Asbestos is a silicate mineral made up of tiny fibres that form a dust when disturbed. If asbestos fibres are inhaled into the lungs it can cause a range of health complications including lung cancer and mesothelioma. Australian homes built before 1990 (about 1 in 3 homes) may contain asbestos, as do many workplaces. This year’s National Asbestos Awareness Week runs from 22-28 November. The campaign asks Australians to “Think Twice About Asbestos”. Attwood Marshall Lawyers Partner and QLD Law Society Accredited Specialist in compensation law, Jeremy Roche, explains why and discusses WorkCover claims and TPD claims for asbestos related medical conditions.
Introduction
Asbestos is a group of minerals that were mined and then processed into building materials, such as cement sheeting and fibre board used for walls, flooring, roofing material etc. The asbestos materials are composed of very fine crystals that can be inhaled and infiltrate the smallest of airways. They irritate lung tissue and cannot be cleared by the lungs, causing inflammation, scarring and serious life-threatening diseases, which often take decades to develop.
Since the late 1800s, asbestos was widely used in buildings as insulation and fireproofing, and in textiles. Concerns about its toxicity were raised in Australia in the 1970s. Asbestos use was phased out in the 1980s and finally banned nationwide in 2003.
Workers must not handle asbestos unless they have been specifically trained to do so and hold a licence that is current and appropriate for the type of work being done.
Asbestos exposure risks
The majority of those who develop asbestos-related diseases have worked in jobs where they frequently inhaled large amounts of asbestos fibres. Workers in the construction industry are among those with the highest rates of asbestos exposure. Others who may also be at risk of developing an asbestos-related illness include people who have lived with someone who worked with asbestos or lived in an area where asbestos was mined. The danger of contracting these diseases increases with the number of fibres inhaled. The risk of developing lung cancer from inhaling asbestos fibres is increased if you smoke.
Those who develop health problems from inhaling asbestos have usually been exposed to high levels of asbestos for a long period of time. However, there are cases where a seemingly insignificant exposure to asbestos has resulted in serious health complications including terminal illness. Symptoms are not usually apparent until 20 to 30 years after initial exposure.
Asbestos related disease
Illnesses caused by asbestos include:
These types of illnesses can cause breathlessness that worsens over time, crackling sounds when breathing, a dry cough, fast or shallow breathing, loss of appetite, swelling of the fingers, and weight loss, just to name a few.
What to do if you have been exposed to asbestos
If you believe you have been exposed to asbestos fibres, record your details on the Australian Government’s National Asbestos Exposure Register (NAER). This register is designed to record information for members of the community who may have been exposed to asbestos, for their future reference. It is also recommended that you take the following steps, depending on where the exposure took place.
- If the suspected exposure took place in the workplace, contact your employer, who should take immediate action to remove the ongoing risk; or your state or territory work health and safety regulator if that does not occur.
- If the suspected exposure took place outside the workplace (home or in the community), contact your local council or state or territory environmental regulator for advice on how to ensure the asbestos fibres pose no ongoing risk to yourself or to others.
- You should arrange an appointment with your GP to discuss the associated health risks of asbestos exposure and request advice regarding any health assessments that your GP considers appropriate. You should also seek legal advice as you may be entitled to make a compensation claim, which can give you improved access to the medical and support services you may require.
Asbestos Management for Employers
If you manage, or are in control of, a workplace, you have a responsible to protect anyone that works with asbestos.
As an employer:
- You must have an asbestos register
- You must have asbestos management plan
- You must control asbestos in your workplace
- You must hold the right training and licensing
- You must monitor your workers’ health
The Rapid Response Protocol has been developed by the Heads of Workplace Safety Authorities to deal with all health related matters and risk of exposure to asbestos.
The Protocol helps government agencies work cooperatively and efficiently across jurisdictions and portfolios when imported products have been identified as containing asbestos, and there is concern they may cross or have crossed state borders.
The Protocol makes sure all government agencies with an interest in a particular incident share pertinent information, and it enables a nationally uniform compliance and enforcement approach for future incidents.
Making a workers compensation claim if you have suffered a work-related illness after being exposed to asbestos
Workers who are exposed to asbestos in the course of their work duties may have access to:
- A claim for statutory benefits (weekly income payments, medical treatment expenses, lump sum for impairment). This is a temporary, no-fault compensation scheme.
- A claim for common law compensation (ie. A claim for a once-off payment of all past and future income loss, treatment costs, paid care expenses, and pain and suffering/general damages sustained as a result of the work-related asbestos condition). This is a fault-based compensation claim, meaning that you must have suffered the condition as a result of the employer’s negligence (eg an unsafe system of work, poor safety protocols, etc).
Developing asbestos related diseases due to exposure in the workplace is not uncommon. Seeking remuneration is warranted and most effectively done so by taking the advice of an experienced compensation lawyer who understands the complexity of work-related injury and illness claims. Some companies will go to great lengths to avoid the liability and associated costs of asbestos related illness in the workplace. An example of this is the case of James Hardie, an Australian company which had the longest running battle in the courts relating to asbestos in the country.
Recently, the BBC was also sued for a set builder’s death, who had contracted asbestos related cancer whilst working on the sets of hit TV shows such as Doctor Who. The action is the latest in a growing number of lawsuits the BBC is facing from relatives of ex-employees who died of mesothelioma they contracted after exposure to asbestos in several of the corporation’s premises. The broadcaster is being sued for damages by Patricia Larkin, the widow of Christopher Larkin, a horn player in the BBC Symphony Orchestra. They admitted liability for Larkin developing mesothelioma after rehearsing and recording for 36 years in its asbestos-riddled Maida Vale studios in London.
Exposure alone doesn’t necessarily warrant a claim for compensation. It is important to understand your rights and what needs to be considered in a workers’ compensation claim if you believe you have an illness due to exposure to substances like asbestos in your workplace. Diagnosis of an asbestos-related illness is the first and most crucial step.
Once you have been diagnosed with an asbestos-related illness, you should discuss your specific matter with an experienced compensation lawyer to find out what steps to take next. You will need to provide authority to your lawyer so that they can access your medical records along with any copies of relevant paperwork, and documentation of illness to get your claim underway
Each state and territory have their own set of laws and compensation schemes. You should get advice from a lawyer who has a comprehensive understanding of the different workers’ compensation schemes in place and the tactics insurers use to deny claims or reduce the compensation pay-out you may be entitled to claim.
Asbestos compensation claims sometimes get resolved in as little as three weeks or otherwise could go on for 6 months to several years before you reach a final resolution. Claiming for compensation will assist you in obtaining the treatment you need and compensating you for any loss of income you have suffered because of your illness.
If a loved one has passed away from an asbestos related illness, you may be able to claim on their behalf as a dependant or on behalf of their estate.
Making a TPD claim if you are unable to return to work
A Total and Permanent Disability (TPD) insurance claim is applicable when you have suffered a serious injury or illness and can no longer perform the work you once did. TPD insurance enables you to lodge a claim with your superannuation fund to seek a lump sum payment. You may be able to make a TPD claim in addition to a workers’ compensation claim, and if you hold multiple superannuation accounts, you may even be able to make multiple TPD claims. What you may be entitled to claim will depend on the level of insurance cover you have with your superannuation fund, as well as if you meet the terms and conditions of the insurance cover.
We recommend engaging a lawyer to assist in the process of making a TPD claim. If your claim gets denied in the first instance, it can be more difficult to challenge the initial decision. It is important to get advice from a TPD lawyer at the earliest opportunity so that they can assist you with your claim and help you access all your entitlements.
Our TPD lawyers can help you find out what level of cover you hold in TPD insurance and if you have multiple TPD insurance policies under different superannuation accounts by completing a super search on your behalf.
Attwood Marshall Lawyers can assist you with claiming compensation for asbestos-related illnesses
Our compensation lawyers understand that developing an asbestos related illness can severely impact your life, your working capacity, and your financial security. It is our intent to help make sure that you and your loved ones get the support, treatment, and compensation you need.
We do our best to take the stress out of making a Workcover or TPD claim, so that you can focus on what matters most – your recovery and your wellbeing.
Attwood Marshall Lawyers practices in all types of compensation claims including workers’ compensation, motor vehicle accident and CTP claims, public liability claims, TPD and superannuation claims, and historical and institutional sexual abuse claims.
We take on every matter with compassion, empathy, and support. If you have been exposed to asbestos during your work or in any life circumstance and would like to discuss your options, contact our Compensation Law Department on 1800 621 071.
You can also book a free, no-obligation and confidential initial appointment to find out where you stand by booking online now. Our lawyers are available to meet with you at any of our conveniently located offices at Robina Town Centre, Coolangatta, Kingscliff, Brisbane, Sydney or Melbourne.
Read more:
Injured at work? Easy steps to claim WorkCover compensation
Working from home and WorkCover Compensation Claims: Am I still covered?
TPD claims gone wrong: You may face serious consequences if you do not seek the right advice when applying for life insurance and TPD cover
