013 (see [22] and [25] above).
The appellant was also aware, through Mr Stockwell’s statement attached to the Application, which was filed 18 December 2013, and served shortly after that date, that Mr Stockwell alleged that he worked in the operations centre as a paramedic and, significantly, that he gave “treatment advice” in that position. Its legal advisers did nothing to meet that evidence until after the conclusion of the arbitration. Even then, they did not obtain the relevant statements until the end of September 2014, two months after the arbitration and one month after the Arbitrator’s decision.
Ms Wood’s submission that the additional evidence only became necessary because of Mr Stockwell’s oral evidence, which she said was given without prior notice, failed to acknowledge the history of the matter and was completely specious and unsustainable. The history was that, from the very beginning, Mr Stockwell alleged that he worked in the operations centre as a paramedic and that he gave “treatment advice” in that role. He only gave oral evidence to rebut the evidence in the Position Description, which document the appellant filed on the day of the arbitration. Therefore, the suggestion that the additional evidence only became necessary after hearing Mr Stockwell’s oral evidence was false.
The appellant always asserted that Mr Stockwell was not a paramedic and that duties in the operations centre were not those of a paramedic. In support of that proposition, it tendered, on the day of the arbitration, the Position Description. However, it did nothing to obtain relevant witness statements to support its position until well after the conclusion of the arbitration.
It follows that the appellant cannot satisfy the first limb of s 352(6). With reasonable diligence, the additional evidence was available and could reasonably have been obtained by the appellant and tendered at the arbitration. The idea that a party can sit on its hands and await the outcome of a case, in the expectation of being permitted to tender on appeal evidence that was readily available at the arbitration, is incorrect. Arbitrations are not a trial run to see how things turn out with a view to preparing the case on appeal. The appellant’s conduct in this matter, and that of its legal advisers, has been most unsatisfactory and should not be repeated.

Effectively, the appellant’s legal advisers sat on their hands and awaited the outcome of the arbitration before conducting basic investigations that could and should have been done well before the arbitration. The submission that no notice had been given of Mr Stockwell’s intention to give oral evidence and that, in effect, the appellant was taken by surprise, was misleading. The need to call oral evidence from Mr Stockwell came about solely because of the appellant’s dilatory conduct in not filing the Position Description until the day of the arbitration.
The question remains, however, whether the refusal to grant leave to rely on the additional evidence would cause a substantial injustice in the case. This requires a consideration of what the result “would” be if the evidence were excluded and what the result “would” be if it were admitted. This requires careful consideration of the merits of each ground of appeal.
For the reasons explained below, I have concluded, without regard to the additional evidence sought to be tendered on appeal, that the Arbitrator erred on a number of material points and that the matter must be re-determined. As the appellant seeks to tender further evidence, it is appropriate that the re-determination be conducted at a second arbitration before a different Arbitrator when both sides will have the opportunity to tender such evidence as they feel necessary. It follows that there is no injustice if the additional evidence is not admitted on appeal and the application to rely on it, on the appeal, is refused.

REQUIREMENT TO HOLD PARAMEDIC QUALIFICATIONS

The Arbitrator’s reasons

The Arbitrator said, at [15]:
“In the present case, [Mr Stockwell’s] various statements and particularly his oral evidence at the arbitration hearing confirmed that not only was [Mr Stockwell] required by his employer to have paramedic qualifications, and to upgrade these every two to three years, but also that his work in the Operations Centre was clearly that of a paramedic.”
The Arbitrator added, at [22], that Mr Stockwell “had to have paramedic qualifications as a pre-condition of his employment and was acting as a paramedic, albeit not on a face-to-face basis with patients, in his day-to-day work”. He said, at [28], that:
“As [Mr Stockwell] is clearly a paramedic employed by the [appellant], that being the description of his position on his payslips. In addition, as [Mr Stockwell’s] terms of employment required him to be a qualified paramedic, the onus is on the [appellant] to establish that [Mr Stockwell] is not a paramedic if he is not included in the on-road rostering arrangements or is performing ‘in the field’ paramedic emergency/casualty response duties.”

Submissions

Ms Wood submitted that the evidence does not support the Arbitrator’s conclusion that Mr Stockwell was required to hold qualifications as a paramedic to qualify for the position he held. She noted that the Position Description described Mr Stockwell’s job title as “Operations Centre Officer” with a classification of “Ambulance Operations Centre Officer”. In the Ambulance Officers’ Award, the only reference to any medically related pre-requisite for the position is that the officer holds a first aid certificate, with re-certification every three years for non-uniformed employees.
Ms Wood said that Mr Stockwell’s evidence did not assert that qualifications as a paramedic were a necessary pre-condition to fulfilling the position and the Arbitrator erred in taking that erroneous fact into consideration (at [22]) in making his decision and in distinguishing Ware.
Ms Wood contended that the Arbitrator erred in stating that Mr Stockwell’s pay slips described Mr Stockwell as a paramedic and in relying on the pay slips to determine that Mr Stockwell was a paramedic. She said that the pay slips identified Mr Stockwell’s position as “Ambulance Officer Grade 2”, not as a paramedic.
Mr McManamey submitted that the evidence in support of the proposition that Mr Stockwell was required by the appellant to have paramedic qualifications is found in Mr Stockwell’s oral evidence that he was required to renew his paramedic qualifications from time to time. He added that the Position Description had an analysis date of June 2008. As Mr Stockwell last worked in January 2007, there was no evidence to establish that the analysis in June 2008 was applicable to Mr Stockwell’s position in January 2007.
Mr McManamey said that Mr Stockwell’s classification when he ceased work was ambulance officer operations centre grade 2 (with intensive care paramedic qualifications) and the Position Description did not refer to a position with that title. Therefore there was evidence that Mr Stockwell was required to have paramedic qualifications and the Arbitrator was entitled to accept that evidence.
Mr McManamey conceded that the pay slips did not use the word “paramedic”. However, they described Mr Stockwell’s position as an ambulance officer grade 2. The evidence was that, at the time Mr Stockwell ceased employment, there was no job position with a title of paramedic. The title previously used was ambulance officer. While the precise word is not used (in the pay slips), there can be little doubt that the description of ambulance officer is a description of a paramedic and the Arbitrator’s description was “correct as to the substance of the evidence”.
After referring to Mr Stockwell’s evidence about the nature of his duties, Mr McManamey submitted that the Arbitrator was entitled to conclude that Mr Stockwell’s employment was as a paramedic.

Discussion and findings

The issue identified under this ground of appeal is whether the Arbitrator erred in stating that the “terms of [Mr Stockwell’s] employment required him to be a qualified paramedic”.
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” (T6.29 – 29 July 2014), he was required to do a re-certification “as a paramedic every two to three years” (T7.1 – 29 July 2014). 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.
It follows that the Arbitrator erred in saying that Mr Stockwell was “required by his employer to have paramedic qualifications”. While that was certainly true when he was on the road as an ambulance officer, driving an ambulance and attending incidents, it was not true while he worked in the operations centre. Whether, because he in fact maintained his qualifications as a paramedic, which I note the appellant now seeks to dispute in the additional evidence sought to be tendered on appeal, Mr Stockwell could still be considered a paramedic under cl 25 raises a different issue, which is discussed below at [119]–[134].
The next challenge under this heading relates to the Arbitrator’s reliance on the pay slips.
The submission that, when he ceased work for the appellant, Mr Stockwell was classified as an “ambulance officer operations centre grade 2 (with intensive care paramedic qualifications)”, and was therefore a paramedic, was based on Mr Stockwell’s evidence to that effect in his statement of 16 July 2014, which he repeated in his oral evidence (T8.32 – 29 July 2014). However, that assertion was not consistent with the documentary evidence before the Arbitrator. Neither the pay slips, nor any other documents, described Mr Stockwell’s position in this way.
There were three pay slips before the Arbitrator: two covering July 2002 and the third for the period 11 November to 24 November 2006. The 2002 pay slips described Mr Stockwell’s “Employee Classification” as “Ambulance Officer – Grade 2”. I accept that this description, when read with the Ambulance Officers’ Award, was consistent with Mr Stockwell being a paramedic in 2002. That is because, in the Transition Arrangements attached to the Ambulance Officers’ Award, an Ambulance Officer Grade 2, a classification that existed prior to September 2008, is classified as a “paramedic” after September 2008.
If Mr Stockwell’s classification remained “Ambulance Officer – Grade 2” at the time of his injury in January 2007, 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. That is so because cl 25 is concerned primarily with the classification of the worker, that is, whether he or she is a police officer, paramedic or firefighter. Whether, because of the particular activities required by their employment from time to time, workers who are not classified or employed as police officers, paramedics or firefighters can come within cl 25, will depend on the circumstances of each case.
However, the Transition Arrangements have several classifications for workers in the appellant’s operations centres. The two that are most relevant in the present matter are the “Ambulance Operations Centre – Non Paramedic”, whose classification remained the same before and after September 2008, and an “Ambulance Operations Centre Grade 2”, whose classification, after September 2008, became “Ambulance Operations Centre Paramedic”.
The difficulty is that Mr Stockwell’s “Employee Classification” in his November 2006 pay slip was “Ambulance Officer (Ops Centre)”. This classification does not accord with any of the classifications in the Transition Arrangements or any other document in evidence. Acknowledging this fact, Mr McManamey submitted that either Mr Stockwell must be an “Ambulance Officer Grade 2”, but placed in the operations centre, in which case he is a paramedic, or he is an “Ambulance Operations Centre Grade 2”, which was classified, after September 2008, as an “Ambulance Operations Centre Paramedic”. This does not necessarily follow and certainly does not follow from the pay slips on which the Arbitrator relied.
The matter is further complicated by the parties’ agreement at the oral hearing of the appeal that Mr Stockwell was paid at a higher rate because of his paramedic qualifications (T27.22, T30.12, T31.31–33, T45.21, and T59.3 – 28 January 2015). Notwithstanding this agreement, Ms Wood submitted that “[t]he only reason for differentiating between paramedics and non-paramedics is that under the award they’re entitled to be paid at a higher level because of their paramedical qualifications” (T30.10). I have difficulty understanding how that submission assists the appellant. If Mr Stockwell was paid a higher wage because of his paramedic qualifications, this points to him being classified, and paid, as a paramedic.
However, the Arbitrator did not analyse the evidence in this way. He said that Mr Stockwell was “clearly a paramedic employed by the [appellant], that being the description on his pay slips”. That statement was wrong, regardless of the further evidence sought to be tendered on appeal, and has clearly influenced the Arbitrator to conclude that Mr Stockwell was, at the time of his injury, a paramedic. This error alone requires that the matter be re-determined.
It follows that it is not strictly necessary to determine the remaining issues argued on appeal. However, as the parties have provided detailed submissions on those issues, and as they may be relevant to the re-determination, it is appropriate that I deal with them.

MR STOCKWELL’S DUTIES

The Arbitrator’s reasons

The Arbitrator accepted Mr Stockwell’s unchallenged oral evidence that, acting as a paramedic at the operations centre, he gave 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”.

Submissions

Ms Wood submitted that the Arbitrator erred in determining that “the duties performed in the role [by Mr Stockwell] were that of a paramedic”. She contended that the weight of the evidence (tendered at the arbitration) would not support the conclusion that Mr Stockwell’s substantive position was that of a paramedic.
Mr McManamey submitted that Mr Stockwell provided paramedical services in the form of advice, directions, triage and the organisation of support services.

Discussion and findings

For the reasons explained below, in the circumstances of this case, Mr Stockwell’s duties are not determinative of whether he was, at the time of injury, a paramedic and it is not necessary to say more about it.

ONUS OF PROOF

The Arbitrator’s reasons

The Arbitrator said (at [28]) that “as [Mr Stockwell’s] terms of his employment required him to be a qualified paramedic, the onus is on the [appellant] to establish that [Mr Stockwell] is not a paramedic if he is not included in the on-road rostering arrangements or is performing ‘in the field’ paramedic emergency/casualty response duties”.

Submissions

Ms Wood submitted that Mr Stockwell has the onus of establishing that he is a paramedic for the purposes of cl 25 and that the onus does not shift. She added that Mr Stockwell was “clearly not a paramedic and if [he] seeks to be excluded from the 2012 amendments, the appellant submits that he bears the onus of establishing that his employment duties qualify him to be included in that special class”.
Mr McManamey accepted that Mr Stockwell carried the onus of establishing that he was a paramedic. The Arbitrator was satisfied on that point. The appellant submitted that Mr Stockwell’s employment was only as a paramedic when the officer was performing in-the-field duties. Once it was established that Mr Stockwell’s employment fell within the description of a paramedic, it was not an error to say that if the appellant wished to argue otherwise, it was subject to a shifting burden of proof.
In any event, Mr McManamey contended that the Arbitrator was not referring to an onus of proof. The matters raised went to the interpretation of “paramedic”. The Arbitrator was merely stating that, in circumstances where Mr Stockwell was employed as a paramedic, it was up to the appellant to persuade him that the term should be read so as to be limited to people in the field.

Discussion and findings

As a general proposition, he who asserts must prove (Commonwealth v Muratore [1978] HCA 47; 141 CLR 296 at 302–3). Thus, a worker who asserts that the amendments introduced by the 2012 amending Act do not apply, because he or she is a police officer, paramedic or firefighter, must prove that fact. It may well be that if an Arbitrator finds, at a prima facie level, that a worker is employed as a paramedic, the evidentiary burden then shifts to the employer who asserts that the worker is not a paramedic.
However, in the present case, the Arbitrator’s comment on the onus of proof appears in the same sentence in which he found, wrongly in my view, that Mr Stockwell’s terms of employment “required” him to be a qualified paramedic. As that finding was wrong, and must be re-determined, it was not open, in the circumstances of the present case, to find that the onus was on the appellant to establish that Mr Stockwell was not a paramedic and the Arbitrator erred in making that statement.

IS WARE DISTINGUISHABLE?

The Arbitrator’s reasons

The Arbitrator said (at [15]) that Ware was distinguishable because, in that case, the worker was working as a mechanic and was clearly so employed when he sustained injury. In the present case, Mr Stockwell’s evidence confirmed not only that he was “required” to have paramedic qualifications, and to upgrade those every two to three years, but also the work in the operations centre was “clearly that of a paramedic” ([15]). That work consisted of Mr Stockwell receiving calls from the “000” operators, who were not medically trained, in circumstances where somebody had rung for emergency assistance and the advice of a paramedic was required urgently.
The Arbitrator accepted Mr Stockwell’s evidence that he would speak to the patient or people at the scene, including emergency services personnel and police officers, or members of the public, who could assist in providing emergency care at his direction. He also accepted Mr Stockwell’s oral evidence that he provided emergency advice to fellow paramedics who were at accident sites, who had specifically sought his assistance in how to deal with particular situations. The Arbitrator said that Mr Stockwell was “undoubtably [sic] highly qualified as a paramedic, having intensive care paramedic qualifications” ([15]).
The Arbitrator said (at [26]) that there was a crucial distinction between the occupations of a police officer and paramedic, on the one hand, and that of a firefighter, on the other, as included in cl 25. It was clear from Ware and The Australian Workers Union, New South Wales v Office of Environment and Heritage [2012] NSWIRCom 133 (AWU) that the mechanic (in Ware) or the National Parks officer (in AWU) qualify for the cl 25 exemption only when they are fighting a fire. However, a “person whose activity or employment is to extinguish fires” ([26]) is also a firefighter.
The Arbitrator added, at [27]:
“But no one becomes a police officer or a paramedic if they are, for example, making a citizen’s arrest or providing emergency resuscitation to an accident victim. One can only become a policeman after obtaining the requisite qualifications and being appointed to that position by the Commission[er] of Police, and one can only become a paramedic after obtaining a Diploma in Paramedic Science, or an equivalent qualification.”
The Arbitrator said that Mr Stockwell’s employment as a paramedic was “congruent with the context and wording of clause 25 and [his] substantive position was that of a paramedic” ([33]), which was unlike the worker in Ware (whose substantive position was a mechanic).

Submissions

Ms Wood submitted that the worker in Ware was employed as a mechanic, not as a firefighter and, as a result, was only a firefighter while actually fighting fires. Similarly, she contended that when Mr Stockwell was performing his position as an operations centre officer he was performing that job and not performing the duties of a paramedic, that is, he was not driving ambulances and treating people on the scene.
Mr McManamey contended that the present matter is distinguishable from Ware because, as the Arbitrator found, Mr Stockwell was a paramedic.

Discussion and findings

The appellant gains no support from Ware unless it is found that Mr Stockwell was not employed as a paramedic. Though that issue must be re-determined, I make the following observations about Ms Wood’s general reliance on Ware.
The reasoning in Ware is tolerably clear. In that case, I held (at [42]) that, in the absence of a definition of “firefighter”, “firefighter” means, based on the dictionary definition, “someone whose activity or employment is to extinguish fires, especially bushfires”. As Mr Ware was employed as a mechanic, not a firefighter, he was only a firefighter, for the purposes of cl 25, when he was engaged in providing support at the fire front during a fire.

In the present case, if it is ultimately found that, at the time of the psychological injury, the appellant employed Mr Stockwell as a paramedic, then, regardless of the activities he was performing when he was injured, he is entitled to the exemption provided in cl 25. That follows from the clear terms of cl 25, which do not say that a paramedic is only exempt from the 2012 amendments if injured while administering emergency health care to a person in need of such care, or that a firefighter is only exempt if injured while actually fighting a fire, or that a police officer is only exempt while attempting to apprehend a dangerous offender.
To accept Ms Wood’s argument would mean a firefighter with the NSW Fire Brigade would not be a firefighter if he or she were injured while performing administrative duties rather than fighting a fire. As explained in Ware (at [53]), such a person would be a firefighter whether injured fighting a fire or in some other, less dangerous, work situation totally removed from a fire. In other words, such a person is a firefighter regardless of the actual duties being performed at the time of injury. Similarly, a person who is employed as a paramedic is a paramedic regardless of the exact nature of the duties he or she is performing at the time of injury.
There is a critical distinction between Ware and the present matter. That is that, to be a firefighter, Mr Ware was not required, on the evidence tendered in that case, to have any particular qualifications or certifications before he could provide support at the fire front during a fire. In addition, there was no applicable definition of firefighter in the relevant legislation or employment award. Therefore, I relied on the dictionary definition.
However, in the present case, the term “paramedic” is defined in the Ambulance Officers’ Award, which the parties appear to have accepted governs the employment relationship between them. In that document, paramedic means:
“an employee who has successfully completed the necessary and relevant training and work experience as determined by the [Ambulance] Service to become a Paramedic and who is appointed to an approved Paramedic position. Provided that such an employee shall be required to undertake and successfully complete further instruction/in-service courses necessary for the maintenance of their clinical certificate to practice and the reissue of their clinical certificate to practice every three (3) years.”
The Ambulance Officers’ Award also provides definitions for “Paramedic Specialist”, which includes an “Intensive Care Paramedic”, which Mr Stockwell asserts he was, and an “Extended Care Paramedic”, and other categories of employees with the appellant. It defines “Ambulance Operations Centre Officer” to mean an employee who has “successfully completed the requirements as set out for a Trainee Ambulance Operations Centre Officer and who is appointed to an Ambulance Operations Centre Officer position identified as such by the [Ambulance] Service”. (It is accepted that Mr Stockwell successfully completed this training.) This category of employee will be involved in the dispatch and movement of emergency and non-emergency ambulances utilising the Service’s Computer Aided Dispatch and Telecommunications systems.
The Ambulance Officers’ Award then has a sub-heading “Ambulance Operations Centre Officer – Paramedic and Paramedic Specialist”. Such employees, and certain other employees, such as Team Leaders, Station Managers and District Managers, who are “permanently appointed to positions of Ambulance Operations Centre Officer are to be paid up to the maximum rate applicable for a Paramedic Specialist” and, in addition to their wages and allowances, the “Operations Centre Allowance as set out in Table 2B of Section 8 Monetary Rates”. This allowance is only applicable to Paramedics, Paramedic Specialists, Station Managers and District Managers for the time in which operations centre activities are undertaken. I note that Mr Stockwell’s pay slip for November 2006 included $162.38 for “Op Cent Allow”. “Ambulance Operations Centre Officers – Non Paramedic” are paid under at the rates specified in Table 1B of Section 8 Monetary Rates, which I assume are different rates to those for paramedics.
The phrase “approved Paramedic position” is not defined in the material in evidence. However, the fact that the Ambulance Officers’ Award makes specific reference to, and allowance for, paramedics who work in the operations centres points strongly to it being an approved paramedic position. 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 under cl 25 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. That question must be re-determined.
None of Ms Wood’s arguments detract from the conclusion expressed in the preceding paragraph. One of those arguments was that 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. That submission has 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.
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. Moreover, the distinction is not based on qualifications “prior” to the workers’ employment, but on their qualifications and classification at the time of injury.
Ms Wood’s submission that there is no prerequisite that a person in the role performed by Mr Stockwell in the operations centre have paramedic qualifications misses the point. The Ambulance Officers’ Award makes specific provision for such workers to work in the operations centre. Provided the worker maintains his or her “clinical certificate to practice”, that worker remains a paramedic and is paid accordingly. There is nothing anomalous or unnatural about cl 25 applying to such a worker.
The further consequence of the above analysis is that a worker who does not meet the definition of paramedic in the Ambulance Officers’ Award will not normally be a paramedic under cl 25. That is because, just as a private citizen does not become a police officer by making a citizen’s arrest, a worker with the Ambulance Service who does not have a “clinical certificate to practice” will not, save in exceptional circumstances, become a paramedic by giving clinical advice he or she is not entitled to give.
It follows that, in the circumstances of this case, where the Ambulance Officers’ Award, which governs the parties’ employment relationship, clearly defines the meaning of a paramedic, it is not necessary to have resort to the dictionary definition of that term.
If I am wrong on this issue, and the Ambulance Officers’ Award does not provide a complete and exclusive definition of “paramedic”, or does not cover the field, I would have concluded, as I did in Ware with regard to firefighters, that the legal meaning of “paramedic” corresponds with its normal grammatical (dictionary) meaning and there is nothing in the context, purpose or policy behind cl 25 that leads to a different conclusion.
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 under cl 25 and is exempt from the effect of the 2012 amendments.

DETERMINING THAT MR STOCKWELL WAS A PARAMEDIC

The Arbitrator’s reasons

The Arbitrator was satisfied that Mr Stockwell was a paramedic because his employment required him to have paramedic qualifications and, in giving advice over the phone, he was doing the work of a paramedic.

Submissions

Ms Wood submitted that even if it were accepted that Mr Stockwell provided medical advice, the rationale in Ware applies to entitle him to the exemption “only if injury arose out of the performance of the paramedic type duties”. The evidence established that Mr Stockwell’s psychological injury was caused by duties that were “non-medical in nature” and there is no evidence that the requirement to provide medical advice has contributed to the injury.

Discussion and findings

This point has been dealt with above. The Arbitrator’s finding that Mr Stockwell was a paramedic must be re-determined. If, at the re-determination, it is found that, at the time of injury, Mr Stockwell was employed as a paramedic, then it does not matter if his injury was caused by activities that were not strictly paramedic duties (see [119]–[120] above). However, if it is found that, at the time of the injury, he was not a paramedic then, without deciding it, it is difficult to see how he comes within the cl 25 exemption, even if he gave medical advice in the course of his work in the operations centre.

PHARMACEUTICAL EXPENSES

The Arbitrator’s reasons

The Arbitrator determined that medical or related treatment is defined in s 59(e) of the 1987 Act to include “any nursing, medicines, medical or surgical supplies or curative apparatus, supplied or provided for the worker otherwise than as hospital treatment”. He said that this was “a very broad description of therapeutic services and supplies, and it impose[d] no extraterritorial restriction” ([39]) or reference to any definition or cognate legislation which constrains medical or related treatment to that provided in the Commonwealth of Australia. Accordingly, the appellant was to pay Mr Stockwell’s s 60 expenses as claimed (it was agreed on appeal that those expenses are restricted to pharmaceutical expenses).

Submissions

Relying on Nishi v Maquarie Group Services Australia Pty Ltd [2012] NSWWCC 119 (Nishi), Ms Wood submitted that the appellant is not liable for the pharmaceutical expenses claimed by Mr Stockwell. She contended that medicines prescribed by a doctor are part of the treatment regime provided to a patient by a doctor and are therefore precluded from compensation entitlement because of the definition of medical practitioner in s 21 of the Interpretation Act 1987, that is, a person registered under the Health Practitioner Regulation National Law. Clearly, Mr Stockwell’s treating doctors are in the United States and are not “a person registered under the Health Practitioner Regulation National Law”.
At the oral hearing of the appeal, Ms Wood submitted that prescribed medication falls within medical or related treatment, that is, treatment provided by a medical practitioner. Therefore, for prescribed medication to be compensable, it has to be prescribed by a medical practitioner in Australia.
Mr McManamey submitted in his written submissions that Nishi has no application to the cost of medication. That cost is recoverable under s 59(e) which does not require medication to be prescribed at the direction of a medical practitioner. It is sufficient that the medication is reasonably necessary.
At the oral hearing, Mr McManamey argued, relying on s 60 and s 59(e), that the medication is either medicine that is reasonably necessary or it is not. He said that the important point was that as long as the pharmaceutical expenses fall within the definition in s 59(e), “it doesn’t require it to have been prescribed by a medical practitioner” (T53.26 – 28 January 2015). Mr McManamey accepted the correctness of Nishi, with respect to “treatment by a medical practitioner”, but contented that Mr Stockwell’s entitlement to recover pharmaceutical expenses does not fall under s 59(a), it falls under s 59(e), “which has no such qualification” (T54.2 – 28 January 2015).
He contended that s 59(e) does not differentiate between prescribed medication and medication bought without a prescription. It is either medicine that is reasonably necessary or it is not.

Discussion and findings

I do not accept Mr McManamey’s submissions. The Arbitrator erred in saying that the description of “therapeutic services and supplies” imposes no extraterritorial restriction or reference to any definition or cognate legislation which constrains medical or related treatment to that provided in the Commonwealth of Australia.
Section 60(1) states that if, as a result of an injury received by a worker, it is “reasonably necessary that” “any medical or related treatment (other than domestic assistance) be given” the worker’s employer is liable to pay the cost of that treatment or service.
Section 59 defines “medical or related treatment” as follows:
“medical or related treatment includes:
(a)     treatment by a medical practitioner, a registered dentist, a dental prosthetist, a
registered physiotherapist, a chiropractor, an osteopath, a masseur, a remedial
medical gymnast or a speech therapist,
(b)     therapeutic treatment given by direction of a medical practitioner,
(c)     [repealed]
(d)     the provision of crutches, artificial members, eyes or teeth and other artificial
aids or spectacles,
(e)     any nursing, medicines, medical or surgical supplies or curative apparatus,
supplied or provided for the worker otherwise than as hospital treatment,
(f)     care (other than nursing care) of a worker in the worker’s home directed by a
medical practitioner having regard to the nature of the worker’s incapacity,
(f1) domestic assistance services,
(g)     the modification of a worker’s home or vehicle directed by a medical practitioner having regard to the nature of the worker’s incapacity, and
(h)     treatment or other thing prescribed by the regulations as medical or related
treatment,
but does not include ambulance service, hospital treatment or workplace
rehabilitation service.”
I accept that reasonably necessary medication may be obtained by prescription or without a prescription. However, that does not determine the issue in the present case. The point argued by the appellant is whether prescription “medicines” are treatment by a medical practitioner and, if so, whether the cost of such medicines is recoverable in circumstances where they were not prescribed by a doctor registered under the Health Practitioner Regulation National Law to practise as a medical practitioner.
Clearly, treatment by a medical practitioner can include a range of things: examination, surgery, and “the application of medicines” (Macquarie Online Dictionary). The prescription of medicines is often an integral part of the treatment by the medical practitioner. The cost of that treatment is not recoverable unless a doctor registered under the Health Practitioner Regulation National Law to practise as a medical practitioner provides it.
Mr McManamey’s submission leads to the artificial result that the cost of a consultation with a doctor who is not registered as required is not recoverable (Nishi), but the medication prescribed by that doctor, that is, the treatment for the patient’s condition, is recoverable. Such an absurd result cannot have been intended and should be avoided.
It follows that Mr Stockwell is entitled to the cost of reasonably necessary medication that has been prescribed as treatment by a doctor registered under the Health Practitioner Regulation National Law to practise as a medical practitioner and for the cost of reasonably necessary medication that has not been prescribed by a medical practitioner. The particulars provided do not enable me to determine which medicines claimed fall into which category and that must be determined at the next arbitration, if the parties cannot reach agreement.

CONCLUSION

For the reasons stated above, the appellant’s challenge to the finding that Mr Stockwell was a paramedic is successful and that part of the claim must be re-determined before a different Arbitrator, having regard to such evidence as the parties tender. The challenged to the Arbitrator’s finding with respect to Mr Stockwell’s pharmaceutical expenses is also successful. It is unclear to me if liability for Mr Stockwell’s non-prescription medication is disputed. That will also have to be determined and appropriate orders made with respect to the claim for pharmaceutical expenses.
Costs of the proceedings, including the appeal, will have to await the outcome of the second arbitration. That is because, in light of the 2012 amendments, the Commission will only have power to make a costs order in this matter in the event that the 2012 amending Act does not apply to Mr Stockwell. That is, if Mr Stockwell is found to be a paramedic. In that event, the appellant is to pay one-half of Mr Stockwell’s costs of the appeal because, though the appellant has succeeded, a number of its arguments, including its application to rely on additional evidence on appeal, were unsuccessful and unnecessarily protracted the appeal process.

DECISION

Paragraphs 1, 2, 3 and 4 of the Arbitrator’s Certificate of Determination of 2 September 2014 are revoked and the matter remitted to a different Arbitrator for re-determination in accordance with the reasons in this decision.

COSTS

Costs of the first arbitration, part of the costs of the appeal, and the costs of the second arbitration, are to follow the outcome of the second arbitration.

Bill Roche
Deputy President

10 February 2015

I, JACQUELINE HAGGER, CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF BILL ROCHE, DEPUTY PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.

ASSOCIATE