It is common practice for paramedics to arrive for their shifts up to a half an hour prior to their scheduled start time. This is done in an effort to prevent the crew they are relieving from possibly working overtime hours, which would be the case if a call were to come in within the last moments of their shift.
When paramedics arrive at the station, they check their vehicles and equipment at the start of their shift. Equipment preparation includes, amongst numerous other things, checking the radios. Often times, emergency calls may come in during this time, and when this happens, first responders who are not "technically" on the clock will respond to the call.
One paramedic, Olivier Mireault, did exactly that. Mireault is a paramedic in Rawdon, Quebec and when he was preparing his equipment before the start of his shift, a call came in for a cardiac arrest. And the address? Mireault’s mother’s home.
Mireault and his partner made the decision to respond to the call several minutes before their shift was scheduled to begin, because they were the closest to the scene. The two workers left the garage at 8:00:13, having been only officially "on the clock" for 13 seconds.
When Mireault arrived at the scene, his mother passed away in his arms. As a result of this happening, Mireault has been diagnosed with post-traumatic stress disorder (PTSD).
Mireault has taken a leave of absence from work as a result of his PTSD. Mireault submitted a claim for compensation while on leave to the Quebec workplace health and safety board (CNESST), and his claim was denied because he wasn’t technically on the clock when he responded to the call over the radio.
For the CNESST to compensate a worker for paid leave, the workplace incident must have happened during a work shift, and it must also be unexpected and sudden. Arguably, the "incident" -- the death of Mireault’s mother – did happen during a work shift, and unquestionably, her death was unexpected and sudden. So why won’t CNESST honor the compensation request?
According to Daniel Chouinard, president of the Fédération des employés du préhospitalier du Québec, which represents ambulance workers in the Province, the CNESST often refuses claims involving paramedics and PTSD because the pretext is that it is part of their jobs.
The denial of Mireault’s claim is unquestionably upsetting and actually quite worrisome. After becoming aware of this story, many Canadians, most notably, first responders, may be asking the question, "Could this happen in Ontario or elsewhere?"
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.
Section 14(3) of the Ontario Workplace Safety and Insurance Act reads "…a worker is entitled to benefits under the insurance plan for post-traumatic 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, according to firstrespondersfirst.ca.
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 found that when performing an action related to one’s work, they are 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. pay), 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.
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, if the board finds that an employee is entitled to benefits under the insurance plan for PTSD, the employer has the opportunity to appeal the decision. If the employer were to be successful, then compensation on leave would not be provided to the employee.
Katelyn Bell is a student-at-law with DeVry Smith Frank LLP in Toronto and currently attending the University of Ottawa Faculty of Law. She can be reached at email@example.com. For additional information, please contact John Schuman, a partner with DeVry Smith Frank LLP in Toronto who is a certified specialist in family law and a former first responder, at John.Schuman@devrylaw.ca. This article originally appeared on the DeVry Smith Frank blog at www.devrylaw.ca.