Dying SES employee fights to have workers' compensation claim recognised

Ken Bodinnar has always believed in giving back to the community.

The 73-year-old from Paynesville, almost 300 kilometres east of Melbourne, has lived a life of service, including nearly 50 years volunteering and later as an operations officer for the State Emergency Service (SES).

But instead of enjoying a quiet retirement, Mr Bodinnar is battling small-cell lung cancer his doctors believe is a result of his service while trying to have his compensation claim recognised.

Mr Bodinnar saw the worst the environment could throw at him, including the 2009 Black Saturday fires and the Black Summer fires in East Gippsland a decade later.

He never shirked his task.

"My father was a great believer in leaving the place a better way than you found it, in service to the community," he said.

"That was something that just stuck in me."

Mr Bodinnar fell sick earlier this year, and his doctors say it is unlikely he will see Christmas.

Now, Mr Bodinnar is fighting to have his duty recognised through workers' compensation to ensure his family is taken care of when he is gone.

He is speaking publicly about it for the first time to warn other volunteers.

"Not a lot of people understand the dangers of certain occupations," he said.

"Some people they see the flashing lights and all the bells and whistles as they say, but sometimes it comes at a cost."

A life of duty

Through his career, Mr Bodinnar held roles including fireman, boat operator and operations officer.

He said the worst conditions he faced were during the Black Saturday fires near Traralgon, in 2009, when he was called to the fire front.

"The wind was blowing limbs and branches that were striking the car, and it [the car] was skidding across the ground like it was a full-on storm," he said.

It was a job where he said he was exposed to smoke and toxins.

"I could … not only smell the smoke, but smell the heat. I could virtually smell the flames," he said.

"I thought the fire was just around the corner and I thought, 'This is the day I die.'"

Mr Bodinnar was presented with the National Emergency Medal for his service during the fires.

Cancer diagnosis

Mr Bodinnar said cancer crept up on him in the form of a persistent cough.

After a series of doctor appointments and scans, he was referred to a lung specialist in December last year.

"In my upper left lung was this big red truck tail light, and he said, 'I'm sorry Ken, but that's cancer'," Mr Bodinnar said.

After three weeks of double-dose radiation with chemotherapy, followed by another two doses of chemotherapy, his condition seemed to be improving.

But a routine scan to check for chemotherapy damage revealed the cancer had spread to his liver.

"We missed the gate. The rabbit got out before the gate shut,"he said.

A fight on two fronts

Mr Bodinnar and his family are fighting to establish a workers' compensation claim for his years of exposure at the SES.

His treating physician said his exposure to fire smoke, diesel exhaust fumes and asbestos made a "material contribution" to the development of his cancer.

SES's WorkCover insurers rejected the claim, finding Mr Bodinnar did not sustain his illness during his employment, and work was not a contributing factor.

He was floored.

"I thought, you've got to be kidding me, you deployed me to numerous fires … in the name of SES,"he said.

Maurice Blackburn lawyer Ross Sottile, who specialises in dust diseases, attempted to have the claim fast-tracked, but it failed at conciliation as the insurers failed to produce their own medical evidence in time.

"The main reason was because the insurer couldn't get a medical report fast enough," Mr Sottile said.

"The case was also rejected on the basis they did not agree with the fact that Mr Bodinnar was exposed to diesel and fire smoke in the course of his employment."

Mr Sottile said despite the conciliation process being intended to fast-track cases, it was not suitable for cases like Mr Boddinar's.

Mr Bodinnar's health continued to deteriorate, with his doctor warning he might not make Christmas.

The insurers finally produced two medical reports in August, one from doctor David Fish, which found there was "no doubt" that exposure to firefighting smoke and diesel fumes were a "significant contributing factor" to the development of his condition.

Mr Sottile said his team had to wait weeks for the employer to grant them access to Dr Fish's report and they did not have access to it until early October.

The second report, from doctor Ross Jennens, found Mr Bodinnar's cancer was likely to have been caused by his history of smoking, and it was unclear whether he was exposed to asbestos or smoke during the course of his work.

"If he has had significant exposure to inhaled asbestos dust or fibres, or diesel fumes during the course of his employment, this may have contributed a minor increased risk of developing small cell lung cancer," Dr Jennens concluded in his report.

Conciliation between the parties did not lead to an agreement, and the dispute will go to trial in November.

Mr Bodinnar has now developed blood clots and lung inflammation after a bout of COVID.

He is now in the intensive care unit at Geelong's Epworth Hospital, where his family is preparing for his end of life.

Mr Bodinnar is hopeful his claim will be approved to support his family when he is gone.

"As my father once said, he said, 'Ken, it's not what you take with you, it's what you leave behind that matters' … I now know what he meant," Mr Boddinar said.

From his hospital bed, Mr Bodinnar called for an independent panel to review future compensation claims for workers to ensure they do not have to spend their final months fighting like he has.

"If you leave it with the organisations and the insurance companies, everything becomes a fight," he said.

"People forget what's in that uniform. It's a human being in that uniform first and foremost, trying to do their bit whatever their bit might be.

"Wasn't our time worth it?"

An SES spokesperson said the safety of volunteers and staff was a priority and all claims were independently assessed.

"We have systems, procedures and training in place to help identify and manage workplace health and safety risks that our members may be exposed to in the course of their duties," the spokesperson said.

"Ken has been a valued, longstanding volunteer and staff member with VICSES and our thoughts are with him and his family at a difficult time."

WorkSafe said it would not comment on an individual case.