Queensland workers who suffer from a terminal illness or disease due to their current or former employment are entitled to claim lump-sum compensation from their workers’ compensation insurer.
In the past, it has generally been accepted that such benefits are payable where the worker can show that their work-related illness or disease is likely because of their death within two years.
Recently, the Workers’ Compensation Regulatory Service published new guidance on terminal lump sum compensation eligibility (‘the guidelines’) for Queensland workers and their (eligible) dependents.
Clarification of what is a terminal condition and how long until expected death
A condition is classed as terminal if it is medically certified as being a condition that is expected to cause the worker’s death and the workers’ compensation insurer accepts that diagnosis.
The guidelines state that an illness or disease is terminal if it is likely to result in the death of the worker within the immediate to short-term. The example provided is that of usually two or three years but up to 5 years from diagnosis.
The guidelines also state that there is no set list of terminal illnesses but provides examples of illnesses or diseases that are compensable including:
- Accelerated silicosis with progressive massive fibrosis;
- End-stage work-related cancers.
Discretion to accept the claim
The guidelines state that the workers’ compensation insurers have the (reasonable) discretion to either accept the doctor’s diagnosis of a terminal illness or to otherwise consider various factors when deciding the claim which may include:
- Is the worker’s injury stable or further deteriorating;
- Has enough time passed since the worker was diagnosed with the illness or disease for the doctor to reasonably assess their prognosis or is further evaluation required over time;
- Can the illness or disease be cured (this question would need to be considered in view of current, not future anticipated medical and scientific treatment);
- Is the worker currently undergoing treatment, how effective is that treatment and will it affect the worker’s life expectancy;
- What would have been the worker’s life expectancy if they had not suffered from the illness or disease;
- The effect of any other unrelated illnesses/diseases upon the worker’s injury and life expectancy;
- What is the doctor’s estimation of the injured worker’s life expectancy, how will the illness/disease cause the worker’s death and how far has the worker’s illness/disease progressed.
As with all workers’ compensation legislation, the provisions should be read beneficially in favour of the worker. The guidelines reference the need for those workers who are in the final stage of their illness/disease, including those requiring palliative care being able to access vital financial support.
The new provisions are particularly good news for those workers suffering from progressive illness/disease which will result in their death.
In the past, such workers may have had to wait until their illness/disease progressed to such an extent that they could show that it was likely to cause their death within two years, by which time their quality of life may have significantly diminished to the point where any lump-sum compensation may not be of real benefit to them and their family.
Applying for review of a rejected claim
If the workers’ compensation insurer makes a decision that the injured worker disagrees with (such as the rejection of a claim for terminal illness lump-sum compensation), the injured worker has a period of three months from receiving that decision to lodge an application for claim review with the Workers’ Compensation Regulator (‘the Regulator’).
In our experience, it is far more preferable that any application for terminal illness (or other) lump sum compensation is prepared sufficiently and supported by relevant medical evidence at the outset to enable it to be accepted to avoid the latter unnecessary need and delay associated with proceeding with an application for claim review to the Regulator. Time for these workers and their families is precious and should not be wasted on unnecessary statutory reviews wherever possible.
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