In my post Death benefits are the same for employed and volunteer firefighters in NSW (September 30, 2022) I said:

The Workers Compensation Act 1987 (NSW) has been constantly amended but the amendments do not always apply to all workers. In particular police, firefighters and paramedics have been exempt from changes made in 2012 and 2015 (at least). That means there are multiple versions of the Act in force at the same time. Trying to chase down every amendment and which one applies (or doesn’t) is a convoluted and complex problem…

The 2015 changes to workers compensation law were designed to make workers compensation less generous – less compensatory – and harder to get. Due to political pressure, police, firefighters and paramedics were exempted from those changes but that has led to litigation where people want to argue that they are or should be classed as a police officer, firefighter or paramedic in order to get the more generous benefits.  See:

The issue arose again in the case of Birkinhead v NSW Rural Fire Service [2023] NSWPIC 419 but in a way that has taken me by surprise. 

Why post v2?

This is in fact my second post in this case because, in the first, I made a first-year law student error and failed to properly identify who was the applicant and who was the respondent. After publishing the first version of the post I was contacted and told I’d made that error, in this case the applicant was Ms Birkinhead. She argued that she was not a firefighter and her benefits should be calculated based on the post 2012 law. This surprised me because the point of exempting firefighters, police and paramedics from the changes in 2012 and 2015 was to give them the benefit of more generous provisions. The issue, I discovered, arose because of the payment of weekly compensation benefits.

The State Insurance Regulatory Authority publishes an updated Workers Compensation Benefits Guide twice a year. The current version is dated October 2023.  It explains the difference which I have summarised in the table below:

Weekly benefits assuming no capacity to return to work:

 Exempt workers – Firefighters, police, paramedics (pp. 14-15)Non-exempt workers (p. 11)
First 13 weeks100% of their pre-injury average weekly earnings95% of their pre-injury average weekly earnings
Second 13 weeks100% of their pre-injury average weekly earnings80% of their pre-injury average weekly earnings
Thereafter90% of their pre-injury average weekly earnings80% of their pre-injury average weekly earnings for up to 130 weeks

That looks like a benefit for the exempt workers; but the devil is in the detail. A worker gets the lower of the amount in the table or a prescribed statutory maximum.  The statutory maximum is indexed twice a year to take into account inflation.  One would think the statutory maximum would be the same for both; but it’s not. For an exempt worker the maximum weekly compensation benefit after 26 weeks is $570 (p. 21).  For a non-exempt worker the maximum weekly benefit is $2,423.60 (p. 12).

That means my table should read:

Weekly benefits assuming no capacity to return to work:

 Exempt workers – Firefighters, police, paramedics (pp. 14-15)Non-exempt workers (p. 11)
First 13 weeks100% of their pre-injury average weekly earnings or $2,423.50 whichever is the lower.95% of their pre-injury average weekly earnings or $2,423.60 whichever is the lower
Second 13 weeks100% of their pre-injury average weekly earnings or $2,423.50 whichever is the lower80% of their pre-injury average weekly earnings or $2,423.60 whichever is the lower
Thereafter90% of their pre-injury average weekly earnings or $570 per week, whichever is the lower80% of their pre-injury average weekly earnings or $2,423.60 per week, whichever is the lower, for up to 130 weeks

If you’re an exempt working earning more than $712.50 per week, you’re better off under the post 2012 provisions!

This comes as a complete surprise to me, and I wouldn’t be surprised if it also came as a surprise to the politicians and the government – see Death benefits are the same for employed and volunteer firefighters in NSW (September 30, 2022).

If you are a politician (or anyone) and you want to know the law you look at the current law – the Workers Compensation Act 1987 (NSW) as last amended on 16 December 2022.  It’s very difficult to find the law as it was in 2012 and again in 2015 to create the version of the Act that applies to exempt workers!

The Act itself has ‘Schedule 6 Savings, transitional and other provisions’ which is meant to save the old law as it applies to exempt workers, and it has some 43 separate parts (each of which contains multiple sections).  One would have to understand them to fully understand the law that applies to an injured worker.  It is not surprising this is a field for accredited specialists. 

I have tried reaching out to some accredited specialists to see if someone wants to come onto the blog and either write a post, or join me for a recorded pod-cast to see if some light can be shed on the outrageous mess that is NSW Workers Compensation law. So far without success but I’ll keep trying.   In any event what I’ve written above has to be taken with a word of caution – it may still be wrong because of some hidden detail somewhere in the mess.  And I’d welcome comments from anyone who can shed more light onto how the system actually works.

To return to Ms Birkinhead.

Ms Birkenhead was employed by the Rural Fire Service as an operational officer. She began her RFS career as a volunteer firefighter in 2007 before being employed in 2017. Her employed role involved planning and managing the response to fires including significant deployments during the 2019-2020 summer bushfires. It was an essential requirement for her role that she hold the RFS qualification as an Advanced Firefighter ([38]). (She had also received training as crew leader community facilitator, planner and prescribed burn supervisor ([15])).

The workers compensation insurer accepted that she suffered a psychological injury ‘caused by trauma associated with working in the office, including receiving 000 calls, heavy workload, dealing with the community affected by the fires and reviewing footage of an aircraft crash in which three of her colleagues were killed’ ([5]). After 26 weeks the insurer sought to decrease her weekly benefits in accordance with the pre 2012 law.  If the analysis above is correct, the maximum weekly benefits would have been much less than the amount she actually earned.

The problem for the court (and earlier courts) was trying to define a person’s employment. In earlier cases involving paramedics their employment status as ‘’paramedics’ could readily be determined by the awards to which their employment were subject’ ([77]) but no statutory definition of ‘firefighter’ exists ([80]). The presiding member of the Personal Injuries Commission, Member Homan, said (at [83]-[84]:

In the absence of an award or applicable statutory definition, in order to determine whether a worker is designated as a ‘firefighter’ or falls within the class of workers who are firefighters it is necessary to determine whether the applicant’s activity or employment was to extinguish fires.

Even if I find the applicant is not designated or classified as a firefighter, the case law leaves open the possibility that she may yet have been a ‘firefighter’ at times when she was performing the duties of a ‘firefighter’.

Member Homan determined (at [89]) ‘that the applicant’s designated role was not that of a ‘firefighter’’; but that was not the end of the matter. Member Homan then proceeded to consider the actual tasks Ms Birkinhead was required to perform. The RFS (at [98]):

… defines firefighting duties as including an act “at or about the scene of or in connection with a fire which is necessary or, directed towards, or incidental to, the control or suppression of the fire or the prevention of the spread of the fire or any other way necessarily associated with the fire” (emphasis added). This included “…[o]ffice duty performed directly in connection with the organisation and direction of the firefighting effort”.

At [100] Member Homan said:

The applicant’s evidence is that during the 2019/20 Northern and Southern NSW fires she was performing office-based duties including taking 000 calls, doing intelligence work, preparing situation reports and planning where the fires might spread. I find that this work was:

(a)    in connection with a fire;

(b)    directed towards or incidental to the control, suppression or spread of a fire, and

(c)    performed directly in connection with the organisation and direction of the firefighting effort.

And at [102]:

Although the applicant in this case was not physically at a fire front, she performed work in connection with a fire front which was directed towards or incidental to the control, suppression or spread of the fire. … I find that whilst performing these duties the applicant was a ‘firefighter’.

Discussion

What I can say with certainty is that Ms Birkinhead was held to be a firefighter and the cae law confirms it is not just your job title, but the actual work you are required to do that determines that issue.

 What I cannot say with certainty is what that meant for her compensation benefits other than she, and her lawyers, clearly thought they were better off as a non-exempt worker.

It would be useful for NSW to have a workers compensation scheme that actually compensates injured workers rather than the current scheme that is intended to be hard to access and to under-compensate injured workers.  Carve outs for workers who managed to bring political pressure (remember fire brigade vehicles blockading outside state parliament – ‘On strike: In Australia, New South Wales firefighters & medic refused to respond for five hours. Fire trucks massed at State Parliament’ STATter 911 (June 21, 2012)) was intended to provide some relief for firefighters, paramedics and police but has led to this type of litigation and still leaves a complex and unfair workers compensation scheme. It also appears, for whatever reason that exempt workers are worse off than if they were covered by the current scheme which was clearly not the intended outcome.

This blog is made possible with generous financial support from the Australasian College of Paramedicine, the Australian Paramedics Association (NSW), Natural Hazards Research Australia, NSW Rural Fire Service Association and the NSW SES Volunteers Association. I am responsible for the content in this post including any errors or omissions. Any opinions expressed are mine, and do not necessarily reflect the opinion or understanding of the donors.