INDEPENDENT LEGAL ASSISTANCE REVIEW …wiro.nsw.gov.au/sites/default/files/11. ILARS Update... · GRANTS FOR PRELIMINARY INVESTIGATION OF HEARING LOSS CLAIMS Workers Compensation

INDEPENDENT LEGAL ASSISTANCE REVIEW SERVICE (ILARS)

APPLICATIONS AND INVOICING

WHAT WIRO NEEDS

MICHAEL VELLA

PRINCIPAL LAWYER, ILARS NEWCASTLE, 23 JUNE 2017

Workers Compensation Independent Review Office 2

“As long as the matter appears to have some prospects of success funding will ordinarily be granted to conduct preliminary enquiries.”

APPLICATIONS FOR GRANTS OF FUNDING FOR PRELIMINARY INVESTIGATION

THE GENERAL TEST APPLIED WHEN ASSESSING APPLICATIONS FOR PRELIMINARY INVESTIGATION


“In order for ILARS to consider approving funding a brief statement of the basis for a potential claim is essential.”


THE IMPORTANCE OF A BRIEF STATEMENT OF THE WORKER


MAKE SURE THE APPLICATION FORM IS COMPLETED AND THE BOXES CHECKED

Page 4 Workers Compensation Independent Review Office

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• Evidence of some prospects of success of being assessed as having an impairment for a physical injury that is “greater than 10%” (s66(1)) and/or a primary psychological injury that is “at least 15%” (s65A(3)).

• Documents and/or information to support your submission that the worker has some prospects of success of being assessed as having reached Maximum Medical Improvement (MMI)?


GRANTS FOR PRELIMINARY INVESTIGATION OF LUMP SUM COMPENSATION




• If your application seeks to make a claim for lump sum compensation - documents and/or information to support that the worker has some prospects of success of being assessed as having an impairment that is “greater than 10%” (s66(1)) or 6% BHL where the date of injury is prior to 1 January 2002. (BP v Greene). Where funding is granted on the basis of BP v Greene WIRO will only provide conditional funding.

• A brief statement addressing;

• Details of the tendencies, incidences or characteristics of the workers employment which would give rise the claimed hearing loss during the course of the employment;

• Details of any previous claims for industrial deafness.

• If your application seeks to make a claim for hearing aids - documents and/or information to support your submission that the worker requires hearing aids.

• An audiogram as to BHL should be annexed to all applications for claim for impairment for hearing loss.

• If the date of injury is prior to 2002 proof of employment. At the very least this would involve a the statement from the worker as to the name and address of the employer, the specific part of the business where the worker was employed and the name of a boss and/or colleague.


GRANTS FOR PRELIMINARY INVESTIGATION OF HEARING LOSS CLAIMS


GRANTS FOR PRELIMINARY INVESTIGATION OF HEARING LOSS CLAIMS


• A copy of the s74 notice

• Particularize the weekly benefits claim – ie. $1000 gross per week from 1 August 2016 to 8 March 2017 . ILARS grants of funding will generally not be made where the amount in dispute is less than $3,000.

• Workers statement – This is essential for psychological injuries;

• Witness statements; and

• Certificates of Capacity.


GRANTS FOR PRELIMINARY INVESTIGATION OF WEEKLY BENEFITS




GRANTS FOR PRELIMINARY INVESTIGATION OF WEEKLY BENEFITS

• A copy of the s74 notice you are seeking funding to challenge.

• Provide quantification of the claim you are seeking funding to pursue - ILARS grants of funding will generally not be made where the amount in dispute is less than $3,000.

• Information relevant to the application of s59A – when was the claim first made or were weekly benefits last paid?

• Provide documents to support the submission that the proposed claim to challenge the insurer’s decision has some prospects of success. This would include;

• Treating doctor request for treatment and/or service;

• Workers statement;

• Certificates of Capacity.


GRANTS FOR PRELIMINARY INVESTIGATION OF MEDICAL EXPENSES



GRANTS FOR PRELIMINARY INVESTIGATION OF MEDICAL EXPENSES



YOUR APPLICATION WILL BE DECLINED WHEN ….. • You have not identified any basis to dispute the s74/s54 notice

• You do not respond to a request for requisitions.

• Your client has not reached maximum medical improvement.

• Your client’s claim would result in less than $3,000 net after Medicare and Centrelink repaid.

• Insufficient information is provided that your client will reach the relevant threshold required to claim lump sum compensation.

• The insurer has determined that the injured worker entitlement to weekly payments is a work capacity decision pursuant to s43 of the Workers Compensation Act.

• Your client has made a motor accident claim or was injured in circumstances where he or she is entitled to make a claim under the Motor Accident Compensation Act.

• The application relates to a Work Injury Damages claim

• The claim is precluded by the operation of s59A of the Workers Compensation Act

• The claim is precluded by the operation of s322A of the Workplace Injury Management and Compensation Act.

• The claim is precluded by the operation of s66(1A).

• The claim is lodged on behalf of an exempt worker i.e police offices, ambulance officers, coal miners .


IF YOUR APPLICATION IS DECLINED WHAT CAN YOU DO?

• If your application is denied you can seek a review of that decision by another ILARS Lawyer.

• Send a short email stating why you believe the decision is wrong along with any further material available to the ILARS Lawyer. The decision will then be reviewed by another ILARS lawyer and a response will be provided within 5 working days.

• If the Lawyer is still unhappy with the decision on parallel review he or she can apply to the Director, ILARS or the WIRO for further and final review. That review process should complete within 10 working days.

For further information see ILARS Guide to Review of Decisions made by WIRO dated 1 June 2015







DISBURSEMENTS

• Page 9 of the ILARS Policy - “ILARS is not permitted to pay disbursements that have not been appropriately incurred. A disbursement is appropriately Incurred if it is necessary to progress the matter”.

GET APPROVAL FOR YOUR DISBURSEMENTS WHEN MAKING YOUR INITIAL APPLICATION FOR FUNDING



DISBURSEMENTS

READ THE LETTER OF APPROVAL CAREFULLY

JUST BECAUSE YOU ASK FOR A

DISBURSEMENT DOES NOT MEAN YOU WILL

AUTOMATICALLY RECEIVE IT


ILARS POLICY PROVIDES:- “ if a lawyer is in any doubt about whether a disbursements that is unregulated by Schedule 6 of the Workers Compensation Regulation 2010 will be approved by WIRO he or she should contact WIRO for an opinion about whether it is reasonably necessary to incur the disbursement and/or about

prior approval to incur the disbursement”

• E- REPORTS WIRO will fund Nexus E-reports. E-reports conduct both psychological and physical independent medical assessments. A GP will be present in the room for physical assessments. Assessments can even be conducted for clients residing overseas.

• TRAVEL / ACCOMMODATION WIRO will pay for travel for the worker (and support person) to attend the IME, Conciliation /Arbitration Hearing and AMS appointment. We will not pay GST on travel expenses paid for by

the worker. When booking IME appointments be sure to book an appointment with the suitably qualified examiner that is as close to the workers home as possible. Otherwise, please provide submissions required for the worker to travel the extended distance.

• AGENCY FEES WIRO will pay agency fees on a fair and reasonable basis. WIRO will pay up to $40.00 agency fees for an agent to attend the Workers Compensation Commission and uplift documents.

• NEUROPSYCHOLOGISTS/FUNCTIONAL CAPACITY/DOMESTIC ASSISTANCE REPORTS Provide a quote with your request for approval for funding.



“Where the worker wishes to lodge an application to resolve a

dispute for a matter that appears arguable before the Commission

and no attempts to resolve the dispute with the insurer have

been made, WIRO may refer a pre-litigation inquiry back to the insurer.”

APPLICATIONS FOR GRANTS OF FUNDING TO PROCEED TO THE WORKERS COMPENSATION COMMISSION

THE GENERAL TEST APPLIED WHEN ASSESSING APPLICATIONS FOR FUNDING TO PROCEED TO THE WORKERS COMPENSATION COMMISSION


Dear Ms Gamble,

We refer to your letter of 12 April 2017.

We have now provided advice to our client and reviewed the following documents provided by the insurer:-

1. Section 74 Notice dated 22 February 2017.

2. Review Decision by the insurer dated 20 March 2017.

The insurer has maintained their decision to decline liability on the basis that our client was not a worker or a deemed worker in accordance with the Act.

We believe the insurer’s decision is incorrect. The worker maintains that as at 19 March 2016 she no longer conducted a business under her own name but became an employee of Modaci Pty Limited. It is certainly arguable that the worker terminated the service agreement on 19 March 2016 and remained working for Modaci Pty Limited as an employee until alternate contractors could be found to run the business.

In the alternative it is also arguable that the worker is a deemed worker in accordance with Schedule 1, Clause 2 of the 1998 Act and that even though she was operating a business under her own name, she is entitled to be a deemed worker.

Given that the insurer has now undertaken a review and maintains this decision to deny liability, we would like to seek an extension of funding to file an Application to Resolve a Dispute in the Workers Compensation Commission.

We do not require any funding for disbursements at this stage. We look forward to hearing from you.


REQUEST FOR EXTENSION OF GRANTS OF FUNDING TO PROCEED TO THE WORKERS COMPENSATION COMMISSION

• Once the matter is listed for a conciliation/arbitration hearing in the Workers Compensation Commission. Provide WIRO with details of the date and time for the conciliation/arbitration hearing.

• Provide brief submissions to support that retaining counsel is reasonably necessary.


INFORMATION REQUIRED FOR GRANTS OF FUNDING FOR COUNSEL


Hi Belinda,

We had a telephone conference today before Arbitrator Wynyard. The matter has been set down for conciliation/arbitration in Erina at 10 AM on 14 March 2017.

The issue of non-compliance remains and at this stage the arbitrator indicated that he will have to make a decision based on the competing evidence as to the alleged contacts of the insurer with the worker.

We believe that counsel is justified in the circumstances and we seek funding for counsel to appear at the conciliation/arbitration with loading, and also for ourselves to appear to instruct.

We propose to brief Mr Frank Curran


INFORMATION REQUIRED FOR GRANTS OF FUNDING FOR COUNSEL EXAMPLE


APPEALS FROM ARBITRATOR DECISIONS

• The Lawyer should provide a copy of the decision that the worker wishes to dispute and reasons why the Lawyer believes that an appeal would be arguable.

• If the matter appears to be arguable funding will be available for an appeal. APPEALS FROM MEDICAL ASSESSMENT CERTIFICATES • WIRO will only fund appeals to the Medical Appeal Panel on a CONDITIONAL BASIS ONLY. Costs will be paid only if

you are successful.


INFORMATION REQUIRED FOR GRANTS OF FUNDING FOR APPEALS


• WIRO will consider a request for an uplift in exceptional circumstances where a matter has involved significant additional work (eg listed for two telephone conferences) for complex matters (eg psychological matters) and/ or where there are multiple respondents.

• Send an email addressed to the ILARS Director in support of an uplift at the conclusion of the matter and prior to issuing an invoice to WIRO. The submission should set out the additional work undertaken and make reference to the issues leading to the complexity of the matter. WIRO may also take into account the quality of the legal work undertaken on the matter by the Lawyer.


UPLIFTS


Dear Mr Gregory Please find enclosed Certificate of Determination – Consent Orders dated 28 February 2017. You will note at the conciliation conference on 28 February 2017 the respondent agreed to pay the applicant lump sum compensation pursuant to section 66. The respondent was represented by counsel at the conciliation conference. We did not brief counsel. The applicant was injured in December 2011 and sustained subsequent injury. Liability was in dispute for multiple injuries. The applicant’s injuries were complex:

• 1. Injury to lumbar spine; • 2. Consequential and/or nature and conditions injury to left shoulder; • 3. Consequential and/or nature and conditions injury to right shoulder.

The matter was complex and required the respondent to issue multiple section 74 notices since April 2015. We request an uplift of 30% for our professional costs. Thank you for considering our request.


REQUEST FOR UPLIFT EXAMPLE EMAIL


DOCUMENTS AND INFORMATION REQUIRED FOR ASSESSMENT AND PROCESSING OF TAX INVOICES

• Be addressed to WIRO and be forwarded electronically to the WIRO Principal Lawyer handling the matter; • Be generated on your firm’s letterhead and include your registered business name, address and Australian Business Number; • Include the worker’s name and our ILARS reference number; • Include your Bank details for EFT purposes; • Not include GST on any disbursement; • Provide tax invoices to support any disbursements that are listed in the tax invoice; • Include a unique invoice number for the firm rendering the invoice; • Be forwarded as a separate PDF document - This includes separating the law firm tax invoice from the supporting disbursement

invoices and settlement/COD documents; • A copy of the documentation which explains how the matter resolved. • PROVIDE DETAILS OF THE LAW PRACTICE (IF ANY) THAT LEGALLY REPRESENTED THE RESPONDENT For example:

• A copy of the signed Complying Agreement; • A copy of any Consent Orders, Certificate of Determination or Medical Assessment Certificate; • Other documentation which explains how the matter has been resolved. For example if the worker withdraws their

application provide an explanation of what has occurred.



QUESTIONS ?


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