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.
Dust Diseases Authority of NSW
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.
Dust Diseases Tribunal of NSW
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.
Dust Diseases Tribunal of NSW
If the worker’s respiratory disability is 15% or more then the worker has the right to sue the employer that exposed the worker for past and future wage and superannuation loss. The worker is not entitled to sue for medical and related expenses as the legislation that governs the worker’s rights makes the worker choose between workers compensation benefits or obtaining lump sum compensation in negligence.
If the occupational asthma was caused by the inhalation of dust particles then the DDT has jurisdiction to hear and determine the claim but the rules governing the claim are determined by workers compensation legislation. If the worker’s occupational asthma was caused by fumes (that is, liquid particles containing no dust) then proceedings must be commenced in the District Court of NSW.
Compensation entitlements for occupational lung diseases is a highly complex and technical area. It is essential that a worker obtains legal advice as to the worker’s entitlements. Some care must be taken to determine the dust that caused the occupational asthma. That is because if that dust is capable of causing a disease that is covered by the DDA then it is likely that the worker will have unrestricted common law rights.