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Complete ban on engineered stone on the horizon amid alarming silicosis numbers

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Attwood Marshall Lawyers Legal Practice Director Jeff Garrett, looks at the expected ban on engineered stone and what workers can do if they’ve been diagnosed with silicosis – or if they believe their employer has failed to minimise the health risks of working with the substance.

Hardware chain Bunnings has announced that it will stop selling engineered stone by the end of 2023, amid heightened and long overdue scrutiny of the product due to the serious risks posed to workers when they cut the product and are exposed to crystalline silica dust.

Joining Bunnings in its stand against the use of dangerous material, Ikea has also announced they will be banning engineered stone products.

The move comes after statutory agency Safe Work Australia recommended that the government introduce a nationwide ban on the product, after finding that engineered stone workers were being diagnosed with the deadly lung disease silicosis at a much younger age than workers from other industries.

Earlier this year Safe Work consulted on banning products that contained a certain amount of crystalline silica, but it has since decided that there is no “safe threshold” for crystalline silica content in engineered stone, and that a blanket prohibition was needed.

Often dubbed “the next asbestos”, silicosis continues to make headlines across the country. Significant safety oversights have exposed industrial and manufacturing workers to silicosis around Australia. There is no known cure, and treatment primarily focuses on managing symptoms and preventing further exposure.

While educating and training stonemasons, manufacturing and industrial workers on safe practices remains a priority, experts are making louder calls for a shift to developing new products that contain lesser amounts of crystalline silica. They say there are several safer alternatives to the product. Regrettably, progressing towards any meaningful change has been frustratingly slow.

Some government action aims to address the problem, but the damage to thousands of workers may have already been done.

Recent studies undertaken by Monash University reported that more than 25% of workers who had worked with artificial stone benchtops had developed silicosis as a result.

Over 540 workers were surveyed, with survey author Dr Ryan Hoy stating that “there should be no cases of silicosis occurring. Detection of a single worker with silicosis is completely unacceptable and is a clear indication of failings in the systems that should be protecting workers”.

With case numbers rising in Australia, workers should know about their rights to compensation to protect themselves and their families.

What is silicosis?

Silicosis is a debilitating and incurable lung disease caused by inhaling tiny bits of silica dust. Each year nearly 584,050 Australian workers are exposed to respirable crystalline silica (silica) dust at work, mainly during construction, tunnelling, quarrying, excavating, mining, road construction and some manufacturing processes.

The disease is commonly linked to cutting and grinding engineered or artificial stone benchtops that are installed in kitchens and bathrooms.

It causes scarring of the lungs, and advanced symptoms include chronic and severe breathlessness, chronic immobility, oxygen dependence and organ failure. 

Unlike asbestos exposure and related diseases that can take decades to show symptoms, silicosis can develop as soon as one year after exposure. Typically, however, the disease is diagnosed around ten years later.

There are three main types of silicosis:

    • Acute silicosis: developed after short exposure to very high levels of silica dust (such as within a few weeks or years), causing severe inflammation and a build-up of protein in the lungs
      • Accelerated silicosis: developed after three to ten years of exposure to moderate to high levels of silica dust, causing inflammation, a build-up of protein and scarring of the lung (also known as fibrotic nodules)
      • Chronic silicosis: developed after long-term exposure to lower levels of silica dust, causing fibrotic nodules and shortness of breath.

        As of the end of 2022, Australia had recorded 579 reports of people living with silicosis, related to their work with artificial stone. The first was identified in 2015.

        Actions to reduce the silicosis burden

        Increasing pressure is mounting on the federal and state governments to act on silicosis. The Construction, Forestry, Maritime, Mining and Energy Union (CFMEU), for example, has called for a nationwide ban on high-silicon-engineered stone by 2024. The trade union has stated that it will ban its members from using the material if a government ban is not put in place.

        Some work is being done. As mentioned above, just last month Safe Work Australia published its recommendation to ban the use of engineered stone, irrespective of its crystalline silica content.

        Ministers in charge of workplace health and safety have been considering the recommendation since August but allowed Safe Work to publish its recommendation on October 27 ahead of any government decision.

        Since 2018, Safe Work has been working on several initiatives, including reducing the acceptable exposure standard for workers to respirable crystalline silica. The statutory body has also developed a Code of Practice for managing the risks of the substance and guidance for working with silica and silica-related products.

        Bunnings says that it made its decision to stop selling engineered stone because it expects the New South Wales government and other state governments to legislate a ban on the product.

        The health department’s National Dust Disease Taskforce has also been tightening workplace health and safety regulations for cutting benchtops.

        In June 2023, a Queensland magistrates court fined a man for exposing his workers to silica dust and breaching Workplace Health and Safety Laws. He had reportedly instructed his workers to cut a benchtop onsite using an angle grinder when they should have taken the benchtop back to their workshop and used different equipment. The charges faced involve a maximum penalty of $500,000.

        Update: Since publishing this blog, the ministers in charge of workplace health and safety (WHS) for the Commonwealth, states and territories, have agreed with SafeWork’s recommendation, making Australia the first country in the world to ban engineered stone. SafeWork announced the update on 13 December 2023.

        Can you claim workers’ compensation for silicosis?

        Yes.

        By law, employers are required to adequately protect their workers from the health risks of using, handling, generating, and storing hazardous chemicals, including silica. In addition, they also must have controls in place to limit their workers’ exposure to crystalline silica and provide their workers with health monitoring.  If your employer has failed to provide safe working conditions or follow regulations that prevent silica-related lung diseases, they may be liable for damages.

        If you have been exposed to silica dust and have suffered an injury or illness, you may be eligible to claim compensation through several avenues including the workers’ compensation scheme or from your superannuation or insurance policy should your injury or illness prevent you from returning to work.

        The claim will depend on what state or territory you live in, and your exposure to silica dust.

        WorkCover Queensland has been offering initial health screenings since September 2018. If you are diagnosed with silicosis, WorkCover can help fund supportive treatment. It can also pay weekly benefits. In New South Wales, iCare provides treatment and financial support to those that have contracted a dust disease in a NSW workplace.

        To prepare a claim for a silicosis or similar illness, you will need:

          • Records of employment,
          • Medical records of diagnosis, and
          • Scans and other test results.

          If your claim is successful, you may be entitled to:

            • Weekly benefits or replacement wages,
            • Medical expenses,
            • Rehabilitation expenses,
            • Counselling,
            • Pain and reduction in life expectancy,
            • Care and assistance,
            • Loss of earnings,
            • Loss of amenity, and
            • In some cases, punitive damages

            If you have been exposed to silica during your employment, you will usually have three compensation options:

              • Statutory benefits claim with the relevant compensation insurer (e.g. WorkCover in Queensland, iCare in NSW) – for access to statutory benefits on a no fault basis;
              • A common law claim against your employer – for access to compensation/damages on a fault/negligence basis, or
              • A common law claim against the manufacturers or suppliers of the products to which you were exposed.

              Strict time limits apply when making a compensation claim. After receiving a diagnosis, you have just six months to lodge a statutory claim with WorkCover Queensland. Whilst there are often methods available to work around this timeframe, every effort should be made to comply with it.

              There are no time limitation periods for bringing common law claims for silicosis in the Queensland courts system. However, they do apply to other conditions caused by silica exposure, including auto-immune conditions such as rheumatoid arthritis or scleroderma.

              Compensation is also available for dependants of those who have passed away from silicosis.

              It’s always best to talk to an experienced lawyer that specialises in compensation claims to help you decide which route is the right one for you.

              Attwood Marshall Lawyers – helping people obtain the treatment they need and financial security they deserve after suffering a workplace injury

              Attwood Marshall Lawyers are experts in compensation claims for workers. We have been helping people for over 75 years to obtain successful compensation for their injuries and medical conditions, so that they can get the treatment and financial security they need.

              For a confidential discussion about your specific circumstances, please call our Compensation Law department on 1800 621 071 for a free claim review.

              Our experienced team is available for appointments at any of our conveniently located offices at Robina Town Centre, Coolangatta, Southport, Kingscliff, Brisbane, Sydney, and Melbourne.

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              Jeff Garrett - Legal Practice Director - Wills & Estates, Estate Litigation, Property & Commercial, Compensation Law, Commercial Litigation, Criminal Law, Racing & Equine Law

              Jeff Garrett

              Legal Practice Director
              Wills & Estates, Estate Litigation, Property & Commercial, Compensation Law, Commercial Litigation, Criminal Law, Racing & Equine Law

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              Disclaimer
              The contents of this article are considered accurate as at the date of publication. The information contained in this article does not constitute legal advice and is of a general nature only. Readers should seek legal advice about their specific circumstances. 

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