Card 06 · Choosing a lawyer
Choosing a workers compensation lawyer
Three things are worth knowing before you choose: whether your scheme helps pay for legal advice, whether the lawyer holds a current practising certificate, and what it will cost, in writing. You don’t always need one: some dispute bodies are free and can be used without a lawyer.
General information, not legal advice. This guide names no firms and recommends none. Rules about legal costs differ by state; the regulator for lawyers in your state is the place to check them.
When people look for one
The claim itself runs through the insurer. The schemes’ own pages talk about legal advice mostly at two points: when a decision is disputed, and when a worker considers a common law claim against the employer. A separate common law claim against an employer is a different matter: WorkCover Queensland calls that process complicated, says it is up to you to prove your employer’s breach of duty caused the injury, and notes that if a claim goes to trial and fails you may have to pay costs.
WorkCover Queensland also says you don’t have to use a lawyer, though one can make the process easier. Victoria’s Workplace Injury Commission lets you bring an assistant or representative, but you need its permission for a lawyer to attend a conciliation conference.
Who pays for the advice
It helps to ask this first, because the answer differs so much between schemes.
| Where | What the scheme says about legal costs |
|---|---|
| NSW | The Independent Legal Assistance and Review Service (ILARS), run by the Independent Review Office, can cover legal fees and related costs such as medical reports, through an approved lawyer, if the matter has a reasonable chance of success. You can still go to the Personal Injury Commission without ILARS funding, but you cover your own costs. The IRO is on 139 476. |
| SA | If you lodge a dispute at the South Australian Employment Tribunal and use a lawyer or other authorised representative, you can claim some legal fees from the compensating authority, within set limits, generally whether or not the dispute succeeds. General legal advice about your claim isn’t covered. For a seriously injured worker considering a common law claim, ReturnToWorkSA meets the cost of advice up to a limit set by regulation. |
| NT | A mediator may let a lawyer represent the worker in some circumstances, and may recommend that the employer pay reasonable legal costs, up to the average weekly earnings at the time. |
| QLD | If you engage a solicitor or other representative for an appeal of a review decision, you cover that cost. |
| ACT | At arbitration the insurer isn’t liable for costs as it is at conciliation, and WorkSafe ACT warns this could involve heavy costs. |
Other schemes: ask the authority listed in workers compensation by state.
Questions for the first meeting
The Victorian Legal Services Board suggests meeting a few lawyers and asking about costs before you hire one; it publishes six questions of its own. The list below includes several of them, with a few that matter in workers compensation.
- Do you hold a current practising certificate, and how much of your work is workers compensation?
- Is my matter one your scheme’s legal funding can cover, and will you apply for it?
- How are your fees calculated: hourly, fixed fee, or no win, no fee?
- When will I be billed, and how long will I have to pay?
- Are there any extra costs, such as medical reports or a barrister’s fees?
- If I lose, could I have to pay any of the other side’s costs?
- Could my costs change, and how will you tell me if they do?
- Will I be charged for this first consultation?
- What would a “win” mean under your agreement?
Costs agreements and no win, no fee
In Victoria, a lawyer must give you their costs in writing if their fees are likely to be more than $750, and you can negotiate the costs agreement. A no win, no fee agreement can still leave costs to pay, and the Victorian Legal Services Board explains what these agreements must contain in its guide to no win, no fee costs agreements.
Checking a lawyer, and free help
- The Law Society of NSW runs an online directory of NSW practices and solicitors holding a current practising certificate, including accredited specialists, and a Solicitor Referral Service.
- In Victoria, the Legal Services Board keeps a register you can search, and the Law Institute of Victoria offers a referral service.
- In NSW, the IRO keeps a list of approved lawyers for ILARS-funded advice.
- Victoria’s Workplace Injury Commission lists organisations that give free help, and Union Assist may help current and former union members.
- WorkSafe Tasmania points injured workers to Worker Assist Tasmania for free, independent and confidential advice.
A lawyer can tell you whether you have a dispute worth taking further, what it might cost, and how the time limits apply to you. The routes themselves are on when a claim is disputed.