Page 1384 - Week 05 - Tuesday, 3 May 2016
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the claim costs payable under the act. Asbestosis, mesothelioma, lung disease, lung cancer and asbestos-related diseases characteristically develop over a long period of time. The first symptoms may not appear until anywhere between 10 and 50 years after exposure. There are consequently many difficult issues facing workers suffering from asbestos-related diseases: the need to establish causation many years after exposure and the fact that workers may have been exposed to asbestos with more than one employer and often in the case of the ACT workers in more than one state.
Asbestos disease claims are often managed by the default insurance fund due to the fact that historically the terms of the ACT insurance policies provided coverage for injuries that occurred during a fixed period of time. With long latency claims such as asbestos-related diseases, the date of the injury is the date the worker first became aware of the injury and seeks medical treatment or passes away.
Asbestos-related diseases tend to manifest long after the time in which the exposure occurred and when the insurance policy may have been in place. This means that an insurance policy will only respond to injuries or diseases which manifest during the policy period, leaving injured workers suffering from an asbestos disease and their employers uninsured for workers compensation purposes. This is due to unintended historical legislative consequences that have risen over many years.
While the default insurance fund seeks to expedite claims for asbestos-related compensation claims when it is the primary party to litigation, the rules under which it operates have required workers or former workers to exhaust all other possible avenues of compensation before seeking compensation through the fund. While it is reasonable to expect claimants with non-fatal injuries to first apply for the compensation through existing compensation schemes, in the case of immediately fatal asbestos disease claims, other avenues of compensation may include stressful court-based processes that are often not finalised until it is too late.
Prompt and efficient decision-making is particularly important in cases of mesothelioma where, if decision-making is delayed, the affected worker is likely to reach the end of their life before the case is heard by the courts and compensation awarded. To address this, the bill I put forward today will modify the default insurance fund claimant arrangements so that liability for statutory workers compensation claims for imminently fatal asbestos diseases may be accepted and paid without first requiring a claimant to pursue other parties. An “imminently fatal asbestos-related disease” is one where the sufferer has a prognosis of less than two years of life expectancy. The expedited process for imminently fatal cases has been highly effective in other parts of Australia.
Madam Deputy Speaker, the default insurance fund will become the central point of contact and insurer for all workers wanting to submit a claim for an asbestos-related disease. The default insurance fund has processes and procedures in place, including a legal panel experienced in the management of these types of claims, which will assist in seeking contribution and recovery from the responsible employers, insurers and manufacturers where possible. These changes will ensure that claims for a worker with a short life expectancy are processed and paid as soon as possible.
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