A lump sum claim is commonly initiated by the injured worker’s solicitors.
The body known as the Independent Review Office (“IRO”) is an independent statutory office established under the Personal Injury Commission Act 2020 (NSW). Lawyers are entitled to seek funding from IRO for most workers (other than “exempt workers”) to investigate and pursue a potential claim and entitlement to lump sum compensation.
Initially, the worker’s clinical notes from their treating medical practitioners, including from medical practitioners that they may have consulted prior to their accident. At times, these clinical notes can assist in obtaining funding from IRO as there must be some merit to investigate a lump sum claim. This may involve the lawyer giving a brief explanation and outlining that they have considered the relevant impairment assessment criteria and that there is a potential that the worker may meet or exceed the relevant thresholds for the proposed lump sum claim.
Once funding is received, the lawyer will arrange an appropriate medico-legal expert who is accredited by SIRA to assess whole person impairment. There may be multiple medico-legal experts qualified of different specialities, depending on the nature and extent of the worker’s injuries.
Once the lawyer receives the report, advice is provided to the worker in respect of the report/s and the outcome of whole person impairment. If the worker exceeds the threshold, a claim can be made for lump sum compensation. The amount that can be claimed will depend on the date of injury and the assessment of whole person impairment. The amount that is prescribed is contained in the Workers Compensation Benefits Guide, issued by SIRA and indexed every six (6) months.
Once instructions are provided by the worker, a claim is made against the employer and their workers compensation insurer. The insurer and/or their lawyers will usually respond and may request further and better particulars of the claim and/or arrange an appointment with their medico-legal expert/s. If the particulars and the appointment is arranged within the first two weeks of the claim being made, the insurer has two (2) months from the date of the appointment or the date that they receive the response to the particulars to determine the claim (whichever is later).
In response to the claim, the employer, through their insurer may dispute the claim, make a counteroffer or fail to respond. If the claim is disputed or a counteroffer is made, the worker and their lawyer must be provided with the report/s. The lawyer will provide the worker with advice as to the meaning of the respondent’s position and whether the worker could enter into a complying agreement with the employer in respect of the lump sum claim.
If the parties cannot agree on the amount of whole person impairment and/or if the respondent has disputed the claim, funding may be provided by IRO to file an Application to Resolve a Dispute in the Personal Injury Commission (“PIC“).
If the worker’s injury is disputed, the parties may have to attend a telephone conference and/or a conciliation and arbitration hearing. If all the worker’s injuries are accepted, and only the degree of impairment is in dispute, the PIC may appoint an Approved Medical Specialist (“AMS“) to assess the worker. Once the worker has attended the appointment, a Medical Assessment Certificate (“MAC“) will be issued, followed by a Certificate of Determination (“COD“) if the outcome of the MAC is not appealed.