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 1300 366 979 or by email Asbestos.Matters@comcare.gov.au. You can also visit Comcare s website for more information at www.comcare.gov.au. 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 www.dva.gov.au or contact DVA. 1 GPO BOX 9905 CANBERRA 2601 1300 366 979 COMCARE.GOV.AU
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 www.comcare.gov.au or call Comcare on 1300 366 979. 2. 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
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
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
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) 9637 8759 www.adfa.org.au info@adfa.org.au Bernie Banton Foundation (02) 8850 122 info@berniebanton.com.au www.berniebanton.com.au Biaggio Signorelli Foundation (02) 8543 6000 www.biaggiosignorelli.org.au Newcastle Asbestos Advocacy Group Queensland Queensland Asbestos Related Diseases Support Society Inc. (QARDSS) 1800 776 412 asbestoshelp@westnet.com.au www.asbestos-disease.com.au South Australia Asbestos Diseases Society of South Australia (ADSSA) (08) 8359 2423 Toll free 1800 157 540 admin@adssa-inc.com.au www.adssa-inc.com.au Victoria Asbestoswise (03) 9654 9555 www.asbestoswise.com.au Gippsland Asbestos Related Diseases Support Inc (GARDS) (03) 5127 7744 (03) 5126 0354 info@gards.org www.gards.org Western Australia Asbestos Disease Society of Australia Inc (ADSA) (08) 9344 4077 Toll free 1800 646 690 www.asbestosdiseases.org.au The Australian Lung Foundation (07) 3251 3600 enquiries@lungfoundation.com.au www.lungfoundation.com.au Tasmania Asbestos Free Tasmania Foundation Inc (AFTF) www.asbestosfreetasmania.org.au 5
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 13 11 20. 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) 6257 9999 reception@actcancer.org www.actcancer.org New South Wales Central and Southern Sydney (02) 9334 190 supportinfopack@nswcc.org.au www.cancercouncil.com.au Central Coast (Gosford office) (02) 4336 4500 info@centralcoast@nswcc.org.au www.cancercouncil.com.au/centralcoast Greater Western Sydney (Parramatta Office) (02) 9354 2000 info.westernsydney@nswcc.org.au www.cancercouncil.com.au/westernsydney Casula Hub (02) 9354 2050 Penrith Hub (02) 9354 2060 Rouse Hill Hub (02) 9354 2070 Southern Region (Wollongong Office) (02) 4223 0207 info.southern@nswcc.org.au www.cancercouncil.com.au.southern Bega Community Centre (02) 6492 1805 Young Community Centre (02) 6382 3426 Hunter Region (Newcastle Office) (02) 4923 0700 info.hunter@nswcc.org.au www.cancercouncil.com.au/hunter North West Region (Tamworth Office) (02) 6627 0300 info.northwest@nswcc.org.au www.cancercouncil.com.au/northwest Far North Coast (Alstonville Office) (02) 6627 0300 info.farnorthcoast@nswcc.org.au www.cancercouncil.com.ai/farnorthcoast Mid North Coast (Coffs Harbour Office) (02) 6659 8400 info.midnorthcoast@nswcc.org.au www.cancercouncil.com.au/midnorthcoast Northern Sydney (Crows Nest) (02) 9334 1600 northernsydney@nswcc.org.au www.cancercouncil.com.au/northsydney South West Region (Wagga Wagga Office) (02) 6937 2600 info.southwest@nswcc.org.au www.cancercouncil.com.au/southwest Western Region (Orange Office) (02) 6392 080 info.western@nswcc.org.au www.cancercouncil.com.au/western Northern Territory Cancer Council NT (08) 8927 4888 Toll free 1800 678 123 admin@cancernt.org.au www.cancernt.com.au Alice Springs Office (08) 8953 5920 Katherine Office (08) 8971 2022 6
Queensland Cancer Council Queensland (07) 3634 5100 info@cancerqld.org.au www.cancerqld.org.au Bundaberg (07) 4150 4500 Cairns (07) 4047 5500 Gold Coast (07) 5503 3700 Mackay (07) 4842 2000 Rockhampton (07) 4932 8600 Sunshine Coast (07) 5451 6000 Toowoomba (07) 4690 5800 Townsville (07) 4796 8400 Victoria Cancer Council Victoria (03) 9635 5000 enquiries@cancervic.org.au www.cancervic.org.au Western Australia Cancer Council WA (08) 9212 4333 Shenton Park (Accommodation Milroy Lodge) (08) 9382 9333 Shenton Park (Education & Research Gordon Basford House) (08) 9388 4333 Nedlands Cancer Council Crawford Lodge (08) 9489 7333 Mid West Geraldton (08) 9956 2408 Goldfields Kalgoorlie (08) 9080 8200 Goldfields Esperance (08) 9071 0400 Tasmania Cancer Council Tasmania (03) 6233 2030 Southern Cancer Support Centre (03) 6233 2030 Northern Cancer Support Centre 5/216 Charles Street, Launceston TAS 7250 North West Cancer Support Centre Davenport (03) 6424 5483 North West Cancer Support Centre Burnie (03) 6434 6363 South Australia Cancer Council SA (08) 8291 4111 cc@cancersa.org.au www.cancersa.org.au Wheatbelt Northam (08) 9690 1603 Midland Guildford (08) 6278 1048 Peel Mandurah (08) 9581 4059 South West Bunbury (08) 9791 1464 South West Busselton (08) 9751 2762 Great Southern Alban (08) 9842 7536 The Australian Council of Trade Unions (ACTU) ACTU General Enquiries 1300 362 223 (local call cost) (03) 9664 7333 (03) 9600 0050 help@actu.org.au 7