Asbestos disease sufferers who were exposed to asbestos during the course of employment in Western Australia need to be suffering from at least a 15% whole person impairment in order to bring a common law claim for compensation. This includes persons who suffer from mesothelioma, asbestosis, diffuse pleural fibrosis, asbestos related pleural thickening, pleural plaques and asbestos related lung cancer. The asbestos sufferer and their employer can either agree a person is more than 15% impaired or the worker can be reviewed by the Industrial Disease Medical Assessment Panel (IDMAP) at WorkCover Western Australia and be determined as more than 15% impaired. Given it is not in the interests of employers to agree a person is more than 15% impaired almost all workers are reviewed by the IDMAP.
Recently Alcoa of Australia Limited (Alcoa) attempted to challenge this accepted 15% threshold and make it harder for asbestos disease sufferers to bring claims for compensation against their employers. They did this through the use of a legal technicality in our client, Richard’s case.
Richard suffers from diffuse pleural fibrosis (also known as asbestos related pleural disease) causing a 22.5% whole person impairment.
Given Richard was exposed to asbestos during the course of employment at Alcoa, he was reviewed by the IDMAP who determined under the Workers’ Compensation and Injury Management Act 1981 (WA) that he was suffering from diffuse pleural fibrosis causing an 18% whole person impairment.
Since the IDMAP determined Richard suffered from more than a 15% whole person impairment he brought a common law court claim for damages against Alcoa in the District Court of Western Australia.
Alcoa sought to have Richard’s claim dismissed by arguing that Richard needed to be 25% impaired before he could bring a claim against them according to the Limitation Act 2005 (WA).
Opposing arguments were heard by Deputy Registrar Harman in the District Court on 12 September 2018. Deputy Registrar Harman found in Richard’s favour.
Alcoa was dissatisfied with this decision and appealed to have the matter heard by a Judge of the District Court.
We instructed Mr Theo Lampropoulos SC, Barrister to assist us with defending Richard’s claim for compensation. The appeal was heard before Judge Bowden in the District Court on 12 January 2019. Judge Bowden completely accepted our arguments and found that Richard was entitled to bring a common law claim for damages against Alcoa as he was suffering from an asbestos disease causing more than a 15% whole person impairment as required by the Workers’ Compensation and Injury Management Act 1981 (WA).
Alcoa originally appealed the decision of Judge Bowden however abandoned this position shortly thereafter. The decision of Alcoa of Australia Limited v Richard Graham Johansson now stands as precedent.
We are very pleased to have successfully defended Richard’s right to compensation and the rights of all benign asbestos disease sufferers generally.
Know your entitlements
Going forward it is important that you know about your entitlements to compensation particularly given strict time limits apply.
If you would like to speak to a lawyer regarding your asbestos disease compensation entitlements, please do not hesitate to contact us for an obligation free discussion.