WorkCover Entitlements for Occupational Diseases

If a worker contracts a disease as a result of exposure to risk factors arising from the nature of employment, that disease may be classified as an ‘occupational disease’. Common risk factors include chemicals, toxins, dust (e.g., containing silica or asbestos), gases, fumes, and radiation/sunlight.

The occupational disease may be due to exposure to harmful risk factors over the course of employment, with one or more employers, and the symptoms can appear many years, even decades, after the initial exposure.

If you have a disease, have you investigated whether it could be related to your past or current employment?

Unfortunately, in the past, we have seen occupational diseases slip under the radar, with some WorkCover clients having been incorrectly diagnosed or not diagnosed at all.  Importantly, failure by a doctor (s) to follow up on symptoms and to consider current and/or past history may result in a failure to identify a potential link between employment-related exposures and the worker’s symptoms.

For example, in one case, a stonemason had obtained a Chest CT scan that revealed findings not typical of silicosis but still suggestive of it, and the radiologist recommended a referral to a specialist. As the worker was asymptomatic, the general practitioner did not refer the worker to a specialist, nor provide any treatment recommendations or impose any work restrictions. The stonemason continued working for a further two years, after which time the stonemason became symptomatic.  After further diagnostic scans, the stonemason was found to have advanced chronic silicosis.

What should you do if you believe you may have an occupational disease?

If you or someone you know has worked in an occupation where they may have been exposed to hazardous or carcinogenic substances, we recommend that the person consult a general practitioner or specialist to assess whether they have any conditions or diseases that may be linked to their past and/or present employment.

It is important that an occupational history is provided, and that, if it is believed that the symptoms have not been properly investigated, a second opinion and/or diagnostic testing is sought. Given that the period between exposure and the onset of symptoms can be decades long for some diseases, early preventive measures and detection are recommended where possible.

We also recommend that legal advice is sought in relation to possible entitlements to WorkCover compensation and/or entitlements through Superannuation and/or personal insurance policies.

When may a current or past worker diagnosed with an occupational disease be entitled to WorkCover Compensation?

A past or current worker diagnosed with an occupational disease may be entitled to WorkCover compensation if one of the following scenarios is satisfied:

• The worker has contracted a disease due to the nature of their employment (including past employments), and the nature of their employment (past or present), significantly increased the risk of the worker contracting the disease than had the worker not been employed in employment of that nature – this is irrespective of whether their employment actually caused their disease unless WorkSafe proves that the disease was not due to employment;
• The worker has suffered a recurrence, aggravation, acceleration, exacerbation or deterioration of a pre‑existing disease, and their employment was a significant contributing factor to that recurrence, aggravation, acceleration, exacerbation or deterioration of their pre‑existing disease;
• The worker has been diagnosed with one of the prescribed proclaimed diseases – this is irrespective of whether their past or current work contributed to the disease, unless WorkSafe proves that the disease was not due to employment;
• The worker is a career firefighter and has been diagnosed with one of the 12 specified cancers and has been employed or served for the respective qualifying period unless, there is evidence that the relevant cancer is not due to the nature of the worker’s service as a firefighter; or
• The has suffered a heart attack or stroke that arose in the course of, or that was caused by, a disease, and employment as a significant contributing factor to the disease.

It is important that there is a connection between the nature of the worker’s employment and the disease they are suffering. There must also be some special risk of the onset or aggravation of a particular disease that is inherent in the class of employment or occupation in which the worker was engaged. Further, the nature of the employment must have given rise to a significantly greater risk of the worker contracting the disease than would have existed had the worker not been employed in that nature of employment.

If there is more than one employer that could have exposed the worker to harmful substances, a WorkCover Claim should be lodged against the most recent employer in time where exposure could have occurred.

Other circumstances that a worker may be entitled to WorkCover compensation: 

Current or past workers may still be able to lodge a WorkCover Claim even if the following circumstances apply:

• They are asymptomatic;
• They have left the job/s where the exposure may have occurred;
• They have since changed occupation to one where exposure may have occurred.
• They worked with a number of employers where exposure may have occurred;
• They were a contractor and are deemed a worker under Legislation.
• The employer has ceased trading.
• They have retired.
• They were a smoker or otherwise exposed to cigarette smoke; or
• They have moved interstate (subject to where the exposure occurred).

What is a proclaimed disease?

There are 27 diseases, known as proclaimed diseases, which are deemed by Victorian legislation to be automatically due to the nature of a worker’s employment, given their association with a particular place, process or occupation.

A worker is entitled to compensation irrespective of whether employment/s actually contributed to the disease unless WorkSafe proves that the disease was not due to their employment/s.

The list of proclaimed diseases includes those related to asbestosis, silicosis and poisoning from chemicals such as lead, mercury, copper, benzol/benzene, phosphorus and carbon monoxide.

Presumptive rights for firefighters

In 2019, new presumptive rights were introduced for career and volunteer firefighters who have served in operational roles and who have been diagnosed with cancer. The current or past career or volunteer firefighter will be automatically entitled to WorkCover compensation under the presumption that their cancer was caused by their service, provided they have been diagnosed from 1 June 2016 with one of the 12 listed cancers and have served a prescribed minimum number of years.

What WorkCover entitlements may the past or current worker be eligible for?

A past or current worker diagnosed with an occupational disease may be entitled to claim WorkCover compensation for:

• Medical and like expenses;
• Loss of income if they are incapacitated for pre-injury and/or suitable employment; and
• In some circumstances, damages (compensation) for pain and suffering and loss of earnings.

Can the family and/or dependents of a deceased worker who had an occupational disease claim WorkCover compensation?

If the nature of the deceased worker’s employment significantly increased their risk of developing the occupational disease, and their death resulted from or had materially contributed to the occupational disease, the worker’s family and/or dependents may be entitled to specific compensation.

The following statutory benefits and compensation may be available:

• Reasonable medical and like services;
• Burial or cremation costs;
• Family counselling;
• Reasonable travel or accommodation expenses incurred by family members may be covered where:
  • Death results from the injury
  • A burial service or cremation service is held in respect of the worker
  • The service is held at least 100KM from the normal residence of the worker’s family members and
  • The travelling or accommodation expenses are incurred within Australia
• Lump sum dependency payment;
• Weekly pension for dependent partner/s, child/ren and orphans; and
• Reimbursement of expenses for non-dependent family members.

It is important to note that there are deadlines by which claims for the above must be lodged, and therefore, it is recommended that legal advice be sought as soon as possible.

What other entitlements may someone who has been diagnosed with an occupational disease be entitled to?

You may be entitled to other benefits regardless of whether or not you qualify for WorkCover compensation.  These entitlements may include:

• Total and permanent disablement benefit under your Superannuation Scheme;
• Income protection;
• Critical illness Insurance or Trauma, and
• Incolink benefits (subject to being a member of an Incolink policy).

Whether you qualify for any of the above benefits depends on the policy or policies you hold and the specific requirements that must be met.

We recommend that you speak to one of our dedicated Superannuation solicitors at Zaparas Lawyers, who can advise and assist you with making a claim.

How can we assist you?

We have a team of experts in occupational diseases who have seen how traumatic the effects of an occupational disease or condition can be, not just on the person affected but also on their family and friends. We have acted for many past and current workers diagnosed with occupational diseases, including a number who have successfully obtained the statutory maximum in lump sum compensation for pain and suffering.

If you are a worker and have been diagnosed with an occupational disease, or a family member or dependent of a worker whose death resulted from or is materially contributed to by occupational disease, one of our expert occupational disease WorkCover lawyers can advise you of your rights under the WorkCover scheme.

If you believe you may have a disease that could be due to the nature of your past or current employment, we can also assist you in determining whether or not your condition could be considered an occupational disease for WorkCover purposes.

Trust our family to care for you, and contact us today for an obligation-free telephone appointment.

Zaparas Lawyers is a Doyle’s Guide First Tier personal injury firm with over 45 years of experience. We act on a 100% No Win, No Fee basis.