Guide to competing the Application for an ILARS Grant · a medico legal report for the purpose of...

Released 15 July 2013

Guide to competing the Application for an ILARS Grant

Objective

The objective of this Guide is to assist an Approved Legal Services Provider (ALSP) in completing the Application for an ILARS Grant.

Enquiries

Please call WIRO on 13 9476 If you would like more information or assistance about:

This Guide

The Application for an ILARS Grant

The policies and procedures that apply in WIRO‟s Independent Legal Assistance and Review Service.

A Fact Sheet on ILARS may also be viewed on WIRO‟s website.

Who should complete a form?

All Accredited Legal Service Providers (ALSPs) are Invited to complete an Application for an ILARS Grant and to become familiar with this Guide.

Electronic lodgement Please note that WIRO is a paperless office. We do not keep hard copy files. All our files are stored electronically. As a result, please note that WIRO:

cannot accept lodgement of the Application for an ILARS Grant in hard copy format.

accepts applications electronically via email only

applications are received as Word documents only.

may be unable to process applications received via the post.

http://www.wiro.nsw.gov.au/


THE APPLICATION FOR AN ILARS GRANT

OVERVIEW The Application for an ILARS Grant is made up of six distinct parts:

1. Eligibility Checklist

2. Part A – Parties Information

3. Part B – Claim Information

4. Part C – Application Information

5. Part D – Supporting Documents

6. Part E – Consent and Declaration.

ELIGIBILITY CHECKLIST You are invited to ensure that all responses are printed or typed.

If you are completing the form electronically, please select a response by double clicking the check box and select checked under the default value, then press OK.

Question 1 Date of the claim

Please provide the date of the claim. This may be:

The actual date on which the worker was injured or

When the workplace injury was deemed to have occurred.

There will be instances where the date of the claim may be unknown.

You are encouraged to do everything necessary to provide the most accurate information in this question.

Please also be very clear about when the claim was made.

Please tick:

Yes if the claim was made on or after 1 October 2012 and proceed to Question 2.

No if the claim was made before 1 October 2012. You will still need to proceed to Question 2.

This query is relevant to eligibility for legal funding.

It is therefore very important to answer this as accurately as possible.


ELIGIBILITY CHECKLIST CONTINUED

Question 2 This question is related to Question 1 in the following ways:

If you ticked No in Question 1 and tick Yes in this question

You are not eligible for legal funding because the old costs provisions apply.

Clause 8 of Schedule 8 of the Workers Compensation Regulation 2010 provides that the old costs provisions will apply in relation to a claim for compensation made before 1 October 2012 if proceedings on the claim are commenced in the Workers Compensation Commission on or before 31 March 2013.

If you ticked Yes in Question 1 and tick Yes in this question

You are eligible for legal funding

If you ticked Yes in Question 1 and tick No in this question


If you ticked No in Question 1 and tick No in this question


Please note:

Being “eligible for legal funding” does not mean that your application will be automatically accepted or a grant will be approved.

All other parts of the application form need to be completed prior to lodgement.


Question 3 If you tick Yes, ILARS will take into account the relevant details of the previous claim, which may include:

The type or nature of the claim (weekly payments, medical expenses, WPI, etc)

The quantum of the previous claim

The date of the previous claim

How the previous claim was resolved.

If you tick Yes please proceed to Question 4.

If you tick No, please proceed to Question 4.

Question 4 If you tick Yes, please provide brief information on the CTP claim.

Please note:

You might not be eligible for legal funding, if the worker has an entitlement under the New South Wales CTP Scheme.

WIRO has determined that legal funding is not available in these instances.


Question 5 If you tick Yes, you might not be eligible for funding. Please, proceed to Question 6.


Question 6 If you tick Yes, and the application relates to a dispute about or a review of a work capacity decision, you are not eligible for ILARS legal funding.

If you tick No, please proceed to Part A.


PART A – APPLICANT INFORMATION

Worker When providing information about the Worker, please:

Provide all the details about the worker.

Delete any details that are not relevant (ie, Mr/Mrs/Ms, etc), or circle the correct information.

Provide the worker‟s full legal name (including any second given name).

Provide the date of birth for identification purposes.

Provide the full address details of the worker, including the postcode.

Solicitor details Please:

Complete all the relevant details.

Delete any details that are not relevant (ie, Mr/Mrs/Ms, etc), or circle/tick the correct information.

Provide your full legal name and the full business name of your legal firm.

To confirm that you are an ILARS ALSP, please:

Provide your ILARS Number at all times.

Provide your full / preferred contact telephone numbers that you provided to support your application to become an ALSP.


PART A – RESPONDENT INFORMATION

Employer details This section of the form helps:

WIRO identify the correct employer

You and the worker identify the liable employer, particularly in disease and/or hearing loss claims or disputes.

Please provide the relevant contact details.

If you cannot provide the employer details at the time of the application, please note this in your submission.

Insurer details This section of the form is helps:

WIRO identify the correct insurance scheme agent or self insurer

You and the worker identify the liable insurer.

Please provide the relevant contact details and other information, specifically, the claim number.

The claim number is essential if WIRO agrees to intervene in the claim or dispute.


PART B – CLAIM INFORMATION

Details of the injury In section (a), please provide a brief description of how the workplace injury occurred. Please note:

It would be helpful to receive as much detail as possible, so that a full consideration of how the incident occurred may be taken into account in the assessment of your application.

It is not helpful to state that „the worker sustained an injury at work and injured his lower back‟ or „lower back‟ or „refer to statement‟ or „refer to attached documents‟.

If there are multiple injuries or incidents, please provide brief details for each.

In section (b), please note:

We would appreciate you providing the relevant body part or system that had been injured in the course of the worker‟s employment.

If you have provided sufficient information in section (a), it will be easier to provide the relevant information in this section.

If there are multiple body parts or systems that sustained an injury, then please provide further and sufficient details.

Details of the claim Please complete all the necessary sections of this form. Please note:

The date of the injury and the date of the claim may not necessarily be the same date.

If there are multiple dates of injury or claim the subject of the application for funding, please provide all relevant dates.

If the exact date of the injury cannot be identified, please provide a nominal date, particularly for disease and/or hearing loss matters.

If the insurer has raised a dispute (ie, denial of liability, work capacity decision, etc), please provide details of any relevant communication or correspondence that occurred between the worker and the employer/insurer. This information may be provided in the following sections of the form.

It is important that you provide this information so that WIRO can properly assess the extent of funding that may be provided.

If proceedings have been filed in the Workers Compensation Commission, please provide the relevant proceeding number.


PART C – ABOUT YOUR APPLICATION

1. Describe the details of your matter and the legal action you want to take

a. Please describe the legal action you wish to take

Please provide sufficient information on the proposed course of action for which you are seeking funding in relation to the worker‟s claim or dispute.

For example, if you are seeking funding to conduct your preliminary investigations, identify the kind of evidence you propose to obtain including for example:

the treating doctor/specialist‟s report

clinical notes and records

refer the worker to an independent medical examination and obtain a medico legal report for the purpose of determining the issues of causation, capacity for work

identify reasonably necessary medical treatment,

note the degree of permanent impairment,

provide the factual investigation report, functional and vocational assessment report

obtain statements from the worker or witnesses.

Please remember to check the relevant box.

If for example you want to challenge the insurer‟s decision to dispute liability contained in a section 74 notice, please note:

We would appreciate you identifying the legal basis upon which you intend to challenge that decision.

You need to remember to check the relevant box.

It is not sufficient to merely state that, „the worker is unhappy with the insurer‟s decision and instructs us to dispute the section 74 notice‟.




b. Please outline why you think the claim has reasonable prospects of success

Please outline why you think the claim has reasonable prospects of success.

This means that you, as a lawyer, will need to qualify the evidence upon which you rely to pursue the claim or dispute.

This may include:

Identifying the relevant opinions or findings of medical experts contained in a report

Contemporaneous notes

Radiological investigation results

Other expert medical opinion already on hand.

Please note:

Lawyers need to bear in mind that ILARS applies the test of what is a reasonably arguable case.

The practical application will therefore involve a consideration by ILARS that a lawyer can reasonably argue the matter in the proper jurisdiction, regardless of the outcome in that jurisdiction.

For example, if the worker‟s claim is for lump sum compensation under section 66 of the Workers Compensation Act 1987, you need to make submissions on the basis of medical evidence already obtained (opinions of nominated treating doctor, treating specialist‟s report, WorkCover Certificates of Capacity) that the worker‟s permanent impairment will satisfy the threshold of 11% whole person impairment if the claim is made after 19 June 2012.

If the circumstances of the matter fall under the decision of Goudappel v ADCO Constructions Pty Ltd [2013] NSWCA 94, please provide submissions on why you think the decision does or does not impact on the worker‟s claim or dispute.




c. Please itemise the medical and other reports(s) for which you seek funding.

Please identify:

The specific report or item that you intend to obtain, because it impacts on the type of disbursement fees that can be funded. For example

Why you require a complex examination and report, depending on the course of action you wish to take or the circumstances of the worker‟s matter if you are seeking funding to obtain a complex medico legal report

the payment classification code in the relevant schedule of the Workplace Injury Management and Workers Compensation (Medical Examinations and Reports) Order 2013, if relevant.

If you require an item or report that is not regulated by Schedule 6 of the Workers Compensation Regulation 2010 (for example, factual investigation report or travel costs and expenses of the worker in attending the medical examination), please:

Provide a quote, if possible, as to those anticipated expenses.

Familiarise yourself with the Workplace Injury Management and Workers Compensation (Medical Examinations and Reports) Order 2013, the WorkCover Guidelines on Independent Medical Examinations and Reports and Part 17 and Schedule 6 of the Workers Compensation Regulation 2010.

Identify the need for an interpreter; because examinations and reports conducted and obtained with the assistance of an interpreter require separate disbursements in the fee order.



2. What is the nature of the claim or dispute?

Please check the relevant box(es) to indicate the nature of the worker‟s claim or dispute. You may check more than one box, depending on the worker‟s claim or dispute.

For example, if the claim or dispute is about lump sum compensation that is denied by the insurer, you may check box 2(b) ‘Whole person impairment – Liability in Dispute’ and box 2(e) ‘Liability in Dispute – S74’ if a notice has been issued by the insurer and you wish to challenge that decision.

Please follow the instructions on the form carefully.

If you check more than one box (ie. „Weekly payments‟ and „Medical treatment‟), please complete:

all the questions relevant to each of the claim or dispute for weekly payments and

medical treatment in the subsequent sections of the application form.

Submissions and further details may be made in the preceding section of the form in Part C Question 1 for boxes:

2(f) „Commutation‟

2(g) „Death benefit‟

2(h) „Other‟



3. Whole person impairment

When completing this section, please:

Answer all the questions

Make brief but sufficient submissions.

Please also note:

It is important that you provide the necessary details, where required (ie, copies of an award for lump sum compensation from the Compensation Court of NSW, Workers Compensation Court, terms of settlement or complying agreement).

If copies are not available, provide submissions on this point, detailing the award or compensation already received.

In this section, you can refer to your submissions already made in Part C Question 1, but there must be relevant information and detail about the worker‟s claim for lump sum compensation.

If you have already obtained a medico legal report that substantiates the worker‟s compensable threshold, please provide details of the report findings or a copy of the report, and make submissions on why you are seeking funding.

If the injury that relates to the claim or dispute is a psychiatric/ psychological injury or for hearing loss, please complete all the required details in the application form.



4. Weekly payments (past and future)

When completing this section, it is important to:

Complete all the questions and make brief but sufficient submissions. Provide the necessary details, where required (ie, copies of an award from the Compensation Court of NSW, Workers Compensation Commission, terms of settlement or agreement).

Ensure that if copies are not available, please provide submissions on this point, detailing the award or compensation already received.

In Question 4(a), it is important that you provide the relevant details or copies of any notice received from the insurer. Please note:

As part of the assessment of your application for funding, ILARS needs to consider the circumstances where the new provisions on weekly payments compensation may apply in the matter.

Your eligibility for funding may be impacted if you fail to disclose or provide this relevant information.

In Question 4(b), if the insurer has issued a work capacity decision pursuant to section 43 of the Workers Compensation Act 1987, and the worker wishes to dispute or review that decision, you are not eligible for funding.

If you are asserting that the insurer‟s decision is not a work capacity decision, please note that:

You need to make submissions on why you think the new provisions on weekly payments compensation and work capacity do not apply in the circumstances of the worker‟s matter.

The decision may be considered as a dispute as to liability.

In these circumstances, you need to make submissions on why you think the decision can be challenged in the Workers Compensation Commission and outline the sufficient legal basis for doing so.

Please be familiar with the new provisions on weekly payments compensation and work capacity. Please note:

That for review of work capacity decisions, section 44(6) of the Workers Compensation Act 1987 provides that a worker‟s lawyer is not entitled to be paid or recover any amount for costs and disbursements incurred in connection with that review.

If the injury that relates to the claim or dispute is a psychiatric/psychological injury, you should complete all the required details in the application form.



5. Medical treatment/ home modifications/ domestic assistance

Please note:

You should describe or provide details of the proposed or past medical treatment / home modification / domestic assistance expenses incurred or yet to be incurred.

If you possess a report that provides an opinion that the medical treatment is reasonably necessary, please provide a copy of that report.

One of the factors taken into account by ILARS in assessing your application is the estimated or actual cost of the proposed or incurred medical treatment.

An estimate if no actual quotation for the medical treatment can be obtained is necessary.

If the injury that relates to the claim or dispute is a psychiatric/ psychological injury or for hearing loss, please complete all the required details in the application form.


PART D – SUPPORTING DOCUMENTS

Describe the details of your matter and the legal action you want to take

Please note:

You only need to attach only the relevant supporting documentation for the worker‟s claim or dispute.

You also need to make submissions that specifically refer to the documents you are attaching to the application form.

It is not sufficient to merely attach documents in support of your application without specifically making submissions on why you think the documents are relevant to the worker‟s claim or dispute.

If for instance, you are disputing the insurer‟s decision to deny liability on a section 74 notice, you should attach a copy of the section 74 notice and the relevant supporting documents or annexures to it.

Failure to provide supporting documentation may delay consideration of your ILARS application.

PART E – CONSENT AND DECLARATION

Please note:

These queries are mandatory and must be addressed accurately and sufficiently, where relevant.

WIRO requires the actual ALSP to complete and certify the ILARS application form, consistent with the agreement undertaken between them.

It is therefore necessary to complete Part E as an active measure of ensuring that your duties and responsibilities under your agreement with WIRO are sufficiently upheld.

Personal electronic signatures of the ALSP are acceptable

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