Other NSW schemes

Overview

When a worker is diagnosed with a work-related dust disease, the claim is made to the Workers Compensation (Dust Diseases) Authority, through Dust Diseases Care (part of Insurance and Care NSW). A worker’s entitlements are determined under the Workers Compensation (Dust Diseases) Act 1942 (1942 Act) and are different to the entitlements available under the Workers Compensation Act 1987 (1987 Act).

Dust diseases in NSW

The definition of injury in section 4 of the 1987 Act explicitly excludes dust diseases as defined by the 1942 Act. The effect of the exclusion is that claims for dust diseases, as defined, are not brought under the 1987 Act but rather under the 1942 Act.

Dust claims are made to the Workers Compensation (Dust Diseases) Authority, through Dust Diseases Care (part of Insurance and Care NSW). A worker’s entitlements are set out in the 1942 Act and are different to entitlements under the 1987 Act.

Why are dust diseases treated differently – a brief history

The dust disease scheme in NSW is unique amongst workers compensation jurisdictions in Australia. The scheme evolved from the history of the construction of Sydney’s water, drainage, sewerage and communication systems dug out of the sandstone basin.

When sandstone was cut in the confined spaces of underground tunnels and narrow trenches, necessary for the water and sewerage systems, the dust had nowhere to go and was inhaled by workers. The mortality rate amongst the rock miners and the rock-choppers was high. Medical evidence at the time estimated that as many as 70 per cent of workers died of silicosis within two years of commencing work.

By 1920, legislation was enacted to compensate workers and their families. The 1942 Act represented a shift in government policy regarding funding. The new scheme was funded by a levy on all employers rather than limited to employers directly involved in industries generating silica dust.

Part of the rationale for a compensation scheme specific to silicosis was that silicosis can take a long time to manifest (excluding the very intense exposure for the rock-choppers digging trenches and, more recently, those working with manufactured stone products with very high silica content) making it difficult to attribute to a particular employer. A no-fault system funded by contributions from all employers made it easier to access compensation. It also resulted in considerable savings in medical and legal costs.

The Workers Compensation (Silicosis) Committee had exclusive jurisdiction to hear and determine all claims for compensation. As the Committee had no financial interest in the outcome, the findings were considered to be conscientious, authoritative and reliable.

The smooth administration and effectiveness of the silicosis compensation system led to a decision in 1967 to bring all industrial dust diseases under the operation of one scheme and under the scope of one Act – the 1942 Act.

The practice of setting a dust disease levy for all employers based on the classification of the employer’s business continues to be applied today. Each year, SIRA determines the manner in which the contributions to the Dust Diseases Fund will be determined. Dust Diseases Care then uses the monies from the Fund to support workers and their dependants.

Dust disease claims today

Amendments to the 1942 Act since 1967 have largely been incremental to improve the equity and effectiveness of its operation and coverage including:

• expanding the Schedule of diseases to reflect changing medical knowledge
• allowing for adjustment (via indexation) of compensation payments bi-annually
• to reflect shifts in administrative and anti-discrimination law, including allowing appeals to the District Court
• to reflect changing family structures
• to allow the Dust Diseases Authority to play a role in dust disease research, treatment and prevention.

Eligibility to apply for support through Dust Diseases Care

Eligibility for support is determined by:

• a medical diagnosis of a dust disease covered by the scheme
• evidence that the exposure to harmful dust occurred while employed in NSW and
• a death or disability as a result of the dust disease that can be reasonably attributable to exposure to the inhalation of dust.

Dust diseases can only be detected through a medical examination. The examination should be carried out by a doctor who has experience in respiratory medicine. Usually, examinations will include a chest X-ray or CT scan, and a lung function test. Other medical tests may also be required.

In 2021/22, Dust Diseases Care supported 5,261 persons (workers and their dependants) impacted by dust diseases. A total of $161.2 million of payments were made.

Crystalline silica

Crystalline silica (silica) is found in sand, stone, concrete and mortar. It is also used to make a variety of products including bricks, tiles and some plastics.

When workers cut, crush, drill, polish, saw or grind products that contain crystalline silica, respirable dust particles are generated that are small enough to lodge deep in the lungs and cause serious illness or disease including silicosis, lung cancer, scleroderma and chronic obstructive pulmonary disease.

The increased use of engineered stone products with high levels of silica has contributed to a resurgence of silicosis and related dust diseases across Australia and internationally.

Mandatory health monitoring

Health monitoring for silica exposed workers is mandatory under Schedule 14, Table 1 of the Work, Health and Safety Regulation 2017. Health monitoring must include:

• demographic, medical and occupational history
• records of personal exposure
• standardised respiratory questionnaire
• standardised respiratory function test and
• chest X-ray full size PA view.

It is the employer’s duty to meet the costs of health monitoring.

Dust Diseases Care can also provide health monitoring through their Lung Screening Service.

Dust diseases and common law rights

A worker who contracts a respiratory disease as a consequence of occupational exposure to a dust may have two complementary rights: common law rights and statutory rights. As described above, statutory rights are dealt with through the Workers Compensation (Dust Diseases) Authority and under the 1942 Act.

To bring a claim for common law damages a worker is required to commence proceedings in the NSW Dust Diseases Tribunal (the Tribunal). Established in 1989, the Tribunal is a court of record with exclusive jurisdiction to hear and determine matters for damages in respect of a dust-related condition or death. In this respect, the Tribunal is unique in Australia.

The Tribunal operates under an expedited process for dust-related claims, including those brought by dependants if the worker has died. There is no time limit for starting a claim and no maximum amount that can be claimed. The Tribunal and the Workers Compensation (Dust Diseases) Authority operate independently of one another. Appeals of decisions of the Workers Compensation (Dust Diseases) Authority do not go into the Tribunal (instead, appeals are lodged in the District Court of NSW).

It is common for a worker or their dependants to bring damages proceedings against a number of parties. These might include the last known employer where exposure is alleged, previous employers and the supplier/manufacturer of the asbestos products. Relevant employment can span decades - from apprenticeship through to retirement. The worker may choose to sue multiple defendants and concurrent tortfeasors are common.

As such, a number of insurers may respond including current workers compensation insurers; self and specialised insurers; workers compensation insurers privately underwritten under the 1926 Act (the Old Act insurers), and the Insurers’ Guarantee Fund (IGF) covering failed insurers.

The IGF is managed by SIRA. The Old Act insurers and the IGF continue to respond to new dust claims for pre-1987 exposure each year.

A worker (or their dependants), who recovers damages in a dust disease matter has their damages calculated according to common law principles. That is, the damages available are not the modified damages available to workers under the principal workers compensation legislation, where damages are limited to past and future economic loss only (see Insurer guidance GN 9.2 Work injury damages).

Dust disease claims are a specialised area of workers compensation/personal injury law. The medical and legal issues can be complex. Often, workers can be very unwell making their claims urgent.

Legal practitioners who specialise in this area tend to have extensive knowledge of the history of employers and manufacturers and the operation of the Tribunal and can greatly assist in the expeditious management of these claims.