Requirements for Stage 3 Extension of Funding

Purpose

This Practice Note provides guidance on the practice and implementation of clause 3.3.2 of the ILARS Funding Guidelines (Guidelines) as they apply to an extension to funding of Stage 3.

This Practice Note includes:

• The operational rules and criteria for IRO to approve Stage 3 funding
• The information required to support a request for Stage 3 funding
• The procedure to be followed when requesting Stage 3 funding

Criteria, Practice and Procedure

Criteria

IRO will fund Stage 3 (clause 3.3.2) to commence proceedings in the Personal Injury Commission (PIC) if:

• An arguable case for the worker can be demonstrated, and
• Reasonable steps have been taken to achieve early resolution of the matter with the insurer, including seeking a review, if appropriate. 

When considering funding, IRO must consider the system objectives of the workers compensation scheme set out in section 3 of Workplace Injury and Workers Compensation Management Act 1998 (the 1998 Act) and in clause 1.1 of the ILARS Funding Guidelines including an early opportunity for injured workers and insurers to resolve a claim or a dispute about a claim

Practice

An application is made (clause 3.3.3):

• By way of Application form (if no prior grant of funding for the same worker and the same date of injury has been made), or
• By way of a result for an extension of funding (by email) if there is a grant of funding to which is attached relevant information in support of funding (if not already provided).

Where the amount in dispute is less than $3,000 funding will not be granted (clause 3.3.4) to commence proceedings in the Commission except in the following circumstances:

• The application for funding is in respect of a claim or potential claim for further lump sum compensation pursuant to clause 11, Schedule 8 of the 2016 Regulation,
• The injured worker suffers financial hardship,
• Clarification of the law is required,
• It is in the public interest for the dispute to be determined, or
• There is an overriding interest of fairness that the injured eligible worker has the dispute determined.

IRO will have regard to the readiness of the claim and or dispute to progress to the Commission and will have regard to the Procedural Direction PIC 3 and the statutory requirements under the workers compensation legislation (clause 3.3.5). 

Where the insurer has not responded to a claim or a request for a review IRO will generally refer the matter to the insurer to attempt to resolve the outstanding dispute or claim or to obtain a response from the insurer (clause 3.3.6). Funding will not be provided until the insurer has responded to IRO’s query. 

Procedure

To support a request for stage 3 funding an Approved Lawyer must provide:

• An explanation, or short reasons stating the basis on which the there is an arguable case for the worker
• Any evidence or material available which demonstrates there is an arguable case for the worker
• The steps which have been taken to achieve early resolution
• If the amount in dispute is less than $3,000, submissions which address the criteria 

IRO will consider the issues in dispute (whether liability is wholly or partly in issue) and the availability of relevant medical evidence to support the claim. 

Funding will be on a case-by-case basis, but IRO will consider:

• The quantum of the claim noting the restrictions in the Guidelines and considering whether there is an overriding interest in fairness to the injured worker to have a claim or dispute determined, or the grant should be approved in the public interest or on policy grounds consistent with the presumption in favour of funding.
• Whether the claim and/or dispute is part of the IRO pilot for medical treatment disputes or otherwise suitable for early resolution.
• Legislative provisions such as stay provisions in section 289B(3) of the 1998 Act.
• Additional considerations such as financial hardship, nature and extent of the injury, an injured worker’s personal circumstances, relevant prior history of legal proceedings.

Clause 1.6 of the Guidelines states IRO “may intervene in a matter the subject of a grant of funding where an opportunity arises for an early solution to a claim or dispute about a claim to be achieved”. 

ILARS must consider whether an internal review has been sought or if it is appropriate for that review to be sought by an Approved Lawyer, particularly where new medical evidence has been obtained in support of a claim. ILARS has discretion to extend funding where a review has not been sought in appropriate circumstances, such as to preserve a stay, on a case-by-case basis.

Generally, in liability disputes, weekly payment and medical treatment disputes, IRO considers an 
internal review should be sought by the Approved Lawyer before stage 3 funding is granted.

Although section 278A states a worker “may” seek a review and that it is a question for Approved Lawyer and the injured worker, the IRO has overarching discretion in relation to the funding approval including the approval of a stage of funding. The discretion is applied for matters set out in the Guidelines. Where IRO is requested to depart from the Guidelines, a particular circumstance must be established justifying the exercise of the discretion. 

The Guidelines relate to ILARS funded matters only and does not limit an Approved Lawyer’s ability to lodge an application in the Commission without ILARS funding. 

Please note: 

• For all requests for an extension of stage 3 funding, please submit your request as a new email (i.e. not replying to previous emails) to the ILARS Mail Inbox (ILARSALmail@iro.nsw.gov.au) with the subject “Stage 3 Extension of Funding”. This will assist with your request being allocated to the triage team for prompt assessment and reallocation. Failure to address the subject line in this manner will cause delay in assessment of your request.
• For all disbursement only funding requests please do not use ‘extension’ within the request for correct allocation of your funding request

Example

When seeking a grant/extension of Stage 3 funding, IRO must consider whether the legislative time frames have expired and if the correct party has been served. An Approved Lawyer must provide the following depending on the type of claim or dispute:

Section 66 claims

• The claim made on the insurer (including the email serving the claim),
• The date any particulars were requested from the insurer (including details of any IME scheduled by the insurer),
• The date particulars were responded to by the Approved Lawyer, and if the injured worker attended the IME appointment.

Weekly payments and medical treatment expenses claims

• The claim made on the insurer
• The request for review served on the insurer (including the email serving the claim)
• Any response from the insurer
• An explanation of why a stage 3 extension of funding should be granted if a request for review under s.287A has not been made (e.g. to preserve a stay or imminent expiry of a time limit such as s.59A)

Requirements for Stage 3 Extension of Funding (PDF)