ASBESTOS-RELATED DISEASE ENTITLEMENTS GUIDED CHOICE

Transcription

1 ASBESTOS-RELATED DISEASE ENTITLEMENTS GUIDED CHOICE This fact sheet informs current and former employees of the Commonwealth and Commonwealth authorities diagnosed with an asbestos-related disease (employees), and their dependants, about their potential entitlements under the Safety, Rehabilitation and Compensation Act 1988 (Cth) (SRC Act) and/or the Asbestos-Related Claims (Management of Commonwealth Liabilities) Act 2005 (Cth) (ARC Act), and their compensation choices. This fact sheet may also be helpful to other stakeholders who play a role in supporting and advising employees and dependants, including asbestos support groups and legal representatives. If you are a person other than an employee or a dependant, if you are unsure whether you are an employee or a dependant, or if you require more information regarding an asbestos-related claim against the Commonwealth or a Commonwealth authority, please contact Comcare s Asbestos and Lump Sum Team on or by Asbestos.Matters@comcare.gov.au. You can also visit Comcare s website for more information at If you do not have access to the internet, the Asbestos and Lump Sum Team can supply you with printed material from asbestos support groups or the Cancer Council websites. OPTION 1: THE SRC ACT Comcare administers the Commonwealth workers compensation scheme for all Commonwealth Departments and most Commonwealth authorities through the SRC Act. 1 Before compensation can be paid under the SRC Act for an asbestos-related disease, Comcare must be notified in writing of the disease as soon as practicable after becoming aware of the disease, or as soon as practicable after the employee s death, and a claim for compensation must be made. If you need assistance with completing the compensation claim form or with interpreting any of the information contained in this fact sheet, members of the Asbestos and Lump Sum Team can assist either over the telephone or in person if required. 1 From 1 July 2004, the responsibility for determining claims made under the SRC Act by members of the Australian Defence Force, Reservists, Cadets, Officers, Cadet Instructors and certain other persons was transferred to the Military Rehabilitation and Compensation Commission within the Department of Veterans Affairs (DVA). For more information, visit or contact DVA. 1 GPO BOX 9905 CANBERRA COMCARE.GOV.AU

2 Employees Once Comcare has accepted liability for an asbestos-related disease in accordance with the SRC Act, an employee may claim for a range of benefits depending on their individual circumstances. This includes: > medical expenses (section 16) > incapacity benefits (sections 19 23) > permanent impairment and non-economic loss compensation (sections 24, 25 and 27) > household services and attendant care services (section 29) > aids, appliances, alterations and modifications (section 39). Dependants The following compensation may also be payable if an employee dies as a result of an asbestos-related disease for which Comcare has accepted liability under the SRC Act: > a lump sum payment to dependants (section 17) > fortnightly payments for each dependent child who was a dependant of the employee at the date of death and is under the age of 16 or aged between 16 and 25, receiving full-time education and not working (section 17) > reimbursement of funeral expenses (section 18). Employees and dependants 1. For current statutory rates, visit or call Comcare on Comcare may make a claim for recovery of damages against a third party, or take over the conduct of an existing claim for damages, in the name of the employee or dependant if: > compensation is paid under the SRC Act to an employee or a dependant, and > the asbestos-related disease or death occurred in circumstances that appear to create a legal liability in a person other than the Commonwealth, a Commonwealth authority or a corporation licenced to self-insure under the SRC Act. 3. While an action or other proceeding for damages does not lie against the Commonwealth or a Commonwealth authority in respect of an injury sustained in the course of employment, section 44 of the SRC Act does not prohibit an employee or a dependant from commencing an action or other proceeding for damages in respect of asbestos-related disease or death for which compensation is payable under the SRC Act. 2

3 OPTION 2: THE ARC ACT The ARC Act provides for Comcare to assume liability for and manage most asbestos-related claims for compensation or damages arising from a breach of a common law or statutory duty of care brought against the Commonwealth or a Commonwealth authority (ARC Act claim). This includes claims against the Australian Government and, with certain exceptions, its agencies and controlled companies. Employees As a result of making an ARC Act claim, an employee may receive damages for their pain and suffering, economic loss, past and future medical expenses and domestic assistance. Dependants In addition to any ARC Act claim that a dependant may be able to make or take over as executor or executrix of the employee s estate, a dependant may also be entitled to pursue their own ARC Act claim pursuant to one of the various provisions available under Australian law. COMCARE S RECOVERY OPTION If an employee or a dependant chooses option 1, Comcare may make, or take over the conduct of, a claim for recovery of damages against a legally liable third party under section 50 of the SRC Act. Comcare may then take all appropriate steps to resolve or settle the claim, or enforce judgment, and may require the employee or dependant to sign any document or comply with any reasonable request for the purposes of the claim. If damages are recovered as a result of a claim made or taken over by Comcare, it will deduct from those damages an amount equal to the total of all compensation paid to, or for the benefit of, the employee or dependant under the SRC Act, and the amount of any costs incidental to the claim paid by Comcare. Comcare must then pay the balance (if any) to the employee or dependant. Compensation payments are then suspended until the amount of compensation that would have been payable to the employee or dependant under the SRC Act equals the amount of damages recovered. OFFSETTING ARRANGEMENTS To ensure that an employee or a dependant is not compensated twice for the same asbestos-related disease or death, offsetting arrangements are set out in sections 48 and 50 of the SRC Act. The rules are different for employees and dependants. Employees Where an employee first chooses: > Option 1 and receives compensation under the SRC Act for an asbestos-related disease, and later recovers damages in respect of that disease whether the damages are paid in part or whole by Comcare (as a result of an ARC Act claim under option 2) and/or by a third party Comcare will seek repayment of the compensation paid under the SRC Act to that employee, or the amount of the damages, whichever is less. > Option 2 and/or recovers damages in respect of an asbestos-related disease, the employee will not be entitled to receive compensation under the SRC Act unless the claim for damages was made before 1 December 1988, in which case compensation payments are suspended until the amount of compensation that would have been payable to the employee under the SRC Act equals the amount of damages recovered. 3

4 Dependants Where an employee chose option 1 and received compensation under the SRC Act for an asbestos-related disease that subsequently resulted in death, a dependant may still choose option 2 and make an ARC Act claim in respect of the death. > In circumstances where damages are recovered for the death but not the asbestos-related disease, Comcare will not seek repayment of the compensation paid under the SRC Act to the deceased employee. > However, if damages are paid for the death and the asbestos-related disease, Comcare will seek repayment of the compensation paid under the SRC Act to the deceased employee, or the amount of the damages paid to the estate of the deceased employee, whichever is less. Where an employee chose option 2 and/or recovered damages in respect of an asbestos-related disease that subsequently resulted in death, a dependant may make either a SRC Act claim or an ARC Act claim in respect of the death. Where a dependant first chooses: > Option 1 and receives compensation under the SRC Act in relation to the death of an employee, 2 and later recovers damages in respect of that death whether the damages are paid in part or whole by Comcare (as a result of an ARC Act claim under option 2) and/or by a third party Comcare will seek repayment of the compensation paid under the SRC Act to the dependant, or the amount of the damages, whichever is less. > Option 2 and/or recovers damages in respect of an asbestos-related death, the dependant will not be entitled to receive compensation under the SRC Act unless the claim for damages was made before 1 December 1988, in which case compensation payments are suspended until the amount of compensation that would have been payable to the dependant under the SRC Act equals the amount of damages recovered. NOTICE PROVISIONS If an employee or a dependant makes a claim for damages against the Commonwealth, a Commonwealth authority and/or a third party in respect of an asbestos-related disease or death for which compensation is payable under the SRC Act, strict penalties apply for failing to notify Comcare in writing as soon as practicable but no later than 7 days after the day on which the employee or dependant first became aware of the claim. If an employee or a dependant recovers damages in respect of an asbestos-related disease or death for which compensation is payable under the SRC Act, strict penalties apply for failing to notify Comcare in writing of the recovery and the amount no later than 28 days after the day on which the damages were recovered. OBTAINING LEGAL ADVICE Comcare is unable to provide you with legal advice regarding the comparative value of benefits, risks and costs of each option. It is recommended that you seek specialist independent legal advice regarding your individual circumstances. Comcare is also unable to recommend or refer you to a particular legal adviser. The Law Society or Institute located within your state or territory may be able to assist you with a referral to a suitably qualified legal practitioner who specialises in claims for asbestos-related diseases. 2 Other than compensation paid under subsection 17(5) of the SRC Act. 4

5 ADDITIONAL SUPPORT SERVICES Asbestos support groups There are a number of organisations located throughout Australia who provide specialist support services to members of the community who have contracted, or who have been affected by, an asbestos-related disease. The following support groups operate in your state/territory: Australian Capital Territory Canberra and Region Asbestos Diseases Support (CRADS) New South Wales Asbestos Diseases Foundation of Australia (02) info@adfa.org.au Bernie Banton Foundation (02) info@berniebanton.com.au Biaggio Signorelli Foundation (02) Newcastle Asbestos Advocacy Group Queensland Queensland Asbestos Related Diseases Support Society Inc. (QARDSS) asbestoshelp@westnet.com.au South Australia Asbestos Diseases Society of South Australia (ADSSA) (08) Toll free admin@adssa-inc.com.au Victoria Asbestoswise (03) Gippsland Asbestos Related Diseases Support Inc (GARDS) (03) (03) info@gards.org Western Australia Asbestos Disease Society of Australia Inc (ADSA) (08) Toll free The Australian Lung Foundation (07) enquiries@lungfoundation.com.au Tasmania Asbestos Free Tasmania Foundation Inc (AFTF) 5

6 Additional support services The Cancer Council provides a range of support services for cancer patients, their families and friends including telephone support groups, peer support for women, peer support for men and face-to-face support groups. The Cancer Helpline is also available in most states and territories. The helpline number is The Australian Council of Trade Unions (ACTU) is available to answer general enquiries about asbestos-related diseases or claims. The following information is provided for the Cancer Council in your state/territory: Australian Capital Territory Cancer Council ACT (02) reception@actcancer.org New South Wales Central and Southern Sydney (02) supportinfopack@nswcc.org.au Central Coast (Gosford office) (02) info@centralcoast@nswcc.org.au Greater Western Sydney (Parramatta Office) (02) info.westernsydney@nswcc.org.au Casula Hub (02) Penrith Hub (02) Rouse Hill Hub (02) Southern Region (Wollongong Office) (02) info.southern@nswcc.org.au Bega Community Centre (02) Young Community Centre (02) Hunter Region (Newcastle Office) (02) info.hunter@nswcc.org.au North West Region (Tamworth Office) (02) info.northwest@nswcc.org.au Far North Coast (Alstonville Office) (02) info.farnorthcoast@nswcc.org.au Mid North Coast (Coffs Harbour Office) (02) info.midnorthcoast@nswcc.org.au Northern Sydney (Crows Nest) (02) northernsydney@nswcc.org.au South West Region (Wagga Wagga Office) (02) info.southwest@nswcc.org.au Western Region (Orange Office) (02) info.western@nswcc.org.au Northern Territory Cancer Council NT (08) Toll free admin@cancernt.org.au Alice Springs Office (08) Katherine Office (08)

7 Queensland Cancer Council Queensland (07) Bundaberg (07) Cairns (07) Gold Coast (07) Mackay (07) Rockhampton (07) Sunshine Coast (07) Toowoomba (07) Townsville (07) Victoria Cancer Council Victoria (03) Western Australia Cancer Council WA (08) Shenton Park (Accommodation Milroy Lodge) (08) Shenton Park (Education & Research Gordon Basford House) (08) Nedlands Cancer Council Crawford Lodge (08) Mid West Geraldton (08) Goldfields Kalgoorlie (08) Goldfields Esperance (08) Tasmania Cancer Council Tasmania (03) Southern Cancer Support Centre (03) Northern Cancer Support Centre 5/216 Charles Street, Launceston TAS 7250 North West Cancer Support Centre Davenport (03) North West Cancer Support Centre Burnie (03) South Australia Cancer Council SA (08) Wheatbelt Northam (08) Midland Guildford (08) Peel Mandurah (08) South West Bunbury (08) South West Busselton (08) Great Southern Alban (08) The Australian Council of Trade Unions (ACTU) ACTU General Enquiries (local call cost) (03) (03)