Since Workplace Health and Safety Queensland issued an urgent warning for workers in engineered stone benchtop manufacturing, finishing and installation industries on 18 September 2018, a significant number of stonemasonry workers have been diagnosed with silicosis.
The discovery of the silicosis epidemic in stonemasons has seen many workers knocked out of the industry they spent years cultivating a career. Most of these workers have spent most, if not their entire careers in the stonemasonry industry.
After receiving such a devastating silicosis diagnosis, stonemasonry workers have then been forced to cease work altogether and have been told they can never return to the only career they have ever known.
Stonemasons diagnosed with silicosis hold workers’ compensation and common law entitlements and should seek immediate legal advice following their diagnosis.
The purpose of this article is to explore compensation options that exist in addition to workers’ compensation and common law entitlements.
In addition to the symptoms associated with silicosis, many workers also suffer from anxiety, depression, difficulties adjusting to their diagnosis together with the stress associated with how they are going to survive financially.
In such challenging times, retraining and finding a new career path is often the last consideration a worker has the capacity to consider. They often find themselves in the position where they are unlikely to return to any form of meaningful, consistent employment for which they hold prior experience.
This is where a worker may hold an entitlement to bring a Total and Permanent Disablement (“TPD”) claim through their superannuation fund.
Most workers hold what is known as default TPD cover through their superannuation fund. This is separate to their workers’ compensation and common law entitlements. It involves a lump sum benefit being paid to the worker if they satisfy the relevant TPD definition contained within their policy.
Every TPD insurance policy is different and the TPD definitions vary from fund to fund. The most common definition requires a worker to show that due to their condition, they are unlikely to return to any form of employment that falls in line with their education, training and experience.
In addition to the above criteria, some policies contain what is known as a “retraining clause” which allows the insurer to consider any reasonable retraining the claimant can undertake to re-enter the workforce.
On the face of it, the definition seems straight forward. However, what many claimants soon discover is that the insurer has the right to consider the claimant’s entire occupational history together with transferrable skills when considering their capacity for work in the future.
To an insurer, it does not matter if a worker cannot return to their own occupation. If the insurer determines a claimant possesses a transferrable skill to work in a lighter, alternative role, the insurer may seek to decline a claim on this basis, even if the worker has no intention of ever fulfilling such a role.
An example of the above that is becoming a prevalent argument by insurers is that a stonemason possesses trade skills and could therefore work as a trades assistant at Bunnings.
In order to combat such an argument, it is crucial that the right expert medical evidence is obtained in relation to both the lung disease and the permanent psychological impact of the condition from specialists who are experienced in addressing TPD definitions.
This is where it is vital for a claimant to obtain legal advice before lodging a claim to avoid a decline on their policy. These claims are hard fought by insurers and it is important to have a strong legal team behind you to maximise your prospects of a successful outcome.
vbr WorkCover Lawyers Gold Coast-office have a strong track record in assisting claimants with accessing their full TPD entitlements. We are highly specialised and experienced in assisting stonemasons with accessing their TPD entitlements.
Call vbr Lawyers today for an obligation free consultation and review of your TPD policy.
