Successful Australian Workers’ Compensation Claim for RCS-Exposed Employee with Lupus

In an earlier issue of BC Disease, this month (here), we revisited the link between exposure to respirable crystalline silica (RCS) and chronic inflammatory multisystem autoimmune disease.

We did so on account of an academic article, recently published in the International Journal of Epidemiology, which recommended that existing occupational exposure limits should be reassessed, with observed cases of disease occurring in individuals whose ‘mean exposure intensity levels … [were] … well below’ those prescribed by European and UK [0.1 mg/m3 (8-hour time-weighted average)] legislation.

The Danish nationwide cohort study revealed that cumulative exposure, exposure intensity and exposure duration were all correlated with an increase in risk of developing systemic sclerosis, rheumatoid arthritis, systemic lupus erythematosus, or small vessel vasculitis, potentially giving rise to a ‘causal connection’.

Incidentally, not long after our literature review was published, ABC Radio Melbourne reported that WorkSafe insurers (providers of workers’ compensation insurance for employers) had, in ‘an Australian first’, accepted a compensation claim brought by a former silica milling factory worker, who developed lupus in 2009 and was subsequently diagnosed with silicosis, rendering her unable to work.[i]

It was alleged that Ms. Dianne Adams had encountered ‘substantial exposure’ to RCS in the course of 20-years of employment.

Although the 58-year-old’s claim was initially rejected, a ‘landmark decision’ ruled that silica dust was likely related to the onset of her systemic lupus erythematosus, thus entitling receipt of ‘life changing’ weekly payments and compensation for medical expenses.[ii]

The presumption is that this outcome will ‘pave the way for other workers who have been suffering in silence for many, many years’.

Ms. Adams is 1 of 7 milling factory workers who assert that their autoimmune diagnoses are related to their employment and her legal representatives, Shine Lawyers, now assert that a connection has been successfully drawn to several autoimmune diseases, including lupus, scleroderma and rheumatoid arthritis. That being said, proving such a connection had not been an ‘easy ride’, admitted Roger Singh (head of dust and diseases litigation).

Next, Ms. Adam intends to sue her former employers in negligence, under common law. This is a separate cause of action from the ‘no fault’ Victorian workers’ compensation scheme.[iii]

Whether or not this Australian case resonates in the UK is yet to be seen, though the fact that RCS has been branded ‘the next asbestos’ by the All Party Parliamentary Group (APPG) for Respiratory Health (see here) certainly opens the door to such an eventuality.

We will continue to monitor the work of the Industrial Injuries Advisory Council and claimant personal injury firm marketing practices, on the matter of causality.

 

[i] Matilda Marozzi, ‘Lupus linked to silica dust exposure in Australia-first workplace compensation claim’ (4 March 2021 ABC Radio Melbourne) https://www.abc.net.au/news/2021-03-04/silica-dust-exposure-linked-to-lupus/13211638> accessed 5 March 2021.

[ii] ‘What am I entitled to?’ (WorkSafe Victoria) <https://www.worksafe.vic.gov.au/what-am-i-entitled> accessed 17 March 2021.

[iii] ‘Workers' Compensation and Return to Work’ (Victoria State Government) <https://www.education.vic.gov.au/hrweb/safetyhw/Pages/worksafereturntowork.aspx> accessed 17 March 2021.

‘WorkSafe - Workers Compensation in Victoria’ (Shine Lawyers) <https://www.shine.com.au/service/workers-compensation/worksafe-lawyers> accessed 17 March 2021.