Many paramedics show up for their shifts up to half an hour early. They do this so that the crew they are relieving don’t get assigned a call in the last 5-10 minutes of the shift and then have to do 2 or 3 hours of overtime. Even paramedics who are not receiving another crew sometimes come to work early in case they are needed. It is a kind gesture. However, a recent story about a Quebec Paramedic shows that good deeds don’t go unpunished.
Paramedic, Olivier Mireault, showed up early for his shift, with his partner. The other crew was coming back from a call, but was not at the station. At the start of the shift, paramedics check their vehicles and equipment. That involves, amongst many other things, checking the radios. Just before their shift is scheduled to start, Mireault and his partner hear a call that they are much closer to - leaving from station, they would get there before another ambulance. They immediately advised dispatch and took the call. When Mireault and his partner left the station, it was 13 seconds after the start of their shift. The call was for Mireault’s mother and she was, unexpectedly, dead. Nothing that the paramedics could do could revive her. Mireault suffered PTSD as a result. Quebec’s version of the WSIB denied Mireault’s claim because he accepted the call while he was “off shift” (by seconds) and the PTSD related to the death of a family member, not a workplace event.
According to Daniel Chouinard, president of the Fédération des employés du préhospitalier du Québec, which represents ambulance workers in the Province, the CNESST (the Quebec WSIB) often refuses claims involving paramedics and PTSD because the pretext is that it is part of their jobs.
Obviously, Ontario Paramedics are concerned that they too could find themselves without compensation or assistance if they are injured or suffer Post Traumatic Stress Disorder if they take a call before the start of their shifts. The Law of Ontario is different from the Law of Quebec.
In Ontario, there is specific law surrounding PTSD and First Responders. Bill 163, Supporting Ontario’s First Responders Act, came into force in April, 2016. You can learn more about the details of that law on this page. As a result of that law, Section 14(3) of the Workplace Safety and Insurance Act reads “…a worker is entitled to benefits under the insurance plan for posttraumatic stress disorder arising out of and in the course of the worker’s employment…”
The legislation creates a presumption that PTSD diagnosed in first responders is work-related. Therefore, an employee doesn’t necessarily have to be “on the clock” in order to be entitled to WSIB benefits.
Once a first responder is diagnosed with PTSD by either a psychiatrist or a psychologist, the claims process to be eligible for WSIB benefits is expedited, and there is no need for the first responder to prove a causal link between PTSD and a workplace event.
For employers of first responders, Bill 163 has significant consequences in terms of both the additional costs arising from expanded benefit entitlements, and the onus of rebutting the statutory presumption of entitlement, if the PTSD is not work-related. In some cases, this may be an heavy onus for employers to meet, especially when one considers the statistics: first responders are at least twice as likely as members of the general population to suffer from PTSD.
Ultimately, the legislation in Ontario provides far more protection to first responders than does the legislation in Quebec.
But would Bill 163 protect a worker such as Mireault, who responded to a call before he was on the clock? Is an individual considered to be working “in the course of employment” when setting up equipment, even before their scheduled shift?
In one decision heard at the Ontario Workplace Safety and Insurance Appeals Tribunal, the panel rationed that when a worker is performing an action related to his or her work, her or she is working in the course and scope of their employment:
“The general rule in cases of travelling to and from work is that injuries sustained by an employee travelling to or from work off the premises of the employer are considered to have arisen outside the course of employment. Those cases in which travel to or from work is considered to be within the course of employment are exceptions to the general rule. The guiding principal in deciding whether a case presents facts which justify departure from the general rule is whether, due to the factual circumstances of the case, the worker has essentially entered the sphere of employment.”
Where the worker is using equipment or material supplied by the employer but receives no benefit beyond the use of the employer-owned equipment, (i.e.: the employees is not being paid), and when there is evidence that there is no requirement for the employer to provide such equipment or transportation, no obligation on the worker to use it and no remuneration such as wage or salary for travel time, the only possible criterion that could place the worker in the course and scope of employment would be the use of the equipment itself. So, by using the ambulance and the radio with the service’s blessing or permission (Mireault was not charged with stealing the ambulance), a paramedic would be acting within the course and scope of the paramedic’s employment.
In another decision, the Appeals Tribunal held that whether or not the employer is exercising control over the worker, and/or whether the worker is performing any work for the employer at the time of injury, are additional factors that the Tribunal must consider when determining whether or not the worker was “in the course of employment.”
Based on the above line of reasoning, because Mireault was using equipment supplied by the employer (the radio) at the time he responded to the call, it is likely that he would receive WSIB benefits. However, Ontario’s PTSD law for First Responders is relatively new. As such, neither the Appeals Tribunal, nor the Courts, have released decisions about what the “Course and Scope of Employment” means in PTSD cases. It does seems inconsistent with Ontario’s new law to deny a paramedic WSIB coverage in these circumstances, so a getting a similar decision in Ontario seems unlikely but not impossible. There will also be the question of whether the employer can rebut the presumption that PTSD is related to a job because it was the result of the death of a family member, which was not caused by the employees job.
This blog was written by John Schuman, who is both an Ontario Lawyer and has been an active paramedic for almost 25 years. John has knows about how the law affects paramedics and other first responders. Watch the below video on legal issues affecting first responders or listen to the Ontario Family Law Podcast on special issues in Family Law for first responders.
If you are a first responder facing legal issues, contact a lawyer who understands your situation and where you are coming from. Get in touch with John Schuman by emailing him, calling 416-446-5080 or filling out the contact form below. As noted in the video, in addition to our understanding of your situation, we offer substantial discounts to first responders in many areas of law.
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