2.4.1 Employer's liability | 2.4.2 Employer excess table | 2.4.3 Employer liability under administrator and receiver situations | 2.4.4 Exceptions to employer's liability | 2.4.5 Assumption of liability by WorkSafe | 2.4.6 Exceptions for injuries before 4pm 30/6/1993
Employers have a number of obligations about paying compensation to a worker.
The Agent determines liability on a claim. When an Agent makes a decision to accept a claim they will advise both the worker and employer in writing. In the case of claims for compensation in the form of weekly payments, the Agent will advise the amount of weekly payments to be paid to the worker.
The employer must comply with the decision of the Agent and make weekly payments subject to the provision of valid Certificates of Capacity.
Employer's payment threshold
When liability has been accepted on a claim an employer is liable for the first 10 days of incapacity and the first $763 (indexed annually) of medical and like expenses unless they take out the buy-out option on their WorkCover insurance or unless the worker is entitled to provisional payments for a mental injury.
Note: An Agent's decision to accept or reject liability will not be influenced by an employer making payments to a worker before a claim is accepted. If the claim is accepted, such payments may form part of the employer’s excess.
For information on an additional liability which an employer may have to pay in some circumstances see: Penalties for late lodgement.
First 10 days of incapacity
The first 10 days of incapacity are the first 10 working days that the worker would have worked if they had not been injured.
For example if a worker is employed for only one day a week, the employer's liability would extend for 10 weeks.
If a worker is only partially incapacitated and is still working but working reduced hours, any day that they are working reduced hours will count towards the 10 days of incapacity.
Any day the worker would not have worked had the injury not occurred is not included.
For example rostered days off are not included as part of the first 10 days. Weekends and public holidays are not included unless they are work days.
Calculation of Employer Liabilities
Note: ACCtion pays Saturday to Friday
A part-time employee works on Tuesday, Wednesday and Thursday. When packing up at the end of the day on Wednesday 6 November 2013 they hurt their back. They do not come in to work on the Thursday because of the back injury.
When calculating the first 10 days employer liability only the days the part-time workers would have worked would be used in the calculation (Tuesday, Wednesday and Thursday).
First 10 days in this case would be 7th (Thurs), 12th (Tues), 13th (Wed), 14th (Thurs), 19th (Tues), 20th (Wed), 21st (Thurs), 26th (Tues), 27th (Wed) and 28th (Thurs) November 2013.
As this worker only works Tuesday, Wednesday and Thursday the Original Start Compensation date would be Monday 3 December 2013.
Note: In this instance weekly payments do not start until the following Monday as the worker has been paid in full by the employer for this week.
If the 10th day had finished on the Wednesday the earnings paid by the employer would need to be taken in to consideration when calculating the weekly payment amount applicable for that week
Night Shift Worker
A worker is employed as a night shift worker and works 10pm to 6am Wednesday, Thursday, Friday, Saturday & Sunday night and sustained an injury around 4am Thursday morning.
Only the days in which they would have worked are used in the calculation of the first 10 days. Therefore only Wednesday Thursday Friday Saturday and Sunday would be used in the calculation of the first 10 days [ie Friday, Saturday, Sunday, Wednesday, Thursday, Friday, Saturday, Sunday, Wednesday & Thursday]
Although weekly payments would commence on the Thursday – earnings paid by the employer for the preceding Saturday Sunday and Wednesday should be considered in the calculation of weekly payments for that week.
A worker has a casual job at the local supermarket and works to a roster on a week by week basis. Some weeks the worker may work one day, others 3 days.
In order to determine the days in which a worker would have worked a copy of the rosters would be required in order to determine a pattern as is done when determining PIAWE. As threshold refers to days worked (not hours) consideration must only refer to the days worked
If it is it established the worker would work an average of 2 days per week on a Thursday and Sunday. Only the Thursday and Sunday would be used to calculate the first 10 days which would take 5 weeks to meet.
A worker works Monday to Friday when walking through the office tripped over an extension cord and broke a leg on the morning of Thursday 21 March 2013 and was taken to hospital by ambulance.
The first 10 days employer liability in this instance would be comprised of Thursday 21/3 (the day on which the incapacity commenced) Fri 22/3, Monday 25/3, Tuesday 26/3, Wednesday 27/3, Thursday 28/3, Tuesday 2/4, Wednesday 3/4 Thursday 4/4 and Friday 5/4.
Friday 29/3/13 (Good Friday) and Monday 1/4/13 (Easter Monday) would not be used in the calculation of the employer threshold in this instance as they are public holidays and the worker would not have worked on these days.
Notification of payment of employer liability
The employer must provide details to the Agent of payments made as part of their liability as follows:
- the days/dates for which payments have been made for time off work (maximum 10 days)
- medical and like expenses ($763 - indexed annually).
If medical and like expenses payments exceed the initial liability, the employer must forward to the Agent copies of accounts clearly showing amounts paid or unpaid.
The employer advises the Agent of payments made to or on behalf of a worker under the employer’s liability using the Employer Liability - Advice on Payments form.
Payment of medical excess to Agent
The Agent may offer the employer the option of paying the medical excess directly to them.
Agents can send the employer a medical and like excess invoice to make a single payment in lieu of paying individual accounts as part of their employer excess obligation where:
- medical and like expenses incurred on the claim have already exceeded the medical excess threshold, or
- it is established that due to the nature of the claim that medical and like expenses are likely to exceed the threshold.
Agents can request a Medical and Like Excess Invoice be generated using ACCtion. The medical and like excess invoice may include an adjustment amount to recognise any medical and like amounts the employer has already paid. Invoice data files will be transmitted to an external printer in nightly batches. The external printer will print and send the invoice and cover letter to employers via their preferred method.
Once a medical and like invoice has been sent to an employer, the Agent then takes over the management and processing of medical and like expenses on behalf of the employer, even if the employer’s excess payment has not yet been received.
Employers can choose to pay by EFT, BPAY, deposit slip, credit card online or by phone. Employer excess payments made using the details on the excess invoice will be automatically processed from daily bank files and recorded against their respective claim in ACCtion. In the event that payments are not automatically applied to the claim, the Agent will need to manually apply the funds to the correct claim.
Once the employer’s full excess payment is received, the Agent can override employer liability with reason code 4 (employer pays Agent excess).
Shared liability: employer & WorkSafe
The employer’s liability under the excess for the initial expenses of a claim is separate from WorkSafe’s liability to pay compensation. The following examples show different scenarios of payment of an employer’s liability:
- worker injured 1 July 2018
- employer has not paid for any liability
- during that year the employer’s liability was limited to $707.
|Claim||Accounts received by Agent||Employer liability||WorkSafe's liability|
|Claim A||1 August 2018 received account for $240||$240||Nil|
|Claim B||1 August 2018 received accounts for $707 and $466||$707||$466|
|Claim C||1 August 2018 received account for $1000||$707||$293|
Exceptions to employer liability
The employer is liable to pay the excess in the majority of cases with a few exceptions.
Payment of gratuitous services
The employer may claim services provided to the worker as part of their liability for initial medical and like expenses, provided they submit an itemised account. This could include the treatment of the worker by an in-house company doctor that is not charged to the worker.
If the value of these services is greater than the excess, the employer may be reimbursed for the amount above the excess.