Avenues of Compensation
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Exposure at Work
The Dust Diseases Authority
The Dust Diseases Authority of NSW (“the DDA”) was established by the Workers Compensation (Dust Diseases) Act, 1926.
The DDA provides compensation to workers who were exposed to asbestos dust and fibre during the course of employment in NSW and have contracted a dust disease prescribed by the Act.
Read more about the Dust Disease Authority of NSW here.
The Dust Diseases Tribunal
The Dust Diseases Tribunal (“the DDT”) was established in 1989 to hear and determine common law claims for victims of dust related diseases. Most of the work of the DDT involves hearing and determining claims for compensation for asbestos related diseases.
Read more about the Dust Disease Tribunal here.
Other Dust Diseases Claims
Claims for Silicosis, Bagassosis, Farmer’s Lung, Talcosis, Aluminosis, Byssinosis and Berylliosis
As all occupational lung diseases occur as a consequence of exposure to a dust or fume in the work place, a worker has the right to statutory compensation depending on the type of disease the worker has.
Exposure for Commonwealth Employees
Exposure Outside the Workplace
DDA of NSW for Other Dust Disease Claims
A worker who develops Silicosis or any other Silica Related Disease, Bagassosis, Farmer’s Lung, Talcosis, Aluminosis, Byssinosis or Berylliosis as a consequence of the inhalation of dust during the course of employment in New South Wales has the right to make a claim on the Dust Diseases Authority of NSW (“the DDA”) pursuant to the Workers Compensation (Dust Diseases) Act 1926. A successful applicant receives a pension, reimbursement of medical expenses and other benefits. The procedure for making the claim on the DDA for these occupational lung diseases is precisely the same as the procedure that applies to those workers who have asbestos related diseases as a consequence of exposure to asbestos during the course of employment.
DDT of NSW for Other Dust Disease Claims
Workers with these diseases can also make a claim for lump sum compensation in negligence against the employer who exposed the worker to the dust that caused the disease. A worker can claim compensation for pain and suffering, reduction of life expectancy (if any) and compensation for the voluntary care and assistance provided by family members. Compensation for other losses can be claimed in special cases. Such compensation may include compensation for the loss of capacity to care for a disabled family member. These claims are lodged in the Dust Diseases Tribunal of NSW (“the DDT”) which also deals with asbestos related disease claims. However, the procedure that applies to claims for other occupational diseases differs from that which applies to asbestos related diseases. Once a statement of claim is filed in the DDT, it is listed before a Judge of the DDT for the purpose of case management. The Judge orders the parties to prepare the case. Once those orders are complied with, a Judge of the DDT may order the parties to attend mediation or may set the claim down for hearing before a Judge.
Claims for Occupational Asthma
Workers Compensation Entitlements
A worker who has occupational asthma cannot make a claim on the Dust Diseases Authority of NSW (“the DDA”). That is because occupational asthma is not a dust disease which is recognised by the legislation which governs the DDA. Workers with occupational asthma must make a claim on the workers’ compensation insurer of the employer that exposed the worker to the relevant dust. If that exposure occurred over a number of employments then the claim needs to be made on the last employer.
Entitlements include the payment of weekly benefits and medical expenses. If the worker’s whole person impairment is 10% or more, then an amount is payable by way of compensation for permanent impairment.
DDT of NSW for Occupational Asthma
Workers with these diseases can also make a claim for lump sum compensation in negligence against the employer who exposed the worker to the dust that caused the disease. A worker can claim compensation for pain and suffering, reduction of life expectancy (if any) and compensation for the voluntary care and assistance provided by family members. Compensation for other losses can be claimed in special cases. Such compensation may include compensation for the loss of capacity to care for a disabled family member. These claims are lodged in the Dust Diseases Tribunal of NSW (“the DDT”) which also deals with asbestos related disease claims. However, the procedure that applies to claims for other occupational diseases differs from that which applies to asbestos related diseases. Once a statement of claim is filed in the DDT, it is listed before a Judge of the DDT for the purpose of case management. The Judge orders the parties to prepare the case. Once those orders are complied with, a Judge of the DDT may order the parties to attend mediation or may set the claim down for hearing before a Judge.
Exposure for Commonwealth Employees
A number of former Commonwealth employees or former Defence personnel were exposed to asbestos. Former employees of the PMG, Telecom and Telstra may have been exposed as a consequence of working with asbestos cement pipes and pits during the installation or repair of underground telephone lines. Ex-Defence Force personnel, particularly members of the Royal Australian Navy, may have had exposure to asbestos while serving aboard Navy ships where asbestos insulation was used.
Former Commonwealth employees have the choice of claiming statutory compensation pursuant to the provisions of the Commonwealth Safety Rehabilitation and Compensation Act, 1988 or claiming lump sum compensation in negligence from Comcare which has been given the responsibility for dealing with such claims against former Commonwealth Departments or Agencies.
Unlike a NSW worker, a former Commonwealth employee is unable to claim both statutory compensation and lump sum compensation in negligence. An ex-Commonwealth employee must make a choice between one or the other.
Statutory Compensation
A former Commonwealth employee is entitled to make a claim on Comcare under the Safety Rehabilitation and Compensation Act, 1988. Entitlements include a lump sum for permanent impairment, weekly payments of compensation where the asbestos related disease has prevented the victim from working and medical expenses.
Our experience is that a former Commonwealth employee who has asbestos related disease is better served by making a claim against Comcare in negligence for lump sum compensation. That is because the lump sum obtained through a negligence claim results from one set of court proceedings in the DDT and covers compensation for pain and suffering, past and future medical expenses, past and future voluntary and commercial nursing care as well as compensation for other losses. A claim for statutory compensation on Comcare under the Safety, Rehabilitation and Compensation Act, 1988 may involve more than one application. Each application needs to be supported by supporting evidence. A number of applications may need to be made in order to secure a victim’s full entitlement. Finally, the compensation available through a negligence claim is superior to that which can be obtained through a claim for statutory compensation.
In the event the asbestos related disease causes the death of the former Commonwealth employee then any dependant of that employee has the right to make a claim under the Safety Rehabilitation and Compensation Act, 1988. Benefits include funeral expenses, a lump sum payment and payments to dependent children.
Ex-Defence Force personnel may also have entitlements under the Veterans Entitlements Act, 1986. A successful application results in the payment of a pension but not a lump sum. A successful application can also result in the payment of medical and related expenses.
Our experience is that ex-Defence Force personnel who have an asbestos related disease is better served by making a claim against Comcare in negligence for lump sum compensation. This is largely because there is no entitlement to lump sum compensation for pain and suffering under the Veterans’ Entitlements Act, 1986 and because the compensation obtainable through a negligence claim for lump sum compensation is superior to the entitlements available under the Veterans’ Entitlements Act, 1986.
Common Law Compensation
Ex-Commonwealth employees or ex-Defence Force personnel with asbestos related diseases can make a claim for compensation through the Dust Diseases Tribunal of NSW (“the DDT”). The compensation claimed includes compensation for pain and suffering, past and future medical expenses, past and future wage loss and past and future voluntary care and commercial care.
All such claims are dealt with by the DDT. They are subject to the claims resolution process in the same manner as a claim by a NSW worker is as outlined above.
Exposure Outside the Workplace
Claims for compensation for asbestos related disease as a consequence of exposure to asbestos outside of the workplace are always claims by victims with mesothelioma. Such claims generally involve exposure to asbestos as a consequence of home building or renovation work, washing a spouse’s clothing or visiting sites where asbestos products were being made or used.
These claims are almost always made against the manufacturer of the asbestos products concerned or the occupier of the site where the exposure took place.
The procedure for claims for compensation for asbestos disease where the exposure occurred outside of the work place is exactly the same as it is where the exposure took place in the work place. All such claims are filed in the DDT and are subject to the claims resolution process. The only difference is that the victim of asbestos disease where the exposure occurred outside the workforce is ineligible to make a claim for compensation on the DDA as the DDA only covers workers who were exposed to asbestos during the course of their work in NSW. However, the victim of asbestos related disease from exposure to asbestos outside the work place can claim all medical and related costs as part of the lump sum claim in negligence.