Workers exposed to toxic occupational dusts such as silica dust and asbestos will most often not begin to experience symptoms associated with a dust disease until many years after the exposure has occurred.

This latency period between exposure and development of a dust disease raises a number of complicated questions in relation to workers compensation entitlements, which include entitlements to payment of medical expenses for out of pocket costs and income maintenance payments for any time taken off work.

Turner Freeman recently acted for a gentleman suffering from silicosis in a workers compensation dispute, Mr Rantanen, which was heard in the South Australian Employment Tribunal in mid-2020. A decision in the case was handed down in February 2021: Rantanen v Return to Work Corporation of South Australia [2021] SAET 22.

The worker had been exposed to silica dust during his apprenticeship in the 1990s. He didn’t become aware of the damage done to his lungs until many years later, when he began suffering symptoms. By the time the worker was diagnosed as suffering from silicosis in 2016, he had gone on to have a very successful career in a different industry. When the worker became unwell, his ability to work suffered as a result of his condition and he suffered a reduction in earnings.

Return to Work SA, the workers compensation authority in South Australia, attempted to argue that the worker’s lost wages should be calculated by reference to his earnings as an apprentice in the 1990s at the time of his exposure, rather than by reference to his actual earnings in employment before he became unwell.

Turner Freeman successfully argued that the worker’s income maintenance entitlements should be determined by his actual earnings leading up to his diagnosis, rather than his earnings at the time of the exposure to silica dust many years earlier.

The decision has given the worker the assurance and peace of mind that he will be able to continue to provide for his family through periods where he is unable to work due to his illness.

The decision represents one less hurdle workers suffering from conditions with latency periods, such as conditions like silicosis and asbestosis, have to jump in order to access workers compensation entitlements.

Read the full judgment here: