Tasmanian Robert Williams' fight for asbestos compensation 'worse than cancer'

After being diagnosed with lung cancer in October 2018, Mr Williams was initially only given a few months to live. After receiving an additional diagnosis of pulmonary fibrosis, he was then told he would die within two years.

Despite this, his claim through Tasmania's asbestos compensation scheme took 16 months to be approved. After two submissions, an appeal and legal fees exceeding $80,000 his claim was finally accepted in March this year.

However, he has described the emotional and mental stress of the appeal process as being worse than his cancer.

Mr Williams has lived and worked in Tasmania all his life. Now settled at Beauty Point, he walked onto his first building job when he was 15 years old and said he never looked back. For decades he ran his own business, and through that was able to assist many of his employees in gaining their own accreditation. However, growing up like many builders of his generation, he said he had no understanding about the dangers of asbestos.

"I still remember a job in Campbell Town," he said. "We were pulling an old bank down and putting a vault in it and the roof had asbestos in it. I don't know why I remember it so clearly, but I distinctively remember the dust and everything flying out of this roof we were cutting up. There was nothing we could do to avoid breathing it in."

Up until about five years ago Mr Williams described himself as fighting fit - until he wasn't.

"I started to cough ... it was just a little cough and I didn't take much notice of it at first," he said. "I went and got checked up and they thought I had a bit of pneumonia. They gave me some tablets, sent me away and I came good for a while."

Gradually Mr Williams' health began to deteriorate. Before he knew it he couldn't walk more than two steps without struggling to breathe. Early on Mr Williams' doctors suspected his illness was likely caused by prolonged and repeated exposure to asbestos throughout his career. So the family decided to make a claim for compensation.

Tasmania's Asbestos Compensation Scheme provides compensation under the Asbestos-Related Diseases (Occupational Exposure) Compensation Act 2011. To be eligible, applicants must provide a range of evidence to support their claims including a medical certificate with a diagnosis from a specialist, including how long the person is expected to live for. People given less than two years to live are only given 12 months to apply for compensation, from the date the relevant medical certificate is provided. This was the case for Mr Williams.

Applications are then lodged with the Asbestos Compensation Commissioner. The information is given to a medical panel appointed by the commissioner, made up of three practitioners, who determine: if the worker has an as asbestos-related disease; if the is disease reasonably attributable to exposure during the course of employment; if the worker has an imminently or non-imminently fatal disease; if the disease is non-imminently fatal, what is the worker's impairment and incapacity for work if applicable; and if the worker is likely to recover from the disease.

The medical panel refers its determination to the commissioner, whose role is to then determine whether the applicant is a worker, as defined under the laws, and if the employment was connected with the state of Tasmania. The commissioner has 28 days to make a determination on a claim, however more time can be given if more information is needed. During the course of a claim, applicants might also be contacted by the commissioner if further information is required.

With help from his daughter Jodi Rusden, Mr Williams submitted a compensation claim in November 2018, a month after being diagnosed with lung cancer. However, in January, his claim was denied. The reasons given were related to a full review of CT chest and PET scans, pathology reports and an "extensive review" of Tasmanian Health Service correspondence.

In it findings, it was the opinion of two of the three panel members that the degree of occupational exposure, in the absence of tissue fibre counts, was insufficient to meet the level for categorical attribution of this primary lung cancer to asbestos. "Additionally, the 15-plus pack [a] year history of tobacco use and the absence of definite asbestosis or typical asbestos related-pleural plaques supports this," the panel wrote in its findings.

Mr Williams was then referred to two respiratory specialists, who confirmed in addition to lung cancer, he was also living with pulmonary fibrosis. They also confirmed traces of pleural plaques - the most common sign of asbestos exposure.

With the additional diagnosis and further supporting evidence confirming asbestos exposure was the likely cause of both conditions, the family made a second claim in June 2019. However, this was also denied. The majority panel verdict was that Mr Williams did not have an asbestos-related disease, imminently fatal or otherwise.

The panel found his industrial history suggested an insufficient exposure to meet the Helsinki criteria for an asbestos-related lung cancer or asbestosis condition. The criteria is used for the diagnosis and attribution of certain lung and pleural disorders to asbestos exposure. The panel also found interstitial changes seen on Mr Williams' CT were atypical for asbestosis and that his significant tobacco smoking history represented a more convincing trigger for carcinogenesis.

Ms Rusden said the family were left devastated by the second claim decision, having been highly confident in the new evidence they provided. "It flew in the face of what Dad's specialists were telling us," she said. "We had seen an oncologist and two respiratory specialists, so three doctors all up who were all convinced it was all related to asbestos. And at no point were we contacted by the commissioner and asked for additional information. It was clearly a tick and flick type situation."

After seeking legal advice, the family then referred the matter to the Asbestos Compensation Tribunal - an independent body. Through their lawyers they submitted evidence from three additional medical experts. Ms Rusden said it was clear early on that the decision would rule in favour of her dad.

"As soon as our lawyers provided all of the additional information, they chose not to defend their case," she said. "But even the tribunal failed to act in a reasonable time, so it became a very long drawn out process."

Eventually, Mr Williams' claim was approved in March 2020, with a letter from Asbestos Compensation Commissioner Mark Cocker confirming that on the advice of the tribunal, he was entitled to receive compensation.

"As a result of the poor assessment and lack of due diligence by the commissioner's office, Dad has paid over $80,000 in legal fees to achieve an outcome that seemed obvious to all treating medical specialists from the beginning," Ms Rusden said.

Between 2011 and June 2019, there were 158 applications for asbestos compensation made in Tasmania. Of the 16 applications received in 2018-19, nine were successful.

The Examiner put multiple questions to the Justice Department relating to the handling of Mr Williams' case. However, a government spokesperson said it would not be appropriate to comment on the specifics of individual cases.

Mr Williams described the process as gutless, saying it was the most diabolical thing he had ever been put through. "What I would say to them is I didn't pack it [asbestos] in my lunchbox," he said. Ms Rusden believes that without legal representation they would have never been successful in their claim.

"The only thing Dad wants to achieve by sharing his experience is for the government to consider this process and the impact it has on people who have life threatening illnesses, so that perhaps it might be easier for the next person or give people an incentive to keep going even if their claim is denied," she said. "We tried to do the process without lawyers, but we couldn't achieve it. He has two young kids, 11 and 13, who now miss out on that money because it's gone to lawyers."

Mr Williams now requires full-time care and is unable to walk more than a few steps before passing out. He said his only comfort came in knowing his family would be taken care of after he dies.

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