WorkCover rules on insurers’ use of lawyers are unfair to NSW claimants and should be amended, a report by WorkCover Independent Review Officer Kim Garling says.

“There is a gap in the process that disadvantages workers from obtaining assistance and an explanation of their rights and entitlements in relation to work capacity decisions and the review process,” he writes in his first annual report to the State Parliament.

In 2010 NSW WorkCover was reformed to simplify claims review processes and remove the need for lawyers’ involvement, the report says.

The intention was to restrict legal advice to insurers “so as to put both the injured worker and the insurer on the same basis”.

“While that was the clear intention of the Government, it has failed and insurers are utilising the services of lawyers to prepare work capacity decisions and to make submissions in respect to the reviews by the WorkCover Authority of the merits of a decision, and also in respect to procedural reviews undertaken by my office.”

He says this has affected about 45,000 injured workers who are being moved to the new benefits scheme through the work capacity process, but are restricted in obtaining legal advice.

The WorkCover Authority agrees the regulation does not prohibit insurers’ use of lawyers.

“That has therefore left the injured worker at a double disadvantage and [is] contrary to the intention of the Government that the system be efficient, fair and equitable,” Mr Garling says.

“These injured workers have no source for advice about their basic entitlement to compensation. This is particularly apparent with injured workers who suffer from a psychological injury.”