"Basic human regard usually encourages us to help those who are down rather than act in a way which adds to their struggles. We do this through fundamental decency; but also because lurking in all of us is a primary feeling for our own vulnerability and our hope that, should we slip, someone passing by will give us a hand and not trample on our cliffhanging fingers."

Dr Tony Moore "Cry of the Damaged Man"

At Workforce Legal, we believe that:

• Lawyers should always provide clear and tangible information about their fee arrangements so that injured workers can make a fully informed choice.
• Injured workers should have fee arrangements that ensure that the benefits of their claim are not eroded by legal fees.
• All fee arrangements should be fair, ethical and transparent.

Unfortunately, not all lawyers share our commitment! It is important that you understand as much as possible about how fees are calculated before you enter into any fee agreement.

Impairment Claims and WorkCover

At WORKFORCE LEGAL our guaranteed capped fee arrangement ensures that legal fees do not erode the benefit of your impairment payment. Most impairment claims are resolved without court action.

At WORKFORCE LEGAL we:
  • Offer a NO WIN - NO CHARGE fee arrangement.

  • Have fees based on the Practitioners Remuneration Order, the official scale that should be used for non litigated matters. We do NOT use an "in house" scale that usually greatly inflate charges.

  • Ensure that legal fees do not erode your impairment payment by giving you a simple guarantee.
We will discuss your injuries with you and provide you with an estimate of the impairment payment you may receive. We will act on a No Win No Charge basis and agree a guaranteed cap on our fees with you. This means that if our fees for transacting your impairment payment, after deducting any contribution from WorkCover, exceed that cap we will not charge you for the excess.

In most cases our guarantee provides that fees for transacting your impairment claim will not exceed 10%-15% of your impairment payment lump sum entitlement. The level of this cap will depend on the complexity of your impairment claim.

In larger impairment claims, our fees will usually be well below the cap amount. In smaller impairment claims our guarantee ensures maximum recovery to you.

If, in the unlikely event, litigation is necessary to obtain your impairment payment we will offer you our litigation fee arrangements (see below) which are based on Court Scales and not expensive "in house" scales.

Litigated WorkCover Claims

In 1994, the Victorian Government made it legal for lawyers to enter into 'Conditional fee' agreements with their clients in matters that involve litigation. This can be an excellent arrangement for a client BUT only if it contains fair terms and conditions and clear information is given to the client before entering the arrangement.

In matters involving litigation, a conditional fee agreement can allow for an uplift fee (sometimes called a success fee) to be payable in the event that the matter is successful. Part of the reason for allowing an uplift fee in litigious matters is to compensate a lawyer who conducts the matter on a "no win no charge" arrangement. Set out below is our view on the proper approach that should be taken on uplift fees.

In WorkCover matters there are a number of areas where litigation is either not possible or relatively rare and uplift fees should not be applied to these matters. In these matters lawyers are able to set their own fees at any level that is "reasonable". Some, but not all lawyers, will charge according to their own "in house" scale of costs. There can be a large disparity between lawyers on what they believe is a "reasonable" charge. It is therefore very important to receive a clear and binding estimate of the costs you are likely to be charged.

WORKFORCE LEGAL believes that factors which can affect the legal fees charged should be clearly defined and explained to a client before they enter into a fee agreement. WORKFORCE LEGAL will always provide a clear guide to fee rates which we invite you to compare with other lawyers.

There are a number of components to legal fees. Click here for a glossary of the common terms.

What is a conditional fee agreement?

A Conditional fee agreement is an arrangement where the client and his or her lawyer enter into an arrangement that all or some of that lawyers fees will not be payable by the client unless the claim is successful. The agreement should clearly set out the lawyer's obligations under the agreement. The agreement normally contains an increased fee rate in the event that the claim is successful and an agreement not to charge all or some of the fees in the event that it is not successful. The increase in the fees by law can be an increase of up to 25% of the fees and disbursements. This does not mean that a lawyer is able to claim 25% of your award. It merely means that the fees may be increased by that percentage. In the event that the claim is unsuccessful, the agreement may provide that the lawyer will forgo all or some of the fees and disbursements. This will depend on the exact arrangement that you negotiate with your lawyer.

Could I have to pay the other parties legal costs?

A conditional fee agreement usually provides that if you are unsuccessful in your claim you will not be charged legal fees by your lawyer. The agreement does not protect you from an adverse costs order. This is an order given by a court that the unsuccessful party in litigation must pay the successful party's legal costs.

Proper assessment and preparation of your claim provides the best protection against an adverse costs order.

It is for this reason that it is essential that your lawyer continually reassess your claim as it progresses to ensure that you are not unreasonably exposed to an adverse costs order. Opportunities to use alternative dispute resolution processes should be utilized wherever possible to reduce this risk. In most WorkCover cases the risk of actually having to pay an adverse costs order is reduced by a formal policy implemented by the Victorian WorkCover Authority that it will not seek to recover costs from an unsuccessful litigant other than in carefully defined circumstances. The most important of these is where a claimant is found to be fraudulent or dishonest on a major issue. A copy of this policy can be provided on request.

WORKFORCE LEGAL continually reviews client matters and uses alternative dispute resolution processes to ensure minimize any risk of an adverse costs order.

What are the terms and conditions?

Generally, the terms and conditions are reasonably standard. Normally you are required to tell the lawyer honestly and openly of all relevant information about your claim. This obligation extends to informing your lawyer about any relevant change in your circumstances during your claim. This is an important condition to enable the lawyer to make an accurate judgment about the degree of risk in your case. You will also be required to do all the normal things to progress your claim such as attending medical appointments. There is usually one further and important condition in these agreements - an obligation to abide by reasonable advice. It is important to ensure that this condition does not operate to take the control of your case away form you. This can be achieved by having a condition in the agreement that if you and your lawyer disagree over the reasonableness of advice the matter can be subject to the opinion of an expert independent barrister selected by the Law Institute.

In exchange for these conditions, your lawyer will be required to conduct your claim efficiently, honestly and professionally.

Understanding the actual charge rate?

It is critically important that you understand the exact charge rate contained in a fee agreement. Most, but not all, lawyers use court scales as the basis of their charges. These may be described as Supreme Court scale or County Court scale. Firstly, you should check which court your claim is likely be conducted in and ensure that the scale that applies to that court is used. Some lawyers do not use court scales at all and charge based on their own in house scales! If you are presented with an in house scale, it is important that you understand how that scale compares to court scales. We think that the variation of in-house scales from court scales should always be clearly expressed in percentage terms. We have seen variations which we estimate to be approximately 30-40% higher than the court scale (depending on which court scale you use) before the uplift fee is applied to it! This means that after the uplift charge is applied you may be charged costs that are 50% higher than the court scale! If you are presented with an in house scale, demand details about the average percentage variation of the in house scale from court scales.

The fees of WORKFORCE LEGAL in litigation matters are always based on an applicable court scales.

How much is the uplift fee?

Beware of fee agreements that contain a general discretion to charge you a success fee of "up to 25%"! You are entitled to know the exact percentage of the uplift fee. Is it likely to be 10% or 25%? If a lawyer declines to specify the uplift or give you clear information on what factors will affect it, you should work on the basis that you would be charged the full 25%!

At WORKFORCE LEGAL we will always specify the exact uplift fee!

Does the uplift fee reflect the risk?

Many law firms automatically apply a 25% increase in fees as an uplift fee. This is difficult to understand, as part of the reason for allowing uplift fees is to compensate the lawyer for the risk that a case will not be successful. The risk however varies from case to case and the uplift fee you are to pay ought to reflect the actual risk in your case.

In a common law claim for damages for a work injury, there are three distinct areas of risk. The first area of risk is in the chance of obtaining serious injury certification, the second is in proving negligence and the third is in proving loss. In some cases, the risk is spread across all areas in others the risk may be substantially in only one of the three areas. In some cases, there may be very little risk at all.

The best way to illustrate this is with an example. If for example a worker had suffered an amputation of an arm, the employer had been convicted of a safety law breach then there would be little risk in the case. Automatically applying a 25% uplift fee would be extremely unfair. Another case, for example, may involve a back injury where there is very clear loss and negligence but there may be a real risk that the worker will not receive a serious injury certificate. In this circumstance and uplift fee of 25% may be reasonable BUT is it fair that if the worker receives the certificate that the rest of the case is conducted on the same basis once that risk is removed? At WORKFORCE LEGAL, we do not think it is.

At WORKFORCE LEGAL, the uplift will always be reasonably proportionate to the actual risk.

Defining Success

In conditional fee agreements there will always be a definition of success. It is important to make sure that the definition is fair. For example if the definition is that a claim is successful, if you receive any payment you should ask for the definition to be more specific. If all you eventually receive is a payment for permanent impairment, that should not qualify as a success in a fee agreement for a damages claim.

Uplifts on disbursements

Some conditional fee agreements apply the uplift fee not only to the lawyer's direct fee but also to disbursements that they incur on your behalf. This means that if they obtained a medical report for $400.00 it will be charged to you at $500.00! At WORKFORCE LEGAL our uplift fee will not apply to disbursements incurred on your behalf. Applying an uplift charge to some disbursements can be very unfair. Firstly, there are some arrangements where some of the reports fees of treating medical practitioners can be recovered from the WorkCover Authority irrespective of the result of a claim particularly if they were used for an impairment claim or at conciliation of a dispute about your entitlements.

Secondly some, but not all, barristers will increase their charge in a successful matter to compensate for matters where they are not expected to charge the solicitor if the matter is unsuccessful. This sort of arrangement is quite common and appropriate. If such an arrangement is in place between the solicitor and barrister it is very unfair if you are also charged an additional uplift charge on the barrister's fee by the solicitor. This is because the barrister's fee is already increased if the claim is successful. If the claim is not successful, the solicitor may not have to pay the fee! It would be in effect a double uplift in a situation where there is no actual risk!

At WORKFORCE LEGAL, we will not charge any uplift fee on disbursements incurred on your behalf.

Negotiating Fees

Before you enter into any fee agreement, you should try to understand all you can about your arrangements. As a conditional fee agreement is based on an assessment of risk you should talk in detail about the various risks in your matter with the lawyers you consult. Remember the fees are negotiable and the lawyer should make you feel comfortable about discussing these issues with you. A lawyer may say to you that they cannot assess the risk until they have undertaken some investigations. To an extent, this may be correct. However, a lawyer who carefully collects detailed information from you should be in a position to make a preliminary assessment of the risk. They can then express a view subject to it being borne out by investigation.

WORKFORCE LEGAL want you to talk frankly to us about our fees and compare them to the fees of other lawyers. We think that if you are not able to get clear information from another firm that says it all!