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FACT SHEET
Asbestos-Related Diseases (Occupational Exposure)
Compensation Bill 2011
Asbestos-Related Diseases (Occupational Exposure)
Compensation (Consequential Amendments) Bill 2011
The purpose of the Asbestos-Related Diseases (Occupational
Exposure) Compensation Bill is to establish a scheme for the
payment of compensation, and certain other expenses,
related to the contraction of asbestos related diseases, by
workers, who are exposed to asbestos in the course of their
employment.
The need for change comes from the confusion in the
current statutory system where the Workers Compensation
Act 1927 and the Workers Rehabilitation and Compensation Act
1988 apply.
As a result of this confusion, workers do not use the
statutory system for compensation. They use common law,
where negligence must be proven.
The Bill provides for commencement on a day to be
proclaimed. This will enable the provisions of the Bill and the
Regulations to be coordinated to come into effect on the
same day, 1 October 2011.
The Bill's provisions will apply to workers who have
contracted a compensable disease that is reasonably
attributable to exposure during the course of their
employment, and it is proposed that compensation awarded
under the Bill will occur quickly, within four weeks from the
time all evidence is provided.
A compensable disease occurs when a person has an
asbestos related disease, the contraction of the disease is
reasonably attributable to exposure during the course of
employment, and the person was exposed in the course of
employment during a period in which the employment was
connected with this State.
The Bill identifies the Asbestos Compensation
Commissioner, which will be responsible for making
determinations regarding a worker's application for
compensation, and managing all monies in the Asbestos
Compensation Fund.
A Medical Panel will assist the Commissioner in making its
determinations.
The Bill will provide compensation to workers with an
imminently fatal or non-imminently fatal compensable
disease. Imminently fatal refers to a worker that has less
than two years life expectancy from the time of correct
diagnosis. Non-imminently fatal refers to a worker with
more than two year's life expectancy from the time of
correct diagnosis.
A worker with an imminently fatal compensable disease will
receive a lump sum, approximately $250,000, and an
additional lump sum based on age, if under 80 years old.
Reasonable medical expenses will also be paid. However,
when a worker hits $87,000 in medical expenses, a review
will occur to ensure they are receiving the correct
treatment.
A worker with a non-imminently fatal asbestos related
disease must undergo an impairment assessment.
Compensation is only payable if the worker has a whole
person impairment of 10% or more. Three lump sums will
be provided depending on impairment, up to a total of
approximately $250,000. However, in those cases where a
worker is assessed the first time and their whole person
impairment is 51% or more, they will receive all three lump
sums in one, approximately $250,000. Uncapped reasonable
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medical expenses will also be paid for workers with a non-
imminently fatal asbestos related disease.
If the worker is still employed, weekly payments will be paid
based on incapacity. This is the same as the Workers
Rehabilitation and Compensation Act, except there will be
no step-down provisions, reflecting the often fatal nature of
asbestos related diseases.
If a person is receiving compensation for a non-imminently
fatal asbestos related disease, and they are then diagnosed as
imminently fatal, or develop a different imminently fatal
asbestos related disease, they will be paid any remaining
lump sums up to approximately $250,000. They will also
receive the age based payment, if eligible. Medical expenses
will be reset, and uncapped reasonable medical expenses will
be paid, with a review at $87,000.
It is important to note that if a worker is diagnosed with
two non-imminently fatal asbestos related diseases, they are
not paid two lots of compensation. Rather both diseases are
taken together to form the whole person impairment rating.
Another feature of the Bill is that members of the family are
entitled to compensation if their loved one has died of an
asbestos related disease. If it can be proved that if the
worker was still alive, they had a compensable disease, the
members of the family are entitled to the same amount of
compensation the worker would have received.
Members of the family will include spouses, significant
others, and children under the age of 22 at the time of the
worker's death.
There will be a capacity for a worker to nominate who,
among the members of the family, they wish their
compensation to be paid to in the event they die after
making an application for compensation, but before receiving
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compensation. The worker will also be able to nominate
step-children.
A worker will have 12 months to apply for compensation
following the correct diagnosis of an imminently fatal
asbestos related disease. Additionally, members of the family
will have 12 months to apply for compensation following the
death of the worker. In the event that correct diagnosis or
death occurs prior to the proclamation of this Bill, the
worker or member of the family will have 12 months to
apply for compensation after proclamation.
There are no application time frames for non-imminently
fatal diseases.
Another feature of the Bill relates to Common Law. It is
intended that all workers with a compensable disease must
go through the statutory scheme prior to commencing
Common Law action. In the event that damages under
Common Law exceed, or are the same as the compensation
paid under the Bill, that compensation must be repaid. In the
event that damages under Common Law are less than the
amount paid under the Bill, the amount of damages paid
must be reimbursed. These provisions apply to both
workers and members of the family.
The Bill imposes a levy on all workers' compensation
insurance premiums, including licensed insurers, self insurers
and the Tasmanian Government. The levy has the support of
the key business group representative, the Tasmanian
Chamber of Commerce and Industry.
This levy will be set at 4%, with discretion to modify it as
required. This will ensure the scheme is self-funded. Initial
estimates suggest the levy may be reduced after a few years.
This Bill has been produced with low occupational
evidentiary barriers. This reflects that after, sometimes 40
years, businesses have closed, records are gone, and
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insurers have folded. An application can be more easily
assessed with as much evidence as possible, such as pay
slips, tax returns, and so on. However, in cases where this
no longer exists, a statutory declaration may be accepted.
It will also be deemed that occupational exposure is
responsible for the development of an asbestos related
disease if the worker was employed in a position that
resulted in cumulative exposure over a 12 month period.
For example, the manufacture of asbestos materials such as
asbestos cement sheeting would be deemed to be such an
occupation.
The Asbestos Related Diseases (Occupational Exposure)
Compensation (Consequential Amendments) Bill 2011 has also
been finalised. This Bill makes certain provisions relating to
relevant legislation to ensure all workers are covered by the
proposed Asbestos Related Diseases (Occupational
Exposure) Compensation Bill.
In addition, it removes workers with asbestos related
diseases from the current Workers Rehabilitation and
Compensation Act and places them under the Asbestos
Related Diseases (Occupational Exposure) Compensation
Bill. It will also ensure that employers continue to be
covered by workers compensation insurance in the case of
being sued at Common Law.
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