In Queensland, the two main avenues or pathways for meaningful lump sum compensation for a diagnosis of malignant mesothelioma is either a statutory claim for workers’ compensation or a common law claim for damages.
Mesothelioma is a malignant tumor that is caused by inhaled asbestos fibres and forms in the lining of the lungs, abdomen or heart.
Symptoms usually include shortness of breath and chest pain. The life expectancy for most mesothelioma patients is approximately 12 months after diagnosis, however, this can vary and can be shorter or longer than 12 months.
The most frequent cases of malignant mesothelioma that we see in our dust diseases practice generally involve clients who have worked as carpenters, builders, railway workers, construction workers, firefighters, industrial workers, power plant workers, shipyard workers, steel mill workers, plumbers, electricians, insulators, boiler workers and textile mill workers but this is not an exhaustive list.
A diagnosis of malignant mesothelioma is usually made after a pleural biopsy is performed which is a surgical procedure undertaken at a hospital by a cardiothoracic surgeon.
Once the diagnosis has been made and due to the seriousness of the condition and reduced life expectancy, it is very important for compensation rights and options to be explored and understood as a matter of urgency. Strict time limits apply and due to the nature of the condition, it is imperative for the compensation claim to be commenced and paid out as a matter of priority.
Typically, a statutory claim for workers’ compensation is submitted to WorkCover Queensland (“WorkCover”) although there are some self-insurers such as Queensland Rail [now known as Aurizon Operations Limited], Brisbane City Council and other local authorities who have accepted and paid out claims for mesothelioma.
In Queensland, the lump sum payment for a person with malignant mesothelioma who makes a successful claim with WorkCover is usually between $400,000 to $700,000. The amount of the lump sum depends on the age of the worker who is usually retired. The amount also varies or depends on whether the person has a dependent or not. There is also an allowance to cover funeral expenses.
The claim with WorkCover needs to be submitted within 6 months of the date of diagnosis. Claims can be submitted after the six month time limit but this is best to avoid if possible as claims which are lodged after the six month time limit require a reasonable excuse for delay.
The main advantages of the lump sum statutory claim with WorkCover are speed and low risk or no risk. If the claim is rejected or is unsuccessful, there is no risk of an adverse costs order, so it is essentially risk free. If a claim is urgently and thoroughly prepared, we have seen claims prepared and accepted within 7 to 14 days, but the usual time frame is one to three months.
The other type of compensation involves a court claim or common law claim for damages.
A common law claim for damages for someone diagnosed with malignant mesothelioma involves identifying the negligent employer or employers and/or negligent manufacturer/s of the asbestos products. A common law claim might be preferred or necessary if the client has been self-employed for much or most of their working life or if the common law claim is likely to result in a higher or much higher award of damages.
The common law claims have certain advantages including higher awards of damages and recovery of a meaningful contribution towards legal costs. A common law claim usually takes longer to resolve; however, a speedy trial is able to be obtained when there is a terminal diagnosis. The bulk of common law claims are able to be resolved within the client’s lifetime.
Common law claims are after pursued against James Hardie. Our clients and their family members often ask us whether James Hardie still exists or how the James Hardie compensation fund is going. We are regularly pursuing common law claims against James Hardie and those claims are continuing to be paid out via the James Hardie compensation fund which is called the Asbestos Injuries Compensation Fund.
The most recent report from the James Hardie Asbestos Injuries Compensation Fund revealed:-
• There were 438 mesothelioma claims reported in 2019/2020 which was a 16% increase as compared with the previous year.
• There were 198 non-mesothelioma claims in 2019/2020 which was also a 16% increase on the previous year which is for conditions such as asbestosis, asbestos related pleural disease and lung cancer.
• As of 31 March 2020, the fund’s anticipated exposure to future claims was estimated at about 2 billion dollars.
Which avenue of lump sum compensation is best for the client depends on a variety of factual matters and personal circumstances. It is still very much a case by case situation as everyone’s work history and exposure to asbestos is different.
It is essential for the dust diseases lawyer to urgently and carefully investigate both avenues of lump sum compensation if both avenues are available. In some cases, it is immediately clear that only one avenue of compensation is available while in other cases both avenues need to be carefully considered and advised on.
At vbr Lawyers, we are acting for our clients in every state and territory of Australia. It is not uncommon for us to be acting for someone who might be living in Queensland who had exposure to asbestos in more than one state or territory. This might seem like a complicating factor but is usually isn’t a problem at all.
Typically we are engaged to act for our clients shortly after they have been diagnosed. We visit our clients at hospital or at their home for their convenience. We also work with our client’s family members and friends and support person in a team effort to ensure that all of our client’s circumstances are considered and to ensure our client’s financial security and peace of mind.
This blog was written by Greg Black, Director
Phone: 3379 2513 or Toll Free 1800 316 716