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New compo costs ‘unworkable’
August 20, 2012
State Political Reporter
”Surrender of government policy” … the Greens MP David Shoebridge.
A PROVISION in new workers’ compensation laws that makes injured workers pay their own legal costs is unworkable, a Work Cover inquiry has found.
Work Cover appointed a group of lawyers and insurers to review the laws and it recommended the controversial provision should be removed.
The group said the costs provision would lead to an increase in the number of unrepresented parties and raise the workers’ compensation scheme’s administration costs.
”The provision is contrary to the long-standing rule that costs should follow the event so as to indemnify the successful party,” the report says.
”The current costs regime has kept disputation to a minimum and delivers certainty and equitable delivery of legal services on both sides.”
Christian Democratic Party MP Fred Nile introduced the amendment to the government’s workers’ compensation bill in the early hours of the morning during its passage through the upper house of Parliament.
The Law Society of NSW and the NSW Bar Association have written to the Finance Minister, Greg Pearce, warning the amendment will create ”chaos”.
”Under this new system, insurers will have the privilege of being able to fund their defence from employer premiums, whilst injured workers will have to bear their own legal costs, even where a legitimate claim has been denied,” the letter said.
”We are seriously concerned that this removes the incentive for insurance companies to support legitimate claims.”
Mr Pearce responded by saying the government does not have a majority in the upper house of Parliament.
”In seeking to engage further on the issue, I would encourage you to discuss such matters with the Christian Democratic Party and the Shooters and Fishers Party,” Mr Pearce said.
The Greens MP David Shoebridge said it was an ”extraordinary surrender of government policy”.
“The government voted for this disastrous change to the compensation system despite it being told at the time it was unworkable,” he said.
“It is irresponsible for the government to now say that it is up to Fred Nile and the Shooters to fix this.”
Unions NSW secretary Mark Lennon said it was disingenuous for the government to make Mr Nile responsible for removing the amendment.
“If the state government is genuine about ensuring sick and injured workers are not financially crippled by lodging workers compensation claims, it should approach the Labor Party and the Greens to pass an amendment,” he said. “The government cannot hide behind the crossbenchers on this issue.”
The president of the Law Society of NSW, Justin Dowd, said the government had distanced itself from the Nile provision on the basis that it does not control cross benches in the upper house.
“This is a tenuous argument, given that the whole reform process has been generated by the government’s legislation,” Mr Dowd said.
Mr Pearce said the issue of costs remained a priority for discussion and welcomed the involvement of the Law Society and Bar Association in ongoing consultations.
“It is not unreasonable for the government to propose discussion of the issue with the CDP [Christian Democratic Party] and SFP [Shooters and Fishers Party]. It makes sense that various parties discuss costs with those that proposed such amendments,” he said.
Interesting article but it does show that in Alberta, the people we elect to enact legislation specific to workers compensation legislation are either accepting backroom deals from employers and WCB to not allow workers the right to be represented by lawyers or law firms at no cost. In Alberta, workers are forced to use what little money they have to pay for representation by Advocates or lawyers with no training in Administrative Law while WCB and the Appeals Commission have their own lawyers who are paid out of the accident fund that legally belongs to employers and held in trust for workers. This presents an uneven playing field and in most cases results in claims and benefits that should have been accepted, denied.
An interesting article in the Edmonton Sun did make reference to the fact that when workers were represented by lawyers or unions, their claims were always accepted as compared to other workers who did not have legal representation. In the U.S. where all workers are represented by lawyers and law firms, claims are rarely denied simply because of the expertise of the lawyers or law firms who represent workers strictly on a contingency basis. It would be to the benefit of all workers to have an MLA who would sponsor a private members bill to bring before the legislation a bill to have all workers be represented by lawyers or law firms who are paid out of the accident fund, just as the lawyers who represent WCB and the Appeals Commission who are paid out of the accident fund. Having the Office of the Appeals Advisor who are WCB employees represent workers is a joke and furthermore the Office of the Appeals Advisor will not represent a worker in a legitimate request for Judicial Review or Judicial Appeal, so what is the point of having the Office of the Appeals Advisor represent a worker.