In the past 6 months there has been an alarming spike in Queensland workers being diagnosed with silicosis, an incurable occupational lung disease caused by the inhalation of silica dust.
Despite the increased media attention surrounding silicosis, there appears to be a lot of uncertainty in the community and for those diagnosed regarding potential compensation entitlements.
A claim must be lodged with your employer’s workers’ compensation insurer within 6 months of diagnosis (usually WorkCover Queensland). A claim can be lodged outside the 6 month time limit but a reasonable excuse for the delay will be required.
If your employment in Queensland is deemed to be a significant contributing factor to the condition, you will be entitled to replacement wages, medical expenses, rehabilitation expenses (including adjustment to injury counselling), pharmaceutical expenses, travel expenses, vocational assistance and lump sum compensation.
WorkCover will organise an assessment to identify the degree of permanent impairment resulting from the condition once a medical practitioner certifies the condition as being stable and stationary. If a permanent impairment of lung function is identified then you will receive an offer of lump sum compensation in a document called a ‘Notice of Assessment’. The amount of lump sum compensation will depend on the level of impairment.
A condition is considered stable and stationary when it is unlikely to improve with further medical or surgical treatment. This suggests the condition has reached maximum medical improvement and suitable rehabilitation and medical review has been undertaken. A progressive condition can be deemed stable and stationary.
Generally, your choice is to either accept the lump sum or bring a claim at common law for damages against your employer/s. This is called an irrevocable election. The only instance where you can accept the lump sum offer contained within the Notice of Assessment and also pursue a common law claim against your employer is if the degree of permanent impairment has been assessed as 20% or higher.
There is an additional statutory lump sum payment (up to $120,000.00) available to those who have been diagnosed with any form of pneumoconiosis (ie. silicosis, black lung and asbestosis). This payment is not assessed based on impairment, but rather an assessment of chest x-rays and the level of opacities (abnormalities on the lung tissue) in accordance with the ILO International Classification of Radiographs of Pneumoconiosis.
Unlike the compensation offered in the Notice of Assessment (if below 20%), the additional ILO payment can be accepted while also pursuing a common law claim. It also appears that workers’ will be entitled to go back to WorkCover for an additional ILO payment after the conclusion of a common law claim if there has been any further disease progression (up to the maximum of $120,000.00).
There are also legislative provisions that allow a large lump sum payment to be made if a worker has been diagnosed as terminal (less than 2 years to live).
COMMON LAW CLAIM
If the condition has been caused by the fault or negligence of your employer or another party (ie. manufacturer) then you will have an entitlement to pursue a common law claim for damages.
A successful common law claim for damages will include compensation for pain and suffering, out of pocket expenses, past and future loss of income, past and future loss of superannuation, past and future care and assistance (in particular types of claims and circumstances) and future medical expenses.
Time limits with respect to pursuing a common law claim for damages in relation to dust diseases have been abolished in Queensland. Accordingly, there is no time limit with respect to pursuing a common law claim for silicosis. However, the Notice of Assessment will need to be issued before you have an entitlement at common law against your employer.
It is important to note that silica exposure has been linked to other conditions including auto-immune diseases such as rheumatoid arthritis and scleroderma. Time limits will apply to these conditions. There is ordinarily a time limit of 3 years to bring a common law claim for personal injury in Queensland. However, an auto-immune condition caused by silica exposure is likely to have been caused by exposure that has occurred over a longer period. In these circumstances, it is possible to extend the limitation period by 12 months if the injured person becomes aware of a material fact of a decisive character (ie. the diagnosis of the condition).
Accordingly, strict time limits can still apply if you are diagnosed with any other condition caused by silica dust exposure.
Many people have insurance entitlements available through their superannuation funds. These entitlements generally include income protection, total and permanent disablement benefits (“TPD”) and terminal illness benefits.
Although insurance policies can vary, generally speaking, to access a TPD benefit it will need to be established through medical evidence that you are unable to return to any form of employment that falls within your prior education, training or experience.
Given the fact that persons diagnosed with silicosis are not able to return to work in any occupation that would allow exposure to silica and arguably other types of dust, it is worthwhile for these entitlements to be investigated.
Many people also have “lost superannuation accounts” that they have either forgotten about or did not realise had been opened. It is common for these accounts to also have active insurance benefits attached which you may be able to access. A search for lost superannuation accounts can be performed online through MyGov.
There are various compensation entitlements available to workers’ in Queensland who have been diagnosed with silicosis.
However, given the complexities surrounding occupational lung diseases and the various areas of compensation law that can apply to these claims, it is important that those who are suffering as a result of this condition obtain expert legal advice to ensure their rights and entitlements are protected.
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