Asphyxiation or toxic-atmosphere incident: NSW workers compensation guide

Asphyxiation or toxic-atmosphere incident can occur through oxygen being displaced by gas or process conditions and toxic gas, vapour or combustion product being inhaled. The incident history should identify the task, equipment, location and sequence of events rather than relying on the job title alone.

People commonly exposed include process, chemical, sewerage, refrigeration and agricultural workers and cleaners and maintenance workers around gases or fumes. Employment records should identify each person's task, employer and position in the work area when the incident occurred.

Medical records after a asphyxiation or toxic-atmosphere incident may identify respiratory injury and traumatic brain injury. Each diagnosis should be linked to the event or exposure and to the worker's actual functional change.

After a asphyxiation or toxic-atmosphere incident, immediate reporting and safety records may include gas-monitor and atmospheric-test data and chemical inventory, safety data and process alarm records. These records can establish what was known at the time without requiring the worker to repeatedly recount a traumatic event.

• Emergency, evacuation and SafeWork notification material where applicable.
• If the facts may meet the WHS Act definition of a notifiable incident, the SafeWork notification reference, inspector correspondence and scene records, without delaying emergency assistance or other action permitted by section 39.

For a asphyxiation or toxic-atmosphere incident, the first evidence to preserve includes ventilation, isolation, release and maintenance records and monitor calibration and sampling methodology. It is most useful when dates, people, equipment, duties and later medical histories tell a consistent account.

• Ambulance observations, blood testing and hospital chronology.
• Neurological, respiratory, cardiac and psychological follow-up.

Medical and psychological evidence after a asphyxiation or toxic-atmosphere incident may include first-aid, ambulance and early clinical histories describing the asphyxiation or toxic-atmosphere incident sequence and diagnosis-specific examination, imaging and specialist evidence for respiratory injury, traumatic brain injury, nerve injury, cardiac or internal-organ injury. A diagnosis alone may not answer causation or capacity: the records should explain the work event, symptoms, treatment and practical restrictions.

• Certificates of capacity stating functional restrictions, hours and treatment rather than only a diagnosis.
• Operative, rehabilitation and psychological records where the event caused surgery, prolonged recovery or trauma symptoms.

After a asphyxiation or toxic-atmosphere incident, an insurer may dispute whether a toxic or oxygen-deficient atmosphere existed and whether exposure level and clinical findings are consistent. The written decision should be answered with evidence directed to those stated reasons.

Acute care may be followed by respiratory, neurological or cardiac investigation. A diagnosis should identify the suspected agent and objective functional consequences where possible. If treatment is disputed after a asphyxiation or toxic-atmosphere incident, the request should explain the accepted diagnosis, expected functional benefit and reasonable alternatives.

Work capacity after a asphyxiation or toxic-atmosphere incident may turn on chemical or gas exposure, respirator use, enclosed areas and safety-critical decision-making and whether duties genuinely remove the relevant atmosphere and permit follow-up treatment. Proposed duties must be compared with the real task demands and the worker's ability to sustain them for the proposed hours.

Symptoms alone do not determine WPI; stable objectively assessed respiratory, neurological or cardiac loss is required under the applicable method. The accident mechanism, surgery, imaging finding or pain report alone does not establish a WPI percentage. Any WPI assessment after a asphyxiation or toxic-atmosphere incident occurs after stabilisation under the NSW method for the accepted body system; the accident or surgery alone does not determine a percentage.

Product, process, premises or environmental claims may require separate expert advice. Any separate occupiers-liability, product, TPD or work injury damages issue is distinct from statutory workers compensation and depends on its own evidence and legal criteria. These issues are separate from workers compensation and depend on the particular facts.

For a asphyxiation or toxic-atmosphere incident, assistance may involve separate the asphyxiation or toxic-atmosphere incident mechanism from the diagnoses and identify any missing incident record and compare the insurer’s written reasons with medical, treatment and work-capacity evidence. The purpose is to identify the disputed decision and the evidence needed for the next step, not to promise an outcome.