A second rate legal review service adds insult to injury - ALA
26th Sep 2012
Injured workers should remain unexcited by the NSW Government’s announcement today of a new 'free legal review service' for some work injury disputes.
Australian Lawyers Alliance NSW President, Jnana Gumbert, said the scheme, being pitched to the media by Finance Minister, Greg Pearce, amounted to little more than an appeasing bandaid on the fresh open wounds of the new NSW workers compensation laws.
“This is a clever diversionary tactic by the government to stave off criticism following the dramatic slashing to NSW workers legal rights under the Workers Compensation Legislation Amendment Act 2012 in June,” Ms Gumbert said.
“NSW workers have actually been entitled to advice from the legal profession at no cost since 1926,” she said.
“Under the previous costs structure a worker was not liable to pay legal costs unless the claim was fraudulent, vexatious, frivolous or brought without proper justification.
"The result was a free legal advisory scheme that enabled worthy claims to be prepared by lawyers who then represented the injured workers and paid associated medical and investigation costs as part of preparation of the matter.
"The government has never identified what was wrong with that system”, Ms Gumbert noted.
“And legal costs, already heavily regulated under the previous structure, and of no significant cost to the scheme, were not identified as an issue in any lead up to the amending legislation.
"The minister, in announcing the new scheme, said that the ‘government has acted to ensure that there will be no unnecessary financial burden on injured workers’, but no financial burden for injured workers legal expenses existed in the prior scheme”, Ms Gumbert said.
“The ALA is concerned that what the government has done is take away a worker’s right to choose his or her own skilled lawyer acting in his/her best interest and replaced that service with an inadequately funded review that has no apparent powers to actually investigate and prepare worker cases.
"The announcement only says that an injured worker ‘may’ be provided with independent legal representation where an insurer does not agree with the legal advice following a merit review. The ALA is concerned that even in cases where the review finds the insurer to be in error there is no guarantee of legal representation.
"The ALA calls on the government to explain why an injured worker, who succeeds in establishing their meagre entitlements to the Commission, should be unable to do so without losing part of that entitlement to legal costs and disbursements. Furthermore the government should explain why the injured worker may be required to meet the cost of obtaining the evidence necessary to establish an entitlement wrongly declined by an insurer.
"These matters could have been clarified or addressed if the government had raised and discussed this proposal with the Legal Stakeholders Group of which the ALA is a member”, Ms Gumbert says.
“The proposal also does nothing to provide assistance to the vast number of people who will lose their benefits in the new year as a result of the insurer being able to perform work capacity assessments and terminate workers rights with very limited rights of review and no access to legal advice or assistance in dispute situations,” she said.