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Workers entitled to legal representation

Published on January 9, 2017 by Dane Twohill

The often described “draconian” Amendments made to the Workers Compensation Laws in 2012 prevented legal practitioners from recovering costs for legal services in connection with providing workers with legal advice with respect to a Work Capacity Decision made by an insurer, and any subsequent Application for Merit Review by the Merit Review Service of the State Insurance Regulatory Authority.

This resulted in the unfair situation where insurers, as a consequence of their extensive knowledge of the Workers Compensation Scheme, could make complex work capacity decisions, whilst a worker, with little to no knowledge of the now complex scheme, was unable to properly review and consider such decisions without some extensive legal expertise.

This imbalance was corrected somewhat by the provision of advice to workers from the Workers Compensation Independent Review Office (WIRO). WIRO Officers  could provide good advice with respect to the procedural operation of the work capacity decision review process, although, due to the complexity of the matters that needed to be taken into account, could not properly devote the time to providing a comprehensive and individualised advice. As a result workers could not receive the detailed individual advice necessary to ensure that their Application for Merit Review had the best prospects of success.

On 16 December 2016, the Minister for Innovation and Better Regulation, Victor Dominello, MP, published on the NSW Legislation Website, the Workers Compensation Amendment (Legal Costs) Regulation 2016. The regulation provides that a legal practitioner is entitled to be paid by, or recover costs from, an insurer for providing advice to a worker in respect of an application, or proposed application, for a merit review of a work capacity decision.  The regulation applies for work capacity decisions made on, or after, 16 December 2016.

The practical effect of the regulation is that a worker is now entitled to obtain detailed legal advice in respect of a merit review of a work capacity decision, and obtain assistance in making an application for merit review to the State Insurance Regulatory Authority (SIRA).

The cost of such advice is to be borne by the insurer who makes the work capacity decision, and the costs are regulated so a lawyer cannot charge any additional fee to a worker for their work.

Workers who have received a work capacity decision from an insurer should immediately seek legal advice in respect of the decision as strict time limits apply to any review request.

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