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Is Six Years After Diagnosis Too Late To Claim Workers Compensation?

3 May 2019

The Industrial Court of Queensland has rejected the appellant’s application to waive the six-month time limit.

The appellant was exposed to asbestos dust and fibre whilst employed by James Hardie in Brisbane.  The appellant developed asbestosis and asbestos-related pleural disease.

The appellant initially claimed compensation through the Dust Diseases Board of New South Wales.  His claim was rejected.  The Board wrote to the appellant and provided the following reasons for its decision:

“…it would appear from your employment history that your asbestosis exposure seems insufficient to enable attribution.  Therefore, it is the Authority’s opinion that this condition is not related to your dust exposure.”

The appellant’s knowledge about compensation was referred to in his statement in which he said:

“All I know of asbestos-related compensation payments I read and heard in the news when Bernie Banton was fighting to get compensation. I did not have any knowledge besides that. I did not really understand who he was fighting and how.”

The appellant was then informed by his wife (who was informed by another person) sometime later that he may have entitlements with WorkCover Queensland.  A claim was lodged and rejected as it was outside 6 months from diagnosis.

The Workers’ Compensation Regulator rejected the claim on the same basis.

The Queensland Industrial Commission rejected his claim on the same basis.

Unfortunately, the court found that the appellant did not provide a reasonable excuse for delay and the appeal was dismissed.

This case illustrates the difficulties claimants face in applying for the six month time limit to be waived on the basis of reasonable cause for delay pursuant to section 131(5) of the Workers’ Compensation & Rehabilitation Act 2003 (Qld) even in circumstances where a mistake was made in lodging a claim in the wrong jurisdiction.

You can read the full decision here.

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