WORKPLACE SAFETY AND INSURANCE BOARD
APPEALS RESOLUTION OFFICER DECISION
DECISION NUMBER: 20090071
OBJECTION BY: Employer
WORKER PARTICIPATING: Yes
HEARING DATE: October 9, 2009
ATTENDEES: Worker, Worker Representative, Employer, Employer Representative, Witnesss, Observer
ISSUE
The employer’s representative, on behalf of the employer has appealed the case manager (CM) decision dated January 7, 2008. The case manager (CM) has ruled that the worker should be classified as volunteer EMS personnel.
The case manager noted that the employer failed to inform the Workplace Safety and Insurance Board (WSIB) of their required coverage for the worker and therefore the worker’s earnings are to be set at the maximum earnings rate.
The employer’s representative on behalf of the employer, has appealed this decision and this issue is now before the appeals resolution officer (ARO) for further consideration.
HOW THE ISSUE ARISES
On December 22, 2006, this EMS worker was struck in the head by a falling door in the ambulance station. She was diagnosed with a cervical contusion and a head injury.
The worker’s earnings basis was initially set as a casual employee. The case manager noted that the worker was listed as a volunteer on the Employer’s Report of Injury/Disease (Form 7) and the employer failed to set out a yearly limit for volunteer EMS workers and reset the worker’s earnings at the default level of maximum, under Operational Policy 12-04-02.
The employer’s representative has disputed the worker’s classification as a volunteer and this issue is now before the ARO for consideration.
AUTHORITY
The ARO considered the employer representative’s appeal in light of the Workplace Safety and Insurance Act (the Act) and Operational Policy Manual (OPM) Documents:
12-04-02 – Volunteer Forces
14-02-11 – Insurable Earnings
EXHIBITS
N/A.
ASSESSMENT OF THE EVIDENCE
The worker provided oral testimony under oath. The worker’s representative made oral submissions on behalf of the worker. The manager of Emergency Services provided oral testimony on behalf of the employer. The employer’s representative provided oral submissions on behalf of the employer.
The worker confirms she lives a considerable distance away from the accident employer, some 340 km. to her work locale. She confirmed obtaining her Primary Care Paramedic Accreditation from a community college in May 2006. She states she applied for the volunteer position with the accident employer to get experience.
She states she would like to be hired on a full time basis and she knew that the position offered to her by the accident employer was a “volunteer position.”
She states that she is required by the 15th of each month to provide the employer with her availability for work. She states she will stay on base for the full shift and respond to all calls as a regular paramedic.
She states there are two bases in the north of the county and one in the south. She confirms being hired in June 2006. She also confirms receiving training from the county two days per year. She states she considers herself a volunteer as there is no set number of shifts per month.
She confirms that the southern portion of the county is covered by a collective agreement and there are no part time or volunteer positions in the south.
She confirms that she has her EMCA and AMCA qualifications. She also confirms that there is approximately 12 Emergency Medical Assistants (EMA) located in the north. She also confirms that they are presently in negotiation to become employees of the county and they are covered on a collective agreement.
She believes that the employer is looking for 15 full time positions and some part time positions in the north and they are open to all external candidates.
She confirms that her pay stubs does list her with a “volunteer status.” She also confirms receiving communication from the employer for the purpose of bank dealings. The letter indicated to her bank that she was employed as a volunteer with no minimum hours or set rate. As a result, the employer could not confirm the money that she would receive on a regular basis.
She confirms that being based in the north, she can respond to southern calls to ensure coverage over the region.
She also confirms knowledge that the employer is now in civil litigation with the contracting company.
The employer’s witness confirmed that in 2006, he has been the manager of Ambulance Services and emergency response with the accident employer. He confirms there are no volunteers in the southern base and part time workers do not have any guarantee in the number of hours. He indicated that a part time worker and a full time worker are classified in accordance with the Ambulance Act.
He states that prior to the county taking over the emergency response effective January 1, 2001, volunteer services were coordinated through a non-profit organisation under the Ministry of Health.
He states the contract was extended by the county to protect existing services. He states that workers would be provided with a $2 per hour payment while on standby and received $30 per call. He states that the person on-call would be required to get to the ambulance base and respond to the call within ten minutes.
He states subsequent to the collective agreement in 2006, the volunteer forces were required to move into the base and work a 24 hour shift. An honorarium was increased to a daily rate which he quotes was approximately $13.60 per hour.
He confirms that in June 2006, the worker fell under a collective agreement in the north and was classified as a volunteer, full or part time, in accordance with the Ambulance Act. He noted that the EMA’s are not able to be classified as full time as the full and part time designation applies more to credentials as opposed to the number of hours worked.
He also confirms being involved in the bargaining process on behalf of the employer and cannot recall if coverage for WSIB injuries was specifically dealt with during the bargaining process. He states he was not aware that the employer was required to inform the WSIB of their requested level of coverage for EMS workers until the claim being made by the worker.
He does confirm that the county has requested 50 per cent coverage which was done in approximately May 2008.
He states full time status has been negotiated in the northern part of the county to maintain service delivery.
The worker’s representative submits that the employer was not aware of the WSIB reporting requirements. As such, he submits that the increase to the maximum level as outlined by the CM is appropriate.
He also notes there are very different terms of service in the north where the worker works verses the south. He notes that the worker is classified as a volunteer and the employer has had ample opportunity to change the status of the worker, but has yet failed to do so.
He notes the balance of evidence does support the payment of the claim on a volunteer basis for the worker and notes that since the inception of the WSIB claim, the employer has reported their coverage and requested 50 per cent reimbursement to their injured workers.
He also notes the employer has remedy to recover the cost through the civil litigation and submits that if the case manager’s decision is struck down, that any overpayment period should not be made recoverable.
The employer’s representative submits that the term of volunteer is a “false label.” He notes that the employer has assigned these designations in accordance with Regulation 57 of the Ambulance Act and therefore, the designation of a volunteer is not what would be normally considered. He notes the worker is covered under the collective agreement and that a real wage is provided.
He also noted the term honorarium is a mere label in accordance with the Ambulance Act and disputes the meaning. He also notes that effective June 2006, the collective agreement did negotiate wages for volunteers and all are included under the collective agreement. He also notes that the worker is responsible to respond to all calls and is in receipt of a wage and not an honorarium.
He notes that the case manager failed to properly consider all the evidence available and submits that the balance of evidence does not fall in favour of the worker and submits that the case manager’s decision be struck down.
Operational policy 12.04.02 concerning volunteer forces states in part;
Members of municipal volunteer fire brigades, volunteer ambulance brigades, and auxiliary members of a police force generally operate under the authority of a municipality. Members of these forces are workers under the Act, and the WSIB considers one of the following
- A municipal corporation
- A public utilities commission or any other commission or any board (other than a hospital board) that manages the brigade for a municipal corporation
- Any other person that manages the volunteer ambulance brigade for a municipal corporation
- The board of trustees of a police village
- A police force
to be the employer of these volunteer workers. A hospital may be the deemed employer of a volunteer ambulance brigade or service. The WSIB deems the following as employers of volunteer forces in territories with no municipal organizations
- for volunteer ambulance services and first response teams, the Ministry of Health
- for volunteer firefighters, the Ministry of the Solicitor General through the Office of the Fire Marshal, and
- for auxiliary police, the police force….
Rules for coverage Volunteers are covered under this policy and considered to be in the course of employment when responding to an emergency call or alarm from their home, or from their regular employment, whether they are
- travelling to the emergency or to the local emergency centre (see 15-03-05, Travelling)
- carrying out their duties at the emergency
- returning to the emergency centre or home after the emergency call or alarm, using the most direct or uninterrupted route
As a result of the municipality assuming the responsibility for EMS protection within their jurisdictions, the employer was faced with some difficulty in meeting the requirements of the ambulance act.
As the witness for the employer indicated, the title or label of full time versus part time employee speaks more to the level of training, as opposed to the number of hours EMS personnel work per week.
Prior to the download of responsibility, the northern area of the region was staffed with no less capable personnel, but those who did not hold EMCA or AMCA qualifications. The northern area was staffed with EMA’s who under the Ambulance Act, could not continue to work with these credentials unless they were termed “volunteer”.
For coverage reasons the employer chose to have the northern region separated from the southern portion and have northern workers classified as volunteers. The wages paid to the volunteer was changed and the volunteer was now required to remain at the EMS station for a 24 hour period, rather than as before, respond to a call from where ever they happened to be at the time.
Prior to January 2001, the force was much more akin to a volunteer force, as the ambulance attendants would not be on site but would be called in as circumstances required. They were paid a small sum of 2 dollars per hour and 30 dollars per call. To my understanding, the volunteer would be on call and had to be available to reach the ambulance station within a set period of time if a call came in, and presumably be able to go about their normal days business but be available to “volunteer” their services as required.
After January 2001, the employer was required to offer EMS services within the confines of the Ambulance Act, which set out the qualifications needed by EMS personnel. To meet the requirements, the Volunteer label was used to allow the lesser certified people maintain the EMS service in the north.
At the time of the accident the worker was present in the station for her required 24 hour shift. There is a fundamental shift in which the service was being delivered. When not out on a call the team would be required to be at the station or in the emergency vehicle and would not be able to be engaged in other forms of work or personal business that would be afforded a true “volunteer”.
Rather than rely on definitions of what classifies a volunteer as set out in the Ambulance Act or in a collective agreement, the test for the proper nature of the worker’s employment must reside in the Workplace Safety and Insurance Act, (the Act) and operational policy.
The definitions of a worker and employer in this case are indeed satisfied as the parties have entered into an employment contract, in this case a collective agreement effective June 2006. The term used as volunteer by the workplace parties clearly does not satisfy what the definition or inference used by the Board.
There is clear inference contained in operational policy cited earlier under the “Rules of Coverage” for the intended use of term volunteer for the purpose of administering the Act.
The definition of a volunteer implies that the individual would be engaged in other activities and must be ready to respond to an emergency call, setting all other activities aside to do so. In this case, receive 2 dollars per hour to compensate for the readiness factor and then 30 dollars per call.
This is a vastly different scenario then what the worker was engaged in at the time of the accident. The worker was stationed for a 24 hour shift to perform only EMS responsibilities.
The worker testified to providing the employer with her availability for shifts throughout the month. This would be similar to anyone who would “volunteer” their services or be available on a casual basis. If the person opts out of a number of days throughout the month there would be no discernable difference between the two types of employment.
Informing the employer about availability would also take place in a casual employment contract. Here the employee is required to supply a scheduler or other responsible agent of the employer, a list of dates that he or she is available to work. Therefore the shift availability is not helpful in determining the status of the worker employment.
The employer has, since the decision by the case manager, filed a request with the Board for 50% coverage. This would in my view only serve to satisfy the policy requirement until such time as a definitive decision is made on the volunteer status issue.
As stated earlier, the terms used by the employer have been utilized for reasons other than for the purpose of the Act and the usage of the term “volunteer” cannot be transferred for use or operate in the same way as it is used or defined by the Ambulance Act, or applicable regulations.
The worker’s employment by nature does not fall into that of a true “volunteer”. Much like a casual on call employee,the worker provides her availability in advance for scheduling. The issue of the employer not being able to secure or provide a figure of monies expected to earn to the worker for banking reasons would be the same if the employment was referred to as casual or volunteer in nature. As a result, this issue is also not helpful in the determination of the worker’s status.
What is in my view the most salient feature of making a determination, is the nature or difference in how the worker was engaged in her duties prior to and after January 2001. Although the worker was not employed by the employer prior to January 2001 it is the way in which the workers pre and post January 2001, were deployed.
Prior to January 2001, a true volunteer force was in effect in the employer’s northern region. Workers were placed on call and would not have been required to be “on Site”. They would only engage in EMS duties as required and therefore only “volunteer” to be available to respond to a medical emergency. It would be highly unlikely that the worker would enter into employment of this nature given the distance between her residence and employment base.
After January 2001, the requirement for the position changed requiring the worker to be onsite for a specified period of time. This shift in the nature of the employment allows the worker to work for the employer while residing a considerable distance away. When scheduled, the worker is able to arrive in the area the night before, and then report for duty the following day.
The balance of evidence is persuasive in nature to conclude that the worker and employer have entered into a casual on call employment contract. This definition more closely defines the way in which the worker’s shifts are scheduled and the way the worker is paid for her time. In addition, the way in which the duties are performed do not resemble a volunteer, who would be engaged in activities of daily living until summoned to respond to a medical emergency.
The worker’s benefits were increased from a rate based on her employment earnings to the statutory maximum level as the CM found that the employer failed to advise the Board of their requested earning coverage of their “volunteer” forces.
Having concluded that the worker’s employment is on a casual on call basis, the worker’s earning should be based on her actual concurrent employment earnings and not the legislated maximum.
Operations is instructed to recalculate the worker’s LOE rate and create an overpayment. The overpayment is to be classified as non recoverable from the worker, as she accepted the determination of the CM in good faith and would not be expected to have any prior knowledge or understanding of the issue of how her LOE benefits were calculated.
CONCLUSION
Having studied the available evidence, heard the testimony provided by the worker and witness, and considered the submissions made by the representatives it is the judgement of the ARO that;
The worker is deemed to be employed by the employer on a part-time casual on call basis and cannot be classified as a Volunteer EMS worker.
The worker’s LOE rate is to be set using the worker’s earnings and not set at maximum.
A non recoverable overpayment is to be calculated on the worker’s benefits.
The employer’s representative’s objection is granted.
DATED December 15, 2009
N. J. Shruiff
Appeals Resolution Officer
Appeals Branch